To: House - Senate Conferees on Aviation Security Legislation S.1447/H.R.3150

From: Joan Claybrook
President
Public Citizen

Paul Hudson
Executive Director
Aviation Consumer Action Project (ACAP)
Public Member, FAA Aviation Security Advisory Committee

Re: Aviation Security Legislation Conference

It has been nearly two months since the worst terrorist attack in history. But Congress has yet to act on the most important and urgent concerns of the traveling public and the American public: Aviation Security. The public interest requires that you take the best provisions (i.e., those that provide the strongest and most effective aviation security) from each bill and that where necessary, you correct obvious defects, while rejecting those provisions that weaken or undermine aviation security. In other words, you must compromise up not down.

[Click here to read the entire press release]

1. Federal Private Security Personnel

While public opinion polls show a large majority of Americans want the federal government to take over and operate aviation security, the President has made the telling point that as the person with overall responsibility for implementing stronger aviation and national security he should have the flexibility to choose public or private employees, whichever makes for the best security system. Accordingly, a reasonable compromise on this main point of disagreement between the Senate and House bills would be for aviation security screeners to be federal employees, unless the President and the head of aviation security, issues a finding that private security screeners at certain airports would provide an equivalent or superior level of security. For category X airports (essentially the large international airports with the highest level of terrorist threat), federal employees should be used except on a temporary basis, and only if the President, Attorney General, and the head of aviation security issue a finding that federal security agents are not available and that private security personnel would provide a high level of aviation security.

2. Pay Scale for Security Personnel

Another key element of aviation security is how much should security personnel be paid. A federal employee would be paid a minimum of about $25,000 plus federal benefits, would have the prestige of being a federal aviation security agent, and superior opportunities for career advancement than in most private security firms. To attract the same or higher quality personnel in the private sector and reduce or prevent high turnover, everyone agrees that the pay scale needs to be higher.

However, the legislation, while implicitly setting much higher compensation levels for federal aviation security personnel, does nothing to ensure that private security personnel would not be paid the present $5.50 - $9.50 per hour without benefits. Accordingly, to have any realistic probability for equivalency between federal and private security personnel, there should be a minimum pay requirement for private contract personnel equivalent to federal personnel.

3. Screener Standards

The screener standards set forth in the House legislation are appallingly low and ill defined: high school equivalent education, 12-hour or less training (the existing requirement) with on-the-job training allowed, allowing screeners who fail the proficiency test to continue screening after receiving remedial training, the ability to understand basic English, and not be color blind, deaf, be able to perform hand searches, and not be impaired with illegal drugs, alcohol, medications or sleep deprivation (See Section 104 Employment Standard and Training). The Senate bill requires screeners to be U.S. citizens for at least 5 years, pass a drug test, criminal history check, not be a threat to national security, have a high school education or equivalent experience, meet the same English and physical requirement as the House bill, have completed 40 hours of classroom instruction and 60 hours of on the job training. It would also require existing screeners to pass background checks (who are presently exempted). In general the Senate bill has higher (albeit still low) standards and should be accepted by the conferees (unless a House bill provision provides for a higher training employment standard.)

Conferees should also consider adding a preference for ex-military and law enforcement or peace officer personnel, as Israeli and other effective security systems recruit heavily from such ranks.

4. Federal Agency for Aviation Security

Another key issue of aviation security is what federal agency should be responsible for aviation security. The Senate bill places screeners in the Dept. of Justice, the lead federal agency dealing with domestic terrorism, and the leading law enforcement agency. However, the Senate bill would leave the Air Marshall Program in the US DOT, and leaves undefined who heads the screener function, potentially leaving it to be placed in the INS, a troubled federal agency.

The House bill creates a Transportation Security Administration headed by an Undersecretary of Transportation and would transfer all aviation security personnel in the FAA Aviation Security Office to this administration. DOT is neither a national security nor primarily a law enforcement agency. Its record of performance in aviation security is abysmal. Whenever aviation security bumps into commerce and convenience at DOT, security has lost. By including bus, train, truck and shipping security in this new administration it would dilute resources and divert attention from aviation security, the purpose of the legislation.

The House bill also has the odd provision of making an Under Secretary of Transportation head of aviation security in the office of the Secretary of Transportation. An under secretary is a subordinate and stand in for a secretary, not normally head of a large operating agency. The office of the Secretary of Transportation is a small political and policy office, not an operating agency with tens of thousands of employees. Its main aviation function at present is to negotiate bilateral air route treaties with foreign governments. In the 1990's so little was thought of aviation security that the position of Assistant Secretary of Transportation for Intelligence and Security, created by the Aviation Security Improvement Act of 1990, was abolished. The apparent purpose of this provision is for the US DOT Secretary to have control of aviation security with the many contracting opportunities and security waiver provisions provided for in the House bill under the political control and supervision of the Secretary. During the September Congressional hearings on aviation security, Secretary Mineta revealed on numerous occasions that he favored lifting most aviation security restrictions, but that the decision had been taken out of his hands and was being decided by the National Security Council and the Secret Service.

A reasonable upward compromise would be to have an Aviation Security Administration or agency in the Department of Justice, with an agency head appointed by the President and confirmed by the Senate.

5. Coordination and Oversight

Both bills provide for coordination and oversight. The House bill has an Aviation Security Coordinating Council and a Transportation Security Advisory Council. The Senate bill calls for an Aviation Security Coordination Council.

Conferees should adopt the Senate bill's Aviation Security Coordination Council and also provide for an Aviation Security Advisory Committee under the Federal Advisory Committee Act (FACA), with balanced representatives from all parties concerned with aviation as is now the case with the FAA Aviation Security Advisory Committee. Secretary Mineta's post 9/11 advisory groups had all aviation industry membership in violation of the FACA requirements. The House language effectively excludes passengers and public representatives from a Transportation Security Advisory Council and would exempt it from the Federal Advisory Committee Act requirements that federal advisory committees have balanced representatives from the relevant affected interests.

The FACA is the main protection against the public interest being hijacked by regulated industries, providing semi-official advice and direction to regulatory agencies with no public representation or accountability. This provision, unless changed, would make aviation security solely the province of the regulated industry and the government, and is clearly contrary to the public interest. It is especially important that passengers and the public representatives be involved in advice and oversight, because the details of security regulations are secret, and are not otherwise subject to public review and scrutiny. All industry advisory groups dominated by likely civil defendants in the 9/11 attacks are particularly conflicted and biased in the type of security advice that they can provide. The industry is likely, as in the past, to oppose stronger security and emphasize the expense and difficulty of security improvements for reasons of commercial convenience, cost and liability reasons.

The conferees should transfer the existing FAA Aviation Security Advisory Committee (established under the FACA in 1991) to the new aviation security entity.

6. Armed Security on Airliners

Armed security on airliners is recognized as an important component of aviation security in both bills. The House and Senate bills provide for Federal Air Marshals in "selected" flights (the current status quo) at pay of $35,000 - $80,000 (the current pay scale). This just endorses the current status quo regarding armed security on airliners. The Senate bill also provides for the possibility of non-lethal weapons for flight crew members, anti-hijacking training for flight crews, exempts passengers who are law enforcement officers, firefighters or EMS personnel and who volunteer for emergency security service from certain civil liability and provides for possible training. All these provisions should be adopted, but it should be recognized that they are woefully inadequate to either deter 9/11-type attacks or provide any reasonable assurance to the public that airliner cabins are now secure.

Conferees, to fix the basic defects, should add a provision to require the Administration to submit a plan within 30 days to provide airliner cockpits security against terrorist attacks on all commercial flights within 90 days. This is essential to both deter repeat terrorist attacks and restore the confidence of a thoroughly shaken public and anxious flight crews. Incredibly, airliner cockpit security still depends largely upon ad hoc resistance by unarmed flight crews and passengers. Deterrence now consists primarily of orders to the U.S. military to shoot down errant commercial airliners. Since 9/11, the Bush Administration has rejected or failed to act on proposals by airline pilots to arm flight crews, by flight attendants pleading for new anti-hijacking and self-defense training, as well as ACAP's recommendation to detail state and local law enforcement officers as temporary sky marshals with appropriate training, so that all flights would have armed security until passive security measures to isolate airliner cockpits from passengers can be implemented (now projected to be 18 months). Without Congressional action, medium and short-haul flights and non-Reagan National Airport flights are highly unlikely to have armed security. It must be presumed that sophisticated terrorists are well aware of this vulnerable situation, which has been reported in the public media.

7. Funding

Funding is always a key issue. Currently funding is by federal mandate placed on the airlines and airports. Both bills provide for a new security tax on airline tickets. This must be dedicated to aviation security and must be supplemented as necessary from the national security budget. Airliners should not be able to access these funds as they have already been relieved of security responsibility and given a $15 billion bailout. Airports have access to the Passenger Facility Charge (PFC) for security and should not normally be allowed to access security funding. Otherwise, the Airline's funding provision, based on past practice, will provide a new bailout for airports that will continue to use PFC monies for capacity expansion rather than for security or safety, while aviation security will quickly be starved for funding.

8. Other provisions that should be accepted by the Conferees are:

Senate Bill 1447 Sections 104 (Cockpit Security)

106 (Airport Perimeter Access)
108

110 (Research and Development)
111 (Flight School Security)
112 (Report to Congress)
113 (General Aviation and Air Charter Security)
115 (FAA Security Reports)
117 (Computer Reservation System Security)
118 (Security Funding)
119 (Funding Flexibility)
120
121
124 (On Board Supplies)
125 (Arming Pilots)
126 (Performance Management.)
128
131 with public notice of waiver and notice to Aviation Security Advisory Committee
132, 133, 134
201
211
221

House Bill 3150 Sections 101 (Powers and Duties of Security Administration, substituting "Aviation Security Administration" for "Transportation Security Administration" and "Agency head" for "DOT and Under Secretary of DOT")

106 (Enhanced Security Measures)
107 (Criminal History Checks)
108 (Passenger/Baggage Screening Fee limited to $2.50/flight)
110, 111, 115-118 (Technical changes as appropriate)
122

9. Provisions that should be rejected by the conferees are:

Senate Bill 1447 Section 116 (Permits waivers and exemptions for certain security measures for intrastate flights). This provision could undermine a uniform national standard of aviation security and could allow terrorists to infiltrate the air transportation system (as some of the 9/11 terrorists apparently did through small airports) and bypass the stronger security in major airports by using connecting flights from smaller airports.

Section 123 (Mail and Freight Security Waivers). This would undermine national security. It has no oversight, or limitation as to time. No exemptions or waivers should be granted without mandatory reporting to the relevant Congressional committees and approval of the Director of the Office of Homeland Security. Currently the FAA grants unrestricted and generally unreported waivers of safety and security regulations 300 or more times per year with 3,000 to 4,000 currently outstanding making a mockery of many regulatory standards. As security regulations are generally secret, the public will not be informed (as with the FAA permitting 4" knives and box cutters on flights prior to 9/11) until it is too late. Sophisticated terrorists are likely to learn of such exemptions and exploit them as they apparently did on 9/11.

Section 129 (Report on Air Space Restrictions within 30 days). The time limit should be extended to 120 days.

House Bill 3150 Section 119 (Lifting of all General Aviation restrictions, unless FAA reimposes with 10 days notice in Federal Register). The lifting of restrictions for general aviation since 9/11 has already made the nation vulnerable to biological and chemical attack by the potential use of 220,000 general aviation aircraft as weapons against buildings and mass gatherings by terrorist pilots. This provision could strip away the few remaining restrictions imposed since 9/11 with nothing to replace them.

Section 120 (Waivers for small communities if waivers also reported to Congressional oversight and advisory committees). This would also undermine a national standard for security.

Section 201 (Limitation of Liability for Damages for 9/11 crashes). This very harmful provision would effectively deprive 9/11 victims and their families of their rights to fully pursue remedies to this egregious incident. It would hold the airport authorities, private screening companies, the owner and private lease holder of the World Trade Center, and Boeing harmless for damages in excess of their liability insurance coverage, for punitive damages (which requires extremely bad conduct of a civil defendant and is only granted in the most egregious cases). It also would reduce damage awards by amounts that could have been received from collateral sources even if never received, and exempts from criminal prosecution, civil prosecution and fines and other penalties, any parties involved in security regulation violations that may have allowed or contributed to the 9/11 terrorist attacks and the horrendous consequences.

The provision also criminalizes plaintiffs' attorneys fees in excess of 20% of a recovery, makes all attorney fees in discretion of a court, while placing no limit on defense attorney fees or limiting in any way the amounts spent by civil defendants to defend against or appeal damage claims or verdicts. This provision denies a level playing field for victim plaintiffs who choose to go to court, and as a practical matter would deprive victims' of the legal resources to receive just compensation or deter wrongdoing by negligent parties and non-terrorist wrongdoers through the civil or criminal justice systems.

Unlike the Pan Am 103 bombing, the TWA 800 air disaster, the Challenger disaster or even the 1941 Pearl Harbor attack, no investigating commission has been appointed. A National Transportation Safety Board investigation is likely to be secret or not performed, due to criminal investigations and national security concerns. Civil lawsuits would then provide the only vehicle for discovery of exactly how 19 foreign terrorists were able to hijack four airliners in less than an hour on September 11th, doing more damage than any foreign attack on U.S. soil since at least the War of 1812. Otherwise, we will be left with only the self-serving excuses and assertions of the operators of a dysfunctional security system and the likely civil defendants.

The conferees should reject this section and provide for an independent commission to investigate and report on the aviation security conditions and deficiencies that allowed the 9/11 terrorist attacks to succeed.

cc: Members of House and Senate