October 2, 2008 CONGRESSIONAL RECORD — SENATE S10461 

President Bush unwisely has transformed this nuclear cooperation agreement into the centerpiece of our bilateral relationship with New Delhi. In 

doing so, he has ignored the broad 

range of areas on which the United 

States and India can and should cooperate—ranging from science and 

technology to economic and business 

partnerships. In the security realm, 

our two nations should be doing more 

together on counterterrorism, especially in the wake of the devastating 

attacks in India over the past year. 

I strongly believe in the promise of 

the future partnership between our two 

great nations. I am voting in favor of 

this agreement, despite its serious nonproliferation flaws, because I do not 

want to jeopardize that emerging alliance that can bring so many benefits 

to both of our peoples. 

Mr. REED. Mr. President, I would 

like to take a few moments to discuss 

my vote against the India Nuclear 

Agreement. 

In 2006, I voted in favor of the Henry 

J. Hyde United States and India Nuclear Cooperation Promotion Act, primarily because of the safeguards included in the act that would ensure 

that assistance to Indian’s civilian nuclear program to meet its domestic energy needs, would not assist the Indian 

nuclear weapons program. Unfortunately, I do not believe that the United 

States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act that we voted on last night 

has the full scope of necessary protections. 

India is the largest democracy in the 

world. Its economy is growing by 8 percent annually. Their domestic energy 

needs are enormous and they simply do 

not have enough indigenous resources 

to meet them. India is an important 

ally and our nation has benefitted from 

a strong trade and defense relationship 

for decades. Furthermore, my State of 

Rhode Island has prospered because of 

a vibrant Indian community. I believe 

that the United States should do all 

that it can to assist India and further 

strengthen the partnership between the 

two countries. 

However, our country’s relationship 

with India must be balanced with concerns about nuclear proliferation and 

the stability of the Middle East and 

Asia. 

I believe that proliferation of nuclear 

weapons and weapons material and 

technology is the greatest threat facing our country today. The most effective method of controlling such proliferation is a multilateral regime 

where all countries are subject to the 

same standards. 

The agreement that was approved by 

the Senate last night establishes a separate and unique regime for India. This 

particular agreement would allow India 

to be treated like a nuclear weapons 

state but not impose upon India the responsibilities and commitments placed 

on other nuclear weapons states. As 

such I believe that this particular 

agreement is flawed. This agreement 

has the potential to actually weaken 

the carefully constructed, long-standing nuclear nonproliferation regime 

that the world depends on to prevent 

the spread of nuclear weapons. 

This agreement does provide some 

benefits. Under this agreement India 

will put 14 of its nuclear reactors under 

safeguards agreements with the International Atomic Energy Agency, the 

IAEA. This will help to ensure that 

these reactors and the fuel supplied to 

them will be used only for the peaceful 

production of nuclear poser. In addition the IAEA will bring its expertise 

to help to improve the operational 

safety of the reactors. 

On the other hand the rest of India’s 

nuclear reactors will not come under 

the IAEA and these reactors can be 

used as India wishes to produce power 

or to produce more material for nuclear weapons. But it is troublesome to 

me that India retains the right to deny 

IAEA access to some or all of the reactors that it has now agreed will come 

under IAEA agreements. 

While this agreement will help India 

with its energy needs, India is also now 

free to use its limited indigenous uranium for to support a build up of its 

nuclear weapons stockpile. India has 

specifically preserved its ability to increase the number of nuclear weapons 

in its arsenal, its ability to increase 

the amount of nuclear weapons materials that it produces and its right to 

conduct a test of a nuclear weapon. 

While India has a voluntary moratorium on testing, India still refuses to 

sign the Comprehensive Test Ban Treaty and to support a fissile material cutoff treaty. Finally, I am greatly concerned about the effect this agreement 

will have on the region, particularly 

the reaction of Pakistan. Pakistan will 

undoubtedly seek a similar agreement 

if it perceives an increased threat from 

India. Pakistan may seek to partner 

with China—and the United States 

would have few grounds to protest. In 

such a case, Pakistan will have additional access to nuclear technology. 

While I believe that the United 

States should help India with its urgent energy needs, I believe we missed 

an opportunity to provide assistance 

with adequate and necessary safeguards in place. For these reasons, I reluctantly decided to vote against this 

agreement. It is my hope that the 

United States and India continue to 

work together to make the world safer 

from nuclear proliferation. 

f 

IN MEMORIAM: PAUL NEWMAN 

Mrs. BOXER. Mr. President, I am 

honored to remember a great American 

icon who was a renowned actor, activist, and philanthropist—Paul Newman, 

who passed away on September 26, 2008, 

at the age of 83. 

Paul’s movie career spanned five decades, acting in over 65 films. He captivated all of America with his natural 

on-screen talent and his off-screen ability to give to others. He was more than 

an incredibly gifted, Academy Awardwinning actor; his zeal for life was evident through his remarkable charitable 

work and favorite pastimes. 

Paul Leonard Newman was born in 

Shaker Heights, OH, on January 26, 

1925, to Arthur and Theresa Newman. 

Though he hoped to be a professional 

athlete, his gift for the performing arts 

showed early as he acted in grade 

school and high school plays. After 

high school he served in the U.S. Navy 

Air Corps and eventually went on to 

study theatre at prestigious institutions such as the Yale School of Drama 

and the famous Actor’s Studio in New 

York. 

In the 1950s his acting career began 

in theatre and television. He moved to 

films and was eventually nominated for 

10 Oscars—winning Best Actor for ‘‘The 

Color of Money’’ and also two honorary 

Oscars. He played many major roles in 

classic American films such as ‘‘Exodus,’’ ‘‘Hud,’’ ‘‘Butch Cassidy and the 

Sundance Kid,’’ ‘‘The Verdict,’’ ‘‘The 

Sting,’’ and ‘‘Absence of Malice.’’ His 

legendary performances will forever 

entertain and captivate the American 

imagination. 

Paul was not only an iconic actor, 

but he also fervently cared about our 

Nation. He opposed the Vietnam war 

and ardently favored civil rights and 

equality. In addition he was a worldclass race car driver, and a flourishing 

nonprofit entrepreneur. He founded the 

popular Newman’s Own line of food 

products 25 years ago, and 100 percent 

of its profits are donated to charities 

around the world. Among those charities are the Hole in the Wall Camps 

that Paul helped to create over 20 

years ago. These camps allow for a 

carefree experience for children with 

illnesses. Newman’s Own has raised 

$250 million so far. 

When his son, Scott, tragically 

passed away, Paul established the 

Scott Newman Center in 1980 to prevent drug abuse through educating 

children. He also helped to cofound the 

Committee Encouraging Corporate 

Philanthropy, a consortium of global 

CEOs in support of corporate giving. 

Paul Newman lived his life by giving to 

others and encouraging others to give. 

He is survived by his wonderful wife 

of 50 years, award-winning actress Joanne Woodward; five daughters, Susan, 

Stephanie, Melissa, Nell, and Clea; two 

grandchildren; and his brother Arthur. 

I send my deepest condolences to them. 

Our Nation lost an amazing talent 

and humanitarian with the passing of 

Paul Newman, but his legacy to the 

State of California and to all of America will live on. 

f 

GAO SLOT AUCTION RULING 

Mrs. MURRAY. Mr. President, as 

chairman of the Appropriations Subcommittee on Transportation, Housing 

and Urban Development, and Related 


rfrederick on PROD1PC67 with SENATE
S10462 CONGRESSIONAL RECORD — SENATE October 2, 2008 

Agencies, I rise with my ranking member, Senator BOND, as well as the bipartisan leadership of the Senate Commerce Committee, to address an important issue pertaining to the Federal 

Aviation Administration, FAA. That 

issue is the agency’s plans to engage in 

the practice of auctioning off landing 

and takeoff slots at slot-controlled airports. 

Controversial aviation issues do not 

always garner immediate agreement on 

the part of all committee and subcommittee leaders in the Senate. They 

often trigger disagreements fueled by 

regional interests or differing views on 

the appropriate role of the Department 

of Transportation, DOT, in regulating 

the market. But in this instance, it 

should be noted that all four Senators 

with authorizing and appropriating responsibilities for the FAA are in agreement that the FAA’s plans are illegal. 

We do not come to that conclusion 

lightly. Just yesterday, the committee 

received an authoritative legal opinion 

from the General Counsel of the Government Accountability Office, GAO, 

that reached that same conclusion. 

GAO’s legal opinion should not come 

as a surprise to the FAA. Indeed, the 

FAA, as recently as 2 years ago, was of 

the same view as GAO and stated in 

the Federal Register that it did not 

have the authority to proceed with 

such slot auctions. More recently, however, the General Counsel at the DOT 

concocted what, in my view, is a new 

far-fetched legal argument for the purpose of evading the clear limitations 

imposed by the authorizing statute and 

appropriations law. The GAO reviewed 

the Department’s new interpretations 

of the law and found that they don’t 

hold water. Indeed, the GAO concluded 

that, if the FAA were to proceed with 

these auctions, the agency would be engaging in a blatant violation of the 

Antideficiency Act. This legal opinion 

matters not simply because it corroborates our collective bipartisan interpretation of the authorizing and appropriations laws. It matters because the 

GAO is statutorily charged with making determinations regarding violations of Appropriations law including 

the Antideficiency Act. 

One would think that this opinion 

would bring an end to this debate. 

Since we now know, in advance, how 

the GAO would rule on this question, 

one would expect the DOT to abandon 

its interpretation and cancel its 

planned auctioning of slots. To do otherwise would signal the agency’s intention to proceed with a process that will 

almost certainly be found to be illegal. 

Unfortunately, we are getting indications that this is precisely what the 

Department intends to do—proceed 

with these slot auctions whether they 

are legal or not. I find the Secretary’s 

plans to be both startling and disappointing. In my view, agency heads 

should not be launching into actions 

that are likely to be found to be illegal. 

And equally important, political appointees should not be forcing nonpolitical officials in their departments 

to participate in such acts. 

So, Mr. President, I, along with my 

colleagues, am taking the time of the 

Senate to implore Secretary Peters to 

review the GAO’s findings and abandon 

the Department’s plans. To do otherwise will just subject the taxpayers to 

the costs both of litigating this matter 

while holding a losing hand. The taxpayers will also have to foot the bill for 

financing the operation of this slot 

auction process. This represents an expense potentially in the millions of 

dollars. Those funds would be much 

better spent addressing the long list of 

critical safety improvements that must 

be made by the FAA. 

Mr. BOND. It is a rare occurrence in 

the Senate to get this level of strong 

bipartisan cooperation, and I thank the 

chair and our colleagues on the Commerce Committee, Senators INOUYE

and HUTCHISON, for their support on 

this issue. 

As you mentioned, I, too, am concerned that the administration will ignore the impartial legal opinion articulated by the GAO on slot auctions and 

proceed with their ill-conceived plan. 

The flying public and taxpayers are 

not well served by carrying through on 

a plan that will only lead to increased 

delays and costly litigation. Our aviation system needs a comprehensive 

overhaul, operationally and technologically, to fix the problems of congestion. An untested scheme to further 

tax airlines and passengers is certainly 

not what is needed. The delayed and 

weary flying public deserves better. 

Should the administration proceed 

with their illegal auction scheme, it 

will do nothing to reduce congestion 

and will only postpone needed reforms 

to the system. The problem of chronic 

congestion and delays in our aviation 

system deserves the full attention of 

all of the stakeholders involved in 

aviation—from the administration and 

Congress, the airlines, airports, customers, and the air traffic controllers 

and operational personnel that keep 

our system moving. With the GAO’s 

legal ruling, it is my hope that we can 

move past this failed idea and work towards a real solution. 

I look forward to working with you 

and our Commerce Committee colleagues in addressing the fundamental 

causes of delays and congestion 

throughout our system and thank you 

all again for your continued leadership 

and support on the issue. 

Mr. INOUYE. Mr. President, as chairman of the Senate Commerce, Science, 

and Transportation Committee, I rise 

in support of the remarks made by my 

colleagues and would like to express 

my concern with moving forward on 

this proposal. 

Clearly, such a profound change in 

aviation policy must be supported by 

Congress and the agency’s underlying 

authorizing legislation. Congress, however, has consistently opposed the 

DOT’s attempt to auction slots and explicitly prohibited such actions in P.L. 

110–161. Just this week, the GAO reaffirmed the position of Congress when 

it issued an opinion which concluded 

DOT’s proposed initiative to auction 

slots is illegal. 

It is perplexing that the DOT continues to pursue this course of action 

in the face of such strong Congressional opposition. Further, I am astonished that they would continue down 

this road in the face of legislation that 

clearly prohibits them from taking 

such action. I, along with my colleagues, implore the DOT to abandon 

its efforts to auction slots. The administration should focus its energy on 

more important issues, such as modernizing the Air Traffic Control System and ensuring the safety of its passengers. 

Mrs. HUTCHISON. Mr. President, I 

thank my friends from the Appropriations Committee along with Commerce 

Committee Chairman INOUYE for their 

leadership and agreement on this issue. 

In the absence of explicit authority and 

in response to the GAO determination, 

I join my colleagues in urging DOT to 

cease action on any current auction 

proposal. 

I believe market based solutions 

should play a role in the future of our 

congested airports, but the path the 

Department has taken is shortsighted, 

untimely and according to the GAO, 

apparently illegal. Instead, the Department should further focus on mitigating delays through capacity enhancements at congested airports. 

Mrs. MURRAY. Mr. President, I very 

much want to thank my colleagues for 

engaging in this discussion today. I ask 

unanimous consent to have the legal 

opinion sent to us by the GAO General 

Counsel printed in the RECORD. 

There being no objection, the material was ordered to be printed in the 

RECORD, as follows: 

Subject: Federal Aviation Administration— 

Authority to Auction Airport Arrival 

and Departure Slots and to Retain and 

Use Auction Proceeds 

GOVERNMENT ACCOUNTABILITY OFFICE

Washington, DC, September 30, 2008. 

Hon. JAMES L. OBERSTAR, 

Chairman, Committee on Transportation and 

Infrastructure, House of Representatives. 

Hon. PATTY MURRAY, 

Chairman, Subcommittee on Transportation, 

Housing, and Urban Development, and Related Agencies, Committee on Appropriations, U.S. Senate. 

Hon. CHRISTOPHER S. BOND, 

Ranking Minority Member, Subcommittee on 

Transportation, Housing, and Urban Development, and Related Agencies, Committee 

on Appropriations, U.S. Senate. 

Hon. FRANK R. LAUTENBERG, 

Hon. ROBERT MENENDEZ, 

Hon. CHARLES E. SCHUMER, 

Hon. HILLARY RODHAM CLINTON, 

U.S. Senate. 

This responds to your request for our legal 

opinion regarding the authority of the Federal Aviation Administration (FAA) to auction airport arrival and departure slots. As 

part of its efforts to reduce congestion in the 

national airspace, in April and May 2008, 

FAA issued proposed regulations to conduct 

such auctions at three New York-area airports—LaGuardia Airport (LaGuardia), John 


rfrederick on PROD1PC67 with SENATE
October 2, 2008 CONGRESSIONAL RECORD — SENATE S10463 

F. Kennedy International Airport (JFK), and 

Newark Liberty International Airport (Newark) at some time in the future. In August 

2008, FAA announced that it was proceeding 

to auction two specific slots at Newark on 

September 3, an action that has since been 

administratively stayed. On September 16, 

2008, FAA announced that ‘‘[i]n accordance 

with rulemaking activity that is not yet 

complete’’ and ‘‘if the rule is adopted,’’ it 

may auction slots at Newark, LaGuardia, 

and JFK starting on January 12, 2009. As 

agreed with your staff, this opinion addresses whether FAA has authority to auction 

slots and if it does, whether it may retain 

and use funds obtained through such auctions. 

We conclude that FAA currently lacks authority to auction arrival and departure 

slots, and thus also lacks authority to retain 

and use auction proceeds. For the first time 

since it began regulating U.S. navigable airspace nearly 40 years ago, FAA now asserts 

that it may assign the use of that airspace 

using its general property management authority. According to FAA, slots are intangible ‘‘property’’ that it ‘‘constructs,’’ owns, 

and may ‘‘lease’’ for ‘‘adequate compensation’’ under 49 U.S.C. §§106 (l)(6) and (n) and 

40110(a)(2). An examination of those statutes 

read as a whole, however, makes clear that 

Congress was using the term ‘‘property’’ to 

refer to traditional forms of property. It was 

not referring to FAA’s regulatory authority 

to assign airspace slots, no matter how valuable those slots may be in the hands of the 

regulated community. Related case law confirms our conclusion. The only other source 

of authority for FAA to raise funds in connection with its slot assignments is the Independent Offices Appropriations Act (IOAA), 

31 U.S.C. §9701, commonly referred to as the 

‘‘user fee statute,’’ but that authority is currently unavailable. Since 1998, Congress has, 

through annual appropriations restrictions, 

specifically prohibited FAA from imposing 

‘‘new aviation user fees,’’ and we conclude 

that proceeds from FAA’s proposed auctions 

would constitute such a fee. Accordingly, in 

our opinion, FAA lacks a legal basis to go 

forward with the Newark auction or any 

other auction, and if FAA were to go forward 

with auctioning slots without obtaining the 

necessary authority and retained and used 

the proceeds, GAO would raise exceptions 

under its account settlement authority for 

violations of the ‘‘purpose statute,’’ 31 U.S.C. 

§1301(a), and the Antideficiency Act, 31 

U.S.C. §1341(a)(1)(A). 

BACKGROUND

FAA’s control of congestion in the national airspace by use of a ‘‘reservation’’ or 

‘‘slot’’ system is not new. What is new is 

FAA’s proposal to assign the slots by auction. FAA first instituted a slot control system nearly 40 years ago, in 1968, in the socalled High Density Rule. See 33 Fed. Reg. 

17896, 17898 (Dec. 3, 1968); 14 C.F.R. §§93.121– 

93.129 (1969). Supplementing the traditional 

first-come, first-served traffic control system, the High Density Rule capped the number of hourly arrivals and departures permitted at five designated ‘‘high density traffic airports’’—LaGuardia, JFK, Newark, 

Washington National Airport (Washington 

National), and Chicago O’Hare International 

Airport—and required air carriers to obtain 

a ‘‘reservation’’ for these operations from 

Air Traffic Control (ATC). The number of 

reservations available for assignment varied 

by airport, time of day, and class of user. 

In promulgating the High Density Rule, 

FAA acknowledged that it was acting pursuant to its regulatory authority to ensure the 

efficient use of the national airspace under 

sections 307(a) and (c) of the Federal Aviation Act of 1958. 33 Fed. Reg. at 17897, 17898. 

That act created FAA (as the Federal Aviation Agency) and directed the FAA Administrator to: ‘‘assign by rule, regulation, or 

order the use of the navigable airspace under 

such terms, conditions, and limitations as he 

may deem necessary in order to insure the 

safety of aircraft and the efficient utilization of such airspace. He may modify or revoke such assignment when required by the 

public interest. . . . [The Administrator 

also] is authorized to prescribe air traffic 

rules and regulations governing the flight of 

aircraft, for the navigation, protection, and 

identification of aircraft, for the protection 

of persons and property on the ground, and 

for the efficient utilization of the navigable 

airspace. . . .’’ 

Federal Aviation Act of 1958, Pub. L. No. 

85–726, §307(a), (c), 72 Stat. 731, 749–50, 49 

U.S.C. §1348 (a), (c) (1968) (emphasis added). 

See generally Northwest Airlines, Inc. v. 

Goldschmidt, 645 F.2d 1309 (8th Cir. 1981) (upholding 1980 amendment to High Density 

Rule as exercise of FAA’s section 307(a) and 

(c) authority to regulate efficient use of airspace). 

Reservations under the High Density Rule 

initially were allocated by agreements between the airlines (acting through airport 

scheduling committees) and ATC and by 

rule, the vast majority of reservations were 

set aside for assignment to scheduled air carriers. See 14 C.F.R. §93.123(a) (1969). Because 

only a few carriers held certificates of public 

convenience and necessity for these airports, 

as required prior to deregulation of the airline industry in the early 1980’s, there was 

only limited competition for the reservations. With deregulation, however, any licensed carrier could service any high density 

airport, with the result that airport scheduling committees could no longer reach 

agreements acceptable to prospective new 

entrants and incumbent airlines wishing to 

expand their operations. 

To accommodate the resulting demand for 

reservations while ensuring continuity of operations for carriers providing regularly 

scheduled service, FAA amended the High 

Density Rule effective in 1986. See 50 Fed. 

Reg. 52180 (Dec. 20, 1985). It again acknowledged that it was acting pursuant to its regulatory authority under sections 307(a) and 

(c) of the Federal Aviation Act to ensure the 

efficient use of the national airspace. Id. at 

52181. Under a ‘‘grandfather’’ policy, FAA 

initially assigned most reservations—now 

called ‘‘slots’’—to the carriers who already 

held them under scheduling committee 

agreements. For the first time, FAA also authorized carriers to sell, lease, or otherwise 

transfer the slots among themselves, subject 

to confirmation by FAA and to a determination by the Secretary of Transportation that 

transfer ‘‘will not be injurious to the essential air service program.’’ Slots could be 

withdrawn at any time for FAA operational 

needs, and under a ‘‘use-or-lose’’ provision, 

slots not used 65 percent of the time would 

be recalled. FAA made clear that ‘‘[s]lots do 

not represent a property right but represent 

an operating privilege subject to absolute 

FAA control.’’ 

In issuing the 1986 amendments, FAA noted 

that it had decided not to pursue a proposal 

it had made in 1980, to assign slots by means 

of an auction. It explained this was because 

‘‘legislation would be required for the collection and disposition of the proceeds.’’ Id. at 

52183. FAA noted that ‘‘several unresolved 

legal questions’’ had been raised by the Department of Justice which DOJ believed 

would make an auction ‘‘impractical,’’ citing 

the Independent Offices Appropriations Act 

(IOAA), 31 U.S.C. §9701, commonly referred 

to as the ‘‘user fee statute.’’ IOAA could be 

problematic, FAA noted, ‘‘if these proceeds 

were to be applied for airport improvements 

. . . .’’ Id. As FAA had explained in its earlier proposal, this is because ‘‘in accordance 

with [IOAA], the money received as a result 

of any auction system will not be retained 

by DOT but will be paid into the Treasury of 

the United States. Other disposition of the 

revenues . . . [is] not now authorized by statute.’’ 45 Fed. Reg. 71236, 71240, 71241 (Oct. 27, 

1980). 

Over time, Congress became concerned 

that the High Density Rule, particularly the 

1986 amendments, hurt competition, unfairly 

favored incumbent airlines, and was not the 

best means to reduce congestion. After enacting several measures in the 1980s and 

1990s requiring greater access for certain 

service providers, in 2000, Congress directed 

FAA to phase out the High Density Rule altogether, at LaGuardia, JFK, and O’Hare, no 

later than January 1, 2007. At about this 

same time, Congress also began to enact annual appropriations restrictions prohibiting 

FAA from promulgating any ‘‘new aviation 

user fees’’ unless specifically authorized by 

statute. The first of these restrictions was 

enacted in 1997 for fiscal year 1998, and the 

most recent was enacted in 2007 for fiscal 

year 2008. 

As the 2007 High Density Rule phase-out 

deadline approached, FAA remained concerned about congestion. In August 2006, it 

therefore proposed to continue caps on hourly arrivals and departures at LaGuardia and 

to assign the majority of slots (now called 

‘‘operating authorizations’’) to incumbent 

carriers. 71 Fed. Reg. 51360 (Aug. 29, 2006). 

FAA also now proposed to set expiration 

dates for most slots, with 10 percent of the 

slots each year to be redistributed, as they 

expired, using a market-based mechanism 

yet to be determined. FAA could not propose 

a specific market mechanism at that time, it 

explained, because it lacked authority to do 

so and would be seeking such authority from 

Congress: ‘‘[FAA] will seek authority to utilize market-based mechanisms at LaGuardia 

in the future [to allocate capacity]. Such 

legislation would be necessary to employ 

market-based approaches such as auctions or 

congestion pricing at LaGuardia because the 

FAA currently does not have the statutory authority to assess market-clearing charges for a 

landing or departure authorization. If Congress 

approves the use of market-based mechanisms as we plan to propose, a new rulemaking would be necessary to implement 

such measures at LaGuardia.’’ 

Id. at 51362 (emphasis added); see also id. at 

51363. FAA subsequently requested such authority from Congress, but it has not been 

enacted. When FAA was unable to finalize its 

2006 proposal before the January 1, 2007 

phase-out deadline, it issued a series of temporary ‘‘capping orders’’ maintaining caps 

and slots at LaGuardia, JFK, and Newark. 

Finally, as noted above, in April and May 

2008, FAA issued its most recent proposals 

for a cap and slot system at LaGuardia, JFK, 

and Newark. FAA proposes to continue to assign the majority of slots to incumbent carriers and, as in its 2006 proposal, to withdraw 

a portion of the slots for re-distribution 

(along with unassigned slots). However, calling its 2006 legal analysis ‘‘overly simplistic’’ 

and ‘‘incorrect,’’ FAA now proposes to do 

what it previously stated it had no authority 

to do: assign the withdrawn slots by auctioning slot ‘‘leaseholds’’ to the highest bidder. The proceeds from the auctions would 

either be retained by FAA and used to mitigate congestion in the New York City area 

or, after deducting FAA’s administrative 

costs, paid to the airline that previously held 

the auctioned slot. To impose caps on hourly 

arrival and departure slots, FAA continues 

to rely on its regulatory authority to ensure 

efficient use of the airspace, now codified at 

49 U.S.C. §40103(b)(1), (2). See 73 Fed. Reg. at 


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S10464 CONGRESSIONAL RECORD — SENATE October 2, 2008 

20846, 29626. To assign the slots by auctioning 

slots leaseholds, FAA for the first time relies 

on its general authority to lease or otherwise dispose of ‘‘property’’ under 49 U.S.C. 

§§106 and 40110. See id. at 20853, 29631. 

ANALYSIS

Whether FAA may raise funds in connection with its assignment of slots—by holding 

a slot auction, imposing a user fee, assessing 

a tax, or by some other mechanism—depends 

on whether it has the proper statutory authority. Congress has granted FAA explicit 

statutory authority to collect fees in several 

different situations, but no explicit authority exists for the imposition of fees related 

to the assignment of slots. We therefore look 

to whether FAA has any other authority 

that would permit it to auction slots. 

I. FAA’s authority to auction slots under its 

property disposition authority 

In evaluating whether FAA may assign 

slots using its general property disposition 

authority, it is important to understand 

what a slot is. FAA has consistently characterized a slot as an ‘‘operating authorization’’ or ‘‘operational authority’’ to conduct 

one operation (arrival or departure) in the 

airspace during a specified time period. At 

the five high density airports, this authorization is in addition to the authorization or 

‘‘clearance’’ that must be obtained from ATC 

to operate within the airspace at those facilities. 14 C.F.R. §§91.131(a)(1), 91.173. While 

these two authorizations differ in some respects—clearances are normally required of 

all users of this airspace, while slots, due to 

capacity demands, are issued only to some 

users—both constitute regulatory permission 

without which aircraft may not be operated. 

So understood, a slot is a regulatory license—a legal permission, revocable by FAA, 

to conduct an act that otherwise would not 

be permitted. 

As FAA itself emphasizes, it is also important to understand that caps and slots are 

two interconnected parts of FAA’s regulatory structure to ensure the efficient use 

of the airspace. 2008 FAA Letter at 1. Limiting aircraft traffic by capping the number 

of arrivals and departures reduces the 

amount of traffic that is airborne, but it 

does not avoid the backup of aircraft seeking 

access to the air traffic system or provide a 

mechanism for prioritizing traffic. Assigning 

slots accomplishes this objective; without 

slots, traffic will queue on a first-come-firstserved basis (as it does at non-slot controlled 

airports), undermining scheduling. Whether 

the assignment system is called a reservation system, an operating authorization system, or a slot system, the use of an assignment mechanism is key to accomplishing 

what FAA believes is necessary to promote 

orderly and efficient traffic flow and use of 

airspace. 

According to FAA, however, slots are not a 

license but ‘‘property’’ that it ‘‘acquires’’ or 

‘‘constructs’’ and, as the property ‘‘owner,’’ 

may ‘‘lease’’ using its general property disposition and contracting authority in 49 

U.S.C. §§106 (l)(6) and (n) and 40110(a)(2). Section 106(n)(1) authorizes FAA: ‘‘(A) to acquire 

(by purchase, lease, condemnation, or otherwise), construct, improve, repair, operate, 

and maintain—(i) air traffic control facilities and equipment; (ii) research testing sites 

and facilities; and (iii) such other real and 

personal property (including office space and 

patents), or any interest therein . . . as the 

Administrator considers necessary; [and] (B) 

to lease to others such real and personal 

property . . . .’’ 

Section 106(l)(6) authorizes FAA: ‘‘[to enter 

into] such contracts, leases, cooperative 

agreements, or other transactions as may be 

necessary to carry out the functions of 

FAA.’’ 

Section 40110(a)(2) authorizes FAA: ‘‘[to] 

dispose of an interest in property for adequate compensation. . . .’’ 

(All emphasis added.) 

As evidence that these provisions authorize slots to be ‘‘leased’’ as ‘‘property,’’ FAA 

points to bankruptcy proceedings where 

slots subject to lease have been accorded 

some proprietary status. 2008 FAA Brief at 

41–43. FAA asserts that it, too, has a property interest in slots subject to lease because: (1) FAA has sovereignty over U.S. 

navigable airspace; (2) airspace has been 

characterized as ‘‘public property;’’ (3) FAA 

regulates the use of navigable airspace; (4) as 

a ‘‘product’’ of its regulation, FAA has ‘‘constructed’’ slots as an ‘‘intangible property 

interest’’ in airspace use; and (5) as the slot 

‘‘constructor,’’ FAA ‘‘owns’’ and may 

‘‘lease’’ its ‘‘intangible’’ slots. FAA states 

further that it may—in fact, must—charge 

‘‘adequate compensation,’’ and even ‘‘market 

prices,’’ for this ‘‘property’’ under 49 U.S.C. 

§40110. 2008 FAA Brief at 41, 50–53. 

As discussed below, however, slots are not 

‘‘property’’ subject to FAA’s property disposition authority. Nor are they the mere 

‘‘product’’ of FAA regulation; they are FAA 

regulation. Moreover, FAA’s argument that 

slots are property proves too much—it suggests that the agency has been improperly 

giving away potentially millions of dollars of 

federal property, for no compensation, since 

it created the slot system in 1968. 

A. 

Parsing its property acquisition and disposition authorities under 49 U.S.C. §§106(n) 

and 40110(a)(2) and applying general dictionary definitions, FAA maintains that 

when it uses its regulatory authority to delineate a time period for authorized takeoff 

or landing—a slot—it ‘‘constructs’’ or ‘‘acquires’’ an intangible ‘‘property’’ interest in 

airspace use that it may ‘‘lease’’ to others 

for ‘‘adequate compensation.’’ 2008 FAA Letter at 2–3; 2008 FAA Brief at 47–48. ‘‘Understanding Congressional will requires more 

than the mechanical application of dictionary definitions,’’ however, see Faircloth v. 

Lundy Packing Co., 91 F.3d 648, 660 (4th Cir. 

1996) (Michael, J., concurring and dissenting), and it is a cardinal rule of statutory construction that statutes must be read 

as a whole, ‘‘since the meaning of statutory 

language, plain or not, depends on context.’’ 

King v. St. Vincent’s Hospital, 502 U.S. 215, 221 

(1991) (citations omitted). When taken in 

context and read as a whole, the term ‘‘property’’ as used in FAA’s statute clearly refers 

to traditional property, not to FAA’s regulatory licensing authority over the use of 

navigable airspace. Almost all of the ‘‘property’’ examples listed in 49 U.S.C. §106(n)(1) 

are traditional tangible property—real estate, equipment, and infrastructure—and the 

legislative history repeats the same examples. See H. R. Conf. Rep. 104–848 (1996) at 107, 

1996 U.S.C.C.A.N. 3703, 3729. The other example referenced in §106(n)—a patent— has long 

been recognized as intangible property. 

Other terminology used in §106(n)(1) reinforces that Congress was referring to traditional property. For example, the statute refers to property that is ‘‘leased’’ and ‘‘condemned’’ (applied to traditional real property) and ‘‘constructed, improved, repaired, 

operated, and maintained’’ (applied to traditional real and personal property). Under the 

statutory construction rule of ejusdem generis, ‘‘such other . . . property . . . or any 

interest therein’’ as used in §106(n)(1)(A) 

must mean property of a nature similar to 

the traditional real and personal property 

examples cited in the statute. This would 

not include FAA’s regulatory authorizations 

for aircraft takeoffs and landings—that is, 

slots. 

The structure of FAA’s statutory authority and its legislative history support this 

conclusion. Congress has given FAA different 

authorities to carry out different responsibilities—it has regulatory authority in 49 

U.S.C. §40103 to ensure the safe and efficient 

use of the navigable airspace, and property 

acquisition and disposition authority in 49 

U.S.C. §§106 and 40110 to support FAA’s mission and general operations. As relevant 

here, FAA has had these same basic authorities since its creation in 1958. The fact that 

Congress authorized FAA to carry out its 

regulatory responsibilities (including assignment of slots) under the strictures of §40103 

undercuts FAA’s argument that Congress simultaneously authorized FAA to carry out 

many of these same responsibilities under 

the very different strictures of §§106 and 

40110. Congress has never suggested as much 

in the half-century of FAA’s existence, nor, 

until 2008, has FAA. Thus FAA may not rely 

on its general property disposition authority 

to carry out its regulatory slot assignment 

functions. See, e.g., American Petroleum Inst. 

v. EPA, 52 F.3d 1113, 1119–20 (D.C. Cir. 1995) 

(EPA cannot rely on general rulemaking authority to regulate air pollutant in manner 

conflicting with authority specific to that 

pollutant and ‘‘cannot uncouple the first 

sentence of [Clean Air Act provision] from 

the rest of the section in order to expand its 

authority beyond the aims and limits of the 

section as a whole.’’). 

Finally, FAA’s reading of its property authority, particularly the purported significance of a 1996 amendment to that authority, 

is unavailing because it would interfere with 

Congress’ constitutional prerogatives to set 

programmatic spending levels and oversee 

agency activities. U.S. Const. Art. I, Sec. 9, 

cl. 7. As noted above, in the past FAA has 

considered imposing a user fee under IOAA 

in connection with its assignment of slots. 

Congress also has considered FAA’s imposition of user fees. In FAA’s 1996 reauthorization legislation, for example, Congress authorized FAA to charge certain cost-based 

user fees, but called for further study of the 

agency’s funding needs and funding mechanisms. See Air Traffic Management System 

Performance Improvement Act of 1996, Pub. 

L. No. 104–264, Title II, §§221(12), 273, 274. And 

in 1997, Congress enacted the first of its nowannual appropriations restrictions expressly 

prohibiting FAA from imposing any ‘‘new 

aviation user fees’’ without specific statutory authority. FAA nevertheless asserts 

that when Congress amended its property authority in the 1996 reauthorization act by enacting §106(n)—which clarified FAA’s property acquisition authority to include personal as well as real property, and authority 

not just to ‘‘acquire’’ property but, as discussed above, to ‘‘construct, improve, repair, 

operate, and maintain’’ it, see Pub. L. No. 

104–264, §228, codified at 49 U.S.C. 106(n)—this 

amendment granted FAA authority to ‘‘construct’’ and auction slots. 2008 FAA Brief at 

47–48. Given Congress’ substantial concerns 

about FAA’s imposing user fees in 1996 and 

its outright ban on new FAA aviation user 

fees the following year, we find it highly unlikely that Congress at the same time authorized FAA to obtain non-appropriations 

funding through the ‘‘back door’’ of its general property disposition authority. 

B. 

Case law regarding the legal status of slots 

and regulatory licenses confirms our conclusion that slots are not ‘‘property’’ in the 

hands of FAA. To demonstrate that slots are 

property, FAA cites three bankruptcy 

cases—In re McClain Airlines, Inc., 80 B.R. 175 

(Bankr. D. Ariz. 1987); In re American Central 

Airlines, 52 B.R. 567 (Bankr. N.D. Iowa 1985); 

and In re Gull Air, Inc., 890 F.2d 1255 (1st Cir. 


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1989)—which considered whether an airline in 

bankruptcy had a sufficient proprietary interest in its slots to include them as ‘‘property of the estate’’ (or in McClain, an interest in a right to seek restoration of a withdrawn slot). 2008 FAA Brief at 42–43, 61; 2008 

FAA Letter at 3. The courts in these cases 

focused in part on the fact that after FAA’s 

1986 amendments to the High Density Rule, 

carriers could sell, lease, or otherwise transfer slots among themselves. 

The cases do not support FAA’s position. 

At most, they recognize the undisputed fact 

that slots have value in the hands of carriers 

to whom they are assigned, at least when the 

slots are transferable to other carriers. The 

decisions do not address the issue we face 

here: the nature of slots when they are unassigned and ‘‘held’’ by FAA. In fact, the cases 

underscore the limited nature of slots even 

after they are assigned: they remain subject 

to FAA withdrawal at any time for operational reasons and to FAA recall for nonuse. In Gull Air, for example, the most recent, and the only appellate court, decision 

cited by FAA, FAA itself argued that slots 

were not the carrier’s property but rather, as 

specified in FAA’s regulations, ‘‘operating 

privileges subject to absolute FAA control.’’ 

890 F.2d at 1258. The First Circuit Court of 

Appeals ruled only that slots’ transferability 

under the High Density Rule created a ‘‘limited proprietary interest in slots’’ that is 

‘‘encumbered by conditions that FAA imposed in its regulations.’’ Id. at 1260. The 

court declined to decide whether the slots 

constituted ‘‘property of the estate’’ because 

whatever that interest was, it was lost automatically under FAA’s ‘‘use or lose’’ requirement when the airline ceased operations. 

Thus Gull Air stands only for the proposition 

that slots have one characteristic of property—transferability—which may qualify 

slots as ‘‘property of the estate’’ under the 

Bankruptcy Code when held by carriers. This 

is a far cry from finding that slots are FAA’s 

‘‘property’’ subject to its property disposition statute. 

Furthermore, even if slots were not transferable, there is little doubt that they have 

value to carriers. Yet the U.S. Supreme 

Court has made clear that the fact that a 

government license is valuable to the license 

holder does not render the license ‘‘property’’ in the hands of the issuing agency. 

Rather, the license is ‘‘no more and no less 

than [the agency’s] sovereign power to regulate.’’ Cleveland v. United States, 531 U.S. 12, 

23 (2000). In Cleveland, the Supreme Court had 

to decide whether a Louisiana video poker 

machine license was ‘‘property’’ under the 

federal mail fraud statute, which makes it a 

felony to use the mail to further ‘‘any 

scheme . . . to defraud, or for obtaining 

money or property by means of false or fraudulent pretenses . . . .’’ 18 U.S.C. 1341 (emphasis added). Upholding the rulings of five circuit courts of appeals, the unanimous Supreme Court ruled that the licenses were not 

‘‘property’’ when held by the issuing state 

agency: 

‘‘Without doubt, Louisiana has a substantial economic stake in the video poker industry. The State collects an upfront ‘processing fee’ for each new license application 

. . ., a separate ‘processing fee’ for each renewal application . . ., an ‘annual fee’ from 

each device owner . . ., an additional ‘device 

operation’ fee . . ., and, most importantly, a 

fixed percentage of net revenue from each 

video poker device . . . It is hardly evident, 

however, why these tolls should make video 

poker licenses ‘property’ in the hands of the 

State. The State receives the lion’s share of 

its expected revenue not while the licenses 

remain in its own hands, but only after they 

have been issued to licensees. Licenses preissuance do not generate an ongoing stream 

of revenue. At most, they entitle the State 

to collect a processing fee from applicants 

for new licenses. Were an entitlement of this 

order sufficient to establish a state property 

right, one could scarcely avoid the conclusion 

that States have property rights in any license 

or permit requiring an up front fee, including 

drivers’ licenses, medical licenses, and fishing 

and hunting licenses. Such licenses, as the Government itself concedes, are ‘purely regulatory.’’’ 

531 U.S. at 22 (second emphasis added). 

FAA compares its proposed slot leases to 

patents, a type of intangible property it is 

authorized to dispose of under 49 U.S.C. 

106(n)(1)(A)(ii). 2008§FAA Brief at 33, 51. But 

the Cleveland Court rejected this patent 

analogy, which had been made by the United 

States: 

‘‘[T]hese intangible rights of allocation, 

exclusion, and control amount to no more 

and no less than Louisiana’s sovereign power 

to regulate. . . [T]he state’s right of control 

does not create a property interest any more 

than a law licensing liquor sales in a State 

that levies a sales tax on liquor. Such regulations are paradigmatic exercises of the States’ 

traditional police powers. 

‘‘The Government compares the State’s interest in video poker licenses to a patent 

holder’s interest in a patent that she has not 

yet licensed. Although it is true that both 

involve the right to exclude, we think the 

congruence ends there. Louisiana does not 

conduct gaming operations itself, it does not 

hold video poker licenses to reserve that prerogative, and it does not ‘‘sell’’ video poker 

licenses in the ordinary commercial sense. 

Furthermore, while a patent holder may sell 

her patent . . ., the State may not sell its licensing authority. Instead of a patent holder’s interest in an unlicensed patent, the better 

analogy is to the Federal Government’s interest in an unissued patent. That interest, 

like the State’s interest in licensing video poker 

operations, surely implicates the Government’s 

role as sovereign, not as property holder.’’ 

531 U.S. at 23–24 (emphasis added). 

Just as Louisiana did not run the video 

poker machines in Cleveland, so FAA does 

not operate commercial air carriers. Just as 

Louisiana regulated gaming as part of its police power to protect the public welfare, so 

FAA regulates air traffic as part of its responsibility to ensure efficient use of the national airspace. As in Cleveland, the fact that 

FAA’s slots have value to slot holders does 

not transform them into alienable ‘‘property’’ in FAA’s hands. FAA seeks to distinguish Cleveland because the licenses there 

were not transferable, and because a rule of 

leniency applicable to criminal statutes 

drove the Supreme Court’s interpretation. 

As noted above regarding Gull Air, however, 

slot transferability is irrelevant to FAA’s 

‘‘property’’ rights because slots do not acquire this trait until after FAA assigns them. 

And while FAA’s property disposition provisions are not criminal statutes, studied skepticism in defining their reach is also warranted. In this regard, there is an acute public interest in protecting Congress’ exercise 

of its constitutional responsibility to set 

spending levels through the appropriations 

process, and as discussed above, this would 

be jeopardized if FAA could circumvent the 

appropriations process by obtaining funding 

through slot auctions. 

II. FAA’s authority to auction slots under its 

user fee authority 

Because FAA may not auction slots under 

its property disposition authority and has no 

explicit authority to charge a fee for the assignment of slots, the only other arguable 

authority on which FAA could rely is IOAA. 

That authority is currently unavailable because as of fiscal year 1998, Congress has prohibited FAA’s imposition of any new aviation user fees unless it obtains specific statutory authority. Because FAA lacks authority to collect such fees, if it nevertheless 

goes forward with an auction, it may not retain or use the proceeds. 

To understand the impact of Congress’ prohibition, some context and a brief history 

are helpful. FAA is funded from a combination of sources, which can be roughly divided 

into three types: excise tax revenue, General 

Fund appropriations, and reimbursements 

from services provided and user fees charged. 

FAA, Fiscal Year 2007 Performance and Accountability Report, at 121. For the last 10 

years, Congress has annually prohibited FAA 

from implementing any ‘‘new aviation user 

fees’’ not authorized by Congress. The prohibition first appeared in the 1998 Department 

of Transportation and Related Agencies Appropriations Act and stated: 

‘‘[N]one of the funds in this Act shall be 

available for the Federal Aviation Administration to plan, finalize, or implement any 

regulation that would promulgate new aviation user fees not specifically authorized by 

law after the date of enactment of this Act.’’ 

Pub. L. No. 105–66, 111 Stat. 1425, 1429 (1997). 

At the time, the Conference Committee expressed ‘‘very serious concerns,’’ ‘‘on both 

technical and policy-related grounds,’’ about 

new aviation user fees that FAA had proposed. The Committee made clear that the 

existing excise tax system, supplemented by 

appropriated funds, would provide sufficient 

revenue for FAA without new fees. H. R. Rep. 

No. 105–313 at 40–41 (Conf. Rep.) (1997). The 

Committee specifically acknowledged the 

authority that IOAA generally provides to 

agencies and made clear that it intended to 

restrict this authority in FAA’s case: 

‘‘The conferees are aware of FAA’s opinion 

that the agency has the legal authority to 

establish new user fees under the generic authority provided in the User Fee Statute, 

and do not wish to see FAA circumvent the 

legislative process and avoid the normal cost 

controls which apply to other federal agencies through the administrative implementation of new user fees. The conferees emphasize, however, that this provision does not 

prevent the FAA from implementing new 

user fees. It only provides that such fees 

must be specifically authorized by the Congress.’’ 

Id. at 41. A slightly modified version of the 

restriction has been included in every subsequent yearly appropriation. The 2008 fiscal 

year prohibition states: 

‘‘[N]one of the funds in this [Appropriations] Act shall be available for the Federal 

Aviation Administration to finalize or implement any regulation that would promulgate new aviation user fees not specifically 

authorized by law after the date of the enactment of this Act.’’ 

Consolidated Appropriations Act, 2008, 

Pub. L. No. 110–161, 121 Stat. 1844, 2379 (2007). 

In considering the fiscal year 2008 prohibition, the House Committee on Appropriations commented on its ‘‘serious concerns 

about the impact of user fees,’’ and the Senate Committee on Appropriations expressed 

its desire that ‘‘any degradation in the Committee’s ability to annually set programmatic spending levels and oversee the 

agency’s spending habits as part of the reauthorization process should be strenuously resisted.’’ 

This fiscal year 2008 prohibition precludes 

FAA’s use of IOAA as authority to auction 

slots because FAA’s slot auctions would 

amount to a ‘‘new aviation user fee’’ not specifically authorized by law. FAA has never 

previously imposed a fee for authorization to 

use navigable airspace at a specific time; 

thus FAA’s slot auction would constitute exactly the type of ‘‘new aviation user fee’’ 


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that Congress has prohibited. Indeed, FAA 

recognized that slot auctions would constitute a user fee when it proposed to institute such a fee in 1980, and again in 1986 

when it decided not to do so. FAA also appeared to recognize that slot auctions would 

constitute a user fee in 2006 and 2007 when, in 

the face of the annual appropriations restrictions, it promised to and did seek legislation 

authorizing it to conduct the auctions. 

FAA’s April 2008 proposal in fact acknowledges that because of the appropriations restriction, FAA ‘‘continues to believe that it 

cannot rely on a market-based [slot] allocation method under a purely regulatory approach, which is why it explicitly sought legislation on this matter.’’ 73 Fed. Reg. at 

20846, 20852. 

FAA suggests that because it will conduct 

the Newark auction by solicitation of bids 

for slot leases, rather than by issuance of a 

new regulation, the language of the 2008 Consolidated Appropriations Act—which prohibits ‘‘any regulation’’ imposing new aviation user fees—does not apply. 2008 FAA 

Brief at 61 n. 36. Contrary to FAA’s suggestion, because the auction would, in effect, 

amount to a user fee under IOAA, and IOAA 

requires agencies to prescribe regulations to 

impose new user fees, see 31 U.S.C. §9701(b), 

implementation of the auction would require 

a new regulation. FAA cannot elude the requirements of otherwise applicable law simply by failing to follow the law’s requirements. ‘‘It is axiomatic that an agency cannot do indirectly what it is not permitted to 

do directly.’’ Forest Products Laboratory 

Agreement with University of Wisconsin, 55 

Comp. Gen. 1059 (1976). 

FAA points to examples of other agencies 

auctioning or charging market-based fees for 

use of public lands or other public ‘‘property.’’ 2008 FAA Brief at 48–49. These are inapposite because unlike FAA, those agencies 

had specific statutory authority for their activities. See, e.g, 16 U.S.C. §472a (U.S. Department of Agriculture auction of timber 

rights on National Forest Service land); 43 

U.S.C. §315b (U.S. Department of Interior 

issuance of grazing permits for public lands 

for ‘‘reasonable fees’’). FAA’s most analogous example is the Federal Communications Commission’s auction of license rights 

to the electromagnetic spectrum. Again, 

however, Congress has specifically authorized the FCC to conduct such auctions, including specifying the conditions necessary 

for auction, bidder qualifications, and treatment of auction proceeds. See 47 U.S.C. 

§309(j). As discussed above, despite FAA’s 

specific requests, Congress has given FAA no 

comparable auction authority. 

Finally, even if Congress were to remove 

the annual appropriations restriction that 

prohibits FAA from promulgating new aviation user fees, without other specific authority, it could impose only a cost-based fee, 

not the type of market-based fee it seeks to 

obtain by auctioning slots to the highest bidder. Under IOAA, when an agency is but one 

actor in the marketplace, it acts in a commercial, non-governmental capacity and 

may charge a fee based on the market price 

of the service provided. When instead an 

agency exercises its sovereign power and regulates activities based on public policy 

goals—as FAA would be acting, if it were to 

auction slots—it acts in a regulatory capacity, and user fees are limited to the agency’s 

costs of providing the specific benefit to the 

individual recipient. If FAA’s fee were based 

on market value and exceeded its cost of providing the slot to the recipient airline, the 

fee could rise to the level of a tax. A tax 

would be beyond IOAA’s grant of authority 

and FAA would have to have some other 

Congressionally-delegated authority to impose it. National Cable Television Ass’n, Inc. v. 

United States, 415 U.S. 336, 341 (1974); National 

Park Service—Special Park Use Fees, B– 

307319, Aug. 23, 2007. 

CONCLUSION

We conclude that FAA may not auction 

slots under its property disposition authority, user fee authority, or any other authority, and thus also may not retain or use proceeds of any such auctions. Going forward 

with the planned Newark auction or any 

other auction would be without legal basis, 

and if FAA conducted an auction and retained and used the proceeds, GAO would 

raise significant exceptions, under its account settlement authority, 31 U.S.C. §3526, 

for violations of the ‘‘purpose statute,’’ 31 

U.S.C. §1301(a), and the Antideficiency Act, 

31 U.S.C. §1341(a)(1)(A). 

If there are questions concerning these 

matters, please contact Managing Associate 

General Counsel Susan. D. Sawtelle at (202) 

512–6417 or Managing Associate General 

Counsel Susan A. Poling at (202) 512–2667. Assistant General Counsels David Hooper and 

Thomas H. Armstrong, Senior Attorney Bert 

Japikse, and Staff Attorney James Murphy 

also participated in preparing this opinion. 

Sincerely yours, 

GARY L. KEPPLINGER, 

f 

General Counsel. 

ETHOPIA 

Mr. BROWNBACK. Mr. President, I 

would like to voice my support for the 

difficult work that Ethiopia is doing on 

the battlefield of the war on terror in 

the Horn of Africa. Ethiopia is a country of great importance to the United 

States, and is located in what some 

have called one of the roughest neighborhoods in the world. As one of our 

strongest allies in this complicated region, Ethiopia has shown promise in 

meeting both economic and security 

challenges. 

Although Ethiopia remains one of 

the poorest countries in the world, it is 

developing a market-based economy 

which has experienced an impressive 10 

percent annual growth since 2003. In 

addition, the Government of Ethiopia, 

in close collaboration with regional 

and international health organizations, 

has achieved some success in addressing global public health concerns, including the fight against HIV/AIDS, tuberculosis and malaria. 

The US-Ethiopia bilateral relationship is strong and enduring. Ethiopia is 

a vital partner of the United States in 

the fight against terrorism, promoting 

regional stability and combating violent extremism. As a growing democracy, Ethiopia shares with the United 

States a common commitment to promoting freedom and human dignity. 

With respect to Ethiopia’s involvement in Somalia, it is important to understand that the U.S., U.N., E.U., and 

A.U., all have urged Ethiopia to remain 

in Somalia until replacement forces arrive or a stable government is formed. 

Ethiopian government officials have 

stated that while the Government of 

Ethiopia is anxious to remove their 

forces at the earliest possible time, it 

has delayed the withdrawal of troops 

from Somalia, at great political and 

economic cost, until replacement 

troops arrive to ensure the stability of 

Somalia’s Transitional Federal Government. 

Unfortunately, while several nations 

have pledged to send replacement 

troops under the auspices of the African Union, only a small fraction of 

those pledged have actually arrived. I 

am grateful that Ethiopia remains 

committed to securing stability and 

peace in Somalia, and hope that the 

full African Union contingent arrives 

soon to enable the safe withdrawal of 

Ethiopian forces. 

Ethiopia faces a host of ongoing challenges both at home and abroad, and 

merits our support and assistance. I 

urge my colleagues to join me in recognizing the progress made by this Ethiopia in promoting the health and welfare of its people, and assisting in the 

war on terror in the Horn of Africa. 

f 

PATIENT SAFETY AND ABUSE 

PREVENTION ACT 

Mr. KOHL. Mr. President, I speak 

today in support of the Patient Safety 

and Abuse Prevention Act, S. 1577. This 

bill takes needed, practical steps to 

protect seniors in nursing homes and 

other settings wherever long-term care 

services are delivered. The background 

check procedures used by most States 

today are inadequate to keep out thousands of criminals, who can and do 

take advantage of loopholes and gaps 

in State systems. This results in needless tragedies and terrible harm to seniors. 

As chairman of the Senate Aging 

Committee, I have read and heard 

about too many of these stories. One 

young woman, Jennifer Coldren, testified earlier this year that her 90-yearold grandmother was brutally assaulted by a predator who had a criminal record that went unnoticed. If a 

more comprehensive background check 

had been done on this individual, he 

would not have been working in this 

nursing facility, and the course of 

Jennifer’s life and her grandmother’s 

life would not have been so horribly altered. 

It is past time for the Federal Government to take the lead in asking 

States to improve their screening processes. To do so, States must improve 

their infrastructure. They must connect and coordinate their State registries, such as those established for 

sex offenders and child abusers. They 

must screen all long-term care workers, including those who work in private homes. They must require State 

police checks and checks against the 

FBI’s national criminal history database. 

We know that States will take these 

steps to improve their background 

check procedures if Congress 

incentivizes them to do so. Seven 

States did exactly that after we provided them with modest grants under a 

pilot program enacted as part of the 

Medicare Modernization Act of 2003. 

The dollar amounts required to get 

these States to expand and improve 


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