ATSA Section 114

115 STAT. 597 PUBLIC LAW 107–71—NOV. 19, 2001

Public Law 107–71

107th Congress

An Act

To improve aviation security, and for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Aviation and Transportation

Security Act’’.

TITLE I—AVIATION SECURITY

SEC. 101. TRANSPORTATION SECURITY ADMINISTRATION.

(a) IN GENERAL.—Chapter 1 of title 49, United States Code,

is amended by adding at the end the following:

‘‘§ 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;

49 USC 40101

note.

Aviation and

Transportation

Security Act.

Nov. 19, 2001

[S. 1447]

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115 STAT. 598 PUBLIC LAW 107–71—NOV. 19, 2001

‘‘(2) develop standards for the hiring and retention of security

screening personnel;

‘‘(3) train and test security screening personnel; and

‘‘(4) be responsible for hiring and training personnel to

provide security screening at all airports in the United States

where screening is required under section 44901, in consultation

with the Secretary of Transportation and the heads of

other appropriate Federal agencies and departments.

‘‘(f) ADDITIONAL DUTIES AND POWERS.—In addition to carrying

out the functions specified in subsections (d) and (e), the Under

Secretary shall—

‘‘(1) receive, assess, and distribute intelligence information

related to transportation security;

‘‘(2) assess threats to transportation;

‘‘(3) develop policies, strategies, and plans for dealing with

threats to transportation security;

‘‘(4) make other plans related to transportation security,

including coordinating countermeasures with appropriate

departments, agencies, and instrumentalities of the United

States Government;

‘‘(5) serve as the primary liaison for transportation security

to the intelligence and law enforcement communities;

‘‘(6) on a day-to-day basis, manage and provide operational

guidance to the field security resources of the Administration,

including Federal Security Managers as provided by section

44933;

‘‘(7) enforce security-related regulations and requirements;

‘‘(8) identify and undertake research and development

activities necessary to enhance transportation security;

‘‘(9) inspect, maintain, and test security facilities, equipment,

and systems;

‘‘(10) ensure the adequacy of security measures for the

transportation of cargo;

‘‘(11) oversee the implementation, and ensure the adequacy,

of security measures at airports and other transportation facilities;

‘‘(12) require background checks for airport security

screening personnel, individuals with access to secure areas

of airports, and other transportation security personnel;

‘‘(13) work in conjunction with the Administrator of the

Federal Aviation Administration with respect to any actions

or activities that may affect aviation safety or air carrier operations;

‘‘(14) work with the International Civil Aviation Organization

and appropriate aeronautic authorities of foreign governments

under section 44907 to address security concerns on

passenger flights by foreign air carriers in foreign air transportation;

and

‘‘(15) carry out such other duties, and exercise such other

powers, relating to transportation security as the Under Secretary

considers appropriate, to the extent authorized by law.

‘‘(g) NATIONAL EMERGENCY RESPONSIBILITIES.—

‘‘(1) IN GENERAL.—Subject to the direction and control of

the Secretary, the Under Secretary, during a national emergency,

shall have the following responsibilities:

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115 STAT. 599 PUBLIC LAW 107–71—NOV. 19, 2001

‘‘(A) To coordinate domestic transportation, including

aviation, rail, and other surface transportation, and maritime

transportation (including port security).

‘‘(B) To coordinate and oversee the transportationrelated

responsibilities of other departments and agencies

of the Federal Government other than the Department

of Defense and the military departments.

‘‘(C) To coordinate and provide notice to other departments

and agencies of the Federal Government, and appropriate

agencies of State and local governments, including

departments and agencies for transportation, law enforcement,

and border control, about threats to transportation.

‘‘(D) To carry out such other duties, and exercise such

other powers, relating to transportation during a national

emergency as the Secretary shall prescribe.

‘‘(2) AUTHORITY OF OTHER DEPARTMENTS AND AGENCIES.—

The authority of the Under Secretary under this subsection

shall not supersede the authority of any other department

or agency of the Federal Government under law with respect

to transportation or transportation-related matters, whether

or not during a national emergency.

‘‘(3) CIRCUMSTANCES.—The Secretary shall prescribe the

circumstances constituting a national emergency for purposes

of this subsection.

‘‘(h) MANAGEMENT OF SECURITY INFORMATION.—In consultation

with the Transportation Security Oversight Board, the Under Secretary

shall—

‘‘(1) enter into memoranda of understanding with Federal

agencies or other entities to share or otherwise cross-check

as necessary data on individuals identified on Federal agency

databases who may pose a risk to transportation or national

security;

‘‘(2) establish procedures for notifying the Administrator

of the Federal Aviation Administration, appropriate State and

local law enforcement officials, and airport or airline security

officers of the identity of individuals known to pose, or suspected

of posing, a risk of air piracy or terrorism or a threat

to airline or passenger safety;

‘‘(3) in consultation with other appropriate Federal agencies

and air carriers, establish policies and procedures requiring

air carriers—

‘‘(A) to use information from government agencies to

identify individuals on passenger lists who may be a threat

to civil aviation or national security; and

‘‘(B) if such an individual is identified, notify appropriate

law enforcement agencies, prevent the individual

from boarding an aircraft, or take other appropriate action

with respect to that individual; and

‘‘(4) consider requiring passenger air carriers to share passenger

lists with appropriate Federal agencies for the purpose

of identifying individuals who may pose a threat to aviation

safety or national security.

‘‘(i) VIEW OF NTSB.—In taking any action under this section

that could affect safety, the Under Secretary shall give great weight

to the timely views of the National Transportation Safety Board.

‘‘(j) ACQUISITIONS.—

‘‘(1) IN GENERAL.—The Under Secretary is authorized—

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115 STAT. 600 PUBLIC LAW 107–71—NOV. 19, 2001

‘‘(A) to acquire (by purchase, lease, condemnation, or

otherwise) such real property, or any interest therein,

within and outside the continental United States, as the

Under Secretary considers necessary;

‘‘(B) to acquire (by purchase, lease, condemnation, or

otherwise) and to construct, repair, operate, and maintain

such personal property (including office space and patents),

or any interest therein, within and outside the continental

United States, as the Under Secretary considers necessary;

‘‘(C) to lease to others such real and personal property

and to provide by contract or otherwise for necessary facilities

for the welfare of its employees and to acquire, maintain,

and operate equipment for these facilities;

‘‘(D) to acquire services, including such personal services

as the Secretary determines necessary, and to acquire

(by purchase, lease, condemnation, or otherwise) and to

construct, repair, operate, and maintain research and

testing sites and facilities; and

‘‘(E) in cooperation with the Administrator of the Federal

Aviation Administration, to utilize the research and

development facilities of the Federal Aviation Administration.

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

acquired pursuant to this subsection shall be held by the

Government of the United States.

‘‘(k) TRANSFERS OF FUNDS.—The Under Secretary is authorized

to accept transfers of unobligated balances and unexpended balances

of funds appropriated to other Federal agencies (as such

term is defined in section 551(1) of title 5) to carry out functions

transferred, on or after the date of enactment of the Aviation

and Transportation Security Act, by law to the Under Secretary.

‘‘(l) REGULATIONS.—

‘‘(1) IN GENERAL.—The Under Secretary is authorized to

issue, rescind, and revise such regulations as are necessary

to carry out the functions of the Administration.

‘‘(2) EMERGENCY PROCEDURES.—

‘‘(A) IN GENERAL.—Notwithstanding any other provision

of law or executive order (including an executive order

requiring a cost-benefit analysis), if the Under Secretary

determines that a regulation or security directive must

be issued immediately in order to protect transportation

security, the Under Secretary shall issue the regulation

or security directive without providing notice or an opportunity

for comment and without prior approval of the Secretary.

‘‘(B) REVIEW BY TRANSPORTATION SECURITY OVERSIGHT

BOARD.—Any regulation or security directive issued under

this paragraph shall be subject to review by the Transportation

Security Oversight Board established under section

115. Any regulation or security directive issued under this

paragraph shall remain effective 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

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115 STAT. 601 PUBLIC LAW 107–71—NOV. 19, 2001

provide. The Under Secretary may waive requirements for an

analysis that estimates the number of lives that will be saved

by the regulation and the monetary value of such lives if

the Under Secretary determines that it is not feasible to make

such an estimate.

‘‘(4) AIRWORTHINESS OBJECTIONS BY FAA.—

‘‘(A) IN GENERAL.—The Under Secretary shall not take

an aviation security action under this title if the Administrator

of the Federal Aviation Administration notifies the

Under Secretary that the action could adversely affect the

airworthiness of an aircraft.

‘‘(B) REVIEW BY SECRETARY.—Notwithstanding

subparagraph (A), the Under Secretary may take such

an action, after receiving a notification concerning the

action from the Administrator under subparagraph (A),

if the Secretary of Transportation subsequently approves

the action.

‘‘(m) PERSONNEL AND SERVICES; COOPERATION BY UNDER SECRETARY.

—

‘‘(1) AUTHORITY OF UNDER SECRETARY.—In carrying out the

functions of the Administration, the Under Secretary shall have

the same authority as is provided to the Administrator of

the Federal Aviation Administration under subsections (l) and

(m) of section 106.

‘‘(2) AUTHORITY OF AGENCY HEADS.—The head of a Federal

agency shall have the same authority to provide services, supplies,

equipment, personnel, and facilities to the Under Secretary

as the head has to provide services, supplies, equipment,

personnel, and facilities to the Administrator of the Federal

Aviation Administration under section 106(m).

‘‘(n) PERSONNEL MANAGEMENT SYSTEM.—The personnel

management system established by the Administrator of the Federal

Aviation Administration under section 40122 shall apply to

employees of the Transportation Security Administration, or, subject

to the requirements of such section, the Under Secretary may

make such modifications to the personnel management system with

respect to such employees as the Under Secretary considers appropriate,

such as adopting aspects of other personnel systems of

the Department of Transportation.

‘‘(o) 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.

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115 STAT. 602 PUBLIC LAW 107–71—NOV. 19, 2001

‘‘(2) POWERS.—While engaged in official duties of the

Administration as required to fulfill the responsibilities under

this section, a law enforcement officer designated under paragraph

(1) may—

‘‘(A) carry a firearm;

‘‘(B) make an arrest without a warrant for any offense

against the United States committed in the presence of

the officer, or for any felony cognizable under the laws

of the United States if the officer has probable cause to

believe that the person to be arrested has committed or

is committing the felony; and

‘‘(C) seek and execute warrants for arrest or seizure

of evidence issued under the authority of the United States

upon probable cause that a violation has been committed.

‘‘(3) GUIDELINES ON EXERCISE OF AUTHORITY.—The

authority provided by this subsection shall be exercised in

accordance with guidelines prescribed by the Under Secretary,

in consultation with the Attorney General of the United States,

and shall include adherence to the Attorney General’s policy

on use of deadly force.

‘‘(4) REVOCATION OR SUSPENSION OF AUTHORITY.—The

powers authorized by this subsection may be rescinded or suspended

should the Attorney General determine that the Under

Secretary has not complied with the guidelines prescribed in

paragraph (3) and conveys the determination in writing to

the Secretary of Transportation and the Under Secretary.

‘‘(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.’’.

(b) CONFORMING AMENDMENT.—The analysis for chapter 1 of

such title is amended by adding at the end the following:

‘‘114. Transportation Security Administration.’’.

(c) POSITION OF UNDER SECRETARY IN EXECUTIVE SCHEDULE.—

(1) IN GENERAL.—Section 5313 of title 5, United States

Code, is amended by adding at the end the following:

‘‘The Under Secretary of Transportation for Security.’’.

(2) BONUS ELIGIBILITY.—In addition to the annual rate

of pay authorized by section 5313 of title 5, United States

Code, the Under Secretary may receive a bonus for any calendar

year not to exceed 30 percent of the annual rate of pay, based

on the Secretary’s evaluation of the Under Secretary’s performance.

(3) CONFORMING CHANGE.—Section 106(r)(2)(A) of title 49,

United States Code, is amended to read as follows:

‘‘(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 postemployment

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.’’.

5 USC 5313 note.

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115 STAT. 603 PUBLIC LAW 107–71—NOV. 19, 2001

(d) COOPERATION WITH OTHER AGENCIES.—The last sentence

of section 106(m) of such title is amended by striking ‘‘supplies

and’’ and inserting ‘‘supplies, personnel, services, and’’.

(e) SECURITY AND RESEARCH AND DEVELOPMENT ACTIVITIES.—

Section 40119 of such title is amended—

(1) in subsection (a) by striking ‘‘Administrator of the Federal

Aviation Administration’’ and inserting ‘‘Under Secretary

of Transportation for Security’’;

(2) in subsections (b) and (c) by striking ‘‘Administrator’’

each place it appears and inserting ‘‘Under Secretary’’; and

(3) in subsection (b)(1)(C) by striking ‘‘air’’.

(f) REFERENCES TO FAA IN CHAPTER 449.—Chapter 449 of

such title is amended—

(1) in section 44904(b)(5) by striking ‘‘the Administration’’

and inserting ‘‘the Transportation Security Administration’’;

(2) in the second sentence of section 44913(a)(1) by striking

‘‘of the Administration’’ and inserting ‘‘of the Transportation

Security Administration’’;

(3) in section 44916(a)—

(A) in the first sentence by striking ‘‘Administrator’’

and inserting ‘‘Under Secretary of Transportation for Security’’;

and

(B) in the second sentence by striking ‘‘Administration’’

and inserting ‘‘Transportation Security Administration’’;

(4) in each of sections 44933(a) and 44934(b) by striking

‘‘Assistant Administrator for Civil Aviation Security’’ and

inserting ‘‘Under Secretary’’;

(5) in section 44934(b)(1) by striking ‘‘Assistant Administrator’’

and inserting ‘‘Under Secretary’’;

(6) by striking sections 44931 and 44932 and the items

relating to such sections in the analysis for such chapter;

(7) by striking ‘‘Administrator’’ each place it appears in

such chapter (except in subsections (f) and (h) of section 44936)

and inserting ‘‘Under Secretary’’;

(8) by striking ‘‘Administrator’s’’ each place it appears in

such chapter and inserting ‘‘Under Secretary’s’’; and

(9) by striking ‘‘of the Federal Aviation Administration’’

each place it appears in such chapter (except in section 44936(f))

and inserting ‘‘of Transportation for Security’’.

(g) TRANSITION PROVISIONS.—

(1) SCHEDULE FOR ASSUMPTION OF CIVIL AVIATION SECURITY

FUNCTIONS.—Not later than 3 months after the date of enactment

of this Act, the Under Secretary of Transportation for

Security shall assume civil aviation security functions and

responsibilities under chapter 449 of title 49, United States

Code, as amended by this Act, in accordance with a schedule

to be developed by the Secretary of Transportation, in consultation

with air carriers, foreign air carriers, and the Administrator

of the Federal Aviation Administration. The Under Secretary

shall publish an appropriate notice of the transfer of

such security functions and responsibilities before assuming

the functions and responsibilities.

(2) ASSUMPTION OF CONTRACTS.—As of the date specified

in paragraph (1), the Under Secretary may assume the rights

and responsibilities of an air carrier or foreign air carrier

contract for provision of passenger screening services at airports

in the United States described in section 44903(c), subject to

Notice.

Deadline.

49 USC 44901

note.

49 USC 44902–

44906, 44911–

44915, 44934–

44938.

49 USC 44903.

49 USC 44901–

44906, 44911–

44916, 44934–

44938.

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115 STAT. 604 PUBLIC LAW 107–71—NOV. 19, 2001

payment of adequate compensation to parties to the contract,

if any.

(3) ASSIGNMENT OF CONTRACTS.—

(A) IN GENERAL.—Upon request of the Under Secretary,

an air carrier or foreign air carrier carrying out a screening

or security function under chapter 449 of title 49, United

States Code, may enter into an agreement with the Under

Secretary to transfer any contract the carrier has entered

into with respect to carrying out the function, before the

Under Secretary assumes responsibility for the function.

(B) SCHEDULE.—The Under Secretary may enter into

an agreement under subparagraph (A) as soon as possible,

but not later than 90 days after the date of enactment

of this Act. The Under Secretary may enter into such

an agreement for one 180-day period and may extend such

agreement for one 90-day period if the Under Secretary

determines it necessary.

(4) TRANSFER OF OWNERSHIP.—In recognition of the

assumption of the financial costs of security screening of passengers

and property at airports, and as soon as practical

after the date of enactment of this Act, air carriers may enter

into agreements with the Under Secretary to transfer the

ownership, at no cost to the United States Government, of

any personal property, equipment, supplies, or other material

associated with such screening, regardless of the source of

funds used to acquire the property, that the Secretary determines

to be useful for the performance of security screening

of passengers and property at airports.

(5) PERFORMANCE OF UNDER SECRETARY’S FUNCTIONS

DURING INTERIM PERIOD.—Until the Under Secretary takes

office, the functions of the Under Secretary that relate to aviation

security may be carried out by the Secretary or the Secretary’s

designee.