Legislative history of 49 U.S.C. §§ 40119, 44902

The provisions that are 49 U.S.C. Sections 40119(b) and 44902(b) were enacted in 1974 as part of the Air Transportation Security Act of 1974 [1] in response to a string of hijackings in the early 1970s. Public Law 93-366, enacted by Senate Bill No. 39 (“S. 39”), was entitled:

An act to amend the Federal Aviation Act of 1958 to implement the Convention for the Suppression of Unlawful Seizure of Aircraft; to provide a more effective program to prevent aircraft piracy; and other purposes.

The Act is divided into two Titles: Title I, the “Antihijacking Act of 1974,” and Title II, the “Air Transportation Act of 1974.” Our language of interest is part of Title II, which dealt with “prevention, deterrence and punishment for criminal offenses against the air transportation system.”

Although the legislative history for the Act is extensive, there was very little discussion about our sections. Discussion and debate focused on the extent to which it was appropriate to impose the death penalty on hijackers, the creation of a national police force that would ensure security at airports, and other issues unrelated to our language of interest.

A. Enactment of the Air Transportation Act of 1974

S. 39 was introduced on January 4, 1973 by Senator Cannon, Chair of the Subcommittee on Aviation, Senate Committee on Commerce. The bill was referred to the Senate Committee on Commerce, where it was amended. S. 39 passed the Senate on February 21, 1973 and was referred to the House Committee on Interstate and Foreign Commerce. The House of Representatives amended the bill and passed it “in lieu” of House of Representatives Bill No. 3858 (“H.R. 3858”). This amendment substituted the provisions of H.R. 3858 into S. 39. When the Senate refused to accept the House’s substitution amendments, a conference committee was formed in an attempt to reach a compromise.

The conferees agreed to a substitute for both the Senate amendments and the House bill. Thereafter, S.39 was submitted to the President for his approval. President Ford signed the bill on August 5, 1974, enacting Public Law 93-366.More...

B. Subsequent History

The only significant subsequent history appears to be a 1990 amendment to Section 44902(b), which is discussed below.

II. 49 U.S.C. § 40119

The current 49 U.S.C. § 40119 provides, in part:

Security and research and development activities

(a) General requirements.–The Under Secretary of Transportation for Security and the Administrator of the Federal Aviation Administration each shall conduct research (including behavioral research) and development activities appropriate to develop, modify, test, and evaluate a system, procedure, facility, or device to protect passengers and property against acts of criminal violence, aircraft piracy, and terrorism and to ensure security.

(b) Disclosure.–(1) Notwithstanding section 552 of title 5 and the establishment of a Department of Homeland Security, the Secretary of Transportation shall prescribe regulations prohibiting disclosure of information obtained or developed in ensuring security under this title if the Secretary of Transportation decides disclosing the information would–

(A) be an unwarranted invasion of personal privacy;

(B) reveal a trade secret or privileged or confidential commercial or financial information; or

(C) be detrimental to transportation safety.

49 U.S.C. § 40119 (emphasis added). Our focus is on subsection (b). It appears that the government’s best argument is that the secret regulations requiring passengers to show identification or submit to a more extensive search constitute “information developed in ensuring security under this title” that resulted from research and development activities to “develop, modify, and test” “systems” and “procedures” for determining and tracking which passengers pose a threat to passenger safety (i.e. “ensuring security”). The government asserts that disclosing the contents of the regulations would be “detrimental to transportation security.” Thus, the legislative history review paid particular attention to anything that might shed light on these phrases.

A. Air Transportation Act of 1974

The language of 49 U.S.C. § 40119 is not found in the original bill that was introduced and passed the Senate. The text was added by Congress when it amended the original Senate bill by substituting the provisions of H.R. 3858. The language, as initially proposed, provided, in relevant part:

RESEARCH AND DEVELOPMENT; CONFIDENTIAL INFORMATION

(d)(1) The Administrator shall conduct such research (including behavioral research) and development as he may deem appropriate to develop, modify, test, and evaluate systems, procedures, facilities, and devices to protect persons and property aboard aircraft in air transportation or intrastate air transportation against acts of criminal violence and aircraft piracy. . . .

(2) Notwithstanding section 552 of title 5, United States Code, relating to freedom of information, the Administrator shall prescribe such regulations as he may deem necessary to prohibit disclosure of any information obtained or developed in the conduct of research and development under this subsection if, in the opinion of the Administrator, the disclosure of such information-

(A) would constitute an unwarranted invasion of personal privacy (including, but not limited to, information contained in any personnel, medical, or similar file);

(B) would reveal trade secrets or privileged or confidential commercial or financial information obtained from any person; or

(C) would be detrimental to the safety of persons traveling in air transportation.

H.R. 3858 (emphasis added). The language that was ultimately enacted in 1974 is not substantively different.

There was very little discussion of this provision leading up to its enactment, but the Report of the Committee for Interstate Commerce to Accompany H.R. 3858 contains the following discussion of the relevant language:

The new section . . . requires that the Administrator shall conduct research, including behavioral research and development, to develop, modify, test and evaluate systems, procedures, facilities and devices to protect air travelers against acts of criminal violence and aircraft piracy. The Administrator shall prescribe regulations to prohibit disclosure of information obtained or developed under these activities notwithstanding the requirements of the Freedom of Information Act (5 U.S.C. 552) if disclosing the information would constitute an unwarranted invasion of personal privacy and reveal trade secrets or privileged or confidential commercial or financial information or would be detrimental to the safety of air travelers . . .

In the hearings leading to this report the Committee received testimony dissimilar from any received in previous hearings on antihijacking legislation. Essentially, this testimony was drawn from psychiatrists studying the problem both within the employment of the Federal Government and as outside or private specialists. Their testimony, that of representatives of the Executive departments and agencies, and representatives of the aviation industry including hijacked pilots disclosed that an urgent need for improved coordination of efforts to combat hijacking exists. In short, the various concerned entities—each seeking to curtail hijacking—oftentimes found themselves in competition rather than in cooperation in their striving for the common goal. Last year’s hearings clearly identified this problem, and following the hearings with the active participation of Committee members, the various government agencies, the crew members and managements of the air carriers and the outside medical experts, there have been substantial steps made toward the solution of converting competition into cooperation. Efforts in this area should be continued and increased, and the Committee believes that existing law coupled with the provision for behavioral research and development in the present legislation, provides ample statutory authority for improved coordination of efforts to combat hijacking.

Report No. 93-885 of the Committee for Interstate Commerce to Accompany H.R. 3858, March 7, 1974.

The overall discussion of the legislation describes the so-called “hijacker profile” that had been used to determine which passengers would be subject to searches. The profiling technique was criticized as inaccurate and difficult to apply. Senator Cannon, who sponsored the legislation, cited the shortcomings of the hijacker profiling technique as one reason for the need to screen all travelers and luggage with weapons detectors.

The original language, read with this explanation from the Committee Report and the legislative history surrounding the bill’s enactment, suggests that the nondisclosure provision was focused on protecting confidential information such as medical and psychiatric data used in behavioral research and development and reducing competition and increasing cooperation among experts, such as psychologists and other scientists, by protecting trade secrets and confidential business information.

Nothing in the legislative history provided by the service discusses or provides insight into the type of information which, if disclosed, would “be detrimental to the safety of persons traveling in air transportation.”

B. 1990 Amendment adding “security or” before “research and development activities”

In 1990, the 49 U.S.C. § 1357(d), the predecessor to 49 U.S.C. § 40119, provided:

(d) Research and development by Administrator of security systems, procedures, facilities, and devices; disclosure of confidential information

(1) The Administrator shall conduct such research (including behavioral research) and development as he may deem appropriate to develop, modify, test, and evaluate systems, procedures, facilities, and devices to protect persons and property aboard aircraft in air transportation or intrastate air transportation against acts of criminal violence and aircraft piracy.

(2) Notwithstanding section 552 of Title 5 relating to freedom of information, the Administrator shall prescribe such regulations as he may deem necessary to prohibit disclosure of any information obtained or developed in the conduct of research and development activities under this subsection if, in the opinion of the Administrator, the disclosure of such information–

(A) would constitute an unwarranted invasion of personal privacy (including, but not limited to, information contained in any personnel, medical, or similar file);

(B) would reveal trade secrets or privileged or confidential commercial or financial information obtained from any person; or

(C) would be detrimental to the safety of persons traveling in air transportation.

49 U.S.C. § 1357(d) (1990).

In 1990 Public Law 101-508 proposed to amend the provision by inserting “security or” before “research and development activities” and by striking “subsection” and inserting “title” in subparagraph (d)(2).[2] Public Law 101-508 was the product of H.R. 5835, commonly known as the Omnibus Budget Reconciliation Act of 1990. The amendment to the language of what is now 49 U.S.C. § 40110 was carried in Title IX “Transportation,” Subtitle B, “Aviation Safety and Capacity Expansion,” section 9121 “Sensitive Security Information” (“SSI”).

The change appears to have expanded the scope of information deemed to be Sensitive Security Information. It brought under the umbrella of information potentially protected from disclosure information obtained or developed in carrying out “security” in addition to information obtained or developed in the conduct of R&D.

Unfortunately, the legislative history surrounding the 1990 amendment provides no discussion about the amendment at all.

The bill was introduced in the House. The provision to amend the language regarding “Sensitive Security Information” was not present in the House bill initially. The House passed the House bill and referred it to the Senate. The Senate amended the bill and passed it “in lieu of” its own bill, substituting its own provisions into the House bill. When the House refused to accept the Senate’s substitution amendments, a conference committee was formed. The Conference Committee version of the bill was accompanied by a House Report, which contains a section-by-section comparison of the House, Senate, and Conference versions. The Report notes the proposed amendment, but provides no discussion on the section regarding sensitive security information.

The Committee version of the bill was signed into law by President George H. W. Bush on November 5, 1990.

The legislative history service reported that the CIS/Annual 1990 abstract of the legislative history of the public law is enormous. This is not surprising, given that the bill covers so many different areas. The service reviewed all of the reports in the CIS abstract on the general topic of aviation and included the relevant Conference Committee report. It also reviewed the hearings listed in that CIS history and provided those abstracts. The service also reviewed approximately 90 earlier bills that might have been relevant, of which only two carried the provision to amend the language. Those two bills included very little documentation.

Our contact at the legislative history service, an attorney who has specialized in federal legislative history research for ten years, said that she has never looked into a provision that was not even mentioned in the congressional reports. It appears that the provision amending the scope of SSI went into what was primarily a budget reconciliation bill without discussion. To the extent that this amendment expanded the scope of “information” exempt from FOIA disclosure, it appears to have slipped in under the radar.

The only reference to security throughout all of the legislative history provided by the service is in the CIS/Annual hearing abstracts, which describe a 1989 hearing before the Subcommittee on Transportation, Aviation, and Materials “to examine aviation security and issues related to terrorism in light of terrorist bombing of Pan American World Airways Flight 103 from Frankfurt, West Germany to the U.S., destroyed over Scotland on Dec. 21, 1988.” The hearing includes testimony by the FAA Administrator as well as Paul Bremer, the then Ambassador at Large of Counterterrorism with the State Department, providing an “overview of FAA and Department of State initiatives to improve aviation security in response to Pan Am Flight 103 explosion; problems and issues relating to enhancement of airport security.” Other witnesses testified regarding recommendations for increased aviation security, R&D for airport security technology, and other measures to prevent terrorist attacks on airliners. The transcript of this hearing has been ordered, and I will receive it on Friday, July 7. Perhaps it will shed some light on the amendment.

C. Subsequent amendments

The subsequent amendments do not appear to have been significant to our inquiry. In 1994, several words were omitted as surplus, including, in subsection (a), the words “as he may deem” and “aboard aircraft in air transportation or intrastate air transportation”; in subsection (b)(1), before clause (A), the words “relating to freedom of information”, “as he may deem necessary”, and “in the conduct of research and development activities”; in clause (A), the words “(including, but not limited to, information contained in any personnel, medical, or similar file)”; in clause (B), the words “obtained from any person”; in clause (C), the word “traveling.” In subsection (b)(2), the word “duly” was omitted as surplus and the words “to have the information” were added for clarity.

In 2001, amendments replaced “Administrator of the Federal Aviation Administration” and “Administrator” with “Under Secretary of Transportation for Security” and “Secretary,” respectively. The 2001 amendments also struck out “air” preceding “transportation” in subparagraph (b)(1)(C).

The 2002 amendments inserted “and the Administrator of the Federal Aviation Administration each” following “for Security” in subsection (a) and substituted “acts of criminal violence, aircraft piracy, and terrorism and to ensure security” for “acts of criminal violence and aircraft piracy.” This was in response to 9/11.

In subsection (b)(1)(C) “transportation safety” was substituted for “the safety of passengers in transportation”.


III. 49 U.S.C. § 44902

In its current form, 49 U.S.C. § 44902 provides:

Refusal to transport passengers and property.

(a) Mandatory refusal.–The Under Secretary of Transportation for Security shall prescribe regulations requiring an air carrier, intrastate air carrier, or foreign air carrier to refuse to transport–

(1) a passenger who does not consent to a search under section 44901(a) of this title establishing whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance; or

(2) property of a passenger who does not consent to a search of the property establishing whether the property unlawfully contains a dangerous weapon, explosive, or other destructive substance.

(b) Permissive refusal.–Subject to regulations of the Under Secretary, an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.
49 U.S.C. § 44902 (emphasis added). We are primarily concerned with subsection (b).

A. 1958 Federal Aviation Act and 1961 Amendments

The language that is now subsection (b) of 49 U.S.C. § 44902 first appeared in the Federal Aviation Act of 1958, as amended in 1961:

Subject to reasonable rules and regulations prescribed by the Administrator, any air carrier is authorized to refuse transportation to a passenger or to refuse to transport property when, in the opinion of the air carrier, such transportation would or might be inimical to safety of flight.

Federal Aviation Act, Title XI, Section 111 (1961).

The legislative history service did not initially provide the history for the original enactment of this language in 1958, or the 1961 amendments. The service is currently working to obtain this history, which may shed more light on this language of interest, and the meaning of the phrase “would or might be inimical to safety.”

B. Air Transportation Security Act of 1974

What is now subsection (a) of 49 U.S.C. § 44902 was added as part of the Air Transportation Security Act of 1974. Our language of focus, the current subsection (b), was not substantively amended in the 1974 Act.

The discussion and debates focused primarily on the newly proposed language that now makes up subsection (a), so does not shed much light on the meaning of subsection (b). The House, Senate, and Committee versions contained the same language for subsection (b) and the provision was not disputed. There is no discussion of the meaning of the phrase “would or might be inimical to safety.”

It may be worth noting that, related to another section of the Act that was not reviewed for purposes of the brief, there was a great deal of discussion and concern surrounding personal searches of passengers (including frisk searches) beyond the less invasive searches involved when passengers are asked to walk through metal detectors. Proposed amendments on the section dealing with procedures for screening passengers stated that no person should be frisked or searched unless identified by a weapons detection device as a person who is reasonably likely to be carrying unlawfully a concealed weapon and before he has been given an opportunity to remove objects which would have evoked a positive response from the weapons detection device, and unless he consents to the search. If a passenger denies consent for a personal search, he shall be denied the opportunity to board, but shall be free to leave.

C. Subsequent amendments

Subsequent amendments to subsection (b) were not substantive. The word “reasonable” preceding “regulations” was eventually deleted as surplus.



[1] A key portion of 49 U.S.C. § 44902 was initially enacted in either 1958 or 1961. This is discussed below.
[2] Review of the provision from 1990 (when it was 49 App. U.S.C. 1357) through 2002 indicates that the word “title” was not actually substituted for “subsection” in 1990. Rather, the applicable scope of the provision was first expanded from “this subsection” to “this subchapter” in 1991. In 1994, the scope was expanded again to apply to several enumerated sections of Title 49. Finally, in 2002, the scope was expanded to apply to the entire title.

One Response to “Legislative history of 49 U.S.C. §§ 40119, 44902”

  1. gnu Says:

    PL 101-508 didn\’t include the language initially, and the language appeared in the final law, but was it in the Senate version? Or was it slipped \”under the radar\” in the conference committee?

    If your leg history analyst wants to see another example of an under-the-radar change, have them look up the \”roving wiretap\” privisions. These were neither in the Senate nor the House bill when first passed, but appeared sui generis in the conf committee report (with a \”do pass\” reccommendation that resulted in nobody reading the bill before passage). It\’s a favorite trick of the scumbags, reserved for the worst provisions.