U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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99–010

" SENATE ! 107TH CONGRESS

2d Session 

REPORT

2002

107–162

Calendar No. 421

AVIATION DELAY PREVENTION ACT

REPORT

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND 

TRANSPORTATION

ON

S. 633

JUNE 13, 2002.—Ordered to be printed 


G:\graphics\congress.#13
(II)

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ERNEST F. HOLLINGS, South Carolina, Chairman 

DANIEL K. INOUYE, Hawaii 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

JOHN B. BREAUX, Louisiana 

BYRON L. DORGAN, North Dakota 

RON WYDEN, Oregon 

MAX CLELAND, Georgia 

BARBARA BOXER, California 

JOHN EDWARDS, North Carolina 

JEAN CARNAHAN, Missouri 

BILL NELSON, Florida 

JOHN MCCAIN, Arizona 

TED STEVENS, Alaska 

CONRAD BURNS, Montana 

TRENT LOTT, Mississippi 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA SNOWE, Maine 

SAM BROWNBACK, Kansas 

GORDON SMITH, Oregon 

PETER G. FITZGERALD, Illinois 

JOHN ENSIGN, Nevada 

GEORGE ALLEN, Virginia 

KEVIN D. KAYES, Staff Director 

MOSES BOYD, Chief Counsel 

GREGG ELIAS, General Counsel 

JEANNE BUMPUS, Republican Staff Director and General Counsel 

ANN BEGEMAN, Republican Deputy Staff Director

Calendar No. 421

107TH CONGRESS REPORT " SENATE ! 2d Session 107–162

AVIATION DELAY PREVENTION ACT 

JUNE 13, 2002.—Ordered to be printed 

Mr. HOLLINGS, from the Committee on Commerce, Science, and 

Transportation, submitted the following 

R E P O R T 

[To accompany S. 633]

The Committee on Commerce, Science, and Transportation, to 

which was referred the bill (S. 633) to provide for the review and 

management of airport congestion, and for other purposes, having 

considered the same, reports favorably thereon with an amendment 

in the nature of a substitute and recommends that the bill (as 

amended) do pass. 

PURPOSE OF THE BILL

The purpose of this bill, as reported, is to expedite the environmental processes related to the review and management of airport 

capacity projects, reduce airport congestion, and for other purposes. 

BACKGROUND AND NEEDS

Prior to September 11, 2001, major delays and congestion had become an increasing problem at our nation’s airports. Capacity of 

the aviation system had not been keeping up with demand, and 

traveler frustration was at an all-time high. While the events of 

September 11 caused an immediate and significant drop-off in air 

travel, consumer confidence is beginning to return, and air travel 

is beginning to rebound. Current estimates indicate that air travel 

will return to pre-September 11 levels, and we will again be faced 

with a capacity crisis. 

The Federal Aviation Administration (FAA) has been working 

with air carriers to mitigate delays at airports. While new technologies and schedule changes provided some relief prior to September 11, it has become clear that expanding the system’s capacity will be necessary to adaquately address this problem. FAA estiVerDate May 23 2002 21:18 Jun 14, 2002 Jkt 099010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6601 E:\HR\OC\SR162.XXX pfrm12 PsN: SR162
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mates that by 2013 there will be one billion commercial air passengers in the U.S., up by more than 300 million from 2000. Expanding the system must be a national priority or our economy, our 

communities, and the millions of Americans travelling will suffer. 

Prior to September 11, according to the Department of Transportation (DOT), one in four flights would arrive late. Between 1995– 2000, departure and arrival delays increased 33 percent, and in the 

year 2000 alone, DOT reported an almost 19 percent increase in 

departure and arrival delays. Historically, weather accounts for 70 

percent of the delays that occur at our nation’s airports. 

Today, with the exception of four airports that are subject to 

flight limitations, airlines are free to schedule flights to meet demand. Each carrier develops its own schedules. Carriers have recognized that at times scheduling can exceed capacity, but an individual carrier will not unilaterally cut its flights because another 

carrier could then add flights. A carrier has little incentive to reduce flights if the result is the loss of business to a competitor. 

However, some carriers have made an effort to address capacity 

issues at larger airports. For example, United Airlines announced 

that it would cut flights and replace others with larger aircraft at 

five of its hubs. Delta revamped its entire schedule at Hartsfield 

Atlanta International Airport, spreading its arrivals and departures over 12 time periods (banks) instead of 10. American has also 

changed its flight patterns at Chicago O’Hare in an effort to reduce 

delays. 

In April 2001, DOT/FAA issued capacity benchmarks for each of 

the largest airports (31 facilities) in the U.S. These benchmarks, 

which focused on arrivals and departures, raise the issue of ‘‘demand management’’—leaving two choices: incurring additional 

delays or mandating fewer flights. 

The U.S. cannot continue with an air transportation system that 

does not meet the needs of the public. Efforts to reduce delays involve many issues including: increasing capacity at airports; increasing air traffic control (ATC) capacity and efficiency (e.g., the 

use of satellites to more precisely track aircraft); changing carrier 

scheduling practices; and ensuring that the FAA has a chief operating officer (COO) to run the ATC system. 

Over the last several years, it has been recognized that given 

growing demand, capacity had to be increased. For example, in 

1997, the congressionally-created National Civil Aviation Review 

Commission (NCARC) found that gridlock in the skies is a certainty in the near future unless the ATC system is modernized and 

infrastructure is expanded. In January 1997, the White House 

Commission on Aviation Security and Safety, chaired by Vice President Gore, recommended that modernization of the ATC system be 

expedited from 2015 to 2005. Likewise, in 1995 and 1996, the Senate Committee on Commerce, Science, and Transportation (Committee) recognized that the FAA needed more funding to meet the 

growing demand on the system. 

To address concerns that the need to expand our airports was not 

given a high enough priority, Congress passed in 1999 the Wendell 

H. Ford Aviation Investment and Reform Act (AIR–21; P.L. 106–

181). This legislation increased funding for airport construction 

from $1.9 billion (FY 2000) to $3.2–3.4 billion (FY 2001–03), and 

increased passenger facility charges from $3.00 to $4.50 to further 

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enable airports to fund airport expanison projects. AIR–21 also increased funding for ATC equipment. While AIR–21 provides critical 

funding to build new runways and buy new ATC equipment, additional expedited processes are needed to meet the ever growing demand for capacity. 

In the next 10 years, several runways will be built, but more 

must be done to promote viable options to expand capacity. There 

is simply not enough runway space in the country to land all of the 

current and projected flights. Expanding airport capacity, while 

complex, essentially comes down to building more runways and 

using improved technology. At some airports, expanding runways 

can dramatically increase capacity—in some cases by 50 percent. 

In the last 25 years, only one new major airport, Denver Inter- national Airport, has been built, and at a cost of more than $6 billion. Denver is already in the process of adding a new 16,000 foot 

runway. A smaller airport opened in Arkansas, and three military 

bases slated for closing have been converted to civilian use under 

an FAA program created by Congress. In a report to Congress last 

May, the FAA noted that out of the top 31 airports, 18 are involved 

in the various stages of studying, planning, or constructing new 

runways. The cost of a new runway can range from $50 million 

(Boston’s Logan is planning a short runway for commuter flights) to $850 million (St. Louis) and can take 10 years or longer to complete. 

Airports begin the runway planning process when an existing 

runway reaches 60 percent of its capacity. The FAA traffic growth 

forecasts assume about a 3–4 percent growth in traffic traditionally. Ideally, at the end of the approximately 10-year completion 

process, the existing runway is at capacity and a new one is ready 

to be opened. However, delays in the process also occur. A May 

2001 report by the FAA highlighted a number of areas where 

changes could be made to facilitate the completion of the environmental review process and mitigation of local concerns. 

Runway construction is a complicated task, involving state and 

local officials, state environmental laws and procedures, Federal 

environmental processes or reviews, issuance of state and Federal 

permits (e.g., permits for storm water systems or for actions that 

affect wetlands), and legal challenges. The Environmental Impact 

Statement (EIS) process can involve up to 40 different statutes and 

many Federal agencies. It also must include an analysis of how the 

runway will impact the FAA’s air traffic control operations and 

ability to coordinate flight paths and traffic that will result from 

the new runway (e.g., some proposed runway configurations may 

not increase capacity because of aircraft traffic flow patterns). The 

time needed to build a runway includes consideration of a number 

of factors, including the following: 

• Local determination on whether or not to build a runway, and the location of the runway. 

• The formal National Environmental Policy Act (NEPA) 

process—the FAA is the lead agency for the EIS for all airport 

construction projects. 

• Within 60 days of the final FAA decision—(Record of Decision, or ROD), legal challenges must be filed. 

• Permits to build the airport (state and/or Federal) must 

then be obtained. 

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• And finally, construction—which can take 3–4 years. 

The FAA has been sued many times on its RODs, but has never 

lost a challenge. The EIS process can involve many Federal agencies with different expertise and responsibilities, and requires their 

approval or sign-off for various aspects of a project. Each project is 

unique and the FAA holds public meetings to solicit comments at 

various stages of the process. For example, in St. Louis, the FAA 

received and responded to over 15,000 comments regarding a new 

runway. The thoroughness of that review and analysis was noted 

by the court in upholding the challenge to the FAA’s St. Louis 

ROD. 

Efforts to streamline this long and cumbersome process, without 

changing the existing environmental laws and rights of various 

communities, are the basis for S. 633. The Administration, as part 

of AIR–21, was directed to report to Congress on how to improve 

the environmental review process for runway construction. A report 

was released in May 2001, as noted earlier. 

S. 633 seeks to address delay problems in three ways: by requiring FAA to expedite and streamline the airport construction process; by allowing carriers to talk about reducing flights or changing 

schedules where needed; and, by increasing the salary for the FAA 

COO. 

SUMMARY OF MAJOR PROVISIONS

S. 633 directs the Secretary to develop and implement an expedited coordinated environmental review process for airport capacity-enhancement projects that provides for: (1) coordination among 

Federal, regional, state, and local agencies concerned with the 

preparation of EISs or environmental assessments under the 

NEPA; (2) an expedited and coordinated process for environmental 

reviews that ensures that all necessary reviews and permits are 

done concurrently and not consecutively; and (3) a date certain for 

completing all environmental reviews. 

S. 633 directs the Secretary of Transportation to review and report to specified congressional committees on air carrier overscheduling at large hub airports. 

This bill amends Federal aviation law to authorize an air carrier 

to file with the Secretary a request for authority for a group of two 

or more air carriers to discuss cooperative scheduling arrangements, provided its sole purpose is to reach an agreement between 

or among such carriers to reduce overscheduling and flight delays 

during peak hours of operation and periods of inclement weather 

at any large hub airport. It authorizes the Secretary to approve 

such an agreement only if it will reduce congestion at the affected 

airport, will not reduce service to small communities, and is not adverse to the public interest. Additionally, it enables the Secretary 

to exempt such arrangements from U.S. antitrust laws if it is found 

to be in the public interest. 

LEGISLATIVE HISTORY

On March 27, 2001, Senator Hutchison introduced S. 633, a bill 

to provide for the review and management of airport congestion. 

The bill was originally cosponsored by Senator Rockefeller. Senator 

McCain subsequently cosponsored the bill. 

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On March 29, 2001, the Committee held a hearing on S. 633 and 

the need to expedite expansion to minimize congestion at U.S. airports. 

On August 2, 2001, the Committee ordered S. 633 to be reported 

with an amendment in the nature of a substitute by voice vote. 

ESTIMATED COSTS

In accordance with paragraph 11(a) of rule XXVI of the Standing 

Rules of the Senate and section 403 of the Congressional Budget 

Act of 1974, the Committee provides the following cost estimate, 

prepared by the Congressional Budget Office:

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

S. 633—Aviation Delay Prevention Act 

Summary: S. 633 would allow the Federal Aviation Administration (FAA) to provide some airport operators with grants to construct and equip certain types of control towers. The bill would authorize the FAA to accept fees from airport operators so it could 

hire more staff to expedite the planning and environmental review 

of runway construction projects. S. 633 would allow the Secretary 

of Transportation to exempt air carriers from antitrust laws 

through 2005, under certain conditions. In addition, the bill would 

expand the requirements for a study on air quality in passenger 

cabins on commercial aircraft that is required under current law. 

Finally, the bill would require the Department of Transportation to 

prepare a report on overscheduling, flight cancellations, and the 

status of runway construction. 

Based on information from the FAA and historical spending patterns, CBO estimates that implementing S. 633 would cost $47 million over the 2002–2006 period, subject to appropriation of the necessary amounts. By allowing FAA to receive and spend fees to hire 

additional staff S. 633 would affect direct spending; therefore, payas-you-go procedures would apply, but CBO estimates that any 

such effects would be negligible. 

S. 633 contains an intergovernmental mandate as defined in the 

Unfunded Mandates Reform Act (UMRA) because it would place a 

duty upon certain airport authorities (public entities) to study options for increasing their capacity. CBO estimates, however, that 

the costs of this mandate would not exceed the threshold established in that act ($56 million in 2001, adjusted annually for inflation). Other provisions of the bill would benefit certain state and 

local governments by amending existing grant programs to broaden 

eligibility and reduce required matching funds. This bill contains 

no new private-sector mandates as defined in UMRA. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 633 is shown in the following table. For this estimate we assume that the bill will be enacted near the start of 2002 

and that the estimated amounts will be provided each year. The 

costs of this legislation fall within budget function 400 (transportation).

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By fiscal year, in millions of dollars—

2002 2003 2004 2005 2006

CHANGES IN SPENDING SUBJECT TO APPROPRIATION a,b

Estimated Authorization Level ...................................................................... 1 5 6 7 7

Estimated Outlays ......................................................................................... 5 13 12 9 8

a Enactment of S. 633 also would have a negligible impact on direct spending. 

b A portion of the estimated outlays would come from contract authority already provided to FAA under current law. Use of that authority, 

however, is subject to approval in annual appropriations acts. 

Basis of estimate: CBO estimates that implementing S. 633 

would cost $47 million over the 2002–2006 period, assuming appropriation of the necessary amounts. The bill also would have a negligible effect on direct spending. 

Spending subject to appropriation 

CBO estimates that providing federal grants for control tower 

construction would cost about $22 million over the 2002–2006 period. In addition, CBO estimates that federal assistance for operating these towers would cost an additional $25 million over this 

period. 

Control Towers. S. 633 would authorize the FAA to provide 

grants to airport operators to construct and equip control towers. 

Such grants could be no more than $1.1 million per tower. Based 

on information from the FAA and the American Association of Airport Executives, CBO estimates that FAA would provide grants for 

about 20 control towers over the next five years. Under the bill, 

grants would be made from the Airport Improvement Program 

(AIP), which is funded with contract authority (a mandatory form 

of budget authority) through 2003. S. 633 would not change the 

total amount of contract authority available to the Airport Improvement Program. Expenditures from AIP contract authority are governed by obligation limitations contained in annual appropriation 

acts, and are considered discretionary spending. Assuming appropriation acts increase the obligation limitation for this program by 

the necessary amounts, CBO estimates that implementing S. 633 

would cost about $22 million over the 2002–2006 period. 

Operation of Control Towers. The additional towers constructed 

under the bill would be eligible to participate in the Contract 

Tower program. Under that program, the FAA shares the cost of 

operating towers with airport operators. FAA spends on average 

$35,000 annually to support each contract tower. CBO estimates 

that supporting 20 additional towers would cost about $7 million 

a year. Because the FAA would incur operating costs only after the 

towers are constructed and equipped, CBO estimates that FAA 

would spend about $25 million over the 2002–2006 period to support additional towers, assuming appropriations of the necessary 

amounts. 

Study on Air Quality. S. 633 would require the National Academy of Sciences to work with the Centers for Disease Control and 

Prevention to measure the air quality in passenger cabins on commercial aircraft. The bill would require the FAA to report the results of the study by January 31, 2002. Based on information from 

the National Academy of Sciences, CBO estimates that completing 

the study would cost about $1 million in 2002, subject to the availability of appropriated funds. 

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Antitrust Exemption. Under the bill, air carriers could cooperate 

to limit flights at airports where scheduled flights exceed capacity 

if the Secretary of Transportation determines that such agreements 

are necessary to reduce travel delays due to congestion or bad 

weather. S. 633 would require that a representative of the Department of Transportation monitor discussions among airlines for this 

purpose, and that any discussions be open to the public. Based on 

information from the Department of Transportation, CBO estimates that the annual cost of monitoring discussions between air 

carriers would be negligible and subject to the availability of appropriated funds. 

Direct spending 

S. 633 would allow the FAA to accept fees from airport operators 

in order to hire more attorneys and environmental specialists to expedite the planning and environmental review of runway construction projects. Based on the number of airport operators that are 

likely to participate and the cost of qualified employees, CBO estimates FAA would collect about $3 million a year over the 2002–

2006 period. These payments could then be spent without further 

appropriation action to plan and conduct environmental reviews. 

Because the additional collections and spending would be approximately equal in each year, we estimate that the net impact on direct spending of this provision would be negligible. 

Pay-as-you-go considerations: The Balanced Budget and Emergency Deficit Control Act sets up pay-as-you-go procedures for legislation affecting direct spending or receipts. CBO estimates that 

enacting S. 633 would have a negligible effect on direct spending. 

Estimated impact on state, local, and tribal governments: S. 633 

would require certain airport authorities to establish a delay reduction task force or to conduct a capacity enhancement study to determine means of increasing airport capacity. This requirement 

would be a mandate under UMRA, but CBO estimates that the cost 

of complying with the mandate would not exceed the threshold established by that act ($56 million in 2001, adjusted annually for inflation). Airport authorities would incur costs only to manage the 

task force or study and to produce a report. The costs of developing 

alternatives to enhance capacity would be paid by the Federal 

Aviation Administration through grants and technical assistance. 

The bill would authorize grants to state and local governments 

that abut certain airports to develop land use compatibility plans 

with the goal of making land areas around airports compatible 

with aircraft operations. The bill also would amend an existing 

grant program that provides funds to install air traffic control towers by expanding eligibility for the grants and lowering matching 

fund requirements from 25 percent of the project cost to 10 percent.

Estimated impact on the private sector: This bill contains no new 

private-sector mandates as defined in UMRA. 

Previous CBO estimates: On May 18, 2001, CBO transmitted a 

cost estimate for H.R. 1407, as ordered reported by the House Committee on Transportation and Infrastructure on May 16, 2001. That 

version of the bill would require representatives of the Department 

of Transportation to monitor certain discussions among airlines 

and would result in negligible costs. 

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On June 22, 2001, CBO transmitted a cost estimate for H.R. 

1407, as ordered reported by the House Committee on the Judiciary on June 20, 2001. That version of the bill would require representatives of the Department of Justice to monitor certain discussions among airlines and also would result in negligible costs. 

Estimate prepared by: Federal Costs: Mark Hadley; Impact on 

State, Local, and Tribal Governments: Susan Sieg Thompkins; and 

Impact on the Private Sector: Paige Piper/Bach. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

REGULATORY IMPACT STATEMENT

In accordance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee provides the following evaluation of the regulatory impact of the legislation, as reported: 

Because S. 633 does not create any new programs, the legislation 

will have no additional regulatory impact, and will result in no additional reporting requirements for businesses or individuals. The 

legislation will have no further effect on the number or types of individuals and businesses regulated, the economic impact of such 

regulation, the personal privacy of affected individuals, or the paperwork required from such individuals and businesses. 

NUMBER OF PERSONS COVERED

S. 633 is intended to improve airport capacity management and 

reduce airport congestion in the United States. The number of persons covered should be consistent with current levels of individuals 

effected. 

ECONOMIC IMPACT

S. 633 does not authorize or appropriate any funds or expenditures. Its intended purpose to improve the nation’s airport capacity 

needs should have a beneficial impact on the economy of the 

United States. 

PRIVACY

S. 633 will not have an adverse effect on the personal privacy of 

any individuals that will be impacted by this legislation. 

PAPERWORK

S. 633 will have a minimal impact on current paperwork levels, 

and seeks to reduce duplication in some areas. The legislation requires the DOT to identify reasonable alternatives that exist to capacity enhancement projects for publication in the Federal Register, and to identify airports which cause significant delays to the 

national air transportation system. Airports that are identified as 

contributing considerably to air traffic delays in the U.S. will be required to generate a study on the matter, or develop a task force 

to submit recommendations for capacity enhancement. 

Additionally, the Department is required to produce a number of 

reports on aviation capacity issues, including an annual report on 

air carrier scheduling practices over the next 5 years, and must ensure that transcripts of any scheduled ‘‘delay reduction meetings’’ are made available for public release. 

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SECTION-BY-SECTION ANALYSIS

Section 1. Short Title 

Section 1 designates the short title of the bill as the ‘‘Aviation 

Delay Prevention Act.’’

Section 2. Table of Sections 

Section 2 cites the title of each section of the legislation. 

Section 101. Definitions 

Section 101 sets out definitions for the terms ‘‘air carrier,’’

‘‘enplanement,’’ ‘‘large hub airport,’’ ‘‘overscheduling,’’ and ‘‘Secretary.’’ These are based on existing definitions except for ‘‘overscheduling,’’ which would mean the airline practice of scheduling 

more departures at a particular time than the airport can accommodate. 

Section 102. DOT Study and Report 

Section 102 requires DOT to complete a study, within 12 months 

of enactment, of all large hub airports (approximately the top 31 

airports in regard to total passenger enplanements). The study 

would determine the hourly capacity of each airport and the hours 

in which overscheduling takes place. It would also provide an analysis of what authority DOT has to mitigate congestion and any recommendations for providing DOT with additional authority: (1) to 

alleviate airport congestion and overscheduling; and (2) to expedite 

construction related to airport capacity expansion. This study 

would be repeated every year for five years. 

Section 103. Delay Reduction Meetings 

Section 103 allows the Secretary to call for meetings between air 

carriers and the FAA Administrator to consider flight reductions at 

heavily congested airports if the Secretary and Administrator determine that conditions necessitate such discussions. Any meetings 

that are called will be chaired by the Administrator and will be 

open to all scheduled air carriers only to discuss the conditions that 

prompted the meeting, and the air carriers must be informed of 

these conditions at least two days prior to meeting. Any delay reduction proposals are required to be made to the Administrator 

rather than to another carrier. The DOT is required to be represented at any meetings, and the Administrator must make a 

transcript of the meeting available to the public within three working days.

This section also mandates that the Secretary develop procedures 

for this program within 30 days, and requests air carriers to file 

a request with the Secretary to participate in this program. The 

Secretary will also have the option of developing a program to address the unique situation presented by inclement weather. 

Section 104. Chief Operating Officer 

Section 104 removes statutory restrictions on the annual pay 

rate for the Chief Operating Officer of the Air Traffic Organization 

within the FAA. 

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Section 105. Passenger Facility Fee Definitional Changes 

Section 105 permits the use of passenger facility fees at large 

hub airports to finance expansion that will facilitate the ability of 

a competing air carrier to provide air service if that air carrier intends to initiate new or expand existing service at the airport, but 

is not a carrier at that facility. It is intended to provide a new entrant or non-dominant carrier at that airport an outlet to enter the 

market. 

Section 106. DOT Rulemaking to Define On-Time Departure 

Section 106 requires the Secretary to define ‘‘on-time departure’’ through rulemaking required by AIR–21. The definition must be 

determined within 120 days of enactment of this Act, and must be 

made available to passengers in an efficient and reliable manner. 

Section 107. Construction of Air Traffic Control Towers 

Section 107 expands the Secretary’s ability to provide grants to 

airports for building, improving or purchasing ATC equipment for 

non-approach control towers. To receive a grant, the airports are 

required to participate in the FAA Contract Tower Program or pilot 

program and provide 10 percent of the cost of the project. Numerous airports without towers have expressed an interest in participating in this program. Issues such as funding for specific tower 

equipment continue to be raised and are addressed through this 

provision. 

The benefits of the Contract Tower Program have been compelling to date and the Committee is convinced that additional actions 

going forward to enhance it are warranted. The need to upgrade 

and enhance tower buildings, facilities, and equipment must be addressed. Facilities and equipment resource limitations have increasingly necessitated that airport sponsors in smaller communities build contract towers on their own that meet standards acceptable to the FAA. 

As a result, the Committee believes that airport sponsors in 

these smaller communities should have the added flexibility to utilize AIP funds to construct and equip tower facilities based on current FAA contract tower construction standards. 

The result will be a local/federal partnership providing substantial aviation safety/capacity/efficiency benefits. The Committee is 

proposing statutory language and funding authorization permitting 

the use of AIP entitlement funds for future contract tower construction and related equipment that will be consistent with FAA standards utilized for recently completed contract tower projects at airports eligible for the FAA contract tower program. By doing so, airport sponsors that have already acted to build their own towers 

using non-FAA funds should in no way expect to be repaid for 

those actions as the decisions to build were done knowing the legal 

limitations at the time of that decision. The provisions under this 

Act should in no way create any expectation that the Committee 

would ever consider ‘‘backdating’’ the program. 

The Committee has supported the contract tower program from 

its inception, first providing a pilot program under a cost sharing 

arrangement to build new towers at small airports, using the 

FAA’s cost benefit criteria as a benchmark. The provisions included 

in this bill extend the ability to construct towers in the future for 

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other airports. The program, initially objected to by the FAA and 

air traffic controllers, has to date converted its critics. However, future actions or overreaching could jeopardize that effort and support. 

Section 108. Air Quality Standards Report 

Section 108 requires the National Academy of Sciences to work 

with the Center for Disease Control and Prevention when developing an air quality standard report mandated by AIR–21, and orders the Secretary to report the results of this study to the Committee no later than January 31, 2002. 

Section 109. Special Rule for Airport in Illinois 

Section 109 retains the power of the Governor of Illinois to approve or disapprove airport projects in the State, but ensures that 

the provisions of the Act may be applied to projects in Illinois, and 

that airports in the state would be eligible to utilize the expedited 

process. In Illinois, a debate over expansion of O’Hare and the construction of a new airport, at Peotone, has been on-going for a 

number of years. During consideration of this Act, no final agreement between the Mayor of Chicago and Governor of Illinois existed, and thus this provision was added to ensure that nothing in 

this Act affected that debate. 

Section 110. Categorical Exclusions 

Section 110 requires the Secretary to provide a report on recognized and proposed categorical exclusions from an environmental 

assessment or EIS on airport projects to the Committee within 30 

days of enactment of the Act. 

Section 111. Alternative Analysis 

Section 111 requires the Secretary to request public comments 

within 30 days of identifying airport enhancement projects to examine potential alternatives. Sixty days will be provided for public 

comment, and within 90 days after that point the Secretary will 

make the determination whether reasonable alternatives exist to 

the proposed project. 

Section 112. Elimination of Duplicative Requests 

Section 112 eliminates redundant requirements within the law 

regarding project grant applications that emphasize airport development. 

Section 201. Findings 

Section 201 sets forth six congressional findings establishing the 

general basis for enactment of the legislation. 

Section 202. National Capacity Projects 

Section 202 requires the Secretary to identify any large hub airports with delays that markedly affect the national air transportation system. Any airport that is identified and is not currently 

participating in the runway expansion process or has not begun a 

capacity enhancement study (CES) must perform a CES or establish a delay reduction task force to report to the Secretary. Any airport that is the subject of a report or study recommending conVerDate May 23 2002 16:24 Jun 14, 2002 Jkt 099010 PO 00000 Frm 00013 Fmt 6659 Sfmt 6602 E:\HR\OC\SR162.XXX pfrm17 PsN: SR162
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struction in response to delays must have the planning and environmental review process to address this matter completed within 

5 years. Any airport that does not take recommended expansion action will be ineligible for federal planning and expansion funds or 

approval of passenger facility fees during that 5-year period for any 

projects that are not environment, safety, or security-related. 

Section 202 allows the Secretary to designate projects, which are 

determined to have a significant impact on enhancing the national 

air transportation system, as a national capacity project. The Secretary is also empowered to make grants to state and local government for land use compatibility plans directly related to national 

capacity projects. 

Section 202 requires DOT to develop and implement an expedited, coordinated environmental review process that encompasses 

all Federal, state, regional, and local agencies’ reviews for airport 

projects. This process would provide for concurrent reviews and 

conclude by a date certain. The Secretary will also be required to 

start a pilot program to be funded by airport sponsors to improve 

environmental review of national capacity projects. The pilot program will provide for the hiring of full-time staff from outside the 

U.S. Government with an expertise in environmental policy. 

Section 202 provides the Secretary the option of prescribing air 

traffic procedures at facilities that are working on national capacity 

projects in an effort to minimize any adverse impacts of construction. Section 202 sets out definitions for ‘‘national capacity project,’’

and other terms based on existing statutory meanings. 

Section 203. Increase in Apportionment For, and Flexibility of, 

Noise Compatibility Planning Programs 

Section 203 amends title 49 of the United States Code to ensure 

that at least 35 percent of special apportionment grants are used 

to address airport noise compatibility planning issues. 

Section 204. Secretary of Transportation to Identify Airport Congestion-Relief Projects and Forecast Airport Operations Annually 

Section 204 requires the Secretary to provide to the Committee 

within 90 days of enactment of this legislation a list of planned 

projects and a list of options for expanding capacity at the 8 airports with the most severe delays. 

Section 205. Quarterly Status Reports 

Section 205 requires the Secretary to provide quarterly status reports to the Committee on the status of major runway construction 

projects at the nation’s 40 largest airports. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new material is printed in italic, existing law in which no change is proposed is shown in roman):

13

TITLE 49. TRANSPORTATION

SUBTITLE I. DEPARTMENT OF TRANSPORTATION

CHAPTER 1. ORGANIZATION

§ 106. Federal Aviation Administration 

(a) The Federal Aviation Administration is an administration in 

the Department of Transportation. 

(b) The head of the Administration is the Administrator. The Administration has a Deputy Administrator. They are appointed by 

the President, by and with the advice and consent of the Senate. 

When making an appointment, the President shall consider the fitness of the individual to carry out efficiently the duties and powers 

of the office. Except as provided in subsection (f) or in other provisions of law, the Administrator reports directly to the Secretary of 

Transportation. The term of office for any individual appointed as 

Administrator after August 23, 1994, shall be 5 years. 

(c) The Administrator must— (1) be a citizen of the United States; 

(2) be a civilian; and (3) have experience in a field directly 

related to aviation. 

(d)(1) The Deputy Administrator must be a citizen of the United 

States and have experience in a field directly related to aviation. 

An officer on active duty in an armed force may be appointed as 

Deputy Administrator. However, if the Administrator is a former 

regular officer of an armed force, the Deputy Administrator may 

not be an officer on active duty in an armed force, a retired regular 

officer of an armed force, or a former regular officer of an armed 

force. 

(2) An officer on active duty or a retired officer serving as Deputy 

Administrator is entitled to hold a rank and grade not lower than 

that held when appointed as Deputy Administrator. The Deputy 

Administrator may elect to receive 

(A) the pay provided by law for the Deputy Administrator, or 

(B) the pay and allowances or the retired pay of the military grade held. If the Deputy Administrator elects to receive the military pay and allowances or retired pay, the 

Administration shall reimburse the appropriate military 

department from funds available for the expenses of the 

Administration. 

(3) The appointment and service of a member of the armed forces 

as a Deputy Administrator does not affect the status, office, rank, 

or grade held by that member, or a right or benefit arising from 

the status, office, rank, or grade. The Secretary of a military department does not control the member when the member is carrying out duties and powers of the Deputy Administrator. 

(e) The Administrator and the Deputy Administrator may not 

have a pecuniary interest in, or own stock in or bonds of, an aeronautical enterprise, or engage in another business, vocation, or employment. 

(f) AUTHORITY OF THE SECRETARY AND THE ADMINISTRATOR.—

(1) AUTHORITY OF THE SECRETARY.—Except as provided in 

paragraph (2), the Secretary of Transportation shall carry out 

the duties and powers, and controls the personnel and activiVerDate May 23 2002 16:24 Jun 14, 2002 Jkt 099010 PO 00000 Frm 00015 Fmt 6659 Sfmt 6601 E:\HR\OC\SR162.XXX pfrm17 PsN: SR162
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ties, of the Administration. Neither the Secretary nor the Administrator may submit decisions for the approval of, or be 

bound by the decisions or recommendations of, a committee, 

board, or organization established by executive order. 

(2) AUTHORITY OF THE ADMINISTRATOR.—The Administrator—

(A) is the final authority for carrying out all functions, 

powers, and duties of the Administration relating to— (i) the appointment and employment of all officers 

and employees of the Administration (other than Presidential and political appointees); 

(ii) the acquisition and maintenance of property and 

equipment of the Administration; 

(iii) except as otherwise provided in paragraph (3), 

the promulgation of regulations, rules, orders, circulars, bulletins, and other official publications of the 

Administration; and 

(iv) any obligation imposed on the Administrator, or 

power conferred on the Administrator, by the Air Traffic Management System Performance Improvement 

Act of 1996 (or any amendment made by that Act); 

(B) shall offer advice and counsel to the President with 

respect to the appointment and qualifications of any officer 

or employee of the Administration to be appointed by the 

President or as a political appointee; 

(C) may delegate, and authorize successive redelegations 

of, to an officer or employee of the Administration any 

function, power, or duty conferred upon the Administrator, 

unless such delegation is prohibited by law; and 

(D) except as otherwise provided for in this title, and 

notwithstanding any other provision of law, shall not be 

required to coordinate, submit for approval or concurrence, 

or seek the advice or views of the Secretary or any other 

officer or employee of the Department of Transportation on 

any matter with respect to which the Administrator is the 

final authority. 

(3) REGULATIONS.— (A) IN GENERAL.—In the performance of the functions of 

the Administrator and the Administration, the Administrator is authorized to issue, rescind, and revise such regulations as are necessary to carry out those functions. The 

issuance of such regulations shall be governed by the provisions of chapter 5 of title 5. The Administrator shall act 

upon all petitions for rulemaking no later than 6 months 

after the date such petitions are filed by dismissing such 

petitions, by informing the petitioner of an intention to dismiss, or by issuing a notice of proposed rulemaking or advanced notice of proposed rulemaking. The Administrator 

shall issue a final regulation, or take other final action, 

not later than 16 months after the last day of the public 

comment period for the regulations or, in the case of an 

advanced notice of proposed rulemaking, if issued, not 

later than 24 months after the date of publication in the 

Federal Register of notice of the proposed rulemaking. On 

February 1 and August 1 of each year the Administrator 

15

shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the 

Senate a letter listing each deadline the Administrator 

missed under this subparagraph during the 6-month period ending on such date, including an explanation for 

missing the deadline and a projected date on which the action that was subject to the deadline will be taken. 

(B) APPROVAL OF SECRETARY OF TRANSPORTATION.— (i) The Administrator may not issue a proposed regulation or final regulation that is likely to result in the 

expenditure by State, local, and tribal governments in 

the aggregate, or by the private sector, of $250,000,000 

or more (adjusted annually for inflation beginning 

with the year following the date of the enactment of 

the Wendell H. Ford Aviation Investment and Reform 

Act for the 21st Century in any year, or any regulation 

which is significant, unless the Secretary of Transportation approves the issuance of the regulation in advance). For purposes of this paragraph, a regulation is 

significant if the Administrator, in consultation with 

the Secretary (as appropriate), determines that the 

regulation is likely to— (I) have an annual effect on the economy of $250,000,000 or more or adversely affect in a substantial material way the economy, a sector of the 

economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or 

tribal governments or communities; or 

(II) raise novel or significant legal or policy 

issues arising out of legal mandates that may substantially and materially affect other transportation modes. 

(ii) In an emergency, the Administrator may issue a 

regulation described in clause (i) without prior approval by the Secretary, but any such emergency regulation is subject to ratification by the Secretary after 

it is issued and shall be rescinded by the Administrator within 5 days (excluding Saturdays, Sundays, 

and legal public holidays) after issuance if the Secretary fails to ratify its issuance. 

(iii) Any regulation that does not meet the criteria 

of clause (i), and any regulation or other action that is 

a routine or frequent action or a procedural action, 

may be issued by the Administrator without review or 

approval by the Secretary.

(iv) The Administrator shall submit a copy of any 

regulation requiring approval by the Secretary under 

clause (i) to the Secretary, who shall either approve it 

or return it to the Administrator with comments within 45 days after receiving it. 

(C) PERIODIC REVIEW.— (i) Beginning on the date which is 3 years after the 

date of the enactment of the Air Traffic Management 

System Performance Improvement Act of 1996, the 

16

Administrator shall review any unusually burdensome 

regulation issued by the Administrator after such date 

of enactment beginning not later than 3 years after 

the effective date of the regulation to determine if the 

cost assumptions were accurate, the benefit of the regulations, and the need to continue such regulations in 

force in their present form. 

(ii) The Administrator may identify for review under 

the criteria set forth in clause (i) unusually burdensome regulations that were issued before the date of 

the enactment of the Air Traffic Management System 

Performance Improvement Act of 1996 and that have 

been in force for more than 3 years. 

(iii) For purposes of this subparagraph, the term ‘‘unusually burdensome regulation’’ means any regulation that results in the annual expenditure by State, 

local, and tribal governments in the aggregate, or by 

the private sector, of $25,000,000 or more (adjusted 

annually for inflation beginning with the year following the date of the enactment of the Air Traffic 

Management System Performance Act of 1996) in any 

year. 

(iv) The periodic review of regulations may be performed by advisory committees and the Management 

Advisory Council established under subsection (p). 

(4) DEFINITION OF POLITICAL APPOINTEE.—For purposes of 

this subsection, the term ‘‘political appointee’’ means any individual who— (A) is employed in a position listed in sections 5312 

through 5316 of title 5 (relating to the Executive Schedule); 

(B) is a limited term appointee, limited emergency appointee, or noncareer appointee in the Senior Executive 

Service, as defined under paragraphs (5), (6), and (7), respectively, of section 3132(a) of title 5; or 

(C) is employed in a position in the executive branch of 

the Government of a confidential or policy-determining 

character under schedule C of subpart C of part 213 of 

title 5 of the Code of Federal Regulations. 

(g) DUTIES AND POWERS OF ADMINISTRATOR.—

(1) Except as provided in paragraph (2) of this subsection, 

the Administrator shall carry out—

(A) duties and powers of the Secretary of Transportation 

under subsection (f) of this section related to aviation safety (except those related to transportation, packaging, 

marking, or description of hazardous material) and stated 

in sections 308(b), 1132(c) and (d), 40101(c), 40103(b), 

40106(a), 40108, 40109(b), 40113(a), 40113(c), 40113(d), 

40113(e), 40114(a), and 40119, chapter 445 (except sections 

44501(b), 44502(a)(2), 44502(a)(3), 44502(a)(4), 44503, 

44506, 44509, 44510, 44514, and 44515), chapter 447 (except sections 44717, 44718(a), 44718(b), 44719, 44720, 

44721(b), 44722, and 44723), chapter 449 (except sections 

44903(d), 44904, 44905, 44907–44911, 44913, 44915, and 

44931–44934), chapter 451, chapter 453, sections 46104, 

17

46301(d) and (h)(2), 46303(c), 46304–46308, 46310, 46311, 

and 46313–46316, chapter 465, and sections 47504(b) (related to flight procedures), 47508(a), and 48107 of this 

title; and 

(B) additional duties and powers prescribed by the Secretary of Transportation. 

(2) In carrying out sections 40119, 44901, 44903(a)–(c) and 

(e), 44906, 44912, 44935–44937, 44938(a) and (b), and 48107 of 

this title, paragraph (1)(A) of this subsection does not apply to 

duties and powers vested in the Director of Intelligence and 

Security by section 44931 of this title. 

(h) Section 40101(d) of this title applies to duties and powers 

specified in subsection (g)(1) of this section. Any of those duties and 

powers may be transferred to another part of the Department only 

when specifically provided by law or a reorganization plan submitted under chapter 9 of title 5. A decision of the Administrator 

in carrying out those duties or powers is administratively final. 

(i) The Deputy Administrator shall carry out duties and powers 

prescribed by the Administrator. The Deputy Administrator acts 

for the Administrator when the Administrator is absent or unable 

to serve, or when the office of the Administrator is vacant. 

(j) There is established within the Federal Aviation Administration an institute to conduct civil aeromedical research under section 44507 of this title. Such institute shall be known as the ‘‘Civil 

Aeromedical Institute’’. Research conducted by the institute should 

take appropriate advantage of capabilities of other government 

agencies, universities, or the private sector. 

(k) AUTHORIZATION OF APPROPRIATIONS FOR OPERATIONS.— (1) IN GENERAL.—There is authorized to be appropriated to 

the Secretary of Transportation for operations of the Administration—

(A) such sums as may be necessary for fiscal year 2000; 

(B) $6,592,235,000 for fiscal year 2001; 

(C) $6,886,000,000 for fiscal year 2002; and 

(D) $7,357,000,000 for fiscal year 2003. Such sums shall 

remain available until expended. 

(2) AUTHORIZED EXPENDITURES.—Out of amounts appropriated under paragraph (1), the following expenditures are 

authorized: 

(A) $450,000 for each of fiscal years 2000 through 2003 

for wildlife hazard mitigation measures and management 

of the wildlife strike database of the Federal Aviation Administration. 

(B) $9,100,000 for the 3-fiscal-year period beginning with 

fiscal year 2001 to support a university consortium established to provide an air safety and security management 

certificate program, working cooperatively with the Federal Aviation Administration and United States air carriers, except that funds under this subparagraph— (i) may not be used for the construction of a building 

or other facility; and 

(ii) may only be awarded on the basis of open competition. 

(C) Such sums as may be necessary for fiscal years 2000 

through 2003 to support infrastructure systems developVerDate May 23 2002 16:24 Jun 14, 2002 Jkt 099010 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\SR162.XXX pfrm17 PsN: SR162
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ment for both general aviation and the vertical flight industry. 

(D) Such sums as may be necessary for fiscal years 2000 

through 2003 to establish helicopter approach procedures 

using current technologies (such as the Global Positioning 

System) to support all-weather, emergency medical service 

for trauma patients. 

(E) Such sums as may be necessary for fiscal years 2000 

through 2003 to revise existing terminal and en route procedures and instrument flight rules to facilitate the takeoff, flight, and landing of tiltrotor aircraft and to improve 

the national airspace system by separating such aircraft 

from congested flight paths of fixed-wing aircraft. (F) $3,300,000 for fiscal year 2000 and $3,000,000 for 

each of fiscal years 2001 through 2003 to implement the 

1998 airport surface operations safety action plan of the 

Federal Aviation Administration. 

(G) $9,100,000 for fiscal year 2001 to support air safety 

efforts through payment of United States membership obligations in the International Civil Aviation Organization, to 

be paid as soon as practicable. 

(H) Such sums as may be necessary for fiscal years 2000 

through 2003 for the Secretary to hire additional inspectors in order to enhance air cargo security programs. 

(I) Such sums as may be necessary for fiscal years 2000 

through 2003 to develop and improve training programs 

(including model training programs and curriculum) for security screening personnel at airports that will be used by 

airlines to meet regulatory requirements relating to the 

training and testing of such personnel. 

(l) PERSONNEL AND SERVICES.— (1) OFFICERS AND EMPLOYEES.—Except as provided in subsections (a) and (g) of section 40122, the Administrator is authorized, in the performance of the functions of the Administrator, to appoint, transfer, and fix the compensation of such 

officers and employees, including attorneys, as may be necessary to carry out the functions of the Administrator and the 

Administration. In fixing compensation and benefits of officers 

and employees, the Administrator shall not engage in any type 

of bargaining, except to the extent provided for in section 

40122(a), nor shall the Administrator be bound by any requirement to establish such compensation or benefits at particular 

levels. 

(2) EXPERTS AND CONSULTANTS.—The Administrator is authorized to obtain the services of experts and consultants in accordance with section 3109 of title 5. 

(3) TRANSPORTATION AND PER DIEM EXPENSES.—The Administrator is authorized to pay transportation expenses, and per 

diem in lieu of subsistence expenses, in accordance with chapter 57 of title 5. 

(4) USE OF PERSONNEL FROM OTHER AGENCIES.—The Administrator is authorized to utilize the services of personnel of any 

other Federal agency (as such term is defined under section 

551(1) of title 5). 

(5) VOLUNTARY SERVICES.—

19

(A) GENERAL RULE.—In exercising the authority to accept gifts and voluntary services under section 326 of this 

title, and without regard to section 1342 of title 31, the Administrator may not accept voluntary and uncompensated 

services if such services are used to displace Federal employees employed on a full-time, part-time, or seasonal 

basis. 

(B) INCIDENTAL EXPENSES.—The Administrator is authorized to provide for incidental expenses, including 

transportation, lodging, and subsistence, for volunteers 

who provide voluntary services under this subsection. 

(C) LIMITED TREATMENT AS FEDERAL EMPLOYEES.—An individual who provides voluntary services under this subsection shall not be considered a Federal employee for any 

purpose other than for purposes of chapter 81 of title 5, relating to compensation for work injuries, and chapter 171 

of title 28, relating to tort claims. 

(6) CONTRACTS.—The Administrator is authorized to enter 

into and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary to carry out 

the functions of the Administrator and the Administration. The 

Administrator may enter into such contracts, leases, cooperative agreements, and other transactions with any Federal 

agency (as such term is defined in section 551(1) of title 5) or 

any instrumentality of the United States, any State, territory, 

or possession, or political subdivision thereof, any other governmental entity, or any person, firm, association, corporation, 

or educational institution, on such terms and conditions as the 

Administrator may consider appropriate. 

(m) COOPERATION BY ADMINISTRATOR.—With the consent of appropriate officials, the Administrator may, with or without reimbursement, use or accept the services, equipment, personnel, and 

facilities of any other Federal agency (as such term is defined in 

section 551(1) of title 5) and any other public or private entity. The 

Administrator may also cooperate with appropriate officials of 

other public and private agencies and instrumentalities concerning 

the use of services, equipment, personnel, and facilities. The head 

of each Federal agency shall cooperate with the Administrator in 

making the services, equipment, personnel, and facilities of the 

Federal agency available to the Administrator. The head of a Federal agency is authorized, notwithstanding any other provision of 

law, to transfer to or to receive from the Administration, without 

reimbursement, supplies, personnel, services, and equipment other 

than administrative supplies or equipment. 

(n) ACQUISITION.—

(1) IN GENERAL.—The Administrator is authorized—

(A) to acquire (by purchase, lease, condemnation, or otherwise), construct, improve, repair, operate, and maintain—(i) air traffic control facilities and equipment; 

(ii) research and testing sites and facilities; and 

(iii) such other real and personal property (including 

office space and patents), or any interest therein, within and outside the continental United States as the 

Administrator considers necessary; 

20

(B) to lease to others such real and personal property; 

and 

(C) to provide by contract or otherwise for eating facilities and other necessary facilities for the welfare of employees of the Administration at the installations of the 

Administration, and to acquire, operate, and maintain 

equipment for these facilities. 

(2) TITLE.—Title to any property or interest therein acquired 

pursuant to this subsection shall be held by the Government 

of the United States. 

(o) TRANSFERS OF FUNDS.—The Administrator is authorized to 

accept transfers of unobligated balances and unexpended balances 

of funds appropriated to other Federal agencies (as such term is defined in section 551(1) of title 5) to carry out functions transferred 

by law to the Administrator or functions transferred pursuant to 

law to the Administrator on or after the date of the enactment of 

the Air Traffic Management System Performance Improvement Act 

of 1996. 

(p) MANAGEMENT ADVISORY COUNCIL.—

(1) ESTABLISHMENT.—Within 3 months after the date of the 

enactment of the Air Traffic Management System Performance 

Improvement Act of 1996, the Administrator shall establish an 

advisory council which shall be known as the Federal Aviation 

Management Advisory Council (in this subsection referred to 

as the ‘‘Council’’). With respect to Administration management, 

policy, spending, funding, and regulatory matters affecting the 

aviation industry, the Council may submit comments, recommended modifications, and dissenting views to the Administrator. The Administrator shall include in any submission to 

Congress, the Secretary, or the general public, and in any submission for publication in the Federal Register, a description of 

the comments, recommended modifications, and dissenting 

views received from the Council, together with the reasons for 

any differences between the views of the Council and the views 

or actions of the Administrator. 

(2) MEMBERSHIP.—The Council shall consist of 18 members, 

who shall consist of—

(A) a designee of the Secretary of Transportation; 

(B) a designee of the Secretary of Defense; 

(C) 10 members representing aviation interests, appointed by—

(i) in the case of initial appointments to the Council, 

the President by and with the advice and consent of 

the Senate; and 

(ii) in the case of subsequent appointments to the 

Council, the Secretary of Transportation; 

(D) 1 member appointed, from among individuals who 

are the leaders of their respective unions of air traffic control system employees, by—

(i) in the case of initial appointments to the Council, 

the President by and with the advice and consent of 

the Senate; and 

(ii) in the case of subsequent appointments to the 

Council, the Secretary of Transportation; and 

21

(E) 5 members appointed by the Secretary after consultation with the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the 

Senate. 

(3) QUALIFICATIONS.— (A) NO FEDERAL OFFICER OR EMPLOYEE.—No member appointed under paragraph (2)(C) or 2(E) may serve as an officer or employee of the United States Government while 

serving as a member of the Council. 

(B) AIR TRAFFIC SERVICES SUBCOMMITTEE.—Members appointed under paragraph (2)(E) shall— (i) have a fiduciary responsibility to represent the 

public interest; 

(ii) be citizens of the United States; and 

(iii) be appointed without regard to political affiliation and solely on the basis of their professional experience and expertise in one or more of the following 

areas: 

(I) Management of large service organizations. 

(II) Customer service. 

(III) Management of large procurements. 

(IV) Information and communications technology. 

(V) Organizational development. 

(VI) Labor relations. At least one of such members should have a background in managing large 

organizations successfully. In the aggregate, such 

members should collectively bring to bear expertise in all of the areas described in subclauses (I) 

through (VI). 

(C) PROHIBITIONS ON MEMBERS OF SUBCOMMITTEE.—No 

member appointed under paragraph (2)(E) may— (i) have a pecuniary interest in, or own stock in or 

bonds of, an aviation or aeronautical enterprise, except 

an interest in a diversified mutual fund or an interest 

that is exempt from the application of section 208 of 

title 18;

(ii) engage in another business related to aviation or 

aeronautics; or 

(iii) be a member of any organization that engages, 

as a substantial part of its activities, in activities to 

influence aviation-related legislation. 

(4) FUNCTIONS.—

(A) IN GENERAL.—

(i) The Council shall provide advice and counsel to 

the Administrator on issues which affect or are affected by the operations of the Administrator. The 

Council shall function as an oversight resource for 

management, policy, spending, and regulatory matters 

under the jurisdiction of the Administration. 

(ii) The Council shall review the rulemaking costbenefit analysis process and develop recommendations 

to improve the analysis and ensure that the public interest is fully protected. 

22

(iii) The Council shall review the process through 

which the Administration determines to use advisory 

circulars and service bulletins. 

(B) MEETINGS.—The Council shall meet on a regular and 

periodic basis or at the call of the chairman or of the Administrator. 

(C) ACCESS TO DOCUMENTS AND STAFF.—The Administration may give the Council appropriate access to relevant 

documents and personnel of the Administration, and the 

Administrator shall make available, consistent with the 

authority to withhold commercial and other proprietary information under section 552 of title 5 (commonly known as 

the ‘‘Freedom of Information Act’’), cost data associated 

with the acquisition and operation of air traffic service systems. Any member of the Council who receives commercial 

or other proprietary data from the Administrator shall be 

subject to the provisions of section 1905 of title 18, pertaining to unauthorized disclosure of such information. 

(5) Federal Advisory Committee Act not to apply. The Federal Advisory Committee Act (5 U.S.C. App.) does not apply to 

the Council or such aviation rulemaking committees as the Administrator shall designate. 

(6) ADMINISTRATIVE MATTERS.— (A) TERMS OF MEMBERS APPOINTED UNDER PARAGRAPH

(2)(C).—Members of the Council appointed under paragraph 

(2)(C) shall be appointed for a term of 3 years. Of the 

members first appointed by the President under paragraph 

(2)(C)—

(i) 3 shall be appointed for terms of 1 year; 

(ii) 4 shall be appointed for terms of 2 years; and 

(iii) 3 shall be appointed for terms of 3 years. 

(B) TERM FOR AIR TRAFFIC CONTROL REPRESENTATIVE.—

The member appointed under paragraph (2)(D) shall be 

appointed for a term of 3 years, except that the term of 

such individual shall end whenever the individual no 

longer meets the requirements of paragraph (2)(D). 

(C) TERMS FOR AIR TRAFFIC SERVICES SUBCOMMITTEE

MEMBERS.—The member appointed under paragraph (2)(E) 

shall be appointed for a term of 5 years, except that of the 

members first appointed under paragraph (2)(E)— (i) 2 members shall be appointed for a term of 3 

years; 

(ii) 2 members shall be appointed for a term of 4 

years; and 

(iii) 1 member shall be appointed for a term of 5 

years. 

(D) REAPPOINTMENT.—An individual may not be appointed under paragraph (2)(E) to more than two 5-year 

terms. 

(E) VACANCY.—Any vacancy on the Council shall be 

filled in the same manner as the original appointment, except that any vacancy caused by a member appointed by 

the President under paragraph (2)(C)(i) shall be filled by 

the Secretary in accordance with paragraph (2)(C)(ii). Any 

member appointed to fill a vacancy occurring before the exVerDate May 23 2002 16:24 Jun 14, 2002 Jkt 099010 PO 00000 Frm 00024 Fmt 6659 Sfmt 6602 E:\HR\OC\SR162.XXX pfrm17 PsN: SR162
23

piration of the term for which the member’s predecessor 

was appointed shall be appointed for the remainder of that 

term. 

(F) CONTINUATION IN OFFICE.—A member whose term 

expires shall continue to serve until the date on which the 

member’s successor takes office. 

(G) REMOVAL.—Any member of the Council appointed 

under paragraph (2)(D) may be removed for cause by the 

President or Secretary whoever makes the appointment. 

Any member of the Council appointed under paragraph 

(2)(E) may be removed for cause by the Secretary. 

(H) CLAIMS AGAINST MEMBERS OF SUBCOMMITTEE.—

(i) IN GENERAL.—A member appointed under paragraph (2)(E) shall have no personal liability under 

Federal law with respect to any claim arising out of or 

resulting from an act or omission by such member 

within the scope of service as a member of the Air 

Traffic Services Subcommittee. 

(ii) EFFECT ON OTHER LAW.—This subparagraph 

shall not be construed—

(I) to affect any other immunity or protection 

that may be available to a member of the Subcommittee under applicable law with respect to 

such transactions; 

(II) to affect any other right or remedy against 

the United States under applicable law; or 

(III) to limit or alter in any way the immunities 

that are available under applicable law for Federal officers and employees. 

(I) ETHICAL CONSIDERATIONS.—

(i) FINANCIAL DISCLOSURE.—During the entire period 

that an individual appointed under paragraph (2)(E) is 

a member of the Subcommittee, such individual shall 

be treated as serving as an officer or employee referred to in section 101(f) of the Ethics in Government 

Act of 1978 for purposes of title I of such Act; except 

that section 101(d) of such Act shall apply without regard to the number of days of service in the position. 

(ii) RESTRICTIONS ON POST-EMPLOYMENT.—For purposes of section 207(c) of title 18, an individual appointed under paragraph (2)(E) shall be treated as an 

employee referred to in section 207(c)(2)(A)(i) of such 

title during the entire period the individual is a member of the Subcommittee; except that subsections 

(c)(2)(B) and (f) of section 207 of such title shall not 

apply. 

(J) CHAIRMAN; VICE CHAIRMAN.—The Council shall elect 

a chair and a vice chair from among the members appointed under paragraph (2)(C), each of whom shall serve 

for a term of 1 year. The vice chair shall perform the duties of the chairman in the absence of the chairman. 

(K) TRAVEL AND PER DIEM.—Each member of the Council 

shall be paid actual travel expenses, and per diem in lieu 

of subsistence expenses when away from his or her usual 

24

place of residence, in accordance with section 5703 of title 

5. 

(L) DETAIL OF PERSONNEL FROM THE ADMINISTRATION.— The Administrator shall make available to the Council 

such staff, information, and administrative services and 

assistance as may reasonably be required to enable the 

Council to carry out its responsibilities under this subsection. 

(7) AIR TRAFFIC SERVICES SUBCOMMITTEE.— (A) IN GENERAL.—The Management Advisory Council 

shall have an air traffic services subcommittee (in this 

paragraph referred to as the ‘‘Subcommittee’’) composed of 

the five members appointed under paragraph (2)(E). 

(B) GENERAL RESPONSIBILITIES.— (i) OVERSIGHT.—The Subcommittee shall oversee the 

administration, management, conduct, direction, and 

supervision of the air traffic control system. 

(ii) CONFIDENTIALITY.—The Subcommittee shall ensure that appropriate confidentiality is maintained in 

the exercise of its duties. 

(C) SPECIFIC RESPONSIBILITIES.—The Subcommittee shall 

have the following specific responsibilities: 

(i) STRATEGIC PLANS.—To review, approve, and monitor the strategic plan for the air traffic control system, including the establishment of— (I) a mission and objectives; 

(II) standards of performance relative to such 

mission and objectives, including safety, efficiency, 

and productivity; and 

(III) annual and long-range strategic plans. 

(ii) MODERNIZATION AND IMPROVEMENT.—To review 

and approve— (I) methods to accelerate air traffic control modernization and improvements in aviation safety 

related to air traffic control; and 

(II) procurements of air traffic control equipment in excess of $100,000,000. 

(iii) OPERATIONAL PLANS.—To review the operational 

functions of the air traffic control system, including— (I) plans for modernization of the air traffic control system; 

(II) plans for increasing productivity or implementing cost-saving measures; and 

(III) plans for training and education. 

(iv) MANAGEMENT.—To—

(I) review and approve the Administrator’s appointment of a Chief Operating Officer under section 106(r); 

(II) review the Administrator’s selection, evaluation, and compensation of senior executives of the 

Administration who have program management 

responsibility over significant functions of the air 

traffic control system; 

(III) review and approve the Administrator’s 

plans for any major reorganization of the AdminVerDate May 23 2002 16:24 Jun 14, 2002 Jkt 099010 PO 00000 Frm 00026 Fmt 6659 Sfmt 6602 E:\HR\OC\SR162.XXX pfrm17 PsN: SR162
25

istration that would impact on the management of 

the air traffic control system; 

(IV) review and approve the Administrator’s 

cost accounting and financial management structure and technologies to help ensure efficient and 

cost-effective air traffic control operation; and 

(V) review the performance and compensation of 

managers responsible for major acquisition 

projects, including the ability of the managers to 

meet schedule and budget targets. 

(v) BUDGET.—To—

(I) review and approve the budget request of the 

Administration related to the air traffic control 

system prepared by the Administrator; 

(II) submit such budget request to the Secretary; and 

(III) ensure that the budget request supports 

the annual and long-range strategic plans. The 

Secretary shall submit the budget request referred 

to in clause (v)(II) for any fiscal year to the President who shall transmit such request, without revision, to the Committees on Transportation and 

Infrastructure and Appropriations of the House of 

Representatives and the Committees on Commerce, Science, and Transportation and Appropriations of the Senate, together with the President’s annual budget request for the Federal Aviation Administration for such fiscal year. 

(D) SUBCOMMITTEE PERSONNEL MATTERS.—

(i) COMPENSATION OF MEMBERS.—Each member of 

the Subcommittee shall be compensated at a rate of 

$25,000 per year. 

(ii) COMPENSATION OF CHAIRPERSON.—Notwithstanding clause (i), the chairperson of the Subcommittee shall be compensated at a rate of $40,000 

per year. 

(iii) STAFF.—The chairperson of the Subcommittee 

may appoint and terminate any personnel that may be 

necessary to enable the Subcommittee to perform its 

duties. 

(iv) PROCUREMENT OF TEMPORARY AND INTERMITTENT SERVICES.—The chairperson of the Subcommittee 

may procure temporary and intermittent services 

under section 3109(b) of title 5, United States Code. 

(E) ADMINISTRATIVE MATTERS.—

(i) TERM OF CHAIR.—The members of the Subcommittee shall elect for a 2-year term a chairperson 

from among the members of the Subcommittee. 

(ii) POWERS OF CHAIR.—Except as otherwise provided by a majority vote of the Subcommittee, the 

powers of the chairperson shall include—

(I) establishing committees; 

(II) setting meeting places and times; 

(III) establishing meeting agendas; and 

26

(IV) developing rules for the conduct of business. 

(iii) MEETINGS.—The Subcommittee shall meet at 

least quarterly and at such other times as the chairperson determines appropriate. 

(iv) QUORUM.—Three members of the Subcommittee 

shall constitute a quorum. A majority of members 

present and voting shall be required for the Subcommittee to take action. 

(F) REPORTS.—

(i) ANNUAL.—The Subcommittee shall each year report with respect to the conduct of its responsibilities 

under this title to the Administrator, the Council, the 

Committee on Transportation and Infrastructure of 

the House of Representatives, and the Committee on 

Commerce, Science, and Transportation of the Senate. 

(ii) ADDITIONAL REPORT.—If a determination by the 

Subcommittee under subparagraph (B)(i) that the organization and operation of the air traffic control system are not allowing the Administration to carry out 

its mission, the Subcommittee shall report such determination to the Administrator, the Council, the Committee on Transportation and Infrastructure of the 

House of Representatives, and the Committee on Commerce, Science, and Transportation of the Senate. 

(iii) ACTION OF ADMINISTRATOR ON REPORT.—Not 

later than 60 days after the date of a report of the 

Subcommittee under this subparagraph, the Administrator shall take action with respect to such report. If 

the Administrator overturns a recommendation of the 

Subcommittee, the Administrator shall report such action to the President, the Committee on Transportation and Infrastructure of the House of Representatives, and the Committee on Commerce, Science, and 

Transportation of the Senate. 

(iv) COMPTROLLER GENERAL’S REPORT.—Not later 

than April 30, 2003, the Comptroller General of the 

United States shall transmit to the Committee on 

Transportation and Infrastructure of the House of 

Representatives and the Committee on Commerce, 

Science, and Transportation of the Senate a report on 

the success of the Subcommittee in improving the performance of the air traffic control system. 

(8) AIR TRAFFIC CONTROL SYSTEM DEFINED.—In this section, 

the term ‘‘air traffic control system’’ has the meaning such 

term has under section 40102(a). 

(q) AIRCRAFT NOISE OMBUDSMAN.—

(1) ESTABLISHMENT.—There shall be in the Administration 

an Aircraft Noise Ombudsman. 

(2) GENERAL DUTIES AND RESPONSIBILITIES.—The Ombudsman shall—

(A) be appointed by the Administrator; 

(B) serve as a liaison with the public on issues regarding 

aircraft noise; and 

27

(C) be consulted when the Administration proposes 

changes in aircraft routes so as to minimize any increases 

in aircraft noise over populated areas. 

(3) NUMBER OF FULL-TIME EQUIVALENT EMPLOYEES.—The appointment of an Ombudsman under this subsection shall not 

result in an increase in the number of full-time equivalent employees in the Administration. 

(r) CHIEF OPERATING OFFICER.— (1) IN GENERAL.— (A) APPOINTMENT.—There shall be a Chief Operating Officer for the air traffic control system to be appointed by 

the Administrator, with the approval of the Air Traffic 

Services Subcommittee of the Aviation Management Advisory Council. The Chief Operating Officer shall report directly to the Administrator and shall be subject to the authority of the Administrator. 

(B) QUALIFICATIONS.—The Chief Operating Officer shall 

have a demonstrated ability in management and knowledge of or experience in aviation. 

(C) TERM.—The Chief Operating Officer shall be appointed for a term of 5 years. 

(D) REMOVAL.—The Chief Operating Officer shall serve 

at the pleasure of the Administrator, except that the Administrator shall make every effort to ensure stability and 

continuity in the leadership of the air traffic control system. 

(E) VACANCY.—Any individual appointed to fill a vacancy in the position of Chief Operating Officer occurring 

before the expiration of the term for which the individual’s 

predecessor was appointed shall be appointed for the remainder of that term. 

ø(2) COMPENSATION.—

ø(A) IN GENERAL.—The Chief Operating Officer shall be 

paid at an annual rate of basic pay to be determined by 

the Administrator, with the approval of the Air Traffic 

Services Subcommittee of the Aviation Management Advisory Council. The annual rate may not exceed the annual 

compensation paid under section 102 of title 3. The Chief 

Operating Officer shall be subject to the post-employment 

provisions of section 207 of title 18 as if the position of 

Chief Operating Officer were described in section 

207(c)(2)(A)(i) of that title. 

ø(B) BONUS.—In addition to the annual rate of basic pay 

authorized by subparagraph (A), the Chief Operating Officer may receive a bonus for any calendar year not to exceed 30 percent of the annual rate of basic pay, based upon 

the Administrator’s evaluation of the Chief Operating Officer’s performance in relation to the performance goals set 

forth in the performance agreement described paragraph 

(3).¿

(2) COMPENSATION.—The Chief Operating Officer shall be 

paid at an annual rate of basic pay determined by the Secretary 

of Transportation before the appointment and without regard to 

any other provision of law. The Chief Operating Officer shall be 

subject to the post-employment provisions of section 207 of title 

28

18 as if the position of Chief Operating Officer were described 

in section 207(c)(2)(A)(i) of that title.

(3) ANNUAL PERFORMANCE AGREEMENT.—The Administrator 

and the Chief Operating Officer, in consultation with the Air 

Traffic Control Subcommittee of the Aviation Management Advisory Committee, shall enter into an annual performance 

agreement that sets forth measurable organization and individual goals for the Chief Operating Officer in key operational 

areas. The agreement shall be subject to review and renegotiation on an annual basis. 

(4) ANNUAL PERFORMANCE REPORT.—The Chief Operating Officer shall prepare and transmit to the Secretary of Transportation and Congress an annual management report containing 

such information as may be prescribed by the Secretary. 

(5) RESPONSIBILITIES.—The Administrator may delegate to 

the Chief Operating Officer, or any other authority within the 

Administration responsibilities, including the following: 

(A) STRATEGIC PLANS.—To develop a strategic plan of the 

Administration for the air traffic control system, including 

the establishment of—

(i) a mission and objectives; 

(ii) standards of performance relative to such mission and objectives, including safety, efficiency, and 

productivity; 

(iii) annual and long-range strategic plans; and 

(iv) methods of the Administration to accelerate air 

traffic control modernization and improvements in 

aviation safety related to air traffic control. 

(B) OPERATIONS.—To review the operational functions of 

the Administration, including—

(i) modernization of the air traffic control system; 

(ii) increasing productivity or implementing cost-saving measures; and 

(iii) training and education. 

(C) BUDGET.—To—

(i) develop a budget request of the Administration 

related to the air traffic control system prepared by 

the Administrator; 

(ii) submit such budget request to the Administrator 

and the Secretary of Transportation; and 

(iii) ensure that the budget request supports the annual and long-range strategic plans developed under 

subparagraph (A) of this subsection. 

TITLE 49. TRANSPORTATION

SUBTITLE VII. AVIATION PROGRAMS

PART A. AIR COMMERCE AND SAFETY

SUBPART I. GENERAL

CHAPTER 401. GENERAL PROVISIONS

§ 40117. Passenger facility fees 

(a) DEFINITIONS.—In this section, the following definitions apply: 

29

(1) AIRPORT, COMMERCIAL SERVICE AIRPORT, AND PUBLIC

AGENCY.—The terms ‘‘airport’’, ‘‘commercial service airport’’, and ‘‘public agency’’ have the meaning those terms have under 

section 47102. 

(2) ELIGIBLE AGENCY.—The term ‘‘eligible agency’’ means a 

public agency that controls a commercial service airport. 

(3) ELIGIBLE AIRPORT-RELATED PROJECT.—The term ‘‘eligible 

airport-related project’’ means any of the following projects: 

(A) A project for airport development or airport planning 

under subchapter I of chapter 471. 

(B) A project for terminal development described in section 47110(d). 

(C) for costs of terminal development referred to in subparagraph (B) incurred after August 1, 1986, at an airport 

that did not have more than .25 percent of the total annual passenger boardings in the United States in the most 

recent calendar year for which data is available and at 

which total passenger boardings declined by at least 16 

percent between calendar year 1989 and calendar year 

1997. 

(D) A project for airport noise capability planning under 

section 47505. 

(E) A project to carry out noise compatibility measures 

eligible for assistance under section 47504, whether or not 

a program for those measures has been approved under 

section 47504. 

ø(F) A project for constructing gates and related areas at 

which passengers board or exit aircraft. In the case of a 

project required to enable additional air service by an air 

carrier with less than 50 percent of the annual passenger 

boardings at an airport, the project for constructing gates 

and related areas may include structural foundations and 

floor systems, exterior building walls and load-bearing interior columns or walls, windows, door and roof systems, 

building utilities (including heating, air conditioning, ventilation, plumbing, and electrical service), and aircraft fueling facilities adjacent to the gate.¿

(F) A project for constructing gates and related areas at 

which passengers board or exit aircraft. 

(G) In the case of a project required to enable air service 

by a competing air carrier at a large hub airport (as defined in section 41731): 

(i) A project for constructing gates and related areas 

may include structural foundations and floor systems, 

exterior building walls and load-bearing interior columns or walls, windows, door and roof systems, building utilities (including heating, air conditioning, ventilation, plumbing, and electrical service) above, below, 

and within the footprint of the gates and related areas. 

(ii) Revenue-producing areas in the remainder of the 

terminal building allocable to the competing air carrier, and aircraft fueling facilities adjacent to the gate, 

may be included in an eligible airport-related project to 

the extent the facilities to be constructed in such areas 

are for the basic accommodation of air passengers and 

30

not for general commercial retail sales, rental car facilities, or passenger lodging. For purposes of this 

clause, the determination of what revenue-producing 

areas in the terminal building are allocable to the competing air carrier shall be based on the relationship 

that the square footage of the competing air carrier’s 

gates and related areas bears to the square footage of 

all gates and related areas in the terminal building. 

(4) PASSENGER FACILITY FEE.—The term ‘‘passenger facility 

fee’’ means a fee imposed under this section. 

(5) PASSENGER FACILITY REVENUE.—The term ‘‘passenger facility revenue’’ means revenue derived from a passenger facility fee.

(6) COMPETING AIR CARRIER.—The term ‘‘competing air carrier’’ means an air carrier that— (A) is initiating new air service or expanding existing air 

service at a large hub airport (as defined in section 41731); 

and 

(B) is not an air carrier described in section 

47106(f)(3)(B) at that airport.

(b) GENERAL AUTHORITY.— (1) The Secretary of Transportation may authorize under 

this section an eligible agency to impose a passenger facility 

fee of $1, $2, or $3 on each paying passenger of an air carrier 

or foreign air carrier boarding an aircraft at an airport the 

agency controls to finance an eligible airport-related project, including making payments for debt service on indebtedness incurred to carry out the project, to be carried out in connection 

with the airport or any other airport the agency controls. 

(2) A State, political subdivision of a State, or authority of 

a State or political subdivision that is not the eligible agency 

may not regulate or prohibit the imposition or collection of a 

passenger facility fee or the use of the passenger facility revenue. 

(3) A passenger facility fee may be imposed on a passenger 

of an air carrier or foreign air carrier originating or connecting 

at the commercial service airport that the agency controls. 

(4) In lieu of authorizing a fee under paragraph (1), the Secretary may authorize under this section an eligible agency to 

impose a passenger facility fee of $4.00 or $4.50 on each paying 

passenger of an air carrier or foreign air carrier boarding an 

aircraft at an airport the agency controls to finance an eligible 

airport-related project, including making payments for debt 

service on indebtedness incurred to carry out the project, if the 

Secretary finds—

(A) in the case of an airport that has more than .25 percent of the total number of annual boardings in the United 

States, that the project will make a significant contribution to improving air safety and security, increasing competition among air carriers, reducing current or anticipated congestion, or reducing the impact of aviation noise 

on people living near the airport; and 

(B) that the project cannot be paid for from funds reasonably expected to be available for the programs referred 

to in section 48103. 

31

(c) APPLICATIONS.— (1) An eligible agency must submit to the Secretary an application for authority to impose a passenger facility fee. The application shall contain information and be in the form that the 

Secretary may require by regulation. 

(2) Before submitting an application, the eligible agency 

must provide reasonable notice to, and an opportunity for consultation with, air carriers and foreign air carriers operating at 

the airport. The Secretary shall prescribe regulations that define reasonable notice and contain at least the following requirements: 

(A) The agency must provide written notice of individual 

projects being considered for financing by a passenger facility fee and the date and location of a meeting to present 

the projects to air carriers and foreign air carriers operating at the airport. 

(B) Not later than 30 days after written notice is provided under subparagraph (A) of this paragraph, each air 

carrier and foreign air carrier operating at the airport 

must provide to the agency written notice of receipt of the 

notice. Failure of a carrier to provide the notice may be 

deemed certification of agreement with the project by the 

carrier under subparagraph (D) of this paragraph. 

(C) Not later than 45 days after written notice is provided under subparagraph (A) of this paragraph, the agency must conduct a meeting to provide air carriers and foreign air carriers with descriptions of projects and justifications and a detailed financial plan for projects. 

(D) Not later than 30 days after the meeting, each air 

carrier and foreign air carrier must provide to the agency 

certification of agreement or disagreement with projects 

(or total plan for the projects). Failure to provide the certification is deemed certification of agreement with the 

project by the carrier. A certification of disagreement is 

void if it does not contain the reasons for the disagreement. 

(3) After receiving an application, the Secretary shall provide 

notice and an opportunity to air carriers, foreign air carriers, 

and other interested persons to comment on the application. 

The Secretary shall make a final decision on the application 

not later than 120 days after receiving it. 

(d) LIMITATIONS ON APPROVING APPLICATIONS.—The Secretary 

may approve an application that an eligible agency has submitted 

under subsection (c) of this section to finance a specific project only 

if the Secretary finds, based on the application, that—

(1) the amount and duration of the proposed passenger facility fee will result in revenue (including interest and other returns on the revenue) that is not more than the amount necessary to finance the specific project; 

(2) each project is an eligible airport-related project that 

will— (A) preserve or enhance capacity, safety, or security of 

the national air transportation system; 

(B) reduce noise resulting from an airport that is part of 

the system; or 

32

(C) provide an opportunity for enhanced competition between or among air carriers and foreign air carriers; 

(3) the application includes adequate justification for each of 

the specific projects; and 

(4) in the case of an application to impose a fee of more than $3.00 for an eligible surface transportation or terminal project, 

the agency has made adequate provision for financing the 

airside needs of the airport, including runways, taxiways, 

aprons, and aircraft gates. 

(e) LIMITATIONS ON IMPOSING FEES.— (1) An eligible agency may impose a passenger facility fee 

only—(A) if the Secretary approves an application that the 

agency has submitted under subsection (c) of this section; 

and 

(B) subject to terms the Secretary may prescribe to carry 

out the objectives of this section. 

(2) A passenger facility fee may not be collected from a passenger—

(A) for more than 2 boardings on a one-way trip or a trip 

in each direction of a round trip; 

(B) for the boarding to an eligible place under subchapter II of chapter 417 of this title for which essential 

air service compensation is paid under subchapter II; 

(C) enplaning at an airport if the passenger did not pay 

for the air transportation which resulted in such 

enplanement, including any case in which the passenger 

obtained the ticket for the air transportation with a frequent flier award coupon without monetary payment; 

(D) on flights, including flight segments, between 2 or 

more points in Hawaii; and 

(E) in Alaska aboard an aircraft having a seating capacity of less than 60 passengers. 

(f) LIMITATIONS ON CONTRACTS, LEASES, AND USE AGREEMENTS.—

(1) A contract between an air carrier or foreign air carrier 

and an eligible agency made at any time may not impair the 

authority of the agency to impose a passenger facility fee or to 

use the passenger facility revenue as provided in this section. 

(2) A project financed with a passenger facility fee may not 

be subject to an exclusive long-term lease or use agreement of 

an air carrier or foreign air carrier, as defined by regulations 

of the Secretary. 

(3) A lease or use agreement of an air carrier or foreign air 

carrier related to a project whose construction or expansion 

was financed with a passenger facility fee may not restrict the 

eligible agency from financing, developing, or assigning new capacity at the airport with passenger facility revenue. 

(g) TREATMENT OF REVENUE.—

(1) Passenger facility revenue is not airport revenue for purposes of establishing a price under a contract between an eligible agency and an air carrier or foreign air carrier. 

(2) An eligible agency may not include in its price base the 

part of the capital costs of a project paid for by using passenger 

facility revenue to establish a price under a contract between 

the agency and an air carrier or foreign air carrier. 

33

(3) For a project for terminal development, gates and related 

areas, or a facility occupied or used by at least one air carrier 

or foreign air carrier on an exclusive or preferential basis, a 

price payable by an air carrier or foreign air carrier using the 

facilities must at least equal the price paid by an air carrier 

or foreign air carrier using a similar facility at the airport that 

was not financed with passenger facility revenue. 

(4) Passenger facility revenues that are held by an air carrier 

or an agent of the carrier after collection of a passenger facility 

fee constitute a trust fund that is held by the air carrier or 

agent for the beneficial interest of the eligible agency imposing 

the fee. Such carrier or agent holds neither legal nor equitable 

interest in the passenger facility revenues except for any handling fee or retention of interest collected on unremitted proceeds as may be allowed by the Secretary. 

(h) COMPLIANCE.—

(1) As necessary to ensure compliance with this section, the 

Secretary shall prescribe regulations requiring recordkeeping 

and auditing of accounts maintained by an air carrier or foreign air carrier and its agent collecting a passenger facility fee 

and by the eligible agency imposing the fee. 

(2) The Secretary periodically shall audit and review the use 

by an eligible agency of passenger facility revenue. After review and a public hearing, the Secretary may end any part of 

the authority of the agency to impose a passenger facility fee 

to the extent the Secretary decides that the revenue is not 

being used as provided in this section. 

(3) The Secretary may set off amounts necessary to ensure 

compliance with this section against amounts otherwise payable to an eligible agency under subchapter I of chapter 471 of 

this title if the Secretary decides a passenger facility fee is excessive or that passenger facility revenue is not being used as 

provided in this section. 

(i) REGULATIONS.—The Secretary shall prescribe regulations necessary to carry out this section. The regulations—

(1) may prescribe the time and form by which a passenger 

facility fee takes effect; 

(2) shall—

(A) require an air carrier or foreign air carrier and its 

agent to collect a passenger facility fee that an eligible 

agency imposes under this section; 

(B) establish procedures for handling and remitting 

money collected; 

(C) ensure that the money, less a uniform amount the 

Secretary determines reflects the average necessary and 

reasonable expenses (net of interest accruing to the carrier 

and agent after collection and before remittance) incurred 

in collecting and handling the fee, is paid promptly to the 

eligible agency for which they are collected; and 

(D) require that the amount collected for any air transportation be noted on the ticket for that air transportation; 

and 

(3) may permit an eligible agency to request that collection 

of a passenger facility fee be waived for—

34

(A) passengers enplaned by any class of air carrier or 

foreign air carrier if the number of passengers enplaned by 

the carriers in the class constitutes not more than one percent of the total number of passengers enplaned annually 

at the airport at which the fee is imposed; or 

(B) passengers enplaned on a flight to an airport—

(i) that has fewer than 2,500 passenger boardings 

each year and receives scheduled passenger service; or 

(ii) in a community which has a population of less 

than 10,000 and is not connected by a land highway 

or vehicular way to the land-connected National Highway System within a State. 

(j) LIMITATION ON CERTAIN ACTIONS.—A State, political subdivision of a State, or authority of a State or political subdivision that 

is not the eligible agency may not tax, regulate, or prohibit or otherwise attempt to control in any manner, the imposition or collection of a passenger facility fee or the use of the revenue from the 

passenger facility fee. 

(k) COMPETITION PLANS.—

(1) IN GENERAL.—Beginning in fiscal year 2001, no eligible 

agency may impose a passenger facility fee under this section 

with respect to a covered airport (as such term is defined in 

section 47106(f)) unless the agency has submitted to the Secretary a written competition plan in accordance with such section. This subsection does not apply to passenger facility fees 

in effect before the date of the enactment of this subsection. 

(2) SECRETARY SHALL ENSURE IMPLEMENTATION AND COMPLIANCE.—The Secretary shall review any plan submitted under 

paragraph (1) to ensure that it meets the requirements of this 

section, and shall review its implementation from time-to-time 

to ensure that each covered airport successfully implements its 

plan. 

TITLE 49. TRANSPORTATION

SUBTITLE VII. AVIATION PROGRAMS

PART B. AIRPORT DEVELOPMENT AND NOISE

CHAPTER 471. AIRPORT DEVELOPMENT

SUBCHAPTER I. AIRPORT IMPROVEMENT

§ 47106. Project grant application approval conditioned on 

satisfaction of project requirements 

(a) PROJECT GRANT APPLICATION APPROVAL.—The Secretary of 

Transportation may approve an application under this subchapter 

for a project grant only if the Secretary is satisfied that—

(1) the project is consistent with plans (existing at the time 

the project is approved) of public agencies authorized by the 

State in which the airport is located to plan for the development of the area surrounding the airport; 

(2) the project will contribute to carrying out this subchapter; 

(3) enough money is available to pay the project costs that 

will not be paid by the United States Government under this 

subchapter; 

35

(4) the project will be completed without unreasonable delay; 

and 

(5) the sponsor has authority to carry out the project as proposed. 

(b) AIRPORT DEVELOPMENT PROJECT GRANT APPLICATION APPROVAL.—The Secretary may approve an application under this 

subchapter for an airport development project grant for an airport 

only if the Secretary is satisfied that—

(1) the sponsor, a public agency, or the Government holds 

good title to the areas of the airport used or intended to be 

used for the landing, taking off, or surface maneuvering of aircraft, or that good title will be acquired; 

(2) the interests of the community in or near which the 

project may be located have been given fair consideration; and 

(3) the application provides touchdown zone and centerline 

runway lighting, high intensity runway lighting, or land necessary for installing approach light systems that the Secretary, 

considering the category of the airport and the kind and volume of traffic using it, decides is necessary for safe and efficient use of the airport by aircraft. 

(c) ENVIRONMENTAL REQUIREMENTS.—

(1) The Secretary may approve an application under this 

subchapter for an airport development project involving the location of an airport or runway or a major runway extension—

(A) only if the sponsor certifies to the Secretary that—

(i) an opportunity for a public hearing was given to 

consider the economic, social, and environmental effects of the location and the location’s consistency with 

the objectives of any planning that the community has 

carried out; and 

(ii) the airport management board has voting representation from the communities in which the project 

is located or has advised the communities that they 

have the right to petition the Secretary about a proposed project; and 

ø(B) only if the chief executive officer of the State in 

which the project will be located certifies in writing to the 

Secretary that there is reasonable assurance that the 

project will be located, designed, constructed, and operated 

in compliance with applicable air and water quality standards, except that the Administrator of the Environmental 

Protection Agency shall make the certification instead of 

the chief executive officer if—

ø(i) the State has not approved any applicable State 

or local standards; and 

ø(ii) the Administrator has prescribed applicable 

standards; and¿

ø(C)¿ (B) if the application is found to have a significant 

adverse effect on natural resources, including fish and 

wildlife, natural, scenic, and recreation assets, water and 

air quality, or another factor affecting the environment, 

only after finding that no possible and prudent alternative 

to the project exists and that every reasonable step has 

been taken to minimize the adverse effect. 

36

(2) The Secretary may approve an application under this 

subchapter for an airport development project that does not involve the location of an airport or runway, or a major runway 

extension, at an existing airport without requiring an environmental impact statement related to noise for the project if— (A) completing the project would allow operations at the 

airport involving aircraft complying with the noise standards prescribed for ‘‘stage 2’’ aircraft in section 36.1 of title 

14, Code of Federal Regulations, to replace existing operations involving aircraft that do not comply with those 

standards; and 

(B) the project meets the other requirements under this 

subchapter. 

(3) At the Secretary’s request, the sponsor shall give the Secretary a copy of the transcript of any hearing held under paragraph (1)(A) of this subsection. 

ø(4)(A) Notice of certification or of refusal to certify under 

paragraph (1)(B) of this subsection shall be provided to the 

Secretary not later than 60 days after the Secretary receives 

the application. 

ø(B) The Secretary shall condition approval of the application on compliance with the applicable standards during construction and operation.¿

ø(5)¿ (4) The Secretary may make a finding under paragraph 

ø(1)(C)¿ (1)(B) of this subsection only after completely reviewing the matter. The review and finding must be a matter of 

public record. 

(d) WITHHOLDING APPROVAL.— (1) The Secretary may withhold approval of an application 

under this subchapter for amounts apportioned under section 

47114(c) and (e) of this title for violating an assurance or requirement of this subchapter only if— (A) the Secretary provides the sponsor an opportunity 

for a hearing; and 

(B) not later than 180 days after the later of the date of 

the application or the date the Secretary discovers the 

noncompliance, the Secretary finds that a violation has occurred. 

(2) The 180-day period may be extended by—

(A) agreement between the Secretary and the sponsor; or 

(B) the hearing officer if the officer decides an extension 

is necessary because the sponsor did not follow the schedule the officer established. 

(3) A person adversely affected by an order of the Secretary 

withholding approval may obtain review of the order by filing 

a petition in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the 

United States for the circuit in which the project is located. 

The action must be brought not later than 60 days after the 

order is served on the petitioner. 

(e) REPORTS RELATING TO CONSTRUCTION OF CERTAIN NEW HUB

AIRPORTS.—At least 90 days prior to the approval under this subchapter of a project grant application for construction of a new hub 

airport that is expected to have 0.25 percent or more of the total 

annual enplanements in the United States, the Secretary shall subVerDate May 23 2002 16:24 Jun 14, 2002 Jkt 099010 PO 00000 Frm 00038 Fmt 6659 Sfmt 6601 E:\HR\OC\SR162.XXX pfrm17 PsN: SR162
37

mit to Congress a report analyzing the anticipated impact of such 

proposed new airport on—

(1) the fees charged to air carriers (including landing fees), 

and other costs that will be incurred by air carriers, for using 

the proposed airport; 

(2) air transportation that will be provided in the geographic 

region of the proposed airport; and 

(3) the availability and cost of providing air transportation to 

rural areas in such geographic region. 

(f) COMPETITION PLANS.—

(1) PROHIBITION.—Beginning in fiscal year 2001, no passenger facility fee may be approved for a covered airport under 

section 40117 and no grant may be made under this subchapter for a covered airport unless the airport has submitted 

to the Secretary a written competition plan in accordance with 

this subsection. 

(2) CONTENTS.—A competition plan under this subsection 

shall include information on the availability of airport gates 

and related facilities, leasing and sub-leasing arrangements, 

gate-use requirements, patterns of air service, gate-assignment 

policy, financial constraints, airport controls over air- and 

ground-side capacity, whether the airport intends to build or 

acquire gates that would be used as common facilities, and airfare levels (as compiled by the Department of Transportation) 

compared to other large airports. 

(3) SPECIAL RULE FOR FISCAL YEAR 2002.—This subsection 

does not apply to any passenger facility fee approved, or grant 

made, in fiscal year 2002 if the fee or grant is to be used to 

improve security at a covered airport. 

(4) COVERED AIRPORT DEFINED.—In this subsection, the term 

‘‘covered airport’’ means a commercial service airport—

(A) that has more than .25 percent of the total number 

of passenger boardings each year at all such airports; and 

(B) at which one or two air carriers control more than 

50 percent of the passenger boardings. 

*******

§ 47117. Use of apportioned amounts 

(a) GRANT PURPOSE.—Except as provided in this section, an 

amount apportioned under section 47114(c)(1) or (d)(2) of this title 

is available for making grants for any purpose for which amounts 

are made available under section 48103 of this title. 

(b) PERIOD OF AVAILABILITY.—An amount apportioned under section 47114 of this title is available to be obligated for grants under 

the apportionment only during the fiscal year for which the amount 

was apportioned and the 2 fiscal years immediately after that year 

or the 3 fiscal years immediately following that year in the case of 

a primary airport that had less than .05 percent of the total 

boardings in the United States in the preceding calendar year. If 

the amount is not obligated under the apportionment within that 

time, it shall be added to the discretionary fund. 

(c) PRIMARY AIRPORTS.—

38

(1) An amount apportioned to a sponsor of a primary airport 

under section 47114(c)(1) of this title is available for grants for 

any public-use airport of the sponsor included in the national 

plan of integrated airport systems. 

(2) A sponsor of a primary airport may make an agreement 

with the Secretary of Transportation waiving any part of the 

amount apportioned for the airport under section 47114(c)(1) of 

this title if the Secretary makes the waived amount available 

for a grant for another public-use airport in the same State or 

geographical area as the primary airport. 

(d) STATE USE.—An amount apportioned to a State under—

(1) section 47114(d)(2)(A) of this title is available for grants 

for airports located in the State; and 

(2) section 47114(d)(2)(B) or (C) of this title is available for 

grants for airports described in section 47114(d)(2)(B) or (C) 

and located in the State. 

(e) SPECIAL APPORTIONMENT CATEGORIES.—

(1) The Secretary shall use amounts available to the discretionary fund under section 47115 of this title for each fiscal 

year as follows: 

(A) øAt least 34 percent for grants for airport noise compatibility planning under section 47505(a)(2) of this title 

and for carrying out noise compatibility programs under 

section 47504(c)(1) of this title.¿ At least 35 percent for 

grants for airport noise compatibility planning under section 47505(a)(2) for a national capacity project, for carrying 

out noise compatibility programs under section 47504(c) of 

this title, and for noise mitigation projects approved in an 

environmental record of decision for an airport development project designated as a national capacity project 

under section 47702. The Secretary may count the amount 

of grants made for such planning and programs with funds 

apportioned under section 47114 in that fiscal year in determining whether øor not such 34 percent requirement¿

the funding level required by the preceding sentence is 

being met in that fiscal year. 

(B) At at least 4 percent to sponsors of current or former 

military airports designated by the Secretary under section 

47118(a) of this title for grants for developing current and 

former military airports to improve the capacity of the national air transportation system and to sponsors of noncommercial service airports for grants for operational and 

maintenance expenses at any such airport if the amount of 

such grants to the sponsor of the airport does not exceed 

$30,000 in that fiscal year, if the Secretary determines 

that the airport is adversely affected by the closure or realignment of a military base, and if the sponsor of the airport certifies that the airport would otherwise close if the 

airport does not receive the grant. 

(C) In any fiscal year in which the total amount made 

available under section 48103 is $3,200,000,000 or more, 

at least two-thirds of 1 percent for grants to sponsors of reliever airports which have—

(i) more than 75,000 annual operations; 

39

(ii) a runway with a minimum usable landing distance of 5,000 feet; 

(iii) a precision instrument landing procedure; 

(iv) a minimum number of aircraft, to be determined 

by the Secretary, based at the airport; and 

(v) been designated by the Secretary as a reliever 

airport to an airport with 20,000 hours of annual 

delays in commercial passenger aircraft takeoffs and 

landings. 

(2) If the Secretary decides that an amount required to be 

used for grants under paragraph (1) of this subsection cannot 

be used for a fiscal year because there are insufficient qualified 

grant applications, the amount the Secretary determines cannot be used is available during the fiscal year for grants for 

other airports or for other purposes for which amounts are authorized for grants under section 48103 of this title. 

(3) PRIORITY.—The Secretary shall give priority in making 

grants under paragraph (1)(A) to applications for airport noise 

compatibility planning and programs at and around— (A) Chicago O’Hare International Airport; 

(B) LaGuardia Airport; 

(C) John F. Kennedy International Airport; and 

(D) Ronald Reagan Washington National Airport. 

(f) DISCRETIONARY USE OF APPORTIONMENTS.— (1) IN GENERAL.—Subject to paragraph (2), if the Secretary 

finds that all or part of an amount of an apportionment under 

section 47114 is not required during a fiscal year to fund a 

grant for which the apportionment may be used, the Secretary 

may use during such fiscal year the amount not so required to 

make grants for any purpose for which grants may be made 

under section 48103. The finding may be based on the notifications that the Secretary receives under section 47105(f) or on 

other information received from airport sponsors. 

(2) RESTORATION OF APPORTIONMENTS.—

(A) IN GENERAL.—Of the fiscal year for which a finding 

is made under paragraph (1) with respect to an apportionment is not the last fiscal year of availability of the apportionment under subsection (b), the Secretary shall restore 

to the apportionment an amount equal to the amount of 

the apportionment used under paragraph (1) for a discretionary grant whenever a sufficient amount is made available under section 48103. 

(B) PERIOD OF AVAILABILITY.—If restoration under this 

paragraph is made in the fiscal year for which the finding 

is made or the succeeding fiscal year, the amount restored 

shall be subject to the original period of availability of the 

apportionment under subsection (b). If the restoration is 

made thereafter, the amount restored shall remain available in accordance with subsection (b) for the original period of availability of the apportionment plus the number 

of fiscal years during which a sufficient amount was not 

available for the restoration. 

(3) NEWLY AVAILABLE AMOUNTS.—

(A) RESTORED AMOUNTS TO BE UNAVAILABLE FOR DISCRETIONARY GRANTS.—Of an amount newly available under 

40

section 48103 of this title, an amount equal to the amounts 

restored under paragraph (2) shall not be available for discretionary grant obligations under section 47115. 

(B) USE OF REMAINING AMOUNTS.—Subparagraph (A) 

does not impair the Secretary’s authority under paragraph 

(1), after a restoration under paragraph (2), to apply all or 

part of a restored amount that is not required to fund a 

grant under an apportionment to fund discretionary 

grants. 

(4) LIMITATIONS ON OBLIGATIONS APPLY.—Nothing in this 

subsection shall be construed to authorize the Secretary to 

incur grant obligations under section 47104 for a fiscal year in 

an amount greater than the amount made available under section 48103 for such obligations for such fiscal year. 

(g) LIMITING AUTHORITY OF SECRETARY.—The authority of the 

Secretary to make grants during a fiscal year from amounts that 

were apportioned for a prior fiscal year and remain available for 

approved airport development project grants under subsection (b) of 

this section may be impaired only by a law enacted after September 3, 1982, that expressly limits that authority.

§ 41723. Delay reduction actions 

(a) DELAY REDUCTION MEETINGS.—

(1) SCHEDULING REDUCTION MEETINGS.—The Secretary of 

Transportation may request that air carriers meet with the Administrator of the Federal Aviation Administration to discuss 

flight reductions at severely congested airports to reduce overscheduling and flight delays during hours of peak operation 

if—

(A) the Administrator of the Federal Aviation Administration determines that it is necessary to convene such a 

meeting; and 

(B) the Secretary determines that the meeting is necessary 

to meet a serious transportation need or achieve an important public benefit. 

(2) MEETING CONDITIONS.—Any meeting under paragraph 

(1)—

(A) shall be chaired by the Administrator; 

(B) shall be open to all scheduled air carriers; and 

(C) shall be limited to discussions involving the airports 

and time periods described in the Administrator’s determination. 

(3) FLIGHT REDUCTION TARGETS.—Before any such meeting is 

held, the Administrator shall establish flight reduction targets 

for the meeting and notify the attending air carriers of those 

targets not less than 48 hours before the meeting. 

(4) DELAY REDUCTION OFFERS.—An air carrier attending the 

meeting shall make any delay reduction offer to the Administrator rather than to another carrier. 

(5) TRANSCRIPT.—The Administrator shall ensure that a 

transcript of the meeting is kept and made available to the public not later than 3 business days after the conclusion of the 

meeting. 

(b) STORMY WEATHER AGREEMENTS LIMITED EXEMPTION.—

41

(1) IN GENERAL.—The Secretary may establish a program to 

authorize by order discussions and agreements between 2 or 

more air carriers for the purpose of reducing flight delays during periods of inclement weather. 

(2) REQUIREMENTS.—An authorization issued under paragraph (1)—

(A) may only be issued by the Secretary after a determination by the Federal Aviation Administration that inclement weather is likely to adversely and directly affect capacity at an airport for a period of at least 3 hours; 

(B) shall apply only to discussions and agreements concerning flights directly affected by the inclement weather; 

and 

(C) shall remain in effect for a period of 24 hours. 

(3) PROCEDURE.—The Secretary shall establish procedures 

within 30 days after such date of enactment for—

(A) filing requests for an authorization under paragraph 

(1); 

(B) participation under paragraph (5) by representatives 

of the Department of Transportation in any meetings or 

discussions held pursuant to such an order; and 

(C) the determination by the Federal Aviation Administration about the impact of inclement weather. 

(4) COPY OF PARTICIPATION REQUEST FILED WITH SECRETARY.—Before an air carrier may request an order under 

paragraph (1), it shall file a request with the Secretary, in such 

form and manner as the Secretary may prescribe, to participate 

in the program established under paragraph (1). 

(5) DOT PARTICIPATION.—The Secretary shall ensure that the 

Department is represented at any meetings authorized under 

this subsection. 

(c) EXEMPTION AUTHORIZED.—When the Secretary finds that it is 

required by the public interest, the Secretary, as part of an order 

issued under subsection (b)(1), shall exempt a person affected by the 

order from the antitrust laws to the extent necessary to allow the 

person to proceed with the activities approved in the order. 

(d) ANTITRUST LAWS DEFINED.—In this section, the term ‘‘antitrust laws’’ has the meaning given that term in the first section of 

the Clayton Act (15 U.S.C. 12). 

(e) SUNSET.—The authority of the Secretary to issue an order 

under subsection (b)(1) of this section expires at the end of the 2-

year period that begins 45 days after the date of enactment of the 

Aviation Delay Prevention Act. The Secretary may extend the 2-year 

for an additional 2 years if the Secretary determines that such an 

extension is necessary and in the public interest. The Secretary shall 

notify the Senate Committee on Commerce, Science, and Transportation, and to the House of Representatives Committee on Transportation and Infrastructure of any such extension.

42

*******

§ 47124. Agreements for State and local operation of airport 

facilities 

(a) GOVERNMENT RELIEF FROM LIABILITY.—The Secretary of 

Transportation shall ensure that an agreement under this subchapter with a State or a political subdivision of a State to allow 

the State or subdivision to operate an airport facility in the State 

or subdivision relieves the United States Government from any liability arising out of, or related to, acts or omissions of employees 

of the State or subdivision in operating the airport facility. 

(b) AIR TRAFFIC CONTROL CONTRACT PROGRAM.—

(1) The Secretary shall continue the low activity (Visual 

Flight Rules) level I air traffic control tower contract program 

established under subsection (a) of this section for towers existing on December 30, 1987, and extend the program to other 

towers as practicable. 

(2) The Secretary may make a contract, on a sole source 

basis, with a State or a political subdivision of a State to allow 

the State or subdivision to operate an airport traffic control 

tower classified as a level I (Visual Flight Rules) tower if the 

Secretary decides that the State or subdivision has the capability to comply with the requirements of this paragraph. The 

contract shall require that the State or subdivision comply 

with applicable safety regulations in operating the facility and 

with applicable competition requirements in making a subcontract to perform work to carry out the contract. 

(3) CONTRACT AIR TRAFFIC CONTROL TOWER PILOT PROGRAM.—

(A) IN GENERAL.—The Secretary shall establish a pilot 

program to contract for air traffic control services at 

øLevel I air traffic control towers, as defined by the Secretary,¿ nonapproach control towers that do not qualify for 

the contract tower program established under subsection 

(a) and continued under paragraph (1) (in this paragraph 

referred to as the ‘‘Contract Tower Program’’). 

(B) PROGRAM COMPONENTS.—In carrying out the pilot 

program, the Secretary shall—

(i) utilize for purposes of cost-benefit analyses, current, actual, site-specific data, forecast estimates, or 

airport master plan data provided by a facility owner 

or operator and verified by the Secretary; and 

(ii) approve for participation only facilities willing to 

fund a pro rata share of the operating costs of the air 

traffic control tower to achieve a 1-to-1 benefit-to-cost 

ratio using actual site-specific contract tower operating 

costs in any case in which there is an operating air 

traffic control tower, as required for eligibility under 

the Contract Tower Program. 

(C) PRIORITY.—In selecting facilities to participate in the 

pilot program, the Secretary shall give priority to the following facilities: 

(i) Air traffic control towers that are participating in 

the Contract Tower Program but have been notified 

that they will be terminated from such program beVerDate May 23 2002 16:24 Jun 14, 2002 Jkt 099010 PO 00000 Frm 00044 Fmt 6659 Sfmt 6601 E:\HR\OC\SR162.XXX pfrm17 PsN: SR162
43

cause the Secretary has determined that the benefitto-cost ratio for their continuation in such program is 

less than 1.0. 

(ii) Air traffic control towers that the Secretary determines have a benefit-to-cost ratio of at least .50. 

(iii) Air traffic control towers of the Federal Aviation 

Administration that are closed as a result of the air 

traffic controllers strike in 1981. 

(iv) Air traffic control towers located at airports or 

points at which an air carrier is receiving compensation under the essential air service program under this 

chapter. 

(v) Air traffic control towers located at airports that 

are prepared to assume partial responsibility for maintenance costs. 

(vi) Air traffic control towers located at airports with 

safety or operational problems related to topography, 

weather, runway configuration, or mix of aircraft. 

(vii) Air traffic control towers located at an airport 

at which the community has been operating the tower 

at its own expense. 

(D) Costs exceeding benefits. If the costs of operating an 

air traffic tower under the pilot program exceed the benefits, the airport sponsor or State or local government having jurisdiction over the airport shall pay the portion of 

the costs that exceed such benefit. 

(E) FUNDING.—Subject to paragraph (4)(D), of the 

amounts appropriated pursuant to section 106(k), not more 

than $6,000,000 per fiscal year may be used to carry out 

this paragraph. 

ø(4) CONSTRUCTION OF AIR TRAFFIC CONTROL TOWERS.—

ø(A) IN GENERAL.—Notwithstanding any other provision 

of this subchapter, the Secretary may provide grants under 

this subchapter to not more than two airport sponsors for 

the construction of a low-level activity visual flight rule 

(level 1) air traffic control tower, as defined by the Secretary. 

ø(B) ELIGIBILITY.—A sponsor shall be eligible for a grant 

under this paragraph if—

ø(i) the sponsor would otherwise be eligible to participate in the pilot program established under paragraph (3) except for the lack of the air traffic control 

tower proposed to be constructed under this subsection; and 

ø(ii) the sponsor agrees to fund not less than 25 percent of the costs of construction of the air traffic control tower. 

ø(C) PROJECT COSTS.—Grants under this paragraph 

shall be paid only from amounts apportioned to the sponsor under section 47114(c)(1). 

ø(D) FEDERAL SHARE.—The Federal share of the cost of 

construction of an air traffic control tower under this paragraph may not exceed $1,100,000.¿

(4) CONSTRUCTION OF AIR TRAFFIC CONTROL TOWERS.—

44

(A) IN GENERAL.—Notwithstanding any other provision of 

this subchapter, the Secretary may provide grants under 

this subchapter to an airport sponsor for— (i) the construction or improvement of a nonapproach 

control tower; or 

(ii) the acquisition and installation of air traffic control equipment to be used in a nonapproach control 

tower that will assist in sustaining or improving the 

safe and efficient movement of air traffic. 

(B) ELIGIBILITY.—A sponsor shall be eligible for a grant 

under this paragraph if— (i)(I) the sponsor is a participant in the Federal 

Aviation Administration Contract Tower Program (as 

described in paragraph (3)(A)) or the pilot program established under paragraph (3); or 

(II) construction of a nonapproach control tower 

would qualify the sponsor to be eligible to participate 

in the Federal Aviation Administration Contract Tower 

Program or pilot program; and 

(ii) the sponsor agrees to fund not less than 10 percent of the cost of the activities receiving assistance 

under this paragraph. 

(C) PROJECT COSTS.—Grants under this paragraph shall 

be paid only from amounts made available to the sponsor 

under sections 47114(c)(1) and (d)(3)(A). 

(D) FEDERAL SHARE.—The Federal share of the cost of 

construction of a nonapproach control tower under this 

paragraph may not exceed $1,100,000. 

(5) NON-APPROACH CONTROL TOWER DEFINED.—In this subsection, the term ‘‘nonapproach control tower’’ has the meaning 

given such term in Federal Aviation Administration Order 

7110.65 (as in effect on the date of enactment of the Aviation 

Delay Prevention Act) and the Aeronautical Information Manual (as in effect on such date of enactment). 

TITLE 49. TRANSPORTATION

SUBTITLE VII. AVIATION PROGRAMS

PART B. AIRPORT DEVELOPMENT AND NOISE

CHAPTER 477. NATIONAL CAPACITY PROJECTS 

47701. Capacity enhancement 

47702. Designation of national capacity projects 

47703. Expedited coordinated environmental review process; project coordinators 

and environment impact teams. 

47704. Compatible land use initiative for national capacity projects 

47705. Air traffic procedures at national capacity projects 

47706. Pilot program for environmental review at national capacity projects 

47707. Definitions

§ 47701. Capacity enhancement 

(a) IN GENERAL.—Within 30 days after the date of enactment of 

the Aviation Delay Prevention Act, the Secretary of Transportation 

shall identify those airports among the 31 airports covered by the 

Federal Aviation Administration’s Airport Capacity Benchmark Report 2001 with delays that significantly affect the national air 

transportation system. 

45

(b) TASK FORCE; CAPACITY ENHANCEMENT STUDY.—

(1) IN GENERAL.—The Secretary shall direct any airport identified by the Secretary under subsection (a) that is not engaged 

in a runway expansion process and has not initiated a capacity 

enhancement study (or similar capacity assessment) since 

1996—

(A) to establish a delay reduction task force to study 

means of increasing capacity at the airport, including air 

traffic, airline scheduling, and airfield expansion alternatives; or 

(B) to conduct a capacity enhancement study. 

(2) SCOPE.—The scope of the study shall be determined by the 

airport and the Federal Aviation Administration, and where 

appropriate shall consider regional capacity solutions. 

(3) RECOMMENDATIONS SUBMITTED TO SECRETARY.—

(A) TASK FORCE.—A task force established under this 

subsection shall submit a report containing its findings 

and conclusions, together with any recommendations for 

capacity enhancement at the airport, to the Secretary within 9 months after the task force is established. 

(B) CES.—A capacity enhancement study conducted 

under this subsection shall be submitted, together with its 

findings and conclusions, to the Secretary as soon as the 

study is completed. 

(c) RUNWAY EXPANSION AND RECONFIGURATION.—If the report or 

study submitted under subsection (b)(3) includes a recommendation 

for the construction or reconfiguration of runways at the airport, 

then the Secretary and the airport shall complete the planning and 

environmental review process within 5 years after report or study is 

submitted to the Secretary. The Secretary may extend the 5-year 

deadline under this subsection for up to 1 year if the Secretary determines that such an extension is necessary and in the public interest. The Secretary shall notify the Senate Committee on Commerce, 

Science, and Transportation, and to the House of Representatives 

Committee on Transportation and Infrastructure of any such extension. 

(d) AIRPORTS THAT DECLINE TO UNDERTAKE EXPANSION

PROJECTS.—

(1) IN GENERAL.—If an airport at which the construction or 

reconfiguration of runways is recommended does not take action to initiate a planning and environmental assessment process for the construction or reconfiguration of those runways 

within 30 days after the date on which the report or study is 

submitted to the Secretary, then—

(A) the airport shall be ineligible for planning and other 

expansion funds under subchapter I of chapter 471, notwithstanding any provision of that subchapter to the contrary; 

(B) no passenger facility fee may be approved at that airport operator during the 5-year period beginning 30 days 

after the date on which the report or study is submitted to 

the Secretary, for—

(i) projects that, but for subparagraph (A), could 

have been funded under chapter 471; or 

46

(ii) any project other than on-airport airfield-side capacity or safety-related projects. 

(2) SAFETY-RELATED AND ENVIRONMENTAL PROJECTS EX- CEPTED.—Paragraph (1) does not apply to the use of funds for 

safety-related, security, or environment projects. 

(e) AIRPORTS THAT TAKE ACTION.—The Secretary shall take all 

actions possible to expedite funding and provide options for funding 

to any airport undertaking runway construction or reconfiguration 

projects in response to recommendations by its task force. 

§ 47702. Designation of national capacity projects 

(a) IN GENERAL.—In response to a petition from an airport sponsor, or in the case of an airport on the list of airports covered by 

the Federal Aviation Administration’s Airport Capacity Benchmarks 

study, the Secretary of Transportation may designate an airport development project as a national capacity project if the Secretary determines that the project to be designated will significantly enhance 

the capacity of the national air transportation system. 

(b) DESIGNATION TO REMAIN IN EFFECT FOR 5 YEARS.—The designation of a project as a national capacity project under paragraph 

(1) shall remain in effect for 5 years. The Secretary may extend the 

5-year period for up to 2 additional years upon request if the Secretary finds that substantial progress is being made toward completion of the project. 

§ 47703. Expedited coordinated environmental review process; project coordinators and environment impact 

teams. 

‘‘(a) IN GENERAL.—The Secretary of Transportation shall implement an expedited coordinated environmental review process for national capacity projects that—

‘‘(1) provides for better coordination among the Federal, regional, State, and local agencies concerned with the preparation 

of environmental impact statements or environmental assessments under the National Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.); 

‘‘(2) provides for an expedited and coordinated process in the 

conduct of environmental reviews that ensures that, where appropriate, the reviews are done concurrently and not consecutively; and 

‘‘(3) provides for a date certain for completing all environmental reviews. 

(b) HIGH PRIORITY FOR AIRPORT ENVIRONMENTAL REVIEWS.—

Each department and agency of the United States Government with 

jurisdiction over environmental reviews shall accord any such review involving a national capacity project the highest possible priority and conduct the review expeditiously. If the Secretary finds 

that any such department or agency is not complying with the requirements of this subsection, the Secretary shall notify the Senate 

Committee on Commerce, Science, and Transportation, and to the 

House of Representatives Committee on Transportation and Infrastructure immediately. 

(c) PROJECT COORDINATORS; EIS TEAMS.—

(1) DESIGNATION.—For each project designated by the Secretary as a national capacity project under subsection (a) for 

47

which an environmental impact statement or environmental assessment must be filed, the Secretary shall— (A) designate a project coordinator within the Department of Transportation; and 

(B) establish an environmental impact team within the 

Department. 

(2) FUNCTION.—The project coordinator and the environmental impact team shall— (A) coordinate the activities of all Federal, State, and 

local agencies involved in the project; 

(B) to the extent possible, working with Federal, State 

and local officials, reduce and eliminate duplicative and 

overlapping Federal, State, and local permit requirements; 

(C) to the extent possible, eliminate duplicate Federal, 

State, and local environmental review procedures; and 

(D) provide direction for compliance with all applicable 

Federal, State, and local environmental requirements for 

the project. 

§ 47704. Compatible land use initiative for national capacity 

projects 

(a) IN GENERAL.—The Secretary of Transportation may make 

grants under chapter 471 to States and units of local government 

for land use compatibility plans directly related to national capacity 

projects for the purposes of making the use of land areas around the 

airport compatible with aircraft operations if the land use plan or 

project meets the requirements of this section. 

(b) CONDITIONS.—A land use plan or project meets the requirements of this section if it— (1) is sponsored by the public agency that has the authority 

to plan and adopt land use control measures, including zoning, 

in the planning area in and around the airport and that agency 

provides written assurances to the Secretary that it will work 

with the affected airport to identify and adopt such measures; 

(2) does not duplicate, and is not inconsistent with, an airport noise compatibility program prepared by an airport owner 

or operator under chapter 475 or with other planning carried 

out by the airport. 

(3) is subject to an agreement between the public agency sponsor and the airport owner or operator that the development of 

the land use compatibility plan will be done cooperatively; 

(4) is consistent with the airport operation and planning, including the use of any noise exposure contours on which the 

land use compatibility planning or project is based; and 

(5) has been approved jointly by the airport owner or operator 

and the public agency sponsor. 

(c) ASSURANCES FROM SPONSORS.— The Secretary may require 

the airport sponsor, public agency, or other entity to which a grant 

may be awarded under this section to provide such additional assurances, progress reports, and other information as the Secretary 

determines to be necessary to carry out this section. 

§ 47705. Air traffic procedures at national capacity projects 

(a) IN GENERAL.—The Secretary of Transportation may consider 

prescribing flight procedures to avoid or minimize potentially sigVerDate May 23 2002 16:24 Jun 14, 2002 Jkt 099010 PO 00000 Frm 00049 Fmt 6659 Sfmt 6603 E:\HR\OC\SR162.XXX pfrm17 PsN: SR162
48

nificant adverse noise impacts of the project during the environmental planning process for a national capacity project that involves the construction of new runways or the reconfiguration of existing runways. If the Secretary determines that noise mitigation 

flight procedures are consistent with safe and efficient use of the 

navigable airspace, then, at the request of the airport sponsor, the 

Administrator may, in a manner consistent with applicable Federal 

law, commit to prescribing such procedures in any record of decision approving the project. 

(b) MODIFICATION.—Notwithstanding any commitment by the Secretary under subsection (a), the Secretary may initiate changes to 

such procedures if necessary to maintain safety and efficiency in 

light of new information or changed circumstances. 

§ 47706. Pilot program for environmental review at national 

capacity projects 

(a) IN GENERAL.—The Secretary of Transportation shall initiate 

a 5-year pilot program funded by airport sponsors—

(1) to hire additional fulltime-equivalent environmental specialists and attorneys, or 

(2) to obtain the services of such specialists and attorneys 

from outside the United States Government, to assist in the provision of an appropriate nationwide level of staffing for planning and environmental review of runway development projects 

for national capacity projects at the Federal Aviation Administration. 

(b) ELIGIBLE PARTICIPANTS.—Participation in the pilot program 

shall be available, on a voluntary basis, to airports with an annual 

passenger enplanement of not less than 3 million passengers. The 

Secretary shall specify the minimum contribution necessary to qualify for participation in the pilot program, which shall be not less 

than the amount necessary to compensate the Department of Transportation for the expense of a fulltime equivalent environmental specialist and attorney qualified at the GS-14 equivalent level. 

(c) RETENTION OF REVENUES.—The salaries and expenses account 

of the Federal Aviation Administration shall retain as an offsetting 

collection such sums as may be necessary from such proceeds for the 

costs of developing and implementing the program required by subsection (a). Such offsetting collections shall be available for obligation subject to the terms and conditions of the receiving appropriations account, and shall be deposited in such accounts on a quarterly basis. Such offsetting collections are authorized to remain 

available until expended for such purpose. 

§ 47707. Definitions 

In this chapter: 

(1) NATIONAL CAPACITY PROJECT.—The term ‘‘national capacity project’’ means a project designated by the Secretary under 

section 44702. 

(2) OTHER TERMS.—The definitions in section 47102 apply to 

any terms used in this chapter that are defined in that section.

Æ