April 13, 2018

Today, the bipartisan leadership of the House Transportation and Infrastructure Committee introduced a revised version of the FAA reauthorization bill. The new bill is H.R. 4 and the bill text is here.

While bills are normally numbered in the order in which they are introduced in a Congress (the last bill introduced yesterday was H.R. 5502), the first ten bill numbers in a Congress are reserved by the Speaker for top priorities of the majority party. The tax cut bill last year was H.R. 1, the farm bill (introduced yesterday) was H.R. 2, H.R. 5 was regulatory reform, etc. The fact that the Speaker gave the new FAA bill a top ten number is an indication that Republicans are looking to make a big deal of the legislation.

House T&I chairman Bill Shuster (R-PA) introduced his FAA reauthorization bill last June 22, and it was marked up by the T&I Committee on June 27. But the bill never moved to the floor, because title II of H.R. 2997 would have broken up the FAA and turned responsibility for air traffic control over to a private non-profit corporation that would be funded with user fees instead of taxes. This proposal ensured near-unanimous Democratic opposition to the bill, as well as opposition from just enough Republicans to keep the bill’s vote count short of the 218 votes necessary for passage in the House.

After promised help from the White House failed to materialize, Shuster conceded defeat on February 27 and said that the air traffic control spinoff portion of the bill would not move forward. That then left the question of how the rest of the bill would move to the House floor.

There was precedent both ways – sometimes, the T&I Committee has held a new markup session to make major changes to a reported bill before going to the floor, and other times, the chairman and ranking minority member have worked out a revised bill without a formal re-vote of the whole committee. This turned out to be one of the latter times. The new bill was introduced jointly by Shuster and ranking minority member Peter DeFazio (D-OR) along with the chairman and ranking member of the Aviation Subcommittee, Frank LoBiondo (R-NJ) and Rick Larsen (D-WA).

The bill introduced today is almost identical to the text of H.R. 2997 as reported by T&I last year, with the following exceptions:

• Title II of H.R. 2997 was dropped in its entirety and subsequent titles were renumbered.
• Sec. 106 of H.R. 2997 was dropped because that provision was only necessary if H.R. 2997 were enacted into law before October 1, 2017.
• Sec. 315 of H.R. 2997 was dropped (new approval process for safety equipment on small general aviation airplanes).
• A research and development title from the Science, Space and Technology Committee was added.
• A title from the Ways and Means Committee extending existing aviation excise tax rates and Airport and Airway Trust Fund spending authority through 2023 was added.
• A new title containing the Disaster Recovery Reform Act of 2018 was added. This legislation passed the T&I Committee separately by voice vote last year and was included in a House-passed disaster relief appropriations bill last December that the Senate never took up.
• A new section 318 is added making aerospace advisory committees subject to the same treatment as aviation advisory committees for certain purposes.
• Authorization levels in the bill were changed to reflect the removal of the ATC spinoff title and to reflect the Congressional Budget Office baseline.

That last point needs further explanation. Strict adherence to the baseline has a significant effect on the Airport Improvement Program. Contract authority for that program has been flat-lined at $3.35 billion per year for a decade. Shuster’s bill as introduced last summer would have increased that level from $3.42 billion in 2018 and gradually ramping up to $3.82 billion in 2023.In the T&I markup, Rep. Lou Barletta (R-PA) offered an amendment that increased AIP funding even more, by an average of $174 million per year, which passed the committee by voice vote.

Under pressure from the Budget Committee, House Republican leaders put forth a revised version of the bill last July that effectively overturned Barletta’s amendment and went back to the AIP funding levels in the original Shuster bill. And the new bill takes funding for the program all the way back to a flat-lined $3.35 billion every year. Over six years, this is $2.65 billion less than in H.R. 2997 as reported.

The Budget Committee’s insistence on strict adherence to the contract authority baseline may be related to the sense of “buyer’s remorse” being felt by some Congressional Republicans over the mammoth spending increases in the recently enacted omnibus FY 2018 appropriations bill. (“Spender’s remorse” would be a more accurate description.) That bill gave AIP an extra $1 billion of money from the general fund in addition to the $3.35 billion in contract authority from the Airport and Airway Trust Fund. The fact that the extra $1 billion could well be repeated in FY 2019 (if the appropriators don’t do so, it won’t be because they didn’t have enough money to go around) does reduce the urgency of the need for an AIP funding increase somewhat.

Overall, funding authorizations for the FAA in the bill total $104.4 billion over six years. But the FY 2018 authorization levels for three of the four FAA budget accounts is lower than the actual level of funding provided in the just-enacted 2018 omnibus appropriations bill. Together, the authorization levels in H.R. 4 are $1.3 billion below the appropriated level.

In order to get to the House floor, the bill has to go through the House Rules Committee. That committee will probably meet early in the week of April 23 to consider debate structure for H.R. 4. At that time, Shuster and DeFazio will jointly offer a “manager’s amendment” to address concerns that members have brought to them. This may be quite extensive – at the June 2017 markup, some 20 amendments were offered and withdrawn by their sponsors, and on almost all of those, chairman Shuster promised to work with the amendment sponsor to address their concerns before the bill went to the House floor, possibly in the manager’s package.

The Rules Committee will also determine which other amendments can be offered when the bill goes to the floor. Shuster will get some say in this, but the final determination on this will come from the House Republican leadership, acting through the Republican membership of the Rules Committee.

If all goes well (and the fact that DeFazio and Larsen are now on board makes it much more likely that things will, in fact, go well), the House could pass the bill by Friday, April 27 and send it to the Senate.

The outlook there is murkier. The Senate Commerce, Science and Transportation Committee approved its own bill last June 29 (S. 1405), but that legislation has not made it to the Senate floor. Foremost among the reasons is a dispute between Commerce chairman John Thune (R-SD) and Senate Minority Leader Chuck Schumer (D-NY) over a provision Thune put in S. 1405 allowing pilot trainees to count other kinds of training – not just flight hours – towards the 1,500-hour minimum for being an airline copilot. This has met with significant resistance from safety advocates (funneled through Schumer, who represents most of the families of the 45 people killed in the Colgan Air crash in Buffalo in 2009. The NTSB report on that crash citied inadequate pilot training as a contributing factor.

Negotiations over the 1,500-hour rule have been ongoing (airlines say they need the training flexibilty to address a pilot shortage as the trend towards smaller but more numerous jets continues), to no avail. But Thune told Bloomberg Government yesterday that he thought Schumer was now dragging out the process in hopes of pushing the process into next year, when there is a chance that Schumer might be Majority Leader, not Minority Leader.

Thune told Bloomberg: “I think [Schumer]’d like to get an extension into next year in hopes that they’ll be in the majority.”

Current spending authority for the Airport and Airway Trust Fund expires on September 30, 2018. The Trust Fund is operating on its fifth short-term extension since the expiration of the 2012 FAA law in September 2015. So in order to get to next years, either a full reauthorization bill or yet another extension will be needed. (A list of all FAA authorizations and extensions since 1996 is here.) The last extension was incorporated in the just-enacted omnibus appropriations bill, and since some kind of stopgap appropriations bill will also be necessary to fund the rest of the government past September 30, there is a good chance the next FAA extension, if necessary, would be linked with that appropriations measure as well.

Once the House passes H.R. 4, Senate Majority Leader Mitch McConnell (R-KY) might try to call Schumer’s bluff by moving that the Senate proceed to H.R. 4. (Since the FAA bill has to extend taxes, it is a “bill raising revenue” and the Constitution requires that it have a House bill number, so S. 1405 was always going to have to piggy-back on something else.) Invoking cloture on that motion would require 60 votes, meaning that unified Democratic opposition could stop it, but if negotiations with Schumer and Commerce ranking member Bill Nelson (D-FL) continue to prove fruitless, a straight-up floor showdown could be the only way to force the Senate to consider the issue at all this year.