[House Report 109-394]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-394

======================================================================
 
              VOLUNTEER PILOT ORGANIZATION PROTECTION ACT 
                                OF 2006

                                _______
                                

 March 15, 2006.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1871]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1871) to provide liability protection to nonprofit 
volunteer pilot organizations flying for public benefit and to 
the pilots and staff of such organizations, having considered 
the same, report favorably thereon with an amendment and 
recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     3
Hearings.........................................................     7
Committee Consideration..........................................     7
Vote of the Committee............................................     7
Committee Oversight Findings.....................................     8
New Budget Authority and Tax Expenditures........................     8
Congressional Budget Office Cost Estimate........................     8
Performance Goals and Objectives.................................     9
Constitutional Authority Statement...............................     9
Section-by-Section Analysis and Discussion.......................     9
Changes in Existing Law Made by the Bill, as Reported............    10
Markup Transcript................................................    12
Dissenting Views.................................................    41

                             The Amendment

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Volunteer Pilot Organization 
Protection Act of 2006''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress finds the following:
            (1) Scores of public benefit nonprofit volunteer pilot 
        organizations provide valuable services to communities and 
        individuals.
            (2) In calendar year 2001, nonprofit volunteer pilot 
        organizations provided long-distance, no-cost transportation 
        for over 30,000 people in times of special need.
            (3) Such organizations are no longer able to reasonably 
        purchase non-owned aircraft liability insurance to provide 
        liability protection, and thus face a highly detrimental 
        liability risk.
            (4) Such organizations have supported the interests of 
        homeland security by providing volunteer pilot services at 
        times of national emergency.
    (b) Purpose.--The purpose of this Act is to promote the activities 
of nonprofit volunteer pilot organizations flying for public benefit 
and to sustain the availability of the services that such organizations 
provide, including transportation at no cost to financially needy 
medical patients for medical treatment, evaluation, and diagnosis, as 
well as other flights of compassion and flights for humanitarian and 
charitable purposes.

SEC. 3. LIABILITY PROTECTION FOR NONPROFIT VOLUNTEER PILOT 
                    ORGANIZATIONS FLYING FOR PUBLIC BENEFIT AND TO 
                    PILOTS AND STAFF OF SUCH ORGANIZATIONS.

    Section 4 of the Volunteer Protection Act of 1997 (42 U.S.C. 14503) 
is amended--
            (1) in subsection (a)(4)--
                    (A) by redesignating subparagraphs (A) and (B) as 
                clauses (i) and (ii), respectively;
                    (B) by inserting ``(A)'' after ``(4)'';
                    (C) by striking the period at the end and inserting 
                ``; or''; and
                    (D) by adding at the end the following:
            ``(B) the harm was caused by a volunteer of a nonprofit 
        volunteer pilot organization that flies for public benefit, 
        while the volunteer was flying in furtherance of the purpose of 
        the organization and was operating an aircraft for which the 
        volunteer was properly licensed and insured, unless the conduct 
        constitutes a Federal crime of terrorism (as such term is 
        defined in section 2332b(g)(5) of title 18, United States Code) 
        or an act of domestic terrorism (as such term is defined in 
        section 2331 of such title), or unless the entity has been 
        convicted of an offense under section 2339A of such title.''; 
        and
            (2) in subsection (c)--
                    (A) by inserting ``(1)'' before ``Nothing''; and
                    (B) by adding at the end the following new 
                paragraph:
    ``(2) Notwithstanding paragraph (1), a nonprofit volunteer pilot 
organization that flies for public benefit, and the staff, mission 
coordinators, officers, and directors (whether volunteer or otherwise) 
of such organization or a referring agency of such organization, shall 
not be liable with respect to harm caused to any person by a volunteer 
of such organization, while the volunteer is flying in furtherance of 
the purpose of the organization and is operating an aircraft for which 
the volunteer is properly licensed and has certified to such 
organization that such volunteer has in force insurance for operating 
such aircraft. Such referring agency shall include, among others, any 
nonprofit organization that provides disaster relief services that 
place staff, volunteers, evacuees, goods, supplies, or cargo on 
aircraft flights being coordinated by volunteer pilot organizations in 
circumstances of disaster response and relief.''.

SEC. 4. REPORT BY ATTORNEY GENERAL.

    (a) Study Required.--The Attorney General shall carry out a study 
on the availability of insurance to nonprofit volunteer pilot 
organizations that fly for public benefit. In carrying out the study, 
the Attorney General shall make findings with respect to--
            (1) whether nonprofit volunteer pilot organizations are 
        able to obtain insurance;
            (2) if no, then why;
            (3) if yes, then on what terms such insurance is offered; 
        and
            (4) if the inability of nonprofit volunteer pilot 
        organizations to obtain insurance has any impact on the 
        associations' ability to operate.
    (b) Report.--After completing the study, the Attorney General shall 
submit to Congress a report on the results of the study. The report 
shall include the findings of the study and any conclusions and 
recommendations that the Attorney General considers appropriate.

                          Purpose and Summary

    H.R. 1871, the ``Volunteer Pilot Organization Protection 
Act of 2006,'' amends the Volunteer Protection Act of 1997 
(VPA) to include volunteer pilots and volunteer pilot 
organizations within the scope of its protections. Under 
present law, nonprofit volunteer pilot organizations and their 
pilots that provide life-saving medical flights without 
compensation are vulnerable to costly and often frivolous 
litigation that undermines the ability of these organizations 
to provide critical volunteer flight services in a timely 
manner. In addition, institutions that refer patients to 
volunteer pilot organizations are presently subject to legal 
jeopardy. H.R. 1871 protects and promotes the important work of 
volunteer pilot organizations by creating limited protection 
against liability to volunteer pilot organizations and pilots 
so that they are able to procure necessary insurance and 
continue their important operations.

                Background and Need for the Legislation

    H.R. 1871 extends the liability protections already 
provided by Congress in the Volunteer Protection Act of 1997 to 
volunteer pilot organizations that fly for public benefit. The 
extension of these liability protections reflects Congress' 
recognition that America's long tradition of volunteerism and 
generosity has been undermined by costly and often frivolous 
litigation. In recent decades, lawsuits and fears of liability 
have increasingly become a deterrent to people who might 
otherwise have given of their time or resources to better their 
community and country.

               HISTORY OF VOLUNTEER LIABILITY PROTECTIONS

    The common law of all 50 States allows individuals to 
collect monetary damages in tort for personal injury or 
property damage caused by another person's negligence or 
willful conduct. Virtually all of these States have recognized 
the need to encourage good works and volunteerism by protecting 
volunteers and nonprofit organizations from tort liability for 
accidents that arise in the normal course of their dealings. 
For example, New Jersey provides that charities and the 
volunteers they utilize are immune from liability for ordinary 
negligence.\1\ In Kansas, a volunteer or nonprofit organization 
is immune from liability for negligence if the organization 
carries general liability insurance coverage.\2\ Ohio offers 
broad immunity for volunteers of charitable organizations.\3\ 
Wisconsin State law limits the liability of volunteers of non-
stock corporations organized under Chapter 181.\4\ Georgia 
grants immunity for members, directors, officers, and trustees 
of charities from negligence claims asserted by beneficiaries 
of the charity.\5\ These States' efforts reflect a broader 
national consensus that volunteers and volunteer organizations 
should be protected from legal liability.
---------------------------------------------------------------------------
    \1\ N.J. Stat. Ann. Sec. Sec. 2A: 53A-7 to 7.1.
    \2\ Kan. Stat. Ann. Sec. 60-3601.
    \3\ Ohio. Rev. Code Ann. Sec. 2305.38.
    \4\ Wis. Stat. Sec. Sec. 181.0670.
    \5\ Ga. Code Ann. Sec. 51-1-20.
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    Congress recognized this national consensus and held 
hearings examining this subject in 1997.\6\ Those hearings 
showed that in addition to causing potential volunteers to stay 
at home or refrain from certain needed activities, liability 
and the fear of liability for volunteer activities had very 
real financial impacts, including dramatically rising costs for 
liability insurance premiums for volunteer organizations. These 
increased premiums have practical consequences: the Executive 
Director of the Girl Scout Council of Washington, D.C. stated 
that ``locally we must sell 87,000 boxes of . . . Girl Scout 
cookies each year to pay for [our] liability insurance.'' \7\ 
Furthermore, Dr. Thomas Jones, Managing Director of the 
Washington, D.C. office of Habitat for Humanity, testified that 
``[t]here are Habitat affiliate boards for whom the largest 
single administrative cost is the perceived necessity of 
purchasing liability insurance to protect board members. These 
are moneys which otherwise would be used to build more houses 
[for] more persons in need.'' \8\
---------------------------------------------------------------------------
    \6\ Volunteer Liability Legislation, Hearing on H.R. 911 and H.R. 
1167 Before the House Committee on the Judiciary, 105th Cong. (1997).
    \7\ H.R. Rep. No. 105-101, at 6 (1997).
    \8\ Volunteer Liability Legislation: Hearing on H.R. 911 and H.R. 
1167, supra, 105th Cong. at 56.
---------------------------------------------------------------------------
    These concerns prompted Congress to pass the Volunteer 
Protection Act (VPA), which was signed into law by President 
Clinton on June 18, 1997.\9\ The VPA protects ``volunteers'' 
\10\ for incidents that arise in the scope of their work, but 
it does not provide liability protection for willful, reckless, 
or criminal conduct or gross negligence. The Act limits 
punitive damages and non-economic damages for those individuals 
found liable.\11\ However, the VPA does not protect nonprofit 
organizations and government entities themselves from liability 
for negligence of their volunteers unless State law provides 
``charitable immunity'' for such organizations.\12\ Hence, 
under the common law doctrine of respondeat superior, volunteer 
organizations and entities are still generally vicariously 
liable for the negligence of their employees and volunteers. 
Also, volunteers that operate motor vehicles, vessels, or 
aircraft are not protected by the VPA.\13\
---------------------------------------------------------------------------
    \9\ Pub. L. No. 105-19 (1997).
    \10\ ``Volunteer'' is defined in the VPA as a person who performs 
services for a non-profit and who receives no more than $500 per year 
for such services. 24 U.S.C. Sec. 14505(6).
    \11\ 42 U.S.C. Sec. Sec. 14503(e), 14504.
    \12\ 42 U.S.C. Sec. Sec. 14502(a), 14503(c).
    \13\ 42 U.S.C. Sec. 14503(a)(4).
---------------------------------------------------------------------------
    The passage of the VPA has not ended the problem of 
liability and its associated costs for volunteers and the non-
profit organizations that support them. Hence, the Committee 
has held hearings \14\ in recent years about various aspects of 
this problem and has advanced several pieces of legislation 
\15\ designed to limit liability for volunteers and volunteer, 
non-profit, or charitable organizations. For example, in the 
107th Congress, the House-passed version of the ``Charitable 
Choice Act of 2001,'' H.R. 7, contained provisions limiting 
liability for persons or entities who donated equipment to 
charitable organizations.\16\ In the 108th Congress, the House 
overwhelmingly passed H.R. 1787, the ``Good Samaritan Volunteer 
Firefighter Assistance Act of 2003,'' which extends certain 
liability protections to those who donate equipment to 
volunteer fire stations, by a vote of 397-3.\17\ The provisions 
of that Act are now included as Section 125 of the USA PATRIOT 
Improvement and Reauthorization Act of 2005, which was signed 
into law on March 9, 2006.\18\ On the same day, the House also 
overwhelmingly passed H.R. 1084, the ``Volunteer Pilot 
Organization Protection Act,'' by a vote of 385-12.\19\
---------------------------------------------------------------------------
    \14\ See, e.g., Good Samaritan Volunteer Firefighter Assistance Act 
of 2003, the Non Profit Athletic Organization Protection Act of 2003, 
and the Volunteer Pilot Organization Protection Act: Hearing Before the 
House Comm. on the Judiciary on H.R. 1787, H.R. 3369, and H.R. 
1084,108th Cong. (2004); State and Local Implementation of Existing 
Charitable Choice Programs, 107th Cong. 13 (2001); Volunteer Liability 
Legislation, Hearing on H.R. 911 and H.R. 1167 Before the House 
Committee on the Judiciary, 105th Cong. (1997); and Health Care Reform 
Issues: Antitrust Medical Malpractice Liability and Volunteer 
Liability, Hearing on H.R. 911, H.R. 2925, H.R. 2938 Before the House 
Committee on the Judiciary, 104th Cong. (1995).
    \15\ See, e.g., H.R. 911, 105th Cong. (1997); H.R. 1167, 105th 
Cong. (1997); H.R. 7, 107th Cong. (2001); H.R. 1787, 108th Cong. 
(2003); H.R. 3369, 108th Cong. (2003); H.R. 1084, 108th Cong. (2003); 
and H.R. 3736, 109th Cong. (2005).
    \16\ H.R. 7, 107th Cong. Sec. 401 (2001).
    \17\ 150 Cong. Rec. H7097 (daily ed. Sept. 14, 2004).
    \18\ 151 Cong. Rec. H11289 (daily ed. Dec. 8, 2005), Pub. L. No. 
109-177.
    \19\ 150 Cong. Rec. H7098 (daily ed. Sept. 14, 2004).
---------------------------------------------------------------------------
    Most recently, the House passed the ``Katrina Volunteer 
Protection Act of 2005,'' H.R. 3736, by voice vote on September 
14, 2005.\20\ This bill extends liability protections to any 
person or entity that voluntarily rendered aid in the wake of 
Hurricane Katrina, provided that the harm was not caused by 
willful, wanton, reckless, or criminal conduct.
---------------------------------------------------------------------------
    \20\ 151 Cong. Rec. H7887 (daily ed. Sept. 14, 2005).
---------------------------------------------------------------------------

     H.R. 1871, ``THE VOLUNTEER PILOT ORGANIZATION PROTECTION ACT''

    H.R. 1871 is intended to promote the publicly beneficial 
activities of volunteer pilot organizations and their employees 
by exempting them from liability when flying volunteer missions 
in furtherance of the purpose of such organizations. The bill 
amends Section 4 of the VPA to ensure that volunteer pilot 
organizations and their employees, officers, and volunteer 
pilots acting within the scope of the mission of such 
organizations are explicitly covered by that Act. However, H.R. 
1871 does not confer blanket immunity for the actions of 
volunteers. Rather, it only confers immunity for simple 
negligence; it does not provide any liability protections for 
grossly negligent, or willful, reckless, or criminal conduct. 
Further, the exceptions to the general liability protections 
contained in the VPA would still apply (i.e. certain State laws 
on respondeat superior or adherence to licensing or risk 
management standards). A virtually identical bill, H.R. 1084, 
passed the House in the 108th Congress by a vote of 385-12.\21\
---------------------------------------------------------------------------
    \21\ 150 Cong. Rec. H7098 (daily ed. Sep. 14, 2004).
---------------------------------------------------------------------------

       VOLUNTEER PILOT ORGANIZATIONS AND PUBLIC BENEFIT AVIATION

    Volunteer pilot organizations and the pilots who fly for 
them are involved in a range of activities constituting what 
may generally be called ``public benefit aviation.'' The 
activities of public benefit aviation range from environmental 
observation, to wilderness rescue, to delivery of medical 
supplies and organs, to transport of medical patients.\22\ In 
the area of medical patient transport alone, volunteer pilot 
organizations provided long distance transportation for free to 
over 40,000 patients and their escorts in 2003.\23\ These 
flights enable patients to travel to remote specialized medical 
centers to receive life saving treatments and partake in 
clinical trials that they could not otherwise obtain in their 
own hometowns or even in their own regions of the country.
---------------------------------------------------------------------------
    \22\ Good Samaritan Volunteer Firefighter Assistance Act of 2003, 
the Nonprofit Athletic Organization Protection Act of 2003, and the 
Volunteer Pilot Organization Protection Act: Hearing Before the H. 
Comm. on the Judiciary, 108th Cong. 13 (2004) (testimony of Edward R. 
Boyer, President and CEO of Mercy Medical Airlift and Vice Chairman, 
Angel Flight America).
    \23\ Id.
---------------------------------------------------------------------------
    The benefits of public benefit aviation are even more 
pronounced in emergency situations, such as the recent 
Hurricane Katrina disaster. In the wake of that disaster, more 
than 2,800 children were reported missing by the National 
Center for Missing and Exploited Children (NCMEC).\24\ However, 
the NCMEC worked with Angel Flight America, a non-profit 
volunteer pilot organization, and its pilots to re-connect many 
of these children with their parents.\25\ In addition to 
reuniting families, Angel Flight America flew over 500 missions 
in the first week after the hurricane to bring volunteers and 
supplies to the affected areas.\26\ Overall, Angel Flight 
America coordinated approximately 2,200 flights into the areas 
affected by Hurricane Katrina, second only to the United States 
military.
---------------------------------------------------------------------------
    \24\ ``Over 2,000 children reported missing after Katrina,'' 
available at http://www.cnn.com/2005/US/09/16/news.update/index.html.
    \25\ Interview by Douglas Kennedy, Fox News Correspondent with Mike 
Keller, National Center for Missing and Exploited Children, in Baton 
Rouge, LA. (Sept. 9, 2005).
    \26\ Press Release, Angel Flight America, Angel Flight America 
Flies Relief for Hurricane Katrina Victims (Sept. 8, 2005), available 
at http://www.angelflightamerica.org/
index.php?src=news&prid=11&category=Press%20Releases.
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THE LIABILITY DILEMMA FACED BY VOLUNTEER PILOT ORGANIZATIONS AND THEIR 
                                 PILOTS

    The activities of volunteer pilots and volunteer pilot 
organizations are not protected from liability by the VPA, and 
therefore these coordinating organizations and the pilots who 
fly for them face difficulty obtaining the necessary insurance 
because of liability exposure fears. Pilots who might otherwise 
volunteer using their own plane, time, and insurance are 
reluctant to take on passengers and expose themselves to 
possible liability that exceeds their own insurance coverage. 
In addition, hospitals and other medical establishments are 
leery of referring patients to volunteer pilot medical 
transport services because of their own fear of liability 
exposure based on the simple act of recommendation.\27\ 
Furthermore, volunteer pilot organizations can no longer obtain 
the needed ``non-owned aircraft insurance'' at a reasonable 
cost, or, in some cases, at all.\28\
---------------------------------------------------------------------------
    \27\ Id. at 16.
    \28\ Id. at 13, 16, 22, 24.
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    The Volunteer Pilot Organization Protection Act of 2006 
addresses these concerns by bringing volunteer pilot 
organizations, the volunteer pilots that fly for them, as well 
as the hospitals and other agencies that refer patients to them 
under the protection of the Volunteer Protection Act. By 
narrowly limiting the liability of these groups, the Committee 
hopes to foster the good works of the volunteer pilot 
organizations.
    H.R. 1871 is supported by, among others, Angel Flight East, 
the Aircraft Owners and Pilots Association, the Children's 
Organ Transport Association, the National Association for Rare 
Disorders, Angel Flight America, the National Air 
Transportation Association, and the American Red Cross.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
1871 in the 109th Congress. However, the full Committee on the 
Judiciary held a hearing on a nearly identical bill, H.R. 1084, 
in the 108th Congress, at which testimony was received from Mr. 
Edward R. Boyer, President and CEO, of Mercy Medical Airlift.

                        Committee Consideration

    On March 2, 2006, the Committee met in open session and 
ordered favorably reported the H.R. 1871 as amended by voice 
vote, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of Rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 1871.
    1. Mr. Scott offered an amendment that would have 
eliminated the liability protections afforded to volunteer 
pilots who fly on behalf of nonprofit volunteer pilot 
organizations that fly for public benefit. By a rollcall vote 
of 10 ayes to 18 nays, with one vote of present, the amendment 
was not agreed to.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................              X
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Van Hollen..................................................              X
Ms. Wasserman Schultz...........................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             10              18               1
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of Rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of Rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of Rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1871, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 10, 2006.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1871, the 
``Volunteer Pilot Organization Protection Act of 2006.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Gregory 
Waring (for Federal costs), who can be reached at 226-2860, and 
Melissa Merrell (for the state and local impact), who can be 
reached at 225-3220.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 1871--Volunteer Pilot Organization Protection Act of 2006
    H.R. 1871 would provide immunity to volunteer pilot 
organizations, their employees, officers, and volunteer pilots 
from liability in certain civil suits alleging harm resulting 
from such individuals acting within the scope of the 
organization's mission. Such organizations typically provide 
wilderness rescue or medical evacuation services.
    CBO estimates that implementing the legislation would 
result in no significant costs to the Federal Government. 
Enacting H.R. 1871 would not affect direct spending or 
revenues.
    H.R. 1871 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA), but CBO estimates 
that the resulting costs, if any, would not be significant and 
would be well below the threshold established in that act ($64 
million in 2006, adjusted annually for inflation). The bill 
contains no new private-sector mandates as defined in UMRA.
    H.R. contains an intergovernmental mandate because it would 
preempt certain state liability laws. Specifically, the bill 
would exempt volunteer pilots and volunteer pilot organizations 
from liability under state tort laws for injuries that may 
occur during the course of their volunteer activities. CBO 
estimates that the resulting costs, if any, would not be 
significant and would be well below the threshold established 
in UMRA.
    The CBO staff contacts for this estimate are Gregory Waring 
(for Federal costs), who can be reached at 226-2860, and 
Melissa Merrell (for the state and local impact), who can be 
reached at 225-3220. This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
Rule XIII of the Rules of the House of Representatives, H.R. 
1871, would protect and promote the important work of volunteer 
pilots and volunteer pilot organizations by creating limited 
liability protections to encourage needed pilots and to allow 
the procurement of necessary insurance.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in art. I, Sec. 8 of the Constitution.

               Section-by-Section Analysis and Discussion

    The following discussion describes the bill as reported by 
the Committee.
Section 1. Short Title
    Section 1 provides that H.R. 1871 may be cited as the 
``Volunteer Pilot Organization Protection Act of 2006.''
Section 2. Findings and Purpose
    Subsection 2(a) cites findings about the beneficial nature 
of public benefit non-profit volunteer aviation, those served 
by such organizations and the difficulty such organizations 
face in obtaining reasonable insurance due to potential 
liability exposure.
    Subsection 2(b) sets forward the purpose of the Act, which 
is: ``to promote the activities of non-profit volunteer pilot 
organizations flying for public benefit and to sustain the 
availability of the services that such organizations provide.''
Section 3. Liability Protection for Nonprofit Volunteer Pilot 
        Organizations Flying for Public Benefit and to the Pilots and 
        Staff of Such Organizations
    Section 3 amends the Volunteer Protection Act of 1997 (42 
U.S.C. Sec. 14503) by extending the liability protections of 
the Act to a properly licensed and insured volunteer pilot who 
is flying in furtherance of a nonprofit volunteer pilot 
organization that flies for public benefit. Such volunteers are 
currently not covered under 42 U.S.C. Sec. 14503(a)(4). These 
liability protections apply only to pilot negligence; under 
H.R. 1871, pilots would still be liable for grossly negligent 
or willful, reckless, or criminal actions. Further, Section 3 
provides an incentive for pilots to carry the requisite 
insurance (whether they own, rent, or borrow the aircraft) so 
that they can partake of the liability limiting features of the 
bill. An amendment offered by Representative Waters and 
accepted by voice vote clarifies that nothing in this bill will 
extend liability protections to pilots who are engaged in acts 
of terrorism as that term is defined in 18 U.S.C. 
Sec. Sec. 2332b(g)(5), 2331, or 2339A.
    Section 3 also extends the protection of the VPA to cover 
volunteer pilot organizations as well as referral 
organizations. Such organizations are currently not covered by 
the Volunteer Protection Act under 42 U.S.C. Sec. 14503(c). 
This section addresses the insurance reality that volunteer 
pilot organizations are no longer able to obtain the insurance 
they need in the marketplace. An amendment offered by 
Representatives Chabot and Jackson Lee and accepted by voice 
vote clarifies that the referral agencies covered by the 
protections of H.R. 1871 also include those agencies, such as 
the American Red Cross, that provide disaster relief services 
and place staff, volunteers, evacuees, goods, supplies, or 
cargo on flights coordinated by volunteer pilot organizations.
Section 4. Report by Attorney General
    Section 4 requires the Attorney General to study and file a 
report with Congress regarding the availability of insurance to 
nonprofit volunteer pilot organizations.

         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 (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

           SECTION 4 OF THE VOLUNTEER PROTECTION ACT OF 1997

SEC. 4. LIMITATION ON LIABILITY FOR VOLUNTEERS.

  (a) Liability Protection for Volunteers.--Except as provided 
in subsections (b) and (d), no volunteer of a nonprofit 
organization or governmental entity shall be liable for harm 
caused by an act or omission of the volunteer on behalf of the 
organization or entity if--
          (1) * * *

           *       *       *       *       *       *       *

          (4)(A) the harm was not caused by the volunteer 
        operating a motor vehicle, vessel, aircraft, or other 
        vehicle for which the State requires the operator or 
        the owner of the vehicle, craft, or vessel to--
                  [(A)] (i) possess an operator's license; or
                  [(B)] (ii) maintain insurance[.]; or
          (B) the harm was caused by a volunteer of a nonprofit 
        volunteer pilot organization that flies for public 
        benefit, while the volunteer was flying in furtherance 
        of the purpose of the organization and was operating an 
        aircraft for which the volunteer was properly licensed 
        and insured, unless the conduct constitutes a Federal 
        crime of terrorism (as such term is defined in section 
        2332b(g)(5) of title 18, United States Code) or an act 
        of domestic terrorism (as such term is defined in 
        section 2331 of such title), or unless the entity has 
        been convicted of an offense under section 2339A of 
        such title.

           *       *       *       *       *       *       *

  (c) No Effect on Liability of Organization or Entity.--(1) 
Nothing in this section shall be construed to affect the 
liability of any nonprofit organization or governmental entity 
with respect to harm caused to any person.
  (2) Notwithstanding paragraph (1), a nonprofit volunteer 
pilot organization that flies for public benefit, and the 
staff, mission coordinators, officers, and directors (whether 
volunteer or otherwise) of such organization or a referring 
agency of such organization, shall not be liable with respect 
to harm caused to any person by a volunteer of such 
organization, while the volunteer is flying in furtherance of 
the purpose of the organization and is operating an aircraft 
for which the volunteer is properly licensed and has certified 
to such organization that such volunteer has in force insurance 
for operating such aircraft. Such referring agency shall 
include, among others, any nonprofit organization that provides 
disaster relief services that place staff, volunteers, 
evacuees, goods, supplies, or cargo on aircraft flights being 
coordinated by volunteer pilot organizations in circumstances 
of disaster response and relief.

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                        THURSDAY, MARCH 2, 2005

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:00 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable F. 
James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    [Intervening business.]
    Chairman Sensenbrenner. Pursuant to notice, I now call up 
the bill H.R. 1871, the ``Volunteer Pilot Organization 
Protection Act of 2005,'' for purposes of markup and move its 
favorable recommendation to the House. Without objection, the 
bill will be considered as read and open for amendment at any 
point.
    [The bill, H.R. 1871, follows:]
      
      

  
  


    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes to explain the bill.
    This is a bill which is narrowly tailored to address the 
liability exposure of certain volunteer and nonprofit 
activities. The next bill also proposes to do that.
    In 1997, Congress passed the Volunteer Protection Act to 
shield volunteers from liability for some forms of negligence 
in response to concerns that our lawsuit culture is inhibiting 
this country's rich tradition of volunteerism. However, the act 
does not protect volunteers who operate an automobile, vessel, 
or aircraft, or organizations that coordinate the volunteers.
    This bill is very narrowly drafted so that it applies to 
organizations which fly for public benefit, the largest of 
which function together as Angel Flight America. I will ask 
unanimous consent to put my entire statement in the record and 
also to include letters of support from the National 
Association for Rare Disorders, Angel Flight America, the 
National Air Transportation Association, the American Red 
Cross.
    [The prepared statement of Mr. Sensenbrenner follows:]
  Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a 
 Representative in Congress from the State of Wisconsin, and Chairman, 
                       Committee on the Judiciary
    I urge my colleagues to join me in favorably reporting H.R. 1871, 
the ``Volunteer Pilot Organization Protection Act.'' This bill, along 
with H.R. 1176, which we will take up shortly, is narrowly tailored to 
address the liability exposure of certain volunteer and non-profit 
activities.
    In 1997, Congress passed the Volunteer Protection Act to shield 
volunteers from liability for some forms of negligence in response to 
concerns that America's lawsuit culture was inhibiting this country's 
rich tradition of volunteerism. However, the Volunteer Protection Act 
does not protect volunteers who operate an automobile, vessel, or 
aircraft, nor does it protect the organizations that coordinate the 
volunteers.
    There are approximately 30 separate volunteer pilot organizations 
flying for public benefit; the largest of which function together as 
Angel Flight America. These organizations coordinate the almost 8,000 
volunteer pilots, who fly anywhere between 1 and 50 volunteer missions 
per year--all at the pilots' expense. These pilots conduct ``public 
benefit aviation,'' which includes activities ranging from 
environmental observation, to wilderness rescue, to delivery of medical 
supplies and organs, to transport of medical patients. In the area of 
medical patient transport alone, volunteer pilot organizations provided 
long distance transportation for free to over 40,000 patients and their 
escorts in 2003.
    As beneficial as these groups are in ordinary circumstances, they 
are invaluable in cases of a national emergency, such as Hurricane 
Katrina. Angel Flight America, through its role with the Homeland 
Security Emergency Air Transportation System, flew over 500 missions in 
the first week after Katrina, bringing in emergency workers, agency 
staff, volunteers, and supplies.
    They also flew high-risk individuals to safer locations, and, once 
there, they began the process--together with groups such as the 
National Center for Missing and Exploited Children--of reuniting 
parents and children that were separated in the evacuation of New 
Orleans. Overall, Angel Flight America coordinated over 2,200 flights 
into the areas affected by Hurricane Katrina, second only to the United 
States military.
    Despite the invaluable services they provide, volunteer pilots are 
not protected from liability by the Volunteer Protection Act. As a 
result, these organizations and the pilots who fly for them face 
difficulty obtaining the necessary insurance because of liability 
exposure fears. In fact, in many cases, the volunteer pilot 
organizations cannot obtain, at any cost, the type of liability 
insurance that they need. In addition, hospitals and other medical 
establishments are sometimes reluctant to refer patients to volunteer 
pilot medical transport services because of their own fear of liability 
exposure based on the simple act of recommendation.
    This legislation limits liability exposure for volunteer pilots and 
organizations by bringing them within the scope of coverage of the 
Volunteer Protection Act. This legislation will not confer blanket 
immunity. Liability will still attach for gross negligence or reckless, 
willful, or criminal misconduct. The bill would also have an added 
benefit of allowing hospitals, clinics, and other organizations--
including those organizations active like the American Red Cross--to 
refer needy patients for no-cost medical transport with less fear of 
their own liability exposure. Further, this bill requires that pilots 
purchase insurance in order to be covered by the liability protections.
    The legislation is supported by a wide array of charitable 
organizations, including the American Red Cross, the National 
Organization For Rare Disorders, Angel Flight America, and the National 
Air Transportation Association.
    H.R. 1871 will end the cycle of litigation--and the threat of such 
litigation--that has stifled the efforts of the brave and public-minded 
volunteer pilots who risk their own lives for others. I urge Members to 
join me in favorably reporting this legislation today.

    [The letters follow:]

    
    
    Chairman Sensenbrenner. And I yield back the balance of my 
time. The gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Mr. Chairman, I knew this would--this 
wonderful cooperation would have to end somewhere, and I 
finally have found a bill that I am not able to support in this 
morning's agenda, and it's this one--the Volunteer Pilot 
Organization Protection Act. And the reason is simple enough. 
It's that it flies into the face of the Volunteer Protection 
Act that we passed into law after 8 years of debate, extending 
across five Congresses. That act was carefully deliberated and 
negotiated, and this bill wipes the slate clean by giving 
volunteer pilots protection from liability, despite the fact 
that the Volunteer Protection Act specifically excluded that 
category of volunteers from protection.
    So under the earlier act, pilots and those operating 
aircraft were specifically left out of liability exemption 
because of the highly dangerous nature of the activity and the 
fact that States require these pilots to have insurance. This 
bill undoes that and exempts pilots from liability. So the 
choice is yours, Members of the Committee. Do we keep what we 
have worked on for so many years going on, or do we just turn 
around this morning and make an exemption?
    It doesn't tackle--this bill does not tackle the real 
problem, which is the insurance industry's failure to offer 
insurance to the volunteer pilot organizations. This bill 
establishes national policy specifically allowing certain 
pilots to operate their aircraft negligently and, if they do, 
still escape liability.
    So I hope those of you who follow this train of thought and 
the reasons I have suggested oppose the passage of the measure 
that is presently before us.
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. Does the gentleman yield back the 
balance----
    Mr. Conyers. Mr. Chairman, I yield back the balance of my 
time.
    Chairman Sensenbrenner. Without objection, all Members' 
opening statements will be placed in the record at this point.
    [The prepared statement of Ms. Jackson Lee follows:]

    
    

    Chairman Sensenbrenner. Are there amendments? The gentleman 
from Ohio, Mr. Chabot.
    Mr. Chabot. Thank you, Mr. Chairman. I have an amendment at 
the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    [Pause.]
    Chairman Sensenbrenner. Does the clerk have the amendment?
    Mr. Chabot. Here it comes, Mr. Chairman.
    Chairman Sensenbrenner. The clerk will be careful because 
the amendment might be hot since it's right off the press. And 
the clerk will report the amendment.
    The Clerk. Amendment to H.R. 1871, offered by Mr. Chabot of 
Ohio and Ms. Jackson Lee of Texas.
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
      
      

  


    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot, will be recognized for 5 minutes.
    Mr. Chabot. Thank you, Mr. Chairman.
    Mr. Chairman, I will be brief. It's come to my attention 
that some organizations who refer the services of volunteer 
pilot groups, most notably the American Red Cross, are 
concerned that H.R. 1871 as drafted might not protect them in 
the event of an accident involving the volunteer pilot 
organization. These organizations, after all, would likely be 
sued in the event something went wrong, even though they did 
nothing more than tell a patient that groups like Angel Flight 
America exist. And like the volunteer pilot organizations, 
these referrals agencies cannot obtain the insurance they need 
in order to protect them from this exposure.
    This amendment is designed to make it clear that groups 
like the American Red Cross, who during national crises like 
Hurricane Katrina place volunteers and supplies on flights 
coordinated by volunteer pilot organizations, are covered by 
the liability protections of this bill.
    I hope my colleagues will support this amendment and will 
be supporting the underlying bill, and I'd like to thank the 
gentlelady from Texas, Ms. Jackson Lee, for her leadership and 
for supports and cosponsoring this particular amendment.
    With that, I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the Chabot 
amendment. Those in favor will say aye? Opposed, no?
    The ayes appear to have it. The ayes have it. The amendment 
is agreed to.
    Are there further amendments?
    Ms. Waters. Mr. Chairman, I have an amendment.
    Chairman Sensenbrenner. The gentlewoman from California. 
The clerk will report the amendment.
    Ms. Waters. Mr. Chairman, I have an amendment at the desk, 
Waters 035.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 1871, offered by Ms. Waters of 
California. Page 3, line 19, insert before the period after 
``insured'' the following: ``, unless the conduct constitutes a 
Federal crime of terrorism''----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
      
      

  


    Chairman Sensenbrenner. The gentlewoman from California is 
recognized for 5----
    Ms. Waters. Mr. Chairman and Members, I offer an amendment 
that will----
    Chairman Sensenbrenner. Will the gentlewoman yield?
    Ms. Waters. Yes, I will yield.
    Chairman Sensenbrenner. To show the gentlewoman from 
California that the Chair is his usual warm and fuzzy self, 
this is a good amendment and I am prepared to accept it.
    Ms. Waters. Well, I better look at this amendment again. 
[Laughter.]
    Chairman Sensenbrenner. Does the gentlewoman wish to 
withdraw the amendment?
    Ms. Waters. No, no, no. No, no, no. It's such an unusual 
act by the Chairman, I must accept it. Thank you.
    Chairman Sensenbrenner. Does the gentlewoman yield back?
    Ms. Waters. I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on agreeing to the 
amendment offered by the gentlewoman from California, Ms. 
Waters. Those in favor will say aye? Opposed, no?
    The ayes appears to have it. The ayes have it. The 
amendment is agreed to.
    Are there further amendments? The gentleman from Virginia, 
Mr. Scott.
    Mr. Scott. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, when this came up last year--I am 
concerned about the remarks of the gentleman from Michigan. 
When this came up last year, the pilot was, in fact, not 
immunized by the bill from last year. I'm looking at page 3, 
paragraph (B) on line 14, where it suggests that--it's a little 
unclear whether the pilot is immunized or not. Could somebody 
tell me whether the pilot with insurance gets immunized for 
negligence such that the insurance wouldn't have to pay for 
ordinary negligence? And I yield to anybody that can respond to 
that question?
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia has 
yielded to the gentleman from Ohio.
    Mr. Chabot. I thank the gentleman for yielding. I'll be 
brief.
    This bill is identical to the one that passed in the 108th 
Congress by a vote of 385-12. Both that bill and this one 
required pilots to purchase the necessary insurance in order to 
receive the liability protections of the bill. However, neither 
bill contemplated payouts under those insurance policies unless 
the pilot engaged in grossly negligent or willful, reckless, or 
criminal behavior.
    I yield.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Virginia.
    Mr. Scott. Reclaiming my time, so, in fact, the pilot in 
this case, just to be clear, would be liable for ordinary 
negligence. The organization that selected the pilot would not 
be liable, but the pilot himself would be. Is that the case?
    Mr. Chabot. If the gentleman will yield?
    Mr. Scott. I yield.
    Mr. Chabot. The pilot is only negligent if it's gross 
negligence or willful, reckless, or criminal behavior.
    Mr. Scott. Reclaiming my time, can you point out where that 
is in the bill, where that language is?
    Mr. Chabot. If the gentleman will yield, he has to have 
insurance to get the protections of the bill----
    Mr. Scott. Well, Mr. Chairman----
    Mr. Chabot. And the insurance is there to pay out any 
grossly negligent or any other----
    Mr. Scott. Well, if he has insurance, what's the problem 
with paying for ordinary negligence? And I yield.
    Mr. Chabot. It increases the cost of the insurance and 
makes it more difficult for these pilots to obtain insurance.
    Mr. Scott. Reclaiming my time, Mr. Chairman, when we have 
these immunity things, the situation always comes up with 
automobiles, so if somebody's driving around that is a 
volunteer with insurance, you go through a red light, simple 
negligence. There's no reason why the insurance shouldn't pay 
for the damage done for the simple negligence, at least up to 
the minimum insurance. And when this thing came up before, we 
thought the idea was you'd pay at least up to the insurance for 
ordinary negligence and not get immunity for that. The 
organization itself that selected the pilot ought to have 
immunity because they didn't do anything. And the purpose of 
the bill was to immunize the organization. That's why it's 
called the ``Liability Protection to Nonprofit Pilot 
Organizations,'' not to the pilots.
    So I would--well, Mr. Chairman, I have an amendment at the 
desk.
    Chairman Sensenbrenner. The gentleman will have to yield 
back first.
    Mr. Scott. I yield back.
    Chairman Sensenbrenner. Are there further amendments?
    Mr. Scott. I have an amendment at the desk.
    Chairman Sensenbrenner. The gentleman from Virginia. The 
clerk will report the amendment.
    The Clerk. Amendment to H.R. 1871, offered by Mr. Scott of 
Virginia. Page 3, line 14, strike paragraph (B).
    [The amendment follows:]

    
    

    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, I think this gets at the problem I 
was talking about. I think it aims at where the pilot was 
trying to get immunized. And I would hope that the Committee 
would accept this amendment so that the pilot with insurance 
committing ordinary simple negligence would be liable for the 
damage he caused, at least up to the insurance.
    I yield back.
    Chairman Sensenbrenner. The question is on agreeing to the 
amendment offered by the gentleman from Virginia, Mr. Scott. 
Those in favor will say aye? Opposed, no?
    The ayes appear to have it. The ayes have it, and the 
amendment is agreed to.
    Are there further amendments?
    Mr. Chabot. Mr. Chairman, could we have a recorded vote on 
that, please?
    Mr. Scott. Mr. Chairman? Mr. Chairman?
    Chairman Sensenbrenner. A recorded vote is requested by the 
gentleman from Ohio. Those in favor of the Scott amendment 
will, as your names are called, answer aye, those opposed no, 
and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    Mr. Lungren. Pass.
    The Clerk. Pass. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    [No response.]
    The Clerk. Mr. Bachus?
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    [No response.]
    The Clerk. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    [No response.]
    The Clerk. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
    [No response.]
    The Clerk. Ms. Wasserman Schultz?
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes? The gentleman from North Carolina, Mr. 
Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Chairman Sensenbrenner. The gentleman from Massachusetts, 
Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 8 ayes, 18 nays----
    Chairman Sensenbrenner. The gentleman from Maryland, Mr. 
Van Hollen?
    Mr. Van Hollen. Thank you, Mr. Chairman. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Chairman Sensenbrenner. Any other stragglers? The gentleman 
from California, Mr. Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes? If not, the clerk will try again.
    The Clerk. Mr. Chairman, there are 10 ayes, 18 nays, and 1 
pass.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    Mr. Chabot. Mr. Chairman, I'd ask unanimous consent to 
speak out of order for a moment.
    Chairman Sensenbrenner. The gentleman moves to strike the 
last word, is recognized for 5 minutes.
    Mr. Chabot. Thank you. I'll be very brief. I just wanted to 
let the gentleman from Virginia know that we will work with the 
gentleman and try to clear up any misunderstandings prior to 
the bill getting to the floor.
    Mr. Scott. I thank you. If the gentleman would yield? Would 
the gentleman yield?
    Mr. Chabot. I'll yield.
    Mr. Scott. Thank you, because I think the point is 
important because if a pilot negligently runs into another 
plane and he is given immunity, nobody in the other plane would 
have a claim against anybody. And I believe it's the intention 
to immunize the organization and the pilot at least up to his 
required insurance so that the people in the other plane would 
have something to recover against.
    So I appreciate the gentleman working so that we can clear 
up this. I believe it's the intention not to immunize the pilot 
at least up to his insurance, but to make sure that the 
organization is, in fact, immunized.
    Mr. Chabot. I yield back my time. Thank you.
    Chairman Sensenbrenner. Are there further amendments?
    [No response.]
    Chairman Sensenbrenner. If there are no further amendments, 
a reporting quorum is present. Those in favor of reporting the 
bill favorably will say aye? Opposed, no?
    The ayes appear to have it. The ayes have it, and the 
motion to report the bill favorably is agreed to.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute, incorporating the amendment adopted here today. 
Without objection, the staff is directed to make any technical 
and conforming changes, and all Members will be given 2 days, 
as provided by the House rules, in which to submit additional, 
dissenting, supplemental, or minority views.
    [Intervening business.]
    The business noticed on today's schedule having been 
concluded, without objection, the Committee stands adjourned.
    [Whereupon, at 11:01 a.m., the Committee was adjourned.]

                            DISSENTING VIEWS

    H.R. 1871, the ``Volunteer Pilot Organization Protection 
Act'' is the product of overreaching by the Majority in 
response to a hypothetical problem--a lack of volunteerism by 
pilot organizations in the face of civil liability. At our 
hearing on this legislation, we saw no quantitative proof of a 
problem in this area. Moreover, the legislation upsets the 
balance achieved in the Volunteer Protection Act--enacted to 
encourage the kind of volunteerism at issue here--by 
specifically exempting pilots and air carriers from liability.
    As a general matter, H.R. 1871 does nothing to tackle the 
real problem, which is the insurance industry's failure to 
offer insurance to volunteer pilot organizations. However, we 
also oppose this bill for several substantive reasons. First, 
the legislation repeals portions of the Volunteer Protection 
Act, a bill Congress passed into law after eight years of 
debate extending over five Congresses, and lets insurance 
companies off the hook while potentially harming innocent 
victims. Second, the bill is overly broad, applying to staff, 
mission coordinators, officers and directors of volunteer pilot 
organizations, and referring agencies, whether for profit or 
not-for-profit. Third, it leaves innocent victims without 
recourse by reducing the standard of care applicable to pilots. 
Finally, the bill is poorly drafted and includes loopholes that 
would insulate international terrorist organizations from 
liability and subject innocent bystanders to harm without any 
recourse.

                       Description of Legislation

    Section 2 of the bill, the ``Findings and Purpose'' 
section, contains four findings describing the benefits and 
services provided by nonprofit volunteer pilot organizations 
and states that these organizations ``are no longer able to 
reasonably purchase non-owned aircraft liability insurance to 
provide liability protection, and thus face a highly 
detrimental liability risk.''
    Section 3 of the bill amends the Volunteer Protection Act 
to provide a liability exemption when the harm was caused by a 
volunteer of a nonprofit volunteer pilot organization. Section 
3 also carves out liability protection for the nonprofit 
volunteer pilot organization, the staff, mission coordinators, 
officers, directors, and referring agencies.

           Background on the Volunteer Protection Act of 1997

    Any discussion of this legislation requires an 
understanding of past efforts to insulate volunteers from civil 
liability. In 1997, we passed the Volunteer Protection Act in 
an effort to help increase volunteerism because of a fear that 
people were deterred by the potential for personal liability. 
Specifically, the Act limited the liability of volunteers who 
are: (1) acting within the scope of their responsibilities; (2) 
properly licensed, certified, or authorized to act; (3) not 
causing harm by willful or criminal conduct, gross negligence, 
reckless misconduct, or a conscious, flagrant indifference to 
the rights or safety of the individual; and (4) not causing 
harm while operating a motor vehicle, vessel, aircraft, or 
other vehicle for which the State requires the operator to 
possess a license or to maintain insurance.\1\
---------------------------------------------------------------------------
    \1\ 42 U.S.C. Sec. 14053 (2003).
---------------------------------------------------------------------------
    In addition, the Act eliminated joint and several liability 
for non-economic damages with respect to volunteers and limited 
awards of punitive damages against volunteers by requiring the 
plaintiff to establish ``by clear and convincing evidence that 
the harm was proximately caused by an action of such volunteer 
which constitutes willful or criminal misconduct, or a 
conscious, flagrant indifference to the rights or safety of the 
individual harmed.''
    The Act also preempts inconsistent state laws, except to 
the extent that such laws provide additional protection from 
liability to volunteers. Moreover, the legislation specifically 
provided that it would not preempt a state law that: (1) 
requires a nonprofit organization or governmental entity to 
adhere to risk management procedures, including mandatory 
training of volunteers; (2) makes the organization or entity 
liable for the acts or omissions of its volunteers to the same 
extent that an employer is liable for the acts or omissions of 
its employees (i.e. respondeat superior); (3) makes a 
limitation of liability inapplicable only if the nonprofit 
organization or governmental entity provides a financially 
secure source of recovery for individuals who suffer harm as a 
result of actions taken by a volunteer on behalf of the 
organization or entity. The act also allows states to enact 
statutes voiding the new federal legal limitations, but only to 
the extent all of the parties to a particular action are 
citizens of the state.

                        Concerns With H.R. 1871

 A. H.R. 1871 UNDOES THE BALANCE ACHIEVED BY THE VOLUNTEER PROTECTION 
                                  ACT

    As noted above, the Volunteer Protection Act specifically 
excludes harm caused while ``operating a motor vehicle, vessel, 
aircraft, or other vehicle for which the State requires the 
operator to possess a license or to maintain insurance.'' \2\ 
Unfortunately, H.R. 1871 completely undermines this position. 
Volunteers operating aircrafts or motor vehicles were exempted 
from liability protection under the Act because of the concern 
that in highly dangerous activities (such as flying airplanes), 
states have made it clear that they intend to hold individuals 
responsible for the consequences of their negligence by 
mandating insurance. Congress obviously chose to trust states' 
judgment in these cases. Similarly, because most individuals 
who fly already have insurance, Congress may not have viewed 
liability protection for airplane pilots as an incentive to 
volunteer.
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    \2\ 42 U.S.C. Sec. 14053 (2003).
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    In addition, Congress was also concerned that if it 
extended liability protection to volunteer operators of 
airplanes and automobiles, these organizations would not be 
able to provide a financially secure source of recovery for 
individuals who suffer harm as a result ofactions taken by a 
volunteer on behalf of an organization or entity. Indeed, the Volunteer 
Protection Act does not preempt state legislation that provides for 
such protection. Thus, Congress exempted operators of airplanes from 
liability protection because they feared, with the high rates of 
accidents involving airplanes, there was a potential that innocent 
victims could go uncompensated if volunteers did not possess insurance.

          B. H.R. 1871 GOES WELL BEYOND PROTECTING VOLUNTEERS

    The 1997 Act excuses volunteers from negligence but holds 
organizations accountable if they act irresponsibly.\3\ By 
contrast, H.R. 1871 protects not just the volunteer, but also 
the staff, mission coordinator, officer, or director (whether 
volunteer or not) of the nonprofit organization. It also 
extends the protection to any referring agency (whether for-
profit or non-profit). This provision is designed to protect 
the matching programs that bring together volunteer pilots.
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    \3\ Sec. 4(c) (``Nothing in this section shall be construed to 
affect the liability of any nonprofit organization or governmental 
entity with respect to harm caused to any person.'')
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    As Professor Andrew Popper explained in his testimony 
before the Committee in the 108th Congress:

          [The legislation] undercuts a fundamental premise of 
        exiting [sic] federal law, the 1997 Volunteer 
        Protection Act. That legislation immunized negligent 
        coaches, lawyers and doctors engaged in malpractice, 
        and others who have trusting contact with vulnerable 
        populations, on the premise that victims of such 
        misconduct would still have recourse against the 
        organizations who sponsored the immunized defendant-
        volunteers. If this bill passes, that protection will 
        vanish. Under this bill, the pilots, as well as their 
        organizations and sponsoring entities, would all be 
        immunized. In short, those who are in need of emergency 
        air service and must rely on volunteers would be in the 
        hands of individuals and organizations who are 
        unaccountable for negligent acts.\4\
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    \4\ Increasing Volunteers by Reducing Legal Fears: Hearings on H.R. 
1871, H.R. 3369, and H.R. 1787, Before the Comm. on the Judiciary, 
108th Cong. (statement of Andrew F. Popper, Professor, American 
University, Washington College of Law) (July 20, 2004).
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          C. H.R. 1871 REDUCES THE STANDARD OF CARE FOR PILOTS

    Finally, H.R. 1871 alters the standard of care normally 
applied to pilots. Under current law, owners and operators of 
private aircraft must exercise ordinary care, or reasonable 
care under the circumstances.\5\ However, a number of courts 
have held that operators of private aircrafts must exercise the 
highest degree of care. Indeed, one court reasoned that the 
nature of the conveyance and the great danger involved required 
the utmost practical care and prudence for the safety of 
passengers, and that the defendant was bound to exercise the 
highest degree of human care, caution, and judgment consistent 
with the practical operation of the plane. No lesser degree of 
care and prudence would be adequate under the circumstances or 
commensurate with the danger involved.\6\
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    \5\ Brooks v. United States, 695 F.2d 984 (5th Cir. 1983). Owners 
sued in tort for property loss arising when an aircraft was badly 
damaged in a runaway landing accident. The Court noted that under Texas 
law, liability growing out of aircraft accidents is determined by 
ordinary rules of negligence.
    \6\ Dyer v. United States, 551 F. Supp. 1266 (W.D. Mich. 1982), 
applying Federal and Michigan law.
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    Under H.R. 1871 by contrast, a volunteer pilot could only 
be held liable if harm was caused by ``willful or criminal 
misconduct, gross negligence, reckless misconduct, or a 
conscious, flagrant indifference to the rights or safety of the 
individual harmed by the volunteer.'' \7\ Thus, the standard of 
care would be uniformly altered for all pilots, regardless of 
their type of license, that are permitted to fly for a non-
profit organization.
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    \7\ 42 U.S.C. Sec. 14503.
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   D. H.R. 1871 IGNORES THE PROBLEM OF INADEQUATE INSURANCE COVERAGE

    The real problem facing the nonprofit volunteer pilot 
organization community is that these organizations cannot 
obtain insurance. This was the point of Edward Boyer's 
testimony at the hearing on this bill: ``[A]viation insurance 
has skyrocketed up in price and certain key products are no 
longer reasonably available to volunteer pilot organizations * 
* * Now virtually all volunteer pilot organizations have no 
non-owned aircraft liability insurance.'' \8\ The legislation 
contains a study to determine the gravity of the insurance 
situation. While a study is a good first step in figuring out 
the problem, it should be conducted before Congress decides to 
pass a bill limiting liability for all volunteers and 
organizations in the industry and diminishing the chances of 
holding anyone accountable when harm occurs.
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    \8\ Increasing Volunteers by Reducing Legal Fears: Hearings on H.R. 
1871, H.R. 3369, and H.R. 1787, Before the Comm. on the Judiciary, 
108th Cong. (statement of Edward R. Boyer) (July 20, 2004.)
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                  E. THE LEGISLATION IS POORLY DRAFTED

    As usual when it comes to ``tort reform'' proposals by the 
majority, this bill was poorly and hastily drafted and leaves 
all kinds of loopholes. For example, the bill does not address 
the situation of an innocent bystander who may be harmed by a 
volunteer pilot. While the bill attempts to address the 
situation between the pilots, the organizations, and the person 
in need of transport, it clearly does not contemplate the 
situation of someone outside that relationship, such as an 
innocent bystander. This is simply poor and thoughtless 
drafting.
    Even more egregious, this poor drafting leaves a loophole 
for acts of domestic terrorism. Thus, if a pilot flying for a 
nonprofit volunteer pilot organization commits an act of 
domestic terrorism with an airplane, the organization will 
completely escape liability for the harm caused by such an act. 
This is simply irresponsible.

                               Conclusion

    H.R. 1871 is overbroad and unnecessary. There have been no 
reported civil liability cases against a volunteer pilot or a 
volunteer pilot organization. In addition, 43 states have 
already passed legislation relating to volunteer liability; 
some states have included or separately passed protections for 
non-profit organizations. There is no need to preempt state 
laws in this case.

                                   John Conyers, Jr.
                                   Maxine Waters.
                                   Debbie Wasserman Schultz.

                                  
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