H. Rept. 109-596 - 109th Congress (2005-2006)
July 25, 2006, As Reported by the Transportation and Infrastructure Committee

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House Report 109-596 - DISASTER RECOVERY PERSONAL PROTECTION ACT OF 2006




[House Report 109-596]
[From the U.S. Government Printing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-596

======================================================================



 
           DISASTER RECOVERY PERSONAL PROTECTION ACT OF 2006

                                _______
                                

 July 25, 2006.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

     Mr. Young of Alaska, from the Committee on Transportation and 
                Infrastructure, submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 5013]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Transportation and Infrastructure, to whom 
was referred the bill (H.R. 5013) to amend the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act to 
prohibit the confiscation of firearms during certain national 
emergencies, having considered the same, report favorably 
thereon without amendment and recommend that the bill do pass.

                       Purpose of the Legislation

    The purpose of H.R. 5013 is to amend the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (Stafford Act) to 
prohibit the confiscation of lawfully possessed firearms by an 
individual operating under the color of Federal law while 
acting in support of relief from a major disaster or emergency, 
unless the confiscation is otherwise permitted by law.

                Background and Need for the Legislation

    In the wake Hurricane Katrina, State and local law 
enforcement and public safety service organizations were 
overwhelmed. As a result, many citizens felt threatened. Many 
of these citizens lawfully kept firearms for the safety of 
themselves, their loved ones; their businesses, and their 
property. Some of these firearms were confiscated. H.R. 5013 
prohibits the confiscation of lawfully possessed firearms by an 
individual operating under the color of Federal law while 
acting in support of relief from a major disaster or emergency, 
unless the confiscation is otherwise permitted by law.

                       Summary of the Legislation


Section 1. Short title; Table of contents

    This section provides that the short title for this 
legislation is the Disaster Recovery Personal Protection Act of 
2006.

Section 2. Findings

    This section contains a number of congressional findings.

Section 3. Prohibition on confiscation of firearms during certain 
        national emergencies

    This section amends the Stafford Act to prohibit federal 
employees, any entities (including state and local governments) 
receiving federal funds, and other relief workers from 
confiscating, requiring the registration of, or prohibiting 
possession of firearms during a disaster or an emergency if 
those firearms are legally possessed under federal or state 
laws. The bill also provides for a private right of action for 
restitution from an individual violating this section and for 
the return of the firearm confiscated in violation of this 
section.

            Legislative History and Committee Consideration

    On March 28, 2006, Mr. Jindal introduced H.R. 5013, the 
Disaster Recovery Personal Protection Act of 2006, which was 
referred to the Committee on Transportation and Infrastructure.
    On May 17, 2006, the Full Committee met in open session and 
considered H.R. 5013. A manager's amendment to ensure that 
federal officials may seize firearms if they are possessed in 
violation of federal, state, or local law during a major 
disaster or emergency was offered by Mr. Shuster and withdrawn. 
A motion by Mr. Shuster to approve and favorably report to the 
House H.R. 5013 was agreed to by voice vote by the Full 
Committee, with a quorum present. There were no recorded votes 
taken during Committee consideration of H.R. 5013.

                             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 recorded votes taken in connection with ordering H.R. 
5013 favorably reported House.

                      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 
Committee advises that H.R. 5013 contains no measure that 
authorizes funding, so no statement of general performance and 
objectives for which any measure authorizes funding is 
required.
    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. 
5013 from the Director of the Congressional Budget Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, June 8, 2006.
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. 5013, the Disaster 
Recovery Personal Protection Act of 2006.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Matthew 
Pickford (federal costs), and Melissa Merrell (for the state 
and local impact).
            Sincerely,
                                          Donald B. Marron,
                                                   Acting Director.
    Enclosure.

H.R. 5013--Disaster Recovery Personal Protection Act of 2006

    H.R. 5013 would amend the Robert T. Stafford Disaster 
Relief and Emergency Assistance Act to prohibit federal 
employees, any entities (including state and local governments) 
that receive federal assistance, and other relief workers from 
confiscating, requiring the registration of, or prohibiting 
possession of firearms during a disaster or an emergency if 
those firearms are legally possessed under current federal or 
state laws. CBO estimates that implementing H.R. 5013 would 
have no significant impact on the federal budget. Enacting H.R. 
5013 would not affect direct spending or revenues.
    H.R. 5013 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA) because it would 
preempt, during a major disaster or an emergency, some local 
gun-control ordinances that are more strict than state or 
federal law. Individuals would be able to possess firearms that 
are legal under state and federal law even though such 
possession would otherwise be prohibited under local 
ordinances. CBO estimates that local governments would incur no 
direct cost as a result of that preemption; therefore, the 
annual threshold established in UMRA would not be exceeded ($64 
million in 2006, adjusted annually for inflation). The bill 
contains no private-sector mandates as defined in UMRA.
    This bill also would impose new restrictions on state and 
local governments that receive federal assistance. It would 
prohibit those governments from confiscating firearms, 
requiring registration of firearms, or in any way regulating 
the possession of firearms during a major disaster or an 
emergency if those firearms are legally possessed under state 
or federal law. This prohibition would prevent state and local 
governments from issuing emergency regulations, such as banning 
firearms in shelters or evacuation vehicles, unless there is an 
explicit state law prohibiting such possession.
    The CBO staff contacts for this estimate are Matthew 
Pickford (for federal costs) and Melissa Merrell (for the state 
and local impact). This estimate was approved by Robert A. 
Sunshine. 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 1974 
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. H.R. 5013 contains an intergovernmental mandate as 
defined in the Unfunded Mandates Reform Act (UMRA) because it 
would preempt, during a major disaster or an emergency, some 
local gun-control ordinances that are more strict than state or 
federal law. Individuals would be able to possess firearms that 
are legal under state and federal law even though such 
possession would otherwise be prohibited under local 
ordinances. The Congressional Budget Office estimates that 
local governments would incur no direct cost as a result of 
that preemption; therefore, the annual threshold established in 
UMRA would not be exceeded. The bill contains no private-sector 
mandates as defined in UMRA.

                      Advisory Committee Statement

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

                Applicability to the Legislative Branch

    The Committee find 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

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

ROBERT T. STAFFORD DISASTER RELIEF AND EMERGENCY ASSISTANCE ACT

           *       *       *       *       *       *       *



TITLE VII--MISCELLANEOUS

           *       *       *       *       *       *       *



SEC. 706. FIREARMS POLICIES.

  (a) Prohibition on Confiscation of Firearms.--No officer or 
employee of the United States (including any member of the 
uniformed services), or person operating pursuant to or under 
color of Federal law, or receiving Federal funds, or under 
control of any Federal official, or providing services to such 
an officer, employee, or other person, while acting in support 
of relief from a major disaster or emergency, may--
          (1) temporarily or permanently seize, or authorize 
        seizure of, any firearm the possession of which is not 
        prohibited under Federal or State law, other than for 
        forfeiture in compliance with Federal law or as 
        evidence in a criminal investigation;
          (2) require registration of any firearm for which 
        registration is not required by Federal or State law;
          (3) prohibit possession of any firearm, or promulgate 
        any rule, regulation, or order prohibiting possession 
        of any firearm, in any place or by any person where 
        such possession is not otherwise prohibited by Federal 
        or State law; or
          (4) prohibit the carrying of firearms by any person 
        otherwise authorized to carry firearms under Federal or 
        State law, solely because such person is operating 
        under the direction, control, or supervision of a 
        Federal agency in support of relief from a major 
        disaster or emergency.
  (b) Private Rights of Action.--
          (1) In general.--Any individual aggrieved by a 
        violation of this section may seek relief in an action 
        at law, suit in equity, or other proper proceeding for 
        redress against any person who subjects such 
        individual, or causes such individual to be subjected, 
        to the deprivation of any of the rights, privileges, or 
        immunities secured by this section.
          (2) Remedies.--In addition to any existing remedy in 
        law or equity, under any law, an individual aggrieved 
        by the seizure or confiscation of a firearm in 
        violation of this section may bring an action for 
        return of such firearm in the United States district 
        court in the district in which that individual resides 
        or in which such firearm may be found.
          (3) Attorney fees.--In any action or proceeding to 
        enforce this section, the court shall award the 
        prevailing party, other than the United States, a 
        reasonable attorney's fee as part of the costs.

           *       *       *       *       *       *       *


                            ADDITIONAL VIEWS

    The Committee on Transportation and Infrastructure has a 
strong tradition of bipartisanship and it is not often that the 
Minority feels compelled to file separate views to the 
Committee's report on a bill. However, because of the 
seriousness of the issue and the potential that this bill, as 
currently drafted, will jeopardize safety of federal and state 
emergency responders, we feel compelled to do so in this 
instance.
    H.R. 5013 was scheduled for markup at the Full Committee 
without the benefit of any hearings on the bill or a markup by 
the Subcommittee on Economic Development, Public Buildings, and 
Emergency Management. As a result, there has been no real 
debate on the bill and no opportunity for Members to determine 
the true intent of the bill and discuss possible unintended 
consequences of its language.
    The issue of which powers police and federal law 
enforcement will have to disarm citizens in a disaster is far-
reaching and deserves more thoughtful consideration by this 
Committee. In serious emergencies there will be instances in 
which the officials in charge must make difficult decisions, 
such as allocating limited supplies of food and water, or 
medical services, and keeping evacuations orderly. Some of 
these decisions may displease citizens, and if these citizens 
are armed, an explosive confrontation could result.
    We recognize the need for law-abiding citizens to be able 
to protect themselves against criminals breaking into their 
homes, particularly when law enforcement is unable to protect 
its citizens after a catastrophic disaster. And although we are 
told that this is the intent of the bill, the actual language 
of the bill appears to go much further and, as currently 
drafted, would seemingly prohibit federal or state officials 
from asking a person to surrender his or her firearm in the 
event of a natural disaster or terrorist attack even when 
public safety would require such action.
    For example, under the bill as reported, a Coast Guard 
officer would be prohibited from requiring persons boarding a 
Coast Guard rescue helicopter or boat to surrender their 
firearms before they board. Although the Coast Guard's Air 
Operations Manual specifically bans passengers from carrying 
weapons on helicopters or vessels, federal laws do not include 
this specific prohibition.
    If a Coast Guard officer required passengers to surrender 
weapons as required by the Coast Guard's Air Operations Manual 
(chapter 4, section R.4), that officer will violate section 3 
of the bill (``sec. 706(a)(1)'') because he is temporarily 
seizing a ``firearm the possession of which is not prohibited 
under Federal or State law''. The officer also will likely 
violate the subsection of section 3 (``sec. 706(a)(3)'') that 
prohibits an officer from ``prohibiting possession of any 
firearm, in any place or by any person where such possession is 
not otherwise prohibited by Federal or State law''.
    If the Coast Guard officer did in fact insist that a person 
surrender his weapon before boarding a rescue helicopter or 
boat, subsection 3 (``sec. 706(b)'') of the bill would give the 
rescued individual the right to sue that Coast Guard officer. 
Subsection 3 creates a private right of action against any 
person who, whether knowingly or mistakenly, violates the bill. 
That officer, who is serving his country and may be risking his 
own life to save the life of another, could be sued for his 
actions. Under the bill, he would be personally liable for 
damages and attorneys' fees. He could lose his savings and 
could put the financial welfare of his family in jeopardy 
simply for doing his job. We do not believe that federal or 
state officials should have to take that chance.
    The Coast Guard officer is therefore faced with violating 
this Act or the Coast Guard's Air Operations Manual--let alone 
common sense. In its review of the bill, the Coast Guard stated 
in an e-mail: ``From a CG [Coast Guard] perspective, this 
proposal may undermine the authority of Captains of the Ports 
to control the carriage of articles, including firearms, aboard 
waterfront facilities, vessels, and security zones when deemed 
necessary for security.'' An additional Coast Guard e-mail 
summarized the Coast Guard's view of the bill: ``As written, 
the Coast Guard would have serious concerns for both aircraft 
and vessel crewmember safety.''
    This Committee has jurisdiction over the Coast Guard and 
has consistently fought to secure its best interests. In fact, 
this is the first time that we can recall the Committee 
favorably reporting legislation that threatened the safety and 
security of Coast Guard personnel. It is regrettable that we 
have reached that point.
    As a further example, in the event of terrorist attack, the 
bill would prohibit a police or military officer from ordering 
all persons in the area of the attack to surrender their guns. 
In that case, the officer may not have the time to determine 
who is in lawful possession of the weapon, but for the safety 
and security of the public, may simply issue a general 
directive for everyone to surrender their weapons. This bill 
would prohibit the officer from doing that. If the officer did 
mistakenly disarm someone who was in legal possession of a 
firearm, the officer could then be sued and be held personally 
liable for damages--even if the officer later returned that 
person's weapon.
    In addition, the bill provides that no person may prohibit 
the possession of any firearm in any place or by any person 
where such possession is not otherwise prohibited by Federal, 
State or local law. The bill appears intended to prohibit 
authorities, in the event of a national emergency, from 
requiring that people do not bring their weapons into a 
shelter. Given the chaos that ensued in Katrina, does anyone 
believe that the situation at the Superdome would have improved 
if the evacuees were armed? Does anyone really believe that a 
Catholic charity running a shelter should be prohibited from 
ordering that rival gang members can not bring guns into the 
church?
    These examples are not idle speculation. Section 2 of the 
bill contains a finding that appears to be directed at just 
such circumstances. Paragraph 9 of that section addresses the 
issue of people being prohibited from bringing guns into 
emergency shelters after Hurricane Katrina. The bill concludes 
that these people ``were treated as second-class citizens who 
had forfeited their constitutional right to keep and bear 
arms.'' We believe that there are often legitimate safety and 
security concerns--both for those persons staffing the shelter 
and for those persons taking refuge in the shelter--for 
prohibiting firearms in an emergency shelter. A federal law 
that would preempt state and local law on community security 
issues across the board is at best misplaced and at worst 
reckless.
    Further, the bill provides that the individual--the FEMA 
worker, the local sheriff, the Catholic Charity volunteer, and 
the Coast Guard officer--are all personally liable if they 
mistakenly interpret these ambiguous statutory authorities. 
They can be sued and be required to pay damages and attorneys' 
fees. We ask enough of the Coast Guard, law enforcement, and 
volunteers during such disasters--we shouldn't ask them to be 
lawyers too.
    If the Committee had followed regular order and held 
hearings on this bill prior to proceeding with a Full Committee 
markup, we believe that many of these issues could have been 
resolved with a bipartisan manager's amendment, as is the 
tradition in this Committee. There is a way to strike the 
proper balance: to ensure that people can protect themselves in 
a time of emergency, but not give criminals free reign to 
terrorize the law-abiding public. We would like to work with 
the majority to craft language that would strike this balance, 
and that would not, as we believe the bill currenty does, 
threaten the safety and well-being of charitable volunteers and 
federal and state officials. We appreciate the commitment that 
Chairman Young and Subcommittee Chairman Shuster made at the 
Committee markup to work together to make any necessary changes 
to the bill before we move forward. By working together we can 
take a more thoughtful approach to this important issue--an 
approach that better balances the legitimate rights of citizens 
to protect themselves with the needs of the Coast Guard and 
other federal, state, and local officials to ensure the safety 
and security of themselves and our citizens.

                                   James L. Oberstar.
                                   Jerrold Nadler.
                                   Eleanor Holmes Norton.
                                   Bob Filner.
                                   Elijah E. Cummings.
                                   Corrine Brown.
                                   Earl Blumenauer.
                                   Bill Pascrell, Jr.
                                   Ellen O. Tauscher.
                                   Timothy H. Bishop.
                                   Russ Carnahan.
                                   Julia Carson.
                                   Allyson Y. Schwartz.