[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.

                                  
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