[Congressional Record Volume 157, Number 24 (Tuesday, February 15, 2011)]
[Senate]
[Pages S709-S715]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    FAA AIR TRANSPORTATION MODERNIZATION AND SAFETY IMPROVEMENT ACT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 223, which the clerk will 
report.
  The legislative clerk read as follows:

       A bill (S. 223) to modernize the air traffic control 
     system, improve the safety, reliability, and availability of 
     transportation by air in the United States, provide 
     modernization of the air traffic control system, reauthorize 
     the Federal Aviation Administration, and for other purposes.

  Pending:

       Wicker modified amendment No. 14, to exclude employees of 
     the Transportation Security Administration from the 
     collective bargaining rights of Federal employees and provide 
     employment rights and an employee engagement mechanism for 
     passenger and property screeners.
       Blunt amendment No. 5, to require the Under Secretary of 
     Transportation for Security to approve applications from 
     airports to authorize passenger and property screening to be 
     carried out by a qualified private screening company.
       Paul amendment No. 21, to reduce the total amount 
     authorized to be appropriated for the Federal Aviation 
     Administration for fiscal year 2011 to the total amount 
     authorized to be appropriated for the Administration for 
     fiscal year 2008.
       Rockefeller (for Wyden) amendment No. 27, to increase the 
     number of test sites in the National Airspace System used for 
     unmanned aerial vehicles and to require one of those test 
     sites to include a significant portion of public lands.
       Inhofe amendment No. 7, to require the Administrator of the 
     Federal Aviation Administration to initiate a new rulemaking 
     proceeding with respect to the flight time limitations and 
     rest requirements for supplemental operations before any of 
     such limitations or requirements be altered.
       Rockefeller (for Ensign) amendment No. 32, to improve 
     provisions relating to certification and flight standards for 
     military remotely piloted aerial systems in the National 
     Airspace System.
       McCain amendment No. 4, to repeal the Essential Air Service 
     Program.
       Rockefeller (for Leahy) amendment No. 50, to amend title 1 
     of the Omnibus Crime Control and Safe Streets Act of 1968 to 
     include

[[Page S710]]

     nonprofit and volunteer ground and air ambulance crew members 
     and first responders for certain benefits, and to clarify the 
     liability protection for volunteer pilots that fly for public 
     benefit.
       Reid amendment No. 54, to allow airports that receive 
     airport improvement grants for the purchase of land to lease 
     the land and develop the land in a manner compatible with 
     noise buffering purposes.
       Reid amendment No. 55, to require the Secretary of the 
     Interior to convey certain Federal land to the city of 
     Mesquite, NV.
       Udall (NM)/Bingaman amendment No. 49, to authorize Dona Ana 
     County, NM, to exchange certain land conveyed to the county 
     for airport purposes.
       Udall (NM) amendment No. 51, to require that all advanced 
     imaging technology used as a primary screening method for 
     passengers be equipped with automatic target recognition 
     software.
       Nelson (NE) amendment No. 58, to impose a criminal penalty 
     for unauthorized recording or distribution of images produced 
     using advanced imaging technology during screenings of 
     individuals at airports and upon entry to Federal buildings.
       Paul amendment No. 18, to strike the provisions relating to 
     clarifying a memorandum of understanding between the Federal 
     Aviation Administration and the Occupational Safety and 
     Health Administration.
       Rockefeller (for Baucus) modified amendment No. 75, of a 
     perfecting nature.

  The ACTING PRESIDENT pro tempore. I understand the Senator from 
Montana wants to make a modification?
  Mr. BAUCUS. That is correct.


                 Amendment No. 75, as Further Modified

  The ACTING PRESIDENT pro tempore. The Senator from Montana.
  Mr. BAUCUS. Madam President, I ask that my amendment No. 75 be 
modified further with the changes that are at the desk.
  The ACTING PRESIDENT pro tempore. Is there objection? Without 
objection, it is so ordered.
  The amendment, as further modified, is as follows:

       Strike title VIII and insert the following:

 TITLE VIII--AIRPORT AND AIRWAY TRUST FUND PROVISIONS AND RELATED TAXES

     SEC. 800. AMENDMENT OF 1986 CODE.

       Except as otherwise expressly provided, whenever in this 
     title an amendment or repeal is expressed in terms of an 
     amendment to, or repeal of, a section or other provision, the 
     reference shall be considered to be made to a section or 
     other provision of the Internal Revenue Code of 1986.

     SEC. 801. EXTENSION OF TAXES FUNDING AIRPORT AND AIRWAY TRUST 
                   FUND.

       (a) Fuel Taxes.--Subparagraph (B) of section 4081(d)(2) is 
     amended by striking ``March 31, 2011'' and inserting 
     ``September 30, 2013''.
       (b) Ticket Taxes.--
       (1) Persons.--Clause (ii) of section 4261(j)(1)(A) is 
     amended by striking ``March 31, 2011'' and inserting 
     ``September 30, 2013''.
       (2) Property.--Clause (ii) of section 4271(d)(1)(A) is 
     amended by striking ``March 31, 2011'' and inserting 
     ``September 30, 2013''.
       (c) Effective Date.--The amendments made by this section 
     shall take effect on April 1, 2011.

     SEC. 802. EXTENSION OF AIRPORT AND AIRWAY TRUST FUND 
                   EXPENDITURE AUTHORITY.

       (a) In General.--Paragraph (1) of section 9502(d) is 
     amended--
       (1) by striking ``April 1, 2011'' in the matter preceding 
     subparagraph (A) and inserting ``October 1, 2013'', and
       (2) by striking the semicolon at the end of subparagraph 
     (A) and inserting ``or the FAA Air Transportation 
     Modernization and Safety Improvement Act;''.
       (b) Conforming Amendment.--Paragraph (2) of section 9502(e) 
     is amended by striking ``April 1, 2011'' and inserting 
     ``October 1, 2013''.
       (c) Effective Date.--The amendments made by this section 
     shall take effect on April 1, 2011.

     SEC. 803. MODIFICATION OF EXCISE TAX ON KEROSENE USED IN 
                   AVIATION.

       (a) Rate of Tax on Aviation-grade Kerosene.--
       (1) In general.--Subparagraph (A) of section 4081(a)(2) is 
     amended by striking ``and'' at the end of clause (ii), by 
     striking the period at the end of clause (iii) and inserting 
     ``, and'', and by adding at the end the following new clause:
       ``(iv) in the case of aviation-grade kerosene, 35.9 cents 
     per gallon.''.
       (2) Fuel removed directly into fuel tank of airplane used 
     in noncommercial aviation.--Subparagraph (C) of section 
     4081(a)(2) is amended to read as follows:
       ``(C) Taxes imposed on fuel used in commercial aviation.--
     In the case of aviation-grade kerosene which is removed from 
     any refinery or terminal directly into the fuel tank of an 
     aircraft for use in commercial aviation by a person 
     registered for such use under section 4101, the rate of tax 
     under subparagraph (A)(iv) shall be 4.3 cents per gallon.''.
       (3) Exemption for aviation-grade kerosene removed into an 
     aircraft.--Subsection (e) of section 4082 is amended--
       (A) by striking ``kerosene'' and inserting ``aviation-grade 
     kerosene'',
       (B) by striking ``section 4081(a)(2)(A)(iii)'' and 
     inserting ``section 4081(a)(2)(A)(iv)'', and
       (C) by striking ``Kerosene'' in the heading and inserting 
     ``Aviation-Grade Kerosene''.
       (4) Conforming amendments.--
       (A) Clause (iii) of section 4081(a)(2)(A) is amended by 
     inserting ``other than aviation-grade kerosene'' after 
     ``kerosene''.
       (B) The following provisions are each amended by striking 
     ``kerosene'' and inserting ``aviation-grade kerosene'':
       (i) Section 4081(a)(3)(A)(ii).
       (ii) Section 4081(a)(3)(A)(iv).
       (iii) Section 4081(a)(3)(D).
       (C) Subparagraph (D) of section 4081(a)(3) is amended--
       (i) by striking ``paragraph (2)(C)(i)'' in clause (i) and 
     inserting ``paragraph (2)(C)'', and
       (ii) by striking ``paragraph (2)(C)(ii)'' in clause (ii) 
     and inserting ``paragraph (2)(A)(iv)''.
       (D) Paragraph (4) of section 4081(a) is amended--
       (i) by striking ``kerosene'' in the heading and inserting 
     ``aviation-grade kerosene'', and
       (ii) by striking ``paragraph (2)(C)(i)'' and inserting 
     ``paragraph (2)(C)''.
       (E) Paragraph (2) of section 4081(d) is amended by striking 
     ``(a)(2)(C)(ii)'' and inserting ``(a)(2)(A)(iv)''.
       (b) Retail Tax on Aviation Fuel.--
       (1) Exemption for previously taxed fuel.--Paragraph (2) of 
     section 4041(c) is amended by inserting ``at the rate 
     specified in subsection (a)(2)(A)(iv) thereof'' after 
     ``section 4081''.
       (2) Rate of tax.--Paragraph (3) of section 4041(c) is 
     amended to read as follows:
       ``(3) Rate of tax.--The rate of tax imposed by this 
     subsection shall be the rate of tax in effect under section 
     4081(a)(2)(A)(iv) (4.3 cents per gallon with respect to any 
     sale or use for commercial aviation).''.
       (c) Refunds Relating to Aviation-grade Kerosene.--
       (1) Aviation-grade kerosene used in commercial aviation.--
     Clause (ii) of section 6427(l)(4)(A) is amended by striking 
     ``specified in section 4041(c) or 4081(a)(2)(A)(iii), as the 
     case may be,'' and inserting ``so imposed''.
       (2) Kerosene used in aviation.--Paragraph (4) of section 
     6427(l) is amended by striking subparagraphs (B) and (C) and 
     inserting the following new subparagraph:
       ``(B) Payments to ultimate, registered vendor.--With 
     respect to any kerosene used in aviation (other than kerosene 
     to which paragraph (6) applies), if the ultimate purchaser of 
     such kerosene waives (at such time and in such form and 
     manner as the Secretary shall prescribe) the right to payment 
     under paragraph (1) and assigns such right to the ultimate 
     vendor, then the Secretary shall pay (without interest) the 
     amount which would be paid under paragraph (1) to such 
     ultimate vendor, but only if such ultimate vendor--
       ``(i) is registered under section 4101, and
       ``(ii) meets the requirements of subparagraph (A), (B), or 
     (D) of section 6416(a)(1).''.
       (3) Aviation-grade kerosene not used in aviation.--
     Subsection (l) of section 6427 is amended by redesignating 
     paragraph (5) as paragraph (6) and by inserting after 
     paragraph (4) the following new paragraph:
       ``(5) Refunds for aviation-grade kerosene not used in 
     aviation.--If tax has been imposed under section 4081 at the 
     rate specified in section 4081(a)(2)(A)(iv) and the fuel is 
     used other than in an aircraft, the Secretary shall pay 
     (without interest) to the ultimate purchaser of such fuel an 
     amount equal to the amount of tax imposed on such fuel 
     reduced by the amount of tax that would be imposed under 
     section 4041 if no tax under section 4081 had been 
     imposed.''.
       (4) Conforming amendments.--
       (A) Subparagraph (B) of section 4082(d)(2) is amended by 
     striking ``6427(l)(5)(B)'' and inserting ``6427(l)(6)(B)''.
       (B) Paragraph (4) of section 6427(i) is amended--
       (i) by striking ``(4)(C) or (5)'' and inserting ``(4)(B) or 
     (6)'', and
       (ii) by striking ``, (l)(4)(C)(ii), and (l)(5)'' and 
     inserting ``and (l)(6)''.
       (C) Subsection (l) of section 6427 is amended by striking 
     ``Diesel Fuel and Kerosene'' in the heading and inserting 
     ``Diesel Fuel, Kerosene, and Aviation Fuel''.
       (D) Paragraph (1) of section 6427(l) is amended by striking 
     ``paragraph (4)(C)(i)'' and inserting ``paragraph (4)(B)''.
       (E) Paragraph (4) of section 6427(l) is amended--
       (i) by striking ``kerosene used in aviation'' in the 
     heading and inserting ``aviation-grade kerosene used in 
     commercial aviation'', and
       (ii) in subparagraph (A)--

       (I) by striking ``kerosene'' and inserting ``aviation-grade 
     kerosene'',
       (II) by striking ``Kerosene used in commercial aviation'' 
     in the heading and inserting ``In general''.

       (d) Transfers to the Airport and Airway Trust Fund.--
       (1) In general.--Subparagraph (C) of section 9502(b)(1) is 
     amended to read as follows:
       ``(C) section 4081 with respect to aviation gasoline and 
     aviation-grade kerosene, and''.
       (2) Transfers on account of certain refunds.--
       (A) In general.--Subsection (d) of section 9502 is 
     amended--
       (i) by striking ``(other than subsection (l)(4) thereof)'' 
     in paragraph (2), and
       (ii) by striking ``(other than payments made by reason of 
     paragraph (4) of section 6427(l))'' in paragraph (3).
       (B) Conforming amendments.--

[[Page S711]]

       (i) Paragraph (4) of section 9503(b) is amended by striking 
     ``or'' at the end of subparagraph (C), by striking the period 
     at the end of subparagraph (D) and inserting a comma, and by 
     inserting after subparagraph (D) the following new 
     subparagraphs:
       ``(E) section 4081 to the extent attributable to the rate 
     specified in clause (ii) or (iv) of section 4081(a)(2)(A), or
       ``(F) section 4041(c).''.
       (ii) Subsection (c) of section 9503 is amended by striking 
     paragraph (5).
       (iii) Subsection (a) of section 9502 is amended--

       (I) by striking ``appropriated, credited, or paid into'' 
     and inserting ``appropriated or credited to'', and
       (II) by striking ``, section 9503(c)(5),''.

       (e) Effective Date.--The amendments made by this section 
     shall apply to fuels removed, entered, or sold after March 
     31, 2011.
       (f) Floor Stocks Tax.--
       (1) Imposition of tax.--In the case of aviation-grade 
     kerosene fuel which is held on April 1, 2011, by any person, 
     there is hereby imposed a floor stocks tax on aviation-grade 
     kerosene equal to--
       (A) the tax which would have been imposed before such date 
     on such kerosene had the amendments made by this section been 
     in effect at all times before such date, reduced by
       (B) the tax imposed before such date on such kerosene under 
     section 4081 of the Internal Revenue Code of 1986, as in 
     effect on such date.
       (2) Liability for tax and method of payment.--
       (A) Liability for tax.--A person holding aviation-grade 
     kerosene on April 1, 2011, shall be liable for such tax.
       (B) Time and method of payment.--The tax imposed by 
     paragraph (1) shall be paid at such time and in such manner 
     as the Secretary of the Treasury shall prescribe.
       (3) Transfer of floor stock tax revenues to trust funds.--
     For purposes of determining the amount transferred to the 
     Airport and Airway Trust Fund, the tax imposed by this 
     subsection shall be treated as imposed by section 
     4081(a)(2)(A)(iv) of the Internal Revenue Code of 1986.
       (4) Definitions.--For purposes of this subsection--
       (A) Aviation-grade kerosene.--The term ``aviation-grade 
     kerosene'' means aviation-grade kerosene as such term is used 
     within the meaning of section 4081 of the Internal Revenue 
     Code of 1986.
       (B) Held by a person.--Aviation-grade kerosene shall be 
     considered as held by a person if title thereto has passed to 
     such person (whether or not delivery to the person has been 
     made).
       (C) Secretary.--The term ``Secretary'' means the Secretary 
     of the Treasury or the Secretary's delegate.
       (5) Exception for exempt uses.--The tax imposed by 
     paragraph (1) shall not apply to any aviation-grade kerosene 
     held by any person exclusively for any use to the extent a 
     credit or refund of the tax is allowable under the Internal 
     Revenue Code of 1986 for such use.
       (6) Exception for certain amounts of aviation-grade 
     kerosene.--
       (A) In general.--No tax shall be imposed by paragraph (1) 
     on any aviation-grade kerosene held on April 1, 2011, by any 
     person if the aggregate amount of such aviation-grade 
     kerosene held by such person on such date does not exceed 
     2,000 gallons. The preceding sentence shall apply only if 
     such person submits to the Secretary (at the time and in the 
     manner required by the Secretary) such information as the 
     Secretary shall require for purposes of this subparagraph.
       (B) Exempt aviation-grade kerosene.--For purposes of 
     subparagraph (A), there shall not be taken into account any 
     aviation-grade kerosene held by any person which is exempt 
     from the tax imposed by paragraph (1) by reason of paragraph 
     (5).
       (C) Controlled groups.--For purposes of this subsection--
       (i) Corporations.--

       (I) In general.--All persons treated as a controlled group 
     shall be treated as 1 person.
       (II) Controlled group.--The term ``controlled group'' has 
     the meaning given to such term by subsection (a) of section 
     1563 of the Internal Revenue Code of 1986; except that for 
     such purposes the phrase ``more than 50 percent'' shall be 
     substituted for the phrase ``at least 80 percent'' each place 
     it appears in such subsection.

       (ii) Nonincorporated persons under common control.--Under 
     regulations prescribed by the Secretary, principles similar 
     to the principles of subparagraph (A) shall apply to a group 
     of persons under common control if 1 or more of such persons 
     is not a corporation.
       (7) Other laws applicable.--All provisions of law, 
     including penalties, applicable with respect to the taxes 
     imposed by section 4081 of the Internal Revenue Code of 1986 
     on the aviation-grade kerosene involved shall, insofar as 
     applicable and not inconsistent with the provisions of this 
     subsection, apply with respect to the floor stock taxes 
     imposed by paragraph (1) to the same extent as if such taxes 
     were imposed by such section.

     SEC. 804. AIR TRAFFIC CONTROL SYSTEM MODERNIZATION ACCOUNT.

       (a) In General.--Section 9502 is amended by adding at the 
     end the following new subsection:
       ``(f) Establishment of Air Traffic Control System 
     Modernization Account.--
       ``(1) Creation of account.--There is established in the 
     Airport and Airway Trust Fund a separate account to be known 
     as the `Air Traffic Control System Modernization Account' 
     consisting of such amounts as may be transferred or credited 
     to the Air Traffic Control System Modernization Account as 
     provided in this subsection or section 9602(b).
       ``(2) Transfers to air traffic control system modernization 
     account.--On October 1, 2011, and annually thereafter the 
     Secretary shall transfer $400,000,000 to the Air Traffic 
     Control System Modernization Account from amounts 
     appropriated to the Airport and Airway Trust Fund under 
     subsection (b) which are attributable to taxes on aviation-
     grade kerosene.
       ``(3) Expenditures from account.--Amounts in the Air 
     Traffic Control System Modernization Account shall be 
     available subject to appropriation for expenditures relating 
     to the modernization of the air traffic control system 
     (including facility and equipment account expenditures).''.
       (b) Conforming Amendment.--Paragraph (1) of section 9502(d) 
     is amended by striking ``Amounts'' and inserting ``Except as 
     provided in subsection (f), amounts''.
       (c) Effective Date.--The amendments made by this section 
     shall take effect on the date of the enactment of this Act.

     SEC. 805. TREATMENT OF FRACTIONAL AIRCRAFT OWNERSHIP 
                   PROGRAMS.

       (a) Fuel Surtax.--
       (1) In general.--Subchapter B of chapter 31 is amended by 
     adding at the end the following new section:

     ``SEC. 4043. SURTAX ON FUEL USED IN AIRCRAFT PART OF A 
                   FRACTIONAL OWNERSHIP PROGRAM.

       ``(a) In General.--There is hereby imposed a tax on any 
     liquid used during any calendar quarter by any person as a 
     fuel in an aircraft which is--
       ``(1) registered in the United States, and
       ``(2) part of a fractional ownership aircraft program.
       ``(b) Amount of Tax.--The rate of tax imposed by subsection 
     (a) is 14.1 cents per gallon.
       ``(c) Fractional Ownership Aircraft Program.--For purposes 
     of this section--
       ``(1) In general.--The term `fractional ownership aircraft 
     program' means a program under which--
       ``(A) a single fractional ownership program manager 
     provides fractional ownership program management services on 
     behalf of the fractional owners,
       ``(B) 2 or more airworthy aircraft are part of the program,
       ``(C) there are 1 or more fractional owners per program 
     aircraft, with at least 1 program aircraft having more than 1 
     owner,
       ``(D) each fractional owner possesses at least a minimum 
     fractional ownership interest in 1 or more program aircraft,
       ``(E) there exists a dry-lease aircraft exchange 
     arrangement among all of the fractional owners, and
       ``(F) there are multi-year program agreements covering the 
     fractional ownership, fractional ownership program management 
     services, and dry-lease aircraft exchange aspects of the 
     program.
       ``(2) Minimum fractional ownership interest.--
       ``(A) In general.--The term `minimum fractional ownership 
     interest' means, with respect to each type of aircraft--
       ``(i) a fractional ownership interest equal to or greater 
     than \1/16\ of at least 1 subsonic, fixed wing or powered 
     lift program aircraft, or
       ``(ii) a fractional ownership interest equal to or greater 
     than \1/32\ of a least 1 rotorcraft program aircraft.
       ``(B) Fractional ownership interest.--The term `fractional 
     ownership interest' means--
       ``(i) the ownership of an interest in a program aircraft,
       ``(ii) the holding of a multi-year leasehold interest in a 
     program aircraft, or
       ``(iii) the holding of a multi-year leasehold interest 
     which is convertible into an ownership interest in a program 
     aircraft.
       ``(3) Dry-lease aircraft exchange.--The term `dry-lease 
     aircraft exchange' means an agreement, documented by the 
     written program agreements, under which the program aircraft 
     are available, on an as needed basis without crew, to each 
     fractional owner.
       ``(d) Termination.--This section shall not apply to liquids 
     used as a fuel in an aircraft after September 30, 2013.''.
       (2) Conforming amendment.--Subsection (e) of section 4082 
     is amended by inserting ``(other than an aircraft described 
     in section 4043(a))'' after ``an aircraft''.
       (3) Transfer of revenues to airport and airway trust 
     fund.--Subsection (1) of section 9502(b) is amended by 
     redesignating subparagraphs (B) and (C) as subparagraphs (C) 
     and (D), respectively, and by inserting after subparagraph 
     (A) the following new subparagraph:
       ``(B) section 4043 (relating to surtax on fuel used in 
     aircraft part of a fractional ownership program),''.
       (4) Clerical amendment.--The table of sections for 
     subchapter B of chapter 31 is amended by adding at the end 
     the following new item:

``Sec. 4043. Surtax on fuel used in aircraft part of a fractional 
              ownership program.''.

       (b) Fractional Ownership Programs Treated as Non-commercial 
     Aviation.--Subsection (b) of section 4083 is amended by 
     adding at the end the following new sentence: ``For uses of 
     aircraft before October 1, 2013, such term shall not include 
     the use of any aircraft which is part of a fractional

[[Page S712]]

     ownership aircraft program (as defined by section 
     4043(c)).''.
       (c) Exemption From Tax on Transportation of Persons.--
     Section 4261, as amended by this Act, is amended by 
     redesignating subsection (j) as subsection (k) and by 
     inserting after subsection (i) the following new subsection:
       ``(j) Exemption for Aircraft in Fractional Ownership 
     Aircraft Programs.--No tax shall be imposed by this section 
     or section 4271 on any air transportation provided before 
     October 1, 2013, by an aircraft which is part of a fractional 
     ownership aircraft program (as defined by section 
     4043(c)).''.
       (d) Effective Dates.--
       (1) Subsection (a).--The amendments made by subsection (a) 
     shall apply to fuel used after March 31, 2011.
       (2) Subsection (b).--The amendment made by subsection (b) 
     shall apply to uses of aircraft after March 31, 2011.
       (3) Subsection (c).--The amendments made by subsection (c) 
     shall apply to taxable transportation provided after March 
     31, 2011.

     SEC. 806. TERMINATION OF EXEMPTION FOR SMALL JET AIRCRAFT ON 
                   NONESTABLISHED LINES.

       (a) In General.--the first sentence of section 4281 is 
     amended by inserting ``or when such aircraft is a turbine 
     engine powered aircraft'' after ``an established line''.
       (b) Effective Date.--The amendment made by this section 
     shall apply to taxable transportation provided after March 
     31, 2011.

     SEC. 807. TRANSPARENCY IN PASSENGER TAX DISCLOSURES.

       (a) In General.--Section 7275 (relating to penalty for 
     offenses relating to certain airline tickets and advertising) 
     is amended--
       (1) by redesignating subsection (c) as subsection (d),
       (2) by striking ``subsection (a) or (b)'' in subsection 
     (d), as so redesignated, and inserting ``subsection (a), (b), 
     or (c)'', and
       (3) by inserting after subsection (b) the following new 
     subsection:
       ``(c) Non-tax Charges.--
       ``(1) In general.--In the case of transportation by air for 
     which disclosure on the ticket or advertising for such 
     transportation of the amounts paid for passenger taxes is 
     required by subsection (a)(2) or (b)(1)(B), if such amounts 
     are separately disclosed, it shall be unlawful for the 
     disclosure of such amounts to include any amounts not 
     attributable to such taxes.
       ``(2) Inclusion in transportation cost.--Nothing in this 
     subsection shall prohibit the inclusion of amounts not 
     attributable to the taxes imposed by subsection (a), (b), or 
     (c) of section 4261 in the disclosure of the amount paid for 
     transportation as required by subsection (a)(1) or (b)(1)(A), 
     or in a separate disclosure of amounts not attributable to 
     such taxes.''.
       (b) Effective Date.--The amendments made by this section 
     shall apply to taxable transportation provided after March 
     31, 2011.

     SEC. 808. TAX-EXEMPT BOND FINANCING FOR FIXED-WING EMERGENCY 
                   MEDICAL AIRCRAFT.

       (a) In General.--Subsection (e) of section 147 is amended 
     by adding at the end the following new sentence: ``The 
     preceding sentence shall not apply to any fixed-wing aircraft 
     equipped for, and exclusively dedicated to providing, acute 
     care emergency medical services (within the meaning of 
     4261(g)(2)).''
       (b) Effective Date.--The amendment made by this section 
     shall apply to obligations issued after the date of the 
     enactment of this Act.

     SEC. 809. PROTECTION OF AIRPORT AND AIRWAY TRUST FUND 
                   SOLVENCY.

       (a) In General.--Paragraph (1) of section 9502(d) is 
     amended by adding at the end the following new sentence: 
     ``Unless otherwise provided by this section, for purposes of 
     this paragraph for fiscal year 2012 or 2013, the amount 
     available for making expenditures for such fiscal year shall 
     not exceed 90 percent of the receipts of the Airport and 
     Airway Trust Fund plus interest credited to such Trust Fund 
     for such fiscal year as estimated by the Secretary of the 
     Treasury.''.
       (b) Effective Date.--The amendment made by this section 
     shall apply to fiscal years beginning after September 30, 
     2011.

  Mr. BAUCUS. I thank my friend from West Virginia. He is a good man.
  Mr. ROCKEFELLER. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. SHAHEEN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER (Mr. Tester.) Without objection, it is so 
ordered.
  Mrs. SHAHEEN. Mr. President, I am here to speak on the legislation 
that is pending before us. We all know this country faces big 
challenges. We face a declining infrastructure that is critical to our 
business. We need safe, reliable transportation if we are going to keep 
the flow of commerce moving. But as President Obama mentioned in his 
State of the Union Address, when American engineers took a look at our 
transportation infrastructure, they gave us a ``D'' grade. That is not 
quite failing, but it is certainly not very good.
  Our declining infrastructure threatens not only our safety but also 
our global economic competitiveness. America is falling behind economic 
competitors such as Europe and China which are making significantly 
more robust investments in their infrastructure. In the United States, 
we currently spend about 2 percent of our GDP on infrastructure. That 
is a 50-percent decline since 1960. China and Europe, on the other 
hand, spend close to 9 percent for China and 5 percent for Europe of 
their GDP respectively on infrastructure. We need to make the kind of 
smart investments that will help keep America competitive.
  That is why I am very glad we are moving forward with this bipartisan 
FAA reauthorization bill. It has been almost 4 years since Congress 
passed an FAA bill, and in that time our economic competitors have 
continued to invest in their 21st century aviation systems.
  Airports are critical to commerce and economic activity in all of our 
States. The major airport in my home State of New Hampshire, Manchester 
Airport, generates over $1.2 billion in economic activity every year. 
Much of that comes from out-of-State residents and foreign travelers. 
Without that airport, without that air infrastructure, we would not be 
able to generate that kind of economic activity. The aviation industry 
in New Hampshire and across the country also provides good jobs for 
pilots, flight attendants, mechanics, air travel controllers, and so 
many others. Manchester Airport alone provides over 1,900 jobs.
  The FAA legislation that is now before us will accomplish the long 
overdue task of upgrading one critical component of our aviation 
infrastructure, the air traffic control system. It will upgrade the 
system to an efficient 21st-century system called NextGen.
  I do not think very many people realize that when they get into an 
airplane, the pilots and the air traffic controllers are using 20th-
century technology to navigate the skies. I was just at a meeting of 
the High Tech Council in New Hampshire and having this conversation 
with them. They did not realize that that is the kind of aviation 
system we use to fly our planes.
  So although our cell phones and cars have GPS systems, our 
multimillion-dollar airplanes use World War II era radar systems. The 
system we have now is inefficient. It wastes the time and money of 
everyone involved in the aviation industry. As Chairman Rockefeller has 
pointed out so many times, even Mongolia has a more advanced air 
traffic control system than we do. That is unacceptable.

  Not surprisingly, our outdated system is at capacity. According to 
the FAA, delays resulting from the constraints on the system cost the 
United States over $9 billion every year. That number is going to 
continue to rise if we do nothing.
  We need to take action. The FAA forecasts that the aviation system 
will carry more than 1 billion airline passengers annually by 2023. We 
cannot afford to let such an important part of our 21st-century economy 
languish with 20th-century technology.
  By investing in NextGen, our air traffic controllers will finally 
have the 21st-century technologies they need to make our system more 
efficient. Let me give an example of the progress NextGen would make. 
Right now, air traffic controllers give all of their commands to pilots 
over the radio. They tell them when and where they will be landing. 
Now, because all of the pilots in the area are listening, there is the 
potential for miscommunication sometimes. Our pilots and controllers 
are very professional. They do their jobs well. But sometimes people 
talk over each other and pilots hear the wrong information. This system 
we currently have wastes time, and it puts the flying public in 
jeopardy. Once NextGen is in place, controllers will be able to type a 
command and send it directly to the plane. To all of us who use e-mail, 
this sounds pretty basic, but it is an example of the kinds of upgrades 
that are needed to make our aviation system more efficient and safer.
  By funding NextGen, this bill will bring our air traffic control 
system into the 21st century. NextGen will reduce congestion by 
allowing planes to fly more direct routes, it will conserve energy, and 
it will make flying safer for everyone.

[[Page S713]]

  Of course, some flight delays are unavoidable. We cannot control the 
weather, as we all know. But when delays cannot be avoided, we can make 
sure airlines are treating their customers fairly. That is another 
critical component of this legislation. That is why this bill includes 
the passengers' bill of rights.
  I cosponsored the passengers' bill of rights after a businesswoman 
from Bedford, NH--a woman named Jennifer Shirkani--told me her stories 
of being stuck on tarmacs for hours without access to food or water. 
These experiences were so frustrating to Jennifer that she became a 
leader in the movement to get this legislation passed. Unfortunately, 
her stories have been all too common in recent years. According to the 
Department of Transportation, hundreds of thousands of passengers have 
been stuck on a tarmac for more than 3 hours. This bill will codify 
protections put in place last year by the Department of Transportation 
so we will not go back to the days when airlines left travelers on the 
tarmac.
  I wish to commend Chairman Rockefeller and Ranking Member Hutchison 
for producing a strong bill, and I look forward to being able to 
support this legislation with all of my colleagues and pass it very 
soon so we can upgrade our transportation system to compete with the 
rest of the world.
  Mr. President, I yield the floor.
  Mr. ROCKEFELLER. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. HUTCHISON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. HUTCHISON. Mr. President, we are working very hard to have an 
amendment on the perimeter rule that would accommodate all the concerns 
of western Senators who do not have easy access to Reagan Washington 
National Airport and the concerns of the Virginia Senators who are 
concerned about congestion and other Senators from the Far West who 
want to try to have a better chance at a direct flight.
  Senator Rockefeller and I have filed an amendment that we think is a 
fair approach. We did this because we did not have enough consensus, 
and we are trying to drive that consensus. So I would like to ask that 
the amendment be brought up. It is our intention then to set it aside 
for Senator Nelson's amendment, which is scheduled for a vote. I have 
informed everyone that I am going to ask the Chair to call up amendment 
No. 84, the Rockefeller-Hutchison amendment on the perimeter rule.
  The PRESIDING OFFICER. Is there objection?
  Ms. CANTWELL. Mr. President, reserving the right to object, I know my 
colleagues, the ranking member and the chairman of the committee, have 
been working diligently to try to resolve this issue. It certainly is a 
thorny one, given the history of the Commerce Committee and previous 
votes on this issue.
  For me, the issue is that I certainly do want access to the West, and 
I certainly want to make sure the Nation's Capital is accessible to all 
parts of the country, but we also want to make sure there is a fair 
process, that a decision to open access to National Airport is run 
through the Department of Transportation in an FAA process, that we do 
not handpick here on the Senate floor any of the people who would be 
winners in this process but that we make the decision on how much 
access is available.
  I would say to my colleagues that the whole issue here about airports 
is that anytime you have a limited footprint, you have had discussion 
about how to give access to that through a process of the FAA.
  So I would say to my colleague, let's keep dialoguing and working on 
this issue. But a process and an amendment that includes conversion; 
that is to say, that a predominant carrier out of National Airport can 
continue to hold that dominance in the marketplace, I think is the 
wrong approach. I look at what is happening now with what the 
Department of Justice has said about the Delta-US Air swap between New 
York and DCA. It basically said they have too much market share and 
they ought to divest if they want to engage in that kind of swap 
behavior. So any kind of conversion process that would allow slots to 
be converted is like saying, if you own real estate around the Capitol, 
then you can buy more real estate around the Capitol.
  So I hope we can come up with a process that puts the FAA in charge 
of this, opens up how much access, but not make the decision here on 
the Senate floor; allow the FAA and DOT to do their job, as they have 
on this issue in the past. So at this point in time, I object to the 
Senator's proposal.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I ask unanimous consent to have 1 
minute to respond to the objection.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mrs. HUTCHISON. Mr. President, the reason for the conversions was to 
accommodate the needs of the Washington National Airport people and to 
also understand that the incumbent carriers--of which there are four--
have mostly paid the lion's share of the cost of the additions to 
Washington National Airport.
  We do want a fair process. That is why we have separated the new 
entrants, which would be five, to accommodate carriers that have no 
presence but also have conversions of flights that are already in 
place, so there would be fewer new flights into Washington National and 
there would be a fair process with the incumbent carriers who have paid 
such a lion's share of the cost at the airport to keep it competitive 
and fair.
  So, with that, we will continue to discuss. We hope we will have an 
amendment that can be voted on, and I think it is imperative that we 
vote on this issue so there is a Senate position.
  Mr. President, I yield the floor.


                            Amendment No. 58

  The PRESIDING OFFICER. Under the previous order, there will now be 20 
minutes of debate equally divided on the Nelson amendment No. 58.
  The Senator from Nebraska.
  Mr. NELSON of Nebraska. Mr. President, the amendment which Senators 
Schumer, Akaka, Shaheen, Tester--our Presiding Officer--Whitehouse, 
Menendez, Bill Nelson of Florida, and I have offered, which we will be 
voting on shortly, is a commonsense approach to addressing the serious 
issue of protecting an individual's privacy when they pass through 
security checkpoints at airports and public buildings.
  Nebraskans and Americans understand that every step must be taken to 
keep Federal buildings and air travel safe in America, particularly 
after the 9/11 attacks. However, as we promote security, safeguards are 
necessary to protect everybody's privacy from misuse of images 
generated by body scanning machines.
  Our legislation sends a commonsense message: We will not ignore 
people's privacy as we make sure air travel and Federal buildings are 
safe. The amendment is very straightforward.
  It would, No. 1, make it a crime to photograph or record a body scan 
image or distribute a body scan image, taken at either an airport or 
any Federal building, without express authorization to do so either by 
law or regulation.
  Second, it imposes a penalty of up to 1 year in prison and $100,000 
fine on violators.
  Third, we provide an exception from prosecution if the actions taken 
occur while an individual is engaged in their official duties during 
the course of an authorized intelligence investigation or criminal 
prosecution. This language, which was worked out with officials at the 
FBI and DNI, is important. This is not an abstract concern. There has 
already been a case where these images have been taken and posted on 
line inappropriately. So it is my hope that by creating a very strong 
deterrent and establishing criminal penalties for those who take and 
distribute body scan images inappropriately, we will help prevent that 
from occurring again.

  By adopting this amendment, we are telling our constituents we are 
not going to ignore their privacy in the process of making sure we have 
safe airports and Federal buildings.
  I ask my colleagues to support our amendment.

[[Page S714]]

           Amendment No. 85, As Modified, to Amendment No. 58

  Mr. NELSON of Nebraska. Mr. President, I call up my second-degree 
amendment No. 85 which is at the desk and ask unanimous consent that it 
be modified with the changes that are at the desk.
  The amendment is as follows:

       Beginning on page 2 of the amendment, strike line 18 and 
     all that follows through page 3, line 21, and insert the 
     following:
       ``(b) Exception.--The prohibition under subsection (a) 
     shall not apply to an individual who, while engaged in or on 
     account of the performance of official duties, distributes, 
     photographs, or otherwise records an image described in 
     subsection (a) during the course of authorized intelligence 
     activities, a Federal, State, or local criminal investigation 
     or prosecution, or other lawful activities by Federal, State, 
     or local authorities, including training for intelligence or 
     law enforcement purposes.
       ``(c) Penalty.--An individual who violates the prohibition 
     in subsection (a) shall be fined under this title, imprisoned 
     for not more than 1 year, or both.
       ``(d) Advanced Imaging Technology Defined.--In this 
     section, the term `advanced imaging technology'--
       ``(1) means a device that creates a visual image of an 
     individual showing the surface of the skin beneath clothing 
     and revealing other objects on the body that are covered by 
     clothing;
       ``(2) may include devices using backscatter x-rays or 
     millimeter waves and devices referred to as `whole-body 
     imaging technology' or `body scanning'; and
       ``(3) does not include a device equipped with software that 
     produces a generic representation of the human form instead 
     of a visual image of an individual.''.

  The PRESIDING OFFICER. Under the previous order, the second-degree 
amendment, as modified, is agreed to.
  (The amendment (No. 85), as modified, was agreed to.
  Mr. NELSON of Nebraska. Mr. President, I ask my colleagues to support 
our amendment, and I ask for the yeas and nays. I believe other 
colleagues are here to respond.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. NELSON of Nebraska. Mr. President, I believe other colleagues are 
here to speak. I notice Senator Schumer is here. I appreciate very much 
his support. Working together very carefully with total collaboration, 
we have been able to, with our colleagues, bring about what I think is 
important privacy legislation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Thank you, Mr. President.
  First I wish to congratulate my good friend and hunting buddy, the 
Senator from Nebraska, for the great work he has done. It has been a 
pleasure to work with him. We have had parallel interests and his 
amendment hopefully will solve a problem that has arisen lately because 
of the full-body scanners that are being installed at airports.
  As everyone knows, late last year the TSA began installing full-body 
advanced imaging scanners at airports across the country. These new 
scanners are better able to quickly and accurately detect explosives 
than the older scanners and would likely have thwarted the Christmas 
Day bomber before he had even gotten on the plane.
  But from the get-go, legitimate questions popped up about the 
potential for privacy violations from the use of these scanners. What 
happens if a rogue TSA employee disseminates your full-body image? What 
happens if a fellow passenger or reporter takes pictures of body scan 
images with his phone and e-mails it to his friends or places the 
pictures on a Web site or in a newspaper? Are there safeguards to 
prevent such abuses? If it happens, what are the consequences?
  Obviously, airline safety is our paramount concern. We can 
oftentimes, by carefully legislating, have our cake and eat it too--to 
make sure safety stays No. 1, but to also make sure, as the Senator 
from Nebraska and I are trying to do, that privacy is protected 
whenever possible. That is why Senator Nelson and I teamed up to work 
with TSA and privacy advocates to devise a sensible solution to the 
problem--a solution that would protect privacy without sacrificing 
safety.
  The legislation we came up with, which Senator Nelson is now offering 
as an amendment to the FAA bill, strikes just the right balance. First 
and foremost, the amendment makes it a Federal crime to record and 
disseminate images from airport scanners. It provides a sentence of up 
to 1 year in prison and a fine of up to $100,000 per violation to 
anyone who is convicted of violating the law.
  I should note the amendment not only covers the misuse of the 
original images recorded from the scanners but also photographs of 
scans taken by security personnel, airline employees, passengers, or 
anybody else.
  Americans want to know when they take to the skies that every 
possible precaution has been taken for their safety. At the same time, 
they want to know that precautions have been taken to ensure their 
privacy. The amendment would offer the flying public that much-needed 
assistance.
  Again, I applaud Senator Nelson, who is a member of the Emerging 
Threats and Capabilities Subcommittee, for his leadership on this 
issue. I urge my colleagues to support the smart, practical amendment 
we are offering today, and I urge that it be passed as quickly as 
possible by this body.
  Mr. President, I yield the floor, and I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NELSON of Nebraska. Mr. President, I ask unanimous consent to add 
Senator Bill Nelson of Florida to amendment No. 58 as an original 
cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NELSON of Nebraska. I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROCKEFELLER. Mr. President, I wish to say, very briefly, that I 
strongly support the Nelson amendment for a whole variety of reasons, 
all of which are very logical, extremely well ordered, and which I do 
not have time to give.
  The yeas and nays have been ordered. Perhaps we can proceed with the 
vote.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I too wish to say I support the Nelson 
amendment and appreciate his working with the Intelligence Committee 
and the Judiciary Committee to assure all the bases are covered. I will 
be supporting it as well.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
58, as amended. The yeas and nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kerry) and the Senator from Arkansas (Mr. Pryor) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 16 Leg.]

                                YEAS--98

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     DeMint
     Durbin
     Ensign
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Lee
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Paul
     Portman
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Sanders
     Schumer
     Sessions
     Shaheen

[[Page S715]]


     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--2

     Kerry
     Pryor
       
  The amendment (No. 58), as amended, was agreed to.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table.


                            VOTE EXPLANATION

 Mr. KERRY. Mr. President, I was necessarily absent for the 
vote on Nelson of Nebraska amendment No. 58, as amended, to the FAA 
reauthorization bill. If I had attended today's session, I would have 
voted in support of that amendment.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that at 2:15 
p.m. on this day there be 20 minutes of debate equally divided in the 
usual form on the Wicker amendment prior to the vote in relation to the 
Wicker amendment, and that the remaining provisions of the previous 
order remain in effect.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.

                          ____________________