Federal Aviation Administration (FAA) Reauthorization: An Overview of Legislative Action in the 112th Congress

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Federal Aviation Administration

(FAA) Reauthorization: An Overview

of Legislative Action in the 112th Congress

Bart Elias, Coordinator

Specialist in Aviation Policy

August 9, 2011

Congressional Research Service

7-5700

www.crs.gov

R41798

CRS Report for Congress

Prepared for Members and Committees of Congress

FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

Summary

Reauthorization of Federal Aviation Administration (FAA) programs has been an issue of

considerable interest during the first session of the 112th Congress. The previous FAA

authorization, Vision 100—Century of Aviation Reauthorization Act (P.L. 108-176, hereinafter

referred to as “Vision 100”) expired at the end of FY2007. Attempts to enact a successor law

failed in the 110th and 111th Congresses. As a result, aviation trust fund revenue collections and

aviation program authority continued under a series of short-term extensions. Most recently,

following a two-week lapse in aviation trust fund revenue collections and expenditure authority,

the Airport and Airway Extension Act of 2011, Part IV (P.L. 112-27) was enacted on August 5,

2011 extending FAA authorization through September 16, 2011.

The House and Senate have passed separate versions of multiyear FAA reauthorization legislation

(see S. 223 and H.R. 658), and the Senate has requested a conference to resolve the differences

between the House-passed and Senate-passed bills. Whereas the Senate bill only covers FY2010

and FY2011, the House bill would authorize FAA programs through FY2014. For FY2011, the

only year the two bills overlap, the House-passed total authorization level for FAA is $2,082

million less than that specified by the Senate. Moreover, the House-passed bill calls for further

reductions in authorized FAA funding for FY2012 through FY2014. While these levels reflect

broader government-wide efforts to reduce deficit spending, they could pose considerable

challenges to ongoing air traffic modernization efforts, and affect FAA’s ability to address its

future needs for controllers and technical specialists to operate and maintain the nation’s air

traffic system. The Senate bill proposes an increase in jet fuel tax for general aviation and a new

jet fuel surcharge for fractionally owned aircraft, while the House bill does not include any

changes to existing aviation taxes and fees. Neither bill includes proposals to increase the cap on

passenger facility charges, and the House bill does not include the controversial provision passed

by the House in the 111th Congress to bring non-aviation employees of express carriers under the

National Labor Relations Act instead of the Railway Labor Act.

Key issues addressed in the FAA reauthorization bills include provisions intended to improve the

management of and accelerate progress on the Next Generation Air Transportation System

(NextGen); address FAA workforce and facility consolidation issues; improve the safety of air

ambulance operations; improve runway safety; increase oversight of air carriers and foreign

repair stations; integrate unmanned aircraft into the national airspace system; and address aircraft

and airport noise and emissions. While there are many similarities in language between the

House-passed and Senate-passed bills, particularly with respect to major issues affecting FAA,

several important differences remain to be reconciled. Provisions that may be of particular

interest during this process include

•

significant differences in authorized funding levels and aviation fuel taxes

between House and Senate versions;

•

a labor provision in the House bill that would overturn recent regulations that

make it easier for certain employees covered under the Railway Labor Act to

unionize;

•

provisions regarding the allocation of takeoff and departure slots at Reagan

National Airport; and

•

provisions in the House bill to end the Essential Air Service (EAS) program,

which subsidizes air carrier service to small and isolated communities.

Congressional Research Service

FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

Contents

Legislative Status............................................................................................................................. 1

FAA Budget and Aviation System Finance...................................................................................... 3

Proposed Funding Authorizations ............................................................................................. 3

Aviation System Finance ........................................................................................................... 5

Spending Guarantee Mechanisms ............................................................................................. 6

Airport Financing............................................................................................................................. 7

AIP Funding .............................................................................................................................. 7

Formula Funding (Entitlements) ............................................................................................... 7

Primary Airport Entitlements .............................................................................................. 7

Virtual Primary Airports...................................................................................................... 8

Study of Primary Airport Apportionment Based on Enplanement Ratio ............................ 8

State Block Grant Program.................................................................................................. 8

Puerto Rico Minimum Guarantee ....................................................................................... 9

United States Territory Minimum Guarantee ...................................................................... 9

Discretionary Funds................................................................................................................... 9

Minimum Discretionary Fund............................................................................................. 9

Noise Set-aside.................................................................................................................... 9

Military Airport Program (MAP) ........................................................................................ 9

AIP Project Eligibility Changes............................................................................................... 10

AIP Grant Assurances.............................................................................................................. 10

Federal Share........................................................................................................................... 11

Passenger Facility Charges (PFCs).......................................................................................... 12

Increasing the PFC Cap..................................................................................................... 12

Project Eligibility .............................................................................................................. 12

Competition Plans ............................................................................................................. 13

Passenger Facility Charge Pilot Program.......................................................................... 13

PFC Grant Streamlining and Revenue Diversion Provisions............................................ 13

Other Airport-Related Provisions ............................................................................................ 13

Airport Privatization.......................................................................................................... 14

Pilot Program for Redevelopment of Airport Properties................................................... 14

Land Use and Conveyance Provisions in the Senate Bill.................................................. 14

Priority Review of Cold Weather State Construction Projects.......................................... 15

Noise Monitoring of the New York/New Jersey/Philadelphia Airspace Redesign............ 15

Solid Waste Recycling Plans ............................................................................................. 15

Airport Disadvantaged Business Enterprise Program ....................................................... 15

Training Program for Certification of Disadvantaged Business Enterprises..................... 16

Metropolitan Washington Airports Authority.................................................................... 16

FAA Management and Organizational Issues................................................................................ 16

Air Traffic Controller and Technical Workforce...................................................................... 16

Facility Consolidation ............................................................................................................. 17

FAA Personnel Management System ...................................................................................... 18

NextGen Air Transportation System Modernization ..................................................................... 21

Aviation Safety .............................................................................................................................. 23

Runway Safety......................................................................................................................... 24

Safety of Air Ambulance Operations....................................................................................... 24

Congressional Research Service

FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

Maintenance Providers and Repair Stations ............................................................................ 25

Air Carrier Oversight............................................................................................................... 26

Unmanned Aircraft Systems.................................................................................................... 28

Pilot Fatigue............................................................................................................................. 29

Miscellaneous Safety-Related Provisions ............................................................................... 30

Airline Industry Issues................................................................................................................... 30

Industry Labor Issues .............................................................................................................. 30

Washington Reagan National Airport Slot Controls................................................................ 31

Essential Air Service Program................................................................................................. 32

Airline Passenger Rights Issues............................................................................................... 33

DOT Regulatory Action on Airline Passenger Rights....................................................... 33

Airline and Airport “Emergency Contingency Plans” for Tarmac Delays ........................ 34

Advisory Committee for Aviation Consumer Protection .................................................. 35

Monthly Air Carrier Reports on Customer Service and Flight Delay History .................. 35

Expansion of DOT Airline Consumer Complaint Investigations...................................... 35

Consumer Complaint Hotline Telephone Number ............................................................ 36

Musical Instruments .......................................................................................................... 36

Disclosure of the Operating Air Carrier Name for Each Flight Segment.......................... 36

Disclosure of Passenger Fees ............................................................................................ 36

Notification Requirements in Regard to Passenger Taxes and Fees.................................. 37

Denied Boarding Compensation ....................................................................................... 37

Delayed Baggage Compensation....................................................................................... 37

Study of European Union Rules for Passenger Rights...................................................... 38

Insecticide Use on Passenger Aircraft ............................................................................... 38

Prohibitions Against Cell Phone or Other Voice Communication Devices....................... 38

Smoking Prohibition ......................................................................................................... 38

Study of Air Quality in Aircraft Cabins............................................................................. 38

Seat Dimension Disclosure to Facilitate Use of Child Safety Seats ................................. 39

Environmental and Energy Issues.................................................................................................. 39

Environmental-Related Research Programs and Funding....................................................... 40

Grants and Procedural Changes to Assist with Environmental Compliance ........................... 42

Requirements to Address Aircraft and Airport Air Emissions and Noise................................ 43

The Air Tour Management Program........................................................................................ 44

Tables

Table 1. Federal Aviation Administration Extension Acts Since September 2007 .......................... 1

Table 2. Proposed Reauthorization Funding Levels for FAA Accounts .......................................... 4

Table 3. Aviation Taxes and Fees..................................................................................................... 5

Contacts

Author Contact Information........................................................................................................... 46

Key CRS Policy Staff and Areas of Expertise ............................................................................... 47

Congressional Research Service

FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

Legislative Status

The last enacted multi-year FAA reauthorization measure, Vision 100—Century of Aviation

Reauthorization Act (P.L. 108-176, hereinafter referred to as “Vision 100”) expired at the end of

FY2007. While various versions of a new multi-year FAA reauthorization were separately passed

by the House and the Senate during the 110th and 111th Congresses, no agreement on a long-term

FAA reauthorization has yet been reached. Since September 2007, federal aviation programs and

aviation trust fund revenue collections have continued under a series of short term extensions (see

Table 1). So far, there have been 21 extensions.

Controversy over provisions in the fourth extension bill offered during the 112th Congress led to a

two-week partial shutdown of the FAA. Airport and Airway Extension Act of 2011, Part III (P.L.

112-21), enacted on June 29, 2011, extended authorizations until July 22, 2011. On July 22, 2011,

the House passed the Airport and Airway Extension Act of 2011, Part IV (H.R. 2553) which

would have extended authorization through September 16, 2011. The bill also included reforms to

the Essential Air Service (EAS) program that would have modified community eligibility criteria

for subsidized air carrier service.

Objections over the EAS provisions in the extension bill and over the Railway Labor Act

provision in the House-passed multiyear FAA reauthorization bill (H.R. 658) led to a stalemate in

the Senate regarding the measure. As a consequence, FAA authority to collect aviation trust fund

revenues and expend money in the trust fund expired on July 22, 2011.

In response to the lapse in program expenditure and revenue collection authority, FAA halted

work on a number of construction projects at airports and air traffic control facilities and

furloughed almost 4,000 employees effective July 23, 2011. On August 5, 2011, the Senate

reached an agreement and passed H.R. 2553 without amendment by unanimous consent. The

measure was signed by the President later that day thus ending the partial shutdown of the FAA

and the lapse in aviation trust fund revenue collection authority, including passenger ticket taxes,

that had lasted almost two weeks.

Table 1. Federal Aviation Administration Extension Acts Since September 2007

Public Law

P.L. 110-92

Title of Legislation

Length of FAA Extension

H.J.Res. 52

Enacted: 9/29/2007

Joint Resolution

Expired: 11/16/2007

Continuing Appropriations for FY2008

P.L. 110-116

P.L. 110-149

H.R. 3222

Enacted: 11/13/2007

Continuing Appropriations for Department of Defense for

Fiscal Year ending Sept. 30, 2008

Expired: 12/14/2007

H.J.Res. 69

Enacted: 12/14/2007

Joint Resolution

Expired: 12/21/2007

Continuing Appropriations for FY2008

P.L. 110-149

H.J.Res. 72

Enacted: 12/21/2007

Continuing Appropriations for FY2008

Expired: 12/31/2007

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FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

P.L. 110-161

P.L. 110-190

P.L. 110-253

P.L. 110-330

P.L. 111-12

P.L. 111-69

P.L. 111-116

P.L. 111-153

P.L. 111-161

P.L. 111-197

P.L. 111-216

P.L. 111-249

P.L. 111-329

P.L. 112-7

P.L. 112-16

P.L. 112-21

P.L. 112-27

H.R. 2764

Enacted: 12/26/2007

Consolidated Appropriations Act, 2008

Expired: 2/29/2008

H.R. 5270

Enacted: 2/28/2008

Airport and Airway Extension Act of 2008

Expired: 6/30/2008

H.R. 6327

Enacted: 6/30/2008

Federal Aviation Administration Extension Act of 2008

Expired: 9/30/2008

H.R. 6984

Enacted: 9/30/2008

Federal Aviation Administration Extension Act of 2008,

Part II

Expired: 3/31/2009

H.R. 1512

Enacted: 3/30/2009

Federal Aviation Administration Extension Act of 2009

Expired: 9/30/2009

H.R. 3607

Enacted: 10/1/2009

Fiscal Year 2010 Federal Aviation Administration Extension

Act

Expired: 12/31/2009

H.R. 4217

Enacted: 12/16/2009

Fiscal Year 2010 Federal Aviation Administration Extension

Act, Part II

Expired: 3/31/2010

H.R. 4957

Enacted: 3/31/2010

The Federal Aviation Administration Extension Act of 2010

Expired: 4/30/2010

H.R. 5147

Enacted: 4/30/2010

Airport and Airway Extension Act of 2010

Expired: 7/3/2010

H.R. 5611

Enacted: 7/2/2010

Airport and Airway Extension Act of 2010, Part II

Expired: 8/1/2010

H.R. 5900

Enacted: 8/1/2010

Airline Safety and Federal Aviation Administration

Extension Act of 2010

Expired: 9/30/2010

H.R. 6190

Enacted 9/30/2010

Airport and Airway Extension Act of 2010, Part III

Expired 12/31/2010

H.R. 6473

Enacted 12/22/2010

Airport and Airway Extension Act of 2010, Part IV

Expired 3/31/2011

H.R. 1079

Enacted 3/31/2011

Airport and Airway Extension Act of 2011

Expired 5/31/2011

H.R. 1893

Enacted 5/31/2011

Airport and Airway Extension Act of 2011, Part II

Expired 6/30/2011

H.R. 2279

Enacted 6/29/2011

Airport and Airway Extension Act of 2011, Part III

Expired 7/22/2011

H.R. 2553

Enacted 8/5/2011

Airport and Airway Extension Act of 2011, Part IV

Expires 9/16/2011

Source: CRS analysis of Legislative Information System (LIS) bill summary and status information.

Congressional Research Service

FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

On February 17, 2011, the Senate passed the FAA Air Transportation Modernization and Safety

Improvement Act (S. 223), which would authorize FAA programs through FY2011. On April 1,

2011, the House passed the FAA Reauthorization and Reform Act of 2011 (H.R. 658), which

would provide funding and revenue collection authorizations for FY2011 through FY2014. On

April 7, the Senate inserted the text of S. 223 as an amendment in lieu of the House-passed

language. The Senate passed its version of H.R. 658 by unanimous consent and has requested a

conference to resolve the differences. This report discusses the major provisions in the Senate and

House FAA Reauthorization bills. It is organized into seven major program areas:

•

FAA budget and aviation system finance;

•

airport financing;

•

FAA management and organizational issues;

•

NextGen air transportation system modernization;

•

aviation safety;

•

airline industry issues; and

•

environmental and energy issues.

In several cases, provisions that appear in unrelated sections of proposed legislation have been

rearranged in this report in order to discuss related items in an issue-driven or programmatic

context. This report does not go into detail regarding the specific policy issues behind these

legislative proposals.

FAA Budget and Aviation System Finance

Amid broader concerns over federal deficit reduction, wide differences in proposed funding levels

exist between House-passed and Senate-passed FAA reauthorization legislation.

Proposed Funding Authorizations

FAA reauthorization legislation reflects larger bicameral and partisan divisions regarding federal

budget reduction approaches. The Senate bill only encompasses the previous fiscal year (FY

2010) and the current fiscal year (FY2011). It would increase total authorized funding levels for

the FAA by just under $500 million from FY2010 to FY2011 (see Table 2). In comparison to

appropriated amounts for FY2010, the Senate-passed bill’s proposed authorization levels are

considerably greater for all accounts except Operations and Maintenance (O&M).

In contrast, House-passed H.R. 658 seeks considerable budget reductions compared to FY2010

appropriated amounts for all FAA accounts. Authorized totals for FY2011 would be $548 million

below FY2010 enacted levels. For FY2011, the only year in which the House and Senate bills

overlap, the House-passed bill specifies a total authorization level approximately $2 billion below

the Senate-passed amount. Moreover, the House-passed bill calls for further reductions to all FAA

accounts, setting flat funding levels for FY2012 through FY2014. These would reduce FAA’s

annual budget by about $1 billion compared to FY2010 enacted levels. These cuts are consistent

with broader House budget initiatives but could prove challenging for the FAA to implement.

Congressional Research Service

FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

If significant cuts in authorized funding levels for FAA accounts are enacted, particular budget

challenges may include maintaining adequate staffing levels for O&M, a function that is highly

labor intensive, and keeping NextGen modernization efforts on schedule. Schedule slips in

NextGen implementation may be of particular concern as these could have the unintended effect

of costing FAA and aviation system users more in the long run if implementation delays translate

to cost overruns and/or postpone implementation of cost-saving technologies. This could hinder

efforts to improve air traffic system performance and reduce flight delays and cancellations.

Table 2. Proposed Reauthorization Funding Levels for FAA Accounts

($ in millions)

Account

FY2010

FY2011

FY2012

FY2013

FY2014

Senate-Passed

9,336

9,620

—

House-Passed

—

9,403

9,168

Enacted

—

9,350

—

Senate-Passed

4,000

4,100

—

House-Passed

—

3,176

3,000

Enacted

—

3,515

—

Senate-Passed

3,500

3,600

—

House-Passed

—

2,700

2,600

Enacted

—

2,936

—

Senate-Passed

200

206

—

House-Passed

—

165

147

Enacted

—

Appropriated

191

—

Senate-Passed

17,036

17,526

—

House-Passed

—

15,444

14,915

Enacted

—

15,992

—

FAA Operations and Maintenance (O&M)

Appropriated

Airport Improvement Program (AIP)

Appropriated

Facilities and Equipment (F&E)

Appropriated

Research, Engineering, and Development (RE&D)

Totals

Appropriated

Source: CRS analysis of S. 223, H.R. 658, and P.L. 111-8 (FY2010 Appropriations).

Note: Table does not reflect enacted authorization amounts specified in short term extension acts.

Congressional Research Service

FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

Aviation System Finance

The aviation system has historically been funded in part by a designated trust fund, the airport

and airways trust fund (AATF), and in part through budget authority received from the Treasury

general fund. The general fund share of FAA appropriations has historically varied widely,

ranging from a low of 0% in FY2000 to a high of 37% in FY1998. The general fund share tends

to follow a cyclical trend, largely stemming from reduced trust fund revenues during economic

slowdowns. It had hovered around 20% over the past 10 years, but has recently increased. The

Congressional Budget Office (CBO) projects that the general fund share will peak at 33% of the

FAA budget total in FY2011 before following a continuing downward trend over the next 10

years. These projections are based on steady increases to the FAA budget and do not reflect

possible cost cutting measures as called for in H.R. 658. Reduced funding authority would likely

accelerate the reduction in general fund share over the authorization period. CBO projects annual

trust fund balances of about $10 billion and the health of the trust fund has not been raised as a

particular concern in the FAA reauthorization debate.

Aviation trust fund revenues are derived from various sources, primarily taxes imposed on airline

passengers, air cargo shipments, and aviation fuels, as shown in Table 3.

Table 3. Aviation Taxes and Fees

Existing Rate

HousePassed

SenatePassed

Passenger Ticket Tax (domestic)

7.5%

No change

Flight Segment Tax (domestic)

$3.70

No change

Cargo Waybill Tax

6.25%

No change

Frequent Flyer Tax

7.5%

No change

General Aviation Gasolinea

19.3 cents/gallon

No change

General Aviation Jet Fuela (Kerosene)

21.8 cents/gallon

No change

35.9

cents/gallon

Commercial Jet Fuela (Kerosene)

4.3 cents/gallon

No change

International Departure/Arrivals Tax (indexed to CPI)

(prorated Alaska/Hawaii to/from mainland United States)

$16.30

(Alaska/Hawaii

= $8.20)

No change

Fractional Ownership Surtax on general aviation jet fuel

14.1

cents/gallon

Tax or Fee

Source: Compiled by CRS from existing statutes and proposed legislation.

Does not include 0.1 cents/gallon for the Leaking Underground Storage Tank (LUST) trust fund.

Whereas the House-passed bill does not propose any changes to the exiting aviation tax and fee

structure, the Senate-passed bills call for a 14.1 cents per gallon increase in general aviation jet

fuel taxes and a new 14.1 cents per gallon surcharge on general aviation jet fuel purchased for

fractionally-owned aircraft.

Congressional Research Service

FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

Spending Guarantee Mechanisms

Since the 1971 creation of the user-supported airport and airway trust fund there has been

disagreement over the appropriate use of the trust fund’s revenues. This led, beginning in 1976, to

the enactment of a series of legislative mechanisms designed to ensure that federal capital

spending for U.S. airports and airways (i.e., AIP and F&E) would be funded at their fully

authorized levels.

The current mechanism dates back to 2000 and includes two spending guarantees. One makes it

out-of-order in the House or Senate to consider legislation that fails to use all aviation trust fund

receipts and interest annually. The second makes it out-of-order to consider any bill that provides

any funding for RE&D or O&M if it fails to fully fund AIP and F&E at their authorized levels.

These guarantees have been incorporated into the FAA extension bills, keeping them in effect.

The House-passed bill (Section 104) would amend the airport and airway trust fund guarantee

that requires that the total amounts made available from the trust fund be equal to the level of

receipts plus interest for the year. Under the House-passed bill, for FY2011, the amounts made

available would equal 90% of the estimated level of receipts plus interest on the fund for the

fiscal year. For FY2012 and each fiscal year thereafter, the guaranteed level would equal the sum

of 90% of the estimated receipts plus interest for each respective year, plus the difference between

the actual receipts and total amounts made available for obligation from two years before (i.e.,

FY2010 for FY2012, etc). The bill would retain the point-of-order enforcement mechanisms.

This change would have a number of possible implications. First, the change could lessen the

demands on trust fund revenues for the first year of the reauthorization, perhaps allowing a

modest accumulation in the unexpended balance of the trust fund during that year. Second, it

would reduce the likelihood that overly optimistic revenue projections could lead to spending at

rates that exceed the actual revenues accruing to the trust fund, at least in the first year of the bill.

Finally, by limiting trust fund spending, the change could, in the minds of some, increase the

likelihood that the general fund contribution percentage for the FAA budget would be set at a

higher level.

The Senate-passed bill (Sec. 105) would extend the existing guarantees through 2011. For fiscal

years 2012 and 2013, Section 809 of the bill amends 26 U.S.C. 9502(d) to restrict the amount

made available for each fiscal year to 90% of the receipts of the Airport and Airway Trust Fund

plus interest credited for the respective year as estimated by the Secretary of the Treasury. This

would appear to provide for a building up of the unexpended balance in the trust fund. It could

also be seen as making it less likely that the entire FAA budget could be funded from the trust

fund in FY2012 or FY1013.

Congressional Research Service

FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

Airport Financing

The Airport Improvement Program (AIP) provides federal grants for airport development. AIP

funding is usually limited to capital improvements related to aircraft operations. Commercial

revenue-producing portions of airports and airport terminals are generally not eligible for AIP

funding. AIP money cannot usually be used for airport operational expenses or bond repayments.

AIP funds are distributed either as formula grants or as discretionary grants.1

The Passenger Facility Charge (PFC) program provides a source of non-federal funds intended to

complement AIP spending. The PFC is a local tax imposed, with federal approval, by an airport

on each boarding passenger. PFC funds can be used for a broader range of projects than AIP

grants and are more likely to be used for “ground side” projects. PFCs can also be used for bond

repayments.

The AIP and PFC programs are the sources of funds for airport capital development that have the

most federal involvement. Other sources are bonds, state and local grants, and airport revenue.

AIP Funding

The AIP authorization for FY2007, the final year of funding under Vision 100, was $3.7 billion.

The authorization levels under the extension acts were:$3.657 billion for 2008, $3.9 billion for

FY2009, and $3.515 billion for FY2010. For FY2011, the partial year extensions are based on the

assumption of a full-year authorization of $3.7 billion.

The amounts actually made available (the obligation limitation) through the appropriations

process has been held at roughly $3.5 billion annually since FY2006. The House-passed bill

(Section 101) would reduce AIP’s authorization to $3.18 billion for FY2011 and to $3.0 billion

annually for FY2012-FY2014. Section 104 of the Senate-passed bill would authorize AIP as

follows: $4.0 billion for FY2010; $4.1 billion for FY2011.

Formula Funding (Entitlements)

The AIP program provides formula apportionments (referred to as entitlements) and discretionary

grants to airports in the national system. Each year the apportioning formulas are satisfied first

and the remainder of the year’s authorization is available for discretionary grants. Consequently,

the discretionary funds would bear the brunt of lower authorizations and benefit most from

authorization increases. Neither the House- nor Senate-passed bill makes major changes in the

structure or operation of the AIP entitlement formulas.

Primary Airport Entitlements

The House-passed bill does not include provisions altering the primary airport formulas.

However, since the amounts authorized for AIP would be reduced with no adjustment of the

For a detailed description of the AIP program, see CRS Report R40608, Airport Improvement Program (AIP):

Reauthorization Issues for Congress, by Robert S. Kirk.

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FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

apportionment formulas, funding for discretionary grants would be curtailed. The Senate-passed

bill does not include provisions altering primary airport formulas.

Virtual Primary Airports

A special rule enacted after the September 11, 2001, terrorist attacks allowed some airports

(referred to as virtual primary airports) whose annual passenger boardings fell below the required

minimum passenger levels needed to maintain their primary airport status to continue receiving

their annual primary airport entitlements (generally $1 million vs. the GA entitlement, which is

generally $150,000). Some have argued that airports that have lost their primary airport status due

to the economic recession that began in 2007 should receive similar treatment.

The House-passed bill (Sec. 145) would allow airports that had more than 10,000 passenger

boardings and scheduled passenger aircraft service in calendar year 2007, but in either or both

years 2009 or 2010 had fewer than 10,000 boardings, to receive the amount apportioned to the

airport sponsors in FY2007 for the years FY2011 and FY2012.

The Senate-passed bill (see Sec. 208(i)) includes a special rule for airports whose enplanements

fell, during 2008 or 2009, below the 10,000 threshold needed to qualify for primary airport

entitlements, but had met the threshold during 2007. If these airports’ enplanements for 2010 or

2011 decrease below 10,000 the Secretary of Transportation may make apportionments to these

airports based on the amount the airports received for FY2009 (2008 and 2009 entitlements were

based on 2007 enplanement data). During markup an additional provision was added for FY2008FY2011 for airports with fewer than an average of 10,000 enplanements in 2004-2006.

As of this writing, CRS has been unable to determine the number of airports that would be

eligible under the Section 208(i) for virtual primary entitlements. However, the difference for an

airport between primary and GA entitlement funding is usually $850,000, so the provisions could

have a significant impact on entitlement spending as well as the amount left over for discretionary

grants once all the required entitlement distributions are satisfied.

Study of Primary Airport Apportionment Based on Enplanement Ratio

The Senate-passed bill (Sec. 223) directs the FAA to complete a study on the feasibility and

advisability of basing primary airport apportionments on the ratio of each airport’s enplanements

to the national total of enplanements. The current apportionment system is based on dollar

amounts for each enplaned passenger that vary by airport size categories. Under the current

system the smaller airport categories receive larger amounts per enplaned passenger. The Housepassed bill does not include a similar provision

State Block Grant Program

The House-passed bill (Section 502) would amend the state block grant program by specifying

that federal environmental requirements would apply to the program. The proposal specifies that

any federal agency that grants approval (i.e., permit or license) to a state must consult with that

state during the approval process. Further, the federal agency would be required to use any stateprepared environmental analysis associated with that approval. Section 209 of the Senate-passed

bill includes similar language to that in the House bill. It also includes a pilot program for up to

three additional states that is consistent with the existing program.

Congressional Research Service

FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

Puerto Rico Minimum Guarantee

The House bill (Section 143) reaffirms that airports in Puerto Rico are to receive apportionments

according to 49 U.S.C. 47114, as do National Plan of Integrated Airport Systems (NPIAS)

airports within the United States. The provision also ensures that airports in Puerto Rico may

apply for project grants from the AIP discretionary fund. The Senate-passed bill does not address

this issue.

United States Territory Minimum Guarantee

Section 217 of the Senate-passed bill would provide the Secretary of Transportation authority to

raise the Territories’ share of the total of primary and general aviation apportionments to 1.5%, if

the total amounts flowing to the Territories through the normal apportionment process fall below

that percentage. The House bill includes no provision regarding a United States Territory

Minimum Guarantee.

Discretionary Funds

The discretionary fund includes the AIP funding that is not distributed under the apportioned

entitlements as well as the forgone PFC revenues that are not directed to the small airport fund.

Related PFC changes are discussed later in this report.

Minimum Discretionary Fund

49 U.S.C. 47115 requires that a minimum amount ($148 million plus any outstanding pre-January

1, 1997, letters of intent) remain available for the discretionary fund after all apportionments and

set-asides are satisfied. If less money remains, the apportionments are reduced pro rata to provide

funds to bring the discretionary funding up to the required level. Because AIP has been funded

since FY2001 at sufficiently high levels, the minimum discretionary fund provision has not

recently been a factor in AIP funding.

While the House-passed bill does not address this issue, Section 208(k) of the Senate-passed bill

sets the minimum amount to be credited to the discretionary fund at $520 million per year and

drops the letter of intent language.

Noise Set-aside

Section 208 (h) of the Senate-passed bill would provide for a flat $300 million annual

discretionary set-aside for AIP noise program costs in place of the current 35% discretionary setaside, while the House-passed bill does not address the noise set-aside.

Military Airport Program (MAP)

Section 147 of the House-passed bill adds consideration of whether or not a grant to the airport

would be critical to the safety of commercial, military, or general aviation in trans-oceanic flights

to MAP program selection considerations. The bill would raise the allowable number of general

aviation airports that may be designated under MAP from one to three. Sections 212 and 220 of

the Senate-passed bill would make changes similar to the House bill.

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AIP Project Eligibility Changes

The House-passed bill makes a number of definitional and other changes that would impact AIP

project eligibility. The bill includes provisions regarding eligibility of “revenue producing

aeronautical support facilities” at nonprimary airports and the lowering of the passenger aircraft

size required to meet the eligibility requirements for purchasing firefighting and rescue

equipment. Glycol recovery vehicles would be made eligible. Terminal development is redefined

to include development of an airport passenger terminal building, including gates and access

roads and walkways servicing exclusively airport traffic that leads directly to or from the airport

passenger terminal building. It also includes a provision regarding the construction of mobile

refueler parking and clarifying definitions of general aviation airport and terminal development.

The bill includes a provision regarding the relocation of airport-owned facilities. Under the bill,

repaying borrowed money for terminal development under 49 U.S.C. 47119(a) is clarified as

“airport development” and made eligible under certain circumstances. Projects to provide air

conditioning, heating, or electric power from terminal facilities to parked aircraft to reduce energy

use and “harmful emissions” would be eligible. Airport planning would be redefined to include

“developing an environmental management system.” The cost of environmental review of airportproposed environmentally beneficial aircraft flight procedures would also be AIP eligible.

The Senate-passed bill (Sec. 205) strikes 49 U.S.C. 47110 (d), “Terminal Development Costs,”

and replaces it with a subsection that makes the relocation of airport-owned facilities allowable as

an airport development project under certain conditions. Section 205 also appears to attempt to

broaden the allowability of the use of non-primary entitlement funds for “facilities, as defined by

Section 47102.” Section 47102, however, does not appear to specifically define the term. Section

211 allows an airport operator to use AIP funds for the environmental review for

environmentally-beneficial (mostly noise-related) aircraft flight procedures. Section 215 would

make glycol (de-icing fluid) recovery vehicles eligible for AIP grants.

During markup of the bill by the Committee on Commerce, Science and Transportation, an

amendment was agreed to allow bird-detecting radar systems to be an eligible part of AIP project

costs under certain conditions. Accordingly, the provision was added to Section 205.

Section 222 of the Senate-passed bill would add, as an airport improvement policy under 49

U.S.C. 47101, that the AIP should be administered to improve the efficiency of airport buildings

built or improved in airport projects, including measures designed to meet one or more of the

criteria for being a high-performance green building.

AIP Grant Assurances

The House-passed bill (Sec. 136) would make two changes to AIP grant assurances under 49

U.S.C. 47107. It allows for the use of AIP entitlement funds to replace or move a facility at an

airport if the cause of the need was beyond the owner’s control, such as a new design standard

that made the present facility deemed a safety hazard.

The second proposed change deals with the disposition of profits made from the sale of land that

was originally acquired for a noise compatibility purpose but is no longer needed for that purpose.

Current law requires that the federal share of the proceeds, proportional to the federal share of the

original land acquisition cost, be deposited in the trust fund. The proposed change would allow

the proceeds to be reinvested in another project for, in preferential order: (1) an approved noise

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compatibility project at the airport; (2) an environmentally related project at the airport; (3)

another eligible AIP project at the airport; (4) transfer to another airport for a noise compatibility

project; or (5) payment to the trust fund.

Section 136 (d) of the House-passed bill eliminates the sunset provision for the “competition

disclosure requirement,” under 49 Section 47107 (s). Additionally, Section 815 prescribes the

conditions under which a general aviation airport can use revenue from mineral extraction on the

airport’s property for transportation infrastructure projects beyond the normal AIP range of

eligible projects, without violating revenue diversion restrictions.

The Senate-passed bill (Sec. 203) includes the first two provisions of the House bill, described

above. The bill does not eliminate the competition disclosure requirement sunset provision. The

provision includes two changes not contained in the House bill. The first allows the proceeds

from disposing of land that was or will be acquired for an airport purpose (other than for a noise

compatibility purpose) to be reinvested at the same airport or transferred to another airport

prescribed by the Secretary of DOT (i.e., instead of being deposited in the fund). The second

change clarifies that the leasing of land purchased with AIP funds for noise mitigation purposes

shall not be considered disposal of the land under the assurance on acquiring land (49 U.S.C.

47107 (2). Section 224, as does Section 815 of the House bill, prescribes the conditions under

which a general aviation airport can use revenue from mineral extraction on the airport’s property

for transportation infrastructure projects beyond the normal AIP range of eligible projects,

without violating revenue diversion restrictions.

Federal Share

Under current law, the federal government share for AIP projects is as follows:

•

75% for large and medium hub airports (80% for noise compatibility projects);

•

95% for other airports;2

•

“not more than” 95% for airport projects in states participating in the state block

grant program; and

•

70% for projects funded from the discretionary fund at airports receiving

exemptions under 49 U.S.C. Section 47134, the pilot program for private

ownership of airports.

The House-passed bill (Sec. 138) would provide a special rule to allow airports recently classified

as medium hubs (which would drop their federal share to 75%) to retain their eligibility for an up

to 90% federal share for a two year transition period.

The bill also includes a special rule for “Economically Depressed Communities.” The rule would

maintain the 95% federal share for projects at airports that are receiving subsidized service under

the Essential Air Service (EAS) program that meet one or more of the criteria established in 42

U.S.C. 3161(a) as determined by the Secretary of Commerce. 42 U.S.C. 3161(a) sets forth three

criteria for eligibility: (1) the area has a per capita income of 80% or less of the national average;

The temporary increase in share to 95% was established to provide relief to operators of small airports after the 9/11

terrorist attacks. The increase was to end on September 30, 2007, but has been continued under extension legislation. If

the eventual multi-year reauthorization does not include a provision maintaining the 95% share, it will revert to 90%.

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(2) the area has an unemployment rate that is, for the most recent 24-month period for which data

are available, at least 1 percentage point greater than the national average unemployment rate;

and (3) the area is an area that the Secretary of Commerce determines has experienced or is about

to experience a special need arising from actual or threatened severe unemployment or economic

adjustment resulting from severe short-term or long-term changes in economic conditions. Given

the variety of eligibility criteria and the rural location of EAS airports it is likely that many EAS

airports could retain their 95% federal share under the House bill. Non-EAS airports (smaller than

medium hub) would revert to 90% federal share under the bill. Should the repeal of the EAS

program be enacted, as has been proposed under Section 407 of the bill, the impact of the special

rule would be limited to EAS airports in Alaska and Hawaii.

The Senate-passed bill (Sec. 207) would provide for a 95% federal share for airports smaller than

medium hub for the years FY2008, FY2009, FY2010, and FY2011. Block grant airports would

also be provided with a 95% federal share. Section 204 would provide a special rule to allow

airports recently classified as medium hubs (which would drop their federal share to 75%) to

retain their eligibility for an up to 95% federal share for a two-year transition period.

Passenger Facility Charges (PFCs)

Key PFC issues include the cap on the amount airports can assess for a PFC and eligibility of

airport projects for PFC funds. Additional issues include the contents of airport competition plans

submitted to the FAA, streamlining of the PFC review process, and actions to address cases of

PFC revenue diversion.

Increasing the PFC Cap

Neither the House- nor Senate-passed bill includes an increase in the PFC cap. However, the

House-passed bill includes a provision (Section 116) requiring a study of the impacts on airports

of accommodating connecting passengers. The study is to include a recommendation as to

whether different levels of PFCs should be imposed on connecting passengers rather than

originating passengers. Some have argued that the PFC structure favors large hub airports’ PFC

revenues because the costs to an airport of serving a connecting passenger are less than those of

serving an originating passenger. The Senate-passed bill includes a provision to establish a pilot

program that would eliminate the statutory ceiling on PFCs. This is discussed in further detail

below.

Project Eligibility

The House-passed bill (Sec. 112) proposes a pilot program that would permit the use of PFC

funds for eligible intermodal ground access projects at five airports. The projects do not have to

be on property owned or controlled by the sponsoring airport. The PFC project cost share would

be limited to the projected ratio of airport-bound passengers to the total number of passengers

using the ground access facility.

The Senate-passed bill (Sec. 201) includes language that would make major changes to 49 U.S.C.

Section 40117(d), which sets certain “limitations on approving applications.” The bill would

restrict the limitations to intermodal ground access projects, thereby freeing PFC applications for

other types of projects from the limitations. The bill then also eliminates some of the current law

limitations that would otherwise still apply to ground access projects. Among the limitations

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eliminated for all PFC applications is the requirement that the Secretary of DOT find that the

project will meet at least one of the goals to preserve or enhance capacity, safety, or security of

the national air transportation system; reduce noise from an airport; or provide an opportunity for

enhanced competition between or among air carriers and foreign air carriers. In addition, the bill

would eliminate the precondition that for an airport to impose a fee above $3 the Secretary must

find that the airport has made adequate provision for financing the airside needs of the airport,

including runways, taxiways, aprons, and aircraft gates.

Competition Plans

Under current law no AIP or PFC project funding may be approved for a large or medium hub

airport unless the airport has submitted a written competition plan to the FAA. The House-passed

bill would drop “patterns of air service,” and “airfare levels” compared to other large airports as

information required in the competition plans. The Senate bill is silent on the competition plan

requirement.

Passenger Facility Charge Pilot Program

The Senate-passed bill (Sec. 202) would establish a pilot program at up to six airports that would

allow them to collect a PFC with no statutory ceiling on the fee. The fee, however, must be

collected by the airport from the passenger. Under current law the PFCs are collected for the

airports by the airlines during the ticketing process. Additionally, GAO would be required to

conduct a study of alternative means of collecting PFCs. The House-passed bill does not include a

provision to establish a PFC pilot program.

PFC Grant Streamlining and Revenue Diversion Provisions

Section 201 of the Senate-passed bill includes an extensive provision to streamline the PFC

review and approval process. Instead of seeking approval on a project-by-project basis, for

existing projects an airport would be required to submit to air carriers at the airport and to the

FAA, and make available to the public, an annual PFC status report setting forth the airport’s PFC

revenues, spending, PFC funded projects, the next year’s projected revenues, and a description of

the consultation and public notice process. Once the status report is submitted no further action is

required and implementation could continue. For new projects, the airport would have to provide

for a notice and comment period for carriers operating at the airport and a public notice and

comment period before filing the PFC status report. Once the report is filed, the airport could

begin collecting the new PFC. Stakeholders could, however, file objections, and if the FAA agrees

with an objection, the FAA could terminate the airport’s authority to collect PFC revenues for the

project. The proposal also provides that DOT may investigate whether a PFC is excessive or

whether PFC revenue is being diverted to non-allowable uses. In the case of an airport found to

have diverted revenue, the airport may not propose collection or use of a PFC unless DOT

determines that the airport has taken corrective action to address the violation. The House bill

does not include a provision similar to the Senate bill.

Other Airport-Related Provisions

Other airport-related issues addressed in FAA reauthorization legislation include airport

privatization; the redevelopment of airport properties and conveyances of airport lands; airport

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construction in cold-weather states; noise monitoring in New York, New Jersey, and the

Philadelphia metropolitan area; solid waste recycling initiatives; measures to facilitate

opportunities for disadvantaged small businesses at airports; and the eligibility of metropolitan

Washington, DC airports for AIP and PFC grants.

Airport Privatization

The Airport Privatization Pilot Program allows the FAA to exempt five airports from federal

requirements relating to the use of airport revenue. The requirement that airport revenue be

expended for aviation purposes is seen as a major inhibitor of airport privatization. Since the

program was enacted in 1996 (Section 149 of the Federal Aviation Reauthorization Act of 1996,

P.L. 104-264), only one airport has been privatized, Stewart International Airport (New York).

However, Stewart International has since been purchased by the Port Authority of New York and

New Jersey and is again owned by a public entity. Efforts to privatize Chicago Midway were

suspended after investors failed to obtain adequate financing, but these efforts could be revived

should the financial environment improve. Supporters of privatization have argued that the

current pilot program gives airlines effective veto power over privatization transactions. Current

law requires that the airport sponsor may only recover from the sale or lease the amount that may

be approved by at least 65% of the air carriers serving the airport; and by air carriers that account

for 65% of the total landed weight at the airport for the year.

The House-passed bill (Sec. 158) would increase the number of airports allowed to participate in

the Airport Privatization Pilot Program from five to ten. In the case of primary airports, the

secretary of transportation must consult with each air carrier (domestic and foreign) serving the

airport prior to approving an airport’s participation in the program. In the case of a nonprimary

airport, the Secretary must consult with 65% of the owners of aircraft based at the airport prior to

approval. The Senate bill does not include this provision.

Pilot Program for Redevelopment of Airport Properties

Section 712 of the Senate-passed bill requires that within a year of enactment FAA is to establish

a trial program at up to four public-use airports that have approved noise compatibility programs

under 49 U.S.C. 47102. Under this trial program, the FAA may make grants from the

discretionary noise set-aside funds under 49 U.S.C. 47117(e) or PFCs to support joint planning,

engineering, and environmental permitting to facilitate the assembly and redevelopment of real

property purchased with noise mitigation funds made available under the AIP or PFC programs.

The trial program is to encourage compatible land uses and generate economic benefits to both

the airport operator and the affected local jurisdiction. The House-passed bill does not include this

provision.

Land Use and Conveyance Provisions in the Senate Bill

Section 218 of the Senate-passed bill, in regard to Merrill Field Airport in Anchorage, AK,

releases, without monetary consideration, the municipality of Anchorage, AK, from all

restrictions, conditions, and limitations on the use, encumbrance, or conveyance of specified land

in the municipality. It also releases Anchorage from repayment of any outstanding grant

obligations owed to FAA, for land subsequently conveyed for use by the state of Alaska for the

construction or reconstruction of a federally subsidized highway project.

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Section 219 of the Senate-passed bill releases the city of St. George, UT, from the terms and

conditions of an August 28, 1973, deed of conveyance of land from the United States to the city.

Any of the land sold by the city is to be for fair market value, and the proceeds are to be used for

the development or improvement of a replacement public airport.

Section 728 requires the conveyance of certain federal land to Clark County, NV, for the Southern

Nevada Supplemental Airport. The conveyed land is to be used for the development of flood

mitigation infrastructure at the airport.

Section 434 would allow the development of land within the Las Vegas McCarran International

Airport Environs Overlay District that falls outside the 65 decibel day-night average noise

exposure map profile, to be used for transient lodging, including hotels; auditoriums; concert

halls; and sports arenas. Additionally, Section 736 conveys federal land to the city of Mesquite,

NV.

Priority Review of Cold Weather State Construction Projects

The House-passed bill (Sec. 155) would require FAA to schedule, to the maximum extent

practicable, the review of projects in cold weather states as early as possible. Cold weather states

are states in which the weather typically prevents major construction projects from being carried

out before May 1. Section 724 of the Senate-passed bill is similar to the House provision.

Noise Monitoring of the New York/New Jersey/Philadelphia Airspace

Redesign

Section 218 of the House-passed bill would require the Administrator of FAA, in conjunction

with the Port Authority of New York and New Jersey and the Philadelphia International Airport,

to monitor the noise impacts of the New York/New Jersey/Philadelphia Metropolitan Area

Airspace Redesign. One year after completion of the redesign, the Administrator is to submit to

Congress a report on the findings.

Section 726 of the Senate-passed bill would require FAA, in conjunction with the Port Authority

of New York and New Jersey and the Philadelphia International Airport, to monitor the noise

impacts of the airspace redesign and report to Congress not later than 270 days after the date of

enactment and every 180 days thereafter until completion.

Solid Waste Recycling Plans

The House-passed bill (Sec. 134) requires that for any airport with a master plan to receive AIP

funding, the plan must address the feasibility of solid waste recycling and minimizing the

generation of solid waste at the airport. The Senate-passed bill (Sec. 714) includes language

similar to the provision in House bill.

Airport Disadvantaged Business Enterprise Program

The Senate-passed bill (Sec. 715) would require the Secretary of Transportation to establish a

program to eliminate barriers to small business participation in airport-related contracts and

concessions by prohibiting excessive, unreasonable, or discriminatory bonding requirement for

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any project funded under AIP or using passenger facility charge revenues under 49 U.S.C. Section

40117. Under the provision, the Secretary of Transportation must issue a final rule establishing

the program one year after the date of enactment Also, not later than 180 days after the date of

enactment, the Secretary shall issue final regulations to adjust the personal net worth cap used in

determining whether an individual is economically disadvantaged, to correct for the impact of

inflation since the cap was set at $750,000 in 1989. Thereafter, annually on June 30, the Secretary

shall adjust the cap to account for changes in the Consumer Price Index of All Urban Consumers

for the previous 12 months.

The House-passed version of the bill dropped the Airport Disadvantaged Business Enterprise

Program, now in the Senate-passed bill. The House-passed bill does require in Section 822, that

the DOT Inspector General submit a report to Congress on the number of new small business

concerns owned and controlled by socially and economically disadvantaged individuals that

participated in the programs and activities to be funded by this act.

Training Program for Certification of Disadvantaged Business Enterprises

The House-passed bill (Sec. 141) would require that, within a year of enactment, the Secretary of

Transportation establish a training program for officials or agents of airport sponsors that are

responsible for certifying that the airport owner or operator will meet its minority set-aside goal

or who are responsible for determining whether or not a small business qualifies as being owned

and controlled by socially or economically disadvantaged individuals.

Section 715 of the Senate-passed bill includes a similar provision. The Senate provision also

authorizes such sums as may be necessary to carry out the provision and requires that the

Secretary of DOT submit a report on the program within two years. It also would require, within

180 days of enactment, DOT to raise the person net worth cap used in determining whether an

individual is economically disadvantaged for qualification purposes to reflect the impact of

inflation on the $750,000 cap since 1989.

Metropolitan Washington Airports Authority

The House-passed bill (Sec. 151) would repeal 49 U.S.C. § 49108, which prevents the

Metropolitan Washington Airports Authority from applying for AIP or PFC grants after October

1, 2008. Similarly, Section 718 of the Senate-passed bill would also repeal 49 U.S.C. § 49108.

FAA Management and Organizational Issues

Air Traffic Controller and Technical Workforce

Amid growing numbers of retiring controllers and the pending shift toward integrating NextGen

technologies in the air traffic control environment, there is considerable policy interest in the

staffing of air traffic facilities and the training of air traffic controllers and systems specialists to

operate new NextGen systems. The mix of fully certified controllers and developmental

controllers (i.e., controllers still completing on-the-job training to obtain full certification) has

become a growing issue. More recently, late-night controller work schedules and staffing levels,

particular at airport towers, have drawn media attention.

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The House bill would require the National Academy of Sciences to carry out a study examining

human factors, traffic activity, and air traffic control technology and to make recommendations on

staffing standards for air traffic controllers. The bill also would require FAA to study the

adequacy of training programs for air traffic controllers examining current training and required

competencies as well as available training approaches and required competencies for NextGen

operations. The House bill would also require FAA to complete a study of frontline manager

staffing at air traffic control facilities.

The House-passed bill would also require a study looking at alternative training approaches for

new controllers hired through the Collegiate Training Initiative (CTI), which provides

undergraduate training designed to prepare students for a career as an air traffic controller. The

bill also includes a provision authorizing FAA to place holders of control tower operator (CTO)

certificates in FAA facilities, with the same compensation and benefits as developmental air

traffic controllers, provided they meet all other applicable qualification requirements for given air

traffic control specialist positions. This could make it easier for some CTI graduates, non-FAA

controllers, and former military controllers to transition to air traffic controller positions at FAA.

Under the provision, FAA could recover travel costs associated with certificating air traffic

control specialists from institutions that provide the training.

The Senate bill would require a National Academy of Science study of the methods used for

determining staffing levels for air traffic controllers, system specialists, and engineers. The Senate

language also directs FAA to carry out a comprehensive review and evaluation of the FAA

Academy, where newly hired controllers undergo initial training. The provision also directs the

FAA to examine facility training of developmental controllers, who have graduated from the

academy but are not yet fully qualified and certified to control air traffic on their own. The

measure would require FAA to establish standards for the number of developmental controllers

that can be accommodated at each FAA facility based on the available number of on-the-job

instructors, the number and availability of classrooms and simulators, training requirements, and

current levels of controllers already in training. The bill would also require a GAO study of FAA’s

program of training for airway transportation systems specialists that maintain ATC technology

infrastructure. The report would examine current training curricula, training needs for

maintaining proficiency in the latest technology, distribution and cost of in-house and vendor

training, and recommendations for cost effective approaches for providing up-to-date training on

the latest technologies. A provision of the bill would also require FAA to carry out a study of

front-line manager staffing at air traffic facilities, taking into account factors such as facility type,

traffic complexity, controller proficiency, and training requirements.

Facility Consolidation

The move toward NextGen technologies coupled with age and deterioration of existing FAA

facilities poses both challenges and opportunities to update and integrate or consolidate FAA air

traffic facilities. These efforts, however, are controversial because, in many cases, they involve

closing facilities and relocating personnel. Therefore, there has been considerable interest in

establishing processes for independent recommendations and/or reviews of FAA consolidation

plans. In 2007, under the Bush Administration, FAA provided a legislative proposal outlining a

process for evaluating and implementing facility and service consolidation in a manner designed

to minimize political influence on the process, much like the military base realignment and

closure (BRAC) process, on which it was modeled. The objective was to identify and implement

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realignment and consolidation activities that would help reduce FAA capital, operating,

maintenance, and administrative costs without adversely impacting system safety.

While neither the Senate-passed bill nor the House-passed bill would establish a commission with

final decision authority over FAA facility consolidation, both bills seek to establish a process for

reviewing FAA proposals.

The House-passed bill proposes to establish an Aviation Facilities and Services Board to review

and make recommendations based on FAA consolidation proposals. Unless Congress specifically

disapproves, FAA would be required to implement Board recommendations by initiating action

within one year and completing recommended realignments and consolidations within three years

after the Board issues its report and recommendations.

The Senate-passed bill would establish an Air Traffic Control Modernization Oversight Board to

review and analyze the FAA’s recommendations along with public comments regarding these

recommendations. Based on this review and analysis, the Board would make its own

recommendations for realignment of aviation facilities and services that would be submitted in a

report to the President and to congressional oversight committees. The legislation would

explicitly prohibit consolidation of any air traffic control facilities or regional offices until the

board’s recommendations are completed. The bill also contains a provision that would require the

FAA to establish a process for including employees selected from collective bargaining units

likely to be affected by air traffic modernization projects, including NextGen initiatives, in the

planning, development, and implementation of such projects.

The Senate-passed bill would also require FAA to establish a task force to review conditions in

existing air traffic control facilities. The task force would be charged with identifying facilities in

need of remediation to correct conditions that may impact health and safety.

FAA Personnel Management System

In 1995, Congress authorized the Administrator of FAA to develop a new personnel management

system for the agency’s workforce. Section 347(a) of the Department of Transportation and

Related Agencies Appropriations Act, 1996, provided for the development and implementation of

this personnel management system following consultation with FAA employees and any nongovernmental experts in personnel management systems employed by the Administrator.3 The

system was intended to provide for “greater flexibility in the hiring, training, compensation, and

location of personnel.”4 As enacted originally, chapter 71 of Title 5 of the U.S. Code, relating to

labor-management relations in most federal agencies, did not apply to the new personnel

management system.5 In March 1996, however, Congress amended section 347 to make chapter

71 applicable to this system.6

P.L. 104-50, Sec. 347(a), 109 Stat. 436, 460 (1995).

Id.

See P.L. 104-50, Sec. 347(b), 109 Stat. 436, 460 (1995) (identifying provisions of Title 5, U.S. Code, that would be

applicable to the new personnel management system).

P.L. 104-122, Sec. 1, 110 Stat. 876 (1996).

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In October 1996, Congress considered additional requirements for the FAA personnel

management system. Section 253 of the Federal Aviation Reauthorization Act of 1996 amended

Title 49 of the U.S. Code to add a new section involving consultation and negotiation with respect

to the new system.7 49 U.S.C. Sec. 40122(a) provides, in relevant part:

(1) Consultation and Negotiation—In developing and making changes to the personnel

management system initially implemented by the Administrator of the Federal Aviation

Administration on April 1, 1996, the Administrator shall negotiate with the exclusive

bargaining representatives of employees of the Administration certified under section 7111

of title 5 and consult with other employees of the Administration.

(2) Mediation—If the Administrator does not reach an agreement under paragraph (1) with

the exclusive bargaining representatives, the services of the Federal Mediation and

Conciliation Service shall be used to attempt to reach such agreement. If the services of the

Federal Mediation and Conciliation Service do not lead to an agreement, the Administrator’s

proposed change to the personnel management system shall not take effect until 60 days

have elapsed after the Administrator has transmitted the proposed change, along with the

objections of the exclusive bargaining representatives to the change, and the reasons for such

objections, to Congress.

In the report that accompanied the Senate version of the 1996 Act, the Senate Committee on

Commerce, Science, and Transportation indicated that “[i]n negotiating changes to the personnel

system, the Administrator and the exclusive bargaining representatives would be required to use

every reasonable effort to find cost savings and to increase productivity within each of the

affected bargaining units, as well as within the FAA as a whole.”8 The House version of the act

did not include a provision on consultation, negotiation, and mediation. The Senate provisions

were incorporated into the final version of the legislation during conference.9

In 2005, a federal district court considered the impact of 49 U.S.C. Sec. 40122 on labormanagement relations at FAA.10 After reaching bargaining impasses with the FAA, the National

Air Traffic Controllers Association (“NATCA”) and the Professional Airways Systems Specialists

(“PASS”) sought the assistance of the Federal Service Impasses Panel (“FSIP”), an entity within

the Federal Labor Relations Authority (“FLRA”) that provides assistance with resolving

negotiation impasses between federal agencies and unions. In 2004, unclear about whether it had

the authority to resolve impasses involving the FAA in light of 49 U.S.C. Sec. 40122, FSIP

declined to provide assistance.11

After reviewing the development of the FAA personnel management system and the enactment of

49 U.S.C. Sec. 40122, the district court concluded that complaints related to an agency’s

participation in FSIP’s impasse resolution procedures could be deemed an unfair labor practice.12

Consequently, the court declared that “[w]hen agency action constitutes an arguable unfair labor

P.L. 104-264, Sec. 253, 110 Stat. 3213, 3237 (1996).

S.Rept. 104-333, at 36 (1996).

See H.Rept. 104-848, at 109 (1996).

National Air Traffic Controllers Association v. Federal Service Impasses Panel, 2005 WL 418016 (D.D.C. 2005).

Id. at 1-2.

Id. at 4.

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practice, jurisdiction rests exclusively with the Authority and the Courts of Appeals.... For these

reasons, the [court] concludes that it is without jurisdiction and should defer to the FLRA.”13

Although the FLRA did not address the matter, the U.S. Court of Appeals for the District of

Columbia Circuit did review the district court opinion in February 2006. In National Air Traffic

Controllers Association v. Federal Service Impasses Panel, the D.C. Circuit affirmed the district

court decision, concluding that FSIP did not have a clear and specific statutory mandate to assert

jurisdiction over the parties’ bargaining impasses.14 The court did observe, however, that the

FAA’s refusal to participate in proceedings before FSIP could form the basis of an unfair labor

practice charge before the FLRA.15

On April 5, 2006, FAA announced formally that it had reached an impasse in its negotiations with

NATCA regarding its agency-wide contract covering the air traffic controller workforce.16 In

accordance with 49 U.S.C. Sec. 40122(a)(2), the FAA Administrator indicated that the agency

would send its last, best offer to Congress.17 On June 5, 2006, FAA imposed a new labor contract

on NATCA. FAA maintained that the new contract would save the government approximately

$1.9 billion over five years through various measures, including the creation of a separate, lower

pay scale for new employees.18

Section 601 of the House-passed bill appears to respond to the events involving NATCA and

PASS in 2006. The section would amend 49 U.S.C. Sec. 40122(a) to allow for the involvement of

FSIP if the Administrator and a bargaining representative fail to resolve issues in controversy

arising from the negotiation of a term collective bargaining agreement. Under the amended 49

U.S.C. Sec. 40122(a)(2), FSIP would be permitted to assist the parties with issues in controversy

by ordering binding arbitration by a private arbitration board that would consist of three

members.19 Each party would select one arbitrator from a list of not less than 15 arbitrators with

federal sector experience provided by the director of the Federal Mediation and Conciliation

Service (“FMCS”). The two arbitrators would then select a third arbitrator from the list. If the two

arbitrators were unable to agree on the third person, the parties would select the third person by

alternately striking names from the list until only one name remained.

The arbitration board would be required to give the parties a full and fair hearing, including the

opportunity to present evidence in support of their claims in person, by counsel, or by another

representative. The arbitration board would be required to render its decision within 90 days of its

appointment. The arbitration board would have to take into consideration such factors as: the

Id.

437 F.3d 1256 (D.C. Cir. 2006).

Id. at 1265.

See FAA Declares Impasse in Controller Talks; Next Stop for Two Sides is Congress, Daily Lab. Rep. (BNA) No.

66, at A-5 (April 6, 2006).

Id. H.R. 5449, a measure introduced by Representative Steven C. LaTourette on May 22, 2006, to repeal 49 U.S.C.

Sec. 40122(a)(2), was defeated. The measure was considered under suspension of the rules and required a two-thirds

vote to pass. The vote was 271-148. For additional information on the congressional consideration of H.R. 5449, see

FAA Imposes Labor Contract on NATCA Following 60-Day Congressional Review, Daily Lab. Rep. (BNA) No. 111, at

A-10 (June 9, 2006).

FAA Imposes Labor Contract on NATCA Following 60-Day Congressional Review, supra note 15.

For unresolved issues that arise during mid-term bargaining, the Federal Service Impasses Panel would provide

assistance to the parties, but only to the extent allowable under 5 U.S.C. § 7119. 5 U.S.C. § 7119 does not provide

explicitly for binding arbitration.

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effect of its decisions on FAA’s ability to attract and retain a qualified workforce; the effect of its

decisions on the agency’s budget; the effect of its decisions on other FAA employees; and any

other factors whose consideration would assist the board in fashioning a fair and equitable award.

The costs of the arbitration would be shared equally by the parties.

Upon reaching a voluntary agreement or at the conclusion of binding arbitration, the final

agreement, except for those matters decided by an arbitration board, would be subject to approval

by the head of the agency and, if requested by the bargaining representative, subject to ratification

by such organization.

Section 313 of Senate-passed H.R. 658 would also amend 49 U.S.C. Sec. 40122(a) to allow for

the involvement of FSIP if the Administrator and a bargaining representative fail to reach

agreement. Under the amended 49 U.S.C. Sec. 40122(a)(2), FSIP would be permitted to assist the

parties by ordering binding arbitration by a private arbitration board consisting of three members.

Each party would select one arbitrator from a list of not less than 15 arbitrators with federal sector

experience provided by the director of the FMCS. The two arbitrators would then select a third

arbitrator from the list. If the two arbitrators were unable to agree on the third person, the parties

would select the third person by alternately striking names from the list until only one name

remained.

The arbitration board would be required to give the parties a full and fair hearing, including the

opportunity to present evidence in support of their claims, and an opportunity to present their case

in person, by counsel, or by another representative. The arbitration board would be required to

render its decision within 90 days of its appointment. Unlike the House-passed measure, the

Senate-passed bill would require the arbitration board to take into consideration only the effect of

its decisions on the agency’s budget and its ability to attract and retain a qualified workforce. The

costs of the arbitration would be shared equally by the parties.

Upon reaching a voluntary agreement or at the conclusion of binding arbitration, the final

agreement, except for those matters decided by an arbitration board, would be subject to approval

by the head of the agency and, if requested by the bargaining representative, subject to ratification

by such organization.

NextGen Air Transportation System Modernization

NextGen is an ambitious program to replace ground-based navigation and radar surveillance of

aircraft with a system that guides and tracks aircraft using satellite-based global positioning

system (GPS) capabilities. NextGen also encompasses FAA air traffic control equipment

modernization, new digital communications capabilities, and advanced air traffic management

tools and procedures. The target date for full implementation is 2025. The cost, complexity, and

technical risk associated with this initiative have been a major focus of FAA reauthorization

debate.

S. 223 and H.R. 658 differ considerably with respect to funding authorizations to support

NextGen development. Primary funding for NextGen activities is derived from FAA’s Facilities

and Equipment (F&E) account. S. 223 would authorize the F&E account at $3,500 million in

FY2010 and at $3,600 million in FY2011. In contrast, H.R. 658 proposes a four-year

authorization in which F&E would be authorized $2,700 million in FY2011 and $2,600 each

fiscal year for FY2012 through FY2014. In FY2011, the only year the two bills overlap, S. 223

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proposes an authorized funding level that is $900 million above the amount specified in H.R. 658.

S. 223 would also establish a specific Air Traffic Control System Modernization Account within

the aviation trust fund. Under the proposal, the modernization account would be allocated $400

million annually in revenues derived from taxes levied on aviation jet fuels. H.R. 658 does not

include a similar provision. While this would not increase the authorized amount for FAA’s F&E

account, it would establish a dedicated funding mechanism for modernization initiatives,

principally NextGen. H.R. 658 does not include a similar provision.

Both H.R. 658 and S. 223, however, include numerous provisions intended to improve the

management, oversight, and implementation of NextGen. H.R. 658 directs the Department of

Transportation to give priority to funding NextGen infrastructure and technology demonstrations.

It calls for creating an appointed position of Chief NextGen Officer within FAA that reports

directly to the Administrator and has direct responsibility for implementing NextGen activities

and budgets and coordinating NextGen implementation. Further, H.R. 658 calls for redesignating

the Director of the Joint Planning and Development Office (JPDO), the FAA entity charged with

designing and implanting the NextGen plan, to an appointed Associate Administrator position.

Additionally, the bill would require agencies assisting FAA with NextGen implementation, such

as the National Aeronautics and Space Administration (NASA) and the Department of Defense

(DOD), to designate a senior official to coordinate and oversee the agency’s NextGen activities.

Both the Senate and House bills seek to include FAA employees in air traffic control

modernization projects, and would require the FAA to track specific performance metrics to

gauge NextGen progress and derived benefits.

Like H.R. 658, S. 223 would also establish a Chief NextGen Officer position within FAA, but

does not specifically indicate whether this individual would report directly to the Administrator.

S. 223 also seeks to establish a NextGen implementation office, headed by Chief NextGen

Officer, to coordinate all NextGen related activities, both within FAA and across various

government agencies.

In addition, S. 223 seeks to establish an Air Traffic Control Modernization Oversight Board,

composed of FAA and aviation stakeholder representatives. It also would require FAA to conduct

a facilities needs assessment detailing its proposed facility and service realignment plans to

support the transition to NextGen. The oversight board would be responsible for reviewing the

FAA plans as well as providing Congress with its own recommendations. As noted previously,

FAA would not be permitted to move forward with facility realignments before the board

completes its recommendations, unless a written agreement with all affected FAA employee

bargaining representatives is reached for a specific facility realignment initiative.

S. 223 would also set specific deadlines for implementing precision navigational procedures,

called Required Navigation Performance (RNP) procedures, that rely on NextGen navigation

capabilities by 2014 at the 137 busiest commercial passenger airports, and by 2016 at other

airports.

One specific issue of interest for users of FAA air traffic services has been the consideration of

incentives or government aid for equipping aircraft with NextGen capabilities. Airlines and

aircraft manufacturers and groups representing these entities have sought incentives for NextGen

equipage as a means to accelerate the transition to NextGen and reduce some of the economic and

technical risks assumed by acquiring aircraft technologies to support NextGen implementation.

Their arguments for such an approach hinge on assertions that aircraft avionics are an integral

component of NextGen infrastructure. Based on this position, various proposals have been

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offered, such as a government operated NextGen infrastructure bank or government-backed loans.

Direct government grants for equipment acquisition have also been suggested. FAA, meanwhile,

has advocated a best-equipped, best-served strategy, pointing to cost-saving benefits to early

adopters of NextGen technologies. S. 223 directs the FAA to issue a report identifying various

incentive options for NextGen equipage. While H.R. 658 directs FAA to report on ways to

accelerate NextGen technologies, it does not specifically address operator equipage. S. 223, on

the other hand, includes language that would provide financial incentives for NextGen equipage

through mechanisms such as grants from the FAA. FAA has already used similar mechanisms to

fund a few recent demonstration projects using air carrier aircraft. S. 223 also includes a

provision that would establish an equipage bank pilot program for public-use aircraft with

participation limited to five states.

H.R. 658 does, however, seek to impose a readiness verification that the necessary ground

infrastructure has been deployed and is properly working before FAA requires aircraft to equip

with Automated Dependent Surveillance-Broadcast (ADS-B) In technologies. ADS-B In is a

component of NextGen which will enable aircraft to receive traffic, weather, and other flight

information. The House bill does not require such a verification before FAA requires aircraft to

equip with ADS-B Out avionics that broadcast aircraft position to ground stations for air traffic

control surveillance. S. 223, in contrast, would require FAA to verify readiness before mandating

either ADS-B Out or ADS-B In and would accelerate the timeline for ADS-B equipage by

requiring all aircraft to equip with ADS-B Out by 2015 and with ADS-B In by 2018. Under

current FAA plans, ADS-B Out will be mandatory for many airspace users by 2020 while no

specific requirements for ADS-B In equipage have been announced. Aviation users have been

seeking greater assurance that their investments in both ADS-B Out and ADS-B In will be cost

beneficial, a determination that depends largely on the FAA’s ability to establish firm technical

standards and deploy necessary ground infrastructure.

Aviation Safety

Several aviation safety issues are addressed in pending FAA reauthorization legislation.

Significant safety issues include runway safety measures, the safety of air ambulance operations,

oversight of air carriers, regulations and oversight of aviation maintenance providers and

certificated repair stations (particularly repair stations located outside the United States), safety

issues pertaining to operations of unmanned aircraft in the national airspace system, and changes

to flight and duty time limits to address concerns over pilot fatigue.

Additionally, the Senate-passed bill includes several provisions pertaining to pilot training, pilot

records, pilot fatigue, and airline safety programs. These issues, primarily addressing concerns

over pilot training and selection and flight operations among regional air carriers, were largely

addressed in legislation enacted during the 111th Congress (see The Airline Safety and Federal

Aviation Administration Extension Act of 2010, P.L. 111-216).20 Similar provisions in the Senate

bill under consideration in the 112th Congress are not included in the discussion below.

Details of the enacted provisions are summarized in CRS Report R40410, Federal Aviation Administration (FAA)

Reauthorization: An Overview of Legislative Action in the 111th Congress, coordinated by Bart Elias.

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Runway Safety

Runway incursions—events where aircraft, vehicles, or pedestrians stray onto active runways and

pose a collision hazard to landing or departing aircraft—remain a central safety concern. FAA’s

major technology initiatives to mitigate runway incursions include the deployment of advanced

surface radar capabilities (Airport Surface Detection Equipment, Model X or ASDE-X) and

controller alerting to warn of impending incursions (the Airport Movement Area Safety System or

AMASS) at busy airports. However, ASDE-X has been scaled back and delayed. Also, the utility

of the AMASS system has been questioned by the National Transportation Safety Board (NTSB)

because it does not convey warning information directly to pilots, potentially limiting the

system’s ability to mitigate collisions. The NTSB has recommended that FAA develop systems

that provide direct warnings to pilots. FAA recently approved the use of electronic flight bags,

portable computers for pilot use, with moving maps to improve pilot situation awareness while

taxiing. While useful for orienting and navigating in the airport environment, these devices

currently do not present information regarding other aircraft and vehicles in the airport

environment. To provide direct incursion mitigation tools for pilots, FAA has deployed runway

status lights (RWSLs) at some airports to warn taxiing aircraft that it is unsafe to cross an active

runway, and final approach runway occupancy signal (FAROS) lights to warn landing aircraft if

the runway ahead is occupied.

The House-passed bill contains a provision that would require FAA to submit a report to

Congress detailing its plan to install systems to alert controllers, flight crews, or both of potential

runway incursions by December 31, 2011. The FAA would be required to integrate the plan into

its annual NextGen Implementation Plan document. The bill would also require FAA to develop a

strategic plan for runway safety within six months of enactment. The plan would be required to

specifically address the effects of expected increases in air traffic on runway safety risk, and

include specific goals to improve runway safety; near-term and long-term actions for reducing the

number of runway incursions and their severity; a timeline and a list of resources needed for

implementing these actions; and details of a continuous process for monitoring progress toward

achieving stated runway safety goals. The bill also would direct the FAA’s Air Traffic

Organization (ATO) to evaluate ASDE-X for its potential contribution to NextGen, accelerate

ASDE-X implementation, and evaluate airport surveillance technologies and associated

collaborative management software for potential application in NextGen surface management.

The Senate-passed bill contains language similar to the House-passed bill directing FAA to

develop a plan reducing runway incursions at all commercial service airports. The plan is to

include actions such as improving airport lighting, signage, and runway markings. The Senate bill

would also require FAA to develop a process for tracking and investigating operational errors and

runway incursions within one year of enactment. It also directs the Surface System Program

Office to evaluate the potential contributions of ASDE-X and surface management software to the

NextGen initiative.

Safety of Air Ambulance Operations

The safety of air ambulance operations, particularly helicopter emergency medical service

(HEMS) flights, has been in the spotlight over the past few years in response to increased

accidents in this growing industry. NTSB and other aviation safety experts are advocating the

mandatory use of formal flight dispatch procedures and risk management practices among

helicopter air ambulance operators as well as mandatory installation of terrain warning systems

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on HEMS aircraft. NTSB also found that many air ambulance accidents occur when patients are

not on board. Present regulations allow air ambulances to operate under a less stringent set of

rules with regard to weather minimums and pilot duty times when not carrying patients.

Both the House-passed and Senate-passed bills would require air ambulance flights to be operated

under commercial flight rules, codified in 14 CFR Part 135, whenever medical personnel are on

board. Currently, air ambulance operators are only required to operate under these regulations

when medical patients are on board. Ferry flights and flights to pick up patients can be conducted

under less stringent general aviation regulations contained in 14 CFR Part 91. Both the Housepassed and Senate-passed bills include exemptions to Part 135 weather reporting requirements at

destinations until FAA certifies that accurate and reliable portable ground-based weather

measuring and reporting systems are available.

Both bills would require air ambulance operators to provide annual operations and safety data to

the FAA. In addition, the House-passed bill would require FAA to study low-altitude aircraft

weather observation technology and the feasibility of requiring night-vision goggles for

helicopter emergency medical service pilots. The Senate-passed bill would require FAA to study

and develop rulemaking on available cockpit voice and flight data recorders for helicopters and

fixed-wing aircraft used for emergency medical service operations

Maintenance Providers and Repair Stations

Concerns over the potential safety implications of a variety of air carrier maintenance practices

have been raised by some aviation safety experts and some Members of Congress. Two

overarching concerns that have been identified are the safety of maintenance work outsourced to

third-party repair stations, especially repair stations located outside the United States, and the use

of non-certificated maintenance providers for routine and extensive repair work and FAA

oversight of these non-certificated maintenance providers.

With regard to airline maintenance, both bills include provisions that would restrict the use of

non-certified maintenance providers, allowing only airline employees or employees of FAAcertified repair stations to carry out substantial and routine maintenance and complete required

inspections of aircraft used in airline service. Air carriers would also be required to provide

complete lists of their non-certificated maintenance providers, whose activities would be

restricted to non-routine, non-substantial maintenance and repair work under this provision.

Both bills would also require FAA to inspect foreign repair stations that work on U.S. air carrier

aircraft or components installed on such aircraft at least two times annually. FAA would be

required to certify to Congress that these inspections have been carried out. The bills would also

extend the requirement for drug and alcohol testing programs to safety-critical positions at

foreign repair stations working on air carrier aircraft or components. Drug testing programs are

already required for safety-critical maintenance personnel working for airlines and repair stations

servicing air carrier aircraft within the United States.

Extending these requirements to repair stations in foreign countries may be complicated by

specific privacy laws and rights in other countries that may limit the FAA’s authority to impose

drug and alcohol testing programs that are comparable to existing programs in the United States.

Concerns have also been raised that the provision may threaten an aviation safety agreement

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between the United States and the European Union (EU).21 Under that agreement, FAA, the

European Aviation Safety Agency (EASA) and aviation safety oversight organizations from EU

member countries work collaboratively to certify and inspect repair stations. The legislative

language requires that the programs be consistent with applicable laws of countries where repair

stations are located. While the bills also seek international standards for alcohol and controlled

substance testing, consensus agreements and uniform application of these standards

internationally may be difficult to achieve.

Air Carrier Oversight

In addition to concerns over maintenance outsourcing, there has been increasing interest in safety

oversight of airline maintenance and flight operations. These issues have largely emerged

following the investigation of FAA whistleblower allegations that safety oversight of airline

operations were compromised by FAA oversight practices resulting in failures to comply with

required safety checks and maintenance actions. The allegations have raised policy questions

regarding FAA oversight of air carriers and programs to encourage airlines and airline employees

to come forward with information regarding possible regulatory violations and safety

deficiencies.

Provisions in the House-passed bill seek to improve FAA’s Voluntary Disclosure Reporting

Program (VDRP), which allows airlines to self-disclose safety violations with certain protections

established to promote safety rather than seek regulatory enforcement action against the airlines.

The language would require FAA inspectors to verify that air carrier solutions to correct safety

violations reported under the VDRP are comprehensive and fully implemented. The bill would

also require that inspectors confirm that violations reported by the airline under the VDRP had

not been previously discovered by an FAA inspector or previously disclosed by the airline. The

bill would require FAA to establish a process for FAA supervisory inspectors to review and

approve VDRP disclosures after they have been initially reviewed by an inspector. The provision

also calls for an Inspector General review of the VDRP, including an assessment of whether it is

improving the detection and correction of safety violations and compliance with regulations.

The bill also calls for a monthly headquarters-level review of the Air Transportation Oversight

System (ATOS) database to identify trends in regulatory compliance and corrective actions. The

FAA would be required to report quarterly to congressional oversight committees regarding the

results of these reviews.

The House-passed bill also contains language that would prohibit former FAA inspectors from

working in private sector positions representing air carriers over which they had oversight or

inspection responsibility for a period of two years after holding such a position at the FAA. The

bill would limit the length of time a principal supervisory inspector would be allowed to oversee

the operations of a single air carrier to five years or less.

The Senate-passed bill would similarly require FAA to take such action as it deems necessary to

ensure that, under the VDRP program, FAA inspectors fully evaluate corrective actions proposed

by the air carrier before accepting the voluntary disclosure, verify corrective actions are taken

within the proposed timeframe, and carry out inspections to assess whether these corrective

Daniel Michaels, “Airline Rule Threatens Pact With EU.” The Wall Street Journal, May 22, 2009.

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actions adequately remedy the disclosed problem. The measure would also require a second level

supervisory review of all air carrier VDRP submissions to ensure that the problem had not been

previously identified by an FAA inspector or disclosed by the airline in the past five years. The

Senate bill calls for a GAO study of VDRP, identifying whether it has demonstrated benefits with

respect to uncovering problems that may have otherwise gone undetected, and its possible role in

reducing violations and improving regulatory compliance.

The Senate bill also directs FAA to establish a national review team to conduct periodic reviews

of FAA air carrier oversight and report annually on its findings to congressional oversight

committees, and directs the DOT OIG to monitor and report on the effectiveness of the review

teams. The bill authorizes the FAA to hire an additional 200 safety inspectors. It also requires a

headquarters’ level review within FAA of the ATOS database on a monthly basis to ensure that

trends in regulatory compliance issues are adequately identified and corrective actions taken. The

headquarters’ review team would be required to submit internal FAA reports on a monthly basis

as well as quarterly reports to congressional oversight committees. The bill would also require

FAA to develop and implement a plan to ensure safety enforcement consistency within nine

months of enactment, and make periodic reviews and updates to that plan as needed.

The Senate-passed bill would similarly require the FAA to take such action as it deems necessary

to ensure that, under the VDRP program, FAA inspectors fully evaluate corrective actions

proposed by the air carrier before accepting the voluntary disclosure, verify corrective actions are

taken within the proposed timeframe, and carry out inspections to assess whether these corrective

actions adequately remedy the disclosed problem. The measure would also require a second level

supervisory review of all air carrier VDRP submissions to ensure that the problem had not been

previously identified by an FAA inspector or disclosed by the airline in the past five years. The

Senate bill calls for a GAO study of VDRP, identifying whether it has demonstrated benefits with

respect to uncovering problems that may have otherwise gone undetected, and its possible role in

reducing violations and improving regulatory compliance.

The Senate-passed bill would require all air carriers to establish a Safety Management System

(SMS) that includes an Aviation Safety Action Program (ASAP); a Flight Operations Quality

Assurance (FOQA) program; a Line Operational Safety Audit (LOSA) program; and a Flight

Crew Fatigue Risk Management program. While many of these aspects of an SMS have been

implemented at major airlines, their use is not as prevalent among regional and commuter air

carriers. Additionally, the bill would require major airlines to collaborate and conduct operational

oversight of their regional and commuter air carrier partners through periodic safety audits;

training, maintenance, and inspection programs; and mechanisms for the exchange of safetyrelated information. In developing regulations for SMS, the FAA would be required to assess the

merits and feasibility of using cockpit voice recorder (CVR) data in airline safety oversight

practices. Historically, CVR use has been limited to accident investigations. A separate provision

of the bill would generally protect ASAP, FOQA, and LOSA data from discovery in judicial

proceedings, and exempt any such data acquired by FAA or another federal entity from Freedom

of Information Act disclosure requirements. FAA would, however, be allowed to disclose such

information to carry out its safety mission, to explain a need for change in policy or regulations,

correct a condition that compromises safety, or to carry out a criminal investigation or

prosecution. NTSB would be allowed to reference such data in issuing safety recommendations.

The Senate-passed bill would also require FAA to conduct at least one random, unannounced onsite inspection of regional carriers that have an established contract to provide service with

another air carrier to ensure compliance with FAA safety standards. The bill would also prohibit

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FAA inspectors from accepting positions representing air carriers before FAA that they were

responsible for inspecting and overseeing for a period of three years after leaving the FAA.

Both the House-passed and Senate-passed bills would establish an Aviation Safety Whistleblower

Investigation Office within the FAA that would be responsible for looking into complaints,

allegations, and information submitted by FAA certificate holders and employees to access

whether violations of FAA orders, regulations, standards, or federal laws pertaining to aviation

safety may have occurred. The investigation office would be responsible for referring suspected

criminal violations to the DOT OIG. The office may issue recommendations to the FAA based on

its investigative findings, and would be required to submit annual reports to Congress

Unmanned Aircraft Systems

Growing interest in the use of unmanned aerial vehicles (UAVs), or unmanned aerial systems

(UASs) is spurring considerable debate over how to accommodate these unmanned systems and

keep them safely separated from other air traffic. FAA and other federal agencies face a wide

variety of complex issues related to integrating unmanned aircraft into the National Airspace

System, including reliable technologies for detecting, sensing, and avoiding other aircraft; radio

frequency spectrum needs for unmanned aircraft operations; technologies and procedures for

systems safety; and training and certification requirements for unmanned aircraft operators.

The House-passed bill includes a provision requiring FAA to develop a comprehensive plan

within nine months of enactment to safely integrate commercial unmanned aircraft systems

(UASs) in the national airspace system. The bill further specifies that this integration is to be

completed as soon as possible, but not later than September 30, 2012, and authorizes such sums

as may be necessary to carry out the implementation plan.

The House-passed bill further requires the Secretary of Transportation to determine if certain

UASs can be safely operated in the national airspace system before completion of the integration

plan, and to establish requirements for safe operation of such aircraft. The bill also requires the

Secretary of Transportation to issue guidance within nine months of enactment regarding public

unmanned aircraft, such as those operated by federal or state and local entities. The guidance is to

expedite certification or authorization of public-use UASs; provide for collaboration with public

agencies to allow for incremental expansion of UAS operations as technologies mature; and

facilitate the capability of public agencies to develop and use test ranges to fly UASs. The bill

also includes a provision directing FAA, in coordination with other federal agencies, to develop

methods and technologies for assessing risk and preventing design and maintenance related

failures of unmanned aircraft systems that could pose risks to other aircraft; a better

understanding of human factors issues related to unmanned aircraft systems safety; and dynamic

simulation models for assessing the integration of all types of UASs into the national airspace

system without causing any degradation of existing levels of safety among all system users. The

bill specifies slightly more that $6 million per year for FY2009 through FY2012 for unmanned

aircraft system research.

The Senate-passed bill includes a provision requiring FAA to develop a plan for accelerating the

integration of UASs into the National Airspace System within one year of enactment. Under the

plan, the FAA would be required to establish a test project examining UAS integration at two test

sites by 2012. Under the plan, the FAA would be required to create a safe, non-exclusionary

airspace designation for cooperative manned and unmanned aircraft; establish certification, flight

standards, and air traffic requirements for the test sites; dedicate funding for UAS certification,

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flight standards, and air traffic requirements; encourage the leveraging and coordination of

research with NASA and DOD; address both military and civilian UAS operations; ensure that

UAS operations are incorporated into the NextGen system implementation plan; and verify the

safety of UAS vehicles and navigational procedures before integrating them into the NAS.

The bill also calls for FAA to work in conjunction with other federal agencies to develop

technologies and methods to assess the risk and improve the safety of manufactured UASs, and

conduct research on human factors aspects of UAS operations. The bill also calls for an

assessment by the National Academy of Sciences of UAS technologies and human factors, and

directs FAA to establish three two-year test projects in sparsely populated areas designed to

accelerate the safe integration of UASs into the NAS. The Senate bill would also requires FAA to

develop a UAS “roadmap,” update its policy statement regarding UASs, and issue proposed

rulemaking on issuing airworthiness certificates and experimental certificates for UAS systems

operated for compensation or hire. The Senate-passed bill includes language that would restrict

FAA from regulating recreational model aircraft weighing less than 55 pounds that are flown in

direct visual line-of-sight of the operator under rules intended for unmanned aircraft.

Pilot Fatigue

Reducing incidents caused by fatigue across all modes of transportation by establishing working

hour limits for transportation operators based on fatigue research, circadian rhythms, and sleep

and rest requirements has been a long-standing priority of the National Transportation Safety

Board (NTSB). While existing federal regulations include flight time and rest requirements for

flight crews that vary depending on the type of commercial flight operation being conducted,

these regulations have often been criticized as not adequately reflecting scientific knowledge

regarding human fatigue, alertness, and sleep needs. In airline operations, pilot organizations,

through collective bargaining, have been able to negotiate schedules that provide longer rest

periods than the minimum required under FAA regulations. However, there is still concern that

airline pilots’ rest periods do not adequately allow for the time associated with transportation to

and from the airport and for circadian disruption associated with crossing time zones.

The House-passed bill would require FAA to issue regulations to include various flight

assignments not flown under commercial flight rules (e.g., ferry flights or return-to-service test

flights) to count toward pilots’ flight time for the purposes of determining maximum allowable

flight hours and establishing crew rest requirements. The House-passed bill would exempt air

ambulance and all-cargo operations flown under commuter and on-demand (Title 14 CFR Part

135) rules from any changes to flight time limitations and rest requirements, leaving these

categories of operations under the existing regulations pertaining to flight time and rest

requirements.

The Senate-passed bill would require FAA to issue regulations on airline pilot flight and duty

times that reflect the best available scientific information. FAA would also be required to

establish regulations requiring the airlines to implement FAA-approved fatigue risk management

plans, and update these plans every two years. The bill also would require the National Academy

of Sciences to conduct a study examining the effect of pilots’ commuting, sometimes long

distances, to their duty assignments on fatigue. Similar requirements were enacted during the

111th Congress as part of the Airline Safety and Federal Aviation Administration Extension Act of

2010 (P.L. 111-216, Sec. 212), however regulatory actions mandated under these provisions have

not yet been completed.

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Miscellaneous Safety-Related Provisions

The Senate-passed bill would require FAA, in consultation with OSHA, to establish milestones

for completing the work begun under the August 2000 MOU, and would require FAA to initiate

development of a policy statement setting forth circumstances under which OSHA requirements

may be applied to crewmembers onboard an aircraft. While the House passed more extensive

provisions requiring occupational safety and health standards for flight attendants in the 111th

Congress, these provisions were not included in House-passed H.R. 658. Airlines oppose OSHA

involvement out of concern that having multiple regulatory agencies overseeing safety issues

could cause additional confusion and burdens to the industry. The House-passed bill would

require a GAO study of FAA activities addressing new technologies for dealing with smoke in the

cockpits of commercial aircraft. The House-passed bill would specifically prohibit FAA from

restricting the carriage of compressed oxygen and other oxidizing gases onboard aircraft in

Alaska when aviation provides the only practical means of shipment. The House-passed bill

would also prohibit FAA from restricting the transport of lithium batteries in a manner more

restrictive than allowed under International Civil Aviation Organization (ICAO) technical

instructions.

Airline Industry Issues

FAA reauthorization legislation addresses several airline industry issues. Significant issues

include airline labor issues related to the formation of labor unions; takeoff and landing slot

controls at Washington Reagan National Airport; possible changes to or elimination of the

Essential Air Service (EAS) program for small communities; plus an array of airline consumer

protection or passenger rights issues.

Industry Labor Issues

In May 2010, the National Mediation Board (NMB) promulgated a new rule concerning election

procedures under the Railway Labor Act. Under the new rule, the NMB will certify a collective

bargaining representative for a craft or class of employees based on a majority of valid ballots

cast in a representation election.22 The NMB’s previous rule required that a majority of eligible

voters in the craft or class of employees cast valid ballots in favor of representation.23 Thus, under

the NMB’s old rule, it was possible for a representative that received a majority of votes to be

denied certification because not all eligible voters in the craft or class of employees actually voted

in the election.24 The NMB observed that the new rule “will provide a more reliable

measure/indicator of employee sentiment in representation disputes and provide employees with

See Representation Election Procedure, 75 Fed. Reg. 26,062 (May 11, 2010) (to be codified at 29 C.F.R. pts. 1202,

1206). 29 C.F.R. pt. 1202.4, as revised, now states, in relevant part: “Except in unusual or extraordinary circumstances,

in a secret ballot the Board shall determine the choice of representative based on the majority of valid ballots cast.”

See id.

See Representation Election Procedure, 74 Fed. Reg. 56,750, 56,752 (proposed Nov. 3, 2009) (to be codified at 29

C.F.R. pts. 1202, 1206) (“[U]nder current election procedures, the Board determines that the failure or refusal of an

eligible voter to participate in an NMB-conducted election is the functional equivalent of a ‘no union’ vote.”).

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clear choices in representation matters.”25 Section 903 of the House-passed bill would invalidate

the new rule. The Senate-passed bill does not do so.

Washington Reagan National Airport Slot Controls

The total number of flights that can be handled in a given period of time at Washington Reagan

National Airport is set by federal statute (landings and takeoffs are referred to in industry parlance

as slots). This system has existed for over two decades, although the statutory limitations on the

number of slots available have been modified over that period by congressional action, especially

since 2000.

Flights at Reagan National are further restricted by what are known as perimeter rules. These

rules, which date to the opening of Dulles Airport in the early 1960s, were designed to move most

long-distance airline traffic to the new airport. Again, these perimeter rules have been modified

over time. At present, flights of 1,250 miles or less are referred to as being within the perimeter.

Prior to congressional action in 2000, all slots for flights arriving or departing Reagan National

were required to operate within the perimeter. Since 2000, Reagan National has accommodated

additional flights, using newly created slots providing service to destinations outside the

perimeter, so-called beyond perimeter slots.

Many Members of Congress and their constituents were long unhappy with the perimeter

restrictions, wishing to be able to fly to more distant locations from Reagan National. In 2000,

and again in 2003, Congress acceded to this view in a limited fashion, allowing the

aforementioned beyond perimeter slots. In the same pieces of legislation, Congress also added

additional slots for service within the perimeter, thereby increasing the absolute number of flights

allowed per day at the airport.

Certain other Members of Congress, Washington metro area local governments, and local

residents living near the airport or in its flight paths have opposed increased traffic at Reagan

National for any reason. Although this opposition focuses primarily on the noise impacts of

additional traffic, opponents of increased flights have also cited other reasons to hold this view.

In February 2007, the Government Accountability Office (GAO) produced a study that suggested

that additional flights could be handled at Reagan National.26 Although the operator of the airport,

the Metropolitan Washington Airports Authority, agreed that additional capacity could be added,

it did not support additional slots.

The House-passed bill (Sec.423) provides for 10 new beyond perimeter slots. New beyond

perimeter slots are to be created by reducing existing within perimeter slot allocations by an equal

number.

The Senate passed bill (Sec. 737) provides for 24 beyond perimeter slots. Incumbent carriers

granted these beyond perimeter slots must, under certain conditions, give up an equal number of

Representation Election Procedure, 75 Fed. Reg. at 26,062.

U.S. Government Accountability Office, Reagan National Airport: Update on Capacity to Handle Additional Flights

and Impact on Other Area Airports, GAO-07-352, February 28, 2007, p. 31, http://www.gao.gov/search?q=GAO-07352.

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within-perimeter service slots. Following an impact study of the direct effects of the additional

slots, that finds no deleterious effects of the change, DOT may grant up to an additional 8 slots.

Essential Air Service Program

The Essential Air Service Program (EAS) is a DOT-managed program that provides subsidies to

air carriers for providing service between selected small communities and hub airports. The

program was originally established in 1978 as part of airline deregulation to ensure a minimum

level of air service to smaller communities that might otherwise lose service because of economic

factors. Over time the scope of the EAS program has been modified by statute and regulation.

Vision 100 included several mechanisms and incentives designed to move communities out of the

standard EAS program. Communities have not sought to participate in these incentive regimes,

however, suggesting that the incentives themselves may need to be reconsidered if they are to be

effective. Vision 100 created a trial program that would have required community financial

participation as a condition for continued access to EAS funding in some instances. Each annual

appropriations bill since passage of Vision 100, however, has prevented the use of any

appropriated funds to implement the cost-sharing trial program.

The bill passed by the House and the approved Senate bill include different provisions with

regard to the EAS program.

As passed by the House the bill would phase out the program over three years, scheduling the

EAS in the contiguous states to sunset on October 1, 2013. Only Alaska and Hawaii would be

eligible for EAS subsidies afterwards. Aside from the $50 million in annual overflight fee

collections for the EAS program through FY2013, the House bill will gradually decrease the

annual appropriation from the airport and airway trust fund—$97.5 million for FY2011, $60

million for FY2012, and $30 million for FY2013.

Other provisions in the EAS section of the legislation include a repeal of the never-used EAS

Local Participation Program; a provision allowing the Secretary to incorporate financial

incentives in EAS contracts based on carrier performance; an 18-month deadline for issuance of

Revised Guidance for the program and a two-year timeframe for the Secretary to submit a report

on implementation of the revised guidelines.

The bill passed by the Senate would extend the EAS program but add more restrictions.

Specifically, it would limit EAS subsidies to airports that are 90 miles or more from the nearest

medium or large hub, an increase from the current limit of 70 miles. The bill would also limit

EAS subsidies to locations that have 10 or more enplanements per day, except in Alaska.

However, the FAA administrator would be able to waive both the distance requirement and the

minimum enplanements requirement.

The Airport and Airway Extension Act of 2011, Part IV (P.L. 112-27), like the Senate bill

provision, increases the minimum distance for EAS eligibility from 70 miles to 90 miles from the

nearest medium or large hub, except in Alaska. The provision gives the Secretary of

Transportation authority to waive this restriction in cases where geographic characteristics pose

undue difficulties in accessing the nearest medium or large hub. The act also includes a cap of

$1,000 on the per-passenger subsidy rate, regardless of distance. Under existing law, a perpassenger subsidy cap of $200 also applies to otherwise eligible airports located less than 210

miles from a medium or large hub. The per-passenger subsidy caps do not apply to Alaska.

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Airline Passenger Rights Issues

Historically, since the deregulation of aviation in 1978, DOT’s role in consumer protection has

been limited. The main power DOT has to protect consumers is its authority to take action against

air carriers for “deceptive trade practices.” The definition and interpretation of deceptive trade

practices can significantly impact the scope of DOT’s enforcement authority. Beginning in 2009,

a broader use of this authority began emerging from the regulatory process.

DOT Regulatory Action on Airline Passenger Rights

On December 18, 2009, DOT issued a final rule, “Enhancing Airline Passenger Protections.”27

The rule addresses some of the passenger rights issues included in the House and Senate bills and

the rule’s provisions are therefore briefly summarized below for context. The rule cites the DOT’s

authority “and responsibility under 49 U.S.C. Section 41712, in concert with 49 U.S.C. Sections

40101(a)(4), 40101(a)(9), and 41702 to protect consumers from unfair or deceptive practices and

to ensure safe and adequate service in air transportation,” to address passenger rights issues

through regulation. The final rule includes the following mandates:

•

Air carriers are required to develop and implement a contingency plan for

lengthy tarmac delays.

•

Each contingency plan must include an assurance that, for domestic flights, the

air carrier will not allow a tarmac delay to exceed three hours unless the pilot-incommand determines there is a safety-related or security-related impediment to

deplaning passengers, or Air Traffic Control has advised the pilot-in-command

that deplaning would significantly disrupt airport operations.

•

For international flights, air carriers must commit to a set number of on-tarmac

hours, but the number of hours is determined by the air carrier and set forth in its

plan.

•

Air carriers’ contingency plans must include assurance that adequate food and

potable water will be provided no later than two hours after the aircraft leaves the

gate.

•

Air carrier plans must include assurance of operable lavatory facilities and

adequate medical attention.

•

Under the rule, any chronically delayed flight scheduled by an air carrier is

considered an unfair and deceptive practice and an unfair method of competition

within the meaning of 40 U.S.C. Section 41712.

•

Air carriers must designate employees to monitor the impacts of flight delays and

cancellations, respond to consumer complaints, and tell consumers where and

how to file complaints.

•

Air carriers must display flight delay information for each domestic flight they

operate on their websites.

Department of Transportation, “Enhancing Airline Passenger Protections,” 74 Federal Register 68982-69004,

December 30, 2009.

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•

Air carriers must adopt customer service plans and audit their own compliance

with the plans.

•

Air carriers are prohibited from applying changes to their contracts of carriage

retroactively.

A further rulemaking, announced April 20, 2011, will add a number of consumer

protections, including the following:

•

Baggage fees must be reimbursed for lost bags.

•

Additional fees must be prominently disclosed on airline websites.

•

The ban on lengthy tarmac delays is expanded to foreign airlines’ operations at

U.S. airports. A four-hour limit on tarmac delays is placed on international

flights.

As the reauthorization process continues, some observers would argue that many of the following

passenger rights provisions are moot given the DOT action. Others, however, may wish to change

the scope of the DOT rule. In addition, because the authority of DOT to issue and implement the

rule could be challenged in court, some may wish to codify the changes and reduce the likelihood

of a successful court challenge.

Airline and Airport “Emergency Contingency Plans” for Tarmac Delays

The House-passed bill (Sec. 423) would require, no later than 90 days after the date of enactment,

that both air carriers and operators of large or medium hub airports submit to DOT an emergency

contingency plan for each of these airports. The plans must describe how the airline plans to

provide food, water, restroom facilities, cabin ventilation, and access to medical treatment for

passengers on aircraft that are on the ground for extended time without access to the terminal and

how they plan to share facilities and make gates available at the airport during an emergency.

Airport operators also would be required to submit an emergency plan describing how the airport

operator will provide for the sharing of the use of the airport’s facilities and make gates available

during an emergency. In the case of airports used for foreign transportation, the airport is to

describe how the airport will provide for the use of the terminal to the maximum extent

practicable for the processing of passengers arriving at the airport on such flights and in the cases

of excessive tarmac delay.

The Senate-passed bill (Sec. 401) would require that not later than 60 days after the date of

enactment, each air carrier and airport operator submit a proposed contingency plan to DOT for

review and approval. DOT is to establish minimum standards for these plans to ensure that these

plans address long tarmac delays and provide for the health and safety of passengers and crew.

The air carrier plans are to require each air carrier at a minimum to provide essential services,

including adequate food, potable water, restroom facilities, cabin ventilation, cabin temperatures,

and medical treatment.

Regarding the right to deplane, the plan is to provide passengers with the right to deplane and

return to the terminal (when this can be done safely) if three hours have elapsed since they have

boarded and the aircraft doors have been closed; or three hours have elapsed after the aircraft has

landed and the passengers have been unable to deplane. The offer to deplane must be repeated at

least once every three hours thereafter. Exceptions are allowed if the pilot determines that the

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aircraft will depart or unload within less than 30 minutes or that permitting a passenger to deplane

would jeopardize passenger safety or security. These requirements also apply to diverted flights.

After the plan has been reviewed by DOT, it is to be made available to the public. Air carriers

would be required to report any flight delayed on the tarmac for over three hours to the Office of

Consumer Protection at DOT within 30 days.

The airport operator would also be required to submit a proposed contingency plan describing

how the operator will provide for the deplanement of passengers following a long tarmac delay,

will provide for the sharing of facilities, and make gates available for use by aircraft experiencing

delays. Civil penalties may be assessed on any air carrier or airport operator that does not submit,

obtain approval of, or adhere to a contingency plan submitted under the bill. Each air carrier or

airport would be required to submit a contingency plan and must ensure public access to the

approved plans via their Internet website or by other means determined by DOT.

Advisory Committee for Aviation Consumer Protection

Section 404 of the Senate-passed bill would require the Secretary of DOT to establish a fourmember committee for aviation consumer protection to advise the Secretary in carrying out

passenger service improvements. The House-passed bill contains no similar provision.

Monthly Air Carrier Reports on Customer Service and Flight Delay History

The House-passed bill (Sec. 422) would require airlines to file monthly reports on flights that are

diverted from their scheduled destination to another airport and on flights that depart from the

originating airport gate but are cancelled before takeoff. The data must be compiled in a single

monthly report and be made available on the DOT website.

The Senate-passed bill (Sec. 425) would require air carriers, on a monthly basis, to publish and

update on the Internet website of the air carrier, a list of chronically delayed flights operated by

the carrier and to share the list with each entity that is authorized to book passenger air

transportation (e.g., travel agents or websites), for inclusion on the Internet website of the entity.

Air carriers or entities described above would need to prominently disclose on their Internet

websites, at the time of ticket booking, the following: (1) the on-time performance for the flight if

the flight is a chronically delayed flight and (2) the cancellation rate for the flight if the flight is a

chronically canceled flight. A chronically delayed flight is defined as one that has not been ontime at least 40% of the time in the last three months, and a chronically canceled flight as one

whose departures have been canceled at least 30% of the time for the last three months.

Expansion of DOT Airline Consumer Complaint Investigations

The House-passed bill (Sec. 424) would require that, subject to the availability of appropriations,

the Secretary of DOT is to investigate consumer complaints regarding flight cancellations;

compliance with federal regulations regarding the overbooking of seats on flights; lost, damaged,

or delayed baggage (and problems with air carrier claim procedures); problems with refunds for

unused or lost tickets; incorrect or incomplete information on fares, discount fare conditions and

availability, overcharges, and fare increases; rights of frequent flier mile holders; and deceptive or

misleading advertising. The Senate-passed bill also includes this provision (see Sec. 403), with

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the additional requirement that DOT is to provide, in an annex to its budget request, an estimate

of the resources needed to investigate all such claims received by DOT in the previous year.

Consumer Complaint Hotline Telephone Number

The House-passed bill (Sec. 425) would require DOT to establish a consumer complaint hotline

telephone number for use by airline passengers. The Secretary of Transportation would need to

notify the public of the telephone number. Air carriers using aircraft of 30 seats or more would

need to include on their websites, ticket confirmations, or boarding passes the hotline number; the

email address, telephone number, and mailing address of the air carrier; and the email address,

telephone number and mailing address of the Aviation Consumer Protection Division of the

Department of Transportation. The Senate-passed bill (Sec. 401) also includes a hotline provision.

The bill, however, is less prescriptive concerning the means used to publicize the hotline

telephone number, simply leaving it up to the Secretary of Transportation to publicize the number.

Musical Instruments

Section 424 of the House-passed bill would require air carriers to permit passengers to stow a

musical instrument in the aircraft passenger compartment in a closet, baggage or cargo stowage

compartment without charge, if the instrument can be stowed in accordance with the requirements

for carriage of carry-on baggage or cargo set forth by the Administrator of the FAA and there is

space for such stowage on the aircraft. For instruments too large to be stowed in a closet, baggage

or cargo stowage compartment the instrument may be stowed in a seat if it fits and the passenger

pays for the seat. An instrument may be treated as checked baggage if the sum of the length,

width, and height, including the case does not exceed 150 inches, if its weight does not exceed

165 pounds, and it can be stowed in accordance with the requirements for the stowage of baggage

or cargo. Section 713 of the Senate-passed bill is similar to the House bill.

Disclosure of the Operating Air Carrier Name for Each Flight Segment

The Senate-passed bill (Sec.406) would declare it an unfair or deceptive practice for any air

carrier, ticket agent, or other person offering to sell tickets for air transportation not to disclose the

name of the air carrier providing the air transportation. If the flight has more than one segment it

shall be an unfair or deceptive practice not to name the air carrier providing the air transportation

for each flight segment. For Internet offers, the disclosure must be on the first display screen of

the website.

P.L. 111-216, The Airline Safety and Federal Aviation Administration Extension Act of 2010, in

Section 210 incorporates the provision of Senate-passed H.R. 1586 requiring disclosure of the

name of an air carrier providing air transportation for each flight segment. The provision declares

any failure to disclose such information an unfair or deceptive practice. For Internet offers, the

provision requires that the disclosure be on the first display screen of the website and in a format

that is easily visible to a viewer. The House-passed bill does not include a similar provision.

Disclosure of Passenger Fees

The Senate-passed bill (Sec. 405) would require the Secretary of Transportation to complete a

rulemaking that requires each air carrier operating in the United States to make available to the

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public and to the Secretary a list of all passenger fees and charges (other than airfare) that may be

imposed by the air carrier. The lists are to include fees for checked baggage or oversized baggage;

meals, beverages, or other refreshments; seats in exit rows, seats with additional space, or other

preferred seats in any given class of travel; purchasing tickets from an airline ticket agent or

travel agency; or any other good, service, or amenity provided by the air carrier, as required by

the Secretary. The Secretary may require air carriers to make available the information on their

Internet websites, to travel agencies, and in advertising. The Secretary shall also require air

carriers to update the information as necessary but no less frequently than every 90 days, unless

there has been no increase. The House-passed bill does not include a provision on this issue.

Notification Requirements in Regard to Passenger Taxes and Fees

The Senate-passed bill (Sec. 407) requires the Office of Aviation Consumer Protection and

Enforcement of the Department of Transportation to establish rules to ensure that all consumers

are able to easily and fairly compare airfares and charges when buying tickets, including all taxes

and fees.

The bill would also make it an unfair or deceptive practice for an air carrier or ticket agent to sell

a ticket for air transportation unless they display all tax and fee information in reasonable

proximity to the price listed for the ticket and provide information on the said taxes and fees

including the amounts and a description of each before requiring the purchaser to provide any

personal information.

The taxes and fees covered by the provision include all taxes and fees, charges and surcharges

included in the price of the ticket. Among these charges are fuel surcharges, surcharges relating to

peak or holiday travel, baggage fees, seating assignment fees, and operational services that are

charged when the ticket is purchased. Additionally, Section 807 of the Senate-passed bill specifies

that if taxes are disclosed separately, the inclusion of non-tax costs in the amounts attributed to

taxes is prohibited.

The House-passed bill does not include any provisions addressing this issue.

Denied Boarding Compensation

The House-passed bill (Sec. 428) would require that, not later than six months after enactment

and every two years thereafter, the Secretary of DOT shall evaluate the amount provided for

denied-boarding compensation and issue a regulation to adjust such compensation as necessary.

The Senate bill does not include this provision.

Delayed Baggage Compensation

The House-passed bill (Sec. 429) would require GAO to conduct a study to (1) examine delays in

the delivery of checked baggage to passengers and (2) make recommendations for establishing

minimum standards to compensate passengers in the case of unreasonable delays in checked

baggage delivery. GAO is to consider the additional fees for checked baggage that are now

imposed by some air carriers and how the additional fees should improve an air carrier’s baggage

performance. Results are to be reported 180 days after enactment. The Senate bill does not

include this provision.

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Study of European Union Rules for Passenger Rights

The House-passed bill (Sec. 511) would require GAO to conduct a study to evaluate and compare

the regulations of the European Union and the United States on compensation offered to

passengers who are denied boarding or whose flights are cancelled or delayed. The Senate bill

does not include this provision.

Insecticide Use on Passenger Aircraft

Section 425 of the House-passed bill would require the Secretary of Transportation to establish a

public Internet website that lists countries that may require an air carrier to treat an aircraft

passenger cabin with insecticides. Air carriers or ticket agents selling tickets in the United States

for a foreign destination listed in the DOT website shall disclose on their own website or through

other means that the destination country may require the carrier to treat the cabin with

insecticides. The Senate-passed bill does not include this provision.

Prohibitions Against Cell Phone or Other Voice Communication Devices

Section 433 of the House-passed bill requires the FAA to conduct a study on the impact of the use

of cell phones for voice communications in an aircraft during a flight in scheduled passenger air

transportation where currently permitted by foreign government in foreign air transportation. The

Senate-passed bill does not include this provision.

Smoking Prohibition

The House-passed bill (Sec. 401) would amend the smoking prohibition set forth in 49 U.S.C.

41707. It would clarify that the prohibition applies to passenger flights, both international and

domestic. It would also broaden the coverage to include nonscheduled intrastate, interstate, or

international flights if a flight attendant is a required crewmember of the aircraft. The Senate bill

does not include this provision.

Study of Air Quality in Aircraft Cabins

Section 564 of the Senate-passed bill would require FAA to initiate, within one year of enactment,

a study of air quality in aircraft cabins that assesses bleed air quality on the full range of

commercial aircraft operating in the United States; identifies oil-based contaminants, hydraulic

fluid toxins, and other air toxins that appear in cabin air and their quantity and prevalence;

determines the specific amount and duration of toxic fumes present in aircraft cabins that

constitute a health risk to passengers; develops a reporting standard for smoke and fume events in

aircraft cabins; identifies the potential health risks from exposure to toxic fumes during flight; and

determines the extent to which the installation of sensors and air filters on commercial aircraft

would provide a public health benefit. The House-passed bill does not contain a provision

regarding this issue.

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Seat Dimension Disclosure to Facilitate Use of Child Safety Seats

Section 408 of the Senate-passed bill would require FAA to prescribe regulations for posting on

air carrier websites the maximum child safety seat dimensions that will fit into a seat on an

aircraft. The House-passed bill does not address this issue.

Environmental and Energy Issues

Aviation and airport operations have air quality, water quality, waste, and community noise

impacts.28 Within the context of FAA reauthorization, both H.R. 658 and S. 223 include

provisions intended to address issues associated with environmental impacts, and to assist airport

operators with complying with local, state, and federal regulations related to those impacts. Those

provisions include requirements for

•

research into technology or processes that could reduce noise, air emissions, and

energy use;

•

grants and procedural changes to assist airports in meeting environmental

compliance requirements; and

•

changes to address airport and aircraft air and noise emissions (including

modifications to the Air Tour Management Program).

In addition to the categories listed above, the proposals also include provisions regarding airport

sustainability practices.29 Section 221 of the Senate bill directs FAA to establish a 15-member

airport sustainability planning working group. Among other functions, it would develop “best

practices and metrics for the sustainable design, construction, planning, maintenance, and

operation of an airport.” The Senate-passed bill specifies that no funds may be authorized to carry

out the provision. Under H.R. 658 (Sec. 510), FAA may implement, to the extent practicable,

sustainable practices to incorporate energy-efficient design, equipment, systems, and other

measures in the construction and major renovation of air traffic control facilities to reduce energy

consumption at, improve the environmental performance of, and reduce the cost of maintenance

for those facilities.

Both H.R. 658 and S. 223 include provisions intended to address waste generation at airports

(House, Sec. 134, “Solid Waste Recycling Plans,” Senate, Sec. 714, “Recycling Plans for

Airports”). The Senate bill would amend the definition of “airport planning”30 to include planning

to minimize the generation of solid waste in a manner consistent with applicable state and local

recycling laws. Both bills would also amend the list of conditions under which an airport

improvement grant application may be approved.31 Under those conditions, airports required to

For additional background see CRS Report RL33949, Environmental Impacts of Airport Operations, Maintenance,

and Expansion, by Linda Luther.

For information regarding sustainability programs, see the Sustainability Aviation Guidance Alliance (SAGA)

website at http://www.airportsustainability.org/. SAGA is a coalition of representatives from FAA, Airports Council

International-North America (ACI-NA), the Airport Consultants Council (ACC), the American Association of Airport

Executives (AAAE), the Air Transport Association (ATA), and consultants who represent the participating

associations.

49 U.S.C. § 47102 (5).

49 U.S.C. § 47106 (a).

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have an airport master plan must address (in the master plan) factors such as the feasibility of

solid waste recycling at the airport and minimizing the generation of solid waste at the airport.

Environmental-Related Research Programs and Funding

Under “Title X—Federal Aviation Research and Development Reauthorization Act of 2011,”

H.R. 658 includes the following environmental-related research and development requirements

(except where noted otherwise, research funding would be from amounts made available under

the Research and Development section of the Airport and Airway Trust Fund):32

•

Airport cooperative research program (Sec. 1007)—would permanently

authorize the Airport Cooperative Research Program (ACRP ).33 A funding

source for the ACRP is not designated in the bill.

•

Interagency research initiative on aviation and the environment

(Sec. 1010)—directs the FAA Administrator, in coordination with NASA, to

establish a research initiative to assess the potential affects of aviation on the

environment and to evaluate approaches to address those impacts.

•

Aviation fuel research and development program (Sec. 1011)—would require

FAA, in coordination with NASA, to continue to study technologies that would

allow the use of unleaded gasoline in piston-engine aircraft (currently, pistonengine aircraft—mostly general aviation aircraft—use leaded gasoline).

•

Research program on alternative jet fuel technology for civil aircraft (Sec.

1012)—would establish a research program to conduct research into the

development of jet fuels from alternative sources such as coal, natural gas,

biomass, ethanol, butanol, and hydrogen.

•

Review of FAA’s energy- and environment-related research programs (Sec.

1013)—would require FAA to contract with the National Research Council to

assess the adequacy of FAA’s energy- and environment-related research

programs. Among other requirements, the review must assess whether such FAA

research programs are properly coordinated with NASA, the National Oceanic

and Atmospheric Administration (NOAA), and other relevant agencies.

Under “Title VI—Aviation Research,” S. 223 also includes several environmental-related

research requirements. Like the House bill, S. 223 would permanently authorize the Airport

Cooperative Research Program (Sec. 601). Unlike the House bill, the Senate bill specifies funding

amounts for the program. Not more than $15 million per year for FY2010 and FY2011 may be

appropriated for the program. The Senate bill also specifies that not less than $5 million shall be

used for “research activities related to the airport environment, including reduction of community

exposure to civil aircraft noise, reduction of civil aviation emissions, or addressing water quality

issues.”

49 U.S.C. § 48102 (a).

The ACRP was authorized as a four-year pilot program under Vision 100 (49 U.S.C. §44511(f)). Funds for the

program were previously authorized under the Airport and Airway Trust Fund Authorizations, under the Airport

Planning and Development and Noise Compatibility Planning and Programs. In the House-passed bill, the ACRP is

explicitly not allowed to receive funding from this source.

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FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

Also similar to the House bill, S. 223 would establish research programs related to developing

alternative fuel technology (from natural gas, biomass, and other renewable sources) for civilian

aircraft (Sec. 603). The Senate bill differs in that it more specifically establishes a research

program to develop jet fuel using “clean coal” (Sec. 604).34

Section 602 of S. 223 (“Reduction of noise, emissions, and energy consumption from civilian

aircraft”) would establish a research program related to reducing civilian aircraft energy use, air

emissions, and source noise through grants or other measures. The program would include

participation of educational and research institutions or private sector entities that have existing

facilities and experience developing and testing noise, emissions and energy reduction engine and

aircraft technology, and developing alternative fuels. The Senate-passed bill would establish a

“Consortium for Continuous Low Energy, Emissions, and Noise” (CLEEN) to perform research

in coordination with NASA and other relevant agencies. Performance objectives of the program,

to be reached no later than January 1, 2016, include certifiable aircraft technology that reduces

fuel burn 33 percent; certifiable engine technology that reduces nitrogen oxide emissions by 60%;

and certifiable aircraft technology that reduces noise levels by 32 Effective Perceived Noise in

decibels (EPNdb) cumulative.

Additional environmental-related research and development requirements specified under Title

VI of S. 223 include the following:

•

Pilot program for zero emission airport vehicles (Sec. 609)—would establish a

pilot program under which certain public-use airports may use funds35 to acquire

and operate zero emission vehicles. Program participants may qualify for funds

only if the airport is located in an air quality non-attainment area.36 The federal

share of the costs of a project carried out under the program would be 50%.

•

Reduction of emissions from airport power sources (Sec. 610)—would amend

the “Airport ground support equipment emissions retrofit pilot program”37 to

establish a program under which certain airports would be encouraged to assess

their energy requirements, including heating and cooling, base load, back-up

power, and power for on-road airport vehicles and ground support equipment, to

identify opportunities to reduce harmful emissions, and to increase energy

efficiency at the airport. Grants for such an assessment would be available under

the Airport and Airway Trust Fund Authorizations.38

Also, Section 216 of S. 223 (“Research improvement for aircraft”) would amend existing

“Facility, Personnel, and Research” requirements with regard to “improved aircraft,

aircraft engines, propellers, and appliances”39 to require the Administrator to conduct or

Unless noted otherwise, all research projects authorized under Title VI of the Senate-passed bill are funded through

grants made available under the Research and Development section of the Airport and Airway Trust Fund (49 U.S.C.

§ 48102(a)).

Available under the Airport Improvement requirements at 49 U.S.C. § 47117 or the airport planning and

development and noise compatibility planning and programs of the Airport and Airway Trust Fund Authorizations at

49 U.S.C. § 48103.

As defined under the Clean Air Act, 42 U.S.C. § 7501(2).

49 U.S.C. § 47140.

49 U.S.C. § 48103.

49 U.S.C. § 44504(a).

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FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

supervise research to “support programs designed to reduce gases and particulates

emitted.”

Grants and Procedural Changes to Assist with Environmental

Compliance

The House-passed bill would amend the state block grant program40 to specify that federal, state,

and local environmental requirements, including the National Environmental Policy Act (NEPA,

42 U.S.C. Sec. 4321 et seq.),41 would apply to the program (Sec. 502). The House-passed bill

specifies that any federal agency that must grant some form of approval (i.e., a permit or license)

to a state must consult with that state during the approval process. Further, the federal agency

would be required to use any state-prepared environmental analysis associated with that approval.

The Senate-passed bill also includes provisions that would similarly amend the state block grant

program (under Sec. 209). Unlike the House bill, S. 223 would establish a pilot program for up to

three states that do not participate in the block grant program.

Also related to NEPA compliance, Section 503 of H.R. 658 would amend current law specifying

“expedited, coordinated environmental review” processes42 to included airport capacity

improvement projects and certain NextGen environmental efficiency projects. Further, under Sec.

504, the House bill would amend current requirements that allow FAA to accept funds from an

airport sponsor to hire additional staff or obtain the services of consultants to expedite the

processing, review, and completion of environmental activities associated with an airport

development project.43 The proposal would allow FAA to accept funds to hire additional staff to

conduct “special environmental studies” related to a federally funded airport project; conduct

studies or reviews to support noise compatibility measures approved under the Part 15044

requirements; or conduct studies or reviews to support environmental mitigation specified in a

project’s final decision and delineated at the completion of the NEPA process. The Senate bill

includes provisions essentially identical to House bill Sec. 504, under “Airport funding of special

studies or reviews” (Sec. 210).

The House-passed bill (Sec. 506, “Grant eligibility for assessment of flight procedures”) would

amend the existing noise compatibility program requirements45 to allow grants to airport

operators to assist them in completing environmental review46 and assessment activities for

proposals to implement flight procedures. Further, the proposal would allow a project sponsor to

49 U.S.C. § 47128.

Among other provisions, NEPA requires airport operators to consider the environmental impact of any proposed

action that may require federal funding or approvals. It also requires them to look at all reasonable alternatives to meet

a given project’s purpose and need, before final decisions are made. For more information, see FAA’s “NEPA

Implementing Instructions for Airport Projects,” Order 5050.4B, April 28, 2006, available at http://www.faa.gov/

airports/resources/publications/orders/environmental_5050_4/.

49 U.S.C. § 47171.

49 U.S.C. § 47173.

Airport Noise Compatibility Planning requirements are specified under 14 C.F.R. Part 150 and are, hence, commonly

referred to as “Part 150” requirements.

49 U.S.C. § 47504.

Generally, “environmental review” requirements refer to environmental review requirements specified under the

NEPA regulations. However, they may apply more broadly to any review, study, or analysis required by any other

environmental law applicable to a given project.

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FAA Reauthorization: An Overview of Legislative Action in the 112th Congress

provide FAA with funds to hire additional staff as necessary to expedite completion of the

environmental review necessary to implement flight procedures. The Senate bill includes

provisions essentially identical to the House bill under “Grant eligibility for assessment of flight

procedures” (Sec. 211).

Unlike the House-passed bill, Sec. 213 of S. 223 would establish a trial program to provide grants

for up to six environmental mitigation demonstration projects. Eligible projects would include

those that would measurably reduce or mitigate aviation impacts on noise, air quality, or water

quality in the vicinity of the airport. The federal share of the projects would be 50% of the project

costs, up to $2.5 million, and would be apportioned under the AIP.

Requirements to Address Aircraft and Airport Air Emissions and

Noise

In 1990, Congress mandated a phase out of non-Stage 3 aircraft over 75,000 pounds by December

31, 1999.47 This has allowed Stage 1 and Stage 2 aircraft under 75,000 pounds, primarily

corporate and private-use aircraft, to continue to operate. In 2006, non-Stage 3 aircraft

represented a relatively small number of all operational turbojet aircraft under 75,000 pounds

(approximately 1,330 or 13%). However, at some airports, particularly smaller commercial and

general aviation airports, their use makes a disproportionate contribution to noise exposure

contours. As a result, several airports have sought to ban or restrict access to such aircraft. Those

efforts have generally been prohibited by FAA.

Both the House and Senate bills would prohibit the operation of aircraft under 75,000 pounds, not

complying with Stage 3 noise levels, with certain explicit exceptions. Unde

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