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standards on noise emissions from prod-
ucts not be allowed to impose a burden
on interstate commerce. Therefore, the
bill preempts the setting of noise emis-
sion standards enforceable against the
manufacturer of a product subject to
Federal standards. The committee felt
that any imposition of conflicting
standards anywhere in the chain of
commerce which the manufacturer
must meet should not be allowed.
However, the committee intended to
make it clear that States and cities, in
pursuit of levels of environmental noise
thought desirable locally, can impose
any burden on the users of products
covered by Federal standards which it
finds necessary. The committee felt that
the language of the bill allowing con-
trols on environmental noise through
licensing the use, operation, or move-
ment of products would retain for States
and local governments the power to es-
tablish and enforce limitations on noise
emissions as a condition to use within
their jurisdiction. Noise emission limita-
tions imposed through licensing are just
as general and easily enforceable as
controls on sale. Therefore, the amend-
ment-adding the words "sale for
use"-really adds little in practical ef-
fect to the powers of State and local
governments preserved by the present
language of this bill.
Mr. President, I find myself in an in-
teresting position because, having stated
what the committee position is, I want
the Senate to know that I personally
support the language of the Senator from
Maine. After having listened to the testi-
created by products manufactured after
the effective date of the Federal stand-
ard, authority to establish noise emis-
sion standards for the product enforce-
able directly or indirectly against the
manufacturer is preempted. States and
cities, however, retain complete author-
ity to establish and enforce limits on en-
vironmental noise through the licens-
ing, regulation, or restriction of the use,
operation, or movement of a product, or
concentration or combination of prod-
That, briefly, is the language from the
committee report on preemption, on the
very question before us. It simply says
that, in the manufacture of the product,
once a standard has been announced,
the Federal Government will preempt,
and there will be one standard. There
would not be 50 standards for each of
the 50 States, or 50 plus however many
thousand cities there may be. That would
result in an almost impossible situation.
It would be a burden on commerce that
would be unbearable and unrealistic, and
could not be accepted.
That would be the effect if the amend-
ment offered by the Senator from Maine
is accepted. On the other hand, once a
product is manufactured under the na-
tional standard and goes into commerce,
and is located in a city, the local author-
ities can regulate its use.
For example, a locality can say at
what times, if any, it may be used in the
vicinity of the hospital, or in any other
place, or at what hours of the night or
day it can be used, and can set any
other regulation or restriction of use af-
myself 2 minutes for summation, and
then I will be prepared to yield back the
remainder of my time, if the Senator
from California is willing to do so.
As the Senator from Delaware knows,
I have always been for preemption pro-
visions in our environmental laws when-
ever I felt that we had done an effective
job of replacing local legislation with
Federal legislation. The Senator and I
have been together on that in air pol-
lution and water pollution legislation for
the last 8 to 10 years, and we will con-
tinue to be.
mony at our legislative hearing on S.
3342 in California from the Speaker of
the House and from an assistant attor-
ney general, I feel that this is really a
States rights issue. If the States want
to impose a tougher standard on noise
emissions through a limitation of the
sale of a product, then I feel that the
States ought to have that right.
I cannot speak for every State. I do
know that some States have excellent
ongoing programs to reduce the noise of
various products that are sold in intra-
state and interstate commerce. I would
hate to see the Federal Government move
in and say that the good work that has
been done by the States and by cities
and other localities should be ended.
fecting the noise that product produces.
Any other approach to it would seem to
me very unrealistic and would cause a
variety of difficulties.
Mr. BOGGS. Mr. President, this bill
deals with the responsibilities of the
Federal Government and the State and
local governments in controlling noise
For example, let us suppose that a
jackhammer was being used at a con-
struction site in a city. Construction
would have to stop-presuming it could-
until a manufacturer could produce a
jackhammer that met the city's or the
State's particular qualifications. I do not
know how unprofitable that would be
or how it would run up the cost of the
jackhammer for that particular con-
struction job. That is just one example
of the extreme results application of this
amendment could produce.
I yield now to the distinguished Sen-
ator from Delaware (Mr. BOGGS).
The PRESIDING OFFICER. How
much time does the Senator yield?
Mr. TUNNEY. I yield 5 minutes to the
Senator from Delaware.
Mr. BOGGS. I thank the distinguished
Senator from California, the floor man-
ager of the bill, for yielding.
First, Mr. President, I ask unanimous
consent, on behalf of the Senator from
Michigan (Mr. GRIFFIN), that David
Clanton, of the staff of the Committee on
Commerce, be permitted to be present
in the Chamber during the considera-
tion of this amendment.
The PRESIDING OFFICER. Without tion, could properly exercise.
objection, it is so ordered.
Mr. BOGGS. Mr. President, will the
Senator yield to me 2 additional min-
Senator yield me 2 minutes? Mr. TUNNEY. I yield.
Mr. BOGGS. Mr. President, the bill
provides that manufacturers must use
the best available technology. What
higher standard could one get for the
national requirement on this?
Mr. MUSKIE. Mr. President, will the
The PRESIDING OFFICER. The time technology, is no supplemented in this
of the Senator has expired.
bill by adequate controls over cumulative
noise levels; and it is because of the in-
efficacy of the technology that commu-
nities have to use supplementary controls
of one kind or another to supplement in-
adequate technology. It is that which I
refuse to see preempted, or at least which
I refuse to support the preemption of.
Mr. TUNNEY. I yield.
Mr. BOGGS. I think I have expressed
the committee's position fairly. The com-
mittee tried to balance this situation,
tried to place all the authority and as
much of the regulatory authority in the
local authorities, in the State and local
governments, as was possible consistent
with a reasonable burden on commerce,
while placing in the Federal Govern-
ment the authority which the Federal
Government, in behalf of the whole Na-
Mr. BOGGS. I yield.
Mr. MUSKIE. As the Senator knows,
that provision of the bill rests for its
efficacy upon the state of the technology.
Mr. BOGGS. That is correct.
Mr. MUSKIE. What I have complained
about in my earlier amendment is that
that kind of regulation, depending upon
Mr. President, I ask unanimous con-
sent that the names of the Senator from
California (Mr. CRANSTON) and the Sen-
ator from Massachusetts (Mr. KENNEDY)
be added as cosponsors of the amend-
The PRESIDING OFFICER. Without
objection, it is so ordered.
Who yields time?
Mr. TUNNEY. I yield back the remain-
der of my time.
I think that is the situation presented
by the amendment of the distinguished
Senator from Maine, and I urge that
the amendment be rejected.
Mr. MUSKIE. Mr. President, I yield der of my time.
Mr. MUSKIE. I yield back the remain
Mr. ROBERT C. BYRD. I announce that the Senator from Nevada (Mr. CANNON), the Senator from Florida (Mr. CHILES), the Senator from Louisiana (Mrs. EDWARDS), the Senator from Oklahoma (Mr. HARRIS), the Senator from Massachusetts (Mr. KENNEDY), the Senator from South Dakota (Mr. McGOVERN), the Senator from New Hampshire (Mr. MCINTYRE), the Senator from Montana (Mr. METCALF), the Senator from Minnesota (Mr. MONDALE), the Senator from Rhode Island (Mr. PELL), and the Senator from Virginia (Mr. SPONG) are necessarily absent.
I further announce that, if present and voting, the Senator from New Hampshire (Mr. MCINTYRE), and the Senator from Rhode Island (Mr. PELL) would each vote "yea."
Mr. GRIFFIN. I announce that the Senator from Colorado (Mr. ALLOTT), the Senator from Tennessee (Mr. BAKER), the Senator from New York (Mr. BUCKLEY), the Senator from Nebraska (Mr. CURTIS), the Senator from Arizona (Mr. GOLDWATER), the Senator from Oregon (Mr. HATFIELD), the Senator from Iowa (Mr. MILLER), the Senator from Delaware (Mr. ROTH), the Senator from South Carolina (Mr. THURMOND), and the Senator from Texas TOWER) are necessarily absent.
The Senator from Kentucky (Mr. Cook) is absent on official business.
The Senator from South Dakota (Mr. MUNDT) is absent because of illness.
The Senator from Arizona (Mr. FANNIN) and the Senator from Ohio (Mr. SAXBE) are detained on official business.
If present and voting, the Senator from Nebraska (Mr. CURTIS), the Senator from Iowa (Mr. MILLER), and the Senator from Texas (Mr. TOWER) would each vote "nay."
On this vote, the Senator from Oregon (Mr. HATFIELD) is paired with the Senator from South Carolina (Mr. THURMOND). If present and voting, the Senator from Oregon would vote "yea" and the Senator from South Carolina would vote "nay."
The result was announced-yeas 30, nays 45, as follows:
Dominick Eastland Ervin Fong Gambrell Griffin Gurney Hansen
Cook Curtis Edwards Fannin
So Mr. MUSKIE'S amendment (No. 1740) was rejected.
1.4a (3) (c) Oct. 13: Considered and passed Senate, amended, pp. S17988-S18014
"Any regulations under this section or amendments thereof, with respect to noise emissions from types of aircraft or aircraft engines, shall reflect the degree of noise reduction achievable through the application of the best available demonstrated technology, taking into account the reasonableness of the cost of compliance and the demonstrable public benefit that will result, as determined by the Administrator of the Environmental Protection Agency after consultation with the Administrator of the Federal Aviation Administration and shall not be promulgated until the Administrator of the Federal Aviation Administration has determined that such regulations are consistent with the highest degree of safety in air commerce and that any proposed standard, rule, or regulation has been demonstrated to be technologically available for application to types of aircraft, aircraft engine, appliance, or certificate to which it will apply."
At page 90, line 16 after the period insert the following sentence, "Provided, however, that the Administrator of the Environmental Portection Agency, within nine months of the date of enactment of this Act, shall review all noise emission standards, rules, or regulations in effect under section 611 of the Federal Aviation Act, as amended, prior to the date of enactment of the title."
Mr. TUNNEY. I am pleased the Sen-
ator has brought this matter up on the
floor of the Senate because I would like
to make it absolutely clear that it is the
intention of the committee to make sure
that airline pilots are not going to be
subject to administrative penalty or
criminal penalty for going over the noise
emission levels through use of additional
power if the safety of the passengers is
involved. In the first place, the Federal
Aviation Administration can veto any
noise emission regulation which is not
consistent with the highest degree of
safety in air commerce.
So it is clear that the FAA has the
responsibility to make sure that regula-
tions which are developed are safe. This
responsibility is given solely to the FAA.
Second, section 415 of the bill specifi-
cally provides for judicial review of the
final regulations promulgated under sec-
tion 501 and other sections of the act.
to FAA regulations or to the Administrative Procedure Act. Is that correct?
Mr. TUNNEY. Section 415 of this bill
does provide for periodical review. How-
ever, this act would not affect any rights
to a hearing now afforded by the FAA
Act. FAA regulations would remain in
effect as provided in section 501 (b) (2)
of this act. The Administrative Proce-
dures Act would also apply.
Mr. PEARSON. I thank the Senator.
Mr. TUNNEY. I wish to thank the
Senator for bringing that point up, be-
cause I would not want the pilots of this
country to feel that the passage of this
noise abatement bill was going to subject
them to any potential liability if they
used their best judgment in trying to
protect the safety of their passengers by
Mr. PEARSON. I thank the Senator
Mr. TUNNEY. Mr. President, I am
pleased to offer, on behalf of the Public
Works Committee, perfecting amend-
ments to part A of title V of S. 3342, re-
specting control and abatement of air-
craft noise and sonic boom. Through cer-
tain small changes in language in some
provisions of part A, these amendments
would clarify and speed up the long over-
due relief from noxious aircraft noise.
The amendments will leave unim-
paired the basic regulatory framework
for the section: EPA would be lead
agency in the setting of aircraft emis-
sion standards to meet the health need,
with a twofold FAA veto on grounds of
technological availability and safety.
In section 501 (a) (2), language changes
In section 502, the word "individuals"
has been changed to "persons" in order
to make it clear that corporations can
also be consulted. The last phrase, "to-
gether with his recommendations for leg-
islation" has been deleted in order to
make it clear that EPA need not sub-
mit recommendations for legislation if
it determines that no additional legis-
lation is needed. However, it is antici-
pated that EPA's report will include leg-
islative recommendations, arrived at
after consultation with relevant agencies.
In section 503, "Administrator of
FAA" is changed to "Secretary of Trans-
portation" in order to comport with the
existent regulatory framework. Of
course, implementing standards and in-
spections would be carried out by the
FAA, which has the appropriate powers.
Section 504 is clarified to refer to "any
original" type certificate, and to require
all such type certificates to conform to
applicable regulations. It is thought that
process set in motion in 501(a)(2) and
expedited by the changes in language in
501(b) (1) will result in thoroughly con-
sidered and adequate standards and that,
when promulgated, such standards must
apply to the issuance of original type