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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-

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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.

Where we disagree now is on this sim-
ple point: That in this legislation we pre-
empt without substituting effective Fed-
eral legislation.

At least 32 States and many localities
are moving actively in this field. Federal
noise pollution responsibility is new, and
little significant authority or respon-
sibility exists. Conversely, a number of
States have regulatory programs which
impose emission controls on noisy prod-
ucts which controls are enforceable, both
at the point of sale and the point of

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[p. S17784]

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.

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.

Senator from California, the floor man-
Mr. BOGGS. I thank the distinguished
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.

fecting the noise that product produces.
Any other approach to it would seem to
me very unrealistic and would cause a
variety of difficulties.

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.

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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

The PRESIDING OFFICER. The time technology, is not supplemented in this
of the Senator has expired.

Mr. BOGGS. Mr. President, will the
Senator yield to me 2 additional min-
utes?

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-

The PRESIDING OFFICER. Without tion, could properly exercise.
objection, it is so ordered.

Mr. BOGGS. Mr. President, this bill
deals with the responsibilities of the
Federal Government and the State and
local governments in controlling noise

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. 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-
ment.

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

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The PRESIDING OFFICER. All time on the amendment has been yielded back.

The question is on agreeing to the amendment of the Senator from Maine. On this question the yeas and nays have been ordered, and the clerk will call the roll.

The assistant legislative clerk called the roll.

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.

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:

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(Mr.

Allott Baker

Buckley

Cannon

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.

Chiles Cook Curtis Edwards Fannin

Byrd, Robert C.

Cooper

Randolph Schweiker

Scott

Sparkman

Stennis Stevens Taft Talmadge Weicker

Young

NOT VOTING-25

Harris

Mundt

Pell

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1.4a (3) (c) Oct. 13: Considered and passed Senate, amended, pp. S17988-S18014

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The assistant legislative clerk proceeded to read the amendments.

Mr. TUNNEY. Mr. President, I ask unanimous consent that further reading of the amendments be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered; and, without objection, the amendments will be printed in the RECORD.

The amendments, ordered to be printed in the RECORD, are as follows:

At page 89, line 14, strike out, "emissions from" and insert in lieu thereof, "emission standard for".

At page 89, line 15, strike out, "in his judgment are" and insert in lieu thereof, "he determines are necessary and".

At page 89, beginning at line 18, amend subsection (b) (1) to read as follows:

"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."

At page 90, line 19 after the word "emissions," strike out, "including the Civil Aeronautics Board, the Federal Aviation Administration, and the Environmental Protection Agency".

At page 91, line 1, strike out "individuals" and insert in lieu thereof "persons".

At page 91, line 13, after the word "title" strike out the comma and insert a period and delete the remainder of the sentence.

At page 91, line 15, strike out "The Administrator of the Federal Aviation Administration", and insert in lieu thereof, "The Secretary of Transportation.”

At page 92, line 23, after the word "aircraft" delete the remainder of the sentence and insert in lieu thereof, "unless such type certificates apply all of the standards promulgated by the Administrator of the Environmental Protection Agency prior to the date of issuance of such certificates."

At page 93, line 1, delete section 505. At page 93, line 12, strike out "506" and insert in lieu thereof, “505".

At page 93, line 13, strike out the words "attempt to". and at line 14, after the word "thereof" insert a period and strike out the remainder of the sentence.

At page 93, line 17, strike out "507" and insert in lieu thereof "506".

At page 93, line 20, after the period insert the following, "Notwithstanding any other provision of this Act, the sole authority to establish aircraft noise emission standards is contained in Part A of this title.".

At page 93, line 22, strike out "508" and insert in lieu thereof "507".

At page 94, line 23, strike out the words "Administrator of the Environmental Protection Agency." and insert in lieu thereof "Administrator of the Federal Aviation Administration, in consultation with the Administrator of the Environmental Protection Agency.".

At page 95, line 12, strike out "may" and substitute "will".

Mr. PEARSON. Mr. President, will the Senator yield to me for about 3 minutes for the purpose of addressing a question to the distinguished manager of the bill? Mr. TUNNEY. I yield.

Mr. PEARSON. I thank the Senator. Mr. TUNNEY. Does the Senator wish me to yield on these amendments? Mr. PEARSON. No.

The PRESIDING OFFICER. The Senator may proceed.

Mr. PEARSON. I intend to be very brief.

Some expression of apprehension has been voiced on the part of airline pilots as to the mechanics of this particular bill, given circumstances which in case

[p. S17988]

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I would like to inquire whether or not,
given that sort of hypothetical case,
there is protection here and there is not
an arbitrary sort of lifting of the cer-
tification of any pilot because of these
circumstances.

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
increasing power.

Mr. PEARSON. I thank the Senator
for yielding.

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

Failure to perform this nondiscretionary
duty would subject EPA to citizen suits
under section 413.

Names of specific agencies have been
deleted from section 501(c) in order that
it will be clear that no specific agencies
were meant to be excluded. The language
in the report on the bill explains the
types of measures contemplated by this
section.

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

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