should be completed prior to reaching the airport so as to ensure that it is accomplished where adequate time, resources, facilities and personnel are available to properly complete the inspection. We believe that the air carrier should not be responsible for screening any cargo other than that which is tendered directly to the carrier by a party other than a freight forwarder or the USPS. All other mail and freight should be screened by these parties in accordance with the development of the technology to do so. THREAT NOTIFICATION ALPA has had a long-standing concern about the lack of timely and adequate threat information that reaches the cockpit crew. Although the pilot in command (captain) is, by regulation, required to be the final authority as to the conduct of the flight, in numerous cases he is not given adequate information to make informed operational decisions. Based on our knowledge of the events surrounding the destruction of Pan Am 103, it is our belief that had the captain been advised of all known threat information, he would have taken special precautions that could very well have detected the explosive device that brought the airplane down. It is essential that air carriers be required to develop guidelines to ensure that the captain is aware of all threat information relating to his flight so he can make informed decisions about how best to counter it. We do not disagree with the intent of the bill with respect to public notification. We believe that the public should be made aware of a threat when it is so prevalent that the carrier cannot ensure the security of a flight. As an example, the government should restrict or prohibit airline travel to a country which has made overt threats to the safety of the U.S. and its citizens. For a threat made against a particular flight or category of flights, the carrier is required to counter them with the assistance of the FAA and other federal agencies. If it is determined that the threat cannot be effectively countered, passengers should be notified of that and the flight canceled or delayed. We do not believe it to be wise or necessary for any threats other than those which cannot be countered to be made known to the public. TRAINING OF AIR CARRIER PERSONNEL ALPA has made repeated requests to the FAA for that agency to better enforce its requirements for training of Ground Security and Inflight Security Coordinators. We are most pleased that Congress has recognized FAA's failings in this regard and is now calling for it to make amends. This training will help to ensure that the captain is kept "in the loop" on threat notification and will prompt greater overall security awareness by all airline operations employees. FOREIGN AIR CARRIER SECURITY We endorse the bill's provision that calls for enhanced security measures to be adopted by foreign carriers. There is apparently a misconception by much of the travelling public that foreign carriers do not receive threats or suffer attacks to the same extent as U.S. carriers. In actuality, some non-U.S. carriers have been attacked more frequently than U.S. airlines and they do not have the same level of security as the U.S. specifies for its carriers. ALPA appreciates the opportunity to provide these comments to the committees and stands ready to assist in any way you might deem appropriate. SUBJECT : Aviation Security: Liability Aspects of H.R. 5732, the INTRODUCTION The proposed Aviation Security Improvement Act of 1990' provides various means to combat domestic and international aviation terrorism. As part of the legislative proposal to address aviation terrorism, the bill creates the positions of various federal officials who are to deal with aviation security: Assistant Secretary for Transportation Security and Intelligence, Assistant Administrator of Civil Aviation Security, federal security managers, and foreign security liaison officers. The bill gives these officials/officers direct involvement in the management of domestic and international aviation security. Particular interest has focused on section 109 of the bill, which deals with threats to civil aviation and public notification procedures. This section requires that the appropriate federal aviation official be notified of any threat to civil aviation. If the threat cannot be addressed to ensure passenger safety, the Administrator of the Federal Aviation Administration ("Administrator") is required to cancel the threatened flight(s). Official guidelines for ensuring notification to the public and to flight and cabin crews of threats to civil 1 H.R. 5732, 101st Cong., 2d Seas. (1990). The House Committee on Public Works and Transportation ("Committee") reported out H.R. 5732 as a clean bill in lieu of H.R. 5200. H.R. 5200, 101st Cong., 2d Sess. (1990). The Committee held hearings on H.R. 5200 on July 26, 1990. CRS-2 aviation in appropriate cases are to be developed. These guidelines are to identify the appropriate officials to 1) determine if public notification of a threat is in the interest of the country and the traveling public; 2) ensure that appropriate public notification is made in a timely and effective manner; and 3) cancel the departure of a flight or series of flights. These guidelines are required to take into consideration the specificity and severity of the threat, the credibility of the threat, the ability to counter the threat, the protection of intelligence information and methods, the cancellation of a flight(s) instead of public notification, the ability of passengers and crews to reduce their safety risks as a result of notification, and other appropriate factors. Selective notification of threats to civil aviation to certain potential travelers is prohibited. The guidelines are to be distributed for use by the Department of Transportation, the Department of State, the Department of Justice, and air carriers. The section further requires that the Administrator, along with the Secretary of State, the Attorney General, intelligence agencies, law enforcement officials, and others involved in the collection and analysis of aviation security information develop procedures to limit the number of persons having access to threat information, although such restriction is not to diminish the government's ability to discharge its responsibilities regarding aviation security. The section also provides for conforming amendments. If enacted, section 109 would mandate new federal involvement with aviation security. This gives rise to questions regarding the possible effect, on federal and on airline liability, of federal action or inaction in connection with aviation security. We analyze these issues below. ANALYSIS A. Federal Liability The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, makes the United States liable for the torts of its employees to the extent that private employers are liable under state law for the torts of their employees. However, the Act contains exceptions under which the United States may not be held liable even though a private employer would be held liable under state law. In addition, the Act prohibits suits against federal employees for torts committed within the scope of their employment, except where the employee violates the Constitution or a federal statute. 28 U.S.C. § 2679(b). Even in those cases, however, if the plaintiff wins a judgment against the United States, then his action against the employee becomes barred. 28 U.S.C. § 2676. Some of the Act's exceptions to governmental liability would preclude liability in some cases that might arise under the bill. For example, the Act precludes governmental liability in the case of "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, CRS-3 during time of war," and in the case of "[a]ny claim arising in a foreign country." 28 U.S.C. § 2680(j),(k). Another exception provides that the government shall not be liable for any claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). This far-reaching provision, known as the "discretionary function exception," immunizes the United States from liability for acts of its employees even if negligent that involve policy judgments. The Supreme Court has explained that the discretion protected by the exception - is the discretion of the executive or administrator to act includes more than the initiation of programs and The rationale for the discretionary function exception was "to prevent judicial 'second-guessing' of legislative and administrative decisions founded in social, economic, and political policy through the medium of an action in tort." #7 In its most recent explication of the discretionary function exception, the Supreme Court held that "the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive."8 The Court distinguished between a federal employee's discretion to make policy judgments and his lack of discretion as to complying with those judgments once they are made. Section 109 of the bill mandates the development of "guidelines for ensuring notification to the public of threats to civil aviation in appropriate cases." Using these guidelines, federal officials would determine, "on a caseby-case basis, if public notification of a threat is in the best interest of the United States and the traveling public," would ensure "that public notification, |