[Senate Report 111-387]
[From the U.S. Government Publishing Office]
Calendar No. 708
111th Congress
2d Session SENATE Report
111-387
_______________________________________________________________________
AMERICAN COMMUNITIES' RIGHT TO PUBLIC INFORMATION ACT
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 1274
December 22, 2010.--Ordered to be printed
U.S. GOVERNMENT PRINTING OFFICE
99-010 WASHINGTON : 2010
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred eleventh congress
second session
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota JOHN ENSIGN, Nevada
BARBARA BOXER, California JIM DeMINT, South Carolina
BILL NELSON, Florida JOHN THUNE, South Dakota
MARIA CANTWELL, Washington ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey GEORGE S. LeMIEUX, Florida
MARK PRYOR, Arkansas JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri DAVID VITTER, Louisiana
AMY KLOBUCHAR, Minnesota SAM BROWNBACK, Kansas
TOM UDALL, New Mexico MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
Ellen Doneski, Staff Director
James Reid, Deputy Staff Director
Bruce Andrews, General Counsel
Ann Begeman, Republican Staff Director
Brian Hendricks, Republican General Counsel
Todd Bertoson, Republican Senior Counsel
Calendar No. 708
111th Congress Report
SENATE
2d Session 111-387
======================================================================
AMERICAN COMMUNITIES' RIGHT TO PUBLIC INFORMATION ACT
_______
December 22, 2010.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Commerce, Science, and
Transportation, submitted the following
REPORT
[To accompany S. 1274]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 1274) to amend title 46, United
States Code, to ensure that the prohibition on disclosure of
maritime and aviation transportation security information is
not used inappropriately to shield certain other information
from public disclosure, and for other purposes, having
considered the same, reports favorably thereon with an
amendment (in the nature of a substitute) and recommends that
the bill (as amended) do pass.
Purpose of the Bill
The purpose of the American Communities' Right to Public
Information Act, S. 1274, is to make sure that the prohibition
on disclosure of maritime and aviation transportation security
information is not used inappropriately to shield certain other
information from public disclosure.
Background and Needs
Under the authority of the Maritime Transportation Security
Act of 2002 (MTSA) and the Aviation and Transportation Security
Act of 2001, the Coast Guard and the Transportation Security
Administration (TSA) have the statutory authority to designate
certain kinds of information as ``Sensitive Security
Information'' (SSI), if they determine that publicly releasing
the information will be ``detrimental to the security of
transportation.'' These agencies have published a detailed set
of regulations describing the process through which information
may be designated SSI (49 CFR Chapter XII Part 1520). Once
information has been designated as SSI, employees of the Coast
Guard, TSA, and other ``covered persons,'' including owners and
operators of maritime facilities, are required to safeguard the
information.
The SSI designation system is not related to the national
security classification system, through which Federal agencies
classify information as ``Confidential,'' ``Secret,'' or ``Top
Secret.'' The standards for classifying national security
information are developed by the executive branch through a
Presidential Executive Order.
A 2009 investigation into a chemical facility accident
uncovered a troubling case in which a ``covered'' private
entity attempted to use the SSI designation to improperly
withhold information from the public. On August 28, 2008, a
chemical explosion at the Bayer CropScience facility in
Institute, West Virginia, killed two workers and potentially
exposed tens of thousands of citizens to toxic chemicals.
Because the Bayer facility is located on the Kanawha River, its
security plans fall under the jurisdiction of the MTSA.
In the course of an investigation by the Chemical Safety
Board and a later investigation by the House Committee on
Energy and Commerce Subcommittee on Oversight and
Investigations, Bayer officials admitted they had sought to
designate certain information as SSI, even though the
information was not related to transportation security. In
April 2009, Bayer's CEO testified before the Oversight and
Investigations Subcommittee that the company invoked the SSI
designation, in part, to avoid public disclosure and debate
about the large quantities of methyl isocyanate (MIC) stored
above ground at the Institute facility.\1\
---------------------------------------------------------------------------
\1\ Hearing before the House of Representatives Committee on Energy
and Commerce, Subcommittee on Oversight and Investigations, on
``Secrecy in Response to Bayer's Fatal Chemical Plant Explosion'' April
21, 2009, testimony of William B. Buckner.
---------------------------------------------------------------------------
Summary of Provisions
S. 1274 amends the SSI statutes to clarify that an agency or
a private company subject to SSI requirements cannot use the
SSI designation to conceal misconduct, prevent embarrassment,
or delay the release of information that should be released to
the public. This clarifying language is nearly identical to
language used in the current Executive Order governing national
security information (Exec. Order No. 13526), which governs all
executive branch officials charged with classifying information
as ``Confidential,'' ``Secret,'' or ``Top Secret.''
Legislative History
S. 1274 was introduced on June 16, 2009, by Senator
Rockefeller, the chairman of the Committee on Commerce,
Science, and Transportation. The bill was co-sponsored by
Senator Byrd. On July 21, 2009, the Committee met in open
executive session and, by voice vote, ordered S. 1274 reported
with an amendment in the nature of a substitute. The text of S.
1274 was included as section 561 of the Fiscal Year 2010
Department of Homeland Security Appropriations Act (P.L. 111-
83), which was signed into law on October 28, 2009.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 1274--American Communities' Right to Public Information Act
S. 1274 would clarify existing law to limit the
circumstances under which the federal government may withhold
information contained in security plans for maritime
transportation. Based on information provided by the U.S. Coast
Guard, CBO estimates that implementing the bill would have no
effect on the federal budget because the proposed standards on
nondisclosure of information are the same as those currently
followed by federal agencies.
The bill contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Deborah Reis.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
Because S. 1274 clarifies the existing law governing the
circumstances under which the Federal Government may withhold
certain transportation security information, the legislation
will have no additional regulatory impact, and will result in
no additional reporting requirements. The legislation will have
no further effect on the number or types of individuals and
businesses regulated, the economic impact of such regulation,
the personal privacy of affected individuals, or the paperwork
required from such individuals and businesses.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title
This section would provide that the legislation may be cited
as the ``American Communities' Right to Public Information
Act.''
Section 2. Maritime transportation security information
This section amends section 70103(d) of title 46, United
States Code, to require that no information shall be defined as
Sensitive Security Information (as defined by the Department of
Homeland Security in section 1520.5 of title 49, Code of
Federal Regulations) in order to (1) conceal a violation of
law, inefficiency, or administrative error; (2) to prevent
embarrassment of a person, organization, or agency; (3) to
restrain competition; or (4) to prevent or delay the release of
information that does not require protection in the interest of
transportation security, including basic scientific research
information not clearly related to transportation security.
This section also makes conforming changes to the statutes
authorizing the Transportation Security Administration and the
Department of Transportation to designate information as SSI.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
TITLE 46. SHIPPING
SUBTITLE VII. SECURITY AND DRUG ENFORCEMENT
CHAPTER 701. PORT SECURITY
70103. Maritime transportation security plans
(a) National Maritime Transportation Security Plan.--
(1) Not later than April 1, 2005, the Secretary shall
prepare a National Maritime Transportation Security
Plan for deterring and responding to a transportation
security incident.
(2) The National Maritime Transportation Security
Plan shall provide for efficient, coordinated, and
effective action to deter and minimize damage from a
transportation security incident, and shall include the
following:
(A) Assignment of duties and responsibilities
among Federal departments and agencies and
coordination with State and local governmental
agencies.
(B) Identification of security resources.
(C) Procedures and techniques to be employed
in deterring a national transportation security
incident.
(D) Establishment of procedures for the
coordination of activities of--
(i) Coast Guard maritime security
teams established under this chapter;
and
(ii) Federal Maritime Security
Coordinators required under this
chapter.
(E) A system of surveillance and notice
designed to safeguard against as well as ensure
earliest possible notice of a transportation
security incident and imminent threats of such
a security incident to the appropriate State
and Federal agencies.
(F) Establishment of criteria and procedures
to ensure immediate and effective Federal
identification of a transportation security
incident, or the substantial threat of such a
security incident.
(G) Designation of--
(i) areas for which Area Maritime
Transportation Security Plans are
required to be prepared under
subsection (b); and
(ii) a Coast Guard official who shall
be the Federal Maritime Security
Coordinator for each such area.
(H) A risk-based system for evaluating the
potential for violations of security zones
designated by the Secretary on the waters
subject to the jurisdiction of the United
States.
(I) A recognition of certified systems of
intermodal transportation.
(J) A plan for ensuring that the flow of
cargo through United States ports is
reestablished as efficiently and quickly as
possible after a transportation security
incident.
(3) The Secretary shall, as the Secretary considers
advisable, revise or otherwise amend the National
Maritime Transportation Security Plan.
(4) Actions by Federal agencies to deter and minimize
damage from a transportation security incident shall,
to the greatest extent possible, be in accordance with
the National Maritime Transportation Security Plan.
(5) The Secretary shall inform vessel and facility
owners or operators of the provisions in the National
Transportation Security Plan that the Secretary
considers necessary for security purposes.
(b) Area Maritime Transportation Security Plans.--
(1) The Federal Maritime Security Coordinator
designated under subsection (a)(2)(G) for an area
shall--
(A) submit to the Secretary an Area Maritime
Transportation Security Plan for the area; and
(B) solicit advice from the Area Security
Advisory Committee required under this chapter,
for the area to assure preplanning of joint
deterrence efforts, including appropriate
procedures for deterrence of a transportation
security incident.
(2) The Area Maritime Transportation Security Plan
for an area shall--
(A) when implemented in conjunction with the
National Maritime Transportation Security Plan,
be adequate to deter a transportation security
incident in or near the area to the maximum
extent practicable;
(B) describe the area and infrastructure
covered by the plan, including the areas of
population or special economic, environmental,
or national security importance that might be
damaged by a transportation security incident;
(C) describe in detail how the plan is
integrated with other Area Maritime
Transportation Security Plans, and with
facility security plans and vessel security
plans under this section;
(D) include consultation and coordination
with the Department of Defense on matters
relating to Department of Defense facilities
and vessels;
(E) include any other information the
Secretary requires;
(F) include a salvage response plan--
(i) to identify salvage equipment
capable of restoring operational trade
capacity; and
(ii) to ensure that the waterways are
cleared and the flow of commerce
through United States ports is
reestablished as efficiently and
quickly as possible after a maritime
transportation security incident; and
(G) be updated at least every 5 years by the
Federal Maritime Security Coordinator.
(3) The Secretary shall--
(A) review and approve Area Maritime
Transportation Security Plans under this
subsection; and
(B) periodically review previously approved
Area Maritime Transportation Security Plans.
(4) In security zones designated by the Secretary in
each Area Maritime Transportation Security Plan, the
Secretary shall consider--
(A) the use of public/private partnerships to
enforce security within the security zones,
shoreside protection alternatives, and the
environmental, public safety, and relative
effectiveness of such alternatives; and
(B) technological means of enhancing the
security zones of port, territorial waters, and
waterways of the United States.
(c) Vessel and facility security plans.--
(1) Within 6 months after the prescription of interim
final regulations on vessel and facility security
plans, an owner or operator of a vessel or facility
described in paragraph (2) shall prepare and submit to
the Secretary a security plan for the vessel or
facility, for deterring a transportation security
incident to the maximum extent practicable.
(2) The vessels and facilities referred to in
paragraph (1)--
(A) except as provided in subparagraph (B),
are vessels and facilities that the Secretary
believes may be involved in a transportation
security incident; and
(B) do not include any vessel or facility
owned or operated by the Department of Defense.
(3) A security plan required under this subsection
shall--
(A) be consistent with the requirements of
the National Maritime Transportation Security
Plan and Area Maritime Transportation Security
Plans;
(B) identify the qualified individual having
full authority to implement security actions,
and require immediate communications between
that individual and the appropriate Federal
official and the persons providing personnel
and equipment pursuant to subparagraph (C);
(C) include provisions for--
(i) establishing and maintaining
physical security, passenger and cargo
security, and personnel security;
(ii) establishing and controlling
access to secure areas of the vessel or
facility, including access by persons
engaged in the surface transportation
of intermodal containers in or out of a
port facility;
(iii) procedural security policies;
(iv) communications systems; and
(v) other security systems;
(D) identify, and ensure by contract or other
means approved by the Secretary, the
availability of security measures necessary to
deter to the maximum extent practicable a
transportation security incident or a
substantial threat of such a security incident;
(E) describe the training, periodic
unannounced drills, and security actions of
persons on the vessel or at the facility, to be
carried out under the plan to deter to the
maximum extent practicable a transportation
security incident, or a substantial threat of
such a security incident;
(F) provide a strategy and timeline for
conducting training and periodic unannounced
drills;
(G) be updated at least every 5 years;
(H) be resubmitted for approval of each
change to the vessel or facility that may
substantially affect the security of the vessel
or facility; and
(I) in the case of a security plan for a
facility, be resubmitted for approval of each
change in the ownership or operator of the
facility that may substantially affect the
security of the facility.
(4) The Secretary shall--
(A) promptly review each such plan;
(B) require amendments to any plan that does
not meet the requirements of this subsection;
(C) approve any plan that meets the
requirements of this subsection; and
(D) subject to the availability of
appropriations, verify the effectiveness of
each such facility security plan periodically,
but not less than 2 times per year, at least 1
of which shall be an inspection of the facility
that is conducted without notice to the
facility.
(5) A vessel or facility for which a plan is required
to be submitted under this subsection may not operate
after the end of the 12-month period beginning on the
date of the prescription of interim final regulations
on vessel and facility security plans, unless--
(A) the plan has been approved by the
Secretary; and
(B) the vessel or facility is operating in
compliance with the plan.
(6) Notwithstanding paragraph (5), the Secretary may
authorize a vessel or facility to operate without a
security plan approved under this subsection, until not
later than 1 year after the date of the submission to
the Secretary of a plan for the vessel or facility, if
the owner or operator of the vessel or facility
certifies that the owner or operator has ensured by
contract or other means approved by the Secretary to
deter to the maximum extent practicable a
transportation security incident or a substantial
threat of such a security incident.
(7) The Secretary shall require each owner or
operator of a vessel or facility located within or
adjacent to waters subject to the jurisdiction of the
United States to implement any necessary interim
security measures, including cargo security programs,
to deter to the maximum extent practicable a
transportation security incident until the security
plan for that vessel or facility operator is approved.
(8)(A) The Secretary shall require that the qualified
individual having full authority to implement security
actions for a facility described in paragraph (2) shall
be a citizen of the United States.
(B) The Secretary may waive the requirement of
subparagraph (A) with respect to an individual if the
Secretary determines that it is appropriate to do so
based on a complete background check of the individual
and a review of all terrorist watch lists to ensure
that the individual is not identified on any such
terrorist watch list.
[(d) Nondisclosure of information.--Notwithstanding any other
provision of law, information developed under this chapter is
not required to be disclosed to the public, including--
[(1) facility security plans, vessel security plans,
and port vulnerability assessments; and
[(2) other information related to security plans,
procedures, or programs for vessels or facilities
authorized under this chapter.]
(d) Nondisclosure of Information.--
(1) In general.--Information developed under this
chapter is not required to be disclosed to the public,
including--
(A) facility security plans, vessel security
plans, and port vulnerability assessments; and
(B) other information related to security
plans, procedures, or programs for vessels or
facilities authorized under this chapter.
(2) Limitations.--Nothing in paragraph (1) shall be
construed to authorize the designation of information
as sensitive security information (as defined in
section 1520.5 of title 49, Code of Federal
Regulations)--
(A) to conceal a violation of law,
inefficiency, or administrative error;
(B) to prevent embarrassment to a person,
organization, or agency;
(C) to restrain competition; or
(D) to prevent or delay the release of
information that does not require protection in
the interest of transportation security,
including basic scientific research information
not clearly related to transportation security.
TITLE 49. TRANSPORTATION
SUBTITLE I. DEPARTMENT OF TRANSPORTATION
CHAPTER 1. ORGANIZATION
114. Transportation Security Administration
(a) In general.--The Transportation Security Administration
shall be an administration of the Department of Transportation.
(b) Under Secretary.--
(1) Appointment.--The head of the Administration
shall be the Under Secretary of Transportation for
Security.--The Under Secretary shall be appointed by
the President, by and with the advice and consent of
the Senate.
(2) Qualifications.--The Under Secretary must--
(A) be a citizen of the United States; and
(B) have experience in a field directly
related to transportation or security.
(3) Term.--The term of office of an individual
appointed as the Under Secretary shall be 5 years.
(c) Limitation on ownership of stocks and bonds.--The Under
Secretary may not own stock in or bonds of a transportation or
security enterprise or an enterprise that makes equipment that
could be used for security purposes.
(d) Functions.--The Under Secretary shall be responsible for
security in all modes of transportation, including--
(1) carrying out chapter 449, relating to civil
aviation security, and related research and development
activities; and
(2) security responsibilities over other modes of
transportation that are exercised by the Department of
Transportation.
(e) Screening operations.--The Under Secretary shall--
(1) be responsible for day-to-day Federal security
screening operations for passenger air transportation
and intrastate air transportation under sections 44901
and 44935;
(2) develop standards for the hiring and retention of
security screening personnel;
(3) train and test security screening personnel; and
(4) be responsible for hiring and training personnel
to provide security screening at all airports in the
United States where screening is required under section
44901, in consultation with the Secretary of
Transportation and the heads of other appropriate
Federal agencies and departments.
(f) Additional duties and powers.--In addition to carrying
out the functions specified in subsections (d) and (e), the
Under Secretary shall--
(1) receive, assess, and distribute intelligence
information related to transportation security;
(2) assess threats to transportation;
(3) develop policies, strategies, and plans for
dealing with threats to transportation security;
(4) make other plans related to transportation
security, including coordinating countermeasures with
appropriate departments, agencies, and
instrumentalities of the United States Government;
(5) serve as the primary liaison for transportation
security to the intelligence and law enforcement
communities;
(6) on a day-to-day basis, manage and provide
operational guidance to the field security resources of
the Administration, including Federal Security Managers
as provided by section 44933;
(7) enforce security-related regulations and
requirements;
(8) identify and undertake research and development
activities necessary to enhance transportation
security;
(9) inspect, maintain, and test security facilities,
equipment, and systems;
(10) ensure the adequacy of security measures for the
transportation of cargo;
(11) oversee the implementation, and ensure the
adequacy, of security measures at airports and other
transportation facilities;
(12) require background checks for airport security
screening personnel, individuals with access to secure
areas of airports, and other transportation security
personnel;
(13) work in conjunction with the Administrator of
the Federal Aviation Administration with respect to any
actions or activities that may affect aviation safety
or air carrier operations;
(14) work with the International Civil Aviation
Organization and appropriate aeronautic authorities of
foreign governments under section 44907 to address
security concerns on passenger flights by foreign air
carriers in foreign air transportation; and
(15) carry out such other duties, and exercise such
other powers, relating to transportation security as
the Under Secretary considers appropriate, to the
extent authorized by law.
(g) National emergency responsibilities.--
(1) In general.--Subject to the direction and control
of the Secretary, the Under Secretary, during a
national emergency, shall have the following
responsibilities:
(A) To coordinate domestic transportation,
including aviation, rail, and other surface
transportation, and maritime transportation
(including port security).
(B) To coordinate and oversee the
transportation-related responsibilities of
other departments and agencies of the Federal
Government other than the Department of Defense
and the military departments.
(C) To coordinate and provide notice to other
departments and agencies of the Federal
Government, and appropriate agencies of State
and local governments, including departments
and agencies for transportation, law
enforcement, and border control, about threats
to transportation.
(D) To carry out such other duties, and
exercise such other powers, relating to
transportation during a national emergency as
the Secretary shall prescribe.
(2) Authority of other departments and agencies.--The
authority of the Under Secretary under this subsection
shall not supersede the authority of any other
department or agency of the Federal Government under
law with respect to transportation or transportation-
related matters, whether or not during a national
emergency.
(3) Circumstances.--The Secretary shall prescribe the
circumstances constituting a national emergency for
purposes of this subsection.
(h) Management of security information.--In consultation with
the Transportation Security Oversight Board, the Under
Secretary shall--
(1) enter into memoranda of understanding with
Federal agencies or other entities to share or
otherwise cross-check as necessary data on individuals
identified on Federal agency databases who may pose a
risk to transportation or national security;
(2) establish procedures for notifying the
Administrator of the Federal Aviation Administration,
appropriate State and local law enforcement officials,
and airport or airline security officers of the
identity of individuals known to pose, or suspected of
posing, a risk of air piracy or terrorism or a threat
to airline or passenger safety;
(3) in consultation with other appropriate Federal
agencies and air carriers, establish policies and
procedures requiring air carriers--
(A) to use information from government
agencies to identify individuals on passenger
lists who may be a threat to civil aviation or
national security; and
(B) if such an individual is identified,
notify appropriate law enforcement agencies,
prevent the individual from boarding an
aircraft, or take other appropriate action with
respect to that individual; and
(4) consider requiring passenger air carriers
to share passenger lists with appropriate
Federal agencies for the purpose of identifying
individuals who may pose a threat to aviation
safety or national security.
(i) View of NTSB.--In taking any action under this section
that could affect safety, the Under Secretary shall give great
weight to the timely views of the National Transportation
Safety Board.
(j) Acquisitions.--
(1) In general.--The Under Secretary is authorized--
(A) to acquire (by purchase, lease,
condemnation, or otherwise) such real property,
or any interest therein, within and outside the
continental United States, as the Under
Secretary considers necessary;
(B) to acquire (by purchase, lease,
condemnation, or otherwise) and to construct,
repair, operate, and maintain such personal
property (including office space and patents),
or any interest therein, within and outside the
continental United States, as the Under
Secretary considers necessary;
(C) to lease to others such real and personal
property and to provide by contract or
otherwise for necessary facilities for the
welfare of its employees and to acquire,
maintain, and operate equipment for these
facilities;
(D) to acquire services, including such
personal services as the Secretary determines
necessary, and to acquire (by purchase, lease,
condemnation, or otherwise) and to construct,
repair, operate, and maintain research and
testing sites and facilities; and
(E) in cooperation with the Administrator of
the Federal Aviation Administration, to utilize
the research and development facilities of the
Federal Aviation Administration.
(2) Title.--Title to any property or interest therein
acquired pursuant to this subsection shall be held by
the Government of the United States.
(k) Transfers of funds.--The Under Secretary is authorized to
accept transfers of unobligated balances and unexpended
balances of funds appropriated to other Federal agencies (as
such term is defined in section 551(1) of title 5) to carry out
functions transferred, on or after the date of enactment of the
Aviation and Transportation Security Act, by law to the Under
Secretary.
(l) Regulations.--
(1) In general.--The Under Secretary is authorized to
issue, rescind, and revise such regulations as are
necessary to carry out the functions of the
Administration.
(2) Emergency procedures.
(A) In general.--Notwithstanding any other
provision of law or executive order (including
an executive order requiring a cost-benefit
analysis), if the Under Secretary determines
that a regulation or security directive must be
issued immediately in order to protect
transportation security, the Under Secretary
shall issue the regulation or security
directive without providing notice or an
opportunity for comment and without prior
approval of the Secretary.
(B) Review by Transportation Security
Oversight Board.--Any regulation or security
directive issued under this paragraph shall be
subject to review by the Transportation
Security Oversight Board established under
section 115. Any regulation or security
directive issued under this paragraph shall
remain effective for a period not to exceed 90
days unless ratified or disapproved by the
Board or rescinded by the Under Secretary.
(3) Factors to consider.--In determining whether to
issue, rescind, or revise a regulation under this
section, the Under Secretary shall consider, as a
factor in the final determination, whether the costs of
the regulation are excessive in relation to the
enhancement of security the regulation will provide.
The Under Secretary may waive requirements for an
analysis that estimates the number of lives that will
be saved by the regulation and the monetary value of
such lives if the Under Secretary determines that it is
not feasible to make such an estimate.
(4) Airworthiness objections by FAA.
(A) In general.--The Under Secretary shall
not take an aviation security action under this
title if the Administrator of the Federal
Aviation Administration notifies the Under
Secretary that the action could adversely
affect the airworthiness of an aircraft.
(B) Review by Secretary.--Notwithstanding
subparagraph (A), the Under Secretary may take
such an action, after receiving a notification
concerning the action from the Administrator
under subparagraph (A), if the Secretary of
Transportation subsequently approves the
action.
(m) Personnel and services; cooperation by Under Secretary.--
(1) Authority of under secretary.--In carrying out
the functions of the Administration, the Under
Secretary shall have the same authority as is provided
to the Administrator of the Federal Aviation
Administration under subsections (l) and (m) of section
106.
(2) Authority of agency heads.--The head of a Federal
agency shall have the same authority to provide
services, supplies, equipment, personnel, and
facilities to the Under Secretary as the head has to
provide services, supplies, equipment, personnel, and
facilities to the Administrator of the Federal Aviation
Administration under section 106(m).
(n) Personnel management system.--The personnel management
system established by the Administrator of the Federal Aviation
Administration under section 40122 shall apply to employees of
the Transportation Security Administration, or, subject to the
requirements of such section, the Under Secretary may make such
modifications to the personnel management system with respect
to such employees as the Under Secretary considers appropriate,
such as adopting aspects of other personnel systems of the
Department of Transportation.
(o) Authority of Inspector General.--The Transportation
Security Administration shall be subject to the Inspector
General Act of 1978 (5 U.S.C. App.) and other laws relating to
the authority of the Inspector General of the Department of
Transportation.
(p) Law enforcement powers.--
(1) In general.--The Under Secretary may designate an
employee of the Transportation Security Administration
or other Federal agency to serve as a law enforcement
officer.
(2) Powers.--While engaged in official duties of the
Administration as required to fulfill the
responsibilities under this section, a law enforcement
officer designated under paragraph (1) may--
(A) carry a firearm;
(B) make an arrest without a warrant for any
offense against the United States committed in
the presence of the officer, or for any felony
cognizable under the laws of the United States
if the officer has probable cause to believe
that the person to be arrested has committed or
is committing the felony; and
(C) seek and execute warrants for arrest or
seizure of evidence issued under the authority
of the United States upon probable cause that a
violation has been committed.
(3) Guidelines on exercise of authority.--The
authority provided by this subsection shall be
exercised in accordance with guidelines prescribed by
the Under Secretary, in consultation with the Attorney
General of the United States, and shall include
adherence to the Attorney General's policy on use of
deadly force.
(4) Revocation or suspension of authority.--The
powers authorized by this subsection may be rescinded
or suspended should the Attorney General determine that
the Under Secretary has not complied with the
guidelines prescribed in paragraph (3) and conveys the
determination in writing to the Secretary of
Transportation and the Under Secretary.
(q) Authority to exempt.--The Under Secretary may grant an
exemption from a regulation prescribed in carrying out this
section if the Under Secretary determines that the exemption is
in the public interest.
(r) Nondisclosure of security activities.--
(1) In general.--Notwithstanding section 552 of title
5, the Under Secretary shall prescribe regulations
prohibiting the disclosure of information obtained or
developed in carrying out security under authority of
the Aviation and Transportation Security Act (Public
Law 107-71) or under chapter 449 of this title if the
Under Secretary decides that 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 the security of
transportation.
(2) Availability of information to Congress.--
Paragraph (1) does not authorize information to be
withheld from a committee of Congress authorized to
have the information.
(3) Limitation on transferability of duties.--Except
as otherwise provided by law, the Under Secretary may
not transfer a duty or power under this subsection to
another department, agency, or instrumentality of the
United States.
(4) Limitations.--Nothing in this subsection, or any
other provision of law, shall be construed to authorize
the designation of information as sensitive security
information (as defined in section 1520.5 of title 49,
Code of Federal Regulations)--
(A) to conceal a violation of law,
inefficiency, or administrative error;
(B) to prevent embarrassment to a person,
organization, or agency;
(C) to restrain competition; or
(D) to prevent or delay the release of
information that does not require protection in
the interest of transportation security,
including basic scientific research information
not clearly related to transportation security.
(s) Transportation security strategic planning.--
(1) In general.--The Secretary of Homeland Security
shall develop, prepare, implement, and update, as
needed--
(A) a National Strategy for Transportation
Security; and
(B) transportation modal security plans
addressing security risks, including threats,
vulnerabilities, and consequences, for
aviation, railroad, ferry, highway, maritime,
pipeline, public transportation, over-the-road
bus, and other transportation infrastructure
assets.
(2) Role of Secretary of Transportation.--The
Secretary of Homeland Security shall work jointly with
the Secretary of Transportation in developing,
revising, and updating the documents required by
paragraph (1).
(3) Contents of National Strategy for Transportation
Security.--The National Strategy for Transportation
Security shall include the following:
(A) An identification and evaluation of the
transportation assets in the United States
that, in the interests of national security and
commerce, must be protected from attack or
disruption by terrorist or other hostile
forces, including modal security plans for
aviation, bridge and tunnel, commuter rail and
ferry, highway, maritime, pipeline, rail, mass
transit, over-the-road bus, and other public
transportation infrastructure assets that could
be at risk of such an attack or disruption.
(B) The development of risk-based priorities,
based on risk assessments conducted or received
by the Secretary of Homeland Security
(including assessments conducted under the
Implementing Recommendations of the 9/11
Commission Act of 2007), across all
transportation modes and realistic deadlines
for addressing security needs associated with
those assets referred to in subparagraph (A).
(C) The most appropriate, practical, and
cost-effective means of defending those assets
against threats to their security.
(D) A forward-looking strategic plan that
sets forth the agreed upon roles and missions
of Federal, State, regional, local, and tribal
authorities and establishes mechanisms for
encouraging cooperation and participation by
private sector entities, including nonprofit
employee labor organizations, in the
implementation of such plan.
(E) A comprehensive delineation of
prevention, response, and recovery
responsibilities and issues regarding
threatened and executed acts of terrorism
within the United States and threatened and
executed acts of terrorism outside the United
States to the extent such acts affect United
States transportation systems.
(F) A prioritization of research and
development objectives that support
transportation security needs, giving a higher
priority to research and development directed
toward protecting vital transportation assets.
Transportation security research and
development projects shall be based, to the
extent practicable, on such prioritization.
Nothing in the preceding sentence shall be
construed to require the termination of any
research or development project initiated by
the Secretary of Homeland Security or the
Secretary of Transportation before the date of
enactment of the Implementing Recommendations
of the 9/11 Commission Act of 2007.
(G) A 3- and 10-year budget for Federal
transportation security programs that will
achieve the priorities of the National Strategy
for Transportation Security.
(H) Methods for linking the individual
transportation modal security plans and the
programs contained therein, and a plan for
addressing the security needs of intermodal
transportation.
(I) Transportation modal security plans
described in paragraph (1)(B), including
operational recovery plans to expedite, to the
maximum extent practicable, the return to
operation of an adversely affected
transportation system following a major
terrorist attack on that system or other
incident. These plans shall be coordinated with
the resumption of trade protocols required
under section 202 of the SAFE Port Act (6
U.S.C. 942) and the National Maritime
Transportation Security Plan required under
section 70103(a) of title 46.
(4) Submissions of plans to Congress.
(A) Initial strategy.--The Secretary of
Homeland Security shall submit the National
Strategy for Transportation Security, including
the transportation modal security plans,
developed under this subsection to the
appropriate congressional committees not later
than April 1, 2005.
(B) Subsequent versions.--After December 31,
2005, the Secretary of Homeland Security shall
submit the National Strategy for Transportation
Security, including the transportation modal
security plans and any revisions to the
National Strategy for Transportation Security
and the transportation modal security plans, to
appropriate congressional committees not less
frequently than April 1 of each even-numbered
year.
(C) Periodic progress report.--
(i) Requirement for report.--Each
year, in conjunction with the
submission of the budget to Congress
under section 1105(a) of title 31,
United States Code, the Secretary of
Homeland Security shall submit to the
appropriate congressional committees an
assessment of the progress made on
implementing the National Strategy for
Transportation Security, including the
transportation modal security plans.
(ii) Content.--Each progress report
submitted under this subparagraph shall
include, at a minimum, the following:
(I) Recommendations for
improving and implementing the
National Strategy for
Transportation Security and the
transportation modal and
intermodal security plans that
the Secretary of Homeland
Security, in consultation with
the Secretary of
Transportation, considers
appropriate.
(II) An accounting of all
grants for transportation
security, including grants and
contracts for research and
development, awarded by the
Secretary of Homeland Security
in the most recent fiscal year
and a description of how such
grants accomplished the goals
of the National Strategy for
Transportation Security.
(III) An accounting of all--
(aa) funds requested
in the President's
budget submitted
pursuant to section
1105 of title 31 for
the most recent fiscal
year for transportation
security, by mode;
(bb) personnel
working on
transportation security
by mode, including the
number of contractors;
and
(cc) information on
the turnover in the
previous year among
senior staff of the
Department of Homeland
Security, including
component agencies,
working on
transportation security
issues. Such
information shall
include the number of
employees who have
permanently left the
office, agency, or area
in which they worked,
and the amount of time
that they worked for
the Department.
(iii) Written explanation of
transportation security activities not
delineated in the National Strategy for
Transportation Security. At the end of
each fiscal year, the Secretary of
Homeland Security shall submit to the
appropriate congressional committees a
written explanation of any Federal
transportation security activity that
is inconsistent with the National
Strategy for Transportation Security,
including the amount of funds to be
expended for the activity and the
number of personnel involved.
(D) Classified material.--Any part of the
National Strategy for Transportation Security
or the transportation modal security plans that
involve information that is properly classified
under criteria established by Executive order
shall be submitted to the appropriate
congressional committees separately in a
classified format.
(E) Appropriate congressional committees
defined.--In this subsection, the term
``appropriate congressional committees'' means
the Committee on Transportation and
Infrastructure and the Committee on Homeland
Security of the House of Representatives and
the Committee on Commerce, Science, and
Transportation, the Committee on Homeland
Security and Governmental Affairs, and the
Committee on Banking, Housing, and Urban
Affairs of the Senate.
(5) Priority status.--
(A) In general.--The National Strategy for
Transportation Security shall be the governing
document for Federal transportation security
efforts.
(B) Other plans and reports.--The National
Strategy for Transportation Security shall
include, as an integral part or as an
appendix--
(i) the current National Maritime
Transportation Security Plan under
section 70103 of title 46;
(ii) the report required by section
44938 of this title;
(iii) transportation modal security
plans required under this section;
(iv) the transportation sector
specific plan required under Homeland
Security Presidential Directive-7; and
(v) any other transportation security
plan or report that the Secretary of
Homeland Security determines
appropriate for inclusion.
(6) Coordination.--In carrying out the
responsibilities under this section, the Secretary of
Homeland Security, in coordination with the Secretary
of Transportation, shall consult, as appropriate, with
Federal, State, and local agencies, tribal governments,
private sector entities (including nonprofit employee
labor organizations), institutions of higher learning,
and other entities.
(7) Plan distribution.--The Secretary of Homeland
Security shall make available and appropriately
publicize an unclassified version of the National
Strategy for Transportation Security, including its
component transportation modal security plans, to
Federal, State, regional, local and tribal authorities,
transportation system owners or operators, private
sector stakeholders, including nonprofit employee labor
organizations representing transportation employees,
institutions of higher learning, and other appropriate
entities.
(t) [Omitted]
(u) Transportation Security Information Sharing Plan.--
(1) Definitions.--In this subsection:
(A) Appropriate congressional committees.--
The term ``appropriate congressional
committees'' has the meaning given that term in
subsection (t).
(B) Plan.--The term ``Plan'' means the
Transportation Security Information Sharing
Plan established under paragraph (2).
(C) Public and private stakeholders.--The
term ``public and private stakeholders'' means
Federal, State, and local agencies, tribal
governments, and appropriate private entities,
including nonprofit employee labor
organizations representing transportation
employees.
(D) Secretary.--The term ``Secretary'' means
the Secretary of Homeland Security.
(E) Transportation security information.--The
term ``transportation security information''
means information relating to the risks to
transportation modes, including aviation,
public transportation, railroad, ferry,
highway, maritime, pipeline, and over-the-road
bus transportation, and may include specific
and general intelligence products, as
appropriate.
(2) Establishment of Plan.--The Secretary of Homeland
Security, in consultation with the program manager of
the information sharing environment established under
section 1016 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (6 U.S.C. 485), the Secretary of
Transportation, and public and private stakeholders,
shall establish a Transportation Security Information
Sharing Plan. In establishing the Plan, the Secretary
shall gather input on the development of the Plan from
private and public stakeholders and the program manager
of the information sharing environment established
under section 1016 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (6 U.S.C. 485).
(3) Purpose of Plan.--The Plan shall promote sharing
of transportation security information between the
Department of Homeland Security and public and private
stakeholders.
(4) Content of Plan.--The Plan shall include--
(A) a description of how intelligence
analysts within the Department of Homeland
Security will coordinate their activities
within the Department and with other Federal,
State, and local agencies, and tribal
governments, including coordination with
existing modal information sharing centers and
the center described in section 1410 of the
Implementing Recommendations of the 9/11
Commission Act of 2007;
(B) the establishment of a point of contact,
which may be a single point of contact within
the Department of Homeland Security, for each
mode of transportation for the sharing of
transportation security information with public
and private stakeholders, including an
explanation and justification to the
appropriate congressional committees if the
point of contact established pursuant to this
subparagraph differs from the agency within the
Department that has the primary authority, or
has been delegated such authority by the
Secretary, to regulate the security of that
transportation mode;
(C) a reasonable deadline by which the Plan
will be implemented; and
(D) a description of resource needs for
fulfilling the Plan.
(5) Coordination with information sharing.--The Plan
shall be--
(A) implemented in coordination, as
appropriate, with the program manager for the
information sharing environment established
under section 1016 of the Intelligence Reform
and Terrorism Prevention Act of 2004 (6 U.S.C.
485); and
(B) consistent with the establishment of the
information sharing environment and any
policies, guidelines, procedures, instructions,
or standards established by the President or
the program manager for the implementation and
management of the information sharing
environment.
(6) Reports to Congress.
(A) In general.--Not later than 150 days
after the date of enactment of this subsection,
and annually thereafter, the Secretary shall
submit to the appropriate congressional
committees, a report containing the Plan.
(B) Annual report.--Not later than 1 year
after the date of enactment of this subsection,
the Secretary shall submit to the appropriate
congressional committees a report on updates to
and the implementation of the Plan.
(7) Survey and report.
(A) In general.--The Comptroller General of
the United States shall conduct a biennial
survey of the satisfaction of recipients of
transportation intelligence reports
disseminated under the Plan.
(B) Information sought.--The survey conducted
under subparagraph (A) shall seek information
about the quality, speed, regularity, and
classification of the transportation security
information products disseminated by the
Department of Homeland Security to public and
private stakeholders.
(C) Report.--Not later than 1 year after the
date of the enactment of the Implementing
Recommendations of the 9/11 Commission Act of
2007, and every even numbered year thereafter,
the Comptroller General shall submit to the
appropriate congressional committees, a report
on the results of the survey conducted under
subparagraph (A). The Comptroller General shall
also provide a copy of the report to the
Secretary.
(8) Security clearances.--The Secretary shall, to the
greatest extent practicable, take steps to expedite the
security clearances needed for designated public and
private stakeholders to receive and obtain access to
classified information distributed under this section,
as appropriate.
(9) Classification of material.--The Secretary, to
the greatest extent practicable, shall provide
designated public and private stakeholders with
transportation security information in an unclassified
format.
(v) Enforcement of regulations and orders of the Secretary of
Homeland Security.--
(1) Application of subsection.--
(A) In general.--This subsection applies to
the enforcement of regulations prescribed, and
orders issued, by the Secretary of Homeland
Security under a provision of chapter 701 of
title 46 and under a provision of this title
other than a provision of chapter 449 (in this
subsection referred to as an ``applicable
provision of this title'').
(B) Violations of chapter 449.--The penalties
for violations of regulations prescribed and
orders issued by the Secretary of Homeland
Security under chapter 449 of this title are
provided under chapter 463 of this title.
(C) Nonapplication to certain violations.
(i) Paragraphs (2) through (5) do not
apply to violations of regulations
prescribed, and orders issued, by the
Secretary of Homeland Security under a
provision of this title--
(I) involving the
transportation of personnel or
shipments of materials by
contractors where the
Department of Defense has
assumed control and
responsibility;
(II) by a member of the armed
forces of the United States
when performing official
duties; or
(III) by a civilian employee
of the Department of Defense
when performing official
duties.
(ii) Violations described in
subclause (I), (II), or (III) of clause
(i) shall be subject to penalties as
determined by the Secretary of Defense
or the Secretary's designee.
(2) Civil penalty.--
(A) In general.--A person is liable to the
United States Government for a civil penalty of
not more than $ 10,000 for a violation of a
regulation prescribed, or order issued, by the
Secretary of Homeland Security under an
applicable provision of this title.
(B) Repeat violations.--A separate violation
occurs under this paragraph for each day the
violation continues.
(3) Administrative imposition of civil penalties.
(A) In general.--The Secretary of Homeland
Security may impose a civil penalty for a
violation of a regulation prescribed, or order
issued, under an applicable provision of this
title. The Secretary shall give written notice
of the finding of a violation and the penalty.
(B) Scope of civil action.--In a civil action
to collect a civil penalty imposed by the
Secretary under this subsection, a court may
not re-examine issues of liability or the
amount of the penalty.
(C) Jurisdiction.--The district courts of the
United States shall have exclusive jurisdiction
of civil actions to collect a civil penalty
imposed by the Secretary under this subsection
if--
(i) the amount in controversy is more
than--
(I) $ 400,000, if the
violation was committed by a
person other than an individual
or small business concern; or
(II) $ 50,000 if the
violation was committed by an
individual or small business
concern;
(ii) the action is in rem or another
action in rem based on the same
violation has been brought; or
(iii) another action has been brought
for an injunction based on the same
violation.
(D) Maximum penalty.--The maximum civil
penalty the Secretary administratively may
impose under this paragraph is--
(i) $ 400,000, if the violation was
committed by a person other than an
individual or small business concern;
or
(ii) $ 50,000, if the violation was
committed by an individual or small
business concern.
(E) Notice and opportunity to request
hearing.--Before imposing a penalty under this
section the Secretary shall provide to the
person against whom the penalty is to be
imposed--
(i) written notice of the proposed
penalty; and
(ii) the opportunity to request a
hearing on the proposed penalty, if the
Secretary receives the request not
later than 30 days after the date on
which the person receives notice.
(4) Compromise and setoff.--
(A) The Secretary may compromise the amount
of a civil penalty imposed under this
subsection.
(B) The Government may deduct the amount of a
civil penalty imposed or compromised under this
subsection from amounts it owes the person
liable for the penalty.
(5) Investigations and proceedings.--Chapter 461
shall apply to investigations and proceedings brought
under this subsection to the same extent that it
applies to investigations and proceedings brought with
respect to aviation security duties designated to be
carried out by the Secretary.
(6) Definitions.--In this subsection:
(A) Person.--The term ``person'' does not
include--
(i) the United States Postal Service;
or
(ii) the Department of Defense.
(B) Small business concern.--The term ``small
business concern'' has the meaning given that
term in section 3 of the Small Business Act (15
U.S.C. 632).
(7) Enforcement transparency.--
(A) In general.--Not later than December 31,
2008, and annually thereafter, the Secretary
shall--
(i) provide an annual summary to the
public of all enforcement actions taken
by the Secretary under this subsection;
and
(ii) include in each such summary the
docket number of each enforcement
action, the type of alleged violation,
the penalty or penalties proposed, and
the final assessment amount of each
penalty.
(B) Electronic availability.--Each summary
under this paragraph shall be made available to
the public by electronic means.
(C) Relationship to the Freedom of
Information Act and the Privacy Act.--Nothing
in this subsection shall be construed to
require disclosure of information or records
that are exempt from disclosure under sections
552 or 552a of title 5.
(D) Enforcement guidance.--Not later than 180
days after the enactment of the Implementing
Recommendations of the 9/11 Commission Act of
2007, the Secretary shall provide a report to
the public describing the enforcement process
established under this subsection.
(w) Authorization of appropriations.--There are authorized to
be appropriated to the Secretary of Homeland Security for--
(1) railroad security--
(A) $ 488,000,000 for fiscal year 2008;
(B) $ 483,000,000 for fiscal year 2009;
(C) $ 508,000,000 for fiscal year 2010; and
(D) $ 508,000,000 for fiscal year 2011;
(2) over-the-road bus and trucking security--
(A) $ 14,000,000 for fiscal year 2008;
(B) $ 27,000,000 for fiscal year 2009;
(C) $ 27,000,000 for fiscal year 2010; and
(D) $ 27,000,000 for fiscal year 2011; and
(3) hazardous material and pipeline security--
(A) $ 12,000,000 for fiscal year 2008;
(B) $ 12,000,000 for fiscal year 2009; and
(C) $ 12,000,000 for fiscal year 2010.
TITLE 49. TRANSPORTATION
SUBTITLE VII. AVIATION PROGRAMS
PART A. AIR COMMERCE AND SAFETY
SUBPART I. GENERAL
CHAPTER 401. GENERAL PROVISIONS
40119. 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.
(2) Paragraph (1) of this subsection does not
authorize information to be withheld from a committee
of Congress authorized to have the information.
(3) Nothing in paragraph (1) shall be construed to
authorize the designation of information as sensitive
security information (as defined in section 15.5 of
title 49, Code of Federal Regulations)--
(A) to conceal a violation of law,
inefficiency, or administrative error;
(B) to prevent embarrassment to a person,
organization, or agency;
(C) to restrain competition; or
(D) to prevent or delay the release of
information that does not require protection in
the interest of transportation security,
including basic scientific research information
not clearly related to transportation security.
(c) Transfers of duties and powers prohibited.--Except as
otherwise provided by law, the Under Secretary may not transfer
a duty or power under this section to another department,
agency, or instrumentality of the United States Government.