Secretary, do you recall that in 1970 you sent a proposal to Congress to appropriate from the airport and airways trust fund money sufficient to fund the sky marshal program which was devised by your Department and the Department of the Treasury?

Secretary VOLPE. I do remember that, sir.

Senator CANNON. Give your present view that the prevention of aircraft piracy is now a responsibility of local government, why at that time did you request Federal funds to pay for the sky marshal program?

Secretary VOLPE. Because again, Mr. Chairman, we are faced with an emergency. I think a prudent man is going to take into consideration the experience that he gains as he goes through these things. At that time we had witnessed the bombing of three very expensive planes and other matters and it seemed that it was essential something be done very, very rapidly. Here we had a different situation. Over 80 airports had already voluntarily put in place the things we later required in our regulations.

Senator CANNON. Are you suggesting by what you have said now that these things mustn't be done very, very rapidly? These operators now are confronted with a February 6 deadline or $1,000 a day fine; wouldn't you say that it is quite impossible to train a police force in that short time period? In some cases men whom you spoke of earlier, the sky marshals, were flying all over the world. A good many were stationed on international flights.

That is usually what happens, if a hijacking occurs. The flight goes a number of different places, instead of staying at that one particular airport where you are going to have Joe Dokes enforcing the law; isn't that correct?

Secretary VOLPE. Except, Mr. Chairman, Joe Dokes down there is not going to be just Joe Dokes. He is going to be a man well trained in his particular capacity, and in addition to which he is going to have supervision by the Federal Aviation Administration. The Federal Government isn't going to just wash its hands of this thing; it shouldn't and I don't believe it will, in any way.

Senator CANNON. I am glad to hear you say he is going to be well trained because the testimony yesterday from the airport operators from various parts of the United States pointed out that it takes 120 to 180 days minimum to hire, train, equip, and place a policeman in service. Now, the deadline that you have called for in your emergency regulation is February 6. I am sure you are aware that it would be impossible to even hire, let alone begin to train, this requisite number of policemen by February 6. Are you going to impose a fine of $1,000 a day until these operators have their policemen fully trained?

Secretary VOLPE. Mr. Chairman, if I felt that there were no other way to get this job done, if I were on the job at the time—and I probably will not be I certainly would use some commonsense and good judgment in applying the measures that ought to be taken. On the other hand, there are 1,200 to 1,300 men that are well trained right now, that are available for employment by local communities, and many of the communities already have some of these well-trained men at their airports. Therefore, I don't think that timely compliance with our regulations is going to present any hardship except possibly in some relatively few cases, as I indicated earlier.

Senator CANNON. In other words, if you were in charge, you would be very reasonable in those cases and be very lenient as far as imposing penalties?

Secretary VOLPE. I would certainly, I think as any prudent man would, Mr. Chairman, look at the effort they had made. And I would look at whether or not they had made a determined and good effort. And if the indications were that they had made a truly reasonable effort to get the job done, and circumstances beyond their control occurred which prevented them from doing so, certainly I would use the kind of commonsense you would expect me to use.

Senator CANNON. Is that what you did in the case of Tyler, Tex., where you imposed a $1,000 fine per day when the security plan they submitted was 1 day late?

Secretary VOLPE. They indicated to us they were not going to submit a plan.

Senator CANNON. I am advised by the FAA this morning that Tyler, Tex., submitted a security plan 1 day late and that's one of the four cities that you imposed a $1,000-a-day fine against.

Secretary VOLPE. That was after the notice that a fine would be imposed of $1,000 per day. They changed their mind very quickly. Senator CANNON. But you have imposed that fine on them?

Secretary VOLPE. Yes, it was not a burden upon them just to file a plan; over 520 airports did file on time.

Senator CANNON. Mr. Secretary, during the testimony yesterday before the committee, it was stated that a lack of central coordination and direction of the antihijacking program has resulted in confusion, delay, and ineffectiveness in dealing with hijackings which are underway. How do you expect to achieve a national coordinated program when 531 separate agencies, all following their own policies, are expected to prevent hijackings and to deal with hijackings when they occur?

Secretary VOLPE. Mr. Chairman, they are not dealing with these hijackings on their own individual wisdom or their own individual regulations; they are doing it in accordance with regulations that have been established by the Federal Government. And the fact is that we don't intend to walk away from this at all. The fact is that the FAA is going to be continually monitoring the situation, helping wherever they can, and the FBI isn't going to walk away from this situation. It is going to be available to these local communities for help as they require it. And so I don't think the Federal Government is walking away from a responsibility.

Senator CANNON. Well, now, the testimony from Southern Airway, yesterday certainly didn't support your statement, that this is going to be coordinated by the Federal Government. And I would like to point out to you also that a survey of the Department of Justice, which was referred to yesterday, indicates that in 18 States where more than 40 percent of all airline passengers are enplaned, local and State authorities have no statutory authority to detain or make arrests of persons suspected of violating Federal statutes. Now, what legal authority does the Department expect these jurisdictions to use when seeking to enforce Federal statutes?

Secretary VOLPE. May I ask my general counsel to answer that? Senator CANNON. Yes, sir.

Mr. BARNUM. We have been informed by the Department of Justice that there are at least 40 States where local law enforcement officials are, by State law, authorized to enforce Federal statutes. And it is a question of State law whether or not a State policeman may enforce a Federal statute. The number is 40, not, on your arithmetic, 32; but Assistant Attorney General Cramton is to be here today and, of course, he can clarify that.

Senator CANNON. Well, the testimony from AOCI disputes your figures there. I don't know which is correct.

Mr. BARNUM. I wish the AOCI had told us that when we met with AOCI in early December on the occasion of the announcement of these regulations. This specifically was asked and I gave the figure "40." So if they came in here yesterday and said the figure "32," they said it to you and not to us.

Senator Cook. I wouldn't fuss at them too much, really, because they didn't really realize this was coming until they got it on the 5th of December.

Mr. BARNUM. And we think their response has been exceptionally good, Senator Cook.

Senator Cook. Good.

Mr. BARNUM. But if there is a question on this figure, we ourselves have looked to the Justice Department which, in turn, has referred to the U.S. attorneys throughout the country a questionnaire regarding the status of the law in the local jurisdictions. May I just pursue the second half of your question? In the absence of a State statute specifically permitting State law enforcement officials to enforce a Federal law, there is, of course, the simple fact that in many of the acts with which we are dealing, carrying a concealed weapon is in fact a State offense. And the State official is obviously empowered to enforce his own State law with respect to carrying concealed weapons. One of the things which the bill we proposed will do will be to raise from a misdemeanor level to a felony level the carrying of a concealed weapon onto an aircraft. And that in itself, I am informed by the Justice Department, will enable additional States to have their State law enforcement officials enforce the State law, there being the distinction in some States that State law enforcement officials may enforce a Federal felony, but may not enforce a Federal misdemeanor. Senator CANNON. I think one of the big problems of concealed weapons is that the ordinary local officer cannot search for a concealed weapon without a warrant. This is a major point and that is the situation in many of the States today. Whether you argue about 32 or 38 States, my question is what are the other 10 States, what do the other States do in situations of this sort? It is obviously a problem that can't now be handled uniformly across the board under the present law.

Mr. BARNUM. Well, of course, we are talking initially about having the airline personnel conduct the search for the weapon by the use of the electronic metal detector or by the physical search of the carryon baggage. The local law enforcement official is there to support the airline personnel when, for example, a weapon is found. That's why

he is there. And I don't know of any State where if an airlines official has found a gun in a briefcase of an individual and pulls it out and shows it to the local law enforcement official, the local law enforcement official can't take appropriate action.

Senator CANNON. Can you provide the committee with information in which the U.S. Government has forced local law enforcement people to enforce provisions of Federal law statutes? If you can, I would like to have those for the committee.

Mr. BARNUM. I would be pleased to supply them for the record. (The following information was subsequently received for the record :)

Hon. HOWARD W. CANNON,

OFFICE OF THE SECRETARY OF TRANSPORTATION,
Washington, D.C., January 19, 1973.

Chairman, Committee on Commerce, Subcommittee on Aviation, U.S. Senate. Washington, D.C.

DEAR SENATOR CANNON: In the course of the hearing, you asked me whether I could "provide the Committee with information in which the U.S. Government has forced local law enforcement people to enforce provisions of Federal law". In our discussions with other agencies of Government, we have been unable to find other situations entirely analogous to the use of local law enforcement officers in the hijacking program. The basic principle of law involved has been stated very clearly, however, by the Supreme Court in Testa v. Katt, 330 U.S. 386 (1947). That case involved the issue whether a State court was required to enforce a Federal penal law. The Court held that, under the Supremacy Clause of the Constitution, a State did not have a right to refuse to enforce a valid Federal statute. This principle would apply to an officer of a State.

There are numerous statutes placing obligations on the States to take action to carry out a Federal requirement. For example, the Voting Rights Act requires States to register certain people for voting regardless of State law (42 U.S.C. § 1973aa-1). Similarly, the Federal Clean Air Act requires States to submit State implementation plans for achieving air quality standards. In these instances, the States are compelled to exercise their powers to carry out the objectives of Federal statutes.

Another consideration present in the case of the Federal regulation requiring law enforcement support to deter hijacking is the fact that the State itself, through one of its instrumentalities, is operating a facility engaged in interstate commerce, i.e., the airport. The Federal Government has plenary authority over interstate commerce and the principle is well established that, in the exercise of this authority, the Government can impose obligations requiring the incurrence of substantial costs on those engaged in interstate commerce. When a State or local government undertakes to engage in interstate commerce through the operation of an airport, by force of the Constitution, it subjects itself to such regulation by the Federal Government.

A Federal rule compelling an airport operator to provide law enforcement during the boarding process cannot be distinguished from the requirement placed on an air carrier engaged in interstate commerce to provide screening personnel at the boarding gate. Both requirements are imposed as a condition to the right to engage in interstate commerce. Nor does the requirement differ from other security or safety requirements placed upon airport operators by Federal regulation, such as the need for fencing and fire-fighting equipment. In the case of the latter, the operator necessarily has to provide personnel capable of operating the equipment.

To summarize, the Supreme Court has held that States have an affirmative obligation to enforce Fderal laws. State and local agencies as operators of airports are not immune from Federal regulation. In the case at issue, the requirement is that a person be present during the boarding process who is authorized to carry and use firearms, vested with the power of arrest, and identifiable by some indicia of authority. The obligation imposed by the regulation is the presence of such a person; that person's duty to arrest for a violation of Federal law during boarding flows from the Constitution.

Sincerely,

JOHN W. Barnum.

The CHAIRMAN. I am glad you differentiated on weapons; you used the word concealed weapons. Out in my country, people take airplanes to go hunting sometimes and their weapons are not concealed, they just have them in a bag there. Tell them I have got a shotgun in there, I am going to hunt ducks, and that is not included in this at all; is it? Senator CANNON. Yes: it is.

The CHAIRMAN. Is it included? They can't get aboard with shells? There was two guys Sunday going over to Montana hunting; they had an awful time.

Senator CANNON. Do you have some questions for him?

The CHAIRMAN. I want something cleared up. Under the plan you have suggested, if the air fares are increased to cover this added cost, would they pass that on to the airport for them to hire security, or how would the airport get reimbursed if they had to hire security, from the airline, increased landing fees, or how would

Secretary VOLPE. The airport operator would be reimbursed by the airline.

The CHAIRMAN. For what he did?

Secretary VOLPE. That's correct.

The CHAIRMAN. It would be passed on to the airport operator for the added number of personnel he put on?

Secretary VOLPE. If he had to put on 10 additional people for instance, or only one or a quarter

The CHAIRMAN. So nothing will go direct to the airport?
Secretary VOLPE. No.

The CHAIRMAN. That is what I wanted to clear up.

Senator Cook, this is under the plan you suggest. Why don't you go ahead?

Senator Cook. Mr. Secretary, we will start off by saying I have been a great advocate of yours, but on this subject you and I just happen to disagree 180 degrees, and let me tell you some of the reasons we do, and let me tell you some of the horrible fallacies in your statement.

You have imposed as of yesterday a $1,000 fine on Aspen and Tyler, Tex., Marquette, Mich., and Prescott, Ariz.

Now you have spent almost two pages in your statement saying that it would be ridiculous for the Federal Government to assume this burden because the operation is unnecessarily costly and wasteful. And then you go into detail that, for example, some 200 airports board only 50 passengers a day, and yet you are saying by edict to that local airport, "it may be unnecessarily costly and wasteful to us, but if you don't do it, it's going to cost you $1,000 a day." Now, how can you really justify that?

Secretary VOLPE. I have a general counsel who told me that I could. Senator Cook. I am talking about in your own mind, not as a matter of fact that you have the authority and your agency has the authority to impose a $1,000 a day fine because you have the regulations to say the Federal Government can impose on local agencies millions and millions and millions of dollars of mandatory costs. And yet you sit here in your statement and you say, now let me give you an example, because these operations are unnecessarily costly and wasteful.