Section by Section Analysis of the
Federal Aviation Administration Authorization Act of 1999
SEC. 1. This section provides that the Act may be cited as the "Federal Aviation Administration Authorization Act of 1999," and contains the table of contents for the bill.
SEC. 2. This section provides that, except where otherwise expressly provided, any references to sections or provisions are made to title 49, United States Code.
SEC. 3. This section provides that, unless otherwise stated, the amendments made by this Act are effective upon enactment.
SEC. 101. This section provides an authorization for the FAA Operations account for fiscal year 2000 and authorizes such sums as necessary for fiscal years 2001 through 2004. In addition, this section would dedicate $9.1 million for a 3-year period beginning in FY 2001 for a university consortium to support a safety and security management program for the training of aviation personnel, mainly from foreign countries that are trying to come into compliance with international safety standards. This program would be coordinated with DOT's existing University Transportation Research Program under chapter 55 of title 49.
SEC. 102. This section provides an authorization for the FAA Facilities and Equipment (F&E) program for fiscal year 2000, and authorizes such sums as necessary for fiscal years 2001 through 2004.
SEC. 103. This section provides an authorization for the FAA Research, Engineering, and Development (R,E&D) program for fiscal year 2000 (Pub. L. 105-155, Feb. 11, 1998 provided an authorization for FY 1999). This section also authorizes such sums as necessary for fiscal years 2001 through 2004.
SEC. 104. This section extends contract authority through FY 2004 for Airport Improvement Program (AIP) grants and provides authorization levels for the grants. This section also extends the authority to make AIP grants from the Airport and Airway Trust Fund through FY 2004.
SEC. 105. This section provides an authorization for the expenditure of funds from the Airport and Airway Trust Fund, beginning in Fiscal Year 2001, to fund the cost of required financial audits of the Trust Fund by the Department's Inspector General.
Title II--Amendments to Aviation Law
SEC. 201. With the enactment of FAA procurement reform in 1995, there is some question whether the FAA still has the flexibility it previously had under the Federal Acquisition Streamlining Act of 1994 (FASA) to enter into contracts for procurement of severable services that begin in one fiscal year and end in another. See 41 U.S.C. 253l. The FAA uses this authority, particularly with regard to air traffic services, to enter into numerous contracts for a 12-month period that do not necessarily coincide with the 12 months of a single fiscal year. This flexibility dramatically reduces the administrative work of having all contracts expire at the end of a fiscal year. This section would add a new provision to title 49 that expressly provides this authority to the FAA Administrator.
SEC. 202. The Airport Noise and Capacity Act of 1990 (ANCA) provided a limited waiver, under certain conditions, from the December 31, 1999, compliance date for air carriers to meet stage 3 noise levels. While both domestic and foreign carriers are subject to the Act's compliance requirements, only domestic air carriers are eligible for the waiver. Foreign air carriers view this disparate treatment as a violation of the Chicago Convention and have raised this issue in their comments on ANCA rulemakings. Subsection (a) of this section would amend title 49 to make foreign carriers eligible for the waiver.
As part of its continuing regulation of aircraft operations, the FAA has allowed operators of noise-restricted aircraft (Stage 1 and Stage 2) to operate their aircraft in single, nonrevenue flights for certain purposes. Over time, these purposes have included export, scrapping, sale to the U.S. military, and to obtain noise modifications such as the installation of hushkits or new engines. The FAA's regulation allowing for special flight authorizations will expire on the December 31, 1999, compliance date, and the agency will no longer have the authority to permit nonrevenue flight of Stage 1 or Stage 2 aircraft for any purpose. The agency notes that there are numerous aircraft in storage that operators may eventually need to move in order to install hushkits or new engines from vendors in the United States, that aircraft operated outside the contiguous United States may need to be returned to install such technology, or that owners may need to move these noise-restricted aircraft in order to sell them. Accordingly, subsection (b) would provide limited authority for the FAA to grant these special flight authorizations to allow for the operation of Stage 1 or Stage 2 aircraft for the purpose of noise modification or disposal (scrapping or export) after December 31, 1999.
SEC. 203. This section codifies a provision from the Omnibus Consolidated Appropriations Act of 1997 (Pub. L. No. 104-208, section 5501, H. Report No. 104-863, 104th Cong., 2nd Sess., at 529 (1996)) that allows FAA to establish consortia of government and aviation industry representatives at individual airports to provide advice on aviation security and safety. It would allow the FAA to continue and expand this successful program, which has provided invaluable local input for enhancements to aviation security. Under the program, FAA has established approximately 100 consortia at airports around the country. Given the success of the program, FAA plans to expand the program to include approximately 200 airports. Because the original provision was part of an appropriations bill, it is desirable to clarify that the authority extends beyond the term of the appropriations act. Codification of the provision as part of title 49 will do this.
SEC. 204. In order to provide airports with another means of increasing investment for needed improvements, this section would permit an increase in passenger facility fees (PFC) from the current cap of $3 to $5. Current rules would apply to the increase, with certain exceptions.
First, in order to promote enhanced airline competition, a large hub airport whose passenger service is dominated by a single air carrier would have to submit a competition enhancement plan if it wanted to impose the full $5 PFC. Failure to submit such a plan that is acceptable to the Secretary would result in approval of no more than a $4 PFC.
Second, an airport having at least .25 percent of the passenger boardings each year, and proposing to use PFC revenue to construct a surface transportation project, such as a roadway, to improve airport access would have to demonstrate the financial capability to carry out needed safety, security and capacity projects.
In addition, under current law, eligibility to finance a project with PFC revenue is subject to an "all or nothing" determination that the project will exclusively serve an airport, even if other funding sources contribute to the project. These criteria prevent airports from using revenue from local PFC fees to contribute to a surface transportation project, such as a subway line or road, that could significantly improve ground access to the airport. In order to provide greater flexibility in the use of PFC funds, and to promote more efficient, intermodal solutions to airport access problems, this section would allow for the pooling of PFC revenue with funds available under the Transportation Equity Act for the 21st Century (TEA-21), under a cost-sharing agreement approved by the Secretary, for a surface transportation project that will provide enhanced ground access to an airport.
The section provides certain conditions must be met before a cost-sharing agreement may be approved, including a finding that the project would provide direct and substantial benefits to the airport. Also, once PFC funds are combined with highway, transit or other funds, the requirements normally applicable to an airport surface access project (e.g., airport layout plan, environmental, managerial) would apply. However, the proportional contribution of PFC funds relative to total project cost would be capped in proportion to the aviation use of the facility compared to the total use.
Also, use of PFC funds for airport access projects is currently limited to those projects built on land that is owned by the airport, or in which the airport has a significant property interest. This proposal would relax that requirement and allow a surface transportation agency or the airport to own land needed for the project.
Finally, if an airport elects to impose a PFC of $4 or $5, the airport would forgo up to 100 percent of its AIP passenger entitlement funds. That revenue would instead, in accordance with current requirements, be divided among other funds, i.e., with 87.5 percent directed to funds benefiting small airports and the remainder to the AIP discretionary fund. The reduction in apportionment would be effective in the next fiscal year after the airport starts collection of the higher fees. This follows current practice. An airport would not be subject to a reduction in its apportionment in the fiscal year that a PFC or PFC increase is approved.
SEC. 205. This section provides the legislative authority to implement what is known as Article 83 bis of the Convention on International Civil Aviation, 7 December 1944, 61 Stat. 1180, T.I.A.S. No. 1591, 15 U.N.T.S. 295, (the Chicago Convention). When the Convention was drafted in 1944, no one envisioned the international leasing and chartering of aircraft on the large scale that exists today. Safety oversight of aircraft based outside their state of registry is a growing problem. Many foreign-registered aircraft are based and operated in the United States. Many more U.S.-registered aircraft are based and operated abroad. The result is that perhaps tens of thousands of aircraft are located far from the aeronautical authority that has responsibility for their safety oversight under the Convention.
In 1980, the Twenty-Third Assembly of the International Civil Aviation Organization (ICAO) unanimously adopted a proposed solution to this growing problem, Article 83 bis of the Convention. (The suffix bis means that the new article is inserted between existing Articles 83 and 84.) The United States was a leading force in promoting ratification of the Article and deposited its ratification with ICAO on February 15, 1982. After sufficient number of member states ratified the amendment, it went into effect on June 20, 1997.
Article 83 bis permits States to enter into bilateral agreements to transfer oversight authority for aircraft leased or chartered abroad. States could do that before the amendment went into effect, but such transfers must now be recognized by third States. Article 83 bis specifically authorizes transfer of the duties and functions of States under Articles 12 (Rules of the Air), 30 (Aircraft Radio Equipment, an area that falls under FCC responsibility), 31 (Certificates of Airworthiness), and 32a (Licenses of Personnel) of the Convention. Implementation of the amendment is entirely discretionary, and States may impose any conditions they deem necessary.
Legislation is necessary for the United States to implement Article 83 bis, because the duties and functions to be exchanged under it are vested by current law in the Secretary of Transportation and the FAA Administrator, and may not currently be transferred to, or assumed on behalf of, a foreign government. Section 205 of the bill provides implementing legislation for Article 83 bis by amending section44701, General Requirements, to add a new subsection. It would permit the FAA, through bilateral agreement, to relinquish responsibility for the U.S.-registered aircraft for which safety oversight responsibility is transferred abroad, and accept responsibility for the foreign-registered aircraft whose oversight is transferred to the United States. The transferred aircraft would be treated, for all practical safety oversight purposes only, as if they were on the registry of the other State.
SEC. 206. This section complies with the President's Fiscal Year 2000 Budget Request for the FAA by permitting user-provided revenue to finance the entire FAA starting in Fiscal year 2000. This change to 49 U.S.C. 48104 will allow expenditure of user-provided funds from the Airport and Airway Trust Fund to finance all operations of the FAA, including safety and security activities and the indirectly ascribed administrative charges associated with these activities. Currently, only a portion of the FAA operations costs can be funded from the Trust Fund.
SEC. 207. Subsection (a) clarifies the FAA's authority to collect fees for foreign aviation services provided by the FAA, such as those provided at foreign repair stations and for other foreign activities, by specifically authorizing the collection of fees through an amendment to 49 U.S.C. 45301. The FAA has collected such fees since 1995. However, this explicit authorization is needed given subsequent revisions to section 45301 that caused some confusion over the FAA's authority in this area, as well as the restriction contained in the current FY 1999 DOT Appropriations Act that the FAA cannot impose any new fees without specific authorization.
Subsection (b) would allow for full recovery of the costs of overflight and related services provided by the FAA, by allowing the use of generally accepted accounting principles and internationally accepted economic principles in determining the costs of such services and in establishing overflight fees. FAA's authority requires clarification because of a 1998 U.S. Court of Appeals decision that invalidated the methodology that the FAA used to establish overflight fees.
SEC. 208. The first three amendments in this section would provide broader authority to the Administrator to determine what circumstances warrant a criminal history record check for persons performing security screening of passengers and cargo. The Administrator has indicated to the general public and to industry the importance of having reliable and trustworthy individuals performing security screening functions. Currently the law sets out four criteria to be used to determine when a criminal history record check may be conducted. The criteria are based on those contained in regulations applicable to persons seeking unescorted access to secured areas of an airport. While these criteria are appropriate, there may be other instances (e.g. conviction for lesser crimes than those listed) where it would be necessary to conduct a check. This section would provide the Administrator the flexibility to require a record check as appropriate to ensure air transportation security.
The section also makes technical improvements to the Pilot Records Improvement Act of 1996, as amended in 1997 by Pub. L. No. 105-142. The section exempts the military and NASA from the requirement to provide records; clarifies that the records that air carriers or other persons are required to provide in response to a request are those records that relate to the individual's performance as a pilot; and provides that an air carrier may permit an individual to begin service as a pilot, notwithstanding the fact that otherwise-required records from a foreign government or foreign entity have not been received, if the air carrier has made a documented good faith attempt to obtain the information. Finally, in order to improve the FAA's timely response for requests for agency records, this section would allow the FAA to designate a qualified individual (e.g., employed by an air carrier/operator) who could certify that a copy of the written consent of the individual whose records are requested, is on file and will be maintained. Also, the FAA would be authorized to establish a system that would allow designated persons to request record information, and receive responses, electronically.
SEC. 209. This section extends the authorization of the aviation insurance program through December 31, 2004. The program is now authorized through March 31, 1999.
SEC. 210. This section makes two changes to the civil penalty provision of chapter 463. The first paragraph would replace a reference to "individual" with "person," a term that would include not only individuals but also entities such as air carriers or airports. Section 46301(d)(2) gives the Administrator authority to impose civil penalties for violations of the provisions specified. Paragraph (d)(2) does not limit this authority to individuals. It follows that the authority includes civil penalty cases against all persons, not just individuals. Therefore, section 46301(d)(7)(A) should be amended to include actions against entities other than individuals.
The second amendment adds a reference in the judicial review section to orders of the Administrator. This would be consistent with section 46301(d)(2), which gives the Administrator specific authority to assess administratively civil penalties not exceeding $50,000.
Sec. 211. From time to time, the FAA needs to make safety-enhancing, permanent improvements to leased air navigation facilities. Such improvements may take the form of infrastructure repair and maintenance: e.g., roof replacement; upgrading to meet new OSHA and fire safety standards; or heating or air conditioning needs generated by replacement or addition of new electronic equipment. However, a series of Comptroller General decisions currently prohibits the FAA from making urgently needed improvements to some 400 air navigation facilities (such as air traffic control towers and flight service stations) that the agency leases for free or for low or nominal rent (e.g., $1.00 per year). In most cases, lessors providing such free or reduced-cost facilities have no incentive to make improvements themselves, and it is not practical for the FAA to consider relocating the facility.
This section would allow the FAA to make improvements to an air navigation facility where those improvements primarily benefit the government, are essential for mission accomplishment, and the government's interest in the improvements is protected. Improvements to leased facilities will, under this section, continue to meet three of the four prongs of the Comptroller General's test. Only the requirement regarding proportionality of improvement cost to lease cost will be removed, thereby enabling the agency to make these safety-enhancing and economically beneficial improvements.
Sec. 212. In 1995, under section 347 of Pub. L. 104-50, Congress gave the FAA the authority to reform its personnel system in order to address the unique demands of the agency's workforce. While it exempted the FAA from most of the personnel requirements under title 5, United States Code, certain enumerated provisions remain applicable to the FAA, including 5 U.S.C. 2302(b), relating to whistleblower protections. That subsection prohibits supervisors from taking retaliatory personnel actions against employees who disclose agency legal violations, gross mismanagement or waste of funds, abuses of authority, or substantial and specific dangers to public health or safety. While the whistleblower protections of title 5 were maintained for FAA employees, the law did not specifically reference provisions for the enforcement of those protections. DOT's Inspector General recommended that these procedures be available to FAA employees. The amendment proposed by subsection (a) would provide FAA whistleblowers with the authority to seek redress from the U.S. Office of Special Counsel and the Merit Systems Protection Board (MSPB). Also, subsection (b) would allow for enforcement of Hatch Act restrictions regarding political activities by FAA employees.
Section 348 of Public Law 104-50 authorized FAA to establish its own Acquisition Management System, notwithstanding provisions of federal acquisition law. In addition, Congress directed that FAA not apply several specific acquisition statutes, including the Office of Federal Procurement Policy (OFPP) Act, at 41 U.S.C. 401, et seq. to its newly created Acquisition Management System.
Section 423 of the OFPP Act, commonly known as the "Procurement Integrity Act," imposes restrictions on the conduct of business and information disclosed between Federal employees and government contractors. Specifically, it subjects federal employees and contractors to certain criminal, civil, and administrative penalties if contractor bid and proposal information or source selection information is exchanged for anything of value or results in an unfair competitive advantage in the award of a federal contract. FAA employees do remain subject to the generic criminal conflict of interest provisions under 18 U.S.C. 208, which impose criminal penalties (up to 5 years imprisonment and/or a fine) on employees who participate personally and substantially in government decisions, including the solicitation and awards of contracts, that could affect their own personal financial interest. It also encompasses negotiations for prospective employment. The Procurement Integrity Act provisions in 41 U.S.C. 423, which incorporate the generic conflict of interest provisions embodied in 18 U.S.C. 208, are much more extensive for both employees and contractors.
Under the Procurement Integrity provisions, employees are subject to civil penalties of up to $50,000 per violation, plus twice the amount of compensation received or offered for the prohibited conduct. The contractor or bidder is subject to the same provision and, if the contractor or bidder is an organization, the civil penalty rises to $500,000 per violation. Further, the Procurement Integrity statute provides for the cancellation or recission of the particular contract(s). Finally, the Procurement Integrity statute provides grounds for the initiation of an adverse administrative personnel action against the employee.
In order to maintain full confidence in the objectivity and integrity of the new FAA acquisition system, subsection (c) would apply 41 U.S.C. 423 to the FAA, with certain adjustments to account for the FAA's new Personnel Management System, making the full panoply of tools available to prevent, deter, and punish conduct by employees and contractors violating the standards of public trust.
Finally, the FAA has adopted "Merit Systems Principles" for its new personnel system that are fully consistent with those governing other federal employment systems at 5 U.S.C. 2301. Subsection (d) would make adoption of these principles a matter of law.
Sec. 213. This section makes several changes affecting FAA's personnel management system. Subsection (a) states that the 60-day period for congressional review of a proposed change to the FAA's personnel management system shall not include any time during which Congress has adjourned for the year. Subsection (b) permits an employee to contest an adverse personnel action either through contractual grievance procedures if the employee is a member of a bargaining unit or through the FAA's internal grievance procedure known as "Guaranteed Fair Treatment.'' Subsection (c) gives the employee the further option of appealing to the Merit Systems Protection Board (MSPB). This latter authority is prospective and is intended to cover only actions taken on or after the effective date of this bill, and applies to the kinds of personnel actions that were appealable to MSPB before the FAA's new personnel management system was implemented on April 1, 1996. The amendments also clarify that an employee must select one of the 3 avenues of appeal as their exclusive means of contesting the disputed personnel action.
Sec. 214. The President's Budget provides that the FAA will be funded in FY 2000 completely by user charges (a combination of excise taxes and fees). This section would authorize the FAA to establish fees for fiscal year 2000 for air traffic services provided by the agency. Such fees would reflect the full cost of providing these services and be based on cost accounting principles as well as internationally accepted economic principles. Fees would be imposed on commercial aviation only. These fees are necessary as the FAA reorganizes its air traffic services as a performance based organization, fully funded by user charges. Beginning in FY 2001, these fees would be replaced by the schedule of fees for the ATS PBO as provided for in Title V.
Sec. 215. This amendment would make clear that ignorance of the law is no excuse for otherwise criminal conduct. That is particularly true, the Supreme Court has held, where the statutory prohibition, as here, relates to the regulation of dangerous substances. E.g., United States v. International Minerals & Chem. Corp. 402 U.S. 558 (1971); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 (1952) (involving the knowing violation of a regulation governing the transportation by motor vehicle of hazardous material). Compare Liparota v. United States, 471 U.S. 419, 433 (1985). Unfortunately, the federal courts have interpreted 49 U.S.C. 46312, contrary to this maxim, as requiring the government to prove beyond a reasonable doubt that the defendant knew that bringing hazardous material aboard an aircraft was illegal. E.g. United States v. Moskowitz 883 F.2d 1142 (2nd Cir. 1989) (involving butane canisters used to cook cocaine). To be sure the list of hazardous materials in the Code of Federal Regulations applicable to the statute is very long and contains some substances many individuals would not know are hazardous. However, the government would not be relieved by this amendment of the requirement that it show that the defendant knew the particular substance or item he or she delivered or caused to be transported by an aircraft was hazardous. But if an individual knew that a certain substance is dangerous, the statute should not burden prosecutors with the further requirement that they establish knowledge or awareness by the defendant that a regulation prohibited the transportation in air commerce of that substance. This amendment would thus bring this statute into conformity with other similar laws, and in doing so would enhance air safety.
SEC. 216. This provision would authorize a grant of $2 million annually to a public/private consortium that includes a sponsor of a primary airport to test and evaluate innovative aviation security systems and related technology.
SEC. 217. This section permits the Secretary to fund the Essential Air Service program from any Departmental account (not just FAA accounts) in the event that user fees are insufficient in any fiscal year to support the program, now authorized at $50 million per year.
SEC. 218. This section would give the FAA explicit authority to fine (up to $10,000) unruly passengers who interfere with the operation or safety of a civil aircraft.
SEC. 219. Select cargo airlines, all passenger airlines that carry cargo, and air freight forwarders are required to have a cargo security program and are subject to initial and recurrent inspections by the FAA. Given the number of carriers and freight forwarders subject to regulation (e.g., there are currently 2600 air freight forwarders with 10,000 branch offices) and the limited number of FAA inspection personnel available, the FAA seeks to augment its regulatory oversight through the use of private contractors. This is consistent with recommendations from the National Security Council and the FAA's Aviation Security Advisory Committee. This section would authorize the Administrator, under requirements and supervision the Administrator establishes, to delegate authority to conduct initial and recurrent cargo security assessments of regulated entities, to third party contractors as cargo security examiners. These contractors could charge the regulated entities for these inspections. This delegation of authority is similar that for the issuance of certificates (for airman, airworthiness, etc.) under 49 U.S.C. 44702(d). The FAA would exercise this authority under close supervision and in a way that preserves the agency's ultimate responsibility for the security of the nation's air system.
SEC. 220. Section 46306(b)(7) of title 49, United States Code, makes it a felony for any person to knowingly and willfully serve as a pilot without an airman's certificate. However, section 46306(a) limits the reach of this prohibition to cases involving "aircraft not used to provide air transportation." Under statutory definitions and cases interpreting these definitions, commercial and charter flights are aircraft that provide air transportation and are thus excluded from the reach of section 46306(b)(7). As a result, while it is a felony to fly a private plane without a valid license, flying a commercial or charter flight without a valid license is not an offense. Because of this gap in the law, federal prosecutors were unable to bring charges, for example, against a man who illegally flew a business charter from Nashville to Fort Smith and had had his pilot's certificate revoked by the FAA earlier because of his involvement in a drug smuggling operation. The current gap is unjustified and the proposed amendment would ensure that all cases of knowing and willful piloting without a valid license would be criminally punishable.
Title III-Airport Improvement Program Amendments
SEC. 301. This section repeals the provision that imposes a $300 million cap on the discretionary fund and therefore increases the amount of discretionary funds available to the FAA for grants for major airport capacity projects. Discretionary grants can often be targeted to the most promising projects available to enhance the capacity of the overall system. It retains provision for a minimum discretionary level to ensure adequate funding at lower levels of AIP, and to ensure the continued existence of the noise and MAP set-asides.
SEC. 302. The Federal Aviation Reauthorization Act of 1996 (Pub.L. No. 104-264, section 148, 110 Stat. 3213, October 9, 1996) authorized a demonstration program to permit the FAA to make grants of AIP funds for up to 10 projects to test and evaluate three innovative financing mechanisms. The three techniques were: payment of interest, credit enhancements (such as municipal bond insurance), and flexible non-federal matching requirements. This successful demonstration program expired on September 30, 1998. This section would codify the program as part of title 49, remove the program's expiration date, require that the innovative financing project result in new airport development, limit participation to small hub and smaller airports, and expand the number of projects eligible for the program to 5 each fiscal year, for a total of up to 25 projects over the term of the authorization. In addition to the three financing techniques previously authorized to be tested, this section would permit the FAA to test additional innovative financing techniques, including a revolving loan fund, which is closely modeled on a loan fund available for highway construction (see 23 U.S.C. 129), for interested participants in the State block grant program. Approval of loan projects would be limited to one per year, but not more than 3 over the term of the authorization.
SEC. 303. This section would permit a more flexible Federal/State/local matching share ratio for projects under the State block grant program (i.e., those at non-primary airports) by modifying the current fixed Federal-State match requirement to one that allows not more than a 90 percent Federal share of the cost of a project funded by a State with a grant from the FAA under the program. Block grant States administer all grant and project related procedures within their respective jurisdictions, and so are considered fully capable of making appropriate decisions about the Federal share of project costs. Funding for projects at non-primary airports outside of the State block grant program would remain at a 90/10 match share. Beginning in FY2002, under guidelines to be developed by the Secretary, this flexibility for matching shares would be extended to grants for all airports (up to 75 percent for large and medium primary airports, and up to 90 percent for any other airport).
New paragraph (6) changes the Federal/local matching share requirement for projects that upgrade qualified airports to accommodate turbine-powered aircraft, such as business jets, from 90/10 to 50/50, but only permits expenditures if the federal share of costs does not exceed the value of aviation benefits to the public. The lower match is to ensure that local users and communities contribute to such initiatives. Consistent with this change, the bill also contains a proposal (see Section 312) that would amend the statement of policy for the AIP program to highlight the importance of upgrading these airports to improve access to the national air transportation system.
SEC. 304. This section increases from 31 percent to 35 percent the apportionment from the discretionary fund for grants for airport noise compatibility planning and for carrying out airport noise compatibility programs, with a proviso that a minimum of $200 million be set aside each fiscal year. The Administration wants to ensure that there is an adequate level of funding for noise mitigation. This provision will provide a modest but necessary increase in the overall funding for noise compatibility planning and projects under the Part 150 program at the nation's most seriously noise impacted airports. In addition, this section increases the flexibility of the noise set-aside by allowing these funds to be used to mitigate the noise impacts of airport development projects themselves, as committed to in FAA environmental documents for major capacity enhancing projects.
SEC. 305. This section increases the amounts apportioned to States from 18.5 percent to 20 percent of the AIP grant funds available in each fiscal year. This change will provide greater financial support for States so that their smaller and rural airports are better able to meet their infrastructure investment needs. In addition, this increase in apportioned funding comes with the proviso that projects to survey and upgrade, where necessary, smaller airports to obtain greater benefits from implementation of the satellite navigation system, be financed with funds apportioned to the States.
SEC. 306. This provision will authorize the use for discretionary grants of those funds apportioned to, but not used by, airport sponsors and States in a fiscal year, regardless of whether the amount of contract authority available in a subsequent fiscal year is equal to or greater than the amount of unused apportionments. In the event that the amount of unused contract authority in a future fiscal year is greater than the amount of unused apportionments, the use of those amounts for discretionary grants would be administered in accordance with current procedures; if less, however, sponsors may have to wait for enactment of new AIP contract authority to receive the full amounts of their unused apportionments. This provision will help to ensure that the full amount of AIP authorized in a fiscal year, as limited by an appropriation Act, can be used for airport planning, development and noise mitigation projects. This provision also will clarify that FAA's longstanding practice of converting unused apportionments for use in discretionary grants at the end of an authorization period is consistent with the intent of Congress.
SEC. 307. The FAA has completed two years of a three-year pavement maintenance pilot program designed to fund up to 10 projects to preserve and extend the useful life of runways, taxiways, and aprons at airports funded by State apportioned AIP funds. This pilot was successful in demonstrating the cost effectiveness of these projects, as confirmed by a recent GAO report (GAO/98-226 RCED, Airfield Pavement: Keeping Nation's Runways in Good Condition Could Require Substantially Higher Spending (July, 1998)). This section would repeal the authority for the now completed pilot project program and amend the definition of "airport development" to include these types of pavement projects, making them eligible for AIP funds. This is the same policy as in other transportation modes.
SEC. 308. This provision will ensure that small primary airports where passenger boardings are reduced by an interruption in air service such as an airline job action, natural disaster, or other event unrelated to the demand for air travel during one year, do not lose their primary apportionments for the next year as a result of that service disruption.
SEC. 309. This section would better target Federal AIP investments by limiting AIP eligibility at large and medium hub airports to only projects that meet Federal mandates, further noise mitigation and compatibility programs, provide new airfield capacity or for airport planning. This change would not apply to the use of PFC revenue so that these airports could leverage PFCs to meet local development goals.
SEC. 310. This provision would require that the Administrator provide notice and opportunity to comment before approving the release of obligated airport property that could adversely affect the safety, capacity or efficiency of the airport.
SEC. 311. This section strengthens the intermodal development of the transportation system, through requiring that airport system planning involving a large or medium-hub primary airport must specifically take into consideration relevant surface transportation and land use plans. The section also establishes a new grant assurance to require large and medium-hub primary airports to coordinate certain airport layout and master plan changes with MPOs, and further requires the assessment of transportation and land use plans as a condition of project grant approval.
SEC. 312. This section would amend the statement of policy for the AIP program to emphasize the desire to upgrade qualified airports to accommodate turbine-powered aircraft, such as business jets. The effect of this change will highlight the importance of upgrading these airports to improve access to the national air transportation system. Consistent with this change, the bill also contains a proposal (see Section 303) to change the Federal/local matching share requirement for these types of projects from 90/10 to 50/50 (but limiting expenditures to projects where the aviation benefits to the public exceed the federal share costs) to ensure that local users and communities contribute to the initiative.
SEC. 313. Subsection (a) clarifies the term of the set-aide for the military airports program (MAP). There appears to be a conflict in two provisions (sections 124(d) and 123(b)(6)) of the 1996 FAA Reauthorization Act, Pub. L. 104-264, noted in a footnote in the Compilation of Selected Aviation Laws published by the House Transportation and Infrastructure Committee (H.Doc. 105-14, at p. 301). This would clarify that the authorization period for the MAP is the same as that applicable to the AIP. Therefore, this subsection would repeal section 124(d) of the 1996 Act and revise the first sentence of 49 U.S.C. 47117(e)(1)(B), to make the term of the MAP program coincide with the AIP program.
Subsection (b) would increase the maximum number of airports designated under the MAP program from 12 to 15, and would permit the Secretary to redesignate a previously designated MAP location for a period of less than 5 years.
SEC. 314. This section would permit the Secretary to approve a letter of intent for an airport, other than a large or medium hub airport, without demonstrating that the project would enhance system-wide airport capacity significantly.
SEC. 315. TECHNICAL AMENDMENTS. This section makes numerous technical changes to the AIP statutory language in part to correct inadvertent errors due to amendments and recodification changes to title 49 and to improve the implementation of the AIP program.
Subsection (a) amends the apportionment provision (section 47114) to correct a reference to a now repealed provision of title 49 (ß47117(e)(1)(C)). The original intent was to allow the use of state-apportioned funds at certain "grandfathered" airports in Alaska and at all public airports in Puerto Rico. The revised language is more flexible in that it not only restores the intent of the statute with respect to Puerto Rico, but also allows the use of the funds for any public airport in Alaska. It also amends the section to allow state apportioned funds for Hawaii to be used on primary airports. Normally such funds are restricted to use at non-primary airports. However, unlike most states, Hawaii does not have a broad range of airport types and activity levels. The amendment will allow more efficient use of funds allocated to Hawaii.
Subsection (b) amends section 47114(e) to restore the meaning of the provision prior to recodification of title 49 in 1994. Section 47114(e) provides a method of apportioning funds for airports in Alaska which historically has been interpreted as authorizing a supplemental apportionment, not an alternative apportionment as the recodification characterized it. Currently the supplemental amounts to approximately $10.6 million annually and is available to nonprimary airports and certain grandfathered airports. This section would further amend 47114(e) to provide greater flexibility by allowing the funds to be used at any public airport in Alaska.
Subsection (c) repeals a 110 percent limitation on the supplemental apportionment to any single commercial airport in Alaska. The intent of the provision has been unclear and its implementation has caused confusion. In the interest of providing greater financial flexibility to Alaska in the use of the supplemental apportionment, the limitation is removed, thereby allowing more funds to be directed to airports with costly but important projects.
Subsection (d) amends the definition of the discretionary fund to remove the portion of the fund known as the "small hub fund" and add that amount to the small airport fund. This change will put the small hub fund in a more appropriate place because its funds are derived from the same source (AIP funds not apportioned to large and medium hub airports because they collect PFCs) and have similar restrictions on their use. Also, removing the small hub fund from the calculation for the maximum and minimum levels for the discretionary fund is a fairer approach, given the limited use of the small hub fund.
Subsection (e) would permit more flexibility in the use of funds apportioned to states with respect to integrated airport system planning. Currently these funds apportioned under section 47114(d) to States may not be used at primary airports. This limits the use of these funds for system planning that may involve a primary airport. Planning by its nature often involves multiple airports in the same geographic region. This amendment would enable States to use their apportioned funds for integrated planning, which may include a primary airport as well as other airports. This provision would also specify that geodetic surveys and projects to upgrade non-primary airports to derive greater benefits from satellite-based air navigation systems be financed with funds apportioned to States.
Subsection (f) adds a new paragraph to section 47108 that provides that a multiyear development project at a primary airport that is funded through a multiyear agreement would retain eligibility for funding to complete the project even if the airport loses its status as a primary airport. Such a project would be eligible for discretionary funds, subject to funding availability. Projects in this circumstance are relatively low-cost and few in number; however, this provision will help avoid potential for default or abandonment of projects resulting from changes in airport status beyond the control of the sponsor.
Subsection (g). The FAA plans in the near future to revise its administrative guidance for the designation of reliever airports. This will tighten the eligibility criteria. There are 22 privately-owned airports that now qualify for federal aid as reliever airports. Subsection (g) would grandfather these airports into the program so that they may remain eligible for federal aid and continue to play an effective role in the national airport system.
Subsection (h) removes projects at reliever airports from eligibility for Letters of Intent (LOI) under section 47110(e). With this change, only projects at primary airports will be eligible for LOIs. FAA's financial ability to issue LOIs is very limited and narrowing the categories of eligible projects will target this program to the greatest need. This change is consistent with GAO findings, which questioned the use of LOIs at reliever airports.
Subsection (i) codifies a current regulation (14 CFR 158.11) that allows public airport operators to waive PFC collections for certain classes of air carriers, such as air taxis, provided that each class constitutes no more than 1 percent of the total number of passengers enplaned annually at the airport at which the PFC is imposed. This limited waiver has been successful and is intended to provide financial relief for air carriers enplaning very small numbers of passengers and administrative relief to airport operators, while avoiding significant impact on total PFC collections at an airport. This section also provides the Secretary the authority to expand the current regulation so that primary airports can take advantage of PFCs but not adversely affect air service to isolated communities, like many in Alaska, with few or no alternatives to air travel.
Subsection (j) amends the provisions of Subchapter II--Surplus Property for Public Airports--of chapter 471 to restore the original intent of the provisions prior to the recodification of title 49. Subchapter II is the restatement of section 13(g) of the Surplus Property Act of 1944. This section restores the use of the terms "convey" or "conveyance" instead of "gift." Over time, the former terms were understood to include the concept that there are terms and conditions as a quid pro quo for the cost-free transfer of property. Even though this subchapter sets out the terms of transfer of property, the agency has found that, in practice, the use of the term "gift" has led to some confusion by recipients of property about the commitments required.
Title IV--Commercial Space Transportation Amendments
SEC. 401. This section amends the authorization for the activities of the Office of the Associate Administrator for Commercial Space Transportation for fiscal year 2000 (enacted by Pub. L. 105-303 (October 28, 1998)) to that proposed by the President's FY 2000 Budget and also provides an authorization for such sums as necessary for fiscal years 2001 through 2004.
SEC. 402. Section 70111 directs the Secretary of Transportation to encourage the acquisition by the private sector or State governments of surplus Federal launch or reentry property or Federal launch or reentry services that are not needed for public use, with the price for such property or services to be set by the agency making the property or service available. The price is determined in consultation with DOT and on the basis of the direct cost of the property or service. Section 402 would repeal a requirement for DOT to set uniform guidelines for all Federal agencies in implementing this provision. DOT did not seek this authority and believes that it is unnecessary. Consistent application of the requirements of section 70111 can be achieved through consultation with other agencies in the normal course of business.
SEC. 403. The FAA's current payment of excess claims authority for commercial space launches is scheduled to expire for any license applications received after December 31, 1999. Section 70113 provides a process by which a launch operator licensed by FAA may seek federal funds for damages assessed against the launch operators in excess of the insurance required by the law to cover the maximum probable loss determined by the FAA in the licensing process. Such payment is limited to the amount above the insurance and is not to exceed $1,500,000,000, adjusted for inflation since January 1, 1989. The mechanism calls for the Secretary of Transportation to seek an appropriation from Congress to cover this excess loss. The U.S. commercial space industry considers this provision essential to its survival and its competitiveness in the world market. Section 404 would change the current expiration date from December 31, 1999 to December 31, 2005, a period of six years, which will allow government and industry time to study and evaluate the impacts of emerging technologies and new ways of doing business.
Title V--Performance Based Organization for Air Traffic Services
In December 1997, the National Civil Aviation Review Commission (NCARC) recommended a new organizational structure for managing the Federal Aviation Administration (FAA) air traffic control system. Emphasis was placed on creating an organization that would "provide a more effective and comprehensive approach to overseeing and managing the complex and rapidly changing needs of the air traffic system" (NCARC Report page IV-39). Information about the Commission's work and the text of the NCARC report (Avoiding Aviation Gridlock and Reducing the Accident Rate--A Consensus for Change) is available on the World Wide Web (http://www.faa.gov/ncarc/ index.htm). This bill implements the NCARC recommendations for change and tracks the Commission's proposed legislation in major respects.
SEC. 501. The Commission recommended creation of a "Performance Based Organization" or PBO within the FAA to bring business-like practices to provision of air traffic services. Section 501 places the PBO within FAA's existing authority by adding the authority to title 49, United States Code (Transportation), as a new "Chapter 446--Performance Based Organization For Air Traffic Services."
New section 44602 of chapter 446 requires that the FAA Administrator establish, by January 1, 2000, a performance-based, user-fee-funded PBO organization (called the "ATS"), within the Federal Aviation Administration, to manage and operate the air traffic control system. This section also establishes that policies and operations of the ATS shall be implemented and directed by the Chief Operating Officer. The section provides that the ATS shall be subject to the authority of the DOT Inspector General in the same manner as the FAA as a whole is today.
New section 44603 establishes an "Air Traffic Services Subcommittee" of the Management Advisory Council (MAC) to provide comments, recommended modifications, and dissenting views to the Administrator on ATS performance. In addition to broad oversight, the ATS Subcommittee would consult in the establishment and modification of user-fee schedules. The MAC members who are designees of the Secretary of Transportation and the Secretary of Defense would be Subcommittee members.
New section 44604 specifies the role of the Chief Operating Officer (COO) appointed by the Secretary of Transportation to operate the ATS on a daily basis. Because the ATS is intended to be a results oriented organization, the COO will enter into an annual performance agreement with the Administrator that outlines measurable organization and individual goals in key operational areas. To ensure accountability, the COO will also prepare and submit to the Administrator an annual performance report. It is anticipated that the COO position would be filled without regard to political affiliation. These requirements adhere closely to the model for a PBO set out in the Administration's National Performance Review template for such an organization. More information about this template is available on the World Wide Web (http://www.npr.gov/initiati/ 21cent/index.html).
A similar performance management system will be established for the employees of the ATS. Group and organizational standards will be developed. Periodic reviews will take place to determine whether performance standards are being met and award and incentive programs may be established (Section 44606).
The ATS, continuing the existing joint relationship with the Department of Defense, will exercise day-to-day operational supervision and control over the movement of aircraft in U.S. airspace, except within that airspace delegated to DoD. Generally, day-to-day activities will include implementing policy decisions; purchasing, operating, maintaining, and replenishing the air traffic control system infrastructure; conducting research and development activities; hiring all personnel; implementing a cost accounting system and other management systems that promote results-oriented performance; developing fee schedules for COO approval; and collecting fees (Section 44605). The relationship of the ATS to the core FAA and the Administrator is specified in further detail in section 502 of the bill.
In conducting its activities, the ATS will have the same personnel management and acquisition authorities as the Administrator of the Federal Aviation Administration (Sections 44607-44608). The new section 44607 also makes explicit that establishment of the ATS would not affect the implementation of existing labor agreements covering FAA employees. The ATS may also contract for management services such as personnel management, financial accounting, and legal counsel. The ATS may purchase these services from the Federal Aviation Administration if it chooses (Section 44609). This flexibility to "purchase" services from within the FAA or from outside contractors will go far to ensure the efficiency of services provided to the ATS and therefore by the ATS. The requirements of the Anti-Deficiency Act and budget scoring rules would continue to apply to all procurement activities of the ATS.
SEC. 502. This section outlines the critical relationship of the ATS and the FAA Administrator. Significantly and consistent with current law and practice, the FAA Administrator retains final authority over air-traffic actions and decisions of the ATS that affect aviation safety and security, federal policies with government-wide impact (such as the National Environmental Policy Act), national security, and international interests. The section strikes the necessary balance between the Administrator's authority and the ATS's authority to manage and control the operation and financing of the air traffic control system.
As proposed by NCARC, the section requires the Administrator to enter into a written agreement clarifying the lines of authority and responsibility between the Administrator and the ATS. However, to avoid any ambiguity about the Administrator's ultimate authority, the agreement has been specified as a written delegation issued by the Administrator alone. This issuance would delegate the Administrator's current authorities and responsibilities to operate the air traffic control system to the ATS. If additional authorities, or amendments to authorities are necessary in the future, the written delegation would give the Administrator the flexibility to make those changes quickly and efficiently.
SEC. 503. This section requires that, five years after the enactment of this title, the Secretary of Transportation provide to the President and Congress a report on the operation, effectiveness, and costs of the provisions of this title, and any recommendations for further legislation. This is an element of the NPR template for Performance-Based Organizations.
SEC. 504. Another one of the major NCARC Commission recommendations focused on the need to shift FAA air traffic services to a user-fee-based funding mechanism that would prompt new efficiencies in ATS service and quickly provide the foundation for needed growth in capital infrastructure. The recommendation states:
FAA's revenue stream must become more cost based. The Commission recommends that the FAA adopt a cost-based revenue stream to support its air traffic system activities including capital investments. (NCARC Report page I-4)
Section 504 of the bill implements this recommendation in a manner that effectively shifts funding of the new ATS to a new receipt subaccount within the Airport and Airway Trust Fund that holds both the new user fees on commercial aviation that will primarily finance the PBO, along with necessary excise taxes (already available in the Airport and Airway Trust Fund) to make up annual shortfalls. The PBO would be free, under this arrangement, to propose and rapidly adopt advanced new technology.
A new section 45331 would be added to title 49 to authorize and direct the imposition, as of May 15, 2001, of user fees for commercial aircraft services. Civilian and military aircraft of the United States government will not be subject to user fees under this section. Consistent with the NCARC recommendations, these fees would be based, to the extent feasible and equitable, on the actual cost of providing each specific category of service to the user, based on the FAA's new cost accounting system and accounting principles. In total, the fees would be computed in any event to be sufficient to pay the projected total expenditures of the ATS (reflecting depreciation, research, engineering, and operations and maintenance) each fiscal year, less the amount of excise taxes that are provided in lieu of fees on non-commercial users. The fees would also, to the extent feasible, differentiate between the provision of landing and takeoffs and en route services. In addition, the fees would not unreasonably discriminate among categories of users, and would be consistent with international obligations. The Secretary of Transportation would be assigned to oversee and ensure that the fees set by the COO are consistent with these statutory criteria.
As recommended by the NCARC, the initial fee schedule would be submitted to Congress for a 60-day review period, and could be disapproved by the enactment of a Joint Resolution that is signed by the President (see proposed new section 45334). Also, the proposed fee schedule would be published in the Federal Register, and the COO would conduct a public proceeding that allows the expression of views on the proposed fees. Consultation with the ATS Subcommittee on each fee schedule would also be mandatory. Provision would be made in proposed section 45333 for collection of the fees.
The proposed new authority embodies an approach to funding that accords the new ATS advantageous budget treatment, because the new entity would be funded primarily by user fees, and expenditures would be permitted to increase along with increased receipts from the user fees. The increases in the revenues could be immediately applied to infrastructure growth and system expansion. This reliance on user fees would permit the needed growth and freedom to make budgeting choices that are at the heart of the NCARC recommendations.
Under the proposal, the fee-for-service charges on commercial aircraft would replace a portion of current excise taxes on this group. This topic is addressed by section 506 of this bill.
SEC. 505. A new section 48301 in title 49 would provide for the deposit of transitional and user fees, along with other receipts of the PBO in the Airport and Airway Trust Fund (in a new receipt subaccount). A new section 48302 would provide for the appropriation of fee revenues, general aviation fuel taxes, and other tax receipts from the Trust Fund to fund the PBO annually.
SEC. 506. This section makes the statutory change that will adjust, as appropriate, existing aviation excise taxes imposed under section 4261 and 4271 of the Internal Revenue Code of 1986 on commercial passengers and air cargo, beginning as early as the year 2000.
Title VI-Family Assistance
This title amends the 1996 Aviation Disaster Family Assistance Act (49 U.S.C. 1136 and 41113) and its extension to foreign air carriers in 1997 (49 U.S.C. 41313), which require the National Transportation Safety Board (NTSB) and individual airlines to take actions to address the needs of families of passengers involved in aircraft accidents in which there is a major loss of life.
A Task Force was created at the time of enactment to address some of the more difficult issues not completely covered by the Act in 1996. These included questions of family privacy, out-of-state mental health workers, and ways to improve the notification of families. On October 29, 1997, the task force issued its report. Many of its recommendations do not require legislative changes. However, this title addresses those that do, as well as related issues that have arisen as a result of experience under the new law. These include lengthening the moratorium on lawyer solicitation, permitting out-of-state Red Cross mental health workers to assist at the accident scene, upgrading airline disaster assistance plans to improve employee training, requiring airlines, upon request, to inform the family as to whether their loved one had a reservation on the flight, and limiting the liability of airlines who provide this information. The amendments would also improve the enforcement mechanisms to assure adherence to the law, and provide coverage for non-revenue passengers other than crew aboard the flight.
Title III also includes the text of H.R. 2005, which passed the House of Representatives on July 28, 1997. This provision makes clear that the Death on the High Seas Act does not apply to aviation accidents if the aircraft crashes into international waters, a recommendation of the Family Assistance Task Force strongly supported by the Administration.
Title VII--Passenger Service Availability; Mail Rates
This title addresses many subject areas in the airline industry today that affect the competitive forces among domestic air carriers and the continuing ability of these forces to ensure that air travelers obtain quality service at reasonable fare levels. Rather than propose a broad re-regulatory regime that the past 20 years of deregulation has shown to be unwise, the provisions in this title would make narrowly targeted changes to law to foster competitive forces in specific areas. For example, service offerings to rural sectors of the nation have become more expensive and less convenient over time, and the 105th Congress passed (but did not finally enact) several statutory initiatives that could aid the competitive environment. This title would also proposes several improvement in the laws that all Americans rely on for protection against unreasonable discrimination in air travel.
Section 701 (subsections (a) through (c)) would amend 49 U.S.C. 41310 to extend to foreign air carriers the existing prohibition of 49 U.S.C. 41705 against discrimination against persons with physical or mental impairments by domestic air carriers, subject to the restriction of 49 U.S.C. 40105(b).
Subsections (d) and (e) extend to all air transportation, whether foreign or domestic, the existing prohibition of 49 U.S.C. 41310 against discrimination in foreign air transportation against a person. No federal law specifically proscribes such activity in domestic air travel, and these amendments would therefore provide specific language precluding unreasonable discrimination by air carriers in interstate air transportation. Current section 41310 derives from the since-repealed language of section 404(b) of the Federal Aviation Act of 1958 (Public Law 85-726, 72 Stat. 731), as amended. That provision was primarily aimed at both domestic and international rate and fare discrimination at the time the Civil Aeronautics Board regulated rates and fares. When deregulation ended this function domestically, however, Congress chose to continue the authority to investigate cases of unfair charges imposed on U.S. carriers by foreign governments or unfair practices undertaken by foreign entities which might adversely affect U.S. carriers. This is the general intent of the provisions in section 41310, other than subsection (a).
Section 41310(a), in contrast, was intended to address discrimination by an air carrier or foreign air carrier, which was not aimed at other air carriers. In the case of a person, it protects against forms of discrimination such as age, ethnicity, and race, but (like the rest of section 41310) it no longer extends to domestic air travel (as it originally did in section 404(b)). The proposed amendment specifically establishes this requirement in Chapter 417, which applies to domestic air transportation. It should be noted that the courts have found that section 404(b) covered matters such as discrimination on the basis of race by air carriers. (Fitzgerald v. Pan American World Airways, 229 F.2d 499 (2d Cir. 1956)).
Subsection (f) permits the Department of Justice to enforce, along with the Department of Transportation, 49 U.S.C. 41310(a)(2), 41310(a)(3), 41702(b), and 41705. The proposed amendment would give the Justice Department specific authority to go into court to protect the civil rights of disabled individuals with respect to incidents involving U.S. air carriers and foreign air carriers. Similarly, the proposed amendment would allow the Justice Department to pursue cases involving alleged unreasonable discrimination-- including discrimination on the basis of race, color, national origin, religion or sex--by U.S. or foreign air carriers against passengers. In so doing, the Justice Department would be able to bring appropriate cases on behalf of individuals and seek damages for them and injunctive relief. This jurisdiction, which would be implemented in consultation with the Department of Transportation, is consistent with the special role the Justice Department has in other areas of civil rights law enforcement. In addition, the Justice Department has access to resources and expertise that in some instances are not available to the Department of Transportation to carry out these important functions.
Subsection (g) provides for a maximum civil penalty of $10,000 for violations of 49 U.S.C. 41310(a)(2), 41310(a)(3), 41702(b) or 41705. This increased civil penalty is warranted because the current penalty per violation ($1000) has little deterrent effect on many air carriers, especially considering that most civil rights cases involve a minimal number of violations. A $10,000 penalty per violation would provide a better incentive for compliance.
Subsection (h) amends Chapter 461 of title 49, United States Code, adding a new section 46111 to permit enforcement of 49 U.S.C. 41310(a)(2), 41310(a)(3), 41702(b) or 41705 through civil actions by interested parties. The Justice Department, upon approval by the court, would be permitted to intervene in cases of general public importance.
The new section 46111 would also permit a federal district court, in its discretion, to allow the prevailing party, other than the United States, attorney's fees as part of the prevailing party's costs in actions or proceedings to enforce those sections. As is already in place for other civil rights statutes (see, e.g., 42 U.S.C. 1988(b)), providing for the recovery of attorney's fees in civil rights cases brought by passengers against airlines would encourage private enforcement actions in response to alleged civil rights violations. Federal agencies are not able to pursue each case involving alleged discrimination, and some cases do not involve a sufficient public interest to warrant Federal prosecution. Without the ability to recover attorney fees, few private cases would be brought.
Section 702 would adopt major aspects of Senate provisions in the last Congress to strengthen and systematize the Department's tools to work with rural communities to build increased air service. The proposed market-oriented tools would enable the Department to work more constructively with carriers and communities to foster new service and would assist and complement our current essential air service work.
This section would establish the basis for a 5-year pilot program to target limited annual grant funds (a maximum of $500,000) to a community or consortium of communities that propose new service having a major benefit for the travelling public. The assistance would be coordinated with existing essential air service contracts to maximize benefits. A contribution by the community sponsor would be required, to focus on the proposals with the most committed backing. An aspect of the non-monetary assistance included in the program would the selective use of new authority (see discussion of section 704) to direct joint fare and interlining agreements where it would significantly improve access to an essential airport facility. Other non-monetary assistance could involve coordination with the Federal Aviation Administration on air traffic service issues impacting service. The program would be funded, starting in 2001, with a 5-year total over the life of the prototype of $25-30 million.
Section 703 proposes a 1998 Senate provision waiving the local match for enhanced essential air service in the case of two particular communities.
Section 704 adopts another provision of the Senate bill in the 105th Congress, which would provide the Department with limited authority to direct that an air carrier enter into a joint fare or interline agreement with another, typically feeder, carrier at a hub airport facility that is essential to access from the feeder to the national network. It is expected that the authority would only be exercised to the extent that the major air carrier enters into agreements with other feeder carriers in comparable circumstances.
Section 705 would adopt a provision from last year's Senate bill that adopts two new policy objectives for the Department in carrying out its aviation economic responsibilities: (1) ensuring that consumers in all regions of the United States, including those in small communities and rural and remote areas, have access to affordable, regularly scheduled air service; and (2) ensuring that slots provided to air carriers to provide small community air service are withdrawn if the carrier fails to provide the service.
Section 706 would clarify the current duty of a codesharing air carrier to ensure the quality of service of its codeshare partners (49 U.S.C. 41739 (Air carrier obligations)) must extend to cooperating in preserving a significant level of service to essential air service communities in the event that a strike or other comparable event interrupts the major carrier's service. This proposal would make explicit in statute what the Department successfully argued in the case of the recent Northwest Airlines strike--that the major carrier is obligated under section 41739 to support continued operation of its EAS affiliates to the extent is not prevented from so doing by the disruption.
Section 707 would lay the groundwork for the U.S. Postal Service (USPS) to negotiate contracts setting the price paid for carriage of U.S. mail in international air transportation, as USPS now does for domestic mail other than intra-Alaska mail. Currently, the Department determines the rates that the USPS pays to U.S. carriers for the carriage of mail between the United States and foreign countries. This authority is a holdover responsibility from the former Civil Aeronautics Board (CAB), which was responsible for establishing domestic, international and intra-Alaska mail rates. The 20 years of successful domestic mail operations, coupled with major changes in world aviation, justify termination of the Department's unneeded and costly rate-setting responsibilities in the international arena.
Section 708 legislatively terminates the Federal Aviation Administration's (FAA) High Density Rule (Subparts K and S of Part 93 of title 14, Code of Federal Regulations) at O'Hare, LaGuardia, and JFK airports on September 30, 2004, after a 5-year period to permit an orderly elimination for the affected parties. The Rule would remain effective for Reagan Washington National Airport, which is subject to a statutory limitation on air carrier operations (see 49 U.S.C. 49104(a)(5)(C) and 49111(e)), although the same increases in efficiency could be expected at Reagan Washington National as at the other three airports. It is the case that the 1986 transfer of National and Dulles Airports from FAA to local control was a carefully negotiated package of changes that included the restriction in growth of operations there. Accordingly, any such change at Reagan Washington National should be initiated by Congress.
To begin phase-out of the Rule, section 708 would also legislatively exclude the quietest of the new regional jet category of aircraft from the Rule at airports other than National as of September 30, 2000. Specifically, the exclusion would be limited to any two-engine jet aircraft with a design capacity of 70 or fewer passenger seats, manufactured after January 1, 1992, that has an effective perceived noise level on takeoff not exceeding 83 decibels when measured according to the procedures specified in Part 36 of Title 14, Code of Federal Regulations. This new technology is capable of making cost-effective service for smaller communities at greater distances from the High Density Airports than has been the case. Exclusion of this aircraft type would introduce flexibility into service at these airports in advance of the complete phase out.
The section also permits the Secretary to undertake any other appropriate actions to effectuate an orderly transition.
Title VIII--Transfer of Aeronautical Charting Activity
Section 801 (Transfer of Functions, Powers, and Duties) transfers to the Department of Transportation and vests in the Secretary of Transportation the functions, powers, and duties of the Secretary of Commerce and other officers of the Department of Commerce that relate to the Office of Aeronautical Charting and Cartography and that are set forth in 49 U.S.C. 304. The transfer would occur at the beginning of the fiscal year, on October 1, 1999.
Section 802, Transfer of Office, Personnel, and Funds, contains two subsections.
Section 802(a) transfers (effective October 1, 1999) the Office of Aeronautical Charting and Cartography of the National Oceanic and Atmospheric Administration, Department of Commerce, to the Department of Transportation.
Section 802(b) transfers (effective October 1, 1999) to the Secretary of Transportation for appropriate allocation, the personnel employed in connection with, and the assets, liabilities, contracts, property, equipment, facilities, records, and unexpended balance of appropriations, and other funds available in connection with the functions and offices, transferred by this Act, including all Senior Executive Service positions. Any unexpended funds transferred under this subsection would be used only for the purposes for which the funds were originally authorized and appropriated, except that funds may be used for expenses associated with the transfer authorized by this Act.
Section 803 (Amendment to Title 49, United States Code) contains two subsections.
Section 803(a) amends 49 U.S.C. Chapter 3, "General Duties and Powers", to replace an obsolete provision dating back to the inception of the Department with a new section 304, "Aeronautical charts and related products and services", which contains seven subsections.
Subsection 304(a), "General", invests in the Secretary the functions, powers, and duties of the Secretary of Commerce and other officers of the Department of Commerce that relate to the Office of Aeronautical Charting and Cartography to provide charts and related products and services for the safe and efficient navigation of air commerce under the following existing authorities: 33 U.S.C. 883a et seq., 44 U.S.C 1307, and Public Law 103-317, Title II.
Subsection 304(b), "Authority to Conduct Surveys", based on 33 U.S.C. 883a, authorizes the Secretary to conduct aerial and field surveys for aeronautical charts; conduct other airborne and field surveys when in the best interest of the United States Government; acquire, own, operate, maintain and staff aircraft in support of the above surveys. These authorities permit the Secretary to provide charts and related products and services and to provide basic data for engineering and scientific purposes and for other commercial and industrial needs.
Subsection 304(c), "Additional Authority", based on 33 U.S.C. 883b, authorizes the Secretary to conduct the following activities so that full public benefit occurs from the dissemination of data resulting from activities under this section and of related data from other sources : developing, processing, disseminating and publishing of digital and analog data, information, compilations, and reports; compiling, printing, and disseminating of aeronautical charts and related products and services of the United States, its Territories and possessions; compiling, printing and disseminating of aeronautical charts and related products and services covering international airspace as are required primarily by United States civil aviation; and compiling, printing and disseminating of non-aeronautical navigational, transportation or public-safety-related products and services when in the best interests of the United States.
Subsection 304(d), Contract, Cooperative Agreements, Grants, and Other Agreements, includes two paragraphs. The following analysis describes each of the paragraphs.
Subsection 304(d)(1), "Contract, Cooperative Agreements, Grants, and Other Agreements", based on 33 U.S.C. 883f, authorizes the Secretary to contract with qualified organizations for the performance of any part of the authorized functions of the Office of Aeronautical Charting and Cartography when the Secretary deems such procedure to be in the public interest and will not compromise public safety.
Subsection 304(d)(2), based on 33 U.S.C. 883e, authorizes the Secretary to enter into cooperative agreements, grants, reimbursable agreements, memoranda of understanding and other agreements, with any State, subdivision thereof, any federal agency, or any public or private organization, or individual, to carry out the purposes of the section.
Subsection 304(e), Special Services and Products, includes three paragraphs. The following analysis describes each of the paragraphs.
Subsection 304(e)(1) authorizes the Secretary, upon the request of any State, subdivision thereof, any federal agency, or any public or private organization, or individual, to conduct special services, including making special studies, or developing special publications or products on matters relating to navigation, transportation or public safety.
Subsection 304(e)(2) authorizes the Secretary to assess a fee for any special service provided under the above subsection. The fee shall not be more than the actual or estimated full cost of the service. Subsection 304(f)(2), also, authorizes the Secretary to reduce or waive the fees for research organizations, educational organizations, or non-profit organizations, when the Secretary determines that reduction or waiver of fees is in the best interest of the United States Government by furthering public safety.
Subsection 304(f),"Sale and Dissemination of Aeronautical Products; Use of Fees", based on 44 U.S.C. 1307, includes five paragraphs. The following analysis describes each of the paragraphs.
Subsection 304(f)(1) authorizes the Secretary to sell the aeronautical products created or maintained under the authority of this section at prices established annually by the Secretary consistent with the following subparagraphs. Subparagraph (A) provides that, subject to subparagraph (B), the prices of aeronautical products sold to the public shall be not more than necessary to recover all costs attributable to data base management and processing; compilation; printing or other types of reproduction; and dissemination of the products. Subparagraph (B) states that the Secretary shall adjust the prices of aeronautical products and services sold to the public as necessary to avoid any adverse impact on aviation safety attributable to the prices. Subparagraph (C) states that prices established under this paragraph may not include costs attributable to the acquisition of aeronautical data.
Subsection 304(f)(2) directs the Secretary to publish annually the prices at which aeronautical products are sold to the public.
Subsection 304(f)(3) provides that the Secretary may distribute aeronautical products and provide aeronautical services without charge to each foreign government or international organization with which the Secretary or a federal agency has an agreement for exchange of these products or services without cost; at prices the Secretary establishes, to the departments and officers of the United States requiring them for official use; at reduced or no charge where, in the judgment of the Secretary, furnishing the aeronautical product or service to a recipient is a reasonable exchange for voluntary contribution of information by the recipient to the activities under this section.
Subsection 304(f)(4) provides that the fees provided for in this subsection are for the purpose of reimbursing the Department of Transportation for the costs of creating, printing, and disseminating aeronautical products under this section. Subsection 304(f)(5) further provides that the collection of fees authorized by this section does not alter or expand any duty or liability of the United States under existing law for the performance of functions for which fees are collected, nor does the collection of fees constitute an express or implied undertaking by the United States to perform any activity in a certain matter.
Section 804, "Savings Provision", includes six subsections. They are needed to permit a problem-free transfer of activities. The following analysis describes each of the subsections.
Section 804(a) provides for the continued effectiveness of all orders, determinations, rules, regulations, permits, contracts, certificates, licenses, financial assistance and privileges that have been issued, granted, or allowed to become effective by the President, the Secretary of Commerce, the National Oceanic and Atmospheric Administration Administrator, any federal agency, or a court of competent jurisdiction, in the performance of functions which are transferred by this Act. All directives that are in effect on the date of transfer shall continue in effect until modified, terminated, superseded, set aside, or revoked in accordance with law.
Section 804(b) provides for the continued effectiveness of all pending actions stating that the provisions of the Act shall not affect any proceedings pending on the date of transfer before the Department of Commerce or the NOAA Administrator. Section 804(b) further provides that such proceedings, as they relate to functions transferred, shall be continued in accordance with transition regulations promulgated by the Secretary of Transportation. Section 804(b), also, authorizes the Secretary of Commerce, the NOAA Administrator, and the Secretary of Transportation to issue transition regulations providing for the transfer of proceedings and the transfer of functions, personnel, and property under this Act.
Section 804(c) provides for the continued effectiveness of judicial actions stating that no cause of action by or against the Department of Commerce or NOAA with respect to functions transferred by this Act shall abate by virtue of the enactment of this Act. Section 804(c) further provides that causes of action and actions concerning a function or office transferred by this Act may be asserted by or against the United States or an official of the Secretary of Transportation as may be appropriate.
Subsection 804(d) provides that if, on the date of transfer, the Department of Commerce or NOAA, or any officer thereof, is a party to an action, and under this Act, any function relating to such action is transferred to the Secretary of Transportation, then such action shall be continued with the Secretary of Transportation substituted or added as a party.
Subsection 804(e) provides for continued jurisdiction over actions transferred stating that the orders and actions of the Secretary of Transportation in the exercise of functions transferred by this Act shall be subject to judicial review as if such orders and actions had been by the Department of Commerce or NOAA, or any officer thereof, in the exercise of such functions immediately before their transfer.
Subsection 804(f) provides that the Secretary of Transportation shall assume all liabilities and obligations associated with the functions transferred under this Act on the date of transfer, including leases, permits, licenses, contracts, agreements, claims, tariffs, accounts receivable, accounts payable, financial assistance and litigation relating to such obligations, regardless whether judgment has been entered, damages awarded, or appeal taken.
Section 805, National Ocean Survey, makes necessary changes to an existing statute, 33 U.S.C. 883a et seq., to reflect the transfer of the Office of Aeronautical Charting and Cartography from the Department of Commerce to the Department of Transportation under this Act. Section 805 amends section 883a by striking paragraph (4) "field surveys for aeronautical charts" and renumbering the remaining paragraphs. Section 805 also amends section 883(b)(4) and section 883(b)(6) of title 33 by deleting "of the United States, its Territories and possessions" in both sections, thereby permitting the Secretary of Commerce to continue to compile, print, and distribute nautical charts and related navigational publications covering international waters. Section 805 further amends 33 U.S.C. 883b by striking paragraphs (3) and (5), which involve the compilation and distribution of aeronautical charts and which would now become a part of proposed section 304 of Title 49 under this Act. This amendment is not intended to abrogate the National Oceanic and Atmospheric Administration's authority to compile, process and produce related navigational products or information. Finally, section 805 amends 33 U.S.C. 883e by inserting ", or any other agreements," after "cooperative agreements" thereby broadening the types of agreements that the Secretary of Commerce is authorized to enter into to perform surveys or related surveying and mapping activities.
Section 806, National Oceanic and Atmospheric Administration: Nautical and Aeronautical Products, Sale and Distribution, makes the necessary amendments to section 1307 of Title 44 to reflect the transfer of the Office of Aeronautical Charting and Cartography to the Department of Transportation by deleting "and aeronautical" and "or aeronautical" wherever it appears in the section. Section 806 further amends section 1307(a)(2)(B) by deleting "aviation and " after "impact on" to accurately reflect the transfer of functions under this Act. Finally, Section 806 amends Section 1307(d) by deleting "aeronautical and" after "distributing" to reflect the transfer of functions under this Act.
Title IX--Whistleblower Protection
Private sector employees who make disclosures concerning health and safety matters pertaining to the workplace are, as a general matter, protected against retaliatory action by over a dozen Federal laws. These employees have become known as "whistleblowers.'' There are currently over a dozen Federal laws protecting whistleblowers, including laws protecting nuclear plant workers, miners, truckers, and farm laborers when acting as whistleblowers. For example, section 2305 of the Surface Transportation Assistance Act of 1978, 49 U.S.C. 2305, prohibits retaliation for filing a complaint or instituting any proceeding relating to violations of motor vehicle safety rules or refusing to operate an unsafe vehicle. However, there are no laws specifically designed to protect airline employee whistleblowers.
Title IX of the bill would provide protection for airline employee whistleblowers by prohibiting the discharge or other discrimination against an employee who provides information to the federal government about air safety or files or participates in a proceeding relating to air safety.
Title X--National Park Overflights
SEC. 1001. This section provides that this title may be cited as the "National Parks Air Tour Management Act of 1999."
SEC. 1002. This section enumerates Congressional findings that the FAA has sole authority to control airspace over the United States, that the National Park Service has the responsibility of conserving the national parks, that the protection of tribal lands is essential to the protection of Indian tribes, and that the National Parks Overflights Working Group's recommendations are reflected in this act.
SEC. 1003. This section encompasses the recommendations made by the National Parks Overflights working Group, a joint federal advisory committee consisting of environmentalists, general aviation and air tour industry representatives, Native American representatives, the FAA and the NPS. The recommendations constitute a process-oriented piece of legislation, intended to allow the affected agencies and the public to decide whether commercial air tour activity is appropriate over a particular national park unit, and if so, under what conditions commercial air tours may take place.
Under this legislation, the FAA and the NPS would work cooperatively to develop an effective regulatory framework that would determine an air tour management plan for a national park. The plan is intended to preserve the essential responsibilities of each agency. Specifically, the FAA retains sole responsibility of control of American airspace and ensure safety in the skies, while the NPS retains its responsibility and authority to protect park resources and values, as well as visitor experiences. Together, the FAA and the NPS would determine the appropriate level, number, and frequency of aircraft overflights in national parks.
Operators who wish to conduct commercial air tours over a national park unit must apply to the FAA for operations specifications. The NPS makes a determination of potential impacts to the park and visitor opportunities. The FAA and the NPS jointly conduct the process and each agency must sign the required environmental and decision documents. The final decision to prohibit, authorize or authorize with conditions any air tour over a park is translated into regulatory specifications issued by the FAA.
SEC. 1004. This section provides that one year after the date of enactment of the act, the FAA Administrator and the Director of the NPS establish an advisory group to provide continuing advice and counsel with respect to commercial air tour operations over and near national parks. The section outlines the membership and leadership of the advisory group.
TitleXI--Title 49 Technical Corrections
SEC.1101. The original enactment that created the Department of Transportation in 1966 (P.L. 89-670; October 15, 1966) contained a provision (paragraph 6(c)(1)) stating the Federal Aviation Administrator's duty to carry out aviation safety functions in certain sections and certain titles of the Federal Aviation Act of 1958 (FAA Act). By referring to titles of the FAA Act in some cases rather than specific sections, paragraph 6(c)(1) had the effect of being a "container"--that is, whenever a new section was added to titles VI, VII, IX, and XII of the FAA Act, the new section was automatically included in the listing of the Administrator's aviation safety duties.
In 1983, paragraph 6(c)(1) of the 1966 DOT Act was replaced by 49 U.S.C. 106(g) as part of a recodification project. The new section 106(g) restated the original language closely and referred to the same list of titles of the FAA Act (and thus retained the same "containers"). In 1994, the recodification project was completed by enactment of P.L. 103-272 (July 5, 1994). As part of the project, the FAA Act was repealed in its entirety and its provisions were enacted into positive law as a portion of title 49. This meant that the 106(g) references to titles of the FAA Act no longer functioned, and the 1994 restatement took the conservative approach of restating 106(g) by listing every section found in the listed titles on the date of enactment. This ensured precision in the restated text of 49 U.S.C. 106(g).
This approach to restatement of section 106(g) without reliance on "containers" has produced an unintended anomaly. In its aviation safety enactments subsequent to July 1994, Congress has added new safety provisions to Part A of Subtitle VII of title 49 (which restates the FAA Act of 1958). As just noted, merely including a new provision in a particular title of the FAA Act (for example, title VI) would, in the past, have had the effect of also including it within the coverage of section 106(g). In contrast, inclusion in title VI's counterpart (chapter 447) no longer does this automatically because of the changed drafting approach in 106(g). An example of a provision recently added to chapter 447 (but not included in section 106(g)'s coverage, as would have likely been the case in the past) is 49 U.S.C. 44724 (Manipulation of flight controls).
The Department believes that Congress intended inclusion of section 44724 and several other recently enacted safety provisions in the coverage of section 106(g). The Department also believes that future drafting of new safety provisions for inclusion in selected chapters of title 49 would be simplified by returning to the "container" approach to section 106(g). Accordingly, this section of the bill contains a proposed restatement of section 106(g) to accomplish this result. Subsection (b) ensures that the change cannot be construed to change substantive law in any respect.
SEC.1102. Section 46306 of title 49 establishes criminal penalties for aircraft registration and related violations. As restated in 1994 (P.L. 103-272; July 5, 1994), section 46306 covers only violations involving aircraft not providing air transportation (i.e., general aviation aircraft) and not commercial aircraft. It is not clear that omission of commercial aircraft was intended by Congress. This potential problem originated in the amendments made to the Federal Aviation Act of 1958 (FAA Act) by the Anti-Drug Abuse Act of 1988 (Subtitle E of P.L. 100-690, Nov. 18, 1988). Section 7214 of the 1988 Act stated with regard to the Subtitle E anti-drug abuse provisions applicable to aircraft:
"This subtitle (including any amendments made by this subtitle) shall only apply to aircraft which are not used to provide air transportation (as defined in section 101 of the Federal Aviation Act of 1958)."
A question arises because one of the 1988 amendments "overwrote" existing criminal penalties for aircraft registration violations that applied to both commercial and general aviation aircraft. Specifically, section 7209 of the 1988 Act replaced existing criminal penalty language at sections 902(b) and 902(q) of the FAA Act that applied to all aircraft types. With regard to this change, the language of section 7214 could be read to mean that the amendment only affected general aviation aircraft and that commercial aircraft penalties were unchanged, although no longer expressed on the face of the statute. The recodification took the other approach, that section 7214 should be read to mean that Congress intended to end criminal penalties for commercial aircraft certification violations, because the violation language was replaced by an amendment clearly applicable only to non-commercial aircraft.
The Department believes that Congress did not intend to disturb the existing criminal penalties for commercial aircraft that existed in 1988 at the time of the amendments. The 1988 enactment was directed at stemming drug abuse and the drug trafficking that occurred involving non-commercial aircraft. It does appear likely that Congress intended the new, stiffer 1988 penalties to apply only to general aviation aircraft, which were viewed as the primary source of drug-trafficking violations. Congress did not discuss the subject of criminal penalties for commercial aircraft, and it is unlikely Congress intended to repeal these penalties without discussion. Drug smuggling violations have occurred involving commercial aircraft, and it is important to have criminal penalty authority remain available for these cases (as well as non-drug violations). We conclude that Congress intended to leave the existing, lower penalty levels for commercial aircraft violations undisturbed, and that that the amendatory language that "overwrote" existing law had an unintended effect. Accordingly, this section would revise section 46306 to incorporate the commercial aircraft penalties for certification violations that appeared at sections 902(b) and (q) of the FAA Act prior to the 1988 amendments. Specifically--
(1) Subsection 46306(a) (governing applicability of the section) would be broadened so that parts of the section apply to all registered aircraft.
(2) As a result, the three "pre-1988" violations that applied to all registered aircraft (found at 46306(b)(1)-(3)) would once again explicitly apply to all registered aircraft.
(3) The stiffer 1988 criminal penalties (found at revised 46306(c)(2)(A) and (c)(3)) would be limited to cases involving an aircraft not used to provide air transportation.
(4) The 1988 penalties that had been "overwritten" would be restored for commercial aircraft violations (at revised 46306(c)(2)(B)).
(5) The section heading would be revised to reflect its broader applicability.
Subsection (b) of this section would ensure that the changes cannot be construed to change substantive law in any respect.
SEC. 1103. Section 44909 of title 49 specifies that an air carrier shall provide a "passenger manifest" (a list of passengers aboard a flight) for its international flights, and that the manifest "shall" include certain information. However, the original enactment (now repealed) provided that the manifest "should" include certain information, making explicit the flexibility afforded the Secretary of Transportation in specifying the information included in the manifest requirement (see section 203 of Pub. L. 101-604, November 16, 1990). In order to make this flexibility clearer, and in recognition that the 1994 recodification expressly stated that it made no substantive change in law, the proposed technical correction would replace the word "shall" with the original word "should" in 49 U.S.C. 44909(a)(2).
SEC. 1104. The section would delete reference to sections 46302 (False information) and 46303 (Carrying a weapon) from the listing of sections in paragraph (1)(A) of the general civil penalty provision. These sections provide for a maximum civil penalty of $10,000 for each violation, as did their predecessor sections, 901(c) and (d) of the FAA Act, before the 1994 recodification project. Section 46301(a)(1)(A) sets a maximum penalty of $1,000 for a variety of violations. Deleting references to these sections would correct a recodification error. This amendment also corrects an error in the 1994 restatement of aviation laws involving the inadvertent omission of chapter 451 (Alcohol and Controlled Substances Testing) from the list of statutory requirements in 49 U.S.C. 46301(a) subject to a civil penalty in the case of their violation. Chapter 451 simply restates former section 614 of the Federal Aviation Act of 1958 (FAA Act), which was listed in the 1994 list of statutory requirements subject to civil penalties found at former section 901(a)(A) of the FAA Act. Because the 1994 restatement expressly provided that no substantive change in law was made by its enactment, the proposed addition of "chapter 451" to 49 U.S.C. 46301 does not constitute a substantive change in law, but merely makes explicit the inclusion of chapter 451 in the listing.
SEC. 1105. Section 47122(b) (relating to conducting investigations and public hearings) derives from section 313(c) of the Federal Aviation Act of 1958 (formerly codified at 49 app. USC 1354(c)).
Section 313(c), as originally enacted, provided that powers of the Administrator of the Federal Aviation Administration to take evidence, issue subpoenas, take depositions, and compel testimony were the same as those then vested in the Civil Aeronautics Board under section 1004 of that Act, when the Administrator conducts public hearings or investigations under that Act or the Federal Airport Act. The section was amended to include proceedings under later airport Acts, most recently, proceedings under the Airport and Airway Improvement Act of 1982. Section 524(a)(2) of the Airport and Airway Improvement Act of 1982, title V of Pub. L. No. 97-248, Sept. 3, 1982, 96 stat. 324, 696 (AAIA).
Section 6(c)(1) of the former Department of Transportation Act, now codified at section 106(g)(1)(A), transferred certain duties and powers of the Secretary related to aviation safety, to the Administrator of the Federal Aviation Administration. Among these powers were those under section 313 of the Federal Aviation Act, as amended. It follows that proceedings under the AAIA relating aviation safety are among those transferred to the Administrator by section 6(c)(1). The 1982 recodification of title 49 does not reflect this. This amendment corrects the oversight.
Title XIIPrevention of fraud involving aircraft or spacecraft parts
SEC. 1201. This section set forth the short title of the Act: "The Aircraft Safety Act of 1999." This title reflects the primary purpose of the bill, which is to safeguard U.S. aircraft and spacecraft, and passengers and crewmembers from the dangers posed by installation of nonconforming, defective, or counterfeit frames, assemblies, components, appliances, engines, propellers, materials, parts or spare parts into or onto civil, public, and military aircraft. Thus, even though the act is cast as an amendment to the criminal law, it is a public safety measure.
The problems associated with nonconforming, defective, and counterfeit aircraft parts have been explored and discussed in a number of fora for several years. Yet no single Federal law targets the problem in a systemic, organized manner. Prosecutors currently use a variety of statutes to bring offenders to justice. These statutes include mail fraud, wire fraud, false statements and conspiracy, among others. While these prosecutorial tools work well enough in many situations, none of them focus directly on the dangers posed by nonconforming, defective, and counterfeit aircraft parts.
SEC. 1202. This section remedies the problems noted above by amending chapter two of title 18, United States Code. Chapter two deals with "Aircraft and Motor Vehicles," and currently contains provisions dealing with the destruction of aircraft or aircraft facilities, and violence at international airports but says nothing about fraudulent trafficking in nonconfo9rming, defective, or counterfeit aircraft parts.
Subsection (a)(1) builds on the existing framework of chapter two by adding some relevant definitions to section 31. The first provision defines "aviation quality,' when used with respect to aircraft or aircraft parts, to mean aircraft or parts that have been manufactured, constructed, produced, repaired, overhauled, rebuilt, reconditioned, or restored in conformity with applicable standards, specified by law, regulation, or contract. The term is used in section 38(b) of the act, which sets forth the maximum penalties for violation of the offenses prescribed by section 38(a). If the misrepresentation or fraud that leads to a conviction under section 38(a) concerns the "aviation quality" of an aircraft part, then section 38(b)(2) enhances the maximum punishment by 10 years imprisonment and doubles the potential fine.
The second provision under this subsection defines "aircraft." This definition essentially repeats the definition of aircraft already provided in section 40102 of title 49.
"Part" is defined to mean virtually all aircraft components and equipment.
"Space vehicle" is defined to mean any man-made device, manned or unmanned, designed for operation beyond the earth's atmosphere and would include rockets, missiles, satellites, and the like.
Subsection (b) add a totally new section 38 to chapter two. Subsection 38(a)(1)-(3) sets out three new offenses designed to outlaw the fraudulent exportation, importation, sale, trade, installation, or introduction of nonconforming, defective, or counterfeit aircraft or aircraft parts into interstate or foreign commerce. This is accomplished by making it a crime to falsify or conceal any material fact, to make any fraudulent representation , or to use any materially false documentation or electronic communication concerning any aircraft or spacecraft part, or to attempt to do so.
The three provisions overlap to some extent but each focuses upon a different aspect of the problem to provide investigations and prosecutors with necessary flexibility. All are specific intent crimes, that is, all require the accused to act with knowledge, or reason to know, of his fraudulent activity.
As noted earlier, subsection (b) prescribes the maximum penalties that attach to the offenses created in subsection (a). A three-pronged approach is taken in order to both demonstrate the gravity of the offenses and provide prosecutors and judges alike with flexibility in punishing the conduct at issue. A basic 15-year imprisonment and $250,000 fine maximum punishment is set for all offenses created by the new section; however, the maximum punishment may be escalated if the prosecution can prove additional aggravating circumstances. If the fraud that is the subject of a conviction concerns the aviation quality of the part at issue and the part is actually installed in an aircraft or space vehicle, then the maximum punishment increases to 25 years imprisonment and a $500,000 fine. If, however, the prosecution is able to show that the part at issue was the probable cause of a malfunction or failure leading to an emergency landing or mishap that results in the death or injury of any person, then the maximum punishment is increased to life imprisonment and a $1 million fine. Finally, if a person other than an individual is convicted, the maximum fine is increased to $25 million.
Subsection (c) authorizes the Attorney General to seek appropriate civil remedies, such as injunctions, to prevent and restrain violations of the act. Part of the difficulty in stopping the flow of nonconforming, defective, and counterfeit parts into interstate or foreign commerce is the ease with which unscrupulous individuals and firms enter and reenter the business. In addition to providing a way to maintain the status quo and to keep suspected defective or counterfeit parts out of the mainstream of commerce during an investigation, this provision adds important post-conviction enforcement tools to prosecutors. The ability to bring such actions may be especially telling in dealing with repeat offenders since a court may, in addition to imposing traditional criminal penalties, order individuals to divest themselves of interests in businesses used to perpetuate related offenses or to refrain from entering the same type of business endeavor in the future. Courts may also direct the disposal of stockpiles and inventories of parts not shown to be genuine or conforming to specifications to prevent their subsection resale or entry into commerce. It is envisioned that the prosecution would seek such relief only when necessary to ensure aviation safety.
Subsection (d) provides for criminal forfeiture and is designed to deprive an offender of both the proceeds and implements of the offenses specified in the act, and to protect the public from defective aircraft parts. These forfeiture provisions are meant to supplement, not replace, the authorized punishments. The criminal forfeiture section provided for an in personam action against the offender, rather than one against the property itself, and preserves the rights of innocent third parties. The subsection incorporates through reference existing law to provide for procedures to be used in the detention, seizure, forfeiture, and ultimate disposition of property forfeiture under the act. Under these procedures, the Attorney General is authorized to grant petitions for mitigation or remission of forfeiture and for the restoration of forfeited property to the victims of an offense. The Attorney General may also take any other necessary or proper action to protect the rights of third parties in the disposition of justice. In practice, victims are afforded priority in the disposition of forfeited property since it is the policy of the Department of Justice to provide restitution to victims of criminal acts whenever permitted to do so by Law. Procedures for victims to obtain restitution are found at section 9 of title 28, Code of Federal Regulations. Forfeitures are also subject to a requirement of proportionality under the eighth amendment to the Constitution, that is, the value of the property forfeited must not be excessively disproportionate to the crime in question.
Subsection (e) discusses how the act is to be construed with other laws relating to the subject of fraudulent importation, sale, trade, installation, or induction of aircraft or aircraft parts. The section makes clear that other remedies, whether civil, or criminal, are not preempted by the act and may continue to be enforced. In particular, the act is not intended to alter the jurisdiction of the U.S. Customs Service, which is generally responsible for enforcing the laws governing importation of goods into the United States.
Subsection (f) deals with the territorial scope of the act. To rebut the general presumption against the extraterritorial effect of U.S. Criminal Laws, this section provides that the act will apply to certain conduct occurring beyond U.S. Borders. To ensure some nexus exists between the assertion of such jurisdiction and the offense, extraterritoriality is provided for only if the offender is a United States person (citizen, permanent resident alien, or entity incorporated under U.S. Laws) or an Act in furtherance of the offense is committed in the United States and the offender is subsequently found in the United States. It is expected that federal investigators and prosecutors will focus their investigative and prosecutorial resources only on those cases in which there has been a substantial harm to the interests of the United States.
SEC. 1203. Subsection (a) adds the new offenses created by the act to the list of predicate offenses for which oral, wire, and electronic communications may be authorized.
Subsection (b) adds the new offenses by the Act to the list of offenses for which administrative subpoenas may be issued for investigative purposes under section 3486 of title 18. Pursuant to section 3486, the Attorney General or designee may issue written subpoenas requiring the production of records relevant to an authorized law enforcement inquiry. Testimony concerning the production and authentication of such records may also be compelled. Section 3486 sets forth guidance concerning the service and enforcement of such subpoenas. It also provides civil immunity to any person who, in good faith, complies with a subpoena issued pursuant to the section.
Subsection (c) adds the new offenses created by the act to the list of predicate offenses for which indictments and charges of "Racketeering Activity" may be returned under chapter 96 of title18.
TitleXIII--Internal Revenue Code Amendments
SEC. 1301. This section makes the necessary amendments to the Airport and Airway Trust Fund (26 U.S.C. 9502) to authorize the continued use of the Airport and Airway Trust Fund through Fiscal Year 2004.
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