Eno Transportation Weekly
House Passes FAA Bill, 393-13, After Adopting 105 Amendments
April 27, 2018
Earlier today, the House of Representatives passed H.R. 4, a five-and-a-half-year Federal Aviation Administration reauthorization bill, by a wide and bipartisan roll call vote of 393 to 13.
217 Republicans and 176 Democrats supported the bill on final passage. The “no” votes were Reps. Justin Amash (R-MI), Ken Buck (R-CO), Keith Ellison (D-MN), Anna Eshoo (D-CA), Louie Gohmert (R-TX), Alan Lowenthal (D-CA), Tom McClintock (R-CA), Ralph Norman (R-SC), Jimmy Panetta (D-CA), Dana Rohrabacher (R-CA), Jim Sensenbrenner (R-WI), Jackie Speier (D-CA) and Eric Swalwell (D-CA).
The White House earlier issued a Statement of Administration Policy in general support of the bill but also expressing concerns with some new regulations mandated by the bill and restrictions on international aviation agreements.
The journey to House passage of the bill was long and circuitous, with the legislation being held up for two years over objections to House Transportation and Infrastructure chairman Bill Shuster’s (R-PA) plans for sweeping reform of air traffic control, breaking up the FAA and turning responsibility over air traffic control over to a private, non-profit corporation to be supported with real user fees, not excise taxes. Even after Shuster gave up on that idea (being short of votes), he was forced to drop smaller ATC management reforms from an amendment he offered earlier this week.
Shuster alluded to this difficulty in a statement released just after passage of the bill: “While I would have liked this bill to have included the significant reforms to the management of the Nation’s air traffic control system I proposed in earlier legislation, H.R. 4 does include many other important reforms that will help job creators lead in a competitive global marketplace for aviation, improve our airport infrastructure in large, small and rural communities, and improve air travel for millions of Americans.”
T&I ranking minority member Peter DeFazio (D-OR) said “Today’s passage of the first long-term FAA reauthorization package since 2012 shows the great bipartisan work that can get done in the Transportation and Infrastructure Committee. This legislation provides more than five years of stability for the FAA, improves aviation safety, and safeguards critical consumer protection aspects of air travel.”
During consideration of H.R. 4 in the House yesterday and today, the bill was amended extensively. The House Rules Committee on April 24 made 116 separate amendments in order, and of those, 105 were adopted by the House. (Six failed on roll call votes, two failed by voice vote, and three were not offered.) Most of the 105 amendments were considered in four packages of multiple amendments en bloc (27, 26, 25 and eight amendments) and adopted by voice vote with the consent of Shuster and DeFazio (as well that of as Aviation Subcommittee chairman Frank LoBiondo (R-NJ) and ranking minority member Rick Larsen (D-WA)).
A full list of all amendments, their disposition, and links to amendment text is here.
The first amendment offered on the floor was a manager’s amendment from Shuster, and therein lies the tale. Shuster kept the draft of his manager’s amendment under wraps until filing it at the Rules Committee early on the evening of Monday, April 23. Towards the back of the 66-page amendment were significant air traffic control (ATC) management changes – the amendment would have beefed up the air traffic control Management Advisory Council (MAC) and made the ATC chief operating officer (COO) report directly to the Secretary of Transportation, bypassing the FAA Administrator.
Upon seeing the manager’s amendment that night, general aviation groups (the primary opponents of Shuster’s air traffic control spinoff idea, since having ATC management less responsive to Congress increases the likelihood that someday, general aviation might have to pay for more of the costs of ATC services) erupted. The fact that the original Shuster amendment structured the MAC membership so that it more resembled the board of directors in the nonprofit ATC corporation in the old Shuster bill served to focus their opposition.
And it quickly became clear that while T&I Democrats supported much of what was in the Shuster manager’s amendment, they were not on board with the MAC or COO reforms.
Just as the Rules Committee was starting to hold its hearing on H.R. 4 at 5 p.m. Tuesday, Shuster submitted a revised version of his amendment to Rules. That version dropped the MAC reforms but kept the COO reforms, and it also added two unrelated provisions at the back of the amendment.
Shuster defended the COO reforms as being “good government,” noting that most other developed nations around the globe have separated their aviation safety regulator from their air traffic control service provider, so that the safety regulator is not in charge of regulating itself. He also noted that the proposal wouldn’t take anything ATC-related out of government, or out of the Department of Transportation, or out from under the oversight of the Appropriations Committees.
(Ed. Note: Shuster is correct in his global reference – it is an official recommendation of ICAO, the United Nations aviation body, that “Clear distinction and separation of authority and responsibility between the State regulatory authority and the State operating agency should be maintained.” See section 3.4.4 of this ICAO report and also this ETW article.)
But it was not enough. At the start of the hearing, Rules vice chairman Tom Cole (R-OK), also a senior member of the Appropriations Committee, indicated that he might not support the Shuster amendment because of the ATC management changes, as did junior Rules member Liz Cheney (R-WY). Democratic criticism was still forthcoming, and Shuster shortly thereafter submitted a final version of his amendment that dropped both the MAC reforms and the COO reforms.
That final version of the manager’s amendment (which we have summarized fully here) was be the first of the 116 amendments to H.R. 4 to be offered and debated on Thursday, and with the support of DeFazio and other Democrats it breezed through by voice vote.
Other amendatory highlights of the two-day debate include:
Lithium batteries. One of the areas where Shuster and DeFazio fundamentally disagree is the area of how far the FAA should be allowed to go in regulating the transport of lithium-ion batteries in air cargo. Shuster supports the provision added by Congress in the 2012 FAA reauthorization bill that prevents the FAA from going farther than the International Civil Aviation Organization (ICAO) recommends, but DeFazio wants to repeal that provision of the 2012 law and allow the FAA to go as far in regulating lithium batteries as it feels prudent. DeFazio offered an amendment to that effect, noting that two all-cargo 747s have already crashed because lithium batteries caught fire in flight, but Shuster argued that air freight is international and that US carriers should have the same rules as other. The DeFazio amendment was defeated on a largely party-line roll call vote of 192 yeas, 223 nays.
DCA slots. A debate on takeoff and landing slots at Washington DC Ronald Reagan National Airport never materialized. Neither an amendment to add two new daily round-trips between DCA and points outside the 1,250-mile perimeter, nor an amendment by local DC-area legislators to ban new slots or perimeter waivers, wound up being offered.
Essential Air Service. Tom McClintock (R-CA) offered an amendment to kill the authorization for the discretionary appropriations portion of the Essential Air Service (EAS) subsidy program. Saying that if Congress couldn’t kill EAS, it couldn’t kill any wasteful program, McClintock pointed out that EAS was created to be a temporary program following the deregulation of the airline industry in 1978 (true) and that the cost has increased in recent years (also true). But the whole point of EAS is to subsidize air service to the smallest towns and to rural areas – and electorally speaking, that is the GOP wheelhouse.
Accordingly, McClintock was only able to convince just under half of Republicans, and almost no Democrats, to support his amendment, which lost on a roll call vote of 113 yeas, 293 nays.
Some of the more heated debate came on non-aviation issues. Those included:
MPO membership. Jason Lewis (D-MN) proposed an amendment to force the Minneapolis/St. Paul metropolitan planning organization (MPO) to include local elected officials on the governing board. The Metropolitan Council, the MPO for the Twin Cities, is currently the only MPO in the country that does not include local elected officials on the governing board. The Met Council board is comprised of 17 members, all appointed by the governor, and while they do have elected officials on the transportation advisory board (TAB), the TAB is an advisory board – not a governing board. The 1991 ISTEA law mandated all MPOs to include local officials on their governing board, and in 2012 MAP-21 pushed MPOs to comply with the mandate, but a loophole including a grandfathering for the Met Council allows them to maintain their board composition.
Lewis pointed out that the function of MPOs is to coordinate transportation planning in urban regions with localities and states for the purpose of accountability and transferability and to give the public a voice in the process, which implies that the elected and accountable representatives of the voters should participate. The Lewis amendment passed by voice vote and would effectively remove power from the Minnesota governor by expanding the Twin City MPO beyond governor-appointed members.
NEPA reciprocity. The FAST Act of 2014 established a pilot program authorizing up to five states to conduct environmental reviews and make approvals for projects under state environmental laws and regulations instead of the National Environmental Policy Act (NEPA). However, this program (established by section 1309 of the FAST Act and enshrined in 23 U.S.C. §330). However, the program sets a statute of limitations to challenge a document prepared under the the program at two years. In comparison, the statute of limitations is 150 days for for projects approved through the regular federal process.
Rep. Jeff Denham (R-CA) offered an amendment to change the statute of limitations under the program to 150 days to facilitate California’s participation in the pilot program. DeFazio noted that DOT has not finalized the rule for the pilot program (the proposed rule is here) and that everything in the FAST Act was the result of a careful bipartisan compromise that should not be unraveled after the fact, but he did not press the issue to the point of demanding a roll call vote, and Denham’s amendment passed by voice.
Trucker meal and rest breaks. Once again, Denham offered an amendment to overturn the Ninth Circuit Court of Appeals decision upholding a California law that regulates the meal and rest breaks of commercial vehicle drivers engaged in intrastate (not interstate) transportation. Congress in 1994 passed a law designed to preempt state law in these matters (the provision was contained in the FAA Authorization Act of 1994, so the provision is referred to as “F4A” in legislative shorthand).
The House has passed Denham’s provision several times before on other bills, but it has never survived negotiations with the Senate. (Barbara Boxer (D-CA) memorably almost blew up the House-Senate FAST Act conference over the issue, and it seems to be the last item left on the table every year in House-Senate appropriations negotiations.) DeFazio pointed out that the Denham amendment, while prompted by the meal and rest break issue, goes much further, and preempts any kind of state rule regulating CMV drivers who are subject to federal hours-of-service rules.
The Denham amendment passed by a mostly party-line roll call vote of 222 yeas, 193 nays. But it’s still far too early to tell if this will be the year that Senate resistance on F4A will finally be overcome.
Trucking safety evaluations. The last amendment offered was from Jimmy Duncan (R-TN) who offered what he called a “safe harbor” provision providing that shipping companies can’t be sued for the negligence of a trucking carrier if the shipper verifies the FMCSA registration, minimum insurance coverage, and the Federal Motor Carrier Safety Administration safety rating within 45 days prior to the pickup of the shipment. DeFazio opposed the amendment, saying that what was really needed was for FMCSA to finish setting up the system to use reported safety data to rate trucking companies, but that language in the appropriations act prevents them from doing so. He another Democrats also advocated for increasing the minimum liability insurance that must be carried by trucking companies well above the current $750,000 per incident.
Duncan’s amendment was agreed to by a mostly party-line roll call vote of 212 yeas, 191 nays.