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Committee Reports

107th Congress (2001-2002)

House Report 107-555 - Part 1

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{link: 'http://www.congress.gov:80/cgi-bin/cpquery?',title: 'THOMAS - Committee Report - House Report 107-555 - Part 1' }

ARMING PILOTS AGAINST TERRORISM ACT

99-006

107TH CONGRESS

REPT. 107-555

HOUSE OF REPRESENTATIVES

2d Session

Part 1
ARMING PILOTS AGAINST TERRORISM ACT

JULY 8, 2002- Ordered to be printed
Mr. YOUNG of Alaska, from the Committee on Transportation and Infrastructure, submitted the following
R E P O R T
[To accompany H.R. 4635]
[Including cost estimate of the Congressional Budget Office]

SECTION 1. SHORT TITLE.

SEC. 2. FEDERAL FLIGHT DECK OFFICER PROGRAM.

`Sec. 44921. Federal flight deck officer program

`44921. Federal flight deck officer program.'.

SEC. 3. CREW TRAINING.

SEC. 4. COMMERCIAL AIRLINE SECURITY STUDY.

SEC. 5. TECHNICAL AMENDMENTS.

PURPOSE OF THE LEGISLATION

The reported bill (H.R. 4635) directs the Transportation Security Administration (TSA) to deputize up to 2% of the airline pilots for a 2-year test period. Deputized pilots would be allowed to carry firearms aboard the aircraft to defend the cockpit from hijackers.

BACKGROUND AND NEED FOR THE LEGISLATION

The United States of America faces a new and changing threat unlike any we have faced before--the threat of global terrorism. This threat will exist for a long time, and every action must be taken to protect America against those that would seek to kill the innocent.

Since September 11, 2001, the Federal government has taken significant actions to improve aviation security. The Nation is stronger and better prepared today than it was on September 11. However, our aviation system is still in a vulnerable stage of transition. More must be done to prepare for the unknown threats of tomorrow from an often-invisible enemy, an enemy that appears to be preparing and training for additional terrorists attacks, and an enemy that seeks to obtain the most dangerous and deadly weapons to use against America.

There is strong evidence to suggest that more terrorist cells have been trained to take over commercial aircraft. In the event of another terrorist hijacking, the Department of Defense will be forced to make the difficult decision to shoot down a plane carrying innocent passengers to prevent that plane from being used as a weapon. Under these circumstances, Congress must act to provide one last layer of defense.

Arming trained and qualified pilots on a voluntary basis to carry firearms to defend the cockpits of their aircraft is a necessary step to ensure the safety and security of the flying public. Nothing else can provide the deterrence or effectiveness of a weapon wielded by a highly trained individual.

Pilots are already entrusted with the lives of every passenger on the plane. A significant number of pilots have a law enforcement or military background and have some experience with firearms. They are nearly unanimous in their support for the ability to defend themselves, their passengers and their plane.

The Committee is aware that some people believe that the additional screening of passengers and other security improvements made since September 11th should be enough. However, the DOT Inspector General continues to find that weapons are getting through security in alarming numbers. Cockpit doors will not be fortified until 2003 and even then will not be impregnable. Air Marshals, while a significant deterrent, cannot be on every aircraft at all times.

Our aviation safety system is based on redundancy. When all else fails, the U.S. needs a last line of defense. Providing pilots with firearms is a significant deterrent and gives additional assurance that the hijackers can no longer succeed.

Concerns have been raised that bullet holes could cause a rapid decompression of the aircraft. However, Boeing has testified and other tragic incidents confirm that an aircraft can sustain significant damage and continue to fly safely. Nonetheless, the reported bill requires the TSA to conduct tests to assess the risks to an aircraft of firing weapons into sensitive areas.

In addition, while a pilot's first priority should be to fly the aircraft, it will be very difficult for an unarmed pilot to concentrate on flying when an armed hijacker is breaking down the cockpit door. Giving pilots a means to defend themselves in an emergency will allow them to concentrate on flying and ensure the safety of the flight.

H.R. 4635, the Arming Pilots Against Terrorism Act, will create a two-year test program to allow pilots, on a voluntary basis, to carry firearms to defend the cockpits of their aircraft. The program will allow up to 2 percent of active pilots to volunteer to be deputized as Federal law enforcement officers. Participants will undergo extensive firearms training similar to that of the Federal Air Marshals. They will be authorized to use deadly force only as a last option to protect the cockpits of their aircraft against immediate threats of violence or air piracy. Deputized pilots would be allowed to carry firearms in the cockpit regardless of the position of the airline that employs them on this issue.

SUMMARY OF THE LEGISLATION

Section 1 is the short title.

Section 2 adds a new section 44921 to Title 49 of the U.S. Code to create the Federal Flight Deck Officer Program to defend the cockpit of commercial passenger and cargo aircraft providing air transportation. Under the definition in 49 U.S.C. section 40102(a)(5), air transportation includes interstate air transportation and foreign air transportation.

Subsection (a) of section 44921 establishes the program.

Subsection (b) sets forth the procedural requirements for the program.

Paragraph (1) states that the Transportation Security Administration (TSA) shall establish the procedural requirements within 2 months of the date of enactment.

Paragraph (2) requires the TSA to begin the process of selecting, training, and deputizing pilots as Federal flight deck officers within 2 months of the date of enactment unless the procedural requirements have not been established within 2 months. In that case, the TSA must begin the process when the procedures are established but not later than 4 months. While this is a tight deadline, the Committee notes that the TSA has a good record for meeting its deadlines thus far and expects the procedural requirements to be established in time as well, especially since many of the requirements could be the same as those already being used for Federal Air Marshals (FAMs). However, delays in establishing these procedures cannot be used as an excuse to hold up implementation of this program.

Paragraph (3) set forth the issues that TSA must address in establishing the procedural requirements. These are--

Paragraph (4) directs TSA to give preference to former military and law enforcement personnel in deciding which pilots to select for this program.

Paragraph (5) states that information on the aircraft's vulnerabilities developed under subparagraph (E) above should not be disclosed.

Paragraph (6) states that TSA must notify the Congressional Committees of jurisdiction when it completes the analysis of aircraft vulnerabilities under subparagraph (E).

Subsection (c) establishes the training, supervision, and equipment for the program.

Paragraph (1) requires TSA to provide the training, supervision, and equipment for the program at no cost to the pilot or the pilot's airline. Exceptions are contained in (2)(C)(ii) and (f)(1) below in the event that TSA lacks the resources to provide certain training and firearms.

Paragraph (2) sets forth the training requirements.

Subparagraph (A) states that the training requirements shall be based on the training requirements for Federal Air Marshals but that TSA may modify them in light of the different role and responsibilities of an armed pilot and an armed air marshal.

Subparagraph (B) sets forth the specific elements of the training, as follows:

Subparagraph (C) sets forth the training requirements for the use of firearms. Under these requirements--

Subsection (d) addresses the deputization of the pilots.

Paragraph (1) allows the TSA to deputize pilots as Federal Flight Deck Officers who volunteer for the program and who are qualified.

Paragraph (2) states that a pilot is qualified if--

Paragraph (3) allows TSA to request another agency, such as the Justice Department or the U.S. Marshals Service, to actually deputize the pilots that TSA determines are qualified.

Paragraph (4) limits the number of pilots who can be deputized under the program established by this bill to 2% of the pilot workforce.

Paragraph (5) authorizes TSA to revoke a pilot's ability to be armed under this program if TSA finds that the pilot is not qualified.

Subsection (e) makes clear that Federal flight deck officers are not eligible for compensation from the Federal government for being such officers and neither the government nor the pilot's airline are obligated to pay that pilot for the time spent training for the program. However, this subsection does not prevent an airline from compensating its Federal flight deck officers.

Subsection (f) addresses the authority to carry firearms.

Paragraph (1) directs TSA to authorize Federal flight deck officers to carry firearms. It also allows the Federal flight deck officer to purchase and carry his or her own firearm if the firearm is the type allowed under this program.

Paragraph (2) preempts Federal or State laws that would otherwise prevent a Federal flight deck officer from carrying a firearm to participate in this program including the carriage of the firearm outside the airport between duty times.

Paragraph (3) allows the TSA to enter into MOU's or take other action to ensure that Federal flight deck officers can carry firearms on flights into foreign countries and outside the airport between duty times.

Subsection (g) directs TSA to set the standards and circumstances under which a Federal flight deck officer may use lethal force. In prescribing a use of force standard the committee recommends that TSA draw guidance from existing federal use of force protocols.

Subsection (h) sets forth the limitations on liability.

Paragraph (1) exempts airlines from liability for a Federal flight deck officer's use or failure to use a firearm since the airline has no role under the reported bill in deciding whether its pilots will be allowed to carry firearms.

Paragraph (2) exempts Federal flight deck officers from liability for injuries that may result from their use of a firearm in defending the cockpit of their aircraft from a hijacking unless the pilot is guilty of gross negligence or willful misconduct. No special liability protection is afforded flight attendants since they are already covered by section 144 of the Aviation and Transportation Security Act, P.L. 107-71, 115 Stat. 644, 49 U.S.C. 44903.

Paragraph (3) states that in actions against the United States, the Federal flight deck officer shall be treated as a Federal employee.

Subsection (i) addresses the duration of the program.

Paragraph (1) limits the duration of the program to 2 years. To ensure that there are enough pilots in the program to have a valid test, the 2-year period does not begin to run until the 250th pilot has been deputized. However, the first 249 pilots who are deputized could fly armed as long as the required procedures are in place. They would not have to wait until the 250th pilot is deputized before having access to firearms in the cockpit as authorized by TSA.

Paragraph (2) requires TSA to evaluate the program before the end of the 2-year period.

Paragraph (3) authorizes TSA to terminate the program at the end of the 2-year period if it finds that the risks of the program outweigh the benefits. If the program is terminated, TSA must give Federal flight deck officers, and other individuals as necessary, enough notice so that they can return to their bases and remove their firearms from the cockpit.

Paragraph (4) governs the continuation of the program.

Subparagraph (A) states that if TSA decides to continue the program, it shall publish a notice in the Federal Register and may deputize more pilots in addition to any pilots previously deputized.

Subparagraph (B) requires TSA to issue a notice of proposed rulemaking (NPRM) 60 days after publication of the notice continuing the program. The NPRM shall propose rules under which the program will be operated. These rules should address the issues listed in (b)(3) above as well as the following:

Paragraph (5) directs TSA to reevaluate the program after 3 years, if it has determined to continue the program, and report to Congress on whether it should be continued or terminated. Congress could then decide, based on that report, whether to continue it or terminate it.

Subsection (j) exempts from the coverage of the reported bill those small carriers, and their pilots, governed by part 135 of the FAA's rules to the extent they are already authorized to fly armed under FAA rules. This subsection also defines the term `pilot' and makes clear that it includes both those commonly known as the pilot and the co-pilot.

Subsection (b) of the reported bill repeals the section in existing law that previously governed whether a pilot could be armed.

Subsection (c) is a sense of the Congress that the training of Federal flight deck officers should not prevent the TSA from training its Federal Air Marshals.

Section 3 strengthens the flight attendant training program. It requires that flight attendants receive training in self-defense. It would not be sufficient for this training to merely involve the showing of a video. Rather, the provision contemplates hands-on training. A flight attendant would not have to participate in the physical aspects of the training if that flight attendant believes it would have an adverse impact on his or her health or safety. The section sets forth the elements of the training and requires the TSA to establish, by rule, the qualifications for the training instructors, the required number of hours for that training, and the intervals, amount, and elements of recurrent training. In formulating the rule, TSA should consult with self-defense experts, airlines, flight attendants, and educational institutions, such as community colleges, that offer law enforcement training programs. These may be appropriate resources for TSA to determine the appropriate number of hours for these training programs.

Section 4 requires a study of Federal law enforcement officers, other than Federal air marshals, who are carrying weapons while on board commercial aircraft. The study would determine the number of such officers who are flying and examine the cost and feasibility of establishing programs to utilize them to supplement the air marshals and armed pilots. A report is required in 6 months.

Section (5) makes technical corrections to section 44903 of Title 49 to correct the problem of multiple subsection (h)'s in that section.

LEGISLATIVE HISTORY AND COMMITTEE CONSIDERATION

H.R. 4635 was introduced by Congressman Don Young of Alaska on May 1, 2002 and was referred to the Committee on Transportation and Infrastructure. The Subcommittee on Aviation held hearings on May 2, 2002 and approved the bill by voice vote on June 19, 2002 after approving by voice vote an amendment in the nature of a substitute offered by Subcommittee Chairman John Mica. The Committee, after adopting several amendments by voice vote, favorably reported the amended bill by voice vote on June 26, 2002.

ROLLCALL VOTES

Clause 3(b) of rule XIII of the House of Representatives requires each committee report to include the total number of votes cast for and against on each rollcall vote on a motion to report and on any amendment offered to the measure or matter, and the names of those members voting for and against. There were no rollcall votes on the reported bill.

COMMITTEE OVERSIGHT FINDINGS

With respect to the requirements of clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Committee's oversight findings and recommendations are reflected in this report.

COST OF LEGISLATION

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives does not apply where a cost estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974 has been timely submitted prior to the filing of the report and is included in the report. Such a cost estimate is included in this report.

COMPLIANCE WITH HOUSE RULE XIII

1. With respect to the requirement of clause 3(c)(2) of rule XIII of the Rules of the House of Representatives, and 308(a) of the Congressional Budget Act of 1974, the Committee references the report of the Congressional Budget Office included below.

2. With respect to the requirement of clause 3(c)(4) of rule XIII of the Rules of the House of Representatives, the performance goals and objective of this legislation are to arm 2% of the pilots for a 2-year test period.

3. With respect to the requirement of clause 3(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for H.R. 4635 from the Director of the Congressional Budget Office.

U.S. Congress

Congressional Budget Office

Washington, DC, July 8, 2002.

Hon. DON YOUNG,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4635, the Arming Pilots Against Terrorism Act.

If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Rachel Milberg.

Sincerely,

Barry B. Anderson

(For Dan L. Crippen, Director).

Enclosure.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

H.R. 4635--Arming Pilots Against Terrorism Act

Summary: H.R. 4635 would direct the Under Secretary of Transportation for Security to establish a program for training and equipping aviation pilots as federal flight deck officers. The Under Secretary would authorize the officers to carry firearms.

Assuming appropriation of the necessary amounts, CBO estimates that implementing H.R. 4635 would cost about $47 million over the 2003-2007 period. Enacting H.R. 3609 would not affect direct spending or receipts, so pay-as-you-go procedures would not apply.

H.R. 4635 contains intergovernmental mandates as defined in the Unfunded Mandates Reform Act (UMRA), but CBO estimates that complying with the mandates would impose no costs on state, local, or tribal governments. Therefore, the threshold established by UMRA ($58 million in 2002, adjusted annually for inflation) would not be exceeded.

H.R. 4635 also contains a private-sector mandate as defined in UMRA. The bill would require air carriers to provide additional training, including self-defense training, to their crews. Because the new training requirements would depend on specific regulations that would be established by the Under Secretary, CBO cannot determine whether the direct cost to the private sector would exceed the annual threshold specified in UMRA ($115 million in 2002, adjusted annually for inflation).

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 4635 is shown in the following table. The costs of this legislation fall within budget function 400 (transportation). 



----------------------------------------------------------------------------------------------------------


                                             By Fiscal Year, in Millions of Dollars--                     


                                                                                 2003 2004 2005 2006 2007 


----------------------------------------------------------------------------------------------------------


CHANGES IN SPENDING SUBJECT TO APPROPRIATION                                                              


Estimated authorization level                                                       5   12   13   13   13 


Estimated outlays                                                                   3    6   12   13   13 


----------------------------------------------------------------------------------------------------------


Basis of estimate: For this estimate, CBO assumes that H.R. 4635 will be enacted near the end of fiscal year 2002 and that the necessary amounts will be appropriated for each year. The estimated costs are based on information from the Transportation Security Administration and the Air Line Pilots Association.

H.R. 4635 would limit the authorized number of federal flight deck officers to no more than 2 percent of all pilots employed by air carriers. CBO estimates that more than 2 percent of pilots employed by air carriers would volunteer and qualify to be an officer, thus we expect this provision would limit participation in the program to about 1,400 pilots. We estimate that the program would cost $8,000 annually for each federal flight deck officer, including the cost of weapons, ammunition, training, and travel. CBO estimates that it would cost an additional $500,000 each year to maintain a staff of about six people to manage the new program.

H.R. 4635 would require the Under Secretary to evaluate the benefits and risks associated with the federal flight deck officers, and decide whether or not the program should continue. The Under Secretary would evaluate the program twice: the first time would occur two years after the 250th officer had been deputized, and the second time would occur three years later. The bill would allow the Under Secretary to expand the size of the program at that time. For this estimate, CBO assumes the Under Secretary would decide to continue the program at the same level (of about 1,400 pilots).

Under current law, the Under Secretary collects fees from air carriers and air passengers to partly cover the cost of transportation security programs. However, CBO does not expect that implementing H.R. 4635 would change the amounts of fees collected.

Pay-as-you-go considerations: None.

Estimated impact on state, local, and tribal governments:  H.R. 4635 would shield both air carriers and pilots participating in the federal flight deck officer program from liability for damages resulting from the pilot's defense of the aircraft (with the some exceptions). Because the liability provisions would limit the application of state law, the bill contains an intergovernmental mandate as defined in UMRA. However, the liability mandates would impose no duty on states that would result in additional spending.

The bill would allow pilots participating in the federal flight deck program to carry firearms into any state, regardless of state firearm laws. This preemption of state firearm law also is an intergovernmental mandate as defined in UMRA. CBO estimates that this preemption would not affect state budgets because, while it would limit the application of state law towards the participating pilots, it would impose no duty on states that would result in additional spending.

Because neither of these mandates, taken individually or together, would result in additional costs, the threshold established by UMRA ($58 million, in 2002, adjusted annually by inflation) would not be exceeded.

Estimated impact on the private sector: H.R. 4635 contains a private-sector mandate as defined in UMRA. The bill would require air carriers to provide additional training, including self-defense training, to their crews. According to industry sources, 190,000 or more employees would have to be trained. The cost of such training would depend on the length and content of the programs. Because those elements of the new training programs would depend on specific regulations that would be established by the Under Secretary, CBO cannot determine whether the direct cost to the private sector would exceed the annual threshold specified in UMRA ($115 million in 2002, adjusted annually for inflation).

Estimate prepared by: Federal costs: Rachel Milberg; impact on state, local, and tribal governments: Greg Waring; impact on the private sector: Jean Talarico.

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

CONSTITUTIONAL AUTHORITY STATEMENT


Pursuant to clause (3)(d)(1) of rule XIII of the Rules of the House of Representatives, committee reports on a bill or joint resolution of a public character shall include a statement citing the specific powers granted to the Congress in the Constitution to enact the measure. The Committee on Transportation and Infrastructure finds that Congress has the authority to enact this measure pursuant to its powers granted under article I, section 8 of the Constitution.

FEDERAL MANDATES STATEMENT


The Committee adopts as its own the estimate of federal mandates prepared by the Director of the Congressional Budget Office pursuant to section 423 of the Unfunded Mandates Reform Act. (Public Law 104-4).

PREEMPTION CLARIFICATION


Section 423 of the Congressional Budget Act of 1994 requires the report of any Committee on a bill or joint resolution to include a statement on the extent to which the bill or joint resolution is intended to preempt state, local or tribal law. The Committee states that H.R. 4635 preempts state law to the extent necessary to allow Federal flight deck officers to carry firearms interstate and within a state and to limit their liability for the use of that gun to defend the cockpit of an aircraft.

ADVISORY COMMITTEE STATEMENT


No advisory committees within the meaning of section 5(b) of the Federal Advisory Committee Act are created by this legislation.

APPLICABILITY TO THE LEGISLATIVE BRANCH


The Committee finds that the legislation does not relate to the terms and conditions of employment or access to public services or accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act. (Public Law 104-1).

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED




CHAPTER 449 OF TITLE 49, UNITED STATES CODE


CHAPTER 449--SECURITY




SUBCHAPTER I--REQUIREMENTS

Sec.

44901. Screening passengers and property.

* * * * * * *

44921. Federal flight deck officer program.

* * * * * * *



SUBCHAPTER I--REQUIREMENTS


* * * * * * *

Sec. 44903. Air transportation security




* * * * * * *





* * * * * * *





* * * * * * *



* * * * * * *

Sec. 44918. Crew training




* * * * * * *









































* * * * * * *

Sec. 44921. Federal flight deck officer program






































































































































* * * * * * *

-

SECTION 128 OF THE AVIATION AND TRANSPORTATION SECURITY ACT


 [Struck out->][ SEC. 128. FLIGHT DECK SECURITY. ][<-Struck out]






















 




 
  
     

        
 
          


          


          

         

      		
    





  
     

       

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