To amend the Homeland Security Act of 2002 to improve aviation security.

February 11, 2004

Mr. MARKEY introduced the following bill; which was referred to the Committee on Transportation and Infrastructure, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To amend the Homeland Security Act of 2002 to improve aviation security.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Secure Existing Aviation Loopholes Act'.

SEC. 2. INSPECTION OF CARGO CARRIED ABOARD PASSENGER AIRCRAFT.

Subtitle A of title IV of the Homeland Security Act of 2002 (6 U.S.C. 201 et seq.) is amended by adding at the end the following:

`SEC. 404. AIR CARGO ON PASSENGER AIRCRAFT.

`(a) In General- Not later than 180 days after the date of enactment of this section, the Secretary shall establish a system to screen or inspect to ensure the security of all cargo that is to be transported in passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation (as defined in section 40102 of title 49, United States Code). The system shall use equipment, technology, and personnel to screen and inspect cargo that meet the same standards as those established to screen passenger baggage.

`(b) Implementation Plan- The Secretary shall--

`(1) develop an implementation plan to carry out subsection (a); and

`(2) establish and impose fees (to be known as `cargo security fees') for shippers of cargo to pay costs associated with carrying out subsection (a).

`(c) Research and Development of New Technologies- The Secretary shall monitor and evaluate the research and development of effective cargo screening technologies.

`(d) Schedule of Fees- In imposing fees under this section, the Secretary shall ensure that the fees are reasonably related to the Transportation Security Administration's costs of providing services rendered.

`(e) Imposition of Fee-

`(1) In general- Notwithstanding section 9701 of title 31, United States Code, and the procedural requirements of section 553 of title 5, United States Code, the Secretary shall impose the cargo security fee through the publication of notice of the fee in the Federal Register and begin collection of the fee within 60 days of the date of enactment of this section, or as soon as possible thereafter.

`(2) Subsequent modification of fee- After imposing a cargo security fee in accordance with this section, the Secretary may modify, from time to time through publication of notice in the Federal Register, the imposition or collection of such fee, or both.

`(3) Limitation on collection- No cargo security fee may be collected under this section except to the extent that the expenditure of the fee to pay the costs of activities and services for which the fee is imposed is provided for in advance in an appropriations Act.

`(f) Administration of Fees-

`(1) Fees payable to secretary- All fees imposed and amounts collected under this section are payable to the Secretary.

`(2) Fees collected by air carrier- A fee imposed under this section shall be collected by the air carrier or foreign air carrier that provides transportation described in subsection (a).

`(3) Due date for remittance- A fee collected under this section shall be remitted on the last day of each calendar month by the carrier collecting the fee. The amount to be remitted shall be for the calendar month preceding the calendar month in which the remittance is made.

`(4) Information- The Secretary may require the provision of such information as the Secretary decides is necessary to verify that fees have been collected and remitted at the proper times and in the proper amounts.

`(5) Fee not subject to tax- For purposes of section 4261 of the Internal Revenue Code of 1986 (26 U.S.C. 4261), a fee imposed under this section shall not be considered to be part of the amount paid for taxable transportation.

`(6) Cost of collecting fee- No portion of the fee collected under this section may be retained by the air carrier or foreign air carrier for the costs of collecting, handling, or remitting the fee except for interest accruing to the carrier after collection and before remittance.

`(g) Receipts Credited as Offsetting Collections- Notwithstanding section 3302 of title 31, United States Code, any fee collected under this section--

`(1) shall be credited as offsetting collections to the account that finances the activities and services for which the fee is imposed;

`(2) shall be available for expenditure only to pay the costs of activities and services for which the fee is imposed; and

`(3) shall remain available until expended.

`(h) Refunds- The Secretary may refund any fee paid by mistake or any amount paid in excess of that required.'.

SEC. 3. FEDERAL AIR MARSHALS.

(a) Flights of Foreign Air Carriers and Charter and All-Cargo Air Transportation- Section 44917(a)(1) of title 49, United States Code, is amended by inserting before the semicolon at the end the following: `, on any passenger flight of an air carrier in charter air transportation for which the Under Secretary determines that such deployment is in the interest of aviation security, on every passenger flight of foreign air carriers in air transportation, and on flights of all-cargo air transportation'.

(b) Limitation on Landing and Takeoff Rights of Foreign Air Carriers-

(1) In general- No flight of a foreign air carrier may land in or take off from any airport in the United States unless such flight has on board a Federal air marshal or an equivalent officer of the government of the foreign country under the laws of which the foreign air carrier is organized if the Secretary of Homeland Security requests the presence of such marshal or officer on such flight.

(2) Enforcement- The Secretary of Homeland Security shall take such action as may be necessary to ensure compliance with this section and actions taken under this section.

(3) Definitions- In this subsection, the terms `foreign air carrier', `airport', and `United States' have the meaning such terms have in section 40102 of title 49, United States Code.

SEC. 4. IMPROVED AVIATION SECURITY.

Subtitle A of title IV of the Homeland Security Act of 2002 (2 U.S.C. 601 et seq.) is further amended by adding at the end the following:

`SEC. 405. IMPROVED AVIATION SECURITY.

`(a) Improved Communication Systems-

`(1) In general- Not later than one year after the date of enactment of this section, the Secretary shall require all flight crews of air carriers (as such term is defined in section 40102 of title 49, United States Code) to have improved communication systems for providing flight attendants with a discreet, secure, hands-free, wireless method of communicating with pilots that meet such standards as the Secretary may establish by regulation. The communication system for any flight must be accessible by any Federal air marshal on the flight and appropriate Government security officials and airline personnel.

`(2) Regulations- The Secretary shall issue regulations to carry out this subsection not later than the 90th day following the date of enactment of this section.

`(3) Revision- The Secretary may revise the standards established under this subsection, and the regulations issued to carry out this subsection, to reflect improvements in technology and changes in terrorist tactics.

`(b) Bilateral and Multilateral Agreements to Strengthen Security-

`(1) In general- The Secretary shall develop a plan to improve coordination between the Department and agencies and departments of foreign governments that are such governments' counterparts to the Department in the area of aviation security. The plan shall include, at a minimum, development of air marshal programs for foreign governments and the provision of and technical assistance in the formulation of strategies to limit access to sensitive areas of airports to authorized individuals.

`(2) Reports- The Secretary shall transmit to Congress annually for the first 5 years following the date of enactment of this section a report on the implementation of the plan developed pursuant to this subsection.

`(c) Comprehensive Preflight Screening-

`(1) In general- Not later than 180 days after the date of enactment of this section, the Secretary shall issue regulations to improve preflight screening of passenger aircraft for dangerous objects and training of screeners of passenger aircraft and to reduce the time between preflight screening and the departure time for a flight.

`(2) Specific requirements- The regulations shall require individuals who perform the preflight security sweeps through the passenger cabin and lavatories of passenger aircraft and who are not members of the flight or cabin crew to be physically screened for metallic objects, have their personal bags inspected for prohibited items such as chemical, biological, radiological, or nuclear materials, be subject to criminal history background checks, social security checks, and checks against all terrorist watch lists maintained by the Government.

`(3) Study-

`(A) In general- The Secretary shall conduct a study on the potential security vulnerabilities created by the use of nonflight crew members to conduct preflight inspections, to assess the current training provided to individuals who perform these inspections, and to identify areas for improvement in such inspections and training and make recommendations regarding improving such inspections and training.

`(B) Report- Not later than 180 days after the date of enactment of this section, the Secretary shall transmit to Congress a report on the results of the study.

`(d) Flight Attendant Training-

`(1) Training requirements- The Secretary, in consultation with the Administrator of the Federal Aviation Administration, shall issue a rule to--

`(A) require both classroom and effective hands-on situational training for flight attendants of air carriers in the following elements of self defense:

`(i) recognizing suspicious activities and determining the seriousness of an occurrence;

`(ii) deterring a passenger who might present a problem;

`(iii) crew communication and coordination;

`(iv) the proper commands to give to passengers and attackers;

`(v) methods to subdue and restrain an attacker;

`(vi) use of available items aboard the aircraft for self-defense;

`(vii) appropriate and effective responses to defend oneself, including the use of force against an attacker;

`(viii) use of protective devices assigned to crew members (to the extent such devices are approved by the Administrator or Secretary);

`(ix) the psychology of terrorists to cope with their behavior and passenger responses to that behavior; and

`(x) how to respond to aircraft maneuvers that may be authorized to defend against an act of criminal violence or air piracy;

`(B) require training of such flight attendants in the proper conduct of a cabin search, including the duty time required to conduct the search;

`(C) establish the required number of hours of training of such flight attendants and the qualifications for the training instructors;

`(D) establish the intervals, number of hours, and elements of recurrent training of such flight attendants; and

`(E) ensure that air carriers provide the initial training required by this paragraph within 12 months of the date of enactment of this section.

`(2) Responsibility of secretary-

`(A) Consultation- In developing the rule under paragraph (1), the Secretary shall consult with appropriate personnel in the Emergency Preparedness and Response Directorate of the Department of Homeland Security and with law enforcement personnel and security experts who have expertise in self-defense training, terrorism experts, and representatives of air carriers, the provider of self-defense training for Federal air marshals, flight attendants, labor organizations representing flight attendants, and educational institutions offering law enforcement training programs.

`(B) Designation of official- The Secretary shall designate an official in the Department to be responsible for overseeing the implementation of the training program under this subsection.

`(C) Necessary resources and knowledge- The Secretary shall ensure that employees of the Department responsible for monitoring the training program under this subsection have the necessary resources and knowledge.

`(e) Social Security Check Defined- In this section and section 406, the term `social security check' means a check on the validity of the social security number of an individual and a verification that the number is assigned to the individual.'.

SEC. 5. CONTROL OVER ACCESS TO SECURED AREAS OF AIRPORTS.

(a) Airport Perimeter Access Security- Subtitle A of title IV of the Homeland Security Act of 2002 (6 U.S.C. 201 et seq.) is further amended by adding at the end the following:

`SEC. 406. ACCESS SECURITY.

`(a) Airport Perimeter- Not later than 180 days after the date of the enactment of this section, the Secretary shall issue regulations to improve control over access to the secured area of each airport in the United States described in section 44903(c) of title 49, United States Code.

`(b) Background Checks for All Airport Workers- Individuals employed in, or applying for, positions described in section 44936 of title 49, United States Code, and positions as aircraft maintenance and catering personnel, aircraft cargo handlers, and aircraft support facilities personnel whether having escorted or unescorted access to aircraft or secured areas of airports, shall be subject to a social security check and a check against all terrorist watch lists maintained by the Government in addition to the background checks required under such section.'.

(b) Screening of Airport Workers Using Metal Detectors- Section 44903(h)(4)(B) of title 49, United States Code, is amended by inserting before the semicolon at the end the following: `, including, at a minimum requiring such individuals to be physically screened for metallic objects and to have their personal bags inspected for prohibited items such as chemical, biological, radiological or nuclear materials'.

SEC. 6. AIRCRAFT MANEUVERS.

(a) Training- Not later than 180 days after the date of enactment of this Act, the Secretary of Homeland Security shall issue regulations to carry out section 44918 of title 49, United States Code, by requiring air carriers--

(1) to provide pilots with training in flight deck procedures, aircraft maneuvers, and best practice to defend their aircraft;

(2) to provide cabin crew members with training in flight deck communication procedures and the appropriate responses to such procedures and maneuvers;

(3) to provide, in conjunction with and law enforcement authorities as appropriate, crew members with training in procedures for communicating and coordinating effectively with Federal air marshals and law enforcement officers during attempts to disrupt the normal operation of the aircraft; and

(4) to provide pilots with training in flight deck procedures, aircraft maneuvers and best practices that enable pilots to respond if the aircraft is struck by a surface-to-air missile in a manner that increases the likelihood that the pilots will be capable of safely landing the aircraft.

(b) Development and Components of Pilot Training- The training under subsection (a)(4) shall be developed in consultation with organizations that have expertise in the area of pilot training and shall include components that simulate the complete failure of the aircraft's hydraulic system and loss of normal flight controls.

(c) Matters to Consider in Providing Training- Training under this section shall be provided taking into account both the benefit that such procedures and maneuvers can provide to thwart terrorists who are on board aircraft and the potential safety risks to passengers and crew, as well as structural damage to aircraft, that may be associated with such procedures and maneuvers.

(d) Effective Date of Regulations- The regulations under this section shall take effect not later than the 365th day following the date of enactment of this Act.

SEC. 7. SECURING COCKPIT DOORS.

Subtitle A of title IV of the Homeland Security Act of 2002 (6 U.S.C. 201 et seq.) is further amended by adding at the end the following:

`SEC. 407. SECURING COCKPIT DOORS.

`(a) Cargo Aircraft- Not later than 180 days after the date of enactment of this section, the Secretary shall--

`(1) issue an order--

`(A) requiring any aircraft engaged in cargo air transportation or intrastate air transportation to have, not later than one year after the date of issuance of such order, a door (and surrounding partition) between the cargo and pilot compartments that can be locked and cannot be forced open from the cargo compartment;

`(B) prohibiting access to the flight deck of aircraft engaged in cargo air transportation or intrastate air transportation, except by authorized persons; and

`(C) requiring that such flight deck doors remain locked while any such aircraft is in flight except when necessary to permit access and egress by authorized persons; and

`(2) take such other action, including modification of safety and security procedures and flight deck redesign, as may be necessary to ensure the safety and security of the aircraft.

`(b) Passenger Aircraft- The Secretary shall issue an order to modify requirements imposed pursuant to section 104 of the Aviation and Transportation Security Act (49 U.S.C. 44903 note; 115 Stat. 605) to ensure that the wall surrounding the flight deck door on any aircraft engaged in passenger air transportation or intrastate air transportation is sufficient to secure the cockpit.

`(c) Grants- The Secretary may make grants or other agreements with air carriers (including intrastate air carriers) to assist such carriers in complying with the orders issued under this section.

`(d) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary to carry out this section.'.

SEC. 8. SECURITY REQUIREMENTS FOR GENERAL AVIATION.

(a) No Fly Zones- The Secretary of Homeland Security--

(1) shall establish for the duration of any high threat level announced by the Secretary (including announcements of code orange or above), and

(2) may establish for the duration of any other threat level that is announced by the Secretary and that the Secretary determines appropriate,

no fly zones around sensitive nuclear facilities, chemical facilities identified by the Administrator of the Environmental Protection Agency at which a release of the facility's hazardous materials could threaten the health of more than 1,000,000 people, and any other facilities the Secretary may designate.

(b) Vulnerability Assessments- The Secretary shall--

(1) require the operators of airports that serve general aviation aircraft and landing facilities for such aircraft to complete vulnerability assessments developed by the Secretary for evaluation of the physical security of such airports and facilities and of procedures, infrastructure, and resources used with respect to such airports and facilities; and

(2) develop a plan for addressing vulnerabilities identified by such assessments not later than the 365th day following the date of enactment of this Act.

(c) Sensitive Nuclear Facility- In this section, the term `sensitive nuclear facility' means--

(1) a commercial nuclear power plant and associated spent fuel storage facility;

(2) a decommissioned nuclear power plant and associated spent fuel storage facility;

(3) a category I fuel cycle facility;

(4) a gaseous diffusion plant; and

(5) a Department of Energy nuclear weapons materials production, processing, storage, or research facility.

END