[Senate Report 108-38]
[From the U.S. Government Publishing Office]
108th Congress
1st Session SENATE Report
108-38
_______________________________________________________________________
Calendar No. 76
AIR CARGO SECURITY IMPROVEMENT ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND
TRANSPORTATION
on
S. 165
April 24, 2003.--Ordered to be printed
Filed, under authority of the order of the Senate of April 11, 2003
?
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred eighth congress
first session
JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana DANIEL K. INOUYE, Hawaii
TRENT LOTT, Mississippi JOHN D. ROCKEFELLER IV, West
KAY BAILEY HUTCHISON, Texas Virginia
OLYMPIA J. SNOWE, Maine JOHN F. KERRY, Massachusetts
SAM BROWNBACK, Kansas JOHN B. BREAUX, Louisiana
GORDON SMITH, Oregon BYRON L. DORGAN, North Dakota
PETER G. FITZGERALD, Illinois RON WYDEN, Oregon
JOHN ENSIGN, Nevada BARBARA BOXER, California
GEORGE ALLEN, Virginia BILL NELSON, Florida
JOHN E. SUNUNU, New Hampshire MARIA CANTWELL, Washington
FRANK LAUTENBERG, New Jersey
Jeanne Bumpus, Staff Director and General Counsel
Ann Begeman, Deputy Staff Director
Robert W. Chamberlin, Chief Counsel
Kevin D. Kayes, Democratic Staff Director
Gregg Elias, Democratic General Counsel
(ii)
Calendar No. 76
108th Congress Report
SENATE
1st Session 108-38
======================================================================
AIR CARGO SECURITY IMPROVEMENT ACT
_______
April 24, 2003.--Ordered to be printed
Filed, under the authority of the order of the Senate of April 11, 2003
_______
Mr. McCain, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 165]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 165) ``A Bill To improve air
cargo security'', having considered the same, reports favorably
thereon with amendments and recommends that the bill (as
amended) do pass.
Purpose of the Bill
The purpose of the Air Cargo Security Improvement Act, S.
165, as reported, is to enhance the security of cargo
transported by air, particularly aboard passenger aircraft.
Background and Needs
On November 16, 2001, Congress passed the Aviation and
Transportation Security Act (ATSA) in response to the terrorist
attacks on September 11th of that year. The Act, which was
signed into law on November 19, 2001, implemented a new regime
for aviation security and created the Transportation Security
Administration (TSA) within the Department of Transportation
(DOT) to oversee security for all modes of transportation. The
TSA has since been transferred to the Department of Homeland
Security (DHS). ATSA (P.L. 107-71) contained numerous
provisions and deadlines designed to increase aviation security
targeted at the safety and security of airline passengers.
With respect to the security of air cargo, ATSA contained two
key provisions. The first dealt with passenger aircraft and
required that the TSA provide for the screening of all cargo
and mail that will be carried aboard such aircraft (section
110). Almost all passenger flights carry cargo alongside
luggage in the belly of the plane. Such cargo can encompass
anything from pallets of computer chips to refrigerated cartons
of chicken. According to a Federal Aviation Administration
(FAA) estimate, approximately 22 percent of all air cargo
loaded in the United States in 2000 was carried on passenger
flights.
ATSA required that all checked airline bags be screened by
explosive detection systems by December 31, 2002, which was
later extended to 2003 for a limited number of airports. A
similar timetable was not specified for screening cargo.
The second provision required that a system must be in
operation as soon as practicable after the date of enactment of
ATSA (section 10), to screen, inspect, or otherwise ensure the
security of all cargo that is to be transported in all-cargo
aircraft .
I. ACTIVITY BEFORE SEPTEMBER 11, 2001
The air cargo system involves numerous participants that all
require some level of security oversight. Typically, a shipper
takes packages to an indirect air carrier (IAC, also known as a
freight forwarder). An IAC is defined as any person or entity,
excluding an air carrier, that engages indirectly in the
transportation of property by air, and uses the services of a
passenger air carrier. This does not include the United States
Postal Service. The IAC may consolidate packages from many
shippers into single containers. The IAC then uses trucks,
either its own or hired, to deliver the bulk freight to air
carriers for transport.
Before the attacks of September 11, 2001, the FAA was
generally responsible for oversight of civil aviation security.
The bombing of Pan Am Flight 103 in 1988 led to the passage of
the Aviation Security Improvement Act of 1990, which required
the FAA to begin an accelerated 18-month research and
development effort to find an effective explosives detection
system to screen baggage and cargo. Following the 1996 crashes
of ValuJet flight 592 and TWA flight 800, the White House
Commission on Aviation Safety and Security was created to
assess vulnerabilities of safety and security confronting
aviation. The Commission recommended that the FAA implement a
comprehensive plan to address the threat of explosives and
other threatening objects in cargo and to work with industry to
develop new initiatives in this endeavor. The FAA subsequently
created Federal and industry partnerships, the Baseline Working
Group, and later, the Cargo Working Group, to find ways improve
air cargo security.
Under the FAA's program, front-line responsibility for
screening air cargo fell on two groups: the carriers and IACs.
Both were required to adopt and carry out FAA-approved security
programs.
The key element of FAA's cargo security program before
September 11, 2001, was the Known Shipper Program. A known
shipper is essentially one that has an established reputation
and thus is ``known'' to the industry and to the FAA. This
program allowed an air carrier or IAC to transport a package
from a known shipper with no more screening than an examination
of its exterior. Packages from unknown shippers would be
screened by X-ray or physically inspected before being placed
aboard a passenger aircraft. Under the FAA's cargo security
program, IACs were not allowed to accept packages from unknown
shippers. If the IAC does not have an existing relationship
with the business that seeks to ship goods, it must follow
established regulations to ensure the company is a trustworthy
business. The FAA's security oversight and implementation
responsibility of the Known Shipper Program was transferred
through ATSA to the TSA.
Before September 11, 2001, the DOT Inspector General (IG) had
been conducting tests of cargo security. The IG found that air
carriers and indirect air carriers were not always complying
with the FAA's Known Shipper Program, and that the FAA had not
developed and implemented an adequate policy or oversight
system to ensure compliance.
II. ACTIONS SINCE SEPTEMBER 11, 2001
A number of important changes were implemented after
September 11, 2001, regarding the shipment of cargo on
passenger air carriers. These changes included the requirement
that only cargo from known shippers could be accepted on
passenger air carriers and all cargo from unknown shippers and
mail weighing more than 16 ounces had to be diverted to all-
cargo air carriers.
The Known Shipper Program continues to be TSA's primary means
of compliance with ATSA screening mandates today. According to
the agency, it has strengthened the process through which a
shipper becomes ``known''. The TSA has developed a national
database of known shippers and is re-validating every business
in the known shipper program.
Many of the other changes implemented by TSA are sensitive or
classified information.
III. AIR CARGO ISSUES AND CONCERNS
The IG has expressed some concerns that the TSA's cargo
security program is continuing to rely on the Known Shipper
Program, which has weaknesses, and that very little cargo is
actually screened. The IG believes that TSA must reevaluate its
program to determine whether current procedures should be
retained, identify new principles and controls that should be
added, and develop a strategic plan to screen all cargo. The IG
also is recommending that, until screening of all cargo is
feasible, TSA develop and implement a plan for random screening
of cargo using x-ray, canines, or explosives detection
equipment. In addition, the IG advocates a requirement that a
provider of cargo transportation lose its certification when
TSA inspections and testing have continuously found the
provider in noncompliance with cargo security requirements.
The size and nature of air cargo can vary widely. Airlines
are financially dependent on cargo, which carries higher profit
margins than passenger traffic. One of the key problems with
any attempt to screen all cargo on passenger aircraft at this
time is that any type of physical inspection or electronic
screening would be extremely expensive and time-consuming. Some
industry observers believe that any changes causing additional
expense or delay to the air cargo system could cause widespread
disruption to United States businesses, which have grown
dependent on moving goods rapidly, as well as creating further
financial difficulties for the troubled United States airline
industry.
Summary of Provisions
S. 165 would provide for several steps to improve the
security of air cargo, particularly that which is carried
aboard passenger aircraft. The TSA would be required to develop
a strategic plan to ensure that all air cargo is screened,
inspected, or otherwise made secure. TSA also would be required
to develop a system for the regular inspection of air cargo
shipping facilities. A database of known shippers would be
established in order to bolster the Known Shipper Program.
Indirect air carriers could have their certificates revoked if
TSA finds that they are not adhering to security laws or
regulations. The existing Federal security program for indirect
air carriers would be reviewed and assessed for possible
improvements. TSA would develop a security training program for
persons who handle air cargo. All-cargo carriers would be
required to develop security plans that would be subject to
approval by the TSA.
S. 165 also would alter a provision in ATSA to expand the
requirements of background checks for alien flight school
applicants to include all aircraft instead of aircraft weighing
12,500 pounds or more.
S. 165 also would require a number of studies to be
undertaken by the Department of Transportation and the
Department of Homeland Security.
Legislative History
S. 165 was introduced by Senators Hutchison and Feinstein on
January 15, 2003. It is nearly identical to a title that was
contained in legislation passed by the Committee last year, S.
2949, the Aviation Security Improvement Act, which was
sponsored by then Chairman Hollings and Ranking Member McCain.
S. 2949 was passed by unanimous consent in the full Senate on
November 18, 2002. The cargo-related provision represented a
consensus based on individual bills introduced by Senators
Snowe (S. 2656) and Hutchison (S. 2668) during the second
session of the 107th Congress.
A number of amendments to S. 165 were adopted during the
Committee's Executive Session on March 13, 2003, before it was
reported favorably out of the Senate Committee on Commerce,
Science, and Transportation. Senator Wyden offered an amendment
requiring a report on the proposed Computer Assisted Passenger
Pre-Screening System (CAPPS II) and its impact upon privacy and
civil liberties. Senator Boxer offered several amendments,
including requiring the issuance of guidelines for detecting
false identification at airports, evaluating blast-resistant
cargo containers, reviewing how to best defend turbo and jet
passenger aircraft from Man-Portable Air Defense Systems
(MANPADS), and allowing cargo pilots to participate in the
Federal Flight Deck Officers program. Senator Nelson offered an
amendment requiring background checks of alien flight school
applicants, without regard to the maximum certificated weight
of the aircraft for which they seek training, and to require a
report on the effectiveness of this requirement. All of the
amendments were agreed to by voice vote. Many of these issues
were included in S. 2949.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
April 16, 2003.
Hon. John McCain,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed estimate for S. 165, the Air Cargo
Security Improvement Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark Hadley
and Ken Johnson.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
S. 165--Air Cargo Security Improvement Act
Summary: S. 165 would impose new duties on the
Transportation Security Administration (TSA) within the
Department of Homeland Security. The bill would require the TSA
to regularly inspect air shipping facilities, expand the
Federal Flight Deck Officer Program by allowing pilots of air
cargo aircraft to be armed, establish an industry-wide database
of cargo shippers, and create a security training program for
air cargo handlers.
Assuming appropriation of the necessary amounts, CBO
estimates that implementing S. 165 would cost $417 million over
the 2004-2008 period. Enacting S. 165 would not affect direct
spending or revenues.
S. 165 would allow eligible cargo pilots, regardless of
state laws, to carry firearms within and across state borders
and would protect those pilots and air carriers from liability
for certain actions. These provisions would expand existing
intergovernmental mandates as defined in the Unfunded Mandates
Reform Act (UMRA). CBO estimates, however, that these
provisions would impose no costs on state, local, or tribal
governments. Thus, new mandate costs would not exceed the
threshold established by that act ($59 million in 2003,
adjusted annually for inflation). The remaining provisions of
the bill contain no intergovernmental mandates.
S. 165 would impose private-sector mandates as defined in
UMRA on carriers that transport cargo and facilities that
provide flight training to foreign candidates. The cost to
comply with those mandates would depend on the standards to be
developed after enactment. However, based on information on
current industry practices from the TSA and industry
representatives, CBO expects that the costs to comply with the
mandates would not exceed the annual threshold established by
UMRA for private-sector mandates ($117 million in 2003,
adjusted annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 165 is shown in the following table. The
costs of this legislation fall within budget function 400
(transportation).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2004 2005 2006 2007 2008
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated authorization level...................................... 80 83 86 89 92
Estimated outlays.................................................. 68 83 85 89 92
----------------------------------------------------------------------------------------------------------------
Basis of estimate
CBO estimates implementing S. 165 would cost $417 million
over the 2004-2008 period. A description of the costs in
provided below. For this estimate, CBO assumes that S. 165 will
be enacted by the end of fiscal year 2003 and that the
necessary amounts will be appropriated for each year. We also
assume that these appropriations would be adjusted to reflect
anticipated inflation for each year. The estimated costs are
based on information from the Transportation Security
Administration and the Air Line Pilots Association.
Inspection of air shipping facilities and training cargo
handlers
S. 165 would require the TSA to establish a system for
regular inspections of shipping facilities that handle air
cargo to ensure that appropriate security protocols are
observed. Under current law, the TSA employs about 50 cargo
security inspectors. To inspect every air cargo facility once a
year, TSA estimates that it would need to hire 500 inspectors.
CBO estimates that each inspector would cost about $120,000
each year, including the cost of training and supervision.
Hence, CBO estimates that this provision would cost about $50
million in 2004 and about $290 million over the 2004-2008
period. The bill also would require the TSA to create a
security training program for air cargo handlers. Based on
information from the TSA, CBO estimates that creating such a
program would cost about $250,000.
Arming cargo pilots
CBO estimates that TSA would need about $16 million in 2004
and $83 million over the 2004-2008 period to arm and equip
pilots of cargo aircraft. Under current law, the TSA trains and
equips pilots on passenger aircraft to carry firearms as
federal flight deck officers. The bill would expand that
program to include pilots of cargo aircraft. Based on
information from the Air Line Pilots Association, CBO estimates
that about 25 percent of the 8,000 active cargo pilots would
apply and qualify for the program. CBO expects that the number
of participants in the program would remain relatively steady
over time as pilots retire who are replaced by new
participants.
We estimate that the program would spend an average of
about $8,000 for each federal flight deck officer, including
the cost of weapons, ammunition, training, and travel. Because
all pilots would receive updated training and equipment, such
costs would continue each year. CBO estimates that it would
cost an additional $500,000 each year to maintain a staff of
about six people to manage the expanded program.
Database of cargo shippers
S. 165 would require the TSA to establish an industry-wide
database of air cargo shippers that use passenger aircraft.
More than 50 air carriers transport air cargo on passenger
aircraft. The largest carriers of air cargo conduct business
with nearly 2 million shippers per day. Because the population
of shippers would change each year, the costs of maintaining a
database of known shippers would be ongoing. Based on the
number of shippers that would need to be tracked and the cost
of private systems to track shippers, CBO estimates that
maintaining an industry-wide database of known shippers would
cost about $10 million dollars a year.
Estimated impact on state, local, and tribal governments:
S. 165 would amend the Homeland Security Act of 2002 to expand
participation in the federal flight deck program. The bill
would permit deputized cargo pilots to carry firearms into any
state, regardless of state firearm laws, and would extend
liability protection to eligible carriers and cargo pilots for
damages resulting from the pilot's defense of the aircraft
(with some exceptions). The increase in the type of pilots
eligible to carry firearms and afforded the liability
protection are expansions of existing mandates as defined in
UMRA because they expand the scope of preemptions of state
firearm and liability laws. CBO estimates, however, that such
preemptions would not affect state budgets because, while they
would limit the application of state law, they would impose no
duties on states that would result in additional spending.
The remaining provisions of S. 165 contain no
intergovernmental mandates as defined in UMRA. However,
airports could be indirectly affected by provisions that would
authorize TSA to install machinery and systems to enhance
security. For example, airports might need to give up space to
accommodate security improvements. CBO cannot predict exactly
how airports would be affected because regulations regarding
such enhancements have yet to be implemented. However, any
resulting costs likely would not be large.
Estimated impact on the private sector: S. 165 would impose
private-sector mandates as defined in UMRA on air carriers that
transport cargo and on facilities that provide flight training
to foreign candidates. The costs to comply with those mandates
would depend on standards to be developed after enactment.
However, based on information on current industry practices
from the TSA and industry representatives, CBO expects that the
costs to comply with the mandates would not exceed the annual
threshold established by UMRA for private-sector mandates ($117
million in 2003, adjusted annually for inflation).
S. 165 would require air carriers that operate all-cargo
aircraft to establish and implement a security plan. The
requirements in the security plan would be based on standards
to be set by the Under Secretary of Transportation for
Security. According to industry representatives, many
businesses have already undertaken several measures to upgrade
security. To the extent that future security regulations mirror
those measures, the industry would not bear substantial
additional costs associated with the mandate. Based on
information on industry practices from the TSA and
representatives for air carriers transporting cargo, CBO
expects that the costs of compliance would not be great.
Current law requires facilities that provide flight
training to submit certain information to the Attorney General
on foreign candidates requesting initial training to operate
aircraft weighing 12,500 pounds or more. S. 165 would require
such training facilities to submit that information on foreign
candidates requesting initial training on any aircraft,
regardless of size. Based on information from the Department of
Justice and representatives of flight training facilities, CBO
estimates that the incremental cost to comply with this mandate
would be under $2 million annually.
Estimate prepared by: Federal costs: Mark Hadley and Ken
Johnson; 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.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 165 is intended to improve aviation security by making
modifications to P.L. 107-71, the Aviation and Transportation
Security Act (ATSA). The bill affects TSA and other entities
already subject to TSA rules and regulations, and therefore the
number of persons covered should be consistent with the current
levels of individuals impacted under the provisions that are
addressed in the bill.
ECONOMIC IMPACT
S. 165 is not expected to have an adverse impact on the
nation's economy. It is anticipated that Sections 2 through 6
would have positive economic impacts to their respective areas,
and should provide significant support to the aviation
industry. The bill addresses cargo security and would authorize
the necessary funding to establish a system that ensures all
air cargo is secure by requiring TSA and the air cargo industry
to take steps to protect the system.
PRIVACY
S. 165 would have minimal effect on the privacy rights of
individuals, but a provision on identification training raises
the issue of a person proving their identity, potentially with
the aid of technology. The use of biometrics and other
identifiers raise a number of questions that need to be
addressed by TSA to ensure that the privacy rights of
individuals are protected. Senator Wyden's provision is
intended to ensure privacy for passenger screening.
PAPERWORK
The Committee does not anticipate a major increase in
paperwork burdens resulting from the passage of this
legislation. In those areas where the bill does require
additional paperwork, it is aimed at improving the security of
the national air transportation system. S.165 would require the
establishment of a database to improve the system by which
known shippers of cargo are identified, and would require
reports to Congress on several security matters addressed by
other provisions.
Section-by-Section Analysis
Section 1. Short title
Section 1 states the short title of the bill as the ``Air
Cargo Security Improvement Act.''.
Section 2. Inspection of cargo aboard passenger aircraft
Section 2 instructs the Under Secretary of Transportation for
Security to establish systems to screen, inspect, or otherwise
ensure the security of all cargo that is to be transported in
passenger aircraft operated by an air carrier or foreign air
carrier in air transportation or intrastate air transportation;
or all-cargo aircraft in air transportation and intrastate air
transportation. The Under Secretary is directed to create a
strategic plan to accomplish this requirement.
Section 3. Regular inspections of air cargo shipping facilities
Section 3 instructs the Under Secretary of Transportation for
Security to establish a system for the regular inspection of
shipping facilities for shipments of cargo transported in air
transportation or intrastate air transportation to ensure that
appropriate security controls, systems, and protocols are
observed, while entering into arrangements with the civil
aviation authorities, or other appropriate officials, of
foreign countries to ensure that inspections are conducted on a
regular basis at shipping facilities for cargo transported in
air transportation to the United States.
The Under Secretary may increase the number of inspectors as
necessary to implement the requirements of title 49. It also
amends chapter 449 of title49, United States Code, by adding
``44922. Regular inspections of air cargo shipping
facilities.''
Section 4. Cargo carried aboard passenger aircraft
Section 4 requires an industry-wide ``known shipper''
database pilot program. Such a program, which is voluntary, is
currently in use, and this section is intended to reinforce
TSA's authority to continue and expand such a pilot program and
use the results to improve the ``known shipper'' program.
Further, the Under Secretary is directed to conduct random
audits, investigations, and inspections of indirect air carrier
facilities to determine if the indirect air carriers are
meeting the security requirements of this title. The Under
Secretary may take such actions as may be appropriate to
promote and ensure compliance with the security standards
established under this title and shall notify the Secretary of
Transportation of any indirect air carrier that fails to meet
such security standards.
The Secretary, as appropriate, shall suspend or revoke any
certificate or authority issued to an indirect air carrier
immediately upon the recommendation of the Under Secretary. Any
indirect air carrier whose certificate is suspended or revoked
under this provision may appeal the suspension or revocation in
accordance with procedures established under this title for the
appeal of suspensions and revocations.
In implementing air cargo security requirements under this
title, the Under Secretary may take into consideration the
extraordinary air transportation needs of small or isolated
communities and unique operational characteristics of carriers
that serve those communities.
The Under Secretary of Transportation for Security shall
assess the security aspects of the indirect air carrier
program, and report the results of the assessment, together
with any recommendations for necessary modifications of the
program to the Senate Committee on Commerce, Science, and
Transportation, and the House of Representatives Committee on
Transportation and Infrastructure within 45 days after the date
of enactment of this Act. The Under Secretary may submit the
report and recommendations in classified form. The Senate
recommends industry involvement in any assessment of an
indirect air carrier program.
The Under Secretary of Transportation for Security shall
report to the Senate Committee on Commerce, Science, and
Transportation and the House of Representatives Committee on
Transportation and Infrastructure on random screening, audits,
and investigations of air cargo security programs based on
threat assessments and other relevant information. The report
may be submitted in classified form. There are authorized to be
appropriated to the Secretary of Transportation such sums as
may be necessary to carry out this section.
Section 5. Training program for cargo handlers
Section 5 requires the Under Secretary of Transportation for
Security to establish a training program for any persons that
handle air cargo to ensure that the cargo is properly handled
and safe-guarded from security breaches.
Section 6. Cargo carried aboard all-cargo aircraft
Section 6 instructs the Under Secretary of Transportation for
Security to establish a program requiring that air carriers
operating all-cargo aircraft have an approved plan for the
security of their air operations area, the cargo placed aboard
such aircraft, and persons having access to their aircraft on
the ground or in flight. The plan shall include provisions for
(1) security of each carrier's air operations areas and cargo
acceptance areas at the airports served; (2) background
security checks for all employees with access to the air
operations area; (3) appropriate training for all employees and
contractors with security responsibilities; (4) appropriate
screening of all flight crews and persons transported aboard
all-cargo aircraft; (5) security procedures for cargo placed on
all-cargo aircraft; and (6) additional measures deemed
necessary and appropriate by the Under Secretary.
The program will be proposed within 90 days after the date of
enactment of this Act and the Under Secretary of Transportation
for Security shall distribute the proposed program, on a
confidential basis, to those air carriers and other employers
to which the program will apply. Any person to which the
proposed program is distributed under paragraph (1) may submit
comments on the proposed program to the Under Secretary not
more than 60 days after it is received. The Under Secretary of
Transportation shall issue a final program not later than 45
days after the last date on which comments may be submitted.
The final program shall contain time frames for the plans to be
implemented by each air carrier or employer to which it
applies.
Section 7. Report on passenger prescreening program
Section 7 instructs the Secretary of Homeland Security to
submit a report within 90 days to the Senate Committee on
Commerce, Science, and Transportation and the House of
Representatives Committee on Transportation and Infrastructure
on the potential impacts of the Transportation Security
Administration's proposed Computer Assisted Passenger
Prescreening System (CAPPS II) on United States citizens'
privacy and civil liberties.
Section 8. Modification requirements regarding training to operate
aircraft
Section 8 extends background checks of alien flight school
applicants to include all aircraft, regardless of the certified
weight of the aircraft. The provision does not apply to aliens
who are qualified and up-to-date with respective certificates
and ratings recognized by the United States for aircraft with a
maximum certificated takeoff weight of 12,500 pounds or more of
classroom training. The bill also requires the TSA and Attorney
General to jointly submit to the Senate Committee on Commerce,
Science, and Transportation and the House of Representatives
Committee on Transportation and Infrastructure a report on the
effectiveness of the new requirement not later than one year
after the date of enactment.
Section 9. Passenger identification
Section 9 instructs the Under Secretary of Transportation for
Security, in consultation with appropriate government and
private interests, to develop guidelines to provide air
carriers direction for detecting false or fraudulent
identification. The guidelines are to be created within 180
days after the date of enactment. The guidelines must be
provided to the airlines within 60 days of being issued and
establish a joint government and industry council to implement
guidelines. Within one year, the Under Secretary of
Transportation for Security is to issue a report to Congress on
these actions.
Section 10. Passenger identification verification
Section 10 allows the Under Secretary of Transportation for
Security to establish and carry out a program to require the
use of identification verification technologies at airports to
assist in the screening of passengers boarding aircraft.
Section 11. Blast resistant cargo container technology
Section 11 instructs the Under Secretary of Transportation
for Security and the Administrator of the FAA to jointly submit
a report to Congress evaluating blast-resistant cargo container
technology that may be used to protect against explosives
placed in passenger luggage and cargo. The report is to be
submitted within 6 months following the date of enactment of
this Act.
Section 12. Arming pilots against terrorism
Section 12 directs the Transportation Security Administration
to include all-cargo pilots as eligible applicants for the
Federal Flight Deck Officer program. The Federal Flight Deck
Officer program was established in the Homeland Security Act of
2002 (P.L. 107-296).
Section 13. Report on defending aircraft from man-portable air defense
systems (shoulder-fired missiles)
Section 13 instructs the Secretary of Homeland Security to
submit to the Senate Committee on Commerce, Science, and
Transportation and the House of Representatives Committee on
Transportation and Infrastructure a report within 90 days on
how to best defend turbo and jet passenger aircraft from Man-
Portable Air Defense Systems (shoulder-fired missiles).
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
TITLE 49, UNITED STATES CODE
SUBTITLE VII--AVIATION PROGRAMS
PART A--AIR COMMERCE AND SAFETY
SUBPART III--SAFETY
CHAPTER 449--SECURITY
SUBCHAPTER I--REQUIREMENTS
Sec. 44901. Screening passengers and property
(a) In General.--The Under Secretary of Transportation for
Security shall provide for the screening of all passengers and
property, including United States mail, cargo, carry-on and
checked baggage, and other articles, that will be carried
aboard a passenger aircraft operated by an air carrier or
foreign air carrier in air transportation or intrastate air
transportation. In the case of flights and flight segments
originating in the United States, the screening shall take
place before boarding and shall be carried out by a Federal
Government employee (as defined in section 2105 of title 5,
United States Code), except as otherwise provided in section
44919 or 44920 and except for identifying passengers and
baggage for screening under the CAPPS and known shipper
programs and conducting positive bag-match programs.
(b) Supervision of Screening.--All screening of passengers
and property at airports in the United States where screening
is required under this section shall be supervised by uniformed
Federal personnel of the Transportation Security Administration
who shall have the power to order the dismissal of any
individual performing such screening.
(c) Checked Baggage.--A system must be in operation to screen
all checked baggage at all airports in the United States as
soon as practicable but not later than the 60th day following
the date of enactment of the Aviation and Transportation
Security Act.
(d) Explosive Detection Systems.--
(1) In general.--The Under Secretary of
Transportation for Security shall take all necessary
action to ensure that--
(A) explosive detection systems are deployed as
soon as possible to ensure that all United
States airports described in section 44903(c)
have sufficient explosive detection systems to
screen all checked baggage no later than
December 31, 2002, and that as soon as such
systems are in place at an airport, all checked
baggage at the airport is screened by those
systems; and
(B) all systems deployed under subparagraph
(A) are fully utilized; and
(C) if explosive detection equipment at an
airport is unavailable, all checked baggage is
screened by an alternative means.
(e) Mandatory Screening Where EDS Not Yet Available.--As soon
as practicable but not later than the 60th day following the
date of enactment of the Aviation and Transportation Security
Act and until the requirements of subsection (b)(1)(A) are met,
the Under Secretary shall require alternative means for
screening any piece of checked baggage that is not screened by
an explosive detection system. Such alternative means may
include 1 or more of the following:
(1) A bag-match program that ensures that no checked
baggage is placed aboard an aircraft unless the
passenger who checked the baggage is aboard the
aircraft.
(2) Manual search.
(3) Search by canine explosive detection units in
combination with other means.
(4) Other means or technology approved by the Under
Secretary.
[(f) Cargo Deadline.--A system must be in operation to
screen, inspect, or otherwise ensure the security of all cargo
that is to be transported in all-cargo aircraft in air
transportation and intrastate air transportation as soon as
practicable after the date of enactment of the Aviation and
Transportation Security Act.]
(f) Cargo.--
(1) In general.--The Under Secretary of
Transportation for Security shall establish systems to
screen, inspect, or otherwise ensure the security of
all cargo that is to be transported in--
(A) passenger aircraft operated by an air
carrier or foreign air carrier in air
transportation or intrastate air
transportation; or
(B) all-cargo aircraft in air transportation
and intrastate air transportation.
(2) Strategic plan.--The Under Secretary shall
develop a strategic plan to carry out paragraph (1).
(g) Deployment of Armed Personnel.--
(1) In general.--The Under Secretary shall order the
deployment of law enforcement personnel authorized to
carry firearms at each airport security screening
location to ensure passenger safety and national
security.
(2) Minimum requirements.--Except at airports
required to enter into agreements under subsection (c),
the Under Secretary shall order the deployment of at
least 1 law enforcement officer at each airport
security screening location. At the 100 largest
airports in the United States, in terms of annual
passenger enplanements for the most recent calendar
year for which data are available, the Under Secretary
shall order the deployment of additional law
enforcement personnel at airport security screening
locations if the Under Secretary determines that the
additional deployment is necessary to ensure passenger
safety and national security.
(h) Exemptions and Advising Congress on Regulations.--The
Under Secretary--
(1) may exempt from this section air transportation
operations, except scheduled passenger operations of an
air carrier providing air transportation under a
certificate issued under section 41102 of this title or
a permit issued under section 41302 of this title; and
(2) shall advise Congress of a regulation to be
prescribed under this section at least 30 days before
the effective date of the regulation, unless the Under
Secretary decides an emergency exists requiring the
regulation to become effective in fewer than 30 days
and notifies Congress of that decision.
* * * * * * *
Sec. 44921. Federal flight deck officer program
(a) Establishment.--The Under Secretary of Transportation for
Security shall establish a program to deputize volunteer pilots
of air carriers providing [passenger] air transportation or
intrastate [passenger] air transportation as Federal law
enforcement officers to defend the flight decks of aircraft of
such air carriers against acts of criminal violence or air
piracy. Such officers shall be known as ``Federal flight deck
officers''.
(b) Procedural Requirements.--
(1) In general.--Not later than 3 months after the
date of enactment of this section, the Under Secretary
shall establish procedural requirements to carry out
the program under this section.
(2) Commencement of program.--Beginning 3 months
after the date of enactment of this section, the Under
Secretary shall begin the process of training and
deputizing pilots who are qualified to be Federal
flight deck officers as Federal flight deck officers
under the program.
(3) Issues to be addressed.--The procedural
requirements established under paragraph (1) shall
address the following issues:
(A) The type of firearm to be used by a
Federal flight deck officer.
(B) The type of ammunition to be used by a
Federal flight deck officer.
(C) The standards and training needed to
qualify and requalify as a Federal flight deck
officer.
(D) The placement of the firearm of a Federal
flight deck officer on board the aircraft to
ensure both its security and its ease of
retrieval in an emergency.
(E) An analysis of the risk of catastrophic
failure of an aircraft as a result of the
discharge (including an accidental discharge)
of a firearm to be used in the program into the
avionics, electrical systems, or other
sensitive areas of the aircraft.
(F) The division of responsibility between
pilots in the event of an act of criminal
violence or air piracy if only 1 pilot is a
Federal flight deck officer and if both pilots
are Federal flight deck officers.
(G) Procedures for ensuring that the firearm
of a Federal flight deck officer does not leave
the cockpit if there is a disturbance in the
passenger cabin of the aircraft or if the pilot
leaves the cockpit for personal reasons.
(H) Interaction between a Federal flight deck
officer and a Federal air marshal on board the
aircraft.
(I) The process for selection of pilots to
participate in the program based on their
fitness to participate in the program,
including whether an additional background
check should be required beyond that required
by section 44936(a)(1).
(J) Storage and transportation of firearms
between flights, including international
flights, to ensure the security of the
firearms, focusing particularly on whether such
security would be enhanced by requiring storage
of the firearm at the airport when the pilot
leaves the airport to remain overnight away
from the pilot's base airport.
(K) Methods for ensuring that security
personnel will be able to identify whether a
pilot is authorized to carry a firearm under
the program.
(L) Methods for ensuring that pilots
(including Federal flight deck officers) will
be able to identify whether a passenger is a
law enforcement officer who is authorized to
carry a firearm aboard the aircraft.
(M) Any other issues that the Under Secretary
considers necessary.
(N) The Under Secretary's decisions regarding
the methods for implementing each of the
foregoing procedural requirements shall be
subject to review only for abuse of discretion.
(4) Preference.--In selecting pilots to participate
in the program, the Under Secretary shall give
preference to pilots who are former military or law
enforcement personnel.
(5) Classified information.--Notwithstanding section
552 of title 5 but subject to section 40119 of this
title, information developed under paragraph (3)(E)
shall not be disclosed.
(6) Notice to Congress.--The Under Secretary shall
provide notice to the Committee on Transportation and
Infrastructure of the House of Representatives and the
Committee on Commerce, Science, and Transportation of
the Senate after completing the analysis required by
paragraph (3)(E).
(7) Minimization of risk.--If the Under Secretary
determines as a result of the analysis under paragraph
(3)(E) that there is a significant risk of the
catastrophic failure of an aircraft as a result of the
discharge of a firearm, the Under Secretary shall take
such actions as may be necessary to minimize that risk.
(c) Training, Supervision, and Equipment.--
(1) In general.--The Under Secretary shall only be
obligated to provide the training, supervision, and
equipment necessary for a pilot to be a Federal flight
deck officer under this section at no expense to the
pilot or the air carrier employing the pilot.
(2) Training.--
(A) In general.--The Under Secretary shall
base the requirements for the training of
Federal flight deck officers under subsection
(b) on the training standards applicable to
Federal air marshals; except that the Under
Secretary shall take into account the differing
roles and responsibilities of Federal flight
deck officers and Federal air marshals.
(B) Elements.--The training of a Federal
flight deck officer shall include, at a
minimum, the following elements:
(i) Training to ensure that the
officer achieves the level of
proficiency with a firearm required
under subparagraph (C)(i).
(ii) Training to ensure that the
officer maintains exclusive control
over the officer's firearm at all
times, including training in defensive
maneuvers.
(iii) Training to assist the officer
in determining when it is appropriate
to use the officer's firearm and when
it is appropriate to use less than
lethal force.
(C) Training in use of firearms.--
(i) Standard.--In order to be
deputized as a Federal flight deck
officer, a pilot must achieve a level
of proficiency with a firearm that is
required by the Under Secretary. Such
level shall be comparable to the level
of proficiency required of Federal air
marshals.
(ii) Conduct of training.--The
training of a Federal flight deck
officer in the use of a firearm may be
conducted by the Under Secretary or by
a firearms training facility approved
by the Under Secretary.
(iii) Requalification.--The Under
Secretary shall require a Federal
flight deck officer to requalify to
carry a firearm under the program. Such
requalification shall occur at an
interval required by the Under
Secretary.
(d) Deputization.--
(1) In general.--The Under Secretary may deputize, as
a Federal flight deck officer under this section, a
pilot who submits to the Under Secretary a request to
be such an officer and whom the Under Secretary
determines is qualified to be such an officer.
(2) Qualification.--A pilot is qualified to be a
Federal flight deck officer under this section if--
(A) the pilot is employed by an air carrier;
(B) the Under Secretary determines (in the
Under Secretary's discretion) that the pilot
meets the standards established by the Under
Secretary for being such an officer; and
(C) the Under Secretary determines that the
pilot has completed the training required by
the Under Secretary.
(3) Deputization by other federal agencies.--The
Under Secretary may request another Federal agency to
deputize, as Federal flight deck officers under this
section, those pilots that the Under Secretary
determines are qualified to be such officers.
(4) Revocation.--The Under Secretary may, (in the
Under Secretary's discretion) revoke the deputization
of a pilot as a Federal flight deck officer if the
Under Secretary finds that the pilot is no longer
qualified to be such an officer.
(e) Compensation.--Pilots participating in the program under
this section shall not be eligible for compensation from the
Federal Government for services provided as a Federal flight
deck officer. The Federal Government and air carriers shall not
be obligated to compensate a pilot for participating in the
program or for the pilot's training or qualification and
requalification to carry firearms under the program.
(f) Authority To Carry Firearms.--
(1) In general.--The Under Secretary shall authorize
a Federal flight deck officer to carry a firearm while
engaged in providing air transportation or intrastate
air transportation. Notwithstanding subsection (c)(1),
the officer may purchase a firearm and carry that
firearm aboard an aircraft of which the officer is the
pilot in accordance with this section if the firearm is
of a type that may be used under the program.
(2) Preemption.--Notwithstanding any other provision
of Federal or State law, a Federal flight deck officer,
whenever necessary to participate in the program, may
carry a firearm in any State and from 1 State to
another State.
(3) Carrying firearms outside United States.--In
consultation with the Secretary of State, the Under
Secretary may take such action as may be necessary to
ensure that a Federal flight deck officer may carry a
firearm in a foreign country whenever necessary to
participate in the program.
(g) Authority To Use Force.--Notwithstanding section
44903(d), the Under Secretary shall prescribe the standards and
circumstances under which a Federal flight deck officer may
use, while the program under this section is in effect, force
(including lethal force) against an individual in the defense
of the flight deck of an aircraft in air transportation or
intrastate air transportation.
(h) Limitation on Liability.--
(1) Liability of air carriers.--An air carrier shall
not be liable for damages in any action brought in a
Federal or State court arising out of a Federal flight
deck officer's use of or failure to use a firearm.
(2) Liability of federal flight deck officers.--A
Federal flight deck officer shall not be liable for
damages in any action brought in a Federal or State
court arising out of the acts or omissions of the
officer in defending the flight deck of an aircraft
against acts of criminal violence or air piracy unless
the officer is guilty of gross negligence or willful
misconduct.
(3) Liability of federal government.--For purposes of
an action against the United States with respect to an
act or omission of a Federal flight deck officer in
defending the flight deck of an aircraft, the officer
shall be treated as an employee of the Federal
Government under chapter 171 of title 28, relating to
tort claims procedure.
(i) Procedures Following Accidental Discharges.--If an
accidental discharge of a firearm under the pilot program
results in the injury or death of a passenger or crew member on
an aircraft, the Under Secretary--
(1) shall revoke the deputization of the Federal
flight deck officer responsible for that firearm if the
Under Secretary determines that the discharge was
attributable to the negligence of the officer; and
(2) if the Under Secretary determines that a
shortcoming in standards, training, or procedures was
responsible for the accidental discharge, the Under
Secretary may temporarily suspend the program until the
shortcoming is corrected.
(j) Limitation on Authority of Air Carriers.--No air carrier
shall prohibit or threaten any retaliatory action against a
pilot employed by the air carrier from becoming a Federal
flight deck officer under this section. No air carrier shall--
(1) prohibit a Federal flight deck officer from
piloting an aircraft operated by the air carrier; or
(2) terminate the employment of a Federal flight deck
officer, solely on the basis of his or her volunteering
for or participating in the program under this section.
(k) Applicability.--
(1) Exemption.--This section shall not apply to air
carriers operating under part 135 of title 14, Code of
Federal Regulations, and to pilots employed by such
carriers to the extent that such carriers and pilots
are covered by section 135.119 of such title or any
successor to such section.
(2) Pilot defined.--The term ``pilot'' means an
individual who has final authority and responsibility
for the operation and safety of the flight [or, if more
than 1 pilot is required for the operation of the
aircraft or by the regulations under which the flight
is being conducted, the individual designated as second
in command.] or any other flight deck crew member.
(3) All-cargo air transportation.--For the purposes
of this section, the term air transportation includes
all-cargo air transportation.
Sec. 44922. Regular inspections of air cargo shipping facilities
The Under Secretary of Transportation for Security shall
establish a system for the regular inspection of shipping
facilities for shipments of cargo transported in air
transportation or intrastate air transportation to ensure that
appropriate security controls, systems, and protocols are
observed, and shall enter into arrangements with the civil
aviation authorities, or other appropriate officials, of
foreign countries to ensure that inspections are conducted on a
regular basis at shipping facilities for cargo transported in
air transportation to the United States.
Sec. 44923. Air cargo security
(a) Database.--The Under Secretary of Transportation for
Security shall establish an industry-wide pilot program
database of known shippers of cargo that is to be transported
in passenger aircraft operated by an air carrier or foreign air
carrier in air transportation or intrastate air transportation.
The Under Secretary shall use the results of the pilot program
to improve the known shipper program.
(b) Indirect air carriers.--
(1) Random inspections.--The Under Secretary shall
conduct random audits, investigations, and inspections
of indirect air carrier facilities to determine if the
indirect air carriers are meeting the security
requirements of this title.
(2) Ensuring compliance.--The Under Secretary may
take such actions as may be appropriate to promote and
ensure compliance with the security standards
established under this title.
(3) Notice of failures.--The Under Secretary shall
notify the Secretary of Transportation of any indirect
air carrier that fails to meet security standards
established under this title.
(4) Suspension or revocation of certificate.--The
Secretary, as appropriate, shall suspend or revoke any
certificate or authority issued under chapter 411 to an
indirect air carrier immediately upon the
recommendation of the Under Secretary. Any indirect air
carrier whose certificate is suspended or revoked under
this subparagraph may appeal the suspension or
revocation in accordance with procedures established
under this title for the appeal of suspensions and
revocations.
(5) Indirect air carrier.--In this subsection, the
term ``indirect air carrier'' has the meaning given
that term in part 1548 of title 49, Code of Federal
Regulations.
(c) Consideration of Community Needs.--In implementing air
cargo security requirements under this title, the Under
Secretary may take into consideration the extraordinary air
transportation needs of small or isolated communities and
unique operational characteristics of carriers that serve those
communities.
* * * * * * *
SUBCHAPTER II--ADMINISTRATION AND PERSONNEL
Sec. 44939. Training to operate certain aircraft
(a) Waiting Period.--
(1) In general._A person subject to regulation under
this part may provide training in the operation of [any
aircraft having a maximum certificated takeoff weight
of 12,500 pounds or more] an aircraft to an alien (as
defined in section 101(a)(3) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(3))) or to any other
individual specified by the Under Secretary of
Transportation for Security only if--
[(1)] (A) that person has first notified the
Attorney General that the individual has
requested such training and furnished the
Attorney General with that individual's
identification in such form as the Attorney
General may require; and
[(2)] (B) the Attorney General has not
directed, within 45 days after being notified
under [paragraph (1),] subparagraph (A), that
person not to provide the requested training
because the Attorney General has determined
that the individual presents a risk to aviation
or national security.
(2) Exception.--The requirements of paragraph (1)
shall not apply to an alien who--
(A) has earned a Federal Aviation
Administration type rating in an aircraft; or
(B) holds a current pilot's license or
foreign equivalent commercial pilot's license
that permits the person to fly an aircraft with
a maximum certificated takeoff weight of more
than 12,500 pounds as defined by the
International Civil Aviation Organization in
Annex 1 to the Convention on International
Civil Aviation.
(b) Interruption of Training.--If the Attorney General, more
than 45 days after receiving notification under subsection (a)
from a person providing training described in subsection (a),
determines that the individual presents a risk to aviation or
national security, the Attorney General shall immediately
notify the person providing the training of the determination
and that person shall immediately terminate the training.
[(c) Covered Training.--For the purposes of subsection (a),
training includes in-flight training, training in a simulator,
and any other form or aspect of training.]
(c) Covered Training.--
(1) In general.--For purposes of subsection (a),
training includes in-flight training, training in a
simulator, and any other form or aspect of training.
(2) Exception.--For the purposes of subsection (a),
training does not include classroom instruction (also
known as ground training), which may be provided to an
alien during the 45-day period applicable to the alien
under that subsection.
(d) Security Awareness Training for Employees.--The Under
Secretary shall require flight schools to conduct a security
awareness program for flight school employees to increase their
awareness of suspicious circumstances and activities of
individuals enrolling in or attending flight school.