U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

99–010

" ! SENATE 107th Congress

2d Session

REPORT

2002

107–293

Calendar No. 623

AVIATION SECURITY IMPROVEMENT ACT

REPORT

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND

TRANSPORTATION

ON

S. 2949

SEPTEMBER 30, 2002.—Ordered to be printed
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ERNEST F. HOLLINGS, South Carolina, Chairman

DANIEL K. INOUYE, Hawaii

JOHN D. ROCKEFELLER IV, West Virginia

JOHN F. KERRY, Massachusetts

JOHN B. BREAUX, Louisiana

BYRON L. DORGAN, North Dakota

RON WYDEN, Oregon

MAX CLELAND, Georgia

BARBARA BOXER, California

JOHN EDWARDS, North Carolina

JEAN CARNAHAN, Missouri

BILL NELSON, Florida

JOHN MCCAIN, Arizona

TED STEVENS, Alaska

CONRAD BURNS, Montana

TRENT LOTT, Mississippi

KAY BAILEY HUTCHISON, Texas

OLYMPIA J. SNOWE, Maine

SAM BROWNBACK, Kansas

GORDON SMITH, Oregon

PETER G. FITZGERALD, Illinois

JOHN ENSIGN, Nevada

GEORGE ALLEN, Virginia

KEVIN D. KAYES, Staff Director

MOSES BOYD, Chief Counsel

GREGG ELIAS, General Counsel

JEANNE BUMPUS, Republican Staff Director and General Counsel

ANN BEGEMAN, Republican Deputy Staff Director

ROBERT W. CHAMBERLIN, Republican Chief Counsel

(II)
Calendar No. 623

107TH CONGRESS REPORT

2d Session " ! SENATE 107–293

AVIATION SECURITY IMPROVEMENT ACT

SEPTEMBER 30, 2002.—Ordered to be printed

Mr. HOLLINGS, from the Committee on Commerce, Science, and

Transportation, submitted the following

R E P O R T

[To accompany S. 2949]

The Committee on Commerce, Science, and Transportation, to

which was referred the bill (S. 2949) to provide for enhanced aviation security, and for other purposes, having considered the same,

reports favorably thereon with amendments and recommends that

the bill (as amended) do pass.

PURPOSE OF THE BILL

On September 11, 2001, terrorists used United States commercial aircraft as guided missiles, killing thousands of innocent victims in New York, Washington, D.C., and Pennsylvania. The unprecedented attacks led to passage of the Aviation and Transportation Security Act (ATSA, P.L. 107-71, November 19, 2001). President Bush signed the legislation after two months of debate between the Senate and the House of Representatives over the issue

of the responsibilities of the Federal government to provide security

for the Nation’s aviation system. Ultimately, Congress placed primary responsibility for aviation security with the Federal government.

S. 2949 is intended to address a number of issues that have arisen since the passage of ATSA, including the ability of the Transportation Security Administration (TSA) to complete its formidable

task of installing explosive detection systems (EDS) at airports and

ensuring that carriers have available, for the short term, war risk

insurance coverage. The bill also makes technical corrections to

ATSA.

Since enactment of ATSA, the newly created TSA has struggled

to meet aggressive Congressional deadlines to hire, train, and deploy more than 30,000 Federal security screeners (by November 18,
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1The term EDS commonly refers to Federal Aviation Administration-certified EDSs, which

are essentially complex X-ray machines. The most widely deployed EDS machine uses computer

tomography technology, much like a medical CAT scan, to take numerous cross-sectional images

of a bag. Unlike normal X-ray machines that are used to examine carry-on bags, EDSs are designed to detect threats automatically, without human analysis or intervention. EDS machines

are about the size and weight of a sport utility vehicle. 2To protect against bombings by terrorists unwilling to commit suicide, the positive passenger-bag matching procedure matches passengers with their checked bags, and bags whose

owners do not actually board the aircraft are removed before takeoff. Before this year, this procedure was used primarily on international flights. 3 Airlines use a computer program, known as the Computer Assisted Passenger Prescreening

System (CAPPS), to select those passengers who pose the greatest risk and whose baggage

should be subject to a more rigorous inspection. Because most passengers do not fit the computer profile, most checked baggage is not subject to examination by an EDS.

2002), and thousands of air marshals, and to install new EDS by

December 31, 2002. Admiral Loy (Ret.), the Acting Under Secretary

of Transportation for Security, testified before the Senate Committee on Commerce, Science, and Transportation (the Committee)

on September 10, 2002, that TSA would hire 32,000 screeners by

mid-September and anticipated meeting the November 18 deadline.

With respect to the December 31, 2002, EDS deadline, Admiral Loy

noted that more than 90 percent of the airports would be ready although a few airports would need additional time.

BACKGROUND AND NEEDS

The bill contains elements of several introduced bills referred to

the Committee, including the following: S. 1794, the Airport Checkpoint Enhancement Act (Senator Cleland); S. 1980, regarding detection of false identification (Senator Boxer); S. 2656, regarding air

cargo security (Senator Snowe); S. 2668, regarding cargo security

(Senator Hutchison); S. 2735, the Aviation Security Enhancement

Act of 2002 (Senator Ensign); and S. 2642, regarding flight school

training (Senator Nelson of Florida).

I. BACKGROUND

On November 16, 2001, Congress passed ATSA in response to the

terrorist attacks on September 11. The Act, which was signed into

law on November 19, implemented a new regime for aviation security and created the TSA within the Department of Transportation

(DOT) to oversee security for all modes of transportation. ATSA includes numerous provisions and deadlines intended or designed to

increase aviation security.

II. SCREENING OF CHECKED BAGS

ATSA sets forth numerous deadlines for DOT and TSA to meet

in an effort to continually improve aviation security. One of the

first significant deadlines involved the screening of all checked

bags by January 18, 2002, which was 60 days after enactment of

the new law.

To meet this deadline, TSA required continuous use of certified

bulk EDS 1 to screen checked bags at those airports where EDS are

located, and ensured the use of positive passenger bag match 2 for

checked baggage screening at those airports where EDS is currently unavailable. Also, as before September 11, the bags of passengers selected by CAPPS 3 will continue to be screened by EDS.

ATSA provided other security improvements as well, including
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4 ETD devices can detect the presence of explosive materials in a passenger’s checked or carryon bags. Using ETD equipment, a screener swabs baggage and puts the results through a machine that looks for the residue of certain chemicals that remain on a bag for an extended period

of time. ETD machines are much smaller and lighter than EDSs.

greater use of explosive trace detection systems (ETD) 4 on checked

baggage, more use of explosive detection canine teams, and physical inspection of some checked bags.

When bag-match is the method used to screen checked bags

under guidelines issued by DOT, it is only being done on originating flights, not on connecting flights. This has raised the concerns of some that bag-match must be done on each segment of a

trip if it is to be an effective deterrent. DOT estimates that about

70 percent of all bags fly directly to their destination, while 30 percent make a connection. It is this 30 percent of baggage that appears to potentially pose a risk under the DOT’s guidelines. The

airlines contend that if bag matching requirements are extended to

connecting bags, the system will slow down significantly each time

an airline employee has to climb inside a cargo hold and remove

a bag because the passenger did not board the connecting flight.

TSA is currently using a pilot program to test the feasibility of requiring bag match on connecting flights. Information provided by

Professor Barrett, of the Massachusetts Institute of Technology,

suggests that passenger bag match can be improved.

In addition to the January 18 deadline, ATSA established another firm deadline regarding the screening of all checked baggage.

By December 31, 2002, the Under Secretary of Transportation for

Security is required to take all necessary action to ensure that EDS

are deployed at 429 United States airports in sufficient numbers to

screen all checked baggage. On May 18, 2002, TSA issued a statutorily-mandated report to the congressional authorizing committees

on the deployment of systems to detect explosives pursuant to

ATSA.

The May 18 report included a general installation schedule. In

order to meet the end-of-the-year deadline, DOT has decided to use

a mix of the EDS machines and ETD equipment. At some airports,

ETD devices will be the only ones used, while a combination of

EDS and ETD will be used at other airports. About three-quarters

of airports would use ETDs exclusively.

On June 7, TSA entered into a contract with Boeing to conduct

site surveys and to install the EDS/ETD equipment at all of the

429 airports.

As of the end of September 2002, 140 EDS machines and 789

ETD devices were deployed at airports throughout the country. For

fiscal year (FY) 2002, DOT has requested additional funds to purchase a significant amount of additional equipment: 1,100 EDS

units and 5,373 ETD units (1,100 of which will be used in conjunction with the EDS units). Many, if not most, of the EDS machines

will be installed in airport lobbies because it is not possible to integrate them into the hundreds of different baggage handling systems by the end of the year. Ultimately, TSA plans to have such

equipment integrated into baggage handling systems, but it may

take many years and cost a significant amount of money. Given the

large size and weight of EDSs, even airport lobby installations at

some airports can be problematic.
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5 ATSA requires that ‘‘if explosive detection equipment at an airport is unavailable, all

checked baggage is screened by an alternative means.’’ The law listed the following four possible

alternative means for the screening of checked baggage: (1) a positive passenger bag match program; (2) manual search, which involves opening the bag and searching through it by hand; (3)

search by canine explosive detection units (i.e., bomb sniffing dogs) in combination with other

means; or (4) other means or technology approved by the Under Secretary for Transportation

Security.

According to DOT Secretary Mineta, the decision to use ETD

equipment was based on balancing limited financial resources to

meet the statutory mandate. That decision was the result of negotiations between DOT and the Office of Management and Budget

and hinged, in part, on the fact that each EDS machine costs approximately $1.1 million (including installation) and thousands

would be needed to cover all 429 airports. Some are concerned that

smaller, rural airports, which are not as likely to get EDS machines, will be affected significantly as people decide to forgo the

new security-related hassles involved with flying and choose to

drive unless there is a dignified, secure way to have bags opened

for ETD swabbing. The decision to use ETD’s also drives the number of employees needed higher, as the baggage throughput rate for

EDS is higher than for ETD’s-it takes approximately three ETDs

to equal the throughput of the automated EDS machines.

At the September 10 hearing, Admiral Loy acknowledged that

TSA would not be able to meet the deadline at a small number of

airports-fewer than 10 percent of the 429 airports covered by the

law. In many of those cases, it would not be physically possible in

the time remaining to install EDS equipment without severe disruptions of airport operations. He did note that those airports that

may miss the deadline serve a significant majority of airline passengers. In other words, the relatively small number of airports

where the deadline cannot be met account for most of the passenger traffic. Admiral Loy stated that he did not support a wholesale delay in the December 31 deadline. Instead, he said that TSA

would work with those airports that needed a modest amount of

additional time to meet the requirements of the law. In the interim, bags will be screened by one of the alternate means already

provided for in the law. 5

B. AIR CARGO SECURITY

With respect to cargo that is transported by air, ATSA contained

two key provisions. The first dealt with passenger aircraft and required that TSA provide for the screening of all cargo and mail

that will be carried aboard such aircraft. Although ATSA requires

all checked bags to be screened by EDS by December 31, 2002, no

timetable was specified for screening cargo, nor was there a definition of screening provided. The second provision required that a

system must be in operation to screen, inspect, or otherwise ensure

the security of all cargo that is to be transported in all-cargo aircraft as soon as practicable after the date of enactment of ATSA.

Almost all passenger flights carry cargo alongside luggage in the

belly of the plane. It can be anything from pallets of computer

chips to refrigerated cartons of chicken. According to Federal Aviation Administration (FAA) estimates, approximately 22 percent of

all air cargo loaded in the United States in 2000 was carried on

passenger flights.
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1. ACTIVITY BEFORE SEPTEMBER 11

The air-cargo system involves numerous participants and all require some level of security oversight. Typically, a shipper takes

packages to an indirect air carrier (IAC, also known as a freight

forwarder), who consolidates packages from many shippers into

containers. The IAC then uses trucks, either its own or hired, to

deliver the bulk freight to air carriers for transport.

Before last year’s attack, the FAA was generally responsible for

oversight of civil aviation security. Much of the focus of regulation

and oversight was on cargo carried aboard passenger aircraft.

There were few security measures applicable to items carried on

all-cargo aircraft.

Front-line responsibility for screening cargo fell on two groups:

air carriers and IACs. (An IAC is defined as any person or entity,

excluding an air carrier, that engages indirectly in the transportation of property by air, and uses the services of a passenger air

carrier. This does not include the United States Postal Service.)

Both were required to adopt and carry out FAA-approved security

programs.

The key element of cargo security before last year was the

Known Shipper Program. A known shipper is essentially one that

has an established reputation. This program allowed an air carrier

or IAC to transport a package with no more screening than an examination of its exterior. Packages from unknown shippers would

be screened by X-ray or physically inspected before being placed

aboard a passenger aircraft.

Before September 11, the DOT Inspector General (IG) had been

conducting tests of cargo security. The IG found that air carriers

and IACs were not always complying with the FAA’s known shipper program, and the FAA had not developed and implemented an

adequate policy or oversight system to ensure compliance.

2. ACTIONS SINCE SEPTEMBER 11

ATSA placed responsibility for virtually all aviation security matters, including air cargo, under the jurisdiction of TSA. But prior

to the enactment of ATSA, a number of important changes were

implemented after September 11 regarding the shipment of cargo

on passenger air carriers. One of the main changes is that only

cargo from known shippers is accepted on passenger air carriers.

All cargo from unknown shippers and mail weighing more than 16

ounces is being diverted to all-cargo air carriers until further notice.

The continuation of the Known Shipper Program is TSA’s primary means of compliance with ATSA screening mandates. According to the agency, it has strengthened the process through which

a shipper becomes ‘‘known.’’

Many of the other changes implemented by TSA are sensitive or

classified information.

3. AIR CARGO ISSUES AND CONCERNS

One of the key problems with any attempt to examine all cargo

on passenger aircraft at this time is that any type of physical inspection or electronic screening would be extremely difficult to

carry out-technology limitations, cost, and time factors all are prob-
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lematic because the size and nature of air cargo can vary widely.

According to one media report, TSA computer models have determined that breaking down all cargo containers, inspecting, and reassembling them would allow airports to process only 4 percent of

the freight they receive daily.

The IG has expressed some concerns that TSA’s cargo security

program continues to rely on the Known Shipper Program, which

has weaknesses, and that little cargo is actually screened. The IG

believes that TSA must reevaluate its program to determine

whether current procedures should be retained, identify new principles and controls that should be added, and develop a strategic

plan to screen all cargo. In addition, the IG advocates a requirement that a provider of cargo transportation lose its certification

when TSA inspections and testing have continuously found the provider in noncompliance with cargo security requirements.

LEGISLATIVE HISTORY

S. 2949 was introduced on September 17 by Senator Hollings. It

was co-sponsored by Senators McCain, Rockefeller, Hutchison,

Boxer, Kerry, and Reid. Since the beginning of the year, the Committee has held 6 hearings on aviation security issues. The 2 most

recent hearings focused on the issues of (1) TSA’s ability to meet

the year-end deadline for deployment of EDS (held September 10),

and (2) air cargo security (held September 17). Both of these topics

are addressed in the legislation. The bill also includes a technical

amendment (Senators Hollings and McCain), as well as amendments regarding flight restrictions (Senator Breaux), flight schools

(Senator Nelson of Florida), and reports (Senator Hutchison).

ESTIMATED COSTS

In compliance with subsection (a)(3) of paragraph 11 of rule

XXVI of the Standing Rules of the Senate, the Committee states

that, in its opinion, it is necessary to dispense with the requirements of paragraphs (1) and (2) of that subsection in order to expedite the business of the Senate.

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:

The requirements of S. 2949 involve actions that the Federal government and aviation entities currently participate in on a routine

basis, and should produce limited additional regulatory impact on

related industries or burden on the government. The legislation

would have minimal 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.

NUMBER OF PERSONS COVERED

S. 2949 is intended to improve aviation security by making technical corrections and other modifications to P.L. 107-71, the Aviation and Transportation Security Act (ATSA). The bill affects TSA

and other entities already subject to FAA rules and regulations,
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and therefore the number of persons covered should be consistent

with the current levels of individuals impacted under the provisions that are addressed in the bill.

ECONOMIC IMPACT

S. 2949 is not expected to have an adverse impact on the nation’s

economy. A few provisions in the bill are expected to have a more

substantial economic effect than the rest of the legislation. Title I

of the legislation would provide some flexibility for TSA regarding

the deployment of EDSs at all commercial airports in the United

States, and, rather than requiring potentially expensive interim solutions, would allow for techniques that maintain customer service

while the process of implementing more efficient security systems

continues. Title V would improve the availability and coverage of

war risk insurance for aviation entities, a matter that is very significant to air carriers as their insurance rates have risen by hundreds of millions of dollars since September 11, 2001. It is anticipated that both Title I and Title V would have positive economic

impacts to their respective areas, and should provide significant

support to the aviation industry. Title II addresses cargo security

and would authorize the necessary funding to establish a system

that ensures all air cargo is secure by requiring TSA and the air

cargo industry to take steps to protect the system. Title II requires

a review and comment period for air carriers to assess proposed security plans which should limit the negative economic impact of

this provision to the industry. S. 2949 also has a number of additional requirements that are designed to strengthen existing security measures, but should have a limited impact in regard to cost.

PRIVACY

S. 2949 would have minimal effect on the privacy rights of individuals, but a provision on identification training raises the issue

of a person proving their identity, potentially with the aid of technology. The use of biometrics and other identifiers raise a number

of questions that need to be addressed by TSA to ensure that the

privacy rights of individuals are protected. Additionally, air cargo

and facilities may be subject to random searches to ensure the security of the operations.

Technical corrections that address the eligibility of non-citizens

to be screeners would increase the number of persons who must

undergo voluntary background checks, but also would provide the

individuals a benefit by expanding employment opportunities. The

bill also seeks to protect the privacy rights of persons needing background checks for unescorted access to secure areas of an airport

by requiring TSA to formulate and implement procedures to prevent the transmission of non-relevant information about an applicant or employee to the existing or potential employer.

PAPERWORK

The Committee does not anticipate a major increase in paperwork burdens resulting from the passage of this legislation. In

those areas where the bill does require additional paperwork, it is

aimed at improving the security of the national air transportation

system. S. 2949 would require plans from TSA for addressing EDS
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deployment at those airports that do not have the system properly

in place by the December 31, 2002, deadline, and approved security

plans for every shipper of cargo and their organization. The bill

also would require the establishment of a database to improve the

system by which known shippers of cargo are identified, and would

require reports to Congress on several security matters addressed

by other provisions.

SECTION-BY-SECTION ANALYSIS

TITLE I—EXPLOSIVE DETECTION SYSTEMS

This title is based, in part, on S. 2735 introduced by Senator Ensign. This title would allow TSA to determine whether the agency

will not be able to meet the December 31 deadline for the deployment of EDS equipment at particular airports. If such a determination is made, TSA would be required to (1) report to the congressional authorizing committees on a detailed plan to deploy EDS

equipment at each airport where the deadline will be missed and

(2) take all necessary action to ensure that alternate means of

screening checked bags are used in the meantime. TSA’s decision

to extend the installation schedule requires a plan to install the

equipment based on engineering, design, and construction issues

and take into account the effectiveness of the modifications, and

the feasibility and value of placing EDS in areas other than the

airport lobby. Further, TSA could make such determinations at no

more than 40 airports. Affected airports would be required to cooperate fully with TSA in its efforts to deploy equipment. Such airports also would be required to use their Airport Improvement Program (AIP) and Passenger Facility Charges (PFCs) on security

projects, to the extent such funds are available and not committed

for other projects. TSA would provide the congressional authorizing

committees with progress reports for each affected airport every 30

days. No more than 12 reports could be submitted for each airport.

Although up to 12 reports my be submitted, the Committee reiterates its expectation that TSA and the affected airports work as

quickly as possible to meet the statutory deadline. This bill does

not grant an extension to the congressionally mandated deadline;

it gives TSA the flexibility to work beyond that time frame in certain situations. It is important to the security of the traveling public that 100 percent baggabe screening be implemented as soon as

possible.

TITLE II—AIR CARGO SECURITY

This title is based, in part, on air cargo security bills introduced

by Senators Snowe (S. 2656) and Hutchison (S. 2668). This title

would take several steps to improve the security of air cargo, particularly that which is carried aboard passenger aircraft. TSA

would be required to develop a strategic plan to ensure that all air

cargo is screened, inspected, or otherwise made secure. TSA would

be required to develop a system for the regular inspection of air

cargo shipping facilities. A pilot program database would be established of known shippers in order to bolster the Known Shipper

Program. IACs could have their certificates revoked if TSA finds

that they are not adhering to security laws or regulations. The existing Federal security program for IACs would be reviewed and as-
9

sessed for possible improvements. TSA would develop a security

training program for persons who handle air cargo. All-cargo carriers would be required to develop security plans that would be

subject to approval by TSA. The Committee is taking these actions

in response to recommendations by the DOT Inspector General,

General Accounting Office and TSA.

TITLE III—IDENTIFICATION TRAINING

This title is based on S. 1980, a bill introduced by Senator Boxer.

This title would require TSA to develop protocols to provide guidance for the detection of false or fraudulent passenger identification

(ID). TSA would establish a joint government and industry council

to develop recommendations on the implementation of the protocols. TSA would be allowed to implement a program requiring the

use of identification verification technologies at commercial airports. The Committee is concerned about recent reports that false

IDs are being used at airports and believes TSA should study this

issue carefully to consider alternative ways to ensure the accuracy

of passenger ID.

TITLE IV—CIRCUMVENTION OF AIRPORT SECURITY

This title contains the text of a bill introduced by Senator

Cleland, S. 1794, the Airport Checkpoint Enhancement Act. This

title would establish criminal penalties for individuals who intentionally circumvent security checkpoints at commercial airports.

The penalties would include imprisonment for up to 10 years or a

fine as prescribed by Title 18 of the United States Code, or both.

In Georgia, for example, an individual who willfully violates the secure area of an airport, prior to this bill, is only subject to a misdemeanor, which carries a maximum penalty involving a civil fine

up to $1,100 and a year in jail.

TITLE V—WAR RISK INSURANCE

This title would provide for a nine-month extension of the FAA’s

current war risk policies. In addition, this title would expand existing coverage and allow the FAA to provide passenger and hull insurance for the next nine months. This would provide temporary

relief to the airlines as they continue to work toward a risk sharing, self-insurance solution. DOT would report to Congress on

issues associated with war risk insurance.

Existing law establishes a ‘‘war risk’’ insurance program within

the FAA. The program has been invoked several times since it was

established in 1951 (e.g., Gulf War) and is currently in use today.

Under the program, the carriers are able to purchase insurance for

war risk coverage through the FAA.

War risk coverage is required by loan and lease covenants from

aircraft lessors, and the financial institutions. Prior to September

11, such coverage was very inexpensive, and in cases where aircraft

were put in harms way, the FAA was able to provide coverage.

After September 11, insurance carriers canceled such coverage.

Some claim the coverage is commercially available today, but it

should be pointed out that, according to some estimates, $1 billion

of coverage costs $1.4 billion.
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One low-fare carrier has stated that its costs have gone up about 13,000 percent from about $737,000 per year to $107 million per

year ($7 million for third party liability, $4 million for hull, and

$96 million for passenger and crew coverage insurance). Aviation

insurance generally includes hull, passenger, crew, and third party

coverage (persons/property on the ground, for example). The FAA

today is offering only third party coverage, and for only 60 days at

a time. The FAA has authority, however, to extend coverage for up

to 1 year (under ATSA, the extension period was changed from 60

days to 1 year, but DOT/FAA has only extended it for 60 days at

a time).

Currently, carriers obtain third party coverage for the first $50

million from the private sector, and the FAA provides coverage at

two times the amount the carrier had on September 10, 2001. Carriers pay a fee per passenger to the FAA.

The Committee is cognizant of the financial difficulties facing the

airline industry. This section is intended to relieve, in the short,

but finite, term, a financial burden the industry now faces. The

provision provides coverage for 270 days to provide short-term assistance. Ultimately, the Committee expects that the industry will

develop their own alternative plans or be able to return to the private markets. The title thus requires DOT to submit a report on

such alternatives.

TITLE VI—BLAST RESISTANT CARGO CONTAINER TECHNOLOGY

This title provides that, within 9 months of enactment, TSA

would report to Congress on an evaluation of the use of blast-resistant cargo containers to protect against explosives in passenger

luggage and cargo. If TSA determines that further actions are

needed, the report would provide appropriate recommendations.

The Committee is aware that a number of manufacturers of blast

resistant technology have been reviewed by TSA and the FAA, but

a number of issues remain to be addressed.

TITLE VII—FLIGHT SCHOOLS

This title would amend section 44939 of title 49 (section 113 of

ATSA) regarding background checks of persons seeking training at

United States flight schools. Under ATSA, aliens seeking such

training for aircraft over 12,500 pounds are subject to background

checks under procedures proposed by the Department of Justice

(DOJ). The Committee is aware that DOJ has not yet issued procedures to implement section 113; as a result, this section requires

DOJ to issue such procedures within 30 days of enactment.

This title would extend the original provisions of section 113 to

all aliens seeking flight school training. As a result, aliens seeking

training on small aircraft would be subject to such screening. The

screening requirements do not apply to an alien who already has

earned an FAA-type rating, or who already holds a commercial pilot’s license. The provision also limits any training prior to a background check to only ground training.

The use of overseas Embassies and Consulates to transmit fingerprints, where capable, is also required.

The title would also require DOJ to implement the new requirements within 120 days for aliens seeking flight training on small

aircraft.
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TITLE VIII—MISCELLANEOUS

Section 801 would require TSA to act expeditiously on applications pending that seek approval for authority to use less-than-lethal weapons by flight crews. The Committee is aware that the Administration has expressed substantial reservations about the use

of lethal weapons by pilots, and under ATSA, TSA was given authority to determine if the use of lethal, non-lethal, or other actions, would enhance security. One carrier has filed an application

for approval of less-than-lethal force, and it has been pending for

over nine months at TSA. The Committee provision does not seek

approval or disapproval, but rather seeks a decision from TSA on

the issue.

Section 802 would require DOT to maintain the flight restrictions imposed under FAA Notices to Airman (FDC1/3353 and 2/

9583, including any local notices to Airmen of similar effect or import) for 6 months. The current ban includes stadiums and large

open air venues. During the 6 month time period, DOT is directed

to establish waiver/exemption procedures. During the 6 month ban

the FAA is allowed to grant waivers and restrictions necessary for

air traffic control operational purposes. The Committee expects

that such authority includes emergency flights and flights necessary for law enforcement purposes.

TITLE IX—TECHNICAL CORRECTIONS

Section 901 includes technical corrections that range from typographical corrections to changes needed to clarify or effectuate the

intention of particular provisions in ATSA. Unless otherwise indicated, all references are to title 49, United States Code.

Subsection (a).—49 U.S.C. 114(j) sets forth acquisition authorities

of the Under Secretary of Transportation for Security (Under Secretary) but in paragraph (1)(D), incorrectly refers to the Secretary

of Transportation rather than the Under Secretary. This subsection

would correct the reference.

Subsection (b).—49 U.S.C. 115 establishes the Transportation Security Oversight Board (TSOB) and assigns it duties, including the

duty to review ‘‘emergency regulations and security directives’’

issued by TSA without notice and comment by the public. However,

the scope of review specified by section 115(c)(1) (‘‘review and ratify

or disapprove’’) burdens the TSOB with taking an action in each

case. It is also inconsistent with the underlying emergency authority at 49 U.S.C. 114(l)(2), which provides ‘‘[a]ny regulation or security directive issued under this paragraph shall remain effective

unless disapproved by the Board or rescinded by the Under Secretary.’’ This subsection would provide the TSOB with review authority that only necessitates action in the case of a disapproval.

Subsection (c).—This subsectin would delete a superseded reference to chapter 449 from a listing of FAA authorities because

every section of the chapter except 44918 has been transferred to

TSA.

Subsection (d).—Under 44901(a) (Screening of passengers and

property carried aboard passenger aircraft), all screening must be

carried out by Federal government employees starting on November 19, 2002, except for identifying passengers and baggage for

screening under the CAPPS and known shipper programs. Under
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this provision, the term ‘‘Federal government employee’’ is defined

by reference to 5 U.S.C. 2105, which excludes employees of the

United States Postal Service. The exclusion of Postal Service employees as potential Federal screeners precludes TSA and the Postal Service from pursuing the possibility of having United States

mail carried aboard passenger flights screened by postal employees

(in accordance with standards and procedures established by TSA).

As TSA considers options for ensuring that such mail is screened,

the involvement of the Postal Service may be part of the solution.

Moreover, Postal Service employees are already Federal employees

for a number of purposes and they perform a Federal function.

Therefore, the inclusion of Postal Service employees as eligible

screeners for United States mail aligns with the intent of Congress

in assigning the screening function to Federal employees. Therefore, this subsection would specify that, for purposes of section

44901(a), United States mail carried aboard passenger aircraft may

be screened by employees and officers of the Postal Service.

Subsections (e) and (f).—These subsections would correct in one

case, and delete in another, incorrect cross-references in 49 U.S.C.

44901(e) and (g).

Subsection (g).—Among other things, section 44903 mandates establishment of 20 or more pilot programs for testing and evaluation

of airport secure-area access-control technologies but, in subsection

(c)(3), incorrectly refers to the FAA Administrator rather than the

Under Secretary. This subsection corrects the reference. Also, the

ATSA added 3 provisions to 49 U.S.C. 44903 as ‘‘subsection (h).’’ Items (2) and (3) of this subsection would redesignate 2 of the 3

subsections.

Subsection (h).—This subsection would clarify that the ‘‘Under

Secretary’’ reference in 49 U.S.C. 44909(c)(2)(F) is a reference to

the Under Secretary of Transportation for Security. Also, an obsolete deadline (March 1991) would be deleted from the text of 49

U.S.C. 44909(a)(1).

Subsection (i).—49 U.S.C. 44935(e)(2)(A)(ii) requires that every

security screening employee hired by TSA be ‘‘a citizen of the

United States.’’ This excludes a ‘‘national of the United States,’’ as

defined in section 1101(a)(22) of the Immigration and Nationality

Act (8 U.S.C. 1101(a)(22)) and other persons eligible to serve in the

United States armed forces. Section 1101(a)(22) defines a ‘‘national

of the United States’’ as either a United States citizen or a noncitizen who ‘‘owes permanent allegiance to the United States.’’ The

citizens of American Samoa, a United States territory, are the principal remaining population that enjoy ‘‘United States national’’ status under our laws (along with residents of Swains Island).

The purpose of this subsection is to permit lawful permanent

resident aliens currently employed as airport baggage screeners to

retain their jobs provided they meet all of the new qualifications

and successfully pass the background checks mandated by ATSA.

It would also permit United States nationals and lawful permanent residents who were honorably discharged from the armed

forces of the United States to remain eligible for airport security

screener positions, provided they meet all the other requirements

other than United States citizenship.

The subsection would amend the Aviation and Transportation

Security Act by permitting several exceptions to the prohibition on
13

the hiring of non-citizens to be airport security screeners. The exceptions include: •Nationals of the United States;

•Persons born in a territory of the United States;

•Veterans honorably discharged from the armed forces of the

United States; and •Aliens lawfully admitted for permanent residence, as defined in section 101(a)(20) of the Immigration and Nationality

Act (8 U.S.C. 1101(a)(20)), and employed to perform security

screening services at an airport in the United States on the

date of enactment of P.L.107-71.

Also, the designation of the last subsection of section 44935

would be changed from (i) to (k) to eliminate a conflict with another subsection (i) earlier in the section.

Subsection (j).—This subsection corrects an incorrect reference.

Subsection (k).—Paragraph (1) would ensure that security fees

may be based on costs incurred by TSA to deploy not only Federal

law enforcement personnel, but also State or local law enforcement

personnel. Paragraph (2) would make a technical correction. Paragraph (3) would ensure the continuity of the collection of passenger

fees. The wording of section 44940(d)(4) suggests a possibility that

passenger security fee collections must stop if they exceed the appropriated funding level. Stopping and restarting the collections

process is administratively difficult. This change would enable DOT

to continue collections of passenger fees, while still reserving

spending authority for appropriations legislation.

Subsection (l).—Although section 140(d) of the Aviation and

Transportation Security Act amended the Penalties chapter of Subtitle VII of title 49 to cover violations of law enforced by TSA as

well as the FAA, the chapter was not updated with a penalty-level

structure that would reflect the enormity of consequences that can

follow from a terrorist act and therefore the importance of penalizing violations of TSA security regulations and orders. This subsection would raise the basic $1,000-per-violation level of the Federal aviation statute (in place since the 1950’s and only adjusted

upward for inflation since 1997 to about $1,100 per violation) to

$10,000 for aviation security violations by persons and $25,000 for

air carriers. The modification would make no change to (1) the penalty structure for safety violations or (2) the current-law maximum

penalty of $25,000 for individuals that interfere with a cabin or

flight crew.

Subsection (m).—The modifications in subsection (m) would also

build on section 140 of ATSA by transferring from the FAA to TSA

administrative-civil-penalty responsibility for 2 violations in current law that are directed to aircraft security and should be enforced by TSA. They prohibit an individual from (1) providing false

information about hijackings and other matters (section 46302),

and (2) carrying a weapon when on or attempting to board an aircraft (section 46303). In addition, subsection (v) would also authorize TSA to impose civil penalties against persons who interfere

with a cabin or flight crew (section 46318).

Subsection (n).—This subsection would correct a typographical

error.

Subsection (o).—This subsection would delete the qualifier

‘‘screening’’ from the section heading of 49 U.S.C. 46503 because
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the coverage of the section is broader than screening personnel,

and extends to any Federal, airport, or air carrier employee with

security duties within an airport.

Subsection (p).—This subsection would correct two typographical

errors.

Subsections (q) through (aa), other than (s).—These subsections

woudl correct a number of typographical errors in chapter 449 and

in the Aviation and Transportation Security Act.

Subsection (s).—This subsection would seek to protect the privacy

of applicants and employees from the transmission of non-relevant

information to a potential or current employer. The Committee

wants to ensure that inappropriate information is not divulged.

Subsection (bb).—The terminology in ATSA differs by 1 pound

from the standard terminology used by the FAA to distinguish between aircraft weight categories, thus bringing under regulation (in

section 132(a) of ATSA (security regulation of charter aircraft operations)) a large population of aircraft that were not intended to be

covered by Congress. This subsection would modify the terminology

in section 132(a) to align with the standard distinction.

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 49. TRANSPORTATION

SUBTITLE I—DEPARTMENT OF TRANSPORTATION

CHAPTER 1. ORGANIZATION

§ 106. Federal Aviation Administration

(a) The Federal Aviation Administration is an administration in

the Department of Transportation.

(b) The head of the Administration is the Administrator. The Administration has a Deputy Administrator. They are appointed by

the President, by and with the advice and consent of the Senate.

When making an appointment, the President shall consider the fitness of the individual to carry out efficiently the duties and powers

of the office. Except as provided in subsection (f) or in other provisions of law, the Administrator reports directly to the Secretary of

Transportation. The term of office for any individual appointed as

Administrator after August 23, 1994, shall be 5 years.

(c) The Administrator must—

(1) be a citizen of the United States;

(2) be a civilian; and

(3) have experience in a field directly related to aviation.

(d)(1) The Deputy Administrator must be a citizen of the United

States and have experience in a field directly related to aviation.

An officer on active duty in an armed force may be appointed as

Deputy Administrator. However, if the Administrator is a former

regular officer of an armed force, the Deputy Administrator may

not be an officer on active duty in an armed force, a retired regular
15

officer of an armed force, or a former regular officer of an armed

force.

(2) An officer on active duty or a retired officer serving as Deputy

Administrator is entitled to hold a rank and grade not lower than

that held when appointed as Deputy Administrator. The Deputy

Administrator may elect to receive (A) the pay provided by law for

the Deputy Administrator, or (B) the pay and allowances or the retired pay of the military grade held. If the Deputy Administrator

elects to receive the military pay and allowances or retired pay, the

Administration shall reimburse the appropriate military department from funds available for the expenses of the Administration.

(3) The appointment and service of a member of the armed forces

as a Deputy Administrator does not affect the status, office, rank,

or grade held by that member, or a right or benefit arising from

the status, office, rank, or grade. The Secretary of a military department does not control the member when the member is carrying out duties and powers of the Deputy Administrator.

(e) The Administrator and the Deputy Administrator may not

have a pecuniary interest in, or own stock in or bonds of, an aeronautical enterprise, or engage in another business, vocation, or employment.

(f) AUTHORITY OF THE SECRETARY AND THE ADMINISTRATOR.—

(1) AUTHORITY OF THE SECRETARY.—Except as provided in

paragraph (2), the Secretary of Transportation shall carry out

the duties and powers, and controls the personnel and activities, of the Administration. Neither the Secretary nor the Administrator may submit decisions for the approval of, or be

bound by the decisions or recommendations of, a committee,

board, or organization established by executive order.

(2) AUTHORITY OF THE ADMINISTRATOR.—The

Administrator—

(A) is the final authority for carrying out all functions,

powers, and duties of the Administration relating to—

(i) the appointment and employment of all officers

and employees of the Administration (other than Presidential and political appointees);

(ii) the acquisition and maintenance of property and

equipment of the Administration;

(iii) except as otherwise provided in paragraph (3),

the promulgation of regulations, rules, orders, circulars, bulletins, and other official publications of the

Administration; and

(iv) any obligation imposed on the Administrator, or

power conferred on the Administrator, by the Air Traffic Management System Performance Improvement

Act of 1996 (or any amendment made by that Act);

(B) shall offer advice and counsel to the President with

respect to the appointment and qualifications of any officer

or employee of the Administration to be appointed by the

President or as a political appointee;

(C) may delegate, and authorize successive redelegations

of, to an officer or employee of the Administration any

function, power, or duty conferred upon the Administrator,

unless such delegation is prohibited by law; and
16

(D) except as otherwise provided for in this title, and

notwithstanding any other provision of law, shall not be

required to coordinate, submit for approval or concurrence,

or seek the advice or views of the Secretary or any other

officer or employee of the Department of Transportation on

any matter with respect to which the Administrator is the

final authority.

(3) REGULATIONS.— (A) IN GENERAL.—In the performance of the functions of

the Administrator and the Administration, the Administrator is authorized to issue, rescind, and revise such regulations as are necessary to carry out those functions. The

issuance of such regulations shall be governed by the provisions of chapter 5 of title 5. The Administrator shall act

upon all petitions for rulemaking no later than 6 months

after the date such petitions are filed by dismissing such

petitions, by informing the petitioner of an intention to dismiss, or by issuing a notice of proposed rulemaking or advanced notice of proposed rulemaking. The Administrator

shall issue a final regulation, or take other final action,

not later than 16 months after the last day of the public

comment period for the regulations or, in the case of an

advanced notice of proposed rulemaking, if issued, not

later than 24 months after the date of publication in the

Federal Register of notice of the proposed rulemaking. On

February 1 and August 1 of each year the Administrator

shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the

Senate a letter listing each deadline the Administrator

missed under this subparagraph during the 6-month period ending on such date, including an explanation for

missing the deadline and a projected date on which the action that was subject to the deadline will be taken.

(B) APPROVAL OF SECRETARY OF TRANSPORTATION.— (i) The Administrator may not issue a proposed regulation or final regulation that is likely to result in the

expenditure by State, local, and tribal governments in

the aggregate, or by the private sector, of $

250,000,000 or more (adjusted annually for inflation

beginning with the year following the date of the enactment of the Wendell H. Ford Aviation Investment

and Reform Act for the 21st Century) in any year, or

any regulation which is significant, unless the Secretary of Transportation approves the issuance of the

regulation in advance. For purposes of this paragraph,

a regulation is significant if the Administrator, in consultation with the Secretary (as appropriate), determines that the regulation is likely to— (I) have an annual effect on the economy of $

250,000,000 or more or adversely affect in a substantial material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or

tribal governments or communities; or
17

(II) raise novel or significant legal or policy

issues arising out of legal mandates that may substantially and materially affect other transportation modes.

(ii) In an emergency, the Administrator may issue a

regulation described in clause (i) without prior approval by the Secretary, but any such emergency regulation is subject to ratification by the Secretary after

it is issued and shall be rescinded by the Administrator within 5 days (excluding Saturdays, Sundays,

and legal public holidays) after issuance if the Secretary fails to ratify its issuance.

(iii) Any regulation that does not meet the criteria

of clause (i), and any regulation or other action that is

a routine or frequent action or a procedural action,

may be issued by the Administrator without review or

approval by the Secretary.

(iv) The Administrator shall submit a copy of any

regulation requiring approval by the Secretary under

clause (i) to the Secretary, who shall either approve it

or return it to the Administrator with comments within 45 days after receiving it.

(C) PERIODIC REVIEW.—

(i) Beginning on the date which is 3 years after the

date of the enactment of the Air Traffic Management

System Performance Improvement Act of 1996, the

Administrator shall review any unusually burdensome

regulation issued by the Administrator after such date

of enactment beginning not later than 3 years after

the effective date of the regulation to determine if the

cost assumptions were accurate, the benefit of the regulations, and the need to continue such regulations in

force in their present form.

(ii) The Administrator may identify for review under

the criteria set forth in clause (i) unusually burdensome regulations that were issued before the date of

the enactment of the Air Traffic Management System

Performance Improvement Act of 1996 and that have

been in force for more than 3 years.

(iii) For purposes of this subparagraph, the term

‘‘unusually burdensome regulation’’ means any regulation that results in the annual expenditure by State,

local, and tribal governments in the aggregate, or by

the private sector, of $25,000,000 or more (adjusted

annually for inflation beginning with the year following the date of the enactment of the Air Traffic

Management System Performance Act of 1996) in any

year.

(iv) The periodic review of regulations may be performed by advisory committees and the Management

Advisory Council established under subsection (p).

(4) Definition of political appointee. For purposes of this subsection, the term ‘‘political appointee’’ means any individual

who—
18

(A) is employed in a position listed in sections 5312

through 5316 of title 5 (relating to the Executive Schedule);

(B) is a limited term appointee, limited emergency appointee, or noncareer appointee in the Senior Executive

Service, as defined under paragraphs (5), (6), and (7), respectively, of section 3132(a) of title 5; or

(C) is employed in a position in the executive branch of

the Government of a confidential or policy-determining

character under schedule C of subpart C of part 213 of

title 5 of the Code of Federal Regulations.

(g) DUTIES AND POWERS OF ADMINISTRATOR.— (1) Except as provided in paragraph (2) of this subsection,

the Administrator shall carry out— (A) duties and powers of the Secretary of Transportation

under subsection (f) of this section related to aviation safety (except those related to transportation, packaging,

marking, or description of hazardous material) and stated

in sections 308(b), 1132(c) and (d), 40101(c), 40103(b),

40106(a), 40108, 40109(b), 40113(a), 40113(c), 40113(d),

40113(e), 40114(a), and 40119, chapter 445 (except sections

44501(b), 44502(a)(2), 44502(a)(3), 44502(a)(4), 44503,

44506, 44509, 44510, 44514, and 44515), chapter 447 (except sections 44717, 44718(a), 44718(b), 44719, 44720,

44721(b), 44722, and 44723), chapter 449 (except sections

44903(d), 44904, 44905, 44907-44911, 44913, 44915, and

44931-44934), chapter 451, chapter 453, sections 46104,

46301(d) and (h)(2), 46303(c), 46304-46308, 46310, 46311,

and 46313-46316, chapter 465, and sections 47504(b) (related to flight procedures), 47508(a), and 48107 of this

title; and

(B) additional duties and powers prescribed by the Secretary of Transportation.

(2) In carrying out sections 40119, 44901, 44903(a)-(c) and

(e), 44906, 44912, 44935-44937, 44938(a) and (b), and 48107 of

this title, paragraph (1)(A) of this subsection does not apply to

duties and powers vested in the Director of Intelligence and

Security by section 44931 of this title.

(h) Section 40101(d) of this title applies to duties and powers

specified in subsection (g)(1) of this section. Any of those duties and

powers may be transferred to another part of the Department only

when specifically provided by law or a reorganization plan submitted under chapter 9 of title 5. A decision of the Administrator

in carrying out those duties or powers is administratively final.

(i) The Deputy Administrator shall carry out duties and powers

prescribed by the Administrator. The Deputy Administrator acts

for the Administrator when the Administrator is absent or unable

to serve, or when the office of the Administrator is vacant.

(j) There is established within the Federal Aviation Administration an institute to conduct civil aeromedical research under section 44507 of this title. Such institute shall be known as the ‘‘Civil

Aeromedical Institute’’. Research conducted by the institute should

take appropriate advantage of capabilities of other government

agencies, universities, or the private sector.

(k) AUTHORIZATION OF APPROPRIATIONS FOR OPERATIONS.—
19

(1) IN GENERAL.—There is authorized to be appropriated to

the Secretary of Transportation for operations of the

Administration— (A) such sums as may be necessary for fiscal year 2000;

(B) $6,592,235,000 for fiscal year 2001;

(C) $6,886,000,000 for fiscal year 2002; and

(D) $7,357,000,000 for fiscal year 2003.

Such sums shall remain available until expended.

(2) AUTHORIZED EXPENDITURES.—Out of amounts appropriated under paragraph (1), the following expenditures are

authorized:

(A) $450,000 for each of fiscal years 2000 through 2003

for wildlife hazard mitigation measures and management

of the wildlife strike database of the Federal Aviation Administration.

(B) $9,100,000 for the 3-fiscal-year period beginning with

fiscal year 2001 to support a university consortium established to provide an air safety and security management

certificate program, working cooperatively with the Federal Aviation Administration and United States air carriers, except that funds under this subparagraph— (i) may not be used for the construction of a building

or other facility; and

(ii) may only be awarded on the basis of open competition.

(C) Such sums as may be necessary for fiscal years 2000

through 2003 to support infrastructure systems development for both general aviation and the vertical flight industry.

(D) Such sums as may be necessary for fiscal years 2000

through 2003 to establish helicopter approach procedures

using current technologies (such as the Global Positioning

System) to support all-weather, emergency medical service

for trauma patients.

(E) Such sums as may be necessary for fiscal years 2000

through 2003 to revise existing terminal and en route procedures and instrument flight rules to facilitate the takeoff, flight, and landing of tiltrotor aircraft and to improve

the national airspace system by separating such aircraft

from congested flight paths of fixed-wing aircraft.

(F) $3,300,000 for fiscal year 2000 and $3,000,000 for

each of fiscal years 2001 through 2003 to implement the

1998 airport surface operations safety action plan of the

Federal Aviation Administration.

(G) $9,100,000 for fiscal year 2001 to support air safety

efforts through payment of United States membership obligations in the International Civil Aviation Organization, to

be paid as soon as practicable.

(H) Such sums as may be necessary for fiscal years 2000

through 2003 for the Secretary to hire additional inspectors in order to enhance air cargo security programs.

(I) Such sums as may be necessary for fiscal years 2000

through 2003 to develop and improve training programs

(including model training programs and curriculum) for security screening personnel at airports that will be used by
20

airlines to meet regulatory requirements relating to the

training and testing of such personnel.

(l) Personnel and Services.—

(1) OFFICERS AND EMPLOYEES.—Except as provided in subsections (a) and (g) of section 40122, the Administrator is authorized, in the performance of the functions of the Administrator, to appoint, transfer, and fix the compensation of such

officers and employees, including attorneys, as may be necessary to carry out the functions of the Administrator and the

Administration. In fixing compensation and benefits of officers

and employees, the Administrator shall not engage in any type

of bargaining, except to the extent provided for in section

40122(a), nor shall the Administrator be bound by any requirement to establish such compensation or benefits at particular

levels.

(2) EXPERTS AND CONSULTANTS.—The Administrator is authorized to obtain the services of experts and consultants in accordance with section 3109 of title 5.

(3) TRANSPORTATION AND PER DIEM EXPENSES.—The Administrator is authorized to pay transportation expenses, and per

diem in lieu of subsistence expenses, in accordance with chapter 57 of title 5.

(4) USE OF PERSONNEL FROM OTHER AGENCIES.—The Administrator is authorized to utilize the services of personnel of any

other Federal agency (as such term is defined under section

551(1) of title 5).

(5) VOLUNTARY SERVICES.—

(A) GENERAL RULE.—In exercising the authority to accept gifts and voluntary services under section 326 of this

title, and without regard to section 1342 of title 31, the Administrator may not accept voluntary and uncompensated

services if such services are used to displace Federal employees employed on a full-time, part-time, or seasonal

basis.

(B) INCIDENTAL EXPENSES.—The Administrator is authorized to provide for incidental expenses, including

transportation, lodging, and subsistence, for volunteers

who provide voluntary services under this subsection.

(C) LIMITED TREATMENT AS FEDERAL EMPLOYEES.—An individual who provides voluntary services under this subsection shall not be considered a Federal employee for any

purpose other than for purposes of chapter 81 of title 5, relating to compensation for work injuries, and chapter 171

of title 28, relating to tort claims.

(6) CONTRACTS.—The Administrator is authorized to enter

into and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary to carry out

the functions of the Administrator and the Administration. The

Administrator may enter into such contracts, leases, cooperative agreements, and other transactions with any Federal

agency (as such term is defined in section 551(1) of title 5) or

any instrumentality of the United States, any State, territory,

or possession, or political subdivision thereof, any other governmental entity, or any person, firm, association, corporation,
21

or educational institution, on such terms and conditions as the

Administrator may consider appropriate.

(m) COOPERATION BY ADMINISTRATOR.—With the consent of appropriate officials, the Administrator may, with or without reimbursement, use or accept the services, equipment, personnel, and

facilities of any other Federal agency (as such term is defined in

section 551(1) of title 5) and any other public or private entity. The

Administrator may also cooperate with appropriate officials of

other public and private agencies and instrumentalities concerning

the use of services, equipment, personnel, and facilities. The head

of each Federal agency shall cooperate with the Administrator in

making the services, equipment, personnel, and facilities of the

Federal agency available to the Administrator. The head of a Federal agency is authorized, notwithstanding any other provision of

law, to transfer to or to receive from the Administration, without

reimbursement, supplies, personnel, services, and equipment other

than administrative supplies or equipment.

(n) ACQUISITION.— (1) In general. The Administrator is authorized— (A) to acquire (by purchase, lease, condemnation, or otherwise), construct, improve, repair, operate, and

maintain— (i) air traffic control facilities and equipment;

(ii) research and testing sites and facilities; and

(iii) such other real and personal property (including

office space and patents), or any interest therein, within and outside the continental United States as the

Administrator considers necessary;

(B) to lease to others such real and personal property;

and

(C) to provide by contract or otherwise for eating facilities and other necessary facilities for the welfare of employees of the Administration at the installations of the

Administration, and to acquire, operate, and maintain

equipment for these facilities.

(2) TITLE.—Title to any property or interest therein acquired

pursuant to this subsection shall be held by the Government

of the United States.

(o) TRANSFERS OF FUNDS.—The Administrator 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

by law to the Administrator or functions transferred pursuant to

law to the Administrator on or after the date of the enactment of

the Air Traffic Management System Performance Improvement Act

of 1996.

(p) MANAGEMENT ADVISORY COUNCIL.—

(1) ESTABLISHMENT.—Within 3 months after the date of the

enactment of the Air Traffic Management System Performance

Improvement Act of 1996, the Administrator shall establish an

advisory council which shall be known as the Federal Aviation

Management Advisory Council (in this subsection referred to

as the ‘‘Council’’). With respect to Administration management,

policy, spending, funding, and regulatory matters affecting the

aviation industry, the Council may submit comments, rec-
22

ommended modifications, and dissenting views to the Administrator. The Administrator shall include in any submission to

Congress, the Secretary, or the general public, and in any submission for publication in the Federal Register, a description of

the comments, recommended modifications, and dissenting

views received from the Council, together with the reasons for

any differences between the views of the Council and the views

or actions of the Administrator.

(2) MEMBERSHIP.—The Council shall consist of 18 members,

who shall consist of— (A) a designee of the Secretary of Transportation;

(B) a designee of the Secretary of Defense;

(C) 10 members representing aviation interests, appointed by— (i) in the case of initial appointments to the Council,

the President by and with the advice and consent of

the Senate; and

(ii) in the case of subsequent appointments to the

Council, the Secretary of Transportation;

(D) 1 member appointed, from among individuals who

are the leaders of their respective unions of air traffic control system employees, by— (i) in the case of initial appointments to the Council,

the President by and with the advice and consent of

the Senate; and

(ii) in the case of subsequent appointments to the

Council, the Secretary of Transportation; and

(E) 5 members appointed by the Secretary after consultation with the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the

Senate.

(3) QUALIFICATIONS.— (A) No Federal officer or employee. No member appointed under paragraph (2)(C) or 2(E) may serve as an officer or employee of the United States Government while

serving as a member of the Council.

(B) Air Traffic Services Subcommittee. Members appointed under paragraph (2)(E) shall—

(i) have a fiduciary responsibility to represent the

public interest;

(ii) be citizens of the United States; and

(iii) be appointed without regard to political affiliation and solely on the basis of their professional experience and expertise in one or more of the following

areas:

(I) Management of large service organizations.

(II) Customer service.

(III) Management of large procurements.

(IV) Information and communications technology.

(V) Organizational development.

(VI) Labor relations.

At least one of such members should have a background in managing large organizations successfully.
23

In the aggregate, such members should collectively

bring to bear expertise in all of the areas described in

subclauses (I) through (VI).

(C) PROHIBITIONS ON MEMBERS OF SUBCOMMITTEE.—No

member appointed under paragraph (2)(E) may— (i) have a pecuniary interest in, or own stock in or

bonds of, an aviation or aeronautical enterprise, except

an interest in a diversified mutual fund or an interest

that is exempt from the application of section 208 of

title 18;

(ii) engage in another business related to aviation or

aeronautics; or

(iii) be a member of any organization that engages,

as a substantial part of its activities, in activities to

influence aviation-related legislation.

(4) FUNCTIONS.— (A) IN GENERAL.— (i) The Council shall provide advice and counsel to

the Administrator on issues which affect or are affected by the operations of the Administrator. The

Council shall function as an oversight resource for

management, policy, spending, and regulatory matters

under the jurisdiction of the Administration.

(ii) The Council shall review the rulemaking costbenefit analysis process and develop recommendations

to improve the analysis and ensure that the public interest is fully protected.

(iii) The Council shall review the process through

which the Administration determines to use advisory

circulars and service bulletins.

(B) MEETINGS.—The Council shall meet on a regular and

periodic basis or at the call of the chairman or of the Administrator.

(C) ACCESS TO DOCUMENTS AND STAFF.—The Administration may give the Council appropriate access to relevant

documents and personnel of the Administration, and the

Administrator shall make available, consistent with the

authority to withhold commercial and other proprietary information under section 552 of title 5 (commonly known as

the ‘‘Freedom of Information Act’’), cost data associated

with the acquisition and operation of air traffic service systems. Any member of the Council who receives commercial

or other proprietary data from the Administrator shall be

subject to the provisions of section 1905 of title 18, pertaining to unauthorized disclosure of such information.

(5) FEDERAL ADVISORY COMMITTEE ACT NOT TO APPLY.—The

Federal Advisory Committee Act (5 U.S.C. App.) does not apply

to the Council or such aviation rulemaking committees as the

Administrator shall designate.

(6) ADMINISTRATIVE MATTERS.— (A) TERMS OF MEMBERS APPOINTED UNDER PARAGRAPH

(2)(C).—Members of the Council appointed under paragraph

(2)(C) shall be appointed for a term of 3 years. Of the

members first appointed by the President under paragraph

(2)(C)—
24

(i) 3 shall be appointed for terms of 1 year;

(ii) 4 shall be appointed for terms of 2 years; and

(iii) 3 shall be appointed for terms of 3 years.

(B) TERM FOR AIR TRAFFIC CONTROL REPRESENTATIVE.—

The member appointed under paragraph (2)(D) shall be

appointed for a term of 3 years, except that the term of

such individual shall end whenever the individual no

longer meets the requirements of paragraph (2)(D).

(C) TERMS FOR AIR TRAFFIC SERVICES SUBCOMMITTEE

MEMBERS.—The member appointed under paragraph (2)(E)

shall be appointed for a term of 5 years, except that of the

members first appointed under paragraph (2)(E)—

(i) 2 members shall be appointed for a term of 3

years;

(ii) 2 members shall be appointed for a term of 4

years; and

(iii) 1 member shall be appointed for a term of 5

years.

(D) REAPPOINTMENT.—An individual may not be appointed under paragraph (2)(E) to more than two 5-year

terms.

(E) VACANCY.—Any vacancy on the Council shall be

filled in the same manner as the original appointment, except that any vacancy caused by a member appointed by

the President under paragraph (2)(C)(i) shall be filled by

the Secretary in accordance with paragraph (2)(C)(ii). Any

member appointed to fill a vacancy occurring before the expiration of the term for which the member’s predecessor

was appointed shall be appointed for the remainder of that

term.

(F) CONTINUATION IN OFFICE.—A member whose term

expires shall continue to serve until the date on which the

member’s successor takes office.

(G) REMOVAL.—Any member of the Council appointed

under paragraph (2)(D) may be removed for cause by the

President or Secretary whoever makes the appointment.

Any member of the Council appointed under paragraph

(2)(E) may be removed for cause by the Secretary.

(H) CLAIMS AGAINST MEMBERS OF SUBCOMMITTEE.—

(i) IN GENERAL.—A member appointed under paragraph (2)(E) shall have no personal liability under

Federal law with respect to any claim arising out of or

resulting from an act or omission by such member

within the scope of service as a member of the Air

Traffic Services Subcommittee.

(ii) EFFECT ON OTHER LAW.—This subparagraph

shall not be construed—

(I) to affect any other immunity or protection

that may be available to a member of the Subcommittee under applicable law with respect to

such transactions;

(II) to affect any other right or remedy against

the United States under applicable law; or
25

(III) to limit or alter in any way the immunities

that are available under applicable law for Federal officers and employees.

(I) ETHICAL CONSIDERATIONS.—

(i) FINANCIAL DISCLOSURE.—During the entire period

that an individual appointed under paragraph (2)(E) is

a member of the Subcommittee, such individual shall

be treated as serving as an officer or employee referred to in section 101(f) of the Ethics in Government

Act of 1978 for purposes of title I of such Act; except

that section 101(d) of such Act shall apply without regard to the number of days of service in the position.

(ii) RESTRICTIONS ON POST-EMPLOYMENT.—For purposes of section 207(c) of title 18, an individual appointed under paragraph (2)(E) shall be treated as an

employee referred to in section 207(c)(2)(A)(i) of such

title during the entire period the individual is a member of the Subcommittee; except that subsections

(c)(2)(B) and (f) of section 207 of such title shall not

apply.

(J) CHAIRMAN; VICE CHAIRMAN.—The Council shall elect

a chair and a vice chair from among the members appointed under paragraph (2)(C), each of whom shall serve

for a term of 1 year. The vice chair shall perform the duties of the chairman in the absence of the chairman.

(K) TRAVEL AND PER DIEM.—Each member of the Council

shall be paid actual travel expenses, and per diem in lieu

of subsistence expenses when away from his or her usual

place of residence, in accordance with section 5703 of title

5.

(L) DETAIL OF PERSONNEL FROM THE ADMINISTRATION.—

The Administrator shall make available to the Council

such staff, information, and administrative services and

assistance as may reasonably be required to enable the

Council to carry out its responsibilities under this subsection.

(7) AIR TRAFFIC SERVICES SUBCOMMITTEE.—

(A) IN GENERAL.—The Management Advisory Council

shall have an air traffic services subcommittee (in this

paragraph referred to as the ‘‘Subcommittee’’) composed of

the five members appointed under paragraph (2)(E).

(B) GENERAL RESPONSIBILITIES.

(i) OVERSIGHT.—The Subcommittee shall oversee the

administration, management, conduct, direction, and

supervision of the air traffic control system.

(ii) CONFIDENTIALITY.—The Subcommittee shall ensure that appropriate confidentiality is maintained in

the exercise of its duties.

(C) SPECIFIC RESPONSIBILITIES.—The Subcommittee shall

have the following specific responsibilities:

(i) STRATEGIC PLANS.—To review, approve, and monitor the strategic plan for the air traffic control system, including the establishment of—

(I) a mission and objectives;
26

(II) standards of performance relative to such

mission and objectives, including safety, efficiency,

and productivity; and

(III) annual and long-range strategic plans.

(ii) Modernization and improvement. To review and

approve—

(I) methods to accelerate air traffic control modernization and improvements in aviation safety

related to air traffic control; and

(II) procurements of air traffic control equipment in excess of $100,000,000.

(iii) OPERATIONAL PLANS.—To review the operational

functions of the air traffic control system, including—

(I) plans for modernization of the air traffic control system;

(II) plans for increasing productivity or implementing cost-saving measures; and

(III) plans for training and education.

(iv) MANAGEMENT.—To—

(I) review and approve the Administrator’s appointment of a Chief Operating Officer under section 106(r);

(II) review the Administrator’s selection, evaluation, and compensation of senior executives of the

Administration who have program management

responsibility over significant functions of the air

traffic control system;

(III) review and approve the Administrator’s

plans for any major reorganization of the Administration that would impact on the management of

the air traffic control system;

(IV) review and approve the Administrator’s

cost accounting and financial management structure and technologies to help ensure efficient and

cost-effective air traffic control operation; and

(V) review the performance and compensation of

managers responsible for major acquisition

projects, including the ability of the managers to

meet schedule and budget targets.

(v) BUDGET.—To—

(I) review and approve the budget request of the

Administration related to the air traffic control

system prepared by the Administrator;

(II) submit such budget request to the Secretary; and

(III) ensure that the budget request supports

the annual and long-range strategic plans.

The Secretary shall submit the budget request referred to

in clause (v)(II) for any fiscal year to the President who

shall transmit such request, without revision, to the Committees on Transportation and Infrastructure and Appropriations of the House of Representatives and the Committees on Commerce, Science, and Transportation and Appropriations of the Senate, together with the President’s
27

annual budget request for the Federal Aviation Administration for such fiscal year.

(D) SUBCOMMITTEE PERSONNEL MATTERS.— (i) COMPENSATION OF MEMBERS.—Each member of

the Subcommittee shall be compensated at a rate of

$25,000 per year.

(ii) COMPENSATION OF CHAIRPERSON.—Notwithstanding clause (i), the chairperson of the Subcommittee shall be compensated at a rate of $40,000

per year.

(iii) STAFF.—The chairperson of the Subcommittee

may appoint and terminate any personnel that may be

necessary to enable the Subcommittee to perform its

duties.

(iv) PROCUREMENT OF TEMPORARY AND INTERMIT- TENT SERVICES.—The chairperson of the Subcommittee

may procure temporary and intermittent services

under section 3109(b) of title 5, United States Code.

(E) ADMINISTRATIVE MATTERS.— (i) TERM OF CHAIR.—The members of the Subcommittee shall elect for a 2-year term a chairperson

from among the members of the Subcommittee.

(ii) POWERS OF CHAIR.—Except as otherwise provided by a majority vote of the Subcommittee, the

powers of the chairperson shall include— (I) establishing committees;

(II) setting meeting places and times;

(III) establishing meeting agendas; and

(IV) developing rules for the conduct of business.

(iii) MEETINGS.—The Subcommittee shall meet at

least quarterly and at such other times as the chairperson determines appropriate.

(iv) QUORUM.—Three members of the Subcommittee

shall constitute a quorum. A majority of members

present and voting shall be required for the Subcommittee to take action.

(F) REPORTS.— (i) ANNUAL.—The Subcommittee shall each year report with respect to the conduct of its responsibilities

under this title to the Administrator, the Council, the

Committee on Transportation and Infrastructure of

the House of Representatives, and the Committee on

Commerce, Science, and Transportation of the Senate.

(ii) ADDITIONAL REPORT.—If a determination by the

Subcommittee under subparagraph (B)(i) that the organization and operation of the air traffic control system are not allowing the Administration to carry out

its mission, the Subcommittee shall report such determination to the Administrator, the Council, the Committee on Transportation and Infrastructure of the

House of Representatives, and the Committee on Commerce, Science, and Transportation of the Senate.

(iii) ACTION OF ADMINISTRATOR ON REPORT.—Not

later than 60 days after the date of a report of the
28

Subcommittee under this subparagraph, the Administrator shall take action with respect to such report. If

the Administrator overturns a recommendation of the

Subcommittee, the Administrator shall report such action to the President, the Committee on Transportation and Infrastructure of the House of Representatives, and the Committee on Commerce, Science, and

Transportation of the Senate.

(iv) COMPTROLLER GENERAL’S REPORT.—Not later

than April 30, 2003, the Comptroller General of the

United States shall transmit to the Committee on

Transportation and Infrastructure of the House of

Representatives and the Committee on Commerce,

Science, and Transportation of the Senate a report on

the success of the Subcommittee in improving the performance of the air traffic control system.

(8) AIR TRAFFIC CONTROL SYSTEM DEFINED.—In this section,

the term ‘‘air traffic control system’’ has the meaning such

term has under section 40102(a).

(q) AIRCRAFT NOISE OMBUDSMAN.— (1) ESTABLISHMENT.—There shall be in the Administration

an Aircraft Noise Ombudsman.

(2) GENERAL DUTIES AND RESPONSIBILITIES.—The Ombudsman shall— (A) be appointed by the Administrator;

(B) serve as a liaison with the public on issues regarding

aircraft noise; and

(C) be consulted when the Administration proposes

changes in aircraft routes so as to minimize any increases

in aircraft noise over populated areas.

(3) NUMBER OF FULL-TIME EQUIVALENT EMPLOYEES.—The appointment of an Ombudsman under this subsection shall not

result in an increase in the number of full-time equivalent employees in the Administration.

(r) CHIEF OPERATING OFFICER.— (1) IN GENERAL.— (A) APPOINTMENT.—There shall be a Chief Operating Officer for the air traffic control system to be appointed by

the Administrator, with the approval of the Air Traffic

Services Subcommittee of the Aviation Management Advisory Council. The Chief Operating Officer shall report directly to the Administrator and shall be subject to the authority of the Administrator.

(B) QUALIFICATIONS.—The Chief Operating Officer shall

have a demonstrated ability in management and knowledge of or experience in aviation.

(C) TERM.—The Chief Operating Officer shall be appointed for a term of 5 years.

(D) REMOVAL.—The Chief Operating Officer shall serve

at the pleasure of the Administrator, except that the Administrator shall make every effort to ensure stability and

continuity in the leadership of the air traffic control system.

(E) VACANCY.—Any individual appointed to fill a vacancy in the position of Chief Operating Officer occurring
29

before the expiration of the term for which the individual’s

predecessor was appointed shall be appointed for the remainder of that term.

(2) COMPENSATION.— (A) IN GENERAL.—The Chief Operating Officer shall be

paid at an annual rate of basic pay to be determined by

the Administrator, with the approval of the Air Traffic

Services Subcommittee of the Aviation Management Advisory Council. The annual rate may not exceed the annual

compensation paid under section 102 of title 3. The Chief

Operating Officer shall be subject to the post-employment

provisions of section 207 of title 18 as if the position of

Chief Operating Officer were described in section

207(c)(2)(A)(i) of that title.

(B) BONUS.—In addition to the annual rate of basic pay

authorized by subparagraph (A), the Chief Operating Officer may receive a bonus for any calendar year not to exceed 30 percent of the annual rate of basic pay, based upon

the Administrator’s evaluation of the Chief Operating Officer’s performance in relation to the performance goals set

forth in the performance agreement described paragraph

(3).

(3) ANNUAL PERFORMANCE AGREEMENT.—The Administrator

and the Chief Operating Officer, in consultation with the Air

Traffic Control Subcommittee of the Aviation Management Advisory Committee, shall enter into an annual performance

agreement that sets forth measurable organization and individual goals for the Chief Operating Officer in key operational

areas. The agreement shall be subject to review and renegotiation on an annual basis.

(4) ANNUAL PERFORMANCE REPORT.—The Chief Operating Officer shall prepare and transmit to the Secretary of Transportation and Congress an annual management report containing

such information as may be prescribed by the Secretary.

(5) RESPONSIBILITIES.—The Administrator may delegate to

the Chief Operating Officer, or any other authority within the

Administration responsibilities, including the following:

(A) STRATEGIC PLANS.—To develop a strategic plan of the

Administration for the air traffic control system, including

the establishment of— (i) a mission and objectives;

(ii) standards of performance relative to such mission and objectives, including safety, efficiency, and

productivity;

(iii) annual and long-range strategic plans; and

(iv) methods of the Administration to accelerate air

traffic control modernization and improvements in

aviation safety related to air traffic control.

(B) OPERATIONS.—To review the operational functions of

the Administration, including— (i) modernization of the air traffic control system;

(ii) increasing productivity or implementing cost-saving measures; and

(iii) training and education.

(C) BUDGET.—To—
30

(i) develop a budget request of the Administration

related to the air traffic control system prepared by

the Administrator;

(ii) submit such budget request to the Administrator

and the Secretary of Transportation; and

(iii) ensure that the budget request supports the annual and long-range strategic plans developed under

subparagraph (A) of this subsection.

* * * * * * *

§ 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;
31

(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.
32

(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 facili-
33

ties 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 Under 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 unless 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.
34

(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) ACQUISITION MANAGEMENT SYSTEM.—The acquisition management system established by the Administrator of the Federal

Aviation Administration under section 40110 shall apply to acquisitions of equipment, supplies, and materials by the Transportation

Security Administration, or, subject to the requirements of such

section, the Under Secretary may make such modifications to the

acquisition management system with respect to such acquisitions of

equipment, supplies, and materials as the Under Secretary considers appropriate, such as adopting aspects of other acquisition

management systems of the Department of Transportation.

(p) 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.

(q) LAW ENFORCEMENT POWERS.—

(1) IN GENERAL.—The Under Secretary may designate an employee of the Transportation Security Administration 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
35

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.

(r) 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.

§ 115. Transportation Security Oversight Board

(a) IN GENERAL.—There is established in the Department of

Transportation a board to be known as the ‘‘Transportation Security Oversight Board’’.

(b) MEMBERSHIP.—

(1) NUMBER AND APPOINTMENT.—The Board shall be composed of 7 members as follows:

(A) The Secretary of Transportation, or the Secretary’s

designee.

(B) The Attorney General, or the Attorney General’s

designee.

(C) The Secretary of Defense, or the Secretary’s designee.

(D) The Secretary of the Treasury, or the Secretary’s

designee.

(E) The Director of the Central Intelligence Agency, or

the Director’s designee.

(F) One member appointed by the President to represent

the National Security Council.

(G) One member appointed by the President to represent

the Office of Homeland Security.

(2) CHAIRPERSON.—The Chairperson of the Board shall be

the Secretary of Transportation.

(c) DUTIES.—The Board shall—

(1) review and øratify or disapprove¿ any regulation or security directive issued by the Under Secretary of Transportation

for øsecurity¿ Security under section 114(l)(2) within 30 days

after the date of issuance of such regulation or directive;

(2) facilitate the coordination of intelligence, security, and

law enforcement activities affecting transportation;

(3) facilitate the sharing of intelligence, security, and law enforcement information affecting transportation among Federal
36

agencies and with carriers and other transportation providers

as appropriate;

(4) explore the technical feasibility of developing a common

database of individuals who may pose a threat to transportation or national security;

(5) review plans for transportation security;

(6) make recommendations to the Under Secretary regarding

matters reviewed under paragraph (5).

(d) QUARTERLY MEETINGS.—The Board shall meet at least quarterly.

(e) CONSIDERATION OF SECURITY INFORMATION.—A majority of

the Board may vote to close a meeting of the Board to the public,

except that meetings shall be closed to the public whenever classified, sensitive security information, or information protected in accordance with section 40119(b), will be discussed.

* * * * * * *

SUBTITLE VII—AVIATION PROGRAMS

PART A—AIR COMMERCE AND SAFETY

SUBPART I—GENERAL

CHAPTER 401. GENERAL PROVISIONS

§ 40109. Authority to exempt

(a) AIR CARRIERS AND FOREIGN AIR CARRIERS NOT ENGAGED DI- RECTLY IN OPERATING AIRCRAFT.—(1) The Secretary of Transportation may exempt from subpart II of this part— (A) an air carrier not engaged directly in operating aircraft

in air transportation; or

(B) a foreign air carrier not engaged directly in operating aircraft in foreign air transportation.

(2) The exemption is effective to the extent and for periods that

the Secretary decides are in the public interest.

(b) SAFETY REGULATION.—The Administrator of the Federal Aviation Administration may grant an exemption from a regulation prescribed in carrying out sections ø40103(b)(1) and (2), 40119, 44901,

44903, 44906, and 44935–44937¿ 40103(b)(1) and (2) and 40119 of

this title when the Administrator decides the exemption is in the

public interest.

(c) OTHER ECONOMIC REGULATION.—Except as provided in this

section, the Secretary may exempt to the extent the Secretary considers necessary a person or class of persons from a provision of

chapter 411, chapter 413 (except sections 41307 and 41310(b)–(f)),

chapter 415 (except sections 41502, 41505, and 41507–41509),

chapter 417 (except sections 41703, 41704, 41710, 41713, and

41714), chapter 419, subchapter II of chapter 421, and sections

44909 and 46301(b) of this title, or a regulation or term prescribed

under any of those provisions, when the Secretary decides that the

exemption is consistent with the public interest.

(d) LABOR REQUIREMENTS.—The Secretary may not exempt an

air carrier from section 42112 of this title. However, the Secretary

may exempt from section 42112(b)(1) and (2) an air carrier not providing scheduled air transportation, and the operations conducted
37

during daylight hours by an air carrier providing scheduled air

transportation, when the Secretary decides that—

(1) because of the limited extent of, or unusual circumstances

affecting, the operation of the air carrier, the enforcement of

section 42112(b)(1) and (2) of this title is or would be an unreasonable burden on the air carrier that would obstruct its development and prevent it from beginning or continuing operations; and

(2) the exemption would not affect adversely the public interest.

(e) MAXIMUM FLYING HOURS.—The Secretary may not exempt an

air carrier under this section from a provision referred to in subsection (c) of this section, or a regulation or term prescribed under

any of those provisions, that sets maximum flying hours for pilots

or copilots.

(f) SMALLER AIRCRAFT.—(1) An air carrier is exempt from section

41101(a)(1) of this title, and the Secretary may exempt an air carrier from another provision of subpart II of this part, if the air

carrier—

(A)(i) provides passenger transportation only with aircraft

having a maximum capacity of 55 passengers; or

(ii) provides the transportation of cargo only with aircraft

having a maximum payload of less than 18,000 pounds; and

(B) complies with liability insurance requirements and other

regulations the Secretary prescribes.

(2) The Secretary may increase the passenger or payload capacities when the public interest requires.

(3)(A) An exemption under this subsection applies to an air carrier providing air transportation between 2 places in Alaska, or between Alaska and Canada, only if the carrier is authorized by Alaska to provide the transportation.

(B) The Secretary may limit the number or location of places that

may be served by an air carrier providing transportation only in

Alaska under an exemption from section 41101(a)(1) of this title, or

the frequency with which the transportation may be provided, only

when the Secretary decides that providing the transportation substantially impairs the ability of an air carrier holding a certificate

issued by the Secretary to provide its authorized transportation, including the minimum transportation requirement for Alaska specified under section 41732(b)(1)(B) of this title.

(g) EMERGENCY AIR TRANSPORTATION BY FOREIGN AIR CARRIERS.—(1) To the extent that the Secretary decides an exemption

is in the public interest, the Secretary may exempt by order a foreign air carrier from the requirements and limitations of this part

for not more than 30 days to allow the foreign air carrier to carry

passengers or cargo in interstate air transportation in certain markets if the Secretary finds that—

(A) because of an emergency created by unusual circumstances not arising in the normal course of business, air

carriers holding certificates under section 41102 of this title

cannot accommodate traffic in those markets;

(B) all possible efforts have been made to accommodate the

traffic by using the resources of the air carriers, including the

use of—
38

(i) foreign aircraft, or sections of foreign aircraft, under

lease or charter to the air carriers; and

(ii) the air carriers’ reservations systems to the extent

practicable;

(C) the exemption is necessary to avoid unreasonable hardship for the traffic in the markets that cannot be accommodated by the air carriers; and

(D) granting the exemption will not result in an unreasonable advantage to any party in a labor dispute where the inability to accommodate traffic in a market is a result of the

dispute.

(2) When the Secretary grants an exemption to a foreign air carrier under this subsection, the Secretary shall—

(A) ensure that air transportation that the foreign air carrier

provides under the exemption is made available on reasonable

terms;

(B) monitor continuously the passenger load factor of air carriers in the market that hold certificates under section 41102

of this title; and

(C) review the exemption at least every 30 days to ensure

that the unusual circumstances that established the need for

the exemption still exist.

(3) The Secretary may renew an exemption (including renewals)

under this subsection for not more than 30 days. An exemption

may continue for not more than 5 days after the unusual circumstances that established the need for the exemption cease.

(h) NOTICE AND OPPORTUNITY FOR HEARING.—The Secretary may

act under subsections (d) and (f)(3)(B) of this section only after giving the air carrier notice and an opportunity for a hearing.

* * * * * * *

SUBPART III—SAFETY

CHAPTER 443. INSURANCE

§ 44301. Definitions

In this chapter—

(1) ‘‘American aircraft’’ means—

(A) a civil aircraft of the United States; and

(B) an aircraft owned or chartered by, or made available

to—

(i) the United States Government; or

(ii) a State, the District of Columbia, a territory or

possession of the United States, or a political subdivision of the State, territory, or possession.

(2) ‘‘insurance carrier’’ means a person authorized to do aviation insurance business in a State, including a mutual or stock

insurance company and a reciprocal insurance association.

§ 44302. General authority

(a) INSURANCE AND REINSURANCE.—(1) Subject to subsection (c)

of this section and section 44305(a) of this title, the Secretary of

Transportation may provide insurance and reinsurance against loss
39

or damage arising out of any risk from the operation of an American aircraft or foreign-flag aircraft.

(2) An aircraft may be insured or reinsured for not more than its

reasonable value as determined by the Secretary in accordance

with reasonable business practices in the commercial aviation insurance industry. Insurance or reinsurance may be provided only

when the Secretary decides that the insurance cannot be obtained

on reasonable terms from an insurance carrier.

(b) REIMBURSEMENT OF INSURANCE COST INCREASES.— (1) IN GENERAL.—The Secretary may reimburse an air carrier for the increase in the cost of insurance, with respect to

a premium for coverage ending before October 1, 2002, against

loss or damage arising out of any risk from the operation of an

American aircraft over the insurance premium that was in effect for a comparable operation during the period beginning

September 4, 2001, and ending September 10, 2001, as the

Secretary may determine. Such reimbursement is subject to

subsections (a)(2), (c), and (d) of this section and to section

44303.

(2) PAYMENT FROM REVOLVING FUND.—A reimbursement

under this subsection shall be paid from the revolving fund established by section 44307.

(3) FURTHER CONDITIONS.—The Secretary may impose such

further conditions on insurance for which the increase in premium is subject to reimbursement under this subsection as the

Secretary may deem appropriate in the interest of air commerce.

(4) TERMINATION OF AUTHORITY.—The authority to reimburse

air carriers under this subsection shall expire 180 days after

the date of enactment of this paragraph.

(c) PRESIDENTIAL APPROVAL.—The Secretary may provide insurance or reinsurance under subsection (a) of this section, or reimburse an air carrier under subsection (b) of this section, only with

the approval of the President. The President may approve the insurance or reinsurance or the reimbursement only after deciding

that the continued operation of the American aircraft or foreignflag aircraft to be insured or reinsured is necessary in the interest

of air commerce or national security or to carry out the foreign policy of the United States Government.

(d) CONSULTATION.—The President may require the Secretary to

consult with interested departments, agencies, and instrumentalities of the Government before providing insurance or reinsurance

or reimbursing an air carrier under this chapter.

(e) ADDITIONAL INSURANCE.—With the approval of the Secretary,

a person having an insurable interest in an aircraft may insure

with other underwriters in an amount that is more than the

amount insured with the Secretary. However, the Secretary may

not benefit from the additional insurance. This subsec tion does not

prevent the Secretary from making contracts of coinsurance.

(f) WAR RISK INSURANCE.— (1) IN GENERAL.—Not later than 30 days after the date of enactment of the Aviation Security Improvement Act, the Secretary shall—

(A) extend for 270 days from such date of enactment the

termination date of any aviation war risk insurance poli-
40

cies the Department issued that were in effect on such date

of enactment on terms that are no less favorable than the

terms of those policies as the policies were in effect on June

19, 2002; and

(B) offer to amend each policy the term of which is extended to provide coverage for losses or injuries to hull,

passengers, and crew, in addition to coverage for injury to

third parties (with respect to both persons and property), on

such terms and conditions as the Secretary may prescribe,

at an additional premium comparable to the premium

charged for the third-party casualty coverage under existing

Federal Aviation Administration policies.

(2) REPORT.—Not later than 90 days after the date of enactment of the Aviation Security Improvement Act, the Secretary

shall transmit to the Committee on Commerce, Science, and

Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report that—

(A) evaluates the availability of war risk insurance for

air carriers and other aviation entities for passengers and

third parties;

(B) analyzes the economic effect upon air carriers and

other aviation entities of available war risk insurance; and

(C) describes the manner in which the Department could

provide an alternative means of providing aviation war

risk reinsurance covering passengers, crew, and third parties through use of a risk-retention group or by other

means.

* * * * * * *

CHAPTER 445. FACILITIES, PERSONNEL, AND RESEARCH

* * * * * * *

§ 44503. Reducing nonessential expenditures

The Secretary of Transportation shall attempt to reduce the capital, operating, maintenance, and administrative costs of the national airport and airway system to the maximum extent practicable consistent with the highest degree of aviation safety. At

least annually, the Secretary shall consult with and consider the

recommendations of users of the system on ways to reduce nonessential expenditures of the United States Government for aviation. The Secretary shall give particular attention to a recommendation that may reduce, with no adverse effect on safety, future personnel requirements and costs to the Government required

to be recovered from user charges.
41

1Subsection (d) was enacted without including a paragraph (2).

* * * * * * *

CHAPTER 449. SECURITY

§ 44901. Screening passengers and property

(a) IN GENERAL.—The Under Secretary of Transportation for Security shall provide for the screening of all passengers and property, including United States mail, cargo, carry-on and checked

baggage, and other articles, that will be carried aboard a passenger

aircraft operated by an air carrier or foreign air carrier in air

transportation or intrastate air transportation. In the case of

flights and flight segments originating in the United States, the

screening shall take place before boarding and shall be carried out

by a Federal Government employee (as defined in section 2105 of

title 5, United States Code), or, in the case of United States mail,

by an officer or employee of the United States Postal Service under

standards and procedures established by the Under Secretary, except as otherwise provided in section 44919 or 44920 and except for

identifying passengers and baggage for screening under the CAPPS

and known shipper programs and conducting positive bag-match

programs.

(b) SUPERVISION OF SCREENING.—All screening of passengers and

property at airports in the United States where screening is required under this section shall be supervised by uniformed Federal

personnel of the Transportation Security Administration who shall

have the power to order the dismissal of any individual performing

such screening.

(c) CHECKED BAGGAGE.—A system must be in operation to screen

all checked baggage at all airports in the United States as soon as

practicable but not later than the 60th day following the date of enactment of the Aviation and Transportation Security Act.

(d) EXPLOSIVE DETECTION SYSTEMS.—

(1) 1 IN GENERAL.—The Under Secretary of Transportation

for Security shall take all necessary action to ensure that— (A) explosive detection systems are deployed as soon as

possible to ensure that all United States airports described

in section 44903(c) have sufficient explosive detection systems to screen all checked baggage no later than December

31, 2002, and that as soon as such systems are in place at

an airport, all checked baggage at the airport is screened

by those systems; and

(B) all systems deployed under subparagraph (A) are

fully utilized; and

(C) if explosive detection equipment at an airport is unavailable, all checked baggage is screened by an alternative means.

(2) DEADLINE.— (A) IN GENERAL.—If the Under Secretary of Transportation for Security determines that the Transportation Security Administration is not able to deploy explosive detection systems required to be deployed under paragraph (1)

at all airports where explosive detection systems are required by December 31, 2002, then with respect to each air-
42

port for which the Under Secretary makes that

determination— (i) the Under Secretary shall submit to the Senate

Committee on Commerce, Science, and Transportation

and the House of Representatives Committee on Transportation and Infrastructure a detailed plan (which

may be submitted in classified form) for the deployment of the number of explosive detection systems at

that airport necessary to meet the requiremens of paragraph (1) as soon as practicable at that airport; and

(ii) the Under Secretary shall take all necessary action to ensure that alternative means of screening all

checked baggage is implemented until the requirements

of paragraph (1) have been met.

(B) CRITERIA FOR DETERMINATION.—In making a determination under subparagraph (A), the Under Secretary

shall take into account— (i) the nature and extent of the required modifications to the airport’s terminal buildings, and the technical, engineering, design and construction issues;

(ii) the need to ensure that such installations and

modifications are effective; and

(iii) the feasibility and cost-effectiveness of deploying

explosive detection systems in the baggage sorting area

or other non-public area rather than the lobby of an

airport terminal building.

(C) LIMITATION.—The Under Secretary may not make a

determination under subparagraph (A) in the case of more

than 40 airports.

(D) AIRPORT EFFORT REQUIRED.—Each airport with respect to which the Under Secretary makes a determination

under subparagraph (A) shall— (i) cooperate fully with the Transportation Security

Administration with respect to screening checked baggage and changes to accommodate explosive detection

systems; and

(ii) make security projects a priority for the obligation or expenditure of funds made available under

chapter 417 or 471 until explosive detection systems required to be deployed under paragraph (1) have been

deployed at that airport.

(3) REPORTS.—

(A) IN GENERAL.—Until the Transportation Security Administration has met the requirements of paragraph (1), the

Under Secretary shall submit a classified report every 30

days after the date of enactment of the Aviation Security

Improvement Act to the Senate Committee on Commerce,

Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure describing the progress made toward meeting such requirements at each airport.

(B) LIMIT ON NUMBER OF REPORTS.—The Under Secretary shall submit reports for each airport until the requirements of paragraph (1) have been met, but may not

submit more than 12 reports for any airport.
43

(e) MANDATORY SCREENING WHERE EDS NOT YET AVAILABLE.—

As soon as practicable but not later than the 60th day following the

date of enactment of the Aviation and Transportation Security Act

and until the requirements of ƒsubsection (b)(1)(A)≈ subsection

(d)(1)(A) are met, the Under Secretary shall require alternative

means for screening any piece of checked baggage that is not

screened by an explosive detection system. Such alternative means

may include 1 or more of the following:

(1) A bag-match program that ensures that no checked baggage is placed aboard an aircraft unless the passenger who

checked the baggage is aboard the aircraft.

(2) Manual search.

(3) Search by canine explosive detection units in combination

with other means.

(4) Other means or technology approved by the Under Secretary.

ƒ(f) CARGO DEADLINE.—A system must be in operation to screen,

inspect, or otherwise ensure the security of all cargo that is to be

transported in all-cargo aircraft in air transportation and intrastate

air transportation as soon as practicable after the date of enactment

of the Aviation and Transportation Security Act.≈

(f) CARGO.—

(1) IN GENERAL.—The Under Secretary of Transportation for

Security shall establish a system systems to screen, inspect, or

otherwise ensure the security of all cargo that is to be transported in—

(A) passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air

transportation; or

(B) all-cargo aircraft in air transportation and intrastate

air transportation.

(2) STRATEGIC PLAN.—The Under Secretary shall develop a

strategic plan to carry out paragraph (1).

(g) DEPLOYMENT OF ARMED PERSONNEL.—

(1) IN GENERAL.—The Under Secretary shall order the deployment of law enforcement personnel authorized to carry

firearms at each airport security screening location to ensure

passenger safety and national security.

(2) MINIMUM REQUIREMENTS.—øExcept at airports required

to enter into agreements under subsection (c), the¿ The Under

Secretary shall order the deployment of at least 1 law enforcement officer at each airport security screening location. At the

100 largest airports in the United States, in terms of annual

passenger enplanements for the most recent calendar year for

which data are available, the Under Secretary shall order the

deployment of additional law enforcement personnel at airport

security screening locations if the Under Secretary determines

that the additional deployment is necessary to ensure passenger safety and national security.

(h) EXEMPTIONS AND ADVISING CONGRESS ON REGULATIONS.—The

Under Secretary—

(1) may exempt from this section air transportation operations, except scheduled passenger operations of an air carrier

providing air transportation under a certificate issued under
44

section 41102 of this title or a permit issued under section

41302 of this title; and

(2) shall advise Congress of a regulation to be prescribed

under this section at least 30 days before the effective date of

the regulation, unless the Under Secretary decides an emergency exists requiring the regulation to become effective in

fewer than 30 days and notifies Congress of that decision.

* * * * * * *

§ 44903. Air transportation security

(a) DEFINITION.—In this section, ‘‘law enforcement personnel’’

means individuals—

(1) authorized to carry and use firearms;

(2) vested with the degree of the police power of arrest the

Under Secretary of Transportation for Security considers necessary to carry out this section; and

(3) identifiable by appropriate indicia of authority.

(b) PROTECTION AGAINST VIOLENCE AND PIRACY.—The Under Secretary shall prescribe regulations to protect passengers and property on an aircraft operating in air transportation or intrastate air

transportation against an act of criminal violence or aircraft piracy.

When prescribing a regulation under this subsection, the Under

Secretary shall—

(1) consult with the Secretary of Transportation, the Attorney General, the heads of other departments, agencies, and instrumentalities of the United States Government, and State

and local authorities;

(2) consider whether a proposed regulation is consistent

with—

(A) protecting passengers; and

(B) the public interest in promoting air transportation

and intrastate air transportation;

(3) to the maximum extent practicable, require a uniform

procedure for searching and detaining passengers and property

to ensure—

(A) their safety; and

(B) courteous and efficient treatment by an air carrier,

an agent or employee of an air carrier, and Government,

State, and local law enforcement personnel carrying out

this section; and

(4) consider the extent to which a proposed regulation will

carry out this section.

(c) SECURITY PROGRAMS.—(1) The Under Secretary shall prescribe regulations under subsection (b) of this section that require

each operator of an airport regularly serving an air carrier holding

a certificate issued by the Secretary of Transportation to establish

an air transportation security program that provides a law enforcement presence and capability at each of those airports that is adequate to ensure the safety of passengers. The regulations shall authorize the operator to use the services of qualified State, local, and

private law enforcement personnel. When the Under Secretary decides, after being notified by an operator in the form the Under

Secretary prescribes, that not enough qualified State, local, and
45

private law enforcement personnel are available to carry out subsection (b), the Under Secretary may authorize the operator to use,

on a reimbursable basis, personnel employed by the Under Secretary, or by another department, agency, or instrumentality of the

Government with the consent of the head of the department, agency, or instrumentality, to supplement State, local, and private law

enforcement personnel. When deciding whether additional personnel are needed, the Under Secretary shall consider the number

of passengers boarded at the airport, the extent of anticipated risk

of criminal violence or aircraft piracy at the airport or to the air

carrier aircraft operations at the airport, and the availability of

qualified State or local law enforcement personnel at the airport.

(2)(A) The Under Secretary may approve a security program of

an airport operator, or an amendment in an existing program, that

incorporates a security program of an airport tenant (except an air

carrier separately complying with part 108 or 129 of title 14, Code

of Federal Regulations) having access to a secured area of the airport, if the program or amendment incorporates—

(i) the measures the tenant will use, within the tenant’s

leased areas or areas designated for the tenant’s exclusive use

under an agreement with the airport operator, to carry out the

security requirements imposed by the Under Secretary on the

airport operator under the access control system requirements

of section 107.14 of title 14, Code of Federal Regulations, or

under other requirements of part 107 of title 14; and

(ii) the methods the airport operator will use to monitor and

audit the tenant’s compliance with the security requirements

and provides that the tenant will be required to pay monetary

penalties to the airport operator if the tenant fails to carry out

a security requirement under a contractual provision or requirement imposed by the airport operator.

(B) If the Under Secretary approves a program or amendment

described in subparagraph (A) of this paragraph, the airport operator may not be found to be in violation of a requirement of this

subsection or subsection (b) of this section when the airport operator demonstrates that the tenant or an employee, permittee, or

invitee of the tenant is responsible for the violation and that the

airport operator has complied with all measures in its security program for securing compliance with its security program by the tenant.

(C) MAXIMUM USE OF CHEMICAL AND BIOLOGICAL WEAPON

DETECTION EQUIPMENT.—The Secretary of Transportation

may require airports to maximize the use of technology

and equipment that is designed to detect or neutralize potential chemical or biological weapons.

(3) PILOT PROGRAMS.—The øAdministrator¿ Under Secretary

shall establish pilot programs in no fewer than 20 airports to

test and evaluate new and emerging technology for providing

access control and other security protections for closed or secure areas of the airports. Such technology may include biometric or other technology that ensures only authorized access

to secure areas.

(d) AUTHORIZING INDIVIDUALS TO CARRY FIREARMS AND MAKE

ARRESTS.—With the approval of the Attorney General and the Sec-
46

retary of State, the Secretary of Transportation may authorize an

individual who carries out air transportation security duties— (1) to carry firearms; and

(2) to make arrests without warrant for an offense against

the United States committed in the presence of the individual

or for a felony under the laws of the United States, if the individual reasonably believes the individual to be arrested has

committed or is committing a felony.

(e) EXCLUSIVE RESPONSIBILITY OVER PASSENGER SAFETY.—The

Under Secretary has the exclusive responsibility to direct law enforcement activity related to the safety of passengers on an aircraft

involved in an offense under section 46502 of this title from the

moment all external doors of the aircraft are closed following

boarding until those doors are opened to allow passengers to leave

the aircraft. When requested by the Under Secretary, other departments, agencies, and instrumentalities of the Government shall

provide assistance necessary to carry out this subsection.

(f) GOVERNMENT AND INDUSTRY CONSORTIA.—The Under Secretary may establish at airports such consortia of government and

aviation industry representatives as the Under Secretary may designate to provide advice on matters related to aviation security and

safety. Such consortia shall not be considered Federal advisory

committees for purposes of the Federal Advisory Committee Act (5

U.S.C. App.).

(g) IMPROVEMENT OF SECURED-AREA ACCESS CONTROL.— (1) ENFORCEMENT.— (A) UNDER SECRETARY TO PUBLISH SANCTIONS.—The

Under Secretary shall publish in the Federal Register a

list of sanctions for use as guidelines in the discipline of

employees for infractions of airport access control requirements. The guidelines shall incorporate a progressive disciplinary approach that relates proposed sanctions to the

severity or recurring nature of the infraction and shall include measures such as remedial training, suspension from

security-related duties, suspension from all duties without

pay, and termination of employment.

(B) USE OF SANCTIONS.—Each airport operator, air carrier, and security screening company shall include the list

of sanctions published by the Under Secretary in its security program. The security program shall include a process

for taking prompt disciplinary action against an employee

who commits an infraction of airport access control requirements.

(2) IMPROVEMENTS.—The Under Secretary shall—

(A) work with airport operators and air carriers to implement and strengthen existing controls to eliminate airport access control weaknesses;

(B) require airport operators and air carriers to develop

and implement comprehensive and recurring training programs that teach employees their roles in airport security,

the importance of their participation, how their performance will be evaluated, and what action will be taken if

they fail to perform;

(C) require airport operators and air carriers to develop

and implement programs that foster and reward compli-
47

ance with airport access control requirements and discourage and penalize noncompliance in accordance with guidelines issued by the Under Secretary to measure employee

compliance;

(D) on an ongoing basis, assess and test for compliance

with access control requirements, report annually findings

of the assessments, and assess the effectiveness of penalties in ensuring compliance with security procedures and

take any other appropriate enforcement actions when noncompliance is found;

(E) improve and better administer the Under Secretary’s

security database to ensure its efficiency, reliability, and

usefulness for identification of systemic problems and allocation of resources;

(F) improve the execution of the Under Secretary’s quality control program; and

(G) work with airport operators to strengthen access control points in secured areas (including air traffic control

operations areas, maintenance areas, crew lounges, baggage handling areas, concessions, and catering delivery

areas) to ensure the security of passengers and aircraft

and consider the deployment of biometric or similar technologies that identify individuals based on unique personal

characteristics.

(h) IMPROVED AIRPORT PERIMETER ACCESS SECURITY.—

(1) IN GENERAL.—The Under Secretary, in consultation with

the airport operator and law enforcement authorities, may

order the deployment of such personnel at any secure area of

the airport as necessary to counter the risk of criminal violence, the risk of aircraft piracy at the airport, the risk to air

carrier aircraft operations at the airport, or to meet national

security concerns.

(2) SECURITY OF AIRCRAFT AND GROUND ACCESS TO SECURE

AREAS.—In determining where to deploy such personnel, the

Under Secretary shall consider the physical security needs of

air traffic control facilities, parked aircraft, aircraft servicing

equipment, aircraft supplies (including fuel), automobile parking facilities within airport perimeters or adjacent to secured

facilities, and access and transition areas at airports served by

other means of ground or water transportation.

(3) DEPLOYMENT OF FEDERAL LAW ENFORCEMENT PERSONNEL.—The Secretary may enter into a memorandum of understanding or other agreement with the Attorney General or

the head of any other appropriate Federal law enforcement

agency to deploy Federal law enforcement personnel at an airport in order to meet aviation safety and security concerns.

(4) AIRPORT PERIMETER SCREENING.—The Under Secretary—

(A) shall require, as soon as practicable after the date of

enactment of this subsection, screening or inspection of all

individuals, goods, property, vehicles, and other equipment

before entry into a secured area of an airport in the United

States described in section 44903(c);

(B) shall prescribe specific requirements for such screening and inspection that will assure at least the same level
48

of protection as will result from screening of passengers

and their baggage;

(C) shall establish procedures to ensure the safety and

integrity of— (i) all persons providing services with respect to aircraft providing passenger air transportation or intrastate air transportation and facilities of such persons

at an airport in the United States described in section

44903(c);

(ii) all supplies, including catering and passenger

amenities, placed aboard such aircraft, including the

sealing of supplies to ensure easy visual detection of

tampering; and

(iii) all persons providing such supplies and facilities

of such persons;

(D) shall require vendors having direct access to the airfield and aircraft to develop security programs; and

(E) may provide for the use of biometric or other technology that positively verifies the identity of each employee and law enforcement officer who enters a secure

area of an airport.

ø(h)¿ (i) AUTHORITY TO ARM FLIGHT DECK CREW WITH LESS- THAN-LETHAL WEAPONS.— (1) IN GENERAL.—If the Secretary, after receiving the recommendations of the National Institute of Justice, determines,

with the approval of the Attorney General and the Secretary

of State, that it is appropriate and necessary and would effectively serve the public interest in avoiding air piracy, the Secretary may authorize members of the flight deck crew on any

aircraft providing air transportation or intrastate air transportation to carry a less-than-lethal weapon while the aircraft is

engaged in providing such transportation.

(2) USAGE.—If the Secretary grants authority under paragraph (1) for flight deck crew members to carry a less-than-lethal weapon while engaged in providing air transportation or

intrastate air transportation, the Secretary shall—

(A) prescribe rules requiring that any such crew member

be trained in the proper use of the weapon; and

(B) prescribe guidelines setting forth the circumstances

under which such weapons may be used.

ø(i)¿ (j) SHORT-TERM ASSESSMENT AND DEPLOYMENT OF EMERGING SECURITY TECHNOLOGIES AND PROCEDURES.—

(1) IN GENERAL.—The Under Secretary of Transportation for

Security shall recommend to airport operators, within 6

months after the date of enactment of the Aviation and Transportation Security Act, commercially available measures or

procedures to prevent access to secure airport areas by unauthorized persons. As part of the 6-month assessment, the

øUnder Secretary for Transportation Security¿ Under Secretary shall— (A) review the effectiveness of biometrics systems currently in use at several United States airports, including

San Francisco International;

(B) review the effectiveness of increased surveillance at

access points;
49

(C) review the effectiveness of card- or keypad-based access systems;

(D) review the effectiveness of airport emergency exit

systems and determine whether those that lead to secure

areas of the airport should be monitored or how breaches

can be swiftly responded to; and

(E) specifically target the elimination of the ‘‘piggy-backing’’ phenomenon, where another person follows an authorized person through the access point.

The 6-month assessment shall include a 12-month deployment

strategy for currently available technology at all category X

airports, as defined in the Federal Aviation Administration approved air carrier security programs required under part 108

of title 14, Code of Federal Regulations. Not later than 18

months after the date of enactment of this Act, the Secretary

of Transportation shall conduct a review of reductions in unauthorized access at these airports.

(2) COMPUTER-ASSISTED PASSENGER PRESCREENING SYSTEM.— (A) IN GENERAL.—The Secretary of Transportation shall

ensure that the Computer-Assisted Passenger

Prescreening System, or any successor system— (i) is used to evaluate all passengers before they

board an aircraft; and

(ii) includes procedures to ensure that individuals

selected by the system and their carry-on and checked

baggage are adequately screened.

(B) MODIFICATIONS.—The Secretary of Transportation

may modify any requirement under the Computer-Assisted

Passenger Prescreening System for flights that originate

and terminate within the same State, if the Secretary determines that— (i) the State has extraordinary air transportation

needs or concerns due to its isolation and dependence

on air transportation; and

(ii) the routine characteristics of passengers, given

the nature of the market, regularly triggers primary

selectee status.

ø(h)¿ (k) LIMITATION ON LIABILITY FOR ACTS TO THWART CRIMI- NAL VIOLENCE OR AIRCRAFT PIRACY.—An individual shall not be

liable for damages in any action brought in a Federal or State court

arising out of the acts of the individual in attempting to thwart an

act of criminal violence or piracy on an aircraft if that individual

reasonably believed that such an act of criminal violence or piracy

was occurring or was about to occur.

§ 44909. Passenger manifests

(a) AIR CARRIER REQUIREMENTS.—(1) øNot later than March 16,

1991, the¿ The Secretary of Transportation shall require each air

carrier to provide a passenger manifest for a flight to an appropriate representative of the Secretary of State— (A) not later than one hour after that carrier is notified of

an aviation disaster outside the United States involving that

flight; or

(B) if it is not technologically feasible or reasonable to comply with clause (A) of this paragraph, then as expeditiously as
50

possible, but not later than 3 hours after the carrier is so notified.

(2) The passenger manifest should include the following information:

(A) the full name of each passenger.

(B) the passport number of each passenger, if required for

travel.

(C) the name and telephone number of a contact for each

passenger.

(3) In carrying out this subsection, the Secretary of Transportation shall consider the necessity and feasibility of requiring air

carriers to collect passenger manifest information as a condition for

passengers boarding a flight of the carrier.

(b) FOREIGN AIR CARRIER REQUIREMENTS.—The Secretary of

Transportation shall consider imposing a requirement on foreign

air carriers comparable to that imposed on air carriers under subsection (a)(1) and (2) of this section.

(c) FLIGHTS IN FOREIGN AIR TRANSPORTATION TO THE UNITED

STATES.—

(1) IN GENERAL.—Not later than 60 days after the date of enactment of the Aviation and Transportation Security Act, each

air carrier and foreign air carrier operating a passenger flight

in foreign air transportation to the United States shall provide

to the Commissioner of Customs by electronic transmission a

passenger and crew manifest containing the information specified in paragraph (2). Carriers may use the advanced passenger information system established under section 431 of the

Tariff Act of 1930 (19 U.S.C. 1431) to provide the information

required by the preceding sentence.

(2) INFORMATION.—A passenger and crew manifest for a

flight required under paragraph (1) shall contain the following

information:

(A) The full name of each passenger and crew member.

(B) The date of birth and citizenship of each passenger

and crew member.

(C) The sex of each passenger and crew member.

(D) The passport number and country of issuance of each

passenger and crew member if required for travel.

(E) The United States visa number or resident alien card

number of each passenger and crew member, as applicable.

(F) Such other information as the Under Secretary of

Transportation for Security, in consultation with the Commissioner of Customs, determines is reasonably necessary

to ensure aviation safety.

(3) PASSENGER NAME RECORDS.—The carriers shall make

passenger name record information available to the Customs

Service upon request.

(4) TRANSMISSION OF MANIFEST.—Subject to paragraph (5), a

passenger and crew manifest required for a flight under paragraph (1) shall be transmitted to the Customs Service in advance of the aircraft landing in the United States in such manner, time, and form as the Customs Service prescribes.

(5) TRANSMISSION OF MANIFESTS TO OTHER FEDERAL AGENCIES.—Upon request, information provided to the Under Sec-
51

retary or the Customs Service under this subsection may be

shared with other Federal agencies for the purpose of protecting national security.

* * * * *

§ 44921. Regular inspections of air cargo shipping facilities

The Under Secretary of Transportation for Security shall establish a system for the regular inspection of shipping facilities for

shipments of cargo transported in air transportation or intrastate

air transportation to ensure that appropriate security controls, systems, and protocols are observed, and shall enter into arrangements

with the civil aviation authorities, or other appropriate officials, of

foreign countries to ensure that inspections are conducted on a regular basis at shipping facilities for cargo transported in air transportation to the United States.

§ 44922. Air cargo security

(a) DATABASE.—The Under Secretary of Transportation for Security shall establish an industry-wide pilot program database of

known shippers of cargo that is to be transported in passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation. The Under Secretary

shall use the results of the pilot program to improve the known

shipper program.

(b) INDIRECT AIR CARRIERS.—

(1) RANDOM INSPECTIONS.—The Under Secretary shall conduct random audits, investigations, and inspections of indirect

air carrier facilities to determine if the indirect air carriers are

meeting the security requirements of this title.

(2) ENSURING COMPLIANCE.—The Under Secretary may take

such actions as may be appropriate to promote and ensure compliance with the security standards established under this title.

(3) NOTICE OF FAILURES.—The Under Secretary shall notify

the Secretary of Transportation of any indirect air carrier that

fails to meet security standards established under this title.

(4) SUSPENSION OR REVOCATION OF CERTIFICATE.—The Secretary, as appropriate, shall suspend or revoke any certificate or

authority issued under chapter 411 to an indirect air carrier

immediately upon the recommendation of the Under Secretary.

Any indirect air carrier whose certificate is suspended or revoked under this subparagraph may appeal the suspension or

revocation in accordance with procedures established under this

title for the appeal of suspensions and revocations.

(5) INDIRECT AIR CARRIER.—In this subsection, the term ‘‘indirect air carrier’’ has the meaning given that term in part 1548

of title 49, Code of Federal Regulations.

§ 44923. Passenger identification

(a) IN GENERAL.—Not later than 180 days after the date of enactment of the Aviation Security Improvement Act, the Under Secretary

of Transportation for Security, in consultation with the Administrator of the Federal Aviation Administration, appropriate law enforcement, security, and terrorism experts, representatives of air car-
52

riers and labor organizations representing individuals employed in

commercial aviation, shall develop protocols to provide guidance for

detection of false or fraudulent passenger identification. The protocols may consider new technology, current identification measures,

training of personnel, and issues related to the types of identification available to the public.

(b) AIR CARRIER PROGRAMS.—Within 60 days after the Under Secretary issues the protocols under subsection (a) in final form, the

Under Secretary shall provide them to each air carrier. The Under

Secretary shall establish a joint government and industry council to

develop recommendations on how to implement the protocols. The

Under Secretary shall report to the Senate Committee on Commerce,

Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure within 1 year after the

date of enactment of the Aviation Security Improvement Act on the

actions taken under this section.

§ 44924. Passenger identification verification

(a) PROGRAM REQUIRED.—The Under Secretary of Transportation

for Security may establish and carry out a program to require the

installation and use at airports in the United States of such identification verification technologies as the Under Secretary considers

appropriate to assist in the screening of passengers boarding aircraft at such airports.

(b) TECHNOLOGIES EMPLOYED.—The identification verification

technologies required as part of the program under subsection (a)

may include identification scanners, biometrics, retinal, iris, or facial scanners, or any other technologies that the Under Secretary

considers appropriate for purposes of the program.

(c) COMMENCEMENT.—If the Under Secretary determines that the

implementation of such a program is appropriate, the installation

and use of identification verification technologies under the program

shall commence as soon as practicable after the date of that determination.

* * * * * * *

§ 44935. Employment standards and training

(a) EMPLOYMENT STANDARDS.—The Under Secretary of Transportation for Security shall prescribe standards for the employment

and continued employment of, and contracting for, air carrier personnel and, as appropriate, airport security personnel. The standards shall include—

(1) minimum training requirements for new employees;

(2) retraining requirements;

(3) minimum staffing levels;

(4) minimum language skills; and

(5) minimum education levels for employees, when appropriate.

(b) REVIEW AND RECOMMENDATIONS.—In coordination with air

carriers, airport operators, and other interested persons, the Under

Secretary shall review issues related to human performance in the

aviation security system to maximize that performance. When the

review is completed, the Under Secretary shall recommend guide-
53

lines and prescribe appropriate changes in existing procedures to

improve that performance.

(c) SECURITY PROGRAM TRAINING, STANDARDS, AND QUALIFICA- TIONS.—(1) The Under Secretary— (A) may train individuals employed to carry out a security

program under section 44903(c) of this title; and

(B) shall prescribe uniform training standards and uniform

minimum qualifications for individuals eligible for that training.

(2) The Under Secretary may authorize reimbursement for travel, transportation, and subsistence expenses for security training of

non-United States Government domestic and foreign individuals

whose services will contribute significantly to carrying out civil

aviation security programs. To the extent practicable, air travel reimbursed under this paragraph shall be on air carriers.

(d) EDUCATION AND TRAINING STANDARDS FOR SECURITY COORDI- NATORS, SUPERVISORY PERSONNEL, AND PILOTS.—(1) The Under

Secretary shall prescribe standards for educating and training— (A) ground security coordinators;

(B) security supervisory personnel; and

(C) airline pilots as in-flight security coordinators.

(2) The standards shall include initial training, retraining, and

continuing education requirements and methods. Those requirements and methods shall be used annually to measure the performance of ground security coordinators and security supervisory personnel.

(e) SECURITY SCREENERS.— (1) TRAINING PROGRAM.—The Under Secretary of Transportation for Security shall establish a program for the hiring and

training of security screening personnel.

(2) HIRING.— (A) QUALIFICATIONS.—Within 30 days after the date of

enactment of the Aviation and Transportation Security

Act, the Under Secretary shall establish qualification

standards for individuals to be hired by the United States

as security screening personnel. Notwithstanding any provision of law, those standards shall require, at a minimum,

an individual— (i) to have a satisfactory or better score on a Federal

security screening personnel selection examination;

(ii) to be a citizen of the United øStates;¿ States or

described in subparagraph (C);

(iii) to meet, at a minimum, the requirements set

forth in subsection (f);

(iv) to meet such other qualifications as the Under

Secretary may establish; and

(v) to have the ability to demonstrate daily a fitness

for duty without any impairment due to illegal drugs,

sleep deprivation, medication, or alcohol.

(B) BACKGROUND CHECKS.—The Under Secretary shall

require that an individual to be hired as a security screener undergo an employment investigation (including a

criminal history record check) under section 44936(a)(1).

(C) OTHER INDIVIDUALS.—An individual is described in

this subparagraph if that individual—
54

(i) is a national of the United States (as defined in

section 101(a)(22) of the Immigration and Nationality

Act (8 U.S.C. 1101(a)(22)));

(ii) was born in a territory of the United States;

(iii) was honorably discharged from service in the

Armed Forces of the United States; or

(iv) is an alien lawfully admitted for permanent residence, as defined in section 101(a)(20) of the Immigration and Nationality Act and was employed to perform

security screening services at an airport in the United

States on the date of enactment of the Aviation and

Transportation Security Act (Public Law 107–71).

ø(C)¿ (D) DISQUALIFICATION OF INDIVIDUALS WHO

PRESENT NATIONAL SECURITY RISKS.—The Under Secretary,

in consultation with the heads of other appropriate Federal agencies, shall establish procedures, in addition to any

background check conducted under section 44936, to ensure that no individual who presents a threat to national

security is employed as a security screener.

(3) EXAMINATION; REVIEW OF EXISTING RULES.—The Under

Secretary shall develop a security screening personnel examination for use in determining the qualification of individuals

seeking employment as security screening personnel. The

Under Secretary shall also review, and revise as necessary,

any standard, rule, or regulation governing the employment of

individuals as security screening personnel.

(f) EMPLOYMENT STANDARDS FOR SCREENING PERSONNEL.—

(1) SCREENER REQUIREMENTS.—Notwithstanding any provision of law, an individual may not be deployed as a security

screener unless that individual meets the following requirements:

(A) The individual shall possess a high school diploma,

a general equivalency diploma, or experience that the

Under Secretary has determined to be sufficient for the individual to perform the duties of the position.

(B) The individual shall possess basic aptitudes and

physical abilities, including color perception, visual and

aural acuity, physical coordination, and motor skills, to the

following standards:

(i) Screeners operating screening equipment shall be

able to distinguish on the screening equipment monitor the appropriate imaging standard specified by the

Under Secretary.

(ii) Screeners operating any screening equipment

shall be able to distinguish each color displayed on

every type of screening equipment and explain what

each color signifies.

(iii) Screeners shall be able to hear and respond to

the spoken voice and to audible alarms generated by

screening equipment in an active checkpoint environment.

(iv) Screeners performing physical searches or other

related operations shall be able to efficiently and thoroughly manipulate and handle such baggage, con-
55

tainers, and other objects subject to security processing.

(v) Screeners who perform pat-downs or hand-held

metal detector searches of individuals shall have sufficient dexterity and capability to thoroughly conduct

those procedures over an individual’s entire body.

(C) The individual shall be able to read, speak, and write

English well enough to— (i) carry out written and oral instructions regarding

the proper performance of screening duties;

(ii) read English language identification media, credentials, airline tickets, and labels on items normally

encountered in the screening process;

(iii) provide direction to and understand and answer

questions from English-speaking individuals undergoing screening; and

(iv) write incident reports and statements and log

entries into security records in the English language.

(D) The individual shall have satisfactorily completed all

initial, recurrent, and appropriate specialized training required by the security program, except as provided in

paragraph (3).

(2) VETERANS PREFERENCE.—The Under Secretary shall provide a preference for the hiring of an individual as a security

screener if the individual is a member or former member of the

armed forces and if the individual is entitled, under statute, to

retired, retirement, or retainer pay on account of service as a

member of the armed forces.

(3) EXCEPTIONS.—An individual who has not completed the

training required by this section may be deployed during the

on-the-job portion of training to perform functions if that

individual— (A) is closely supervised; and

(B) does not make independent judgments as to whether

individuals or property may enter a sterile area or aircraft

without further inspection.

(4) REMEDIAL TRAINING.—No individual employed as a security screener may perform a screening function after that individual has failed an operational test related to that function

until that individual has successfully completed the remedial

training specified in the security program.

(5) ANNUAL PROFICIENCY REVIEW.—The Under Secretary

shall provide that an annual evaluation of each individual assigned screening duties is conducted and documented. An individual employed as a security screener may not continue to be

employed in that capacity unless the evaluation demonstrates

that the individual—

(A) continues to meet all qualifications and standards required to perform a screening function;

(B) has a satisfactory record of performance and attention to duty based on the standards and requirements in

the security program; and

(C) demonstrates the current knowledge and skills necessary to courteously, vigilantly, and effectively perform

screening functions.
56

(6) OPERATIONAL TESTING.—In addition to the annual proficiency review conducted under paragraph (5), the Under Secretary shall provide for the operational testing of such personnel.

(g) TRAINING.—

(1) USE OF OTHER AGENCIES.—The Under Secretary may

enter into a memorandum of understanding or other arrangement with any other Federal agency or department with appropriate law enforcement responsibilities, to provide personnel,

resources, or other forms of assistance in the training of security screening personnel.

(2) TRAINING PLAN.—Within 60 days after the date of enactment of the Aviation and Transportation Security Act, the

Under Secretary shall develop a plan for the training of security screening personnel. The plan shall require, at a minimum, that a security screener—

(A) has completed 40 hours of classroom instruction or

successfully completed a program that the Under Secretary determines will train individuals to a level of proficiency equivalent to the level that would be achieved by

such classroom instruction;

(B) has completed 60 hours of on-the-job instructions;

and

(C) has successfully completed an on-the-job training examination prescribed by the Under Secretary.

(3) EQUIPMENT-SPECIFIC TRAINING.—An individual employed

as a security screener may not use any security screening device or equipment in the scope of that individual’s employment

unless the individual has been trained on that device or equipment and has successfully completed a test on the use of the

device or equipment.

(h) TECHNOLOGICAL TRAINING.—

(1) IN GENERAL.—The Under Secretary shall require training

to ensure that screeners are proficient in using the most upto-date new technology and to ensure their proficiency in recognizing new threats and weapons.

(2) PERIODIC ASSESSMENTS.—The Under Secretary shall

make periodic assessments to determine if there are dual use

items and inform security screening personnel of the existence

of such items.

(3) CURRENT LISTS OF DUAL USE ITEMS.—Current lists of dual

use items shall be part of the ongoing training for screeners.

(4) DUAL USE DEFINED.—For purposes of this subsection, the

term ‘‘dual use’’ item means an item that may seem harmless

but that may be used as a weapon.

(i) LIMITATION ON RIGHT TO STRIKE.—An individual that screens

passengers or property, or both, at an airport under this section

may not participate in a strike, or assert the right to strike,

against the person (including a governmental entity) employing

such individual to perform such screening.

(j) UNIFORMS.—The Under Secretary shall require any individual

who screens passengers and property pursuant to section 44901 to

be attired while on duty in a uniform approved by the Under Secretary.
57

ø(i)¿ (k) ACCESSIBILITY OF COMPUTER-BASED TRAINING FACILITIES.—The Under Secretary shall work with air carriers and airports to ensure that computer-based training facilities intended for

use by security screeners at an airport regularly serving an air carrier holding a certificate issued by the Secretary of Transportation

are conveniently located for that airport and easily accessible.

§ 44936. Employment investigations and restrictions

(a) EMPLOYMENT INVESTIGATION REQUIREMENT.—(1)(A) The

Under Secretary of Transportation for Security shall require by

regulation that an employment investigation, including a criminal

history record check and a review of available law enforcement

data bases and records of other governmental and international

agencies to the extent determined practicable by the Under Secretary of Transportation for øTransportation Security,,¿ Security,

shall be conducted of each individual employed in, or applying for,

a position as a security screener under section 44935(e) or a position in which the individual has unescorted access, or may permit

other individuals to have unescorted access, to—

(i) aircraft of an air carrier or foreign air carrier; or

(ii) a secured area of an airport in the United States the

Under Secretary designates that serves an air carrier or foreign air carrier.

(B) The Under Secretary shall require by regulation that an employment investigation (including a criminal history record check

and a review of available law enforcement data bases and records

of other governmental and international agencies to the extent determined practicable by the øUnder Secretary of Transportation for

Transportation Security¿ Under Secretary) be conducted for—

(i) individuals who are responsible for screening passengers

or property under section 44901 of this title;

(ii) supervisors of the individuals described in clause (i);

(iii) individuals who regularly have escorted access to aircraft of an air carrier or foreign air carrier or a secured area

of an airport in the United States the Administrator designates

that serves an air carrier or foreign air carrier; and

(iv) such other individuals who exercise security functions

associated with baggage or cargo, as the Under Secretary determines is necessary to ensure air transportation security.

(C) BACKGROUND CHECKS OF CURRENT EMPLOYEES.—

(i) A new background check (including a criminal

history record check and a review of available law enforcement data bases and records of other governmental and international agencies to the extent determined practicable by the øUnder Secretary of Transportation for Transportation Security¿ Under Secretary shall be required for any individual who is employed in a position described in subparagraphs (A)

and (B) on the date of enactment of the Aviation and

Transportation Security Act.

(ii) The Under Secretary may provide by order

(without regard to the provisions of chapter 5 of title

5, United States Code) for a phased-in implementation

of the requirements of this subparagraph.
58

(D) EXEMPTION.—An employment investigation, including a criminal history record check, shall not be required

under this subsection for an individual who is exempted

under section 107.31(m)(1) or (2) of title 14, Code of Federal Regulations, as in effect on November 22, 2000. The

Under Secretary shall work with the International Civil

Aviation Organization and with appropriate authorities of

foreign countries to ensure that individuals exempted

under this subparagraph do not pose a threat to aviation

or national security.

(2) An air carrier, foreign air carrier, airport operator, or government that employs, or authorizes or makes a contract for the services of, an individual in a position described in paragraph (1) of

this subsection shall ensure that the investigation the Under Secretary requires is conducted.

(3) The Under Secretary shall provide for the periodic audit of

the effectiveness of criminal history record checks conducted under

paragraph (1) of this subsection.

(b) PROHIBITED EMPLOYMENT.—(1) Except as provided in paragraph (3) of this subsection, an air carrier, foreign air carrier, airport operator, or government may not employ, or authorize or make

a contract for the services of, an individual in a position described

in subsection (a)(1) of this section if— (A) the investigation of the individual required under this

section has not been conducted; or

(B) the results of that investigation establish that, in the 10-

year period ending on the date of the investigation, the individual was convicted (or found not guilty by reason of insanity)

of— (i) a crime referred to in section 46306, 46308, 46312,

46314, or 46315 or chapter 465 of this title or section 32

of title 18;

(ii) murder;

(iii) assault with intent to murder;

(iv) espionage;

(v) sedition;

(vi) treason;

(vii) rape;

(viii) kidnapping;

(ix) unlawful possession, sale, distribution, or manufacture of an explosive or weapon;

(x) extortion;

(xi) armed or felony unarmed robbery;

(xii) distribution of, or intent to distribute, a controlled

substance;

(xiii) a felony involving a threat;

(xiv) a felony involving—

(I) willful destruction of property;

(II) importation or manufacture of a controlled substance;

(III) burglary;

(IV) theft;

(V) dishonesty, fraud, or misrepresentation;

(VI) possession or distribution of stolen property;

(VII) aggravated assault;
59

(VIII) bribery; and

(IX) illegal possession of a controlled substance punishable by a maximum term of imprisonment of more

than 1 year, or any other crime classified as a felony

that the Under Secretary determines indicates a propensity for placing contraband aboard an aircraft in

return for money; or

(xv) conspiracy to commit any of the acts referred to in

clauses (i) through (xiv).

(2) The Under Secretary may specify other factors that are sufficient to prohibit the employment of an individual in a position described in subsection (a)(1) of this section.

(3) An air carrier, foreign air carrier, airport operator, or government may employ, or authorize or contract for the services of, an

individual in a position described in subsection (a)(1) of this section

without carrying out the investigation required under this section,

if the Under Secretary approves a plan to employ the individual

that provides alternate security arrangements.

(c) FINGERPRINTING AND RECORD CHECK INFORMATION.—(1) If the

Under Secretary requires an identification and criminal history

record check, to be conducted by the Attorney General, as part of

an investigation under this section, the Under Secretary shall designate an individual to obtain fingerprints and submit those fingerprints to the Attorney General. The Attorney General may make

the results of a check available to an individual the Under Secretary designates. Before designating an individual to obtain and

submit fingerprints or receive results of a check, the Under Secretary shall consult with the Attorney General. All Federal agencies shall cooperate with the Under Secretary and the Under Secretary’s designee in the process of collecting and submitting fingerprints.

(2) The Under Secretary shall prescribe regulations on—

(A) procedures for taking fingerprints; and

(B) requirements for using information received from the Attorney General under paragraph (1) of this subsection—

(i) to limit the dissemination of the information; and

(ii) to ensure that the information is used only to carry

out this section.

(3) If an identification and criminal history record check is conducted as part of an investigation of an individual under this section, the individual—

(A) shall receive a copy of any record received from the Attorney General; and

(B) may complete and correct the information contained in

the check before a final employment decision is made based on

the check.

(d) FEES AND CHARGES.—The Under Secretary and the Attorney

General shall establish reasonable fees and charges to pay expenses incurred in carrying out this section. The employer of the

individual being investigated shall pay the costs of a record check

of the individual. Money collected under this section shall be credited to the account in the Treasury from which the expenses were

incurred and are available to the Under Secretary and the Attorney

General for those expenses.
60

(e) WHEN INVESTIGATION OR RECORD CHECK NOT REQUIRED.—

This section does not require an investigation or record check when

the investigation or record check is prohibited by a law of a foreign

country.

(f) PROTECTION OF PRIVACY OF APPLICANTS AND EMPLOYEES.—

The Under Secretary shall formulate and implement procedures

that are designed to prevent the transmission of information not relevant to an applicant’s or employee’s qualifications for unescorted

access to secure areas of an airport when that applicant or employee

is undergoing a criminal history records check.

* * * * * * *

§ 44939. Training to operate certain aircraft

(a) WAITING PERIOD.—

(1) IN GENERAL.—A person subject to regulation under this

part may provide training in the operation of øany aircraft

having a maximum certificated takeoff weight of 12,500

pounds or more¿ an aircraft to an alien (as defined in section

101(a)(3) of the Immigration and Nationality Act (8 U.S.C.

1101(a)(3))) or to any other individual specified by the Under

Secretary of Transportation for Security only if—

ø(1)¿ (A) that person has first notified the Attorney General that the individual has requested such training and

furnished the Attorney General with that individual’s

identification in such form as the Attorney General may

require; and

ø(2)¿ (B) the Attorney General has not directed, within

45 days after being notified under øparagraph (1),¿ subparagraph (A), that person not to provide the requested

training because the Attorney General has determined that

the individual presents a risk to aviation or national security.

(2) EXCEPTION.—The requirements of paragraph (1) shall not

apply to an alien who—

(A) has earned a Federal Aviation Administration type

rating in an aircraft; or

(B) holds a current pilot’s license or foreign equivalent

commercial pilot’s license that permits the person to fly an

aircraft with a maximum certificated takeoff weight of

more than 12,500 pounds as defined by the International

Civil Aviation Organization in Annex 1 to the Convention

on International Civil Aviation.

(b) INTERRUPTION OF TRAINING.—If the Attorney General, more

than 45 days after receiving notification under subsection (a) from

a person providing training described in subsection (a), determines

that the individual presents a risk to aviation or national security,

the Attorney General shall immediately notify the person providing

the training of the determination and that person shall immediately terminate the training.

ø(c) COVERED TRAINING.—For the purposes of subsection (a),

training includes in-flight training, training in a simulator, and

any other form or aspect of training.¿

(c) COVERED TRAINING.—
61

(1) IN GENERAL.—For purposes of subsection (a), training includes in-flight training, training in a simulator, and any other

form or aspect of training.

(2) EXCEPTION.—For the purposes of subsection (a), training

does not include classroom instruction (also known as ground

training), which may be provided to an alien during the 45-day

period applicable to the alien under that subsection.

(d) SECURITY AWARENESS TRAINING FOR EMPLOYEES.—The Under

Secretary shall require flight schools to conduct a security awareness program for flight school employees to increase their awareness of suspicious circumstances and activities of individuals enrolling in or attending flight school.

§ 44940. Security service fee

(a) GENERAL AUTHORITY.— (1) PASSENGER FEES.—The Under Secretary of Transportation for Security shall impose a uniform fee, on passengers

of air carriers and foreign air carriers in air transportation and

intrastate air transportation originating at airports in the

United States, to pay for the following costs of providing civil

aviation security services:

(A) Salary, benefits, overtime, retirement and other costs

of screening personnel, their supervisors and managers,

and Federal law enforcement personnel deployed at airport

security screening locations under section 44901.

(B) The costs of training personnel described in subparagraph (A), and the acquisition, operation, and maintenance

of equipment used by such personnel.

(C) The costs of performing background investigations of

personnel described in subparagraphs (A), (D), (F), and

(G).

(D) The costs of the Federal air marshals program.

(E) The costs of performing civil aviation security research and development under this title.

(F) The costs of Federal Security Managers under section 44903.

(G) The costs of deploying øFederal law enforcement personnel pursuant to section 44903(h).¿ law enforcement personnel pursuant to this title.

The amount of such costs shall be determined by the Under

Secretary and shall not be subject to judicial review.

(2) AIR CARRIER FEES.—

(A) AUTHORITY.—In addition to the fee imposed pursuant to paragraph (1), and only to the extent that the

Under Secretary estimates that such fee will be insufficient to pay for the costs of providing civil aviation security

services described in paragraph (1), the Under Secretary

may impose a fee on air carriers and foreign air carriers

engaged in air transportation and intrastate air transportation to pay for the difference between any such costs and

the amount collected from such fee, as estimated by the

Under Secretary at the beginning of each fiscal year. The

estimates of the Under Secretary under this subparagraph

are not subject to judicial review.

(B) LIMITATIONS.—
62

(i) OVERALL LIMIT.—The amounts of fees collected

under this paragraph for each fiscal year may not exceed, in the aggregate, the amounts paid in calendar

year 2000 by carriers described in subparagraph (A)

for screening passengers and property, as determined

by the Under Secretary.

(ii) PER-CARRIER LIMIT.—The amount of fees collected under this paragraph from an air carrier described in subparagraph (A) for each of fiscal years

2002, 2003, and 2004 may not exceed the amount paid

in calendar year 2000 by that carrier for screening

passengers and property, as determined by the Under

Secretary.

(iii) ADJUSTMENT OF PER-CARRIER LIMIT.—For fiscal

year 2005 and subsequent fiscal years, the per-carrier

limitation under clause (ii) may be determined by the

Under Secretary on the basis of market share or any

other appropriate measure in lieu of actual screening

costs in calendar year 2000.

(iv) FINALITY OF DETERMINATIONS.—Determinations

of the Under Secretary under this subparagraph are

not subject to judicial review.

(C) SPECIAL RULE FOR FISCAL YEAR 2002.—The amount of

fees collected under this paragraph from any carrier for

fiscal year 2002 may not exceed the amounts paid by that

carrier for screening passengers and property for a period

of time in calendar year 2000 proportionate to the period

of time in fiscal year 2002 during which fees are collected

under this paragraph.

(b) SCHEDULE OF FEES.—In imposing fees under subsection (a),

the Under Secretary shall ensure that the fees are reasonably related to the Transportation Security Administration’s costs of providing services rendered.

(c) LIMITATION ON FEE.—Fees imposed under subsection (a)(1)

may not exceed $2.50 per enplanement in air transportation or

intrastate air transportation that originates at an airport in the

United States, except that the total amount of such fees may not

exceed $5.00 per one-way trip.

(d) IMPOSITION OF FEE.—

(1) IN GENERAL.—Notwithstanding section 9701 of title 31

and the procedural requirements of section 553 of title 5, the

Under Secretary shall impose the fee under subsection (a)(1),

and may impose a fee under subsection (a)(2), through the publication of notice of such fee in the Federal Register and begin

collection of the fee within 60 days of the date of enactment of

this Act, or as soon as possible thereafter.

(2) SPECIAL RULES FOR PASSENGER FEES.—A fee imposed

under subsection (a)(1) through the procedures under subsection (d) shall apply only to tickets sold after the date on

which such fee is imposed. If a fee imposed under subsection

(a)(1) through the procedures under subsection (d) on transportation of a passenger of a carrier described in subsection (a)(1)

is not collected from the passenger, the amount of the fee shall

be paid by the carrier.
63

(3) SUBSEQUENT MODIFICATION OF FEE.—After imposing a fee

in accordance with paragraph (1), the Under Secretary may

modify, from time to time through publication of notice in the

Federal Register, the imposition or collection of such fee, or

both.

ø(4) LIMITATION ON COLLECTION.—No fee may be collected

under this section except to the extent that the expenditure of

the fee to pay the costs of activities and services for which the

fee is imposed is provided for in advance in an appropriations

Act.¿

(4) FEE COLLECTION.—Fees may be collected under this section as provided in advance in appropriations Acts.

(e) ADMINISTRATION OF FEES.—

(1) FEES PAYABLE TO UNDER SECRETARY.—All fees imposed

and amounts collected under this section are payable to the

Under Secretary.

(2) FEES COLLECTED BY AIR CARRIER.—A fee imposed under

subsection (a)(1) shall be collected by the air carrier or foreign

air carrier that sells a ticket for transportation described in

subsection (a)(1).

(3) DUE DATE FOR REMITTANCE.—A fee collected under this

section shall be remitted on the last day of each calendar

month by the carrier collecting the fee. The amount to be remitted shall be for the calendar month preceding the calendar

month in which the remittance is made.

(4) INFORMATION.—The Under Secretary may require the

provision of such information as the Under Secretary decides

is necessary to verify that fees have been collected and remitted at the proper times and in the proper amounts.

(5) FEE NOT SUBJECT TO TAX.—For purposes of section 4261

of the Internal Revenue Code of 1986 (26 U.S.C. 4261), a fee

imposed under this section shall not be considered to be part

of the amount paid for taxable transportation.

(6) COST OF COLLECTING FEE.—No portion of the fee collected

under this section may be retained by the air carrier or foreign

air carrier for the costs of collecting, handling, or remitting the

fee except for interest accruing to the carrier after collection

and before remittance.

(f) RECEIPTS CREDITED AS OFFSETTING COLLECTIONS.—Notwithstanding section 3302 of title 31, any fee collected under this

section—

(1) shall be credited as offsetting collections to the account

that finances the activities and services for which the fee is imposed;

(2) shall be available for expenditure only to pay the costs of

activities and services for which the fee is imposed; and

(3) shall remain available until expended.

(g) REFUNDS.—The Under Secretary may refund any fee paid by

mistake or any amount paid in excess of that required.

(h) EXEMPTIONS.—The Under Secretary may exempt from the

passenger fee imposed under subsection (a)(1) any passenger enplaning at an airport in the United States that does not receive

screening services under section 44901 for that segment of the trip

for which the passenger does not receive screening.
64

§ 44942. Performance goals and objectives

(a) SHORT TERM TRANSITION.— (1) IN GENERAL.—Within 180 days after the date of enactment of the Aviation and Transportation Security Act, the

øUnder Secretary for Transportation Security¿ Under Secretary of Transportation for Security may, in consultation with

Congress— (A) establish acceptable levels of performance for aviation security, including screening operations and access

control, and

(B) provide Congress with an action plan, containing

measurable goals and milestones, that outlines how those

levels of performance will be achieved.

(2) BASICS OF ACTION PLAN.—The action plan shall clarify the

responsibilities of the Transportation Security Administration,

the Federal Aviation Administration and any other agency or

organization that may have a role in ensuring the safety and

security of the civil air transportation system.

(b) LONG-TERM RESULTS-BASED MANAGEMENT.— ø(1) PERFORMANCE PLAN AND REPORT.—¿

ø(A)¿ (1) PERFORMANCE PLAN.— ø(i)¿ (A) Each year, consistent with the requirements of

the Government Performance and Results Act of 1993

(GPRA), the Secretary and the øUnder Secretary for

Transportation Security¿ Under Secretary shall agree on a

performance plan for the succeeding 5 years that establishes measurable goals and objectives for aviation security. The plan shall identify action steps necessary to

achieve such goals.

ø(ii)¿ (B) In addition to meeting the requirements of

GPRA, the performance plan should clarify the responsibilities of the Secretary, the Under Secretary for Transportation Security and any other agency or organization that

may have a role in ensuring the safety and security of the

civil air transportation system.

ø(B)¿ (2) PERFORMANCE REPORT.—Each year, consistent with

the requirements of GPRA, the Under Secretary for Transportation Security shall prepare and submit to Congress an annual report including an evaluation of the extent goals and objectives were met. The report shall include the results achieved

during the year relative to the goals established in the performance plan.

§ 44943. Performance management system

(a) ESTABLISHING A FAIR AND EQUITABLE SYSTEM FOR MEASURING STAFF PERFORMANCE.—The øUnder Secretary for Transportation Security¿ Under Secretary of Transportation for Security

shall establish a performance management system which strengthens the organization’s effectiveness by providing for the establishment of goals and objectives for managers, employees, and organizational performance consistent with the performance plan.

(b) ESTABLISHING MANAGEMENT ACCOUNTABILITY FOR MEETING

PERFORMANCE GOALS.—

(1) IN GENERAL.—Each year, the Secretary and Under Secretary of Transportation for Security shall enter into an annual
65

performance agreement that shall set forth organizational and

individual performance goals for the Under Secretary.

(2) GOALS.—Each year, the Under Secretary and each senior

manager who reports to the Under Secretary shall enter into

an annual performance agreement that sets forth organization

and individual goals for those managers. All other employees

hired under the authority of the Under Secretary shall enter

into an annual performance agreement that sets forth organization and individual goals for those employees.

(c) PERFORMANCE-BASED SERVICE CONTRACTING.—To the extent

contracts, if any, are used to implement the Aviation and Transportation Security Act, the øUnder Secretary for Transportation Security¿ Under Secretary shall, to the extent practical, maximize the

use of performance-based service contracts. These contracts should

be consistent with guidelines published by the Office of Federal

Procurement Policy.

§ 44944. Voluntary provision of emergency services

(a) PROGRAM FOR PROVISION OF VOLUNTARY SERVICES.— (1) PROGRAM.—The øUnder Secretary of Transportation for

Transportation Security¿ Under Secretary of Transportation for

Security shall carry out a program to permit qualified law enforcement officers, firefighters, and emergency medical technicians to provide emergency services on commercial air flights

during emergencies.

(2) REQUIREMENTS.—The Under Secretary shall establish

such requirements for qualifications of providers of voluntary

services under the program under paragraph (1), including

training requirements, as the Under Secretary considers appropriate.

(3) CONFIDENTIALITY OF REGISTRY.—If as part of the program

under paragraph (1) the Under Secretary requires or permits

registration of law enforcement officers, firefighters, or emergency medical technicians who are willing to provide emergency services on commercial flights during emergencies, the

Under Secretary shall take appropriate actions to ensure that

the registry is available only to appropriate airline personnel

and otherwise remains confidential.

(4) CONSULTATION.—The Under Secretary shall consult with

appropriate representatives of the commercial airline industry,

and organizations representing community-based law enforcement, firefighters, and emergency medical technicians, in carrying out the program under paragraph (1), including the actions taken under paragraph (3).

(b) EXEMPTION FROM LIABILITY.—An individual shall not be liable for damages in any action brought in a Federal or State court

that arises from an act or omission of the individual in providing

or attempting to provide assistance in the case of an in-flight emergency in an aircraft of an air carrier if the individual meets such

qualifications as the Under Secretary shall prescribe for purposes

of this section.

(c) EXCEPTION.—The exemption under subsection (b) shall not

apply in any case in which an individual provides, or attempts to

provide, assistance described in that paragraph in a manner that

constitutes gross negligence or willful misconduct.
66

* * * * * * *

CHAPTER 463. PENALTIES

* * * * * * *

§ 46301. Civil penalties

(a) GENERAL PENALTY.—(1) A person is liable to the United

States Government for a civil penalty of not more than $1,000 for

violating—

(A) chapter 401 (except sections 40103(a) and (d), 40105,

40116, and 40117), chapter 411, chapter 413 (except sections

41307 and 41310(b)–(f)), chapter 415 (except sections 41502,

41505, and 41507–41509), chapter 417 (except sections 41703,

41704, 41710, 41713, and 41714), chapter 419, subchapter II or

III of chapter 421, chapter 441 (except section 44109), section

44502(b) or (c), chapter 447 (except sections 44717 and 44719–

44723), chapter 449 (except sections 44902, 44903(d), 44904,

44907(a)–(d)(1)(A) and (d)(1)(C)–(f), and 44908), or section

47107(b) (including any assurance made under such section) of

this title;

(B) a regulation prescribed or order issued under any provision to which clause (A) of this paragraph applies;

(C) any term of a certificate or permit issued under section

41102, 41103, or 41302 of this title; or

(D) a regulation of the United States Postal Service under

this part.

(2) A person operating an aircraft for the transportation of passengers or property for compensation (except an airman serving as

an airman) is liable to the Government for a civil penalty of not

more than $10,000 for violating—

(A) chapter 401 (except sections 40103(a) and (d), 40105,

40106(b), 40116, and 40117), section 44502 (b) or (c), chapter

447 (except sections 44717–44723), or chapter 449 (except sections 44902, 44903(d), 44904, and 44907–44909) of this title; or

(B) a regulation prescribed or order issued under any provision to which clause (A) of this paragraph applies.

(3) A civil penalty of not more than $10,000 may be imposed for

each violation under paragraph (1) of this subsection related to—

(A) the transportation of hazardous material;

(B) the registration or recordation under chapter 441 of this

title of an aircraft not used to provide air transportation;

(C) a violation of section 44718(d), relating to the limitation

on construction or establishment of landfills;

(D) a violation of section 44725, relating to the safe disposal

of life-limited aircraft parts; or

(E) a violation of section 41705, relating to discrimination

against handicapped individuals.

(4) A separate violation occurs under this subsection for each day

the violation (other than a violation of section 41715) continues or,

if applicable, for each flight involving the violation (other than a

violation of section 41715).

(5) PENALTY FOR DIVERSION OF AVIATION REVENUES.—The

amount of a civil penalty assessed under this section for a violation
67

of section 47107(b) of this title (or any assurance made under such

section) or section 47133 of this title may be increased above the

otherwise applicable maximum amount under this section to an

amount not to exceed 3 times the amount of revenues that are used

in violation of such section.

(6) AIR SERVICE TERMINATION NOTICE.—Notwithstanding paragraph (1), the maximum civil penalty for violating section 41715

shall be $5,000 instead of $1,000.

(7) CONSUMER PROTECTION.—Notwithstanding paragraphs (1)

and (4), the maximum civil penalty for violating section 40127 or

41712 (including a regulation prescribed or order issued under such

section) or any other regulation prescribed by the Secretary that is

intended to afford consumer protection to commercial air transportation passengers, shall be $2,500 for each violation.

(8) AVIATION SECURITY VIOLATIONS.—Notwithstanding paragraphs (1) and (2) of this subsection, the maximum civil penalty for

violating chapter 449 or another requirement under this title administered by the Under Secretary of Transportation for Security is

$10,000, except that the maximum civil penalty is $25,000 in the

case of a person operating an aircraft for the transportation of passengers or property for compensation (except an airman serving as

an airman).

(b) SMOKE ALARM DEVICE PENALTY.—(1) A passenger may not

tamper with, disable, or destroy a smoke alarm device located in

a lavatory on an aircraft providing air transportation or intrastate

air transportation.

(2) An individual violating this subsection is liable to the Government for a civil penalty of not more than $2,000.

(c) PROCEDURAL REQUIREMENTS.—(1) The Secretary of Transportation may impose a civil penalty for the following violations only

after notice and an opportunity for a hearing:

(A) a violation of subsection (b) of this section or chapter 411,

chapter 413 (except sections 41307 and 41310(b)–(f)), chapter

415 (except sections 41502, 41505, and 41507–41509), chapter

417 (except sections 41703, 41704, 41710, 41713, and 41714),

chapter 419, subchapter II of chapter 421, or section 44909 of

this title.

(B) a violation of a regulation prescribed or order issued

under any provision to which clause (A) of this paragraph applies.

(C) a violation of any term of a certificate or permit issued

under section 41102, 41103, or 41302 of this title.

(D) a violation under subsection (a)(1) of this section related

to the transportation of hazardous material.

(2) The Secretary shall give written notice of the finding of a violation and the civil penalty under paragraph (1) of this subsection.

(d) ADMINISTRATIVE IMPOSITION OF PENALTIES.—(1) In this

subsection—

(A) ‘‘flight engineer’’ means an individual who holds a flight

engineer certificate issued under part 63 of title 14, Code of

Federal Regulations.

(B) ‘‘mechanic’’ means an individual who holds a mechanic

certificate issued under part 65 of title 14, Code of Federal

Regulations.
68

(C) ‘‘pilot’’ means an individual who holds a pilot certificate

issued under part 61 of title 14, Code of Federal Regulations.

(D) ‘‘repairman’’ means an individual who holds a repairman

certificate issued under part 65 of title 14, Code of Federal

Regulations.

(2) The Administrator of the Federal Aviation Administration

may impose a civil penalty for a violation of chapter 401 (except

sections 40103(a) and (d), 40105, 40106(b), 40116, and 40117),

chapter 441 (except section 44109), section 44502(b) or (c), chapter

447 (except sections 44717 and 44719–44723) or section 46301(b),

ø46302, 46303,¿ 46318, or 47107(b) (as further defined by the Secretary under section 47107(l) and including any assurance made

under section 47107(b)) of this title or a regulation prescribed or

order issued under any of those provisions. øThe Under Secretary

of Transportation for Security may impose a civil penalty for a violation of chapter 449 (except sections 44902, 44903(d), 44907(a)– (d)(1)(A), 44907(d)(1)(C)–(f), 44908, and 44909) or a regulation prescribed or order issued under such chapter 449.¿ The Under Secretary of Transportation for Security may impose a civil penalty for

a violation of section 114(l), section 40113, 40119, chapter 449 (except sections 44902, 44903(d), 44907(a)—(d)(1)(A), 44907(d)(1)(C)— (F), 44908, and 44909), section 46302, 46303, or 46318 of this title,

or a regulation prescribed or order issued under any of those provisions. The Under Secretary or Administrator shall give written notice of the finding of a violation and the penalty.

(3) In a civil action to collect a civil penalty imposed by the

Under Secretary or Administrator under this subsection, the issues

of liability and the amount of the penalty may not be reexamined.

(4) Notwithstanding paragraph (2) of this subsection, the district

courts of the United States have exclusive jurisdiction of a civil action involving a penalty the Under Secretary or Administrator initiates if—

(A) the amount in controversy is more than $50,000;

(B) the action is in rem or another action in rem based on

the same violation has been brought;

(C) the action involves an aircraft subject to a lien that has

been seized by the Government; or

(D) another action has been brought for an injunction based

on the same violation.

(5)(A) The Administrator may issue an order imposing a penalty

under this subsection against an individual acting as a pilot, flight

engineer, mechanic, or repairman only after advising the individual

of the charges or any reason the Administrator relied on for the

proposed penalty and providing the individual an opportunity to

answer the charges and be heard about why the order shall not be

issued.

(B) An individual acting as a pilot, flight engineer, mechanic, or

repairman may appeal an order imposing a penalty under this subsection to the National Transportation Safety Board. After notice

and an opportunity for a hearing on the record, the Board shall affirm, modify, or reverse the order. The Board may modify a civil

penalty imposed to a suspension or revocation of a certificate.

(C) When conducting a hearing under this paragraph, the Board

is not bound by findings of fact of the Administrator but is bound

by all validly adopted interpretations of laws and regulations the
69

Administrator carries out and of written agency policy guidance

available to the public related to sanctions to be imposed under

this section unless the Board finds an interpretation is arbitrary,

capricious, or otherwise not according to law.

(D) When an individual files an appeal with the Board under this

paragraph, the order of the Administrator is stayed.

(6) An individual substantially affected by an order of the Board

under paragraph (5) of this subsection, or the Administrator when

the Administrator decides that an order of the Board under paragraph (5) will have a significant adverse impact on carrying out

this part, may obtain judicial review of the order under section

46110 of this title. The Administrator shall be made a party to the

judicial review proceedings. Findings of fact of the Board are conclusive if supported by substantial evidence.

(7)(A) The Administrator may impose a penalty on a person (except an individual acting as a pilot, flight engineer, mechanic, or

repairman) only after notice and an opportunity for a hearing on

the record.

(B) In an appeal from a decision of an administrative law judge

as the result of a hearing under subparagraph (A) of this paragraph, the Administrator shall consider only whether— (i) each finding of fact is supported by a preponderance of reliable, probative, and substantial evidence;

(ii) each conclusion of law is made according to applicable

law, precedent, and public policy; and

(iii) the judge committed a prejudicial error that supports the

appeal.

(C) Except for good cause, a civil action involving a penalty under

this paragraph may not be initiated later than 2 years after the

violation occurs.

(D) In the case of a violation of section 47107(b) of this title or

any assurance made under such section— (i) a civil penalty shall not be assessed against an individual;

(ii) a civil penalty may be compromised as provided under

subsection (f); and

(iii) judicial review of any order assessing a civil penalty may

be obtained only pursuant to section 46110 of this title.

(8) The maximum civil penalty the Under Secretary, Administrator, or Board may impose under this subsection is $50,000.

(9) This subsection applies only to a violation occurring after August 25, 1992.

(e) PENALTY CONSIDERATIONS.—In determining the amount of a

civil penalty under subsection (a)(3) of this section related to transportation of hazardous material, the Secretary shall consider—

(1) the nature, circumstances, extent, and gravity of the violation;

(2) with respect to the violator, the degree of culpability, any

history of prior violations, the ability to pay, and any effect on

the ability to continue doing business; and

(3) other matters that justice requires.

(f) COMPROMISE AND SETOFF.—(1)(A) The Secretary may compromise the amount of a civil penalty imposed for violating—

(i) chapter 401 (except sections 40103(a) and (d), 40105,

40116, and 40117), chapter 441 (except section 44109), section

44502(b) or (c), chapter 447 (except sections 44717 and 44719–
70

44723), chapter 449 (except sections 44902, 44903(d), 44904,

44907(a)–(d)(1)(A) and (d)(1)(C)–(f), 44908, and 44909), or section 46302, 46303, or 47107(b) of this title; or

(ii) a regulation prescribed or order issued under any provision to which clause (i) of this subparagraph applies.

(B) The Postal Service may compromise the amount of a civil

penalty imposed under subsection (a)(1)(D) of this section.

(2) 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.

(g) JUDICIAL REVIEW.—An order of the øSecretary¿ Secretary, the

Under Secretary of Transportation for Security, or the Administrator imposing a civil penalty may be reviewed judicially only

under section 46110 of this title.

(h) NONAPPLICATION.—(1) This section does not apply to the following when performing official duties:

(A) a member of the armed forces of the United States.

(B) a civilian employee of the Department of Defense subject

to the Uniform Code of Military Justice.

(2) The appropriate military authority is responsible for taking

necessary disciplinary action and submitting to the Secretary (or

the Under Secretary of Transportation for Security with respect to

security duties and powers designated to be carried out by the

Under Secretary or the Administrator with respect to aviation safety duties and powers designated to be carried out by the Administrator) a timely report on action taken.

* * * * * * *

CHAPTER 465. SPECIAL AIRCRAFT JURISDICTION OF THE UNITED

STATES

* * * * * * *

§ 46503. Interference with øsecurity¿ screening personnel;

unauthorized circumvention of security systems or

procedures

(a) INTERFERENCE WITH SECURITY SCREENING PERSONNEL.—An

individual in an area within a commercial service airport in the

United States who, by assaulting a Federal, airport, or air carrier

employee who has security duties within the airport, interferes

with the performance of the duties of the employee or lessens the

ability of the employee to perform those duties, shall be fined

under title 18, imprisoned for not more than 10 years, or both. If

the individual used a dangerous weapon in committing the assault

or interference, the individual may be imprisoned for any term of

years or life imprisonment.

(b) UNAUTHORIZED CIRCUMVENTION OF SECURITY SYSTEMS AND

PROCEDURES.—An individual in an area within a commercial service airport in the United States who intentionally circumvents, in

an unauthorized manner, a security system or procedure in the airport shall be fined under title 18, imprisoned for not more than 10

years, or both.
71

* * * * * * *

CHAPTER 471. AIRPORT DEVELOPMENT

* * * * * * *

§ 47115. Discretionary fund

(a) EXISTENCE AND AMOUNTS IN FUND.—The Secretary of Transportation has a discretionary fund. The fund consists of—

(1) amounts subject to apportionment for a fiscal year that

are not apportioned under section 47114(c)–(e) of this title; and

(2) 12.5 percent of amounts not apportioned under section

47114 of this title because of section 47114(f).

(b) AVAILABILITY OF AMOUNTS.—Subject to subsection (c) of this

section and section 47117(e) of this title, the fund is available for

making grants for any purpose for which amounts are made available under section 48103 of this title that the Secretary considers

most appropriate to carry out this subchapter.

(c) MINIMUM PERCENTAGE FOR PRIMARY AND RELIEVER AIRPORTS.—At least 75 percent of the amount in the fund and distributed by the Secretary in a fiscal year shall be used for making

grants—

(1) to preserve and enhance capacity, safety, and security at

primary and reliever airports; and

(2) to carry out airport noise compatibility planning and programs at primary and reliever airports.

(d) CONSIDERATIONS.—In selecting a project for a grant to preserve and enhance capacity as described in subsection (c)(1) of this

section, the Secretary shall consider—

(1) the effect the project will have on the overall national air

transportation system capacity;

(2) the project benefit and cost, including, in the case of a

project at a reliever airport, the number of operations projected

to be diverted from a primary airport to the reliever airport as

a result of the project, as well as the cost savings projected to

be realized by users of the local airport system;

(3) the financial commitment from non-United States Government sources to preserve or enhance airport capacity;

(4) the airport improvement priorities of the States, and regional offices of the Administration, to the extent such priorities are not in conflict with paragraphs (1) and (2);

(5) the projected growth in the number of passengers that

will be using the airport at which the project will be carried

out; and

(6) any increase in the number of passenger boardings in the

preceding 12-month period at the airport at which the project

will be carried out, with priority consideration to be given to

projects at airports at which the number of passenger

boardings increased by at least 20 percent as compared to the

number of passenger boardings in the 12-month period preceding such period.

(e) WAIVING PERCENTAGE REQUIREMENT.—If the Secretary decides the Secretary cannot comply with the percentage requirement

of subsection (c) of this section in a fiscal year because there are
72

insufficient qualified grant applications to meet that percentage,

the amount the Secretary determines will not be distributed as required by subsection (c) is available for obligation during the fiscal

year without regard to the requirement.

(f) CONSIDERATION OF DIVERSION OF REVENUES IN AWARDING

DISCRETIONARY GRANTS.—

(1) GENERAL RULE.—Subject to paragraph (2), in deciding

whether or not to distribute funds to an airport from the discretionary funds established by subsection (a) of this section

and section 47116 of this title, the Secretary shall consider as

a factor militating against the distribution of such funds to the

airport the fact that the airport is using revenues generated by

the airport or by local taxes on aviation fuel for purposes other

than capital or operating costs of the airport or the local airports system or other local facilities which are owned or operated by the owner or operator of the airport and directly and

substantially related to the actual air transportation of passengers or property.

(2) REQUIRED FINDING.—Paragraph (1) shall apply only when

the Secretary finds that the amount of revenues used by the

airport for purposes other than capital or operating costs in the

airport’s fiscal year preceding the date of the application for

discretionary funds exceeds the amount of such revenues in the

airport’s first fiscal year ending after August 23, 1994, adjusted by the Secretary for changes in the Consumer Price

Index of All Urban Consumers published by the Bureau of

Labor Statistics of the Department of Labor.

(g) MINIMUM AMOUNT TO BE CREDITED.—

(1) GENERAL RULE.—In a fiscal year, there shall be credited

to the fund, out of amounts made available under section

48103 of this title, an amount that is at least equal to the sum

of—

(A) $148,000,000; plus

(B) the total amount required from the fund to carry out

in the fiscal year letters of intent issued before January 1,

1996, under section 47110(e) of this title or the Airport and

Airway Improvement Act of 1982.

The amount credited is exclusive of amounts that have been

apportioned in a prior fiscal year under section 47114 of this

title and that remain available for obligation.

(2) REDUCTION OF APPORTIONMENTS.—In a fiscal year in

which the amount credited under subsection (a) is less than

the minimum amount to be credited under paragraph (1), the

total amount calculated under paragraph (3) shall be reduced

by an amount that, when credited to the fund, together with

the amount credited under subsection (a), equals such minimum amount.

(3) AMOUNT OF REDUCTION.—For a fiscal year, the total

amount available to make a reduction to carry out paragraph

(2) is the total of the amounts determined under sections

47114(c)(1)(A), 47114(c)(2), 47114(d), and 47117(e) of this title.

Each amount shall be reduced by an equal percentage to

achieve the reduction.
73

(h) PRIORITY FOR LETTERS OF INTENT.—In making grants in a fiscal year with funds made available under this section, the Secretary shall fulfill intentions to obligate under section 47110(e).

(i) CONSIDERATIONS FOR PROJECT UNDER EXPANDED SECURITY

ELIGIBILITY.—In order to assure that funding under this subchapter is provided to the greatest needs, the Secretary, in selecting a project described in section 47102(3)(J) for a grant, shall consider the ønon-federal¿ non-Federal resources available to sponsor,

the use of such ønon-federal¿ non-Federal resources, and the degree to which the sponsor is providing increased funding for the

project.

* * * * * * *

CHAPTER 481. AIRPORT AND AIRWAY TRUST FUND AUTHORIZATIONS

* * * * * * *

§ 48107. Civil aviation security research and development

After the review under section 44912(b) of this title is completed,

necessary amounts may be appropriated to the Secretary of Transportation out of the Airport and Airway Trust Fund established

under section 9502 of the Internal Revenue Code of 1986 (26 U.S.C.

9502) to make grants under section ø44912(a)(4)(A).¿

44912(a)(5)(A).

* * * * * * *

AVIATION AND TRANSPORTATION SECURITY ACT

* * * * * * *

SEC. 106. IMPROVED AIRPORT PERIMETER ACCESS SECURITY.

(a) IN GENERAL.—Section 44903 of title 49, United States Code,

is amended by adding at the end the following: ‘‘(h) IMPROVED AIRPORT PERIMETER ACCESS SECURITY.— ‘‘(1) IN GENERAL.—The Under Secretary, in consultation with

the airport operator and law enforcement authorities, may

order the deployment of such personnel at any secure area of

the airport as necessary to counter the risk of criminal violence, the risk of aircraft piracy at the airport, the risk to air

carrier aircraft operations at the airport, or to meet national

security concerns.

‘‘(2) SECURITY OF AIRCRAFT AND GROUND ACCESS TO SECURE

AREAS.—In determining where to deploy such personnel, the

Under Secretary shall consider the physical security needs of

air traffic control facilities, parked aircraft, aircraft servicing

equipment, aircraft supplies (including fuel), automobile parking facilities within airport perimeters or adjacent to secured

facilities, and access and transition areas at airports served by

other means of ground or water transportation.

‘‘(3) DEPLOYMENT OF FEDERAL LAW ENFORCEMENT PERSONNEL.—The Secretary may enter into a memorandum of understanding or other agreement with the Attorney General or
74

the head of any other appropriate Federal law enforcement

agency to deploy Federal law enforcement personnel at an airport in order to meet aviation safety and security concerns. ‘‘(4) AIRPORT PERIMETER SCREENING.—The Under Secretary— ‘‘(A) shall require, as soon as practicable after the date

of enactment of this subsection, screening or inspection of

all individuals, goods, property, vehicles, and other equipment before entry into a secured area of an airport in the

United States described in section 44903(c); ‘‘(B) shall prescribe specific requirements for such

screening and inspection that will assure at least the same

level of protection as will result from screening of passengers and their baggage; ‘‘(C) shall establish procedures to ensure the safety and

integrity of— ‘‘(i) all persons providing services with respect to aircraft providing passenger air transportation or intrastate air transportation and facilities of such persons

at an airport in the United States described in section

44903(c); ‘‘(ii) all supplies, including catering and passenger

amenities, placed aboard such aircraft, including the

sealing of supplies to ensure easy visual detection of

tampering; and ‘‘(iii) all persons providing such supplies and facilities of such persons; ‘‘(D) shall require vendors having direct access to the

airfield and aircraft to develop security programs; and ‘‘(E) may provide for the use of biometric or other technology that positively verifies the identity of each employee and law enforcement officer who enters a secure

area of an airport.’’. (b) SMALL AND MEDIUM AIRPORTS.— (1) TECHNICAL SUPPORT AND FINANCIAL ASSISTANCE.—The

Under Secretary of Transportation for Security shall develop a

plan to—

(A) provide technical support to airports, each of which

had less than 1 percent of the total annual enplanements

in the United States for the most recent calendar year for

which data is available, to enhance security operations;

and

(B) provide financial assistance to those airports to defray the costs of enhancing security.

(2) REMOVAL OF CERTAIN RESTRICTIONS.—

(A) CERTIFICATION BY OPERATOR.—If the operator of an

airport described in paragraph (1), after consultation with

the appropriate State and local law enforcement authorities, determines that safeguards are in place to sufficiently

protect public safety, and so certifies in writing to the

Under Secretary, then any security rule, order, or other directive restricting the parking of passenger vehicles shall

not apply at that airport after the applicable time period

specified in subparagraph (B), unless the Under Secretary,

taking into account individual airport circumstances, notifies the airport operator that the safeguards in place do
75

not adequately respond to specific security risks and that

the restriction must be continued in order to ensure public

safety.

(B) COUNTERMAND PERIOD.—The time period within

which the Under Secretary may notify an airport operator,

after receiving a certification under subparagraph (A), that

a restriction must be continued in order to ensure public

safety at the airport is— (i) 15 days for a nonhub airport (as defined in section 41714(h) of title 49, United States Code);

(ii) 30 days for a small hub airport (as defined in

such section);

(iii) 60 days for a medium hub airport (as defined in

such section); and

(iv) 120 days for an airport that had at least 1 percent of the total annual enplanements in the United

States for the most recent calendar year for which

data is available.

(c) IMPROVEMENT OF SECURED-AREA ACCESS CONTROL.—Section

44903(g)(2) of title 49, United States Code, is amended— (1) by striking ‘‘weaknesses by January 31, 2001;’’ in subparagraph (A) and inserting ‘‘weaknesses;’’;

(2) by striking subparagraph (D) and inserting the following: ‘‘(D) on an ongoing basis, assess and test for compliance

with access control requirements, report annually findings

of the assessments, and assess the effectiveness of penalties in ensuring compliance with security procedures and

take any other appropriate enforcement actions when noncompliance is found;’’;

(3) by striking ‘‘program by January 31, 2001;’’ in subparagraph (F) and inserting ‘‘program;’’; and

(4) by striking subparagraph (G) and inserting the following: ‘‘(G) work with airport operators to strengthen access

control points in secured areas (including air traffic control

operations areas, maintenance areas, crew lounges, baggage handling areas, concessions, and catering delivery

areas) to ensure the security of passengers and aircraft

and consider the deployment of biometric or similar technologies that identify individuals based on unique personal

characteristics.’’.

(d) AIRPORT SECURITY PILOT PROGRAM.—Section 44903(c) of title

49, United States Code, is amended by adding at the end the following:

‘‘(3) PILOT PROGRAMS.—The Administrator shall establish

pilot programs in no fewer than 20 airports to test and evaluate new and emerging technology for providing access control

and other security protections for closed or secure areas of the

airports. Such technology may include biometric or other technology that ensures only authorized access to secure areas.’’. (e) AIRPORT SECURITY AWARENESS PROGRAMS.—The Under Secretary of Transportation for Security shall require scheduled passenger air carriers, and airports in the United States described in

section 44903(c) to develop security awareness programs for airport

employees, ground crews, gate, ticket, and curbside agents of the

air carriers, and other individuals employed at such airports.
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* * * * * * *

SEC. 119. INCREASED FUNDING FLEXIBILITY FOR AVIATION SECURITY.

(a) LIMITED USE OF AIRPORT IMPROVEMENT PROGRAM FUNDS.—

(1) AIRPORT DEVELOPMENT FUNDS.—Section 47102(3) of title

49, United States Code, is amended by adding at the end the

following:

‘‘(J) in fiscal year 2002, any additional security related

activity required by law or by the Secretary after September 11, 2001, and before October 1, 2002.

‘‘(K) in fiscal year 2002 with respect to funds apportioned under section 47114 in fiscal years 2001 and 2002,

any activity, including operational activities, of an airport

that is not a primary airport if that airport is located within the confines of enhanced class B airspace, as defined by

Notice to Airmen FDC 1/0618 issued by the Federal Aviation Administration and the activity was carried out when

any restriction in the Notice is in effect.

‘‘(L) in fiscal year 2002, payments for debt service on indebtedness incurred to carry out a project at an airport

owned or controlled by the sponsor or at a privately owned

or operated airport passenger terminal financed by indebtedness incurred by the sponsor if the Secretary determines

that such payments are necessary to prevent a default on

the indebtedness.’’.

(2) ALLOWABLE COSTS.—Section 47110(b)(2) of title 49,

United States Code, is amended—

(A) by striking ‘‘or’’ in subparagraph (B);

(B) by inserting ‘‘or’’ after ‘‘executed;’’ in subparagraph

(C); and

(C) by adding at the end the following:

‘‘(D) if the cost is incurred after September 11, 2001, for

a project described in section 47102(3)(J), 47102(3)(K), or

47102(3)(L) and shall not depend upon the date of execution of a grant agreement made under this subchapter;’’.

(3) DISCRETIONARY GRANTS.—Section 47115 of title 49,

United States Code, is amended by adding at the end the following:

‘‘(i) CONSIDERATIONS FOR PROJECT UNDER EXPANDED SECURITY

ELIGIBILITY.—In order to assure that funding under this subchapter is provided to the greatest needs, the Secretary, in selecting a project described in section 47102(3)(J) for a grant, shall consider the non-federal resources available to sponsor, the use of such

non-federal resources, and the degree to which the sponsor is providing increased funding for the project.’’.

(4) FEDERAL SHARE.—Section 47109(a) of title 49, United

States Code, is amended—

(A) by striking ‘‘and’’ in paragraph (3);

(B) by striking ‘‘47134.’’ in paragraph (4) and inserting

‘‘47134; and’’; and

(C) by adding at the end the following:

‘‘(5) for fiscal year 2002, 100 percent for a project described

in section 47102(3)(J), 47102(3)(K), or 47102(3)(L).’’.
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(5) AIRPORT DEVELOPMENT.—Section 47102(3)(B) of title 49,

United States Code, is amended—

(A) by striking ‘‘and’’ at the end of clause (viii);

(B) by striking the period at the end of clause (ix) and

inserting ‘‘; and’’; and

(C) by inserting after clause (ix) the following new

clause:

‘‘(x) replacement of baggage conveyor systems, and

reconfiguration of terminal baggage areas, that the

Secretary determines are necessary to install bulk explosive detection devices.’’.

(b) APPORTIONED FUNDS.—For the purpose of carrying out section

47114 of title 49, United States Code, for fiscal year 2003, the Secretary shall use, in lieu of passenger boardings at an airport during

the prior calendar year, the greater of—

(1) the number of passenger boardings at that airport during

2000; or

(2) the number of passenger boardings at that airport during

2001.

(c) EXPEDITED PROCESSING OF SECURITY-RELATED PFC REQUESTS.—The Administrator of the Federal Aviation Administration shall, to the extent feasible, expedite the processing and approval of passenger facility fee requests under subchapter I of

chapter 471 of title 49, United States Code, for projects described

in øsection 47192(3)(J)¿ section 47102(3)(J) of title 49, United

States Code.

(d) AMENDMENT OF GENERAL FEE SCHEDULE PROVISION.—Section

45301(b)(1)(B) of title 49, United States Code, is amended—

(1) by striking ‘‘directly’’ and inserting ‘‘reasonably’’;

(2) by striking ‘‘Administration’s costs’’ and inserting ‘‘Administration’s costs, as determined by the Administrator,’’; and

(3) by adding at the end ‘‘The Determination of such costs by

the Administrator is not subject to judicial review.’’.

* * * * * * *

SEC. 132. GENERAL AVIATION AND AIR CHARTERS.

(a) AIR CHARTER PROGRAM.—Within 90 days after the date of enactment of this Act, the Under Secretary of Transportation for

Transportation Security shall implement an aviation security program for charter air carriers (as defined in section 40102(a)(13) of

title 49, United States Code) with a maximum certificated takeoff

weight of ø12,500 pounds or more.¿ more than 12,500 pounds.

(b) GENERAL AVIATION PROGRAM.—Within 30 days after the date

of enactment of this Act, the Under Secretary of Transportation for

Transportation Security shall transmit a report on airspace and

other security measures that can be deployed, as necessary, to improve general aviation security to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Transportation and Infrastructure. The Under

Secretary may submit the report in both classified and redacted

forms.

Æ