[Senate Report 104-39]
[From the U.S. Government Publishing Office]



                                                        Calendar No. 62
104th Congress                                                   Report
                                 SENATE

 1st Session                                                     104-39
_______________________________________________________________________


 
                  DAYTON AVIATION HERITAGE COMMISSION

                                _______


    April 7 (legislative day, April 5), 1995.--Ordered to be printed

_______________________________________________________________________


 Mr. Murkowski, from the Committee on Energy and Resources, submitted 
                             the following

                              R E P O R T

                         [To accompany S. 392]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 392) to amend the Dayton Aviation 
Heritage Preservation Act of 1992 with regard to appointment of 
members of the Dayton Aviation Heritage Commission, and for 
other purposes, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                         Purpose of the Measure

    The purpose of S. 392 is to make a technical correction to 
the Dayton Aviation Heritage Protection Act of 1992 by 
clarifying the Secretary of the Interior's authority to make 
appointments to the Advisory Commission.

                          Background and Need

    The appointment procedure for the Dayton Aviation Heritage 
National Historic Site advisory commission (as described in the 
Dayton Aviation Heritage Preservation Act of 1992 (Public Law 
102-419)), while identical to the appointment procedure for 
several other park advisory commissions, has been identified by 
the Department of Justice as raising potential Constitutional 
problems. The Dayton enabling legislation provided that non-
Federal members of the advisory commission were to be appointed 
by the Secretary of the Interior ``from among recommendations'' 
submitted by various State and local entities. The concern has 
been raised that this language limits the President's ability 
to control an Executive Branch commission, in violation of the 
Appointments clause of the Constitution. S. 392 clarifies that 
the non-Federal members of the advisory commission are to be 
appointed ``after consideration of recommendations'' submitted 
by the various entities, consistent with Constitutional 
requirements.

                          Legislative History

    Senator Glenn introduced S. 392 on February 10, 1995, 
Similar legislation, H.R. 606 was passed by the House of 
Representatives, on March 29, 1995.
    In the 103d Congress, Congressman Hall introduced H.R. 3559 
in the House of Representatives on November 19, 1993. The House 
Committee on Natural Resources favorably reported the bill to 
the House on September 28, 1994, as amended, but no further 
action was taken.
    At the business meeting on March 29, 1995, the Committee on 
Energy and Natural Resources ordered S. 392 favorably reported, 
without amendment.

           Committee Recommendations and Tabulation of Votes

    The Committee on Energy and Natural Resources, in upon 
business session on March 29, 1995, by a unanimous vote of a 
quorum present, recommends that the Senate pass S. 392 without 
amendment.
    The roll call vote on reporting the measure was 20 yeas, 0 
nays, as follows:
        YEAS                          NAYS
Mr. Murkowski
Mr. Hatfield \1\
Mr. Domenici
Mr. Nickles \1\
Mr. Craig
Mr. Campbell \1\
Mr. Thomas \1\
Mr. Kyl \1\
Mr. Grams
Mr. Jeffords \1\
Mr. Burns \1\
Mr. Johnston
Mr. Bumpers
Mr. Ford
Mr. Bradley
Mr. Bingaman
Mr. Akaka
Mr. Wellstone \1\
Mr. Heflin \1\
Mr. Dorgan

    \1\ Indicates voted by proxy.

                         Summary of the Measure

    S. 392 changes the manner in which the non-Federal members 
of the Dayton Aviation Heritage Advisory Commission are 
appointed. The original law provided for the Secretary of the 
Interior to appoint several non-Federal members to the 
Commission ``from among recommendations'' submitted by various 
State and local entities. To resolve the Constitutional 
concerns, S. 392 provides that the members shall be appointed 
by the Secretary ``after consideration of recommendations'' 
submitted by the respective entities.

                     Cost and Budget Considerations

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, April 5, 1995.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 392, a bill to amend the Dayton Aviation Heritage 
Preservation Act of 1992 with regard to appointment of members 
of the Dayton Aviation Heritage Commission, and for other 
purposes. S. 392 was ordered reported by the Senate Committee 
on Energy and Natural Resources on March 29, 1995. Enactment of 
this legislation would result in no cost to the Federal 
Government or to State or local governments. Because enactment 
of S. 392 would not affect direct spending or receipts, pay-as-
you-go procedures would not apply.
    S. 392 would amend the Dayton Aviation Heritage 
Preservation Act of 1992 (P.L. 102-419) to clarify the power of 
the Secretary of Interior to make appointments to the advisory 
commission that was created by that act. Under the bill's 
amendments to P.L. 102-419, the Secretary need only consider 
the recommendations of others in making such appointments and 
is not limited by those recommendations.
    On February 22, 1995, CBO prepared a cost estimate for H.R. 
606, a bill to amend the Dayton Aviation Heritage Preservation 
Act of 1992, and for other purposes, as ordered reported by the 
House Committee on Resources. The two estimates are identical.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis.
            Sincerely,
                                              James L. Blum
                                   (For June E. O'Neill, Director).

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 392. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 392, as ordered reported.

                        Executive Communications

    On March 24, 1995, the Committee on Energy and Natural 
Resources requested legislative reports from the Department of 
the Interior and the Office of Management and Budget setting 
forth Executive agency recommendations on S. 392. These reports 
had not been received at the time the report on S. 392 was 
filed. When these reports become available, the chairman will 
request that they be printed in the Congressional Record for 
the advice of the Senate.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 392, as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman):

  Section 201 of the Dayton Aviation Heritage Preservation Act of 1992

SEC. 201. DAYTON AVIATION HERITAGE COMMISSION.

    (a) * * *
    (b) Membership.--The Commission shall consist of 13 members 
as follows:
          (1) 3 members appointed by the Secretary, who shall 
        have demonstrated expertise in aviation history, black 
        history and literature, aviation technology, or 
        historic preservation, at least one of whom shall 
        represent the National Park Service.
          (2) 3 members appointed by the Secretary [from 
        recommendations] after consideration of recommendations 
        submitted by the Governor of the State of Ohio, who 
        shall have demonstrated expertise in aviation history, 
        black history and literature, aviation technology, or 
        historic preservation, at least one of whom shall 
        represent the Ohio Historical Society.
          (3) 1 member appointed by the Secretary of Defense, 
        who shall represent Wright-Patterson Air Force Base.
          (4) 3 members appointed by the Secretary [from 
        recommendations] after consideration of recommendations 
        submitted by the City Commission of Dayton, Ohio, at 
        least one of whom shall reside near the core parcel of 
        the park (as described in section 101(b)(1)).
          (5) 1 member appointed by the Secretary [from 
        recommendations] after consideration of recommendations 
        submitted by the Board of Commissioners of Montgomery 
        County, Ohio.
          (6) 1 member appointed by the Secretary [from 
        recommendations] after consideration of recommendations 
        submitted by the Board of Commissioners of Greene 
        County, Ohio.
          (7) 1 member appointed by the Secretary [from 
        recommendations] after consideration of recommendations 
        submitted by the City Council of Fairborn, Ohio.