II

106TH CONGRESS

1ST SESSION S. 1139

To amend title 49, United States Code, relating to civil penalties for unruly

passengers of air carriers and to provide for the protection of employees

providing air safety information, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MAY 26, 1999

Mr. REID (for himself and Mr. FRIST) introduced the following bill; which was

read twice and referred to the Committee on Commerce, Science, and

Transportation

A BILL

To amend title 49, United States Code, relating to civil

penalties for unruly passengers of air carriers and to

provide for the protection of employees providing air

safety information, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. PENALTIES FOR UNRULY PASSENGERS.

4 (a) IN GENERAL.—Chapter 463 of title 49, United

5 States Code, is amended by adding at the end the fol6 lowing:

7 ‘‘§ 46317. Interference with cabin or flight crew

8 ‘‘(a) GENERAL RULE.—
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1 ‘‘(1) IN GENERAL.—An individual who inter2 feres with the duties or responsibilities of the flight

3 crew or cabin crew of a civil aircraft or takes any

4 action that poses an imminent threat to the safety

5 of the aircraft or other individuals on the aircraft is

6 liable to the United States Government for a civil

7 penalty of not more than $25,000.

8 ‘‘(2) ADDITIONAL PENALTIES.—In addition or

9 as an alternative to the penalty under paragraph

10 (1), the Secretary of Transportation (referred to in

11 this section as the ‘Secretary’) may prohibit the indi12 vidual from flying as a passenger on an aircraft used

13 to provide air transportation for a period of not

14 more than 1 year.

15 ‘‘(b) NOTIFICATION OF AIR CARRIERS.—Not later

16 than 10 days after issuing an order prohibiting an indi17 vidual from flying under subsection (a)(2), the Secretary

18 shall notify all air carriers of—

19 ‘‘(1) the prohibition; and

20 ‘‘(2) the period of the prohibition.

21 ‘‘(c) RESPONSIBILITY OF AIR CARRIERS.—After a

22 notification of an order issued under subsection (a)(2), an

23 air carrier who provides air transportation for the indi24 vidual prohibited from flying during the period of the pro25 hibition under that subsection is liable to the United
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1 States Government for a civil penalty of not more than

2 $25,000.

3 ‘‘(d) COMPROMISE AND SETOFF.—

4 ‘‘(1) COMPROMISE.—The Secretary may com5 promise the amount of a civil penalty imposed under

6 this section.

7 ‘‘(2) SETOFF.—The United States Government

8 may deduct the amount of a civil penalty imposed or

9 compromised under this section from amounts the

10 Government owes the person liable for the penalty.’’.

11 (b) CONFORMING AMENDMENT.—The table of sec12 tions for chapter 463 of title 49, United States Code, is

13 amended by adding at the end the following:

‘‘46317. Interference with cabin or flight crew.’’.

14 SEC. 2. PROTECTION OF EMPLOYEES PROVIDING AIR SAFE15 TY INFORMATION.

16 (a) IN GENERAL.—Chapter 421 of title 49, United

17 States Code, is amended by adding at the end the fol18 lowing:

19 ‘‘SUBCHAPTER III—WHISTLEBLOWER

20 PROTECTION PROGRAM

21 ‘‘§ 42121. Protection of employees providing air safe22 ty information

23 ‘‘(a) DISCRIMINATION AGAINST AIRLINE EMPLOY24 EES.—No air carrier or contractor or subcontractor of an

25 air carrier may discharge an employee of the air carrier
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1 or the contractor or subcontractor of an air carrier or oth2 erwise discriminate against any such employee with re3 spect to compensation, terms, conditions, or privileges of

4 employment because the employee (or any person acting

5 pursuant to a request of the employee)—

6 ‘‘(1) provided, caused to be provided, or is

7 about to provide or cause to be provided, to the Fed8 eral Government information relating to any viola9 tion or alleged violation of any order, regulation, or

10 standard of the Federal Aviation Administration or

11 any other provision of Federal law relating to air

12 carrier safety under this subtitle or any other law of

13 the United States;

14 ‘‘(2) has filed, caused to be filed, or is about to

15 file or cause to be filed, a proceeding relating to any

16 violation or alleged violation of any order, regulation,

17 or standard of the Federal Aviation Administration

18 or any other provision of Federal law relating to air

19 carrier safety under this subtitle or any other law of

20 the United States;

21 ‘‘(3) testified or will testify in such a pro22 ceeding; or

23 ‘‘(4) assisted or participated or is about to as24 sist or participate in such a proceeding.
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1 ‘‘(b) DEPARTMENT OF LABOR COMPLAINT PROCE2 DURE.—

3 ‘‘(1) FILING AND NOTIFICATION.—

4 ‘‘(A) IN GENERAL.—In accordance with

5 this paragraph, a person may file (or have a

6 person file on behalf of that person) a com7 plaint with the Secretary of Labor if that per8 son believes that an air carrier or contractor or

9 subcontractor of an air carrier discharged or

10 otherwise discriminated against that person in

11 violation of subsection (a).

12 ‘‘(B) REQUIREMENTS FOR FILING COM13 PLAINTS.—A complaint referred to in subpara14 graph (A) may be filed not later than 90 days

15 after an alleged violation occurs. The complaint

16 shall state the alleged violation.

17 ‘‘(C) NOTIFICATION.—Upon receipt of a

18 complaint submitted under subparagraph (A),

19 the Secretary of Labor shall notify the air car20 rier, contractor, or subcontractor named in the

21 complaint and the Administrator of the Federal

22 Aviation Administration of the—

23 ‘‘(i) filing of the complaint;

24 ‘‘(ii) allegations contained in the com25 plaint;
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1 ‘‘(iii) substance of evidence supporting

2 the complaint; and

3 ‘‘(iv) opportunities that are afforded

4 to the air carrier, contractor, or subcon5 tractor under paragraph (2).

6 ‘‘(2) INVESTIGATION; PRELIMINARY ORDER.—

7 ‘‘(A) IN GENERAL.—

8 ‘‘(i) INVESTIGATION.—Not later than

9 60 days after receipt of a complaint filed

10 under paragraph (1) and after affording

11 the person named in the complaint an op12 portunity to submit to the Secretary of

13 Labor a written response to the complaint

14 and an opportunity to meet with a rep15 resentative of the Secretary to present

16 statements from witnesses, the Secretary

17 of Labor shall conduct an investigation

18 and determine whether there is reasonable

19 cause to believe that the complaint has

20 merit and notify in writing the complain21 ant and the person alleged to have com22 mitted a violation of subsection (a) of the

23 Secretary’s findings.

24 ‘‘(ii) ORDER.—Except as provided in

25 subparagraph (B), if the Secretary of
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1 Labor concludes that there is reasonable

2 cause to believe that a violation of sub3 section (a) has occurred, the Secretary

4 shall accompany the findings referred to in

5 clause (i) with a preliminary order pro6 viding the relief prescribed under para7 graph (3)(B).

8 ‘‘(iii) OBJECTIONS.—Not later than

9 30 days after the date of notification of

10 findings under this paragraph, the person

11 alleged to have committed the violation or

12 the complainant may file objections to the

13 findings or preliminary order and request a

14 hearing on the record.

15 ‘‘(iv) EFFECT OF FILING.—The filing

16 of objections under clause (iii) shall not op17 erate to stay any reinstatement remedy

18 contained in the preliminary order.

19 ‘‘(v) HEARINGS.—Hearings conducted

20 pursuant to a request made under clause

21 (iii) shall be conducted expeditiously and

22 governed by the Federal Rules of Civil

23 Procedure. If a hearing is not requested

24 during the 30-day period prescribed in

25 clause (iii), the preliminary order shall be
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1 deemed a final order that is not subject to

2 judicial review.

3 ‘‘(B) REQUIREMENTS.—

4 ‘‘(i) REQUIRED SHOWING BY COM5 PLAINANT.—The Secretary of Labor shall

6 dismiss a complaint filed under this sub7 section and shall not conduct an investiga8 tion otherwise required under subpara9 graph (A) unless the complainant makes a

10 prima facie showing that any behavior de11 scribed in paragraphs (1) through (4) of

12 subsection (a) was a contributing factor in

13 the unfavorable personnel action alleged in

14 the complaint.

15 ‘‘(ii) SHOWING BY EMPLOYER.—Not16 withstanding a finding by the Secretary

17 that the complainant has made the show18 ing required under clause (i), no investiga19 tion otherwise required under subpara20 graph (A) shall be conducted if the em21 ployer demonstrates, by clear and con22 vincing evidence, that the employer would

23 have taken the same unfavorable personnel

24 action in the absence of that behavior.
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1 ‘‘(iii) CRITERIA FOR DETERMINATION

2 BY SECRETARY.—The Secretary may de3 termine that a violation of subsection (a)

4 has occurred only if the complainant dem5 onstrates that any behavior described in

6 paragraphs (1) through (4) of subsection

7 (a) was a contributing factor in the unfa8 vorable personnel action alleged in the

9 complaint.

10 ‘‘(iv) PROHIBITION.—Relief may not

11 be ordered under subparagraph (A) if the

12 employer demonstrates by clear and con13 vincing evidence that the employer would

14 have taken the same unfavorable personnel

15 action in the absence of that behavior.

16 ‘‘(3) FINAL ORDER.—

17 ‘‘(A) DEADLINE FOR ISSUANCE; SETTLE18 MENT AGREEMENTS.—

19 ‘‘(i) IN GENERAL.—Not later than

20 120 days after conclusion of a hearing

21 under paragraph (2), the Secretary of

22 Labor shall issue a final order that—

23 ‘‘(I) provides relief in accordance

24 with this paragraph; or

25 ‘‘(II) denies the complaint.
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1 ‘‘(ii) SETTLEMENT AGREEMENT.—At

2 any time before issuance of a final order

3 under this paragraph, a proceeding under

4 this subsection may be terminated on the

5 basis of a settlement agreement entered

6 into by the Secretary of Labor, the com7 plainant, and the air carrier, contractor, or

8 subcontractor alleged to have committed

9 the violation.

10 ‘‘(B) REMEDY.—If, in response to a com11 plaint filed under paragraph (1), the Secretary

12 of Labor determines that a violation of sub13 section (a) has occurred, the Secretary of Labor

14 shall order the air carrier, contractor, or sub15 contractor that the Secretary of Labor deter16 mines to have committed the violation to—

17 ‘‘(i) take action to abate the violation;

18 ‘‘(ii) reinstate the complainant to the

19 former position of the complainant and en20 sure the payment of compensation (includ21 ing back pay) and the restoration of terms,

22 conditions, and privileges associated with

23 the employment; and

24 ‘‘(iii) provide compensatory damages

25 to the complainant.
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1 ‘‘(C) COSTS OF COMPLAINT.—If the Sec2 retary of Labor issues a final order that pro3 vides for relief in accordance with this para4 graph, the Secretary of Labor, at the request of

5 the complainant, shall assess against the air

6 carrier, contractor, or subcontractor named in

7 the order an amount equal to the aggregate

8 amount of all costs and expenses (including at9 torney and expert witness fees) reasonably in10 curred by the complainant (as determined by

11 the Secretary of Labor) for, or in connection

12 with, the bringing of the complaint that re13 sulted in the issuance of the order.

14 ‘‘(4) FRIVOLOUS COMPLAINTS.—A complaint

15 brought under this section that is found to be frivo16 lous or to have been brought in bad faith shall be

17 governed by Rule 11 of the Federal Rules of Civil

18 Procedure.

19 ‘‘(5) REVIEW.—

20 ‘‘(A) APPEAL TO COURT OF APPEALS.—

21 ‘‘(i) IN GENERAL.—Not later than 60

22 days after a final order is issued under

23 paragraph (3), a person adversely affected

24 or aggrieved by that order may obtain re25 view of the order in the United States
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1 court of appeals for the circuit in which

2 the violation allegedly occurred or the cir3 cuit in which the complainant resided on

4 the date of that violation.

5 ‘‘(ii) REQUIREMENTS FOR JUDICIAL

6 REVIEW.—A review conducted under this

7 paragraph shall be conducted in accord8 ance with chapter 7 of title 5. The com9 mencement of proceedings under this sub10 paragraph shall not, unless ordered by the

11 court, operate as a stay of the order that

12 is the subject of the review.

13 ‘‘(B) LIMITATION ON COLLATERAL AT14 TACK.—An order referred to in subparagraph

15 (A) shall not be subject to judicial review in any

16 criminal or other civil proceeding.

17 ‘‘(6) ENFORCEMENT OF ORDER BY SECRETARY

18 OF LABOR.—

19 ‘‘(A) IN GENERAL.—If an air carrier, con20 tractor, or subcontractor named in an order

21 issued under paragraph (3) fails to comply with

22 the order, the Secretary of Labor may file a

23 civil action in the United States district court

24 for the district in which the violation occurred

25 to enforce that order.
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1 ‘‘(B) RELIEF.—In any action brought

2 under this paragraph, the district court shall

3 have jurisdiction to grant any appropriate form

4 of relief, including injunctive relief and compen5 satory damages.

6 ‘‘(7) ENFORCEMENT OF ORDER BY PARTIES.—

7 ‘‘(A) COMMENCEMENT OF ACTION.—A per8 son on whose behalf an order is issued under

9 paragraph (3) may commence a civil action

10 against the air carrier, contractor, or subcon11 tractor named in the order to require compli12 ance with the order. The appropriate United

13 States district court shall have jurisdiction,

14 without regard to the amount in controversy or

15 the citizenship of the parties, to enforce the

16 order.

17 ‘‘(B) ATTORNEY FEES.—In issuing any

18 final order under this paragraph, the court may

19 award costs of litigation (including reasonable

20 attorney and expert witness fees) to any party

21 if the court determines that the awarding of

22 those costs is appropriate.

23 ‘‘(c) MANDAMUS.—Any nondiscretionary duty im24 posed by this section shall be enforceable in a mandamus

25 proceeding brought under section 1361 of title 28.
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1 ‘‘(d) NONAPPLICABILITY TO DELIBERATE VIOLA2 TIONS.—Subsection (a) shall not apply with respect to an

3 employee of an air carrier, or contractor or subcontractor

4 of an air carrier who, acting without direction from the

5 air carrier (or an agent, contractor, or subcontractor of

6 the air carrier), deliberately causes a violation of any re7 quirement relating to air carrier safety under this subtitle

8 or any other law of the United States.

9 ‘‘(e) CONTRACTOR DEFINED.—In this section, the

10 term ‘contractor’ means a company that performs safety11 sensitive functions by contract for an air carrier.’’.

12 (b) CONFORMING AMENDMENT.—The analysis for

13 chapter 421 of title 49, United States Code, is amended

14 by adding at the end the following:

‘‘SUBCHAPTER III—WHISTLEBLOWER PROTECTION PROGRAM

‘‘42121. Protection of employees providing air safety information.

15 (c) CIVIL PENALTY.—Section 46301(a)(1)(A) of title

16 49, United States Code, is amended by striking ‘‘sub17 chapter II of chapter 421,’’ and inserting ‘‘subchapter II

18 or III of chapter 421,’’.

19 SEC. 3. DEPUTIZING OF STATE AND LOCAL LAW ENFORCE20 MENT OFFICERS.

21 (a) DEFINITIONS.—In this section:
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1 (1) AIRCRAFT.—The term ‘‘aircraft’’ has the

2 meaning given that term in section 40102 of title

3 49, United States Code.

4 (2) AIR TRANSPORTATION.—The term ‘‘air

5 transportation’’ has the meaning given that term in

6 section 40102 of title 49, United States Code.

7 (3) ATTORNEY GENERAL.—The term ‘‘Attorney

8 General’’ means the Attorney General of the United

9 States.

10 (b) ESTABLISHMENT OF A PROGRAM TO DEPUTIZED

11 LOCAL LAW ENFORCEMENT OFFICERS.—

12 (1) IN GENERAL.—Not later than 180 days

13 after the date of enactment of this Act, the Attorney

14 General shall—

15 (A) establish a program under which the

16 Attorney General may deputize State and local

17 law enforcement officers as Deputy United

18 States Marshals for the limited purpose of en19 forcing Federal laws that regulate security on

20 board aircraft, including laws relating to vio21 lent, abusive, or disruptive behavior by pas22 sengers of air transportation; and

23 (B) encourage the participation of law en24 forcement officers of State and local govern-
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1 ments in the program established under sub2 paragraph (A).

3 (2) CONSULTATION.—In establishing the pro4 gram under paragraph (1), the Attorney General

5 shall consult with appropriate officials of—

6 (A) the Federal Government (including the

7 Administrator of the Federal Aviation Adminis8 tration or a designated representative of the

9 Administrator); and

10 (B) State and local governments in any ge11 ographic area in which the program may oper12 ate.

13 (3) TRAINING AND BACKGROUND OF LAW EN14 FORCEMENT OFFICERS.—

15 (A) IN GENERAL.—Under the program es16 tablished under this subsection, to qualify to

17 serve as a Deputy United States Marshal under

18 the program, a State or local law enforcement

19 officer shall—

20 (i) meet the minimum background

21 and training requirements for a law en22 forcement officer under part 107 of title

23 14, Code of Federal Regulations (or equiv24 alent requirements established by the At25 torney General); and
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1 (ii) receive approval to participate in

2 the program from the State or local law

3 enforcement agency that is the employer of

4 that law enforcement officer.

5 (B) TRAINING NOT FEDERAL RESPONSI6 BILITY.—The Federal Government shall not be

7 responsible for providing to a State or local law

8 enforcement officer the training required to

9 meet the training requirements under subpara10 graph (A)(i). Nothing in this subsection may be

11 construed to grant any such law enforcement

12 officer the right to attend any institution of the

13 Federal Government established to provide

14 training to law enforcement officers of the Fed15 eral Government.

16 (c) POWERS AND STATUS OF DEPUTIZED LAW EN17 FORCEMENT OFFICERS.—

18 (1) IN GENERAL.—Subject to paragraph (2), a

19 State or local law enforcement officer that is depu20 tized as a Deputy United States Marshal under the

21 program established under subsection (b) may arrest

22 and apprehend an individual suspected of violating

23 any Federal law described in subsection (b)(1)(A),

24 including any individual who violates a provision

25 subject to a civil penalty under section 46301 of title
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1 49, United States Code, or section 46302, 46303,

2 46504, 46505, or 46507 of that title, or who com3 mits an act described in section 46506 of that title.

4 (2) LIMITATION.—The powers granted to a

5 State or local law enforcement officer deputized

6 under the program established under subsection (b)

7 shall be limited to enforcing Federal laws relating to

8 security on board aircraft in flight.

9 (3) STATUS.—A State or local law enforcement

10 officer that is deputized as a Deputy United States

11 Marshal under the program established under sub12 section (b) shall not—

13 (A) be considered to be an employee of the

14 Federal Government; or

15 (B) receive compensation from the Federal

16 Government by reason of service as a Deputy

17 United States Marshal in the program.

18 (d) STATUTORY CONSTRUCTION.—Nothing in this

19 section may be construed to—

20 (1) grant a State or local law enforcement offi21 cer that is deputized under the program under sub22 section (b) the power to enforce any Federal law

23 that is not described in subsection (c); or

24 (2) limit the authority that a State or local law

25 enforcement officer may otherwise exercise in the ca-
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1 pacity under any other applicable State or Federal

2 law.

3 (e) REGULATIONS.—The Attorney General may pro4 mulgate such regulations as may be necessary to carry out

5 this section.

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