The Senate’s Air Safety Bill Was On A Glide Path To Success. Then The Pentagon Stepped In.

Aviation advocates and victims’ families watched in shock and disappointment as the House failed to pass an air safety bill last week seeking to address some of the failures that led to last year’s deadly midair crash over Washington.

As that shock wears off, those advocates of the bill are now pointing fingers, in part, at the Pentagon for pulling its support for the legislation, the Senate-passed "ROTOR Act," just one day before the vote. Longtime observers say it shouldn’t come as a surprise.

“I've seen this playbook from DOD multiple times,” said a Senate staff member, granted anonymity to discuss the politics involving the ROTOR Act. The staffer said it was typical of the Defense Department to cite nonspecific national security concerns even when the legislation advances broader public safety goals.

For its part, DOD said in a statement to POLITICO that it continues to “advance shared goals of aviation safety and accountability within” the "ROTOR Act" and reiterated its concerns about national security and budget issues.

As Congress picks up the pieces of the failed effort, it’s unclear what changes would satisfy both the Defense Department and House lawmakers like Transportation Chair Sam Graves (R-Mo.) and Armed Services Chair Mike Rogers (R-Ala.).

Both lawmakers are pushing their own bill, the bipartisan "ALERT Act." Unlike Senate Commerce Chair Ted Cruz’s "ROTOR Act," it does not mandate advanced-location receiving equipment for all aircraft, and gives the military more leeway on exactly when aircraft need to broadcast their location. Moreover, while supporters of the "ALERT Act" argue their bill is more comprehensive than the "ROTOR Act," air safety officials and others say the House effort doesn’t go far enough to address safety concerns.

A markup for Graves and Rogers’ bill is expected as early as this week, but even if it succeeds there, backers of the "ROTOR Act" continue to insist on a new vote for their bill.

How it all went wrong

Early last week, the "ROTOR Act" looked on track toward success in the House and on its way to the president’s desk. But one day before the scheduled vote the Pentagon stepped in, informing lawmakers in a statement that the measure raised national security and budgetary concerns. Some advocates, especially families, saw the move as a 180-degree turn from the Pentagon’s earlier position, noting that in December the department had said it “supports this legislation.”

That reversal, along with the White House’s silence on the bill, gave cover for Republicans to vote the bill down. Indeed, a statement to POLITICO from the House Armed Services Committee specifically cited the Pentagon’s “national security” concerns. Twenty-two members of HASC voted against the bill.

“It’s not just appropriate but critical for the Pentagon to weigh in on matters affecting national security,” HASC spokesperson Heather Vaughan said in the statement. “They’ve been clear from the start about the need to address those issues in the ROTOR Act and any other air safety legislation.”

For many GOP lawmakers, the combination of DOD opposition and leadership prodding was enough to seal their “no” vote.

“They told us they were going to oppose the bill, and I am on the Armed Services Committee, and so I just thought I'd support our leadership and trying to get a bill that supports the vast majority of the findings of the accident,” said Rep. Don Bacon (R-Neb.). “Evidently, the Secretary of Defense came out against it, too, but I was more or less fine following the chairmen and their advice.” He said that the House’s ALERT Act, based on Graves' and Rogers' explanation, did more to fully address all 50 of the National Transportation Safety Board’s recommendations.

‘Now they’re complaining about the cost’

But NTSB Chair Jennifer Homendy has come out strongly against the "ALERT Act." A letter signed by her and all the other NTSB board members sent to lawmakers last week said many key provisions in Graves and Rogers’ legislation “fall short of fully implementing all of the NTSB’s recommendations,” some which the agency has been making for 20 years.

The highest-profile recommendation, and the main source of the intra-GOP clash, is that aircraft be equipped with a type of advanced-location technology — Automatic Dependent Surveillance–Broadcast — that would allow planes to receive information from other aircraft, improving awareness for planes in the sky.

Cruz’s bill aligns with Homendy’s concerns by centering on that system, what’s known as ADS-B In. The House measure instead emphasizes a mandate for separate traffic alert and collision avoidance systems, among other provisions.

Homendy, who sat in the House Gallery alongside families during the vote last week, also offered a more blistering take on ROTOR’s failed passage: "What's frustrating to [the families] is just as frustrating to us,” Homendy told Reuters after the vote. “All the people who always reach out at the beginning and say, 'Oh we'll give you all of our support, you're doing a great job' and turn around and say, 'Screw you.’" Homendy did not provide further comment.

There may be something to that latter point.

A former FAA official, granted anonymity to discuss the agency’s relationship with the Defense Department, said the military has resisted equipping ADS-B from the outset. ADS-B Out, which is already mandated for aircraft flying through busy airspace, allows air traffic control to observe a plane’s altitude, speed, and location; ADS-B In, meanwhile, allows aircraft to view nearby aircraft, among other data. The NTSB determined ADS-B In would have given both aircraft additional, real-time insight the night of the crash, averting the disastrous outcome.

“When the original law was passed, it left a loophole for the Pentagon to turn off the devices,” the official said. The 2019 National Defense Authorization Act created a carveout for many military aircraft.

“The Pentagon took that as tacit permission to avoid equipping much of the fleet in any fashion. Now they’re complaining about the cost. The rest of the industry absorbed that long ago, and now they want to be rewarded for their original bad behavior,” the former official said, adding, “as if the Pentagon has ever run short on money.”

DOD did not immediately respond to a question on whether they considered the 2019 NDAA carve-out as a reason not to move forward with ADSB.

On the night of the crash, the Army Black Hawk helicopter was not transmitting via its ADS-B Out transponder, which the NTSB concluded the aircraft in question hadn’t used for months.

Graves, the Transportation Committee chair, also took issue with mandating the technologies for smaller-scale, noncommercial flights under the general aviation sector. His bill, the "ALERT Act," is more open-ended for what types of alerting equipment would be satisfactory, and has a narrower scope for which aircraft would need to comply.

A Transportation Committee spokesperson referred questions about the Pentagon’s involvement in the ROTOR Act to the House Armed Services Committee.

‘The facts did not change’

The Commerce Committee referred questions about the Pentagon’s stance — and "ROTOR’s" future — back to Cruz’s previous statement following the bill’s failure. The end result “was just a temporary delay,” Cruz said Tuesday. “We will succeed, and ROTOR Act will become the law of the land. The families and the flying public deserve nothing less.” In a statement ahead of the vote, both Cruz and Sen. Maria Cantwell (D-Wash.), the ranking member on the committee, said that the bill “includes specific language at the Pentagon’s behest to protect classified flights.”

Tim Lilley, the father of Sam Lilley, who was the first officer piloting the regional jet that night, told POLITICO that “if national security concerns were raised at the eleventh hour, they should be addressed transparently.” (Lilley is also a retired U.S. Army Black Hawk pilot, the same helicopter involved in the crash).

“The facts did not change,” Lilley said in a statement. “The NTSB testified this crash was 100% preventable” with the technology only costing “a few hundred dollars.”.

National security concerns, Lilley said, “should never override the basic principle that aircraft operating near major commercial airports must be visible.”

“This should never have been controversial,” he said.

Connor O’Brien, Meredith Lee Hill  and Sam Ogozalek contributed to this report.