I 108th CONGRESS 2d Session H. R. 4126 IN THE HOUSE OF REPRESENTATIVES April 1, 2004 Mr. Wilson of South Carolina (for himself, Mr. Paul, Mr. Rogers of Alabama, Mr. Isakson, Mr. DeMint, Mr. Cunningham, Mr. Franks of Arizona, Mr. Jones of North Carolina, Mrs. Blackburn, Ms. Ginny Brown-Waite of Florida, Mr. Kline, and Mr. Renzi) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure A BILL To provide for recruiting, training, and deputizing persons for the Federal flight deck officer program.

1.

Short title

This Act may be cited as the &short-title2;.

2.

Amendments to title 49, United States Code

Except as otherwise specifically provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision of law, the reference shall be considered to be made to a section or other provision of title 49, United States Code.

3.

Eligibility for the Federal flight deck officer program

(a)

In general

Section 44921(a) is amended to read as follows: (a)

Establishment; definitions

(1)

In general

The Secretary of Homeland Security shall establish the Federal flight deck officer program to deputize eligible pilots as Federal law enforcement officers to defend against acts of criminal violence or air piracy. Such an officer shall be known as a Federal flight deck officer. (2)

Definitions

In this section: (A)

Air transportation

The term air transportation includes all-cargo air transportation. (B)

Pilot

The term pilot means an individual who— (i)is employed by an air carrier that provides air transportation or intrastate air transportation; and (ii) (I)has final authority and responsibility for the operation and safety of the flight; or (II)is otherwise a member of the flight deck crew. (C)

Program

The term program means the Federal flight deck officer program established under paragraph (1). (D)

Secretary

The term Secretary means the Secretary of Homeland Security.. (b)

Eligibility criteria

Section 44921(d) is amended to read as follows: (d)

Eligibility

(1)

Criteria

A pilot is eligible to be a Federal flight deck officer under this section if the pilot— (A)submits an application to the Secretary; (B)may lawfully transport in interstate or foreign commerce, and possess in commerce a firearm or ammunition under Federal law; (C) (i)has successfully completed the Federal flight deck officer training required by the Secretary; or (ii)is eligible to be deputized prior to completing the Federal flight deck officer training pursuant to paragraph (2); and (D)presents a valid First-Class Airman Medical Certificate or Second-Class Airman Medical Certificate indicating that the pilot has met the mental standards prescribed in part 67 of title 14, Code of Federal Regulations, that applied on December 31, 2003. (2)

Exception for certain pilots

(A)

In general

A pilot is eligible to be deputized prior to the pilot completing the Federal flight deck officer training if the pilot— (i) (I)is or has been an active or reserve member of the United States Armed Forces, the National Guard, or a Federal, State, or local law enforcement agency; (II)provides evidence of satisfactory completion of firearms training by an entity that is approved for requalification training under subsection (c) during the 12-month period ending on the date the Secretary receives the application submitted by the pilot; and (III)presents a valid First-Class Airman Medical Certificate or Second-Class Airman Medical Certificate indicating that the pilot has met the mental standards prescribed in part 67 of title 14, Code of Federal Regulations, that applied on December 31, 2003; or (ii) (I)during the 90-day period beginning on the date the Secretary receives the application submitted by the pilot, is not offered Federal flight deck officer training; (II)provides evidence of satisfactory completion of firearms training by an entity that is approved for requalification training under subsection (c)— (aa)during the 12-month period ending on the date the Secretary receives an application submitted by the pilot; or (bb)during the 120-day period beginning on the date the Secretary receives an application submitted by the pilot; and (III)presents a valid First-Class Airman Medical Certificate or Second-Class Airman Medical Certificate indicating that the pilot has met the mental standards prescribed in part 67 of title 14, Code of Federal Regulations, that applied on December 31, 2003. (B)

Requirement for training

A pilot who is eligible to be deputized prior to completing the Federal flight deck officer training pursuant to this paragraph shall begin such training not later than 180 days after the date the pilot is deputized as a Federal flight deck officer. (3)

Deputization by other Federal agencies

The Secretary may request another Federal agency to deputize, as Federal flight deck officers under this section, those pilots that the Secretary determines are qualified to be such officers. (4)

Timing

The Secretary shall immediately deputize a pilot who is eligible under this subsection as a Federal flight deck officer. (5)

Other requirements

The Secretary may not impose any eligibility requirements for a pilot to be deputized or remain deputized as a Federal flight deck officer other than the requirements described in this subsection.. (c)

Conforming amendment

Section 44921 is amended by striking subsection (k) and inserting the following: (k)

Applicability

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.. (d)

Conforming amendment

Section 44921(b)(4) is repealed.

4.

Federal flight deck officer training and requalification training

(a)

In general

Paragraph (1) of section 44921(c) is amended to read as follows: (1)

In general

The Secretary shall provide the training, supervision, and equipment necessary for a pilot to be a Federal flight deck officer under this section.. (b)

Training and requalification requirements

Section 44921(c) is amended by adding at the end the following new paragraphs: (3)

Initiation of training

The Secretary shall— (A)not later than 30 days after the date that the Secretary receives an application submitted by a pilot, determine if the pilot is eligible to receive Federal flight deck officer training under this title; and (B)if the pilot is eligible, not later than 90 days after the date that the Secretary receives an application submitted by the pilot, begin training the pilot as a Federal flight deck officer. (4)

Training by other entities

The training of a Federal flight deck officer may be conducted by— (A)the Secretary; (B)the Director of the Federal Bureau of Investigation; or (C)a private training facility approved by the Secretary. (5)

Location of training

The Secretary shall ensure that— (A)Federal flight deck officer training is conducted at facilities located throughout the United States; and (B)that a pilot who is eligible to receive Federal flight deck officer training is offered a choice of training locations and dates and is provided at least 30 days advance notice of such locations and dates. (6)

Requalification training

(A)

Requirement for requalification

The Secretary shall require a Federal flight deck officer to successfully complete requalification training. Such requalification training shall occur at such intervals as may be required by the Secretary. (B)

Requalification training by other entities

The requalification training of a Federal flight deck officer may be conducted by— (i)the Secretary; (ii)the Director of the Federal Bureau of Investigation; or (iii)a private training facility approved by the Secretary under subparagraph (C). (C)

Private training facilities

The Secretary shall approve the application of a private training facility to provide requalification training to Federal flight deck officers if such facility— (i)is approved by a Federal agency or department to provide firearms training; (ii)provides a training course that includes practical training in the firing of a handgun with live ammunition, training in the lawful and justifiable use of deadly force, and— (I)qualifies Federal, State, or local law enforcement officers, security guards, or private investigators; or (II)provides a certificate of training or competence prior to the issuance of a license or permit to carry a handgun; or (iii)meets any other qualifications determined in the Secretary’s discretion. (D)

Publication of requalification training facilities

The Secretary shall make readily available to pilots the list of facilities approved to provide requalification training under this paragraph. Such list shall also be available through the Internet. (7)

Costs of training

(A)

In general

The Secretary shall provide Federal flight deck officer training or requalification training to eligible pilots at no cost to the pilots or the air carriers that employ such pilots. (B)

Transportation and expenses

Except as provided in subparagraph (C), the Secretary shall provide pilots receiving Federal flight deck officer training or requalification training, including training under subsection (d)(2)(A)(ii)(II)(bb), travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business for the purpose of receiving such training. (C)

Unpaid leave

An air carrier that employs a pilot receiving Federal flight deck officer training or requalification training shall permit the pilot to take unpaid leave to participate in such training. (8)

Prohibition on other training requirements

The requirements for Federal flight deck officer training or requalification training may not exceed the requirements, including the length of time of the training period, for successful completion of such training that applied on December 31, 2003.. (c)

Technical and conforming amendments

Section 44921(c)(2) is amended— (1)in subparagraph (A), by striking marshals; and inserting marshals,; and (2)by striking subparagraph (C) and inserting the following: (C)

Training in use of firearms

In order to complete training as a Federal flight deck officer, a pilot must achieve the level of proficiency with a firearm that is required by the Secretary. Such level shall be comparable to the level of proficiency required of other Federal law enforcement officers.. (d)

Requirement to promote requalification facilities

(1)

In general

Not later than 30 days after the date of enactment of this Act, the Secretary of Homeland Security shall publish in the Federal Register and use other appropriate methods to promote and publicize the opportunity for private facilities to provide requalification training to Federal fight deck officers under section 44921(c)(6), as added by subsection (b). (2)

Purpose of promotion

The purposes of the publication and promotion described in paragraph (1) are— (A)to inform private facilities about the Federal flight deck officer program; and (B)to encourage such facilities to apply to provide requalification training to Federal flight deck officers.

5.

Authority to carry firearms

(a)

Amendments to authority

Section 44921(f) is amended to read as follows: (f)

Authority to carry firearms

(1)

In general

The Secretary shall authorize a Federal flight deck officer to carry a firearm on the officer’s person. Notwithstanding subsection (c)(1), the officer may purchase a firearm and carry that firearm 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, State, or local law, a Federal flight deck officer may carry a firearm in any State and from one State to another State. (3)

Carrying firearms outside United States

(A)

In general

When operating to, from, or within the jurisdiction of a foreign government where an agreement allowing a Federal flight deck officer to carry or possess a firearm is not in effect, a Federal flight deck officer shall be designated as a Federal air marshal for the purposes of complying with international weapons carriage regulations and existing agreements with foreign governments. Nothing in this paragraph shall be construed to allow Federal flight deck officers to receive any other benefit of being so designated. (B)

Requirement to negotiate agreements

The Secretary of State shall negotiate agreements with foreign governments as necessary to allow Federal flight deck officers to carry and possess firearms within the jurisdictions of such foreign governments for protection of international flights against hijackings or other terrorist acts. Any such agreements shall provide Federal flight deck officers the same rights and privileges accorded Federal air marshals by such foreign governments. (4)

Description of authority and procedures

The authority of a Federal flight deck officer to carry a firearm shall be identical to such authority granted to any other Federal law enforcement officer under Federal law. The operating procedures applicable to a Federal flight deck officer relating to carrying such firearm shall be— (A)identical to such procedures applicable to any other Federal law enforcement officer under Federal law; and (B)no more restrictive than the restrictions for carrying a firearm that are generally imposed on any other Federal law enforcement officer who has statutory authority to carry a firearm. (5)

Locked devices

(A)

No requirement to use

A Federal flight deck officer may not be required to carry or transport a firearm in a locked bag, box, or container. (B)

Requirement to provide

Upon request of a Federal flight deck officer, the Secretary shall provide a secure locking device or other appropriate container for storage of a firearm by the Federal flight deck officer. (6)

Authority to use force

A Federal flight deck officer shall have authority to use reasonable and necessary force, including lethal force, against an individual or individuals to defend an aircraft, prevent terrorism, or otherwise defend life. (7)

Information to other entities

The Secretary shall periodically provide information to relevant airport officials and personnel, and Federal, State, and local law enforcement authorities, regarding the authority of a Federal flight deck officer to possess and carry a firearm on the officer’s person.. (b)

Initial requirement to provide information

Not later than 60 days after the date of enactment of this Act, the Secretary of Homeland Security shall make the initial periodic provision of information described in section 44921(f)(6), as added by subsection (a).

6.

Limitation on authority of air carriers and other entities

Section 44921(j) is amended to read as follows: (j)

Limitation on authority of air carriers and other entities

No air carrier or other entity or individual shall prohibit or threaten any retaliatory action against a pilot employed by the air carrier from becoming or serving as a Federal flight deck officer under this section. No air carrier or other entity or individual shall— (1)prohibit a Federal flight deck officer from piloting an aircraft operated by the air carrier; (2)terminate the employment of a Federal flight deck officer on the basis of his or her volunteering for or participating in the program under this section; or (3)take other disciplinary action against or otherwise interfere with such pilot on the basis of such pilot’s volunteering for or participating in the program under this section..

7.

Authority to sue

Section 44921, as amended by sections 3 through 6 of this Act, is further amended by adding at the end the following new subsection: (l)

Authority to sue

(1)

In general

A Federal flight deck officer or a pilot who is adversely affected by a failure by the Secretary to comply with any of the requirements of this section may file a petition for judicial review with the United States district court for the district in which the Federal flight deck officer or pilot resides or has a principal place of business or in the District of Columbia. (2)

Remedy

If a United States court determines that the Secretary failed to comply with a requirement of this section, the court shall order the Secretary to take such action as may be necessary to comply with such requirement. (3)

Attorney’s fees

In any action or proceeding brought under this subsection, the United States court shall award a prevailing plaintiff reasonable attorney’s fees incurred in bringing such action or proceeding..

8.

Privacy of Federal flight deck officers

Section 44921, as amended by sections 3 through 7 of this Act, is further amended by adding at the end the following new subsection: (m)

Privacy of Federal flight deck officers

(1)

In general

Except as provided in paragraph (2), the Secretary may not disclose information related to a pilot’s participation in the Federal flight deck officer program or the pilot’s application to participate in such program. (2)

Exceptions

The Secretary may disclose information described in paragraph (1)— (A)if the disclosure is required for the administration of this section; (B)in response to a pilot’s request that such information be disclosed to the air carrier that employs the pilot, if— (i)the information is limited to the information specifically requested by the pilot; and (ii)such air carrier does not disclose such information to third parties; or (C)in response to a request for a law enforcement agency to confirm if a pilot is deputized as a Federal flight deck officer. (3)

Disclosure of information by pilots

A pilot may disclose information as determined to be necessary by the pilot, including— (A)in connection with the pilot’s duties as a Federal flight deck officer; (B)to any law enforcement officer, air crew member, or legal advocate; and (C)in order to receive supplemental training or equipment for use or to demonstrate or maintain proficiency as a Federal flight deck officer..

9.

Adjudication procedures

Section 44921, as amended by sections 3 through 8 of this Act, is further amended by adding at the end the following new subsection: (n)

Adjudication procedures

(1)

Determination of ineligibility and appeal

(A)

In general

If the Secretary determines that a pilot is ineligible to be a Federal flight deck officer, or has become ineligible to remain a Federal flight deck officer, the Secretary shall provide in writing the specific reasons to such pilot within 5 days of such determination. Such pilot may submit to the Secretary information to correct, clarify, or supplement any pertinent records relied on for the adverse determination. After receipt of such information, the Secretary shall immediately consider the information, investigate the matter further, correct all erroneous records relating to such person, give notice of the error to any Federal department or agency or any State that was the source of such erroneous records, and reconsider the adverse determination. Upon request by the aggrieved party, the Secretary shall promptly hold a hearing at a location and on a date convenient to the aggrieved party to review the adverse determination. (B)

Petition

If the Secretary fails to reverse the adverse determination within 30 days after receipt of such information or within 30 days after any such hearing, whichever date is later, the aggrieved party may at any time within 60 days after the date such period expires file a petition with the United States district court for the district in which the aggrieved party resides or has a principal place of business or in the District of Columbia for a de novo judicial review of such adverse determination. In a proceeding conducted under this subsection, the court may consider any evidence submitted by the parties to the proceeding whether or not such evidence was considered previously. If the court decides that the Secretary was not authorized to determine or incorrectly determined that the aggrieved party is ineligible to be a Federal flight deck officer, the court shall order the Secretary to take such action as may be necessary to comply with the judgment of the court. (2)

Other adverse action

(A)

Remediation training and suspension

If a Federal flight deck officer knowingly commits a serious or dangerous violation of standard operating procedures applicable to Federal flight deck officers, the Secretary may order remedial training or may suspend such officer from the program for a period of no more than 1 year. If a Federal flight deck officer acts in a manner that is willfully and grossly negligent in relation to acting as a Federal flight deck officer, the Secretary may order remedial training or may suspend such officer from the program indefinitely, except that the suspended officer may seek reinstatement after 1 year. No other penalty may be imposed by the Secretary. (B)

Procedures

If the Secretary believes that remedial training or suspension of a Federal flight deck officer is warranted under this paragraph, the Secretary shall serve a written statement of the pertinent allegations to the Federal flight deck officer in question. If the Federal flight deck officer contests the allegations, the remedial training, or the suspension, the matter shall be submitted for decision to a review board. The officer who is the subject of the hearing may be represented by counsel, a union representative, or such other person of the officer’s choice. The review board shall consist of— (i)a Federal flight deck officer who shall be randomly selected and who is willing to serve; (ii)a designee of the Secretary; and (iii)a representative of a neutral third-party acceptable to both the officer and the Secretary. (C)

Additional procedures

The hearing conducted by the review board may take place no less than 14 days from the date the written statement was served on the Federal flight deck officer. The hearing shall be held at the officer’s domicile or other location reasonably convenient to the officer. The hearing shall be held on a date which will not interfere with the officer’s work schedule. The Secretary shall provide the officer with complete discovery, including all pertinent documents and all pertinent allegations not previously supplied in the written statement. The Secretary shall cause a recording to be made of the hearing and shall promptly supply a copy of the recording to the officer. The members of the review board shall be reimbursed by the Secretary for transportation and per diem as necessary. The Secretary shall pay any reasonable rent or charge necessary to use the premises where the hearing is conducted. (D)

Findings of review board

The review board shall render findings of fact regarding the allegations and shall decide whether any remedial training or period of suspension is warranted. The Federal flight deck officer shall not be required to take remedial training or be suspended from duties as a Federal flight deck officer unless and until the review board so determines. The review board shall determine the length, if any, of a suspension. No records or information contained therein regarding any matter arising under this subsection shall be disclosed to the officer’s employer, the Federal Aviation Administration, or any other person or entity. If the review board determines that the officer has substantially prevailed in the proceeding, the review board shall award the officer a reasonable attorney’s fee, and the Secretary shall be liable therefore. (E)

Appeal or review board decision

A Federal flight deck officer may appeal an adverse decision of the review board within 60 days after the decision by filing a petition with the United States district court for the district in which the officer resides or has a principal place of business or in the District of Columbia for a de novo judicial review of such adverse determination. In a proceeding conducted under this subsection, the court may consider any evidence submitted by the parties to the proceeding whether or not such evidence was considered previously. If the court decides that the review board’s findings of fact regarding the allegations or decision imposing remedial training or a period of suspension were unwarranted, the court shall order the Secretary to take such action as may be necessary to comply with the judgment of the court..

10.

Other authorities

Section 44921, as amended by sections 3 through 9 of this Act, is further amended by adding at the end the following new subsections: (o)

Credentials

The Secretary shall issue to each Federal flight deck officer standard Federal law enforcement credentials, including a distinctive metal badge, that are similar to the credentials issued to other Federal law enforcement officers. (p)

Acting against terrorism

Nothing in this title or any other provision of law shall prohibit a Federal flight deck officer from acting reasonably to prevent an act of terrorism or otherwise to defend life when outside the flight deck of an aircraft. (q)

Security inspections

A Federal flight deck officer may not be subject to greater routine security inspection or screening protocols at or in the vicinity of an airport than the protocols that apply to other Federal law enforcement officers. (r)

Federal flight deck officers not on duty

Nothing in this title or any other provision of law shall be construed to prohibit a Federal flight deck officer who is not on duty from carrying a firearm. (s)

Sensitive security information

(1)

Access procedures

Not later than 180 days after the date of enactment of the &short-title2;, the Secretary shall, by regulation, establish procedures to govern access by Federal flight deck officers to sensitive security information that shall be binding upon all such flight deck officers. Federal flight deck officers shall be given reasonable and specific notice of the information deemed sensitive security information by the Secretary. (2)

Uniform minimum standards

The Secretary shall establish uniform minimum standards to ensure that Federal flight deck officers whose access to sensitive security information is being denied or terminated are appropriately advised of the reasons for such denial or termination and are provided an adequate opportunity to respond to all adverse information which forms the basis for such denial or termination before final action by the department or agency concerned. (t)

Access to security and threat information

The Secretary shall establish procedures to ensure that Federal flight deck officers and in-flight security coordinators have access to security directives, information circulars, and other relevant threat and security information. Such procedures may require the air carrier employing the Federal flight deck officer or in-flight security coordinator to provide this information to such officers and coordinators. (u)

Disclosures to Congress

Nothing in this title or any other provision of law shall prevent a Federal flight deck officer from disclosing facts, data, procedures, or any other information about the Federal flight deck officer program to a Member or committee of Congress..

11.

Reports to Congress regarding the Federal flight deck officer program

(a)

In general

Section 44921, as amended by sections 3 through 10 of this Act, is further amended by adding at the end the following new subsection: (v)

Reports to Congress

(1)

Requirement

Not less often than once every 3 months, the Secretary, in consultation with the Secretary of State, shall report to Congress on the Federal flight deck officer program carried out under this section. (2)

Content

A report submitted under paragraph (1) shall include— (A)the number of pilots who have applied to the Federal flight deck officer program under this section; (B)the number of pilots deputized under the program; (C)any delays in training or deputizing Federal flight deck officers; (D)the criteria used to approve a facility to provide requalification training to Federal flight deck officers under subsection (c)(8)(C); (E)the number of facilities that have applied to provide such initial and requalification training and the names of the facilities that are approved to provide such initial and requalification training; and (F)the progress that the Secretary of State has made in implementing international agreements that permit Federal flight deck officers to carry firearms on board an aircraft operating within the jurisdiction of a foreign country.. (b)

Initial report

Not later than 60 days after the date of enactment of this Act, the Secretary of Homeland Security shall submit to Congress the initial report required by section 44921(v), as added by subsection (a).

12.

Promotion of Federal flight deck officer program

(a)

Requirement to promote

Not later than 30 days after the date of enactment of this Act, the Secretary of Homeland Security shall publish in the Federal Register and use other appropriate methods to promote and publicize the Federal fight deck officer program. (b)

Purpose of promotion

The purposes of the publication and promotion described in subsection (a) are— (1)to inform aircraft pilots about the Federal flight deck officer program; and (2)to encourage qualified pilots to apply to enter the Federal flight deck officer training program.

13.

Additional reports to Congress

(a)

Department of Justice feasibility report

Not later than 90 days after the date of enactment of this Act, the Attorney General shall submit to Congress a report on the feasibility of the Department of Justice to assume responsibility for administration of the Federal flight deck officer program. Such report shall identify the agency or bureau within the Department of Justice which would be best suited to administer the Federal flight deck officer program. (b)

Law enforcement officer verification system

Not later than 90 days after the date of enactment of this Act, the Attorney General shall submit to Congress a report on the status and feasibility of implementing a program to verify the identity of personnel authorized to carry firearms aboard commercial aircraft, including the ability to implement such a system immediately utilizing commercially available components and existing technologies. Such report shall also include the feasibility of using biometric identification to verify the identity of authorized personnel.

14.

Conforming amendments

Section 44921, as amended by sections 3 through 11, is further amended— (1)by striking Under Secretary of Transportation for Security each place it appears and inserting Secretary; (2)by striking Under Secretary and inserting Secretary; and (3)by striking subsection (b).