[DOCID: f:sr029.110]
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Calendar No. 26
110th Congress Report
SENATE
1st Session 110-29
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SURFACE TRANSPORTATION AND RAIL SECURITY ACT OF 2007
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 184
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
March 1, 2007.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred tenth congress
first session
DANIEL K. INOUYE, Hawaii, Chairman
TED STEVENS, Alaska, Vice-Chairman
JOHN D. ROCKEFELLER IV, West JOHN McCAIN, Arizona
Virginia TRENT LOTT, Mississippi
JOHN F. KERRY, Massachusetts KAY BAILEY HUTCHISON, Texas
BYRON L. DORGAN, North Dakota OLYMPIA J. SNOWE, Maine
BARBARA BOXER, California GORDON H. SMITH, Oregon
BILL NELSON, Florida JOHN ENSIGN, Nevada
MARIA CANTWELL, Washington JOHN E. SUNUNU, New Hampshire
FRANK R. LAUTENBERG, New Jersey JIM DeMINT, South Carolina
MARK PRYOR, Arkansas DAVID VITTER, Louisiana
THOMAS CARPER, Delaware JOHN THUNE, South Dakota
CLAIRE McCASKILL, Missouri
AMY KLOBUCHAR, Minnesota
Margaret Cummisky, Staff Director and Chief Counsel
Lila Helms, Deputy Staff Director and Policy Director
Margaret Spring, General Counsel
Lisa Sutherland, Republican Staff Director
Christine Kurth, Republican Deputy Staff Director
Kenneth Nahigian, Republican Chief Counsel
Calendar No. 26
110th Congress Report
SENATE
1st Session 110-29
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SURFACE TRANSPORTATION AND RAIL SECURITY ACT OF 2007
_______
March 1, 2007.--Ordered to be printed
_______
Mr. Inouye, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 184]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 184) to provide improved rail
and surface transportation security, having considered the
same, reports favorably thereon with an amendment (in the
nature of a substitute) and recommends that the bill (as
amended) do pass.
Purpose of the Bill
S. 184 would authorize new security assessments, grant
programs, and security measures for the Nation's major surface
transportation modes, including passenger and freight
railroads, trucks, intercity buses, and pipelines. The bill
proposes new programs to address known risks and would
authorize ongoing efforts already underway at the
Transportation Security Administration (TSA). The bill would
provide a statutory framework for TSA's surface transportation
and rail security efforts, with Congress, for the first time,
setting specific goals, tasks, and timelines for security
improvements in these critical areas. The legislation also
would require greater cooperation and coordination between the
Departments of Homeland Security (DHS) and Transportation (DOT)
to further clarify the Federal roles and responsibilities for
surface transportation safety and security. The bill would
authorize $1.1 billion for DHS, TSA, and DOT over fiscal years
(FY) 2008 through FY 2011.
Background and Needs
The events of September 11, 2001, brought new attention to
terrorism risks facing America's transportation systems. As
both potential delivery methods for terrorist weapons and as
targets of terrorist attacks themselves, the Nation's intercity
passenger and freight transportation systems have been the
focus of significant Federal homeland security interest.
Congress's principal action to address the security risks posed
to U.S. transportation assets by international and domestic
terrorism was the passage of the Aviation and Transportation
Security Act (ATSA) (P.L. 107-71), which was signed into law on
November 19, 2001. ATSA mandated a new regime for aviation
security and created TSA, within DOT, to oversee security for
all modes of transportation. The subsequent passage of the
Maritime Transportation Security Act of 2002 (P.L. 107-295),
the Homeland Security Act of 2002 (P.L. 107-296), which, among
other things, transferred TSA from DOT to DHS, the Intelligence
Reform and Terrorism Prevention Act of 2004 (P.L. 108-458), and
the SAFE Port Act (P.L. 109-347) further committed Federal
resources and regulatory effort to strengthening the security
of our transportation system.
While these laws have done much to address the security needs
of the aviation and the maritime sectors, comparably little
Federal attention or resources have been devoted toward
addressing the security vulnerabilities of the Nation's rail,
motor carrier, intercity bus, and pipeline industries. A
cursory examination of Federal homeland security spending
reflects this reality, revealing minimal investments for
security in modes of transportation other than aviation. While
the FY 2007 DOT Appropriations Act provided TSA with $4.7
billion for aviation security, only $37 million was
specifically devoted to surface transportation security.
Additionally, DHS grant funding for surface transportation
security in FY 2007 only totals approximately $200 million. Of
this amount, $175 million is available for rail and public
transit security, of which only $8.3 million is available for
intercity passenger rail (Amtrak) and no funding is available
for freight railroads. Out of this FY 2007 funding, DHS grant
funding for truck and bus security efforts would total only $24
million.
The President's FY 2008 budget request looks to continue this
funding trend, proposing just $41 million for TSA surface
transportation security initiatives and no increases for
surface transportation security grants. This limited funding
request comes despite the President's December 5, 2006,
issuance of Executive Order 13416, entitled ``Strengthening
Surface Transportation Security,'' which covers the security of
domestic mass transit, intercity passenger and freight rail,
commercial vehicles, intercity buses, pipelines, and related
infrastructure.
The order set forth the following policy:
``The security of our Nation's surface
transportation systems is a national priority, vital to
our economy, and essential to the security of our
Nation. Federal, State, local, and tribal governments,
the private sector, and the public share responsibility
for the security of surface transportation. It is the
policy of the United States to protect the people,
property, and territory of the United States by
facilitating the implementation of a comprehensive,
coordinated, and efficient security program to protect
surface transportation systems within and adjacent to
the United States against terrorist attacks.''
Accompanying this policy statement are directives to the DHS
Secretary, in coordination with the DOT Secretary, to implement
the general policy of the Executive Order and to undertake and
complete a number of specific reporting, planning, and analysis
initiatives.
It is against this backdrop of need and priority that the
Committee drafted S. 184. While the Committee supports the
important policy set forth by the Executive Order, there is
concern that the broad mission outlined by the Order cannot be
achieved with the limited funding and the proposed static
staffing levels of 288 full-time equivalent employees dedicated
to surface transportation security within TSA in the
President's FY 2008 budget request. In addition to more
resources, the Committee believes that comprehensive risk
assessments must be completed for surface transportation and
that new surface transportation security initiatives must be
developed to address the risks identified by the assessments.
I. RAILROAD SECURITY
The terrorist attacks of September 11, 2001, the March 2004
bombings of commuter trains in Madrid, Spain, the July 2004
transit bombings in London, England, and the July 2006 rail
bombings in Mumbai, India, heightened concerns regarding the
susceptibility of the passenger and freight rail system in the
United States to terrorist attack. While no similar attack has
occurred to date against the rail system in the United States,
the openness and vast size of the Nation's rail transportation
network and the public reports that terrorists might be
targeting U.S. rail assets has raised significant concerns
regarding the various security efforts in place to prepare and
defend the Nation's railroads against a terrorist attack.\1\
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\1\In 2002, and on several occasions since, the FBI has warned that
al-Qaeda may directly target U.S. trains, key rail bridges, and
sections of track to cause train accidents and derailments.
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Often as a result of incidents overseas, domestic industries
increase security on their own. Or, when cued by intelligence,
DHS may raise the threat level, triggering more stringent
security requirements under homeland security directives aimed
at a particular sector, such as the transportation network,
sometimes also putting into action individual security plans
voluntarily adopted by many in industry.
The Nation's freight railroads operate more than 164,000
miles of track over which 31 million carloads are transported
annually and provide the primary transportation of essential
commodities vital to the U.S. economy, including the majority
of coal used in electricity generation, over nine million
trailers and containers, and two million carloads of
chemicals.\2\ There are seven Class I railroads and more than
560 total freight railroads operating in the United States.\3\
This network transports an estimated 42 percent of all domestic
intercity freight. Intermodal freight rail traffic has more
than tripled since 1980 from 3.1 million trailers and
containers to over 11 million in 2005 and DOT projects that
freight traffic via rail will increase nearly 70 percent by
2020.
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\2\Association of American Railroads, Railroad Facts, 2006 Edition.
\3\U.S. Class I Railroads are line haul freight railroads with
operating revenue in excess of $277.7 million. In 2005, the U.S. Class
I railroads were: BNSF Railway, CSX Transportation, Canadian National's
Grand Trunk Corporation, Kansas City Southern Railway, Norfolk Southern
Combined Railroad Subsidiaries, Canadian Pacific's Soo Line Railroad,
and Union Pacific Railroad.
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The magnitude of freight rail operations precludes constant
monitoring or hardening of all track and facilities, and the
problems of securing such a vast system are compounded by the
variety of freight hauled--with commodity types as diverse as
grain and chlorine regularly transported together on the same
trains--and the variety of locations served, from the largest
metropolitan areas of the Nation to the smallest towns. The
vulnerability stemming from the freight rail system's openness,
combined with the critical nature of the transportation service
provided and the commodities transported, elevates the risks
facing the freight rail system, particularly in urban areas in
which there is significant demand for commodities like the
chlorine used to ensure the potability of water.
Similarly, the size and scope of the U.S. passenger rail
network presents security challenges. In 2006, nearly 25
million passengers rode intercity passenger trains and
approximately 3.5 billion passengers rode public transit and
commuter rail services, such as Washington D.C.'s Metrorail
system, Chicago's Metra commuter system and Maryland's MARC
service. Along with critical rail infrastructure and equipment,
passenger rail facilities and stations, which often serve as
central hubs for multiple public transportation services, may
represent tempting targets for terrorist attacks. The RAND
Corporation estimated that there were a total of 181 terrorist
attacks on trains and rail-related targets worldwide between
1998 and 2003, an average of 30 per year. RAND noted that,
``for terrorists determined to kill in quantity and willing to
kill indiscriminately, public transportation is an ideal
target. It offers terrorists ease of access and escape. Crowds
of strangers guarantee anonymity. Contained environments
enhance the effect of explosives. Attacks on public transport
also cause disruption and alarm--traditional terrorist goals.''
The TSA has primary responsibility for the security of the
Nation's railroads. Additionally, the Federal Railroad
Administration (FRA) and the Pipeline and Hazardous Materials
Safety Administration (PHMSA), within DOT, support TSA's
efforts with personnel and supplemental regulation as part of
their safety authority over railroads and hazardous materials
transportation. The relationship among these three agencies is
governed by annexes signed in 2006 to the DHS-DOT Memorandum of
Understanding covering respective duties and responsibilities
for the two Departments. In December 2006, TSA and PHMSA
proposed their first significant rulemaking for rail security.
The notice of proposed rulemaking (NPRM) issued by TSA proposes
new security requirements for freight railroad carriers,
intercity passenger rail and transit service providers, and
rail shipment facilities that ship or receive toxic inhalation
hazard (TIH) hazardous materials, such as chlorine. These
proposed rules stem, in part, from the March 2006 TSA and FRA
issuance of rail security guidelines and action items for the
rail transportation of TIH materials.
Given the limited funding available to TSA and other agencies
within DHS and DOT for rail security, only a modest number of
other rail security efforts have been completed or are
underway. Most of these efforts to date have consisted of pilot
programs, limited threat assessments, and other ad-hoc efforts.
Examples of these include the High Threat Urban ARea (HTUA)
Rail Corridor Assessments; the Washington, D.C. Rail Security
Corridor Project; the Surface Transportation Security
Inspection Program; Visible Intermodal Protection and Response
(VIPR) Teams; and the TIH Rail Tank Car Vulnerability and
Consequence Analysis Project. During Committee hearings on the
subject of rail security, the Government Accountability Office
(GAO) noted that these security initiatives are being
undertaken in the absence of a comprehensive risk assessment or
completion of required sector-specific transportation security
plans and modal annexes. Until TSA completes this work, the
agency is limited in its ability to prioritize the risks within
the rail mode to help guide security investments and resource
allocation. The GAO also noted that similar DHS and TSA efforts
to develop a consistent approach for analyzing and comparing
risks among and across different transportation sectors remain
unfinished, hampering the ability to compare and prioritize
risks across different sectors--such as the aviation and rail
sectors--and allocate resources accordingly.
While these efforts represent a modest step forward, much
remains to be done to address the security of the rail sector.
Recognizing the security challenges facing the rail sector, the
Committee has held numerous hearings and favorably reported
several rail security enhancement proposals since 2001. The
rail security provisions of S.184, contained in title I,
represent the latest iteration of this effort and incorporate
updated versions of provisions contained within the Rail
Security Act of 2004, the Rail Security Improvement Act of
2005, and the Transportation Security Improvement Act of 2005.
The rail security legislation passed the Senate by unanimous
consent in the 108th and 109th Congress, after being favorably
reported by the Committee.\4\
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\4\Versions of the rail and surface transportation security titles
of S. 1052, The Transportation Security Improvement Act of 2005, were
added to the Senate's version of H.R. 4954, the SAFE Port Act, through
amendments offered by Senators McCain and Lautenberg, which passed the
Senate on September 14, 2006. During negotiations with the Senate, the
House of Representatives objected to the inclusion of these provisions
in the Conference Report for H.R. 4954. S. 2273, The Rail Security Act
of 2004, was passed by the Senate on October 1, 2004. The House of
Representatives failed to consider the bill.
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II. MOTOR CARRIER, PIPELINE, HAZARDOUS MATERIALS, AND BUS SECURITY
While less conspicuous to the general public than other modes
of transportation, the freight and passenger transportation
provided by the trucking, pipeline and intercity bus industries
is critical to the Nation's economy, defense and mobility.
Collectively, these industries provide most of the goods and
energy commodities upon which industrial economies rely for
their daily needs. As such, these transportation systems have
been the target of terrorist attacks world-wide and significant
risks to these systems exist in the United States.
MOTOR CARRIER SECURITY
Truck security, in particular, has become an important issue
due to the size and critical role of the industry, which
carries 85 percent of domestic cargo by value and 70 percent by
weight. In 2002, U.S. trucking hauled 11 billion tons of
freight and directly employed 1.3 million people in 2005.\5\
Trucking is also an essential part of North American
international trade, hauling two-thirds of all U.S.- Canadian
trade and more than four-fifths of all U.S.-Mexican trade.
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\5\U.S. Department of Transportation, Bureau of Transportation
Statistics, Pocket Guide to Transportation 2006. 2006.
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While the September 11, 2001, terrorist attacks defined our
recent transportation security efforts, prior to this incident,
most serious contemporary domestic terrorist attacks in times
involved trucks. The 1993 and 1995 truck bomb attacks at the
World Trade Center and Oklahoma City Federal Building killed a
total of 174 people and injured another 1,292 people.
Similarly, trucks have been the delivery method of choice for
several terrorist attacks against U.S. assets overseas. Despite
this evidence that terrorists will and do use trucks and
commercial vehicles against U.S. targets, Federal involvement
in truck security has been limited, with the bulk of the
responsibility for truck security efforts left to individual
companies or groups representing sectors of the motor carrier
industry.
At present, there are few Federal truck security programs
specifically mandated by statute. The most significant statute,
enacted in 2002 out of concern for the security of the
transportation of hazardous materials (HAZMAT) by truck,
required DHS to implement a program to ensure that commercial
drivers who transport HAZMAT do not pose a security threat to
the Nation. Under regulations stemming from a provision in the
USA PATRIOT Act (P.L. 107-56), a driver must undergo a fee-
based security background check as a prerequisite for a HAZMAT
endorsement (HME) on a commercial driver's license. The initial
implementation of this requirement required that all HME
holders receive name-based background checks. Presently, all
new HME applicants and HME renewals must undergo fingerprint-
based background checks.
Additionally, two other general transportation security
regulations apply to certain motor carriers and their drivers.
Under DOT regulations, hazardous material motor carriers must
comply with DOT security regulations requiring carriers of
HAZMAT to develop and implement security plans. Under new rules
issued by TSA in January 2007, all truck drivers, and other
surface transportation employees, such as rail workers who need
unescorted access to restricted areas of a port facility, must
undergo a fee-based background check and receive a
Transportation Worker Identification Credential (TWIC) by
January 1, 2009. The TWIC concept is to provide positive
identification to all eligible transportation-related workers,
ensuring that only authorized personnel gain unescorted access
to secure areas of the country's transportation network. TWIC
was originally authorized under ATSA, then supplemented by
language in MTSA. This program, once fully implemented in the
maritime sector, is expected to be expanded to other modes of
transportation, possibly including all motor carriers. As an
interim step to the TWIC requirements for port truck drivers,
the SAFE Port Act, which was enacted in December 2006, required
that drivers who access secure areas of a seaport but have not
undergone a HME background check must receive threat assessment
screenings, including name-based checks against terrorist watch
lists and immigration status check.
The TSA, the Federal Motor Carrier Safety Administration
(FMCSA), and DHS have a limited number of truck security
initiatives currently underway. The most significant of these
include the Highway Watch program and the Customs-Trade
Partnership Against Terrorism (C-TPAT) program. Highway Watch
is a joint truck security program developed by TSA and the
trucking industry, which trains drivers to recognize and report
potential safety and security threats and is administered by
the American Trucking Association (ATA). Federal funding in FY
2007 for this program is $12 million. Motor carriers that
voluntarily participate in the C-TPAT program agree to follow a
set of security guidelines which, in turn, reduce delays at
border crossings relating to Customs and other security
inspections. To gain additional expedited treatment at U.S.
borders, motor carriers may choose to participate in the Free
and Secure Trade (FAST) program, which utilizes electronic
transmission of shipping data and use of transponder and
barcode technologies for verification. Other ongoing efforts
that impact truck security include the Highway and Motor
Carrier (HMC) Program; TSA's HAZMAT Truck Security Pilot;
FMCSA's Corporate Security Reviews (CSR); and the Hazmat Motor
Carrier Security Self-Assessment Training Project.
These security programs begin to address the security
concerns of the 85 percent of domestic cargo that moves by
trucks. However, these modest steps highlight the need for more
robust action. The truck security provisions contained in title
II of S.184 include the latest Committee-developed measures
adopted by the Senate in the SAFE Port Act in the 109th
Congress. S. 184 would authorize many of the ongoing TSA and
DOT truck security efforts and provide additional goals
focusing on the key issues related to the secure transportation
of HAZMAT, such as routing, tracking, training, and
enforcement.
INTERCITY BUS SECURITY
Along with automobile, air, and rail services, intercity bus
service has long been one of the primary modes of
transportation within the United States. The ``over-the-road''
(OTR) bus industry, made up of fixed-route, intercity,
community services, charter/tour, and airport shuttle bus
operators, serves more than 5,000 destinations nationwide. The
industry comprises mostly small businesses, with 65 percent of
known carriers operating fewer than 10 buses. According to the
American Bus Association (ABA), OTR buses transport
approximately 660 million passengers annually, serving
thousands of communities that have no other form of intercity
public transportation and providing an affordable and
convenient means of transportation for millions in urban areas.
After September 11, 2001, Congress noted the prevalence of
terrorist attacks against buses in other nations\6\ and began
providing grant funding to the OTR bus industry, totaling
nearly $50 million since FY 2002. The TSA's Intercity Bus
Security Grant Program (IBSGP) has been used for security
technology upgrades, facility security enhancements, drive
security, and security training, but this grant program has
never been authorized by the Congress, despite such an
authorization twice passing the Senate.\7\ Congress
appropriated $12 million in funding for the IBSGP in FY 2007.
In addition to this grant program, other Federal bus security
efforts include TSA's CSR program, through which TSA reviews
the security of motor carrier and OTR bus physical assets and
operations, and TSA's Passenger Security Division's limited bus
and school bus reviews.
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\6\Since 1980, there have been several hundred terrorist attacks
against transit and OTR buses. A chronology of terrorist attacks
against public transit is contained with the Federal Transit
Administration's (FTA) report entitled ``Transit Security Design
Considerations''. http://transitsafety.volpe.dot.gov/security/
SecurityInitiatives/DesignConsiderations/CD/appa.htm.
\7\A version of the bus security provisions of S. 1052, The
Transportation Security Improvement Act of 2005, were added to the
Senate's version of H.R. 4954, the SAFE Port Act, through an amendment
offered by Senator Lautenberg, which passed the Senate on September 14,
2006. During negotiations with the Senate, the House of Representatives
objected to the inclusion of these provisions in the Conference Report
for H.R. 4954. S. 929, The Max Cleland Over-the-Road Bus Security and
Safety Act of 2003 was passed by the Senate on July 30, 2003. The House
of Representatives failed to consider the bill.
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PIPELINE AND HAZMAT SECURITY
The U.S. pipeline industry is a large, diverse and vital part
of the Nation's economy. Comprised of approximately 1.5 million
miles of lines in all 50 States, liquid and natural gas
transmission and distribution pipelines carry the energy
commodities that fuel our Nation. Similarly, the transportation
of hazardous material is essential to U.S. manufacturing
industries and public health and agriculture sectors, which
rely on hazardous chemicals to purify water and fertilize
crops. The majority of the over 2 billion tons of HAZMAT that
move annually are transported by trucks, pipelines, and
railroads, and such shipments present one of the most serious
security concerns for the Nation. As evidenced by the 2005 rail
accident (not terrorism-related) in Granitville, South
Carolina, where a tank car containing chlorine derailed,
breached, and killed 9 people, a security incident with HAZMAT
could pose significant danger to major population centers.
While the pipeline industry transports HAZMAT, few of these
commodities could themselves be used as a terrorist weapon.
Instead, the main security vulnerability comes from acts which
could cause the loss of transportation capacity for essential
energy commodities.
The TSA has lead jurisdiction for the security of pipelines
and HAZMAT transportation, but much of the regulatory
foundation and daily work of overseeing the security of these
sectors is done in partnership with PHMSA, which regulates the
safety of the pipeline and HAZMAT industries, and other DOT
modal agencies, such as FRA and FMCSA, that regulate the safety
of individual transportation modes. A PHMSA predecessor agency
within DOT issued the primary security regulation regarding the
secure shipment of HAZMAT, HM 232, which requires shippers and
carriers of certain highly HAZMAT to develop and implement
security plans and to train workers accordingly. Other TSA and
PHMSA pipeline and HAZMAT security initiatives include Pipeline
Corporate Security Reviews (CSR); Cross-Border Pipeline
Security Assessments; and Pipeline Security Forums; and
pipeline security training.
Summary of Provisions
The major provisions of the rail security title of S. 184
would: create a new grant program within DHS and TSA to assist
Amtrak, freight railroads, and other stakeholders in upgrading
security across the railroad system; provide funding through
DOT for security and safety enhancements to Amtrak railroad
tunnels in New York, New Jersey, Washington, D.C., and
Maryland; create a rail security research and development
program; encourage the deployment of rail car tracking
equipment for high-hazard materials rail shipments; require
railroads shipping high hazard materials to create threat
mitigation plans; issue guidance for a rail worker security
training program; and provide for a whistleblower protection
program for rail workers who report security concerns.
The major provisions of the motor carriers, bus, pipeline,
and HAZMAT security title would: require FMCSA to provide
guidance to motor carriers and States regarding HAZMAT routing
and to assess the addition of certain high-HAZMAT to the list
of existing HAZMAT required to be transported by motor carriers
with highway routing plans; require DHS to develop a program to
encourage the equipping of trucks carrying certain HAZMAT with
communications and tracking technology; establish a program for
reviewing and enforcing HAZMAT security plans; require DHS to
design a pipeline security and incident recovery plan and
create a program for pipeline security inspections and
enforcement; and authorize the existing grant program for
intercity bus and bus terminal security.
Legislative History
Chairman Inouye and Vice-Chairman Stevens introduced S. 184,
``The Surface Transportation and Rail Security Act of 2007,''
known as the ``STARS Act'', on January 4, 2007. Senators
Lautenberg, Snowe, Boxer, Rockefeller, Kerry, Carper, Pryor,
Baucus, Lieberman, Biden, Clinton, Schumer, Dorgan, Durbin,
Mikulski, Menendez, Hutchison, Specter, Klobuchar, Collins, and
Cantwell cosponsored the bill. The Committee held a hearing on
S. 184 and the current Federal efforts to secure the Nation's
railroad and surface transportation system on January 18, 2007.
The Committee received testimony from TSA, FRA, FMCSA, PHMSA,
GAO, and the State of New Jersey.
The Committee also held several hearings related to surface
transportation and rail security in the 109th Congress. On
February 15, 2005, and April 22, 2005, the Committee held
hearings to examine the President's FY 2006 budget request for
TSA. Those testifying before the Committee were representatives
of TSA, GAO, and various trade and industry associations. On
October 17, 2005, the Committee held a hearing on the state of
passenger and freight rail security and relevant provisions of
S.1052, the Transportation Security Improvement Act of 2005.
Those testifying before the Committee were representatives of
TSA, FRA, GAO, Amtrak, and various industry and labor
representatives.
On February 13, 2007, the Committee met in Executive Session
during which S. 184 was considered. A substitute amendment that
made technical and perfecting changes to the provisions of S.
184 was offered by Chairman Inouye and Vice-Chairman Stevens.
The substitute amendment also added several new provisions to
S. 184 at the request of TSA, DOT, and others. These
provisions: clarify the DHS Secretary's legal authority to
initiate administrative enforcement proceeding, for violations
to non-aviation transportation security regulations and
requirements; expand the authority of private railroad police
to allow police officers who works for one railroad to help
other railroads in carrying out enforcement duties; require DOT
to transmit model legislation to the States to prevent the
bestowing of railroad police authority to ``scam railroads'';
require DHS and DOT to develop a truck security memorandum of
agreement (MOA) annex between the two Departments to clarify
their respective roles for truck security; and require the DHS
Secretary to study the need and feasibility of establishing a
system of maritime and surface transportation-related user fees
to provide funding for improvements to maritime and surface
transportation security.
No additional amendments were filed. The substitute and
underlying bill were adopted unanimously by the Committee and
amended to the bill; the Committee ordered the bill reported.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
February 28, 2007.
Hon. Daniel K. Inouye,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 184, the Surface
Transportation and Rail Security Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Matthew
Pickford and Sarah Puro (for federal costs and the state and
local impact), and Fatimot Ladipo (for the private-sector
impact).
Sincerely,
Peter R. Orszag.
Enclosure.
S. 184--Surface Transportation and Rail Security Act of 2007
Summary: S. 184 would authorize the appropriation of $1.1
billion over the 2008-2012 period for security-related programs
carried out by the Department of Homeland Security (DHS) and
the Department of Transportation (DOT) involving railroads,
buses, trucks, and pipelines. Assuming appropriation of the
amounts specified in the legislation, CBO estimates that
providing the grants would cost about $280 million in 2008 and
nearly $1.1 billion over the 2008-2012 period. Enacting the
bill would not affect direct spending. CBO estimates that the
civil monetary penalties authorized by the bill would have a
negligible effect on revenues.
In addition to authorizing appropriations for security-
related grants, the bill would require DHS to assess the
security of the transportation of certain hazardous materials
by rail and motor carriers, to create a public awareness
campaign for rail security issues, and to issue security
training guidance for certain rail personnel. Finally, the bill
would require DHS to report to the Congress on the security of
rail, pipeline, and bus transportation. Assuming appropriation
of the necessary amounts, CBO estimates that implementing those
provisions would cost about $22 million over the 2008-2012
period.
S. 184 contains several intergovernmental and private-
sector mandates as defined in the Unfunded Mandates Reform Act
(UMRA) because it would require rail and motor carriers to
comply with reporting requirements and certain security
procedures. The bill also would preempt certain state laws. The
aggregate cost to public entities and the private-sector for
complying with those mandates is uncertain and would depend on
future regulations. Because of the small number of entities
involved, however, CBO estimates that the aggregate costs for
public entities to comply with those mandates would not exceed
the annual threshold established by UMRA for intergovernmental
mandates ($66 million in 2007, adjusted annually for
inflation). In contrast, CBO cannot determine whether the
aggregate costs to the private sector would exceed the annual
threshold for private-sector mandates ($131 million in 2007,
adjusted annually for inflation). Other provisions of the bill
would authorize about $1 billion in grants for which state,
local, tribal and private-sector entities would be eligible.
Any costs those entities would incur to comply with conditions
of federal assistance would be incurred voluntarily.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 184 is shown in the following table. The
costs of this legislation fall within budget functions 400
(transportation).
------------------------------------------------------------------------
By fiscal year, in millions of
dollars--
---------------------------------------
2008 2009 2010 2011 2012
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Grants to Amtrak:
Authorization Level......... 185 148 148 118 0
Estimated Outlays........... 185 148 148 118 0
Grants for Rail Security:
Authorization Level......... 133 133 133 0 0
Estimated Outlays........... 83 118 133 50 15
Grants for Over-the-Road Bus
Security:
Authorization Level......... 12 25 25 0 0
Estimated Outlays........... 2 9 17 17 11
Other Authorized Programs:
Authorization Level......... 11 11 9 0 0
Estimated Outlays........... 10 11 9 1 0
Reports, Assessments, and
Guidance:
Estimated Authorization 10 4 4 4 4
Level......................
Estimated Outlays........... 3 7 4 4 4
Total Proposed Changes:
Estimated Authorization 351 321 319 122 4
Level..................
Estimated Outlays....... 283 293 311 190 30
------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that S.
184 will be enacted in fiscal year 2007 and that the authorized
amounts will be appropriated each year. Estimates of spending
are based on historical spending patterns of similar programs.
S. 184 would authorize the appropriation of $1.1 billion
over the 2008-2012 period for federal programs related to
transportation security. That amount includes funds to support
programs aimed at improving the security of rail and surface
transportation through programs administered by DOT and DHS. In
addition, CBO estimates that complying with the bill's
reporting and other administrative requirements would add $22
million in discretionary costs over the next five years.
Spending subject to appropriation
Grants to Amtrak. S. 184 would authorize the appropriation
of $599 million over the 2008-2011 period for grants to Amtrak
to improve the security of the Amtrak rail system. That amount
includes $472 million to support projects to improve the safety
of tunnels in New York, Maryland, and the District of Columbia
and $3 million for the preliminary design of a new tunnel in
Baltimore, Maryland. It also includes $124 million to implement
physical changes to stations and trains so that they are more
secure from attack, obtain additional communications equipment,
and provide security training to Amtrak employees. CBO
estimates that implementing these provisions would cost $185
million in 2008 and $599 million over the 2008-2011 period.
Grants for Rail Security. The bill would authorize the
appropriation of $399 million over the 2008-2010 period for
grants to improve rail security. That amount includes $300
million to upgrade the security of the national freight and
passenger rail system by improving emergency communications,
securing capital assets, and training employees. The bill also
would authorize the appropriation of $99 million over the 2008-
2010 period for grants to research and develop methods to
improve the security of freight and intercity rail
transportation. CBO estimates implementing those provisions
would cost $83 million in 2008 and $399 million over the 2008-
2012 period.
Grants for Bus Security. S. 184 would authorize the
appropriation of $62 million over the 2008-2010 period for
grants to operators of over-the-road buses and bus terminals to
improve the security of this transportation system. (Over-the-
road buses are characterized by an elevated passenger deck
above a baggage compartment.) These amounts include funds for
security training, emergency drills, and upgrading certain
capital assets. Assuming appropriation of the specified
amounts, CBO estimates implementing those provisions would cost
$2 million in 2008 and $56 million over the 2008-2012 period.
Other Authorized Programs. Other provisions of the bill
would authorize the appropriation of $31 million over the 2008-
2012 period, including:
<bullet> $9 million for DHS to develop a program to
encourage the use of wireless tracking systems for rail
cars that are transporting certain hazardous material;
<bullet> $9 million for DHS to develop a program to
encourage the tracking of certain hazardous materials
transported by motor carrier;
<bullet> $6 million for DHS to review motor carriers'
security plans for the transportation of hazardous
materials;
<bullet> $3 million for DHS to consider developing a
system to monitor security and emergency alerts about
the transportation of certain hazardous materials and
to disseminate that information to the public; and
<bullet> $4 million for DHS to develop and implement
a plan to review the security plans for certain
pipeline systems.
Assuming appropriation of the specified amounts, CBO
estimates implementing those provisions would cost $10 million
in 2008 and $31 million over the 2008-2012 period.
Reports, Assessments, and Guidance. S. 184 would require
DHS to assess the security of rail and pipeline transportation
and to prepare several reports to the Congress on that issue.
The bill would authorize the appropriation of $5 million in
2008 to complete a risk assessment of freight and passenger
rail transportation. DHS would prepare subsequent annual
updates to that assessment.
The bill would require DHS to develop, issue, and update,
as necessary, detailed guidance for a program to train certain
rail workers in security procedures and to review the security
plans of rail carriers.
The bill also would require DHS to complete a report on the
status of rail security at the Canadian border, review the
hazardous materials security plans for operators of rail
transportation, and develop and implement a plan to make the
public aware of rail security issues. Further, the bill would
require DHS to assess and report on the existing and proposed
routes for the transportation--by motor carrier--of certain
hazardous material, and to study the security of the trucking
industry and establishing security fees for use of the maritime
and surface transportation system.
Based on information from DHS, CBO estimates that
implementing those provisions would cost $3 million in 2008 and
$22 million over the 2008-2012 period.
Revenues
S. 184 would establish new civil penalties for violating
certain regulations established by DHS and for failing to
comply with the requirement to supply DHS with certain security
plans. Thus, the federal government might collect additional
fines if the bill is enacted. Collections of civil fines are
recorded as revenues and deposited in the Treasury; however,
CBO expects that any increase in revenues related to those
penalties would not be significant.
Intergovernmental and private-sector impact: S. 184
contains several intergovernmental and private-sector mandates
as defined in the Unfunded Mandates Reform Act because it would
require rail and motor carriers to comply with reporting
requirements and certain security procedures. The bill also
would preempt certain state laws. The aggregate cost to public
entities and the private sector for complying with those
mandates is uncertain and would depend on future regulations.
Because of the small number of entities involved, however, CBO
estimates that the aggregate costs for public entities to
comply with those mandates would not exceed the annual
threshold established by UMRA for intergovernmental mandates
($66 million in 2007, adjusted annually for inflation). In
contrast, CBO cannot determine whether the aggregate costs to
the private sector would exceed the annual threshold for
private-sector mandates ($131 million in 2007, adjusted
annually for inflation). Other provisions of the bill would
authorize about $1 billion in grants for which state, local,
tribal, and private-sector entities would be eligible. Any
costs those entities would incur to comply with conditions of
federal assistance would be incurred voluntarily.
Mandates that affect both the public and private sectors
S. 184 would require rail carriers to train certain workers
in security procedures and would grant whistle-blower
protections to their employees.
Rail Worker Security Training. Through regulations to be
established by the Department of Homeland Security, section 109
would require rail carriers to create and submit plans for
security training and then complete the training for all front-
line workers. Front-line workers are defined in the bill as
security personnel, dispatchers, train operators, other onboard
employees, maintenance and maintenance support personnel,
bridge tenders as well as other appropriate employees of rail
carriers as defined by the Secretary. CBO estimates that
approximately 190,000 public and private-sector employees--
about 85 percent of which are private-sector employees--would
fit that definition.
According to experts from the rail industry, the amount of
training required varies depending on the industry sector
(passenger vs. freight). It is likely that in either sector,
the regulations issued by the Department of Homeland Security
would require additional training over and above current
practice. Further, it is likely that many employees would need
to be trained more than once over a five-year period.
Therefore, it is likely that under new regulations, costs to
train workers would exceed the current costs for security
training. Because this mandate depends upon the future actions
of DHS, for which information is not available, CBO cannot
provide an estimate for the total cost of this mandate. CBO
expects, however, that the incremental cost would be small for
public entities, while the additional cost for the private
sector could be substantial, depending on the guidelines set
forth by DHS.
Whistle Blower Protection. Section 110 would prohibit rail
carriers from discharging or discriminating against any
employee who reports a perceived threat to security.
Under current law, employees are protected if they report
any safety issues. The granting of additional whistle-blower
protections would impose both an intergovernmental and a
private-sector mandate on rail carriers, as defined in UMRA.
Because compliance with those broader whistle-blower
protections likely would involve only a small adjustment in
administrative procedures, however, CBO estimates that the
provision would impose only minimal additional costs on rail
carriers.
Mandates that affect only the private sector
S. 184 contains several private-sector mandates, as defined
in UMRA, on motor carriers, rail carriers, and pipeline
operators. The bill would require that rail carriers and motor
carriers develop various security plans, as well as authorize
new requirements to be imposed on operators of transmission
pipelines in the future.
Requirements on Motor Carriers. Section 201 would expand
the number of hazardous materials for which transporters must
prepare and maintain a written route plan. Under current law,
transporters of certain hazardous materials must prepare a
written route plan and supply a copy to both the motor vehicle
driver and the shipper. The bill would expand that requirement
to include transporters of the remaining hazardous materials
for which DOT requires motor carriers to hold a safety permit
to transport. According to industry sources, the cost to comply
with this requirement would be significant, resulting from the
time-intensive nature of preparing a route plan for each
shipment of the covered hazardous materials. Industry sources
estimate the cost to develop each route plan could average
about $50. CBO has been unable to obtain data on the annual
number of shipments of the hazardous materials referred to in
section 201. Consequently, CBO has no basis for estimating the
cost of complying with this mandate.
Amtrak. S. 184 would require Amtrak to submit a plan to the
Chairman of the National Transportation Safety Board that would
be invoked in case of a railway accident involving loss of
life. According to industry sources, Amtrak has a contingency
plan in place for responding to the needs of families of rail
accident passengers that is similar to the provisions contained
in the bill. The bill would authorize $500,000 to be
appropriated in fiscal year 2007 to complete the required plan.
The bill also would require that Amtrak participate in a
working group that would be required to submit a report on
securing the northern border. CBO estimates that the cost of
providing that report would be nominal.
Requirements on Hazmat Carriers. Section 111 would require
rail carriers who transport high hazard materials, as defined
in the bill, to develop a security threat mitigation plan for
high hazard material. Currently, the Department of
Transportation requires rail carriers who transport those
hazardous materials to submit a security plan. However, the
bill would expand current requirements on rail carriers to
include submitting a list of routes used to transport high
hazard materials, addressing temporary shipment suspension
options, and assessing risks to high-consequence targets.
According to railroad industry sources, rail carriers are
complying with current DOT regulations. Because rail carriers
are already complying with many of the provisions in the
legislation, CBO estimates that the additional cost to comply
with the mandate would be minimal.
Requirements on Operators of Transmission Pipelines.
Section 209 would authorize the Secretary of Homeland Security
to establish and enforce new security regulations on operators
of transmission pipelines. According to industry sources in
both the natural gas and oil pipeline industries, all pipeline
operators are abiding by current guidelines as set forth in the
DOT September 5, 2002, Pipeline Security Information Circular.
If the Secretary were to impose more stringent security
regulations on pipeline operators, those entities could face
increased costs; however, without information about such
requirements CBO cannot determine the cost of compliance.
Other impacts: security grants
The bill would authorize about $1 billion over four years
for grants to improve the security of both passenger and
freight rail as well as over-the-road buses and over-the-road
bus terminals, establish a rail security and research program,
and upgrade Amtrak tunnels in New Yark, Baltimore, and
Washington, D.C. To the extent that state, local, or tribal
governments, or private-sector entities apply for and receive
such grants, those provisions would provide benefits to those
entities. Any costs resulting from complying with the
conditions of the grants would be incurred voluntarily.
Previous CBO estimate: On February 22, 2007, CBO
transmitted a cost estimate for the Public Transportation
Terrorism Prevention Act of 2007 as ordered reported by the
Senate Committee on Banking, Housing, and Urban Affairs on
February 8, 2007. That bill would authorize DHS to provide $3.5
billion in grants over the 2008-2010 period to public
transportation agencies to improve the security of transit
systems and grants and contracts to public and private entities
to study methods of deterring terrorist attacks against transit
systems and mitigating damages from such attacks. That bill
would require DHS to cover the costs of an Information Sharing
and Analysis Center and would not authorize grants to Amtrak.
The differences between the bills are reflected in CBO's cost
estimates.
Estimate prepared by: Federal Costs: Matthew Pickford and
Sarah Puro. Impact on State, Local, and Tribal Governments:
Sarah Puro. Impact on the Private Sector: Fatimot Ladipo.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 184 is intended to improve rail and surface transportation
security by establishing new Federal programs and modifying
existing law. The bill affects TSA, DOT, and other entities
already subject to TSA and DOT rules and regulations, and
therefore the number of persons covered should be consistent
with the current levels of individuals impacted under existing
TSA and DOT regulations.
ECONOMIC IMPACT
S. 184 is not expected to have an adverse impact on the U.S.
economy. It is anticipated that titles I and II would have
positive economic impacts to their respective areas and should
provide significant support to the corresponding transportation
sector modes. The bill would authorize the necessary funding to
establish a more secure system by requiring DHS, and in some
cases DOT, as well as the corresponding industries to take
steps to protect the system.
PRIVACY
S. 184 would have minimal effect on the privacy rights of
individuals.
PAPERWORK
The Committee anticipates a slight increase in paperwork
burdens on requirements for private individuals or businesses.
In those areas where the bill does require additional
paperwork, it is aimed at improving the security of
transportation infrastructure, assets, and operations. S. 184
would require a range of plans, communications, budget
analyses, agreements, and rulemakings. In certain sections,
such as section 101, the DHS Secretary would be required to
issue a report containing recommendations and plans to
Congress, or in the case of sections 109 and 111, the DHS and
DOT Secretaries would be required to develop and issue detailed
guidance to the pertinent industry stakeholders. Section 114
would require the DHS and DOT Secretaries to develop a national
plan for improved public outreach, which would entail
communication with citizens, although not necessarily in print
format. Section 201 would require a report and possible
revisions to existing rules. Section 203 would require that the
Secretaries of DHS and DOT enter into an annex of a previously
established Memorandum of Agreement to delineate roles and
responsibilities. Sections 205, 208 and 212 would require new
reports, studies, and plans.
The paperwork burden on industry or private individuals stems
from plans that would be developed and/or submitted for review
to DHS and DOT: these plans would be used for strategic
security purposes or would be a pre-requisite for distributing
grants. For example, in section 111, rail carriers would be
required to develop and submit security threat mitigation plans
which would be updated and resubmitted for review, while
section 201 could require certain motor carriers to develop and
maintain written route plans. Illustrations of grant
requirements are found in sections 103, where the DOT Secretary
would have to approve plans submitted by Amtrak before
distributing grants for fire and life-safety improvements; in
section 106, which requires the DHS Secretary to establish
procedures applicants or grant awards; and in section 207,
where the DHS Secretary would not be required to award grants
until private bus operators submitted a plan for making
security improvements.
Section-by-Section Analysis
Section 1. Short title.
Section 1 would provide that this Act may be cited as the
``Surface Transportation and Rail Security Act of 2007''.
Section 2. Table of contents.
This section provides a table of contents for this Act.
Section 3. Definitions.
This section defines the terms ``High Hazard Materials'' and
``Secretary'' for the purposes of this Act.
TITLE I--IMPROVED RAIL SECURITY
Section 101. Rail transportation security and risk assessment
This section would require the DHS Secretary to establish a
task force to complete a risk assessment of freight and
passenger rail transportation. The Secretary would be required
to take into account actions taken or planned by both public
and private entities. Based on the findings of the task force,
within 1 year after the date of enactment of this Act, the
Secretary would be required to develop and report to Congress
prioritized recommendations for improving rail security,
including recommendations related to: tunnels, bridges, and
other rail infrastructure security; explosive, chemical,
biological, and radiological detection technologies;
surveillance equipment; railroad or railroad shipper employee
training; public outreach and security awareness; immediate and
long-term costs associated with addressing risks; and public
and private sector rail security funding efforts.
The Secretary would be required to include in the
recommendations a plan for the Federal government to provide
security support at high threat levels of alert; a plan for
coordinating existing and planned rail security initiatives
undertaken by the public and private sectors; and a contingency
plan developed in conjunction with the intercity and commuter
passenger railroads to ensure the continued movement of freight
and passengers in the event of a terrorist attack. The
Secretary would be required to provide Congress with annual
assessments and recommendations concerning the security of the
domestic rail system.
In developing the risk assessment, recommendations, and plans
required under this section, the Secretary shall consult with
industry stakeholders and other relevant entities and shall
utilize existing risk assessments completed by DHS or other
Federal entities, and, as appropriate, assessments completed by
other stakeholders. This section would authorize $5,000,000 for
FY 2008 to carry out this section.
The Committee notes its frustration with the inability of TSA
to complete a comprehensive risk assessment of the railroad
sector. The Committee believes fulfillment of this section is
an absolute priority, so that the results of the assessment may
be used to guide the ongoing rail security efforts and the new
programs called for in this bill. In completing the assessment
required by this section, it is not the Committee's intention
that TSA unnecessarily redo existing assessment work, of
sufficient quality and relevance, already completed by the
agency or other Federal, private or public stakeholders.
However, the Committee expects any existing assessments used to
be synthesized into a comprehensive and coherent total
assessment, not simply compiled into a single document.
Section 102. System-wide Amtrak security upgrades
This section would authorize the Secretary of DHS to make
security grants to Amtrak for the general purposes of:
protecting underwater/underground assets and systems;
protecting high risk/high consequence assets identified through
system-wide risk assessments; counter-terrorism training for
front line staff; use of visible/unpredictable deterrence;
emergency preparedness drills and exercises; and public
awareness and preparedness campaigns. Specific grant
eligibilities include: securing major tunnel access points in
New York, New Jersey, Maryland, and Washington, D.C.; securing
Amtrak trains and stations; obtaining a watch list
identification system and interoperable communication system;
and hiring additional police and security officers.
The DHS Secretary would authorize grants to Amtrak for
projects contained in a system-wide security plan approved by
the DHS Secretary and the DOT Secretary would disburse the
grant funds to Amtrak through DOT's existing Amtrak grant
process. The DHS Secretary would be required to ensure that
grants are appropriately distributed to areas outside of the
Northeast Corridor, consistent with the highest security needs
of the Amtrak system. This section would authorize $63,500,000
for FY 2008 and $30,000,000 for FYs 2009 and 2010 to carry out
this section.
The Committee expects the DOT Secretary to function as a
pass-through for grants awarded under this section to Amtrak,
using the quarterly grant process currently used by DOT to
provide Federal funds to Amtrak. The Committee does not expect
DOT to establish any additional grant requirements, and this
section does not provide DOT any additional authority by which
to deal or withhold grants made to Amtrak.
Section 103. Fire and life-safety improvements
This section would authorize the DOT Secretary to make grants
to Amtrak for the purpose of making fire and life-safety
improvements to Amtrak tunnels on the Northeast Corridor.
This section would authorize $100,000,000 in funding for DOT
for each of FYs 2008 through 2011 to make fire and life-safety
improvements to the New York/New Jersey tunnels; $10,000,000
for each of FYs 2008 through 2011 for improvements of the
Baltimore & Potomac and Union tunnels in Baltimore, Maryland;
and $8,000,000 for each of FYs 2008 through 2011 for
improvements of the Washington, D.C., Union Station tunnels.
The DOT Secretary would be required to approve plans submitted
by Amtrak before distributing grants. In addition, the
Secretary would be authorized to consider the feasibility of
seeking a financial contribution from other rail carriers
towards the cost of the project. This section also authorizes
$3,000,000 in FY 2008 for preliminary design of a new railroad
tunnel in Baltimore, Maryland.
Section 104. Freight and passenger rail security upgrades
This section would authorize the DHS Secretary to make grants
to freight railroads, the Alaska Railroad, HAZMAT shippers,
owners of rail cars used to transport HAZMAT, institutions of
higher education, State and local governments, and Amtrak, for
full or partial reimbursement of costs incurred to prevent or
respond to acts of terrorism, sabotage, or other risks. The DHS
Secretary would be required to adopt necessary procedures to
ensure that grants made under this section are expended in
accordance with the purposes of this Act. This section would
authorize $100,000,000 for DHS for each of FYs 2008 through
2010 for the DHS Secretary to carry out this section. Grants to
Amtrak are limited to $45,000,000 over the authorization period
and grants for HAZMAT rail security are limited to $80,000,000
in total over the authorization period.
The Committee believes the authorization of the program is
particularly important because very little of the existing DHS
rail security grant funds have been available to intercity
passenger rail security and no funds have been made available
for freight railroad security.
Section 105. Rail security research and development
This section would require the DHS Secretary, in conjunction
with the DHS Undersecretary for Science and Technology and the
Assistant Secretary for TSA, and in consultation with the DOT
Secretary, to carry out a research and development program for
the purpose of improving freight and intercity passenger rail
security. In carrying out this section, the DHS Secretary would
be required to coordinate with other research and development
initiatives at DOT. The DHS Secretary would also be allowed to
award research and development grants to certain entities
described in this section. This section would authorize
$33,000,000 for DHS for each of FYs 2008 through 2011 for the
DHS Secretary to carry out this section.
Section 106. Oversight and grant procedures
This section would authorize the DHS Secretary to enter into
contracts to audit and review grants awarded under this Act.
The DHS Secretary would be required to prescribe procedures and
schedules for the awarding of grants under this Act, including
application and qualification procedures. In awarding grants,
the DHS Secretary may issue letters of intent (LOI) to
recipients of grant awarded under this bill, as the Secretary
may do now for aviation security funding through TSA. The
Committee included this LOI authority because of the multi-year
nature of some of the capital projects that may be funded
through grants under this bill. In such instances, it is
important that public and private sector partners in security
improvements receive indications from TSA that the agency
believes multi-year funding is appropriate. The Committee
acknowledges an LOI is not a commitment of future funds by an
agency.
Section 107. Amtrak plan to assist families of passengers involved in
rail accidents
This section would require Amtrak, not later than 6 months
after the date of enactment of this Act, to submit to the
Chairman of the National Transportation Safety Board, the DOT
Secretary and the DHS Secretary, a plan for addressing the
needs of families of passengers involved in any rail passenger
accident involving an Amtrak intercity train and resulting in
loss of life. This section authorizes $500,000 for FY 2008 for
the DOT Secretary to carry out this new section.
Section 108. Northern border rail passenger report
This section would require the DHS Secretary, in consultation
with the DOT Secretary, heads of other appropriate Federal
departments and agencies, and Amtrak, within 180 days after the
date of enactment, to submit a report to Congress that
contains: a description of the current system for screening
passengers and baggage on rail service between the United
States and Canada; an assessment of the current program to
provide pre-clearance of airline passengers between the United
States and Canada; an assessment of the current program to
provide pre-clearance of freight railroad traffic between the
United States and Canada; information on progress by DHS and
other Federal agencies towards finalizing a bilateral protocol
with Canada that would provide for pre-clearance of passengers
on trains operating between the United States and Canada; a
description of legislative, regulatory, budgetary, or policy
barriers to providing pre-screened passenger lists for such
passengers; a description of the Canadian position with respect
to pre-clearance; a draft of any changes to Federal law
necessary to allow for pre-screening; and a feasibility
analysis of reinstating in-transit inspections onboard
international Amtrak trains.
Section 109. Rail worker security training program
This section would require the DHS and DOT Secretaries, not
later than 1 year after the date of enactment of this Act, to
work with law enforcement officials, as well as terrorism and
rail experts, to develop and issue detailed guidance for a
railroad worker security training program to prepare front-line
workers for potential threat conditions. This section also
would require railroad carriers to adopt a worker security
training program in accordance with the guidance and submit it
to the DHS Secretary for approval. Within one year after the
DHS Secretary reviews rail carriers' training programs,
railroad carriers would be required to complete the training of
all front-line workers consistent with the approved program.
Section 110. Whistleblower protection program
This section would preclude rail carriers from discharging,
or otherwise discriminating against, a railroad employee
because the employee, or the employee's representative:
provided, caused to be provided, or is about to provide, to the
employer or the Federal government information relating to a
reasonably perceived threat to security; provided, caused to be
provided, or is about to provide testimony before a Federal or
State proceeding; or refused to violate or assist in violation
of any law or regulation related to rail security.
Section 111. High hazard material security threat mitigation plans
This section would direct the DHS and DOT Secretaries to
require rail carriers transporting a high hazard material to
develop security threat mitigation plans, including alternative
routing and temporary shipments suspension options, and to
address assessed risks to high consequence targets. These
threat mitigation plans would be implemented when the threat
levels of the Homeland Security Advisory System are raised to
high or severe or specific intelligence of probable or imminent
threat exists toward high-consequence rail targets or
infrastructure. Within 60 days of enactment of this Act, a list
of routes used to transport high hazard materials would be
required to be submitted to the DHS Secretary. Within 180 days
after receiving the notice of high consequence targets on such
routes by the DHS Secretary, each rail carrier would be
required to develop and submit a high hazard material security
threat mitigation plan to the DHS Secretary. Any revisions must
be submitted to the DHS Secretary within 30 days of the
revisions being made. The DHS Secretary, with the assistance of
the DOT Secretary would be directed to review and transmit
comments on the plans to the railroad carrier. A railroad
carrier would be required to respond to those comments within
30 days. The plans would be required to be updated by the
railroad carrier every two years. This section also defines the
following terms: ``high-consequence target,'' ``catastrophic
impact zone,'' and ``rail carrier.''
Section 112. Enforcement authority
This section would amend current law to clarify the DHS
Secretary's legal authority for initiating an administrative
enforcement proceeding for violations of transportation
security regulations and requirements relating to modes of
transportation other than aviation. Presently, TSA can enforce
aviation security-related regulations and requirements
administratively, but ambiguity exists regarding such
administrative enforcement authority for non-aviation related
enforcement actions. This provision would extend the existing
aviation enforcement authority to the DHS Secretary for non-
aviation transportation modes.
Section 113. Rail security enhancements
This section would allow police officers employed by a
railroad to be deputized to help a second railroad in carrying
out enforcement duties on the second railroad. In addition, the
provision would require the DOT Secretary to write and
distribute to States model railroad police commissioning laws
to help prevent the problems posed by ``scam railroads.''
``Scam railroads'' are companies that are organized as
railroads in order to obtain police powers but are not actually
engaged in the railroad business.
Section 114. Public awareness
This section would require the DHS Secretary, in consultation
with the DOT Secretary, within 90 days after the date of
enactment of this Act, to develop a national plan for improved
public outreach and awareness of measures that the general
public, railroad passengers, and railroad employees can take to
increase railroad system security. Not later than 9 months
after the date of enactment of this Act, the DHS Secretary
would be directed to implement this plan.
Section 115. Railroad high hazard material tracking
This section would require the DHS Secretary, within 6 months
after the date of enactment of this Act, to develop a program
to encourage the equipping of rail cars transporting high
hazard materials with communications technology that provides
information concerning car position, depressurization, and the
release of HAZMAT. This section would authorize $3,000,000 in
funding for FYs 2008 through 2010 for the DHS Secretary to
carry out this section.
Section 116. Authorization of appropriations
This section would authorize $205,000,000 in funding for FY
2008 and $166,000,000 for FYs 2009 to 2010 for the DHS
Secretary for this title. This section also would authorize
$121,000,000 for FY 2008 and $118,000,000 for FYs 2009 to 2011
for the DOT Secretary to carry out DOT's responsibilities under
this Act.
TITLE II--IMPROVED MOTOR CARRIER, BUS, AND HAZARDOUS MATERIAL SECURITY
Section 201. HAZMAT highway routing
This section would require the DOT Secretary, within one year
of enactment of this Act, in consultation with the DHS
Secretary, to: document existing and proposed routes for the
transportation of radioactive and non-radioactive HAZMAT by
motor carrier and develop a framework by using a Geographic
Information System-based approach to characterize routes in the
National HAZMAT Route Registry; assess and characterize
existing and proposed routes for the transportation of
radioactive and non-radioactive HAZMAT by motor carrier for the
purpose of identifying measurable criteria for selecting routes
based on safety and security concerns; analyze current route-
related HAZMAT regulations in the United States, Canada, and
Mexico to identify cross-border differences and conflicting
regulations; document the concerns of the public, motor
carriers, and State, local, territorial, and tribal governments
about the highway routing of HAZMAT for the purpose of
identifying and mitigating security risks associated with
hazardous material routes; prepare guidance materials for State
officials to assist them in identifying and reducing both
safety concerns and security risks when designating highway
routes for HAZMAT; develop a tool that will enable State
officials to examine potential routes for the highway
transportation of HAZMAT; transmit to the Senate Committee on
Commerce, Science and Transportation, and the House of
Representatives Committee on Transportation and Infrastructure
a report on the actions taken to fulfill all the requirements
of this section and any recommended changes to the routing
requirements for the highway transportation of HAZMAT.
Within 1 year, the DOT Secretary would be required to
complete an assessment of the safety and national security
benefits achieved under existing requirements for route plans
for explosives and radioactive materials and shall submit a
report to the Senate Commerce Committee and the House
Infrastructure and Transportation Committee with the findings
and conclusions of the assessment. The DHS Secretary also would
be directed to assess, and potentially require, the addition of
certain high-HAZMAT to the list of existing HAZMAT that are
required to be transported by motor carriers who use highway
routing plans.
Section 202. Motor carrier high hazard material tracking
This section would require the DHS Secretary, through TSA,
and in consultation with the DOT Secretary, to develop a
program to encourage the equipping of motor carriers
transporting high hazard materials in with communications
technology that provides frequent or continuous communications,
vehicle position and location and tracking capabilities, and an
emergency broadcast capability. This section would authorize
$3,000,000 to carry out this Act for each of FYs 2008 through
2010.
Section 203. Memorandum of agreement
This provision would require DHS and DOT to develop a truck
security memorandum of agreement (MOA) annex between the two
Departments within 1 year after the date of enactment. The
Departments currently have security MOA annexes in place for
rail, transit, and HAZMAT security. The annex would delineate
the roles, resources, and commitments of DHS and DOT in
addressing truck security matters, including the processes the
Departments will follow to promote communication, efficiency,
and non-duplication of effort.
Section 204. HAZMAT security inspections and enforcement
This section would require the DHS Secretary to establish a
program within TSA, in consultation with the DOT Secretary, for
reviewing HAZMAT security plans, within 1 year after the
enactment of this Act. Failure by any covered person to comply
within 180 days after being notified by the DHS Secretary would
be punishable by a civil penalty. In reviewing compliance with
part 172, the DHS Secretary would be required to utilize risk
assessment methodologies to prioritize review and enforcement
actions to the highest risk HAZMAT transportation operations.
This section also would require within one year, the DOT
Secretary, in coordination with the DHS Secretary, to study to
what extent the insurance, security, and safety costs borne by
carriers of HAZMAT are reflected in the rates paid by shippers
of such commodities, as compared to those for the
transportation of non-HAZMAT. This section would authorize
$2,000,000 to carry out this Act for each of FYs 2008 through
2010.
Section 205. Truck security assessment
The DHS Secretary would be required to submit a report on
security issues related to the trucking industry that includes
an assessment of actions already taken by both public and
private entities; an assessment of the economic impact that
security upgrades on trucks, truck equipment, or truck
facilities may have on the trucking industry and its employees;
an assessment of ongoing research and need for additional
research on truck security; an assessment of industry best
practices to enhance security; and an assessment of the current
status of secure parking facilities for trucks.
Section 206. National public sector response system
This section would require the DHS Secretary, in coordination
with the DOT Secretary, to develop a national public sector
response system to receive security alerts, which can provide
actionable information to appropriate first responder, law
enforcement and public safety, and homeland security officials.
The DHS Secretary would be required to consult with public and
private stakeholders in developing this system. The system
would be required to have certain capabilities and
characteristics as described in this Act.
This section would also require the DHS Secretary within 180
days of enactment of this Act to transmit to Congress a report
on the estimated public and private costs to establish and
annually operate the system. This section would authorize
$1,000,000 to carry out this Act for each of FYs 2008 through
2010.
Section 207. Over-the-road bus security assistance
This section would authorize the DHS Secretary to establish
within TSA a program for making grants to private operators of
over-the-road buses (characterized by an elevated passenger
deck located over a baggage compartment) or over-the-road bus
terminals for system-wide security improvements to their
operations. General purposes for the grants would include:
protecting underwater/underground assets and systems;
protecting high risk/high consequence assets identified through
system-wide risk assessments; counter-terrorism training for
front line staff; use of visible/unpredictable deterrence;
emergency preparedness drills and exercises; and public
awareness and preparedness campaigns. Grants made under this
section would be subject to certain terms and conditions. No
grant would be made under this section to a private bus
operator until the operator has first submitted a plan for
making security improvements to the DHS Secretary, along with
any other information the DHS Secretary may require.
This section would require that, within one year of enactment
of this Act, the DHS Secretary to submit to Congress a report
containing an assessment of bus security actions already taken
by public and private entities, whether additional legislation
is necessary, the economic impact of security upgrades on the
bus industry, ongoing research on bus security, best practices
to enhance bus security, and school bus security, if
appropriate. This section would authorize $12,000,000 to carry
out this Act for FY 2008 and $25,000,000 for FY 2009 to 2010.
Section 208. Pipeline security and incident recovery plan
This section would require the DHS Secretary, in consultation
with the DOT Secretary and the PHMSA, and in accordance with
the MOU Annex executed on August 9, 2006, to develop a Pipeline
Security and Incident Recovery Protocols Plan. The Plan would
be required to include a plan for the Federal Government to
provide increased security support to the most critical natural
gas and hazardous liquid transmission pipeline infrastructures
and operations during periods of elevated threat levels and
when specific threat information relating to such pipeline
infrastructure or operations exists. The Plan also would be
required to include an incident recovery protocol plan.
This section also would require that the DHS Secretary
transmit to Congress a report containing the plan required in
this section, along with an estimate of the private and public
sector costs to implement any recommendations.
Section 209. Pipeline security inspections and enforcement
This section would require the DHS Secretary, in consultation
with the DOT Secretary, to establish a program to review
pipeline operator adoption of recommendations in the September
5, 2002, DOT Research and Special Programs Administration
Pipeline Security Information Circular. The DHS Secretary would
be required to complete within nine months of enactment of this
Act a review of pipeline security plan and inspection of the
100 most critical pipeline operators covered by the Circular.
In reviewing operator compliance, the DHS Secretary would be
required to utilize risk assessment methodologies.
This section also would require the DHS Secretary and the DOT
Secretary to jointly develop recommendations for pipeline
operators for securing natural gas and hazardous liquid
pipelines and pipeline facilities. If the DOT or DHS Secretary
deem security regulations appropriate, either Secretary would
be authorized to promulgate such regulations and carry out
necessary inspection and enforcement actions, in accordance
with the MOU Annex executed on August 9, 2006 between the two
agencies. This section would authorize $2,000,000 to carry out
this Act for each of FYs 2008 and 2009.
Secton 210. Technical corrections
This section makes technical corrections to title 49, United
States Code, and title 46, United States Code.
Section 211. Certain personnel limitations not to apply
This section makes clear that any statutory limitation on the
number of TSA employees does not apply to employees
implementing provisions of this Act.
Section 212. Maritime and surface transportation security fee study
This section would require the DHS Secretary to study the
need for, and feasibility of, establishing a system of maritime
and surface transportation-related user fees that may be
imposed and collected to fund maritime and surface
transportation security improvements. In developing the study,
the DHS Secretary would be directed to consult with maritime
and surface transportation carriers, shippers, passengers,
facility owners and operators, and other persons as determined
by the DHS Secretary. The study would include an assessment of
current security-related fees in the United States, Canada, and
Mexico; an analysis of the impact of fees on transportation
carriers and shippers; and an evaluation of current private and
public sector expenditures on maritime and surface
transportation security. Within 1 year after the date of
enactment, the DHS Secretary would be required to transmit a
report to Congress on the results of the study.
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, UNITED STATES CODE
SUBTITLE I--DEPARTMENT OF TRANSPORTATION
CHAPTER 1. ORGANIZATION
Sec. 114. Transportation Security Administration
(a) In General.--The Transportation Security Administration
shall be an administration of the Department of Transportation.
(b) Under Secretary.--
(1) Appointment.--The head of the Administration
shall be the Under Secretary of Transportation for
Security. The Under Secretary shall be appointed by the
President, by and with the advice and consent of the
Senate.
(2) Qualifications.--The Under Secretary must--
(A) be a citizen of the United States; and
(B) have experience in a field directly
related to transportation or security.
(3) Term.--The term of office of an individual
appointed as the Under Secretary shall be 5 years.
(c) Limitation on Ownership of Stocks and Bonds.--The Under
Secretary may not own stock in or bonds of a transportation or
security enterprise or an enterprise that makes equipment that
could be used for security purposes.
(d) Functions.--The Under Secretary shall be responsible for
security in all modes of transportation, including--
(1) carrying out chapter 449, relating to civil
aviation security, and related research and development
activities; and
(2) security responsibilities over other modes of
transportation that are exercised by the Department of
Transportation.
(e) Screening Operations.--The Under Secretary shall--
(1) be responsible for day-to-day Federal security
screening operations for passenger air transportation
and intrastate air transportation under sections 44901
and 44935;
(2) develop standards for the hiring and retention of
security screening personnel;
(3) train and test security screening personnel; and
(4) be responsible for hiring and training personnel
to provide security screening at all airports in the
United States where screening is required under section
44901, in consultation with the Secretary of
Transportation and the heads of other appropriate
Federal agencies and departments.
(f) Additional Duties and Powers.--In addition to carrying
out the functions specified in subsections (d) and (e), the
Under Secretary shall--
(1) receive, assess, and distribute intelligence
information related to transportation security;
(2) assess threats to transportation;
(3) develop policies, strategies, and plans for
dealing with threats to transportation security;
(4) make other plans related to transportation
security, including coordinating countermeasures with
appropriate departments, agencies, and
instrumentalities of the United States Government;
(5) serve as the primary liaison for transportation
security to the intelligence and law enforcement
communities;
(6) on a day-to-day basis, manage and provide
operational guidance to the field security resources of
the Administration, including Federal Security Managers
as provided by section 44933;
(7) enforce security-related regulations and
requirements;
(8) identify and undertake research and development
activities necessary to enhance transportation
security;
(9) inspect, maintain, and test security facilities,
equipment, and systems;
(10) ensure the adequacy of security measures for the
transportation of cargo;
(11) oversee the implementation, and ensure the
adequacy, of security measures at airports and other
transportation facilities;
(12) require background checks for airport security
screening personnel, individuals with access to secure
areas of airports, and other transportation security
personnel;
(13) work in conjunction with the Administrator of
the Federal Aviation Administration with respect to any
actions or activities that may affect aviation safety
or air carrier operations;
(14) work with the International Civil Aviation
Organization and appropriate aeronautic authorities of
foreign governments under section 44907 to address
security concerns on passenger flights by foreign air
carriers in foreign air transportation; and
(15) carry out such other duties, and exercise such
other powers, relating to transportation security as
the Under Secretary considers appropriate, to the
extent authorized by law.
(g) National Emergency Responsibilities.--
(1) In general.--Subject to the direction and control
of the Secretary, the Under Secretary, during a
national emergency, shall have the following
responsibilities:
(A) To coordinate domestic transportation,
including aviation, rail, and other surface
transportation, and maritime transportation
(including port security).
(B) To coordinate and oversee the
transportation-related responsibilities of
other departments and agencies of the Federal
Government other than the Department of Defense
and the military departments.
(C) To coordinate and provide notice to other
departments and agencies of the Federal
Government, and appropriate agencies of State
and local governments, including departments
and agencies for transportation, law
enforcement, and border control, about threats
to transportation.
(D) To carry out such other duties, and
exercise such other powers, relating to
transportation during a national emergency as
the Secretary shall prescribe.
(2) Authority of other departments and agencies.--The
authority of the Under Secretary under this subsection
shall not supersede the authority of any other
department or agency of the Federal Government under
law with respect to transportation or transportation-
related matters, whether or not during a national
emergency.
(3) Circumstances.--The Secretary shall prescribe the
circumstances constituting a national emergency for
purposes of this subsection.
(h) Management of Security Information.--In consultation with
the Transportation Security Oversight Board, the Under
Secretary shall--
(1) enter into memoranda of understanding with
Federal agencies or other entities to share or
otherwise cross-check as necessary data on individuals
identified on Federal agency databases who may pose a
risk to transportation or national security;
(2) establish procedures for notifying the
Administrator of the Federal Aviation Administration,
appropriate State and local law enforcement officials,
and airport or airline security officers of the
identity of individuals known to pose, or suspected of
posing, a risk of air piracy or terrorism or a threat
to airline or passenger safety;
(3) in consultation with other appropriate Federal
agencies and air carriers, establish policies and
procedures requiring air carriers--
(A) to use information from government
agencies to identify individuals on passenger
lists who may be a threat to civil aviation or
national security; and
(B) if such an individual is identified,
notify appropriate law enforcement agencies,
prevent the individual from boarding an
aircraft, or take other appropriate action with
respect to that individual; and
(4) consider requiring passenger air carriers to
share passenger lists with appropriate Federal agencies
for the purpose of identifying individuals who may pose
a threat to aviation safety or national security.
(i) View of NTSB.--In taking any action under this section
that could affect safety, the Under Secretary shall give great
weight to the timely views of the National Transportation
Safety Board.
(j) Acquisitions.--
(1) In general.--The Under Secretary is authorized--
(A) to acquire (by purchase, lease,
condemnation, or otherwise) such real property,
or any interest therein, within and outside the
continental United States, as the Under
Secretary considers necessary;
(B) to acquire (by purchase, lease,
condemnation, or otherwise) and to construct,
repair, operate, and maintain such personal
property (including office space and patents),
or any interest therein, within and outside the
continental United States, as the Under
Secretary considers necessary;
(C) to lease to others such real and personal
property and to provide by contract or
otherwise for necessary facilities for the
welfare of its employees and to acquire,
maintain, and operate equipment for these
facilities;
(D) to acquire services, including such
personal services as the Secretary determines
necessary, and to acquire (by purchase, lease,
condemnation, or otherwise) and to construct,
repair, operate, and maintain research and
testing sites and facilities; and
(E) in cooperation with the Administrator of
the Federal Aviation Administration, to utilize
the research and development facilities of the
Federal Aviation Administration.
(2) Title.--Title to any property or interest therein
acquired pursuant to this subsection shall be held by
the Government of the United States.
(k) Transfers of Funds.--The Under Secretary is authorized to
accept transfers of unobligated balances and unexpended
balances of funds appropriated to other Federal agencies (as
such term is defined in section 551(1) of title 5) to carry out
functions transferred, on or after the date of enactment of the
Aviation and Transportation Security Act, by law to the Under
Secretary.
(l) Regulations.--
(1) In general.--The Under Secretary is authorized to
issue, rescind, and revise such regulations as are
necessary to carry out the functions of the
Administration.
(2) Emergency procedures.--
(A) In general.--Notwithstanding any other
provision of law or executive order (including
an executive order requiring a cost-benefit
analysis), if the Under Secretary determines
that a regulation or security directive must be
issued immediately in order to protect
transportation security, the Under Secretary
shall issue the regulation or security
directive without providing notice or an
opportunity for comment and without prior
approval of the Secretary.
(B) Review by Transportation Security
Oversight Board.--Any regulation or security
directive issued under this paragraph shall be
subject to review by the Transportation
Security Oversight Board established under
section 115. Any regulation or security
directive issued under this paragraph shall
remain effective for a period not to exceed 90
days unless ratified or disapproved by the
Board or rescinded by the Under Secretary.
(3) Factors to consider.--In determining whether to
issue, rescind, or revise a regulation under this
section, the Under Secretary shall consider, as a
factor in the final determination, whether the costs of
the regulation are excessive in relation to the
enhancement of security the regulation will provide.
The Under Secretary may waive requirements for an
analysis that estimates the number of lives that will
be saved by the regulation and the monetary value of
such lives if the Under Secretary determines that it is
not feasible to make such an estimate.
(4) Airworthiness objections by faa.--
(A) In general.--The Under Secretary shall
not take an aviation security action under this
title if the Administrator of the Federal
Aviation Administration notifies the Under
Secretary that the action could adversely
affect the airworthiness of an aircraft.
(B) Review by Secretary.--Notwithstanding
subparagraph (A), the Under Secretary may take
such an action, after receiving a notification
concerning the action from the Administrator
under subparagraph (A), if the Secretary of
Transportation subsequently approves the
action.
(m) Personnel and Services; Cooperation by Under Secretary.--
(1) Authority of under secretary.--In carrying out
the functions of the Administration, the Under
Secretary shall have the same authority as is provided
to the Administrator of the Federal Aviation
Administration under subsections (l) and (m) of section
106.
(2) Authority of agency heads.--The head of a Federal
agency shall have the same authority to provide
services, supplies, equipment, personnel, and
facilities to the Under Secretary as the head has to
provide services, supplies, equipment, personnel, and
facilities to the Administrator of the Federal Aviation
Administration under section 106(m).
(n) Personnel Management System.--The personnel management
system established by the Administrator of the Federal Aviation
Administration under section 40122 shall apply to employees of
the Transportation Security Administration, or, subject to the
requirements of such section, the Under Secretary may make such
modifications to the personnel management system with respect
to such employees as the Under Secretary considers appropriate,
such as adopting aspects of other personnel systems of the
Department of Transportation.
(o) 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
or other Federal agency to serve as a law enforcement
officer.
(2) Powers.--While engaged in official duties of the
Administration as required to fulfill the
responsibilities under this section, a law enforcement
officer designated under paragraph (1) may--
(A) carry a firearm;
(B) make an arrest without a warrant for any
offense against the United States committed in
the presence of the officer, or for any felony
cognizable under the laws of the United States
if the officer has probable cause to believe
that the person to be arrested has committed or
is committing the felony; and
(C) seek and execute warrants for arrest or
seizure of evidence issued under the authority
of the United States upon probable cause that a
violation has been committed.
(3) Guidelines on exercise of authority.--The
authority provided by this subsection shall be
exercised in accordance with guidelines prescribed by
the Under Secretary, in consultation with the Attorney
General of the United States, and shall include
adherence to the Attorney General's policy on use of
deadly force.
(4) Revocation or suspension of authority.--The
powers authorized by this subsection may be rescinded
or suspended should the Attorney General determine that
the Under Secretary has not complied with the
guidelines prescribed in paragraph (3) and conveys the
determination in writing to the Secretary of
Transportation and the Under Secretary.
(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.
(s) Nondisclosure of Security Activities.--
(1) In general.--Notwithstanding section 552 of title
5, the Under Secretary shall prescribe regulations
prohibiting the disclosure of information obtained or
developed in carrying out security under authority of
the Aviation and Transportation Security Act (Public
Law 107-71) or under chapter 449 of this title if the
Under Secretary decides that disclosing the information
would--
(A) be an unwarranted invasion of personal
privacy;
(B) reveal a trade secret or privileged or
confidential commercial or financial
information; or
(C) be detrimental to the security of
transportation.
(2) Availability of information to Congress.--
Paragraph (1) does not authorize information to be
withheld from a committee of Congress authorized to
have the information.
(3) Limitation on transferability of duties.--Except
as otherwise provided by law, the Under Secretary may
not transfer a duty or power under this subsection to
another department, agency, or instrumentality of the
United States.
(t) Transportation Security Strategic Planning.--
(1) In general.--The Secretary of Homeland Security
shall develop, prepare, implement, and update, as
needed--
(A) a National Strategy for Transportation
Security; and
(B) transportation modal security plans.
(2) Role of Secretary of Transportation.--The
Secretary of Homeland Security shall work jointly with
the Secretary of Transportation in developing,
revising, and updating the documents required by
paragraph (1).
(3) Contents of national strategy for transportation
security.--The National Strategy for Transportation
Security shall include the following:
(A) An identification and evaluation of the
transportation assets in the United States
that, in the interests of national security and
commerce, must be protected from attack or
disruption by terrorist or other hostile
forces, including modal security plans for
aviation, bridge and tunnel, commuter rail and
ferry, highway, maritime, pipeline, rail, mass
transit, over-the-road bus, and other public
transportation infrastructure assets that could
be at risk of such an attack or disruption.
(B) The development of risk-based priorities
across all transportation modes and realistic
deadlines for addressing security needs
associated with those assets referred to in
subparagraph (A).
(C) The most appropriate, practical, and
cost-effective means of defending those assets
against threats to their security.
(D) A forward-looking strategic plan that
sets forth the agreed upon roles and missions
of Federal, State, regional, and local
authorities and establishes mechanisms for
encouraging private sector cooperation and
participation in the implementation of such
plan.
(E) A comprehensive delineation of response
and recovery responsibilities and issues
regarding threatened and executed acts of
terrorism within the United States.
(F) A prioritization of research and
development objectives that support
transportation security needs, giving a higher
priority to research and development directed
toward protecting vital transportation assets.
(4) Submissions of plans to congress.--
(A) Initial strategy.--The Secretary of
Homeland Security shall submit the National
Strategy for Transportation Security, including
the transportation modal security plans,
developed under this subsection to the
appropriate congressional committees not later
than April 1, 2005.
(B) Subsequent versions.--After December 31,
2005, the Secretary of Homeland Security shall
submit the National Strategy for Transportation
Security, including the transportation modal
security plans and any revisions to the
National Strategy for Transportation Security
and the transportation modal security plans, to
appropriate congressional committees not less
frequently than April 1 of each even-numbered
year.
(C) Periodic progress report.--
(i) Requirement for report.--Each
year, in conjunction with the
submission of the budget to Congress
under section 1105(a) of title 31,
United States Code, the Secretary of
Homeland Security shall submit to the
appropriate congressional committees an
assessment of the progress made on
implementing the National Strategy for
Transportation Security.
(ii) Content.--Each progress report
under this subparagraph shall include,
at a minimum, recommendations for
improving and implementing the National
Strategy for Transportation Security
and the transportation modal security
plans that the Secretary, in
consultation with the Secretary of
Transportation, considers appropriate.
(D) Classified material.--Any part of the
National Strategy for Transportation Security
or the transportation modal security plans that
involve information that is properly classified
under criteria established by Executive order
shall be submitted to the appropriate
congressional committees separately in a
classified format.
(E) Appropriate congressional committees
defined.--In this subsection, the term
``appropriate congressional committees'' means
the Committee on Transportation and
Infrastructure and the Select Committee on
Homeland Security of the House of
Representatives and the Committee on Commerce,
Science, and Transportation and the Committee
on Homeland Security and Governmental Affairs
of the Senate.
(5) Priority status.--
(A) In general.--The National Strategy for
Transportation Security shall be the governing
document for Federal transportation security
efforts.
(B) Other plans and reports.--The National
Strategy for Transportation Security shall
include, as an integral part or as an
appendix--
(i) the current National Maritime
Transportation Security Plan under
section 70103 of title 46;
(ii) the report required by section
44938 of this title;
(iii) transportation modal security
plans required under this section; and
(iv) any other transportation
security plan or report that the
Secretary of Homeland Security
determines appropriate for inclusion.
(u) Authorization of Appropriations.--There are authorized to
be appropriated to the Secretary of Homeland Security for rail
security--
(1) $205,000,000 for fiscal year 2008;
(2) $166,000,000 for fiscal year 2009; and
(3) $166,000,000 for fiscal year 2010.
(v) Enforcement of Regulations and Orders of the Secretary of
Homeland Security Issued under this Title.--
(1) Application of subsection.--
(A) In general.--This subsection applies to
the enforcement of regulations prescribed, and
orders issued, by the Secretary of Homeland
Security under a provision of this title other
than a provision of chapter 449.
(B) Violations of chapter 449.--The penalties
for violations of regulations prescribed, and
orders issued, by the Secretary of Homeland
Security under chapter 449 of this title are
provided under chapter 463 of this title.
(C) Nonapplication to certain violations.--
(i) Paragraphs (2) through (5) of
this subsection do not apply to
violations of regulations prescribed,
and orders issued, by the Secretary of
Homeland Security under a provision of
this title--
(I) involving the
transportation of personnel or
shipments of materials by
contractors where the
Department of Defense has
assumed control and
responsibility;
(II) by a member of the armed
forces of the United States
when performing official
duties; or
(III) by a civilian employee
of the Department of Defense
when performing official
duties.
(ii) Violations described in
subclause (I), (II), or (III) of clause
(i) shall be subject to penalties as
determined by the Secretary of Defense
or the Secretary's designee.
(2) Civil penalty.--
(A) In general.--A person is liable to the
United States Government for a civil penalty of
not more than $10,000 for a violation of a
regulation prescribed, or order issued, by the
Secretary of Homeland Security under this
title.
(B) Repeat violations.--A separate violation
occurs under this paragraph for each day the
violation continues.
(3) Administrative imposition of civil penalties.--
(A) In general.--The Secretary of Homeland
Security may impose a civil penalty for a
violation of a regulation prescribed, or order
issued, under this title. The Secretary shall
give written notice of the finding of a
violation and the penalty.
(B) Scope of civil action.--In a civil action
to collect a civil penalty imposed by the
Secretary under this subsection, the court may
not re-examine issues of liability or the
amount of the penalty.
(C) Jurisdiction.--The district courts of the
United States have exclusive jurisdiction of
civil actions to collect a civil penalty
imposed by the Secretary under this subsection
if--
(i) the amount in controversy is more
than--
(I) $400,000, if the
violation was committed by a
person other than an individual
or small business concern; or
(II) $50,000, if the
violation was committed by an
individual or small business
concern;
(ii) the action is in rem or another
action in rem based on the same
violation has been brought; or
(iii) another action has been brought
for an injunction based on the same
violation.
(D) Maximum penalty.--The maximum penalty the
Secretary may impose under this paragraph is--
(i) $400,000, if the violation was
committed by a person other than an
individual or small business concern;
or
(ii) $50,000, if the violation was
committed by an individual or small
business concern.
(4) Compromise and setoff.--
(A) The Secretary may compromise the amount
of a civil penalty imposed under this
subsection. If the Secretary compromises the
amount of a civil penalty under this
subparagraph, the Secretary shall--
(i) notify the Senate Committee on
Commerce, Science, and Transportation
and the House of Representatives
Committee on Homeland Security of the
compromised penalty and explain the
rationale therefor; and
(ii) make the explanation available
to the public to the extent feasible
without compromising security.
(B) The Government may deduct the amount of a
civil penalty imposed or compromised under this
subsection from amounts it owes the person
liable for the penalty.
(5) Investigations and proceedings.--Chapter 461 of
this title shall apply to investigations and
proceedings brought under this subsection to the same
extent that it applies to investigations and
proceedings brought with respect to aviation security
duties designated to be carried out by the Secretary.
(6) Definitions.--In this subsection:
(A) Person.--The term ``person'' does not
include--
(i) the United States Postal Service;
or
(ii) the Department of Defense.
(B) Small business concern.--The term ``small
business concern'' has the meaning given that
term in section 3 of the Small Business Act (15
U.S.C. 632).
TITLE 49. TRANSPORTATION
SUBTITLE III. GENERAL AND INTERMODAL PROGRAMS
CHAPTER 51. TRANSPORTATION OF HAZARDOUS MATERIAL
Sec. 5103a. Limitation on issuance of hazmat licenses
(a) Limitation.--
(1) Issuance of licenses.--A State may not issue to
any individual a license to operate a motor vehicle
transporting in commerce a hazardous material unless
the Secretary of Homeland Security has first
determined, upon receipt of a notification under
subsection (d)(1)(B), that the individual does not pose
a security risk warranting denial of the license.
(2) Renewals included.--For the purposes of this
section, the term ``issue'', with respect to a license,
includes renewal of the license.
(b) Hazardous Materials Described.--The limitation in
subsection (a) shall apply with respect to any material defined
as hazardous material by the Secretary for which the Secretary
requires placarding of a commercial motor vehicle transporting
that material in commerce.
(c) Recommendations on Chemical and Biological Materials.--
The Secretary of Health and Human Services shall recommend to
the Secretary of Transportation any chemical or biological
material or agent for regulation as a hazardous material under
section 5103(a) if the Secretary of Health and Human Services
determines that such material or agent poses a significant risk
to the health of individuals.
(d) Background Records Check--
(1) In general.--Upon the request of a State
regarding issuance of a license described in subsection
(a)(1) to an individual, the Attorney General--
(A) shall carry out a background records
check regarding the individual; and
(B) upon completing the background records
check, shall notify the Secretary of Homeland
Security of the completion and results of the
background records check.
(2) Scope.--A background records check regarding an
individual under this subsection shall consist of the
following:
(A) A check of the relevant criminal history
data bases.
(B) In the case of an alien, a check of the
relevant data bases to determine the status of
the alien under the immigration laws of the
United States.
(C) As appropriate, a check of the relevant
international data bases through Interpol-U.S.
National Central Bureau or other appropriate
means.
(e) Reporting Requirement.--Each State shall submit to the
Secretary of Homeland Security, at such time and in such manner
as the Secretary of Homeland Security may prescribe, the name,
address, and such other information as the Secretary of
Homeland Security may require, concerning--
(1) each alien to whom the State issues a license
described in subsection (a); and
(2) each other individual to whom such a license is
issued, as the Secretary of Homeland Security may
require.
(f) Alien Defined.--In this section, the term ``alien'' has
the meaning given the term in section 101(a)(3) of the
Immigration and Nationality Act.
(g) Background Checks for Drivers Hauling Hazardous
Materials.--
(1) In general.--
(A) Employer notification.--Not later than 90
days after the date of enactment of this
subsection, the Director of the Transportation
Security Administration, after receiving
comments from interested parties, shall develop
and implement a process for notifying hazmat
employers designated by an applicant of the
results of the applicant's background record
check, if--
(i) such notification is appropriate
considering the potential security
implications; and
(ii) the Director, in a final
notification of threat assessment,
served on the applicant determines that
the applicant does not meet the
standards set forth in regulations
issued to carry out this section.
(B) Relationship to other background records
checks.--
(i) Elimination of redundant
checks.--An individual with respect to
whom the Transportation Security
Administration--
(I) has performed a security
threat assessment under this
section; and
(II) has issued a final
notification of no security
threat,
is deemed to have met the requirements
of any other background check that is
required for purposes of any Federal
law applicable to transportation
workers if that background check is
equivalent to, or less stringent than,
the background check required under
this section.
(ii) Determination by Director.--Not
later than 60 days after the date of
issuance of the report under paragraph
(5), but no later than 120 days after
the date of enactment of this Act, the
Director shall initiate a rulemaking
proceeding, including notice and
opportunity for comment, to determine
which background checks required for
purposes of Federal laws applicable to
transportation workers are equivalent
to, or less stringent than, those
required under this section.
(iii) Future rulemakings.--The
Director shall make a determination
under the criteria established under
clause (ii) with respect to any
rulemaking proceeding to establish or
modify required background checks for
transportation workers initiated after
the date of enactment of this
subsection.
(2) Appeals process for more stringent state
procedures.--If a State establishes its own standards
for applicants for a hazardous materials endorsement to
a commercial driver's license, the State shall also
provide--
(A) an appeals process similar to and to the
same extent as the process provided under part
1572 of title 49, Code of Federal Regulations,
by which an applicant denied a hazardous
materials endorsement to a commercial driver's
license by that State may appeal that denial;
and
(B) a waiver process similar to and to the
same extent as the process provided under part
1572 of title 49, Code of Federal Regulations,
by which an applicant denied a hazardous
materials endorsement to a commercial driver's
license by that State may apply for a waiver.
(3) Clarification of term defined in regulations.--
The term ``transportation security incident'', as
defined in part 1572 of title 49, Code of Federal
Regulations, does not include a work stoppage or other
nonviolent employee-related action resulting from an
employer-employee dispute. Not later than 30 days after
the date of enactment of this subsection, the Director
shall modify the definition of that term to reflect the
preceding sentence.
(4) Background check capacity.--Not later than
October 1, 2005, the Director shall transmit to the
Committee on Commerce, Science, and Transportation of
the Senate and the Committees on Transportation and
Infrastructure and Homeland Security of the House of
Representatives a report on the implementation of
fingerprint-based security threat assessments and the
adequacy of fingerprinting locations, personnel, and
resources to accomplish the timely processing of
fingerprint-based security threat assessments for
individuals holding commercial driver's licenses who
are applying to renew hazardous materials endorsements.
(5) Report.--
(A) In general.--Not later than 60 days after
the date of enactment of this subsection, the
Director shall transmit to the committees
referred to in paragraph (4) a report on the
Director's plans to reduce or eliminate
redundant background checks for holders of
hazardous materials endorsements performed
under this section.
(B) Contents.--The report shall--
(i) include a list of background
checks and other security or threat
assessment requirements applicable to
transportation workers under Federal
laws for which the Department of
Homeland Security is responsible and
the process by which the Secretary of
Homeland Security will determine
whether such checks or assessments are
equivalent to, or less stringent than,
the background check performed under
this section; and
(ii) provide an analysis of how the
Director plans to reduce or eliminate
redundant background checks in a manner
that will continue to ensure the
highest level of safety and security.
(h) Relationship to Transportation Security Cards.--Upon
application, a State shall issue to an individual a license to
operate a motor vehicle transporting in commerce a hazardous
material without the security assessment required by this
section, provided the individual meets all other applicable
requirements for such a license, if the Secretary of Homeland
Security has previously determined, under section 70105 of
title 46, United States Code, that the individual does not pose
a security risk.
[(h)] (i) Commercial Motor Vehicle Operators Registered to
Operate in Mexico or Canada.--
(1) In general.--Beginning on the date that is 6
months after the date of enactment of this subsection,
a commercial motor vehicle operator registered to
operate in Mexico or Canada shall not operate a
commercial motor vehicle transporting a hazardous
material in commerce in the United States until the
operator has undergone a background records check
similar to the background records check required for
commercial motor vehicle operators licensed in the
United States to transport hazardous materials in
commerce.
(2) Extension.--The Director of the Transportation
Security Administration may extend the deadline
established by paragraph (1) for a period not to exceed
6 months if the Director determines that such an
extension is necessary.
(3) Commercial motor vehicle defined.--In this
subsection, the term ``commercial motor vehicle'' has
the meaning given that term by section 31101.
SUBTITLE V--RAIL PROGRAMS
PART A--SAFETY
CHAPTER 201. GENERAL
SUBCHAPTER I. GENERAL
Sec. 20103. General authority
(a) Regulations and Orders.--The Secretary of Transportation,
as necessary, shall prescribe regulations and issue orders for
every area of railroad [safety] safety, including security,
supplementing laws and regulations in effect on October 16,
1970. When prescribing a security regulation or issuing a
security order that affects the safety of railroad operations,
the Secretary of Homeland Security shall consult with the
Secretary.
(b) Regulations of Practice for Proceedings.--The Secretary
shall prescribe regulations of practice applicable to each
proceeding under this chapter. The regulations shall reflect
the varying nature of the proceedings and include time limits
for disposition of the proceedings. The time limit for
disposition of a proceeding may not be more than 12 months
after the date it begins.
(c) Consideration of Information and Standards.--In
prescribing regulations and issuing orders under this section,
the Secretary shall consider existing relevant safety
information and standards.
(d) Waivers.--The Secretary may waive compliance with any
part of a regulation prescribed or order issued under this
chapter if the waiver is in the public interest and consistent
with railroad safety. The Secretary shall make public the
reasons for granting the waiver.
(e) Hearings.--The Secretary shall conduct a hearing as
provided by section 553 of title 5 when prescribing a
regulation or issuing an order under this chapter, including a
regulation or order establishing, amending, or waiving
compliance with a railroad safety regulation prescribed or
order issued under this chapter. An opportunity for an oral
presentation shall be provided.
(f) Tourist Railroad Carriers.--In prescribing regulations
that pertain to railroad safety that affect tourist, historic,
scenic, or excursion railroad carriers, the Secretary of
Transportation shall take into consideration any financial,
operational, or other factors that may be unique to such
railroad carriers. The Secretary shall submit a report to
Congress not later than September 30, 1995, on actions taken
under this subsection.
``Sec. 20118. Whistleblower protection for rail security matters
(a) Discrimination Against Employee.--A railroad carrier
engaged in interstate or foreign commerce may not discharge or
in any way discriminate against an employee because the
employee, whether acting for the employee or as a
representative, has--
(1) provided, caused to be provided, or is about to
provide or cause to be provided, to the employer or the
Federal Government information relating to a reasonably
perceived threat, in good faith, to security; or
(2) provided, caused to be provided, or is about to
provide or cause to be provided, testimony before
Congress or at any Federal or State proceeding
regarding a reasonably perceived threat, in good faith,
to security; or
(3) refused to violate or assist in the violation of
any law, rule or regulation related to rail security.
(b) Dispute Resolution.--A dispute, grievance, or claim
arising under this section is subject to resolution under
section 3 of the Railway Labor Act (45 U.S.C. 153). In a
proceeding by the National Railroad Adjustment Board, a
division or delegate of the Board, or another board of
adjustment established under section 3 to resolve the dispute,
grievance, or claim the proceeding shall be expedited and the
dispute, grievance, or claim shall be resolved not later than
180 days after it is filed. If the violation is a form of
discrimination that does not involve discharge, suspension, or
another action affecting pay, and no other remedy is available
under this subsection, the Board, division, delegate, or other
board of adjustment may award the employee reasonable damages,
including punitive damages, of not more than $20,000.
(c) Procedural Requirements.--Except as provided in
subsection (b), the procedure set forth in section
42121(b)(2)(B) of this subtitle, including the burdens of
proof, applies to any complaint brought under this section.
(d) Election of Remedies.--An employee of a railroad carrier
may not seek protection under both this section and another
provision of law for the same allegedly unlawful act of the
carrier.
(e) Disclosure of Identity.--
(1) Except as provided in paragraph (2) of this
subsection, or with the written consent of the
employee, the Secretary of Transportation or Secretary
of Homeland Security may not disclose the name of an
employee of a railroad carrier who has provided
information about an alleged violation of this section.
(2) The Secretary shall disclose to the Attorney
General the name of an employee described in paragraph
(1) of this subsection if the matter is referred to the
Attorney General for enforcement.
``Sec. 24316. Plans to address needs of families of passengers involved
in rail passenger accidents
(a) Submission of Plan.--Not later than 6 months after the
date of the enactment of the Surface Transportation and Rail
Security Act of 2007, Amtrak shall submit to the Chairman of
the National Transportation Safety Board, the Secretary of
Transportation, and the Secretary of Homeland Security a plan
for addressing the needs of the families of passengers involved
in any rail passenger accident involving an Amtrak intercity
train and resulting in a loss of life.
(b) Contents of Plans.--The plan to be submitted by Amtrak
under subsection (a) shall include, at a minimum, the
following:
(1) A process by which Amtrak will maintain and
provide to the National Transportation Safety Board,
the Secretary of Transportation, and the Secretary of
Homeland Security, immediately upon request, a list
(which is based on the best available information at
the time of the request) of the names of the passengers
aboard the train (whether or not such names have been
verified), and will periodically update the list. The
plan shall include a procedure, with respect to
unreserved trains and passengers not holding
reservations on other trains, for Amtrak to use
reasonable efforts to ascertain the number and names of
passengers aboard a train involved in an accident.
(2) A plan for creating and publicizing a reliable,
toll-free telephone number within 4 hours after such an
accident occurs, and for providing staff, to handle
calls from the families of the passengers.
(3) A process for notifying the families of the
passengers, before providing any public notice of the
names of the passengers, by suitably trained
individuals.
(4) A process for providing the notice described in
paragraph (2) to the family of a passenger as soon as
Amtrak has verified that the passenger was aboard the
train (whether or not the names of all of the
passengers have been verified).
(5) A process by which the family of each passenger
will be consulted about the disposition of all remains
and personal effects of the passenger within Amtrak's
control; that any possession of the passenger within
Amtrak's control will be returned to the family unless
the possession is needed for the accident investigation
or any criminal investigation; and that any unclaimed
possession of a passenger within Amtrak's control will
be retained by the rail passenger carrier for at least
18 months.
(6) A process by which the treatment of the families
of nonrevenue passengers will be the same as the
treatment of the families of revenue passengers.
(7) An assurance that Amtrak will provide adequate
training to its employees and agents to meet the needs
of survivors and family members following an accident.
(c) Use of Information.--Neither National Transportation
Safety Board, the Secretary of Transportation, the Secretary of
Homeland Security, nor Amtrak may release any personal
information on a list obtained under subsection (b)(1) but may
provide information on the list about a passenger to the family
of the passenger to the extent that the Board or Amtrak
considers appropriate.
(d) Limitation on Liability.--Amtrak shall not be liable for
damages in any action brought in a Federal or State court
arising out of the performance of Amtrak under this section in
preparing or providing a passenger list, or in providing
information concerning a train reservation, pursuant to a plan
submitted by Amtrak under subsection (b), unless such liability
was caused by Amtrak's conduct.
(e) Limitation on Statutory Construction.--Nothing in this
section may be construed as limiting the actions that Amtrak
may take, or the obligations that Amtrak may have, in providing
assistance to the families of passengers involved in a rail
passenger accident.
(f) Funding.--Out of funds appropriated pursuant to section
116(b) of the Surface Transportation and Rail Security Act of
2007, there shall be made available to the Secretary of
Transportation for the use of Amtrak $500,000 for fiscal year
2008 to carry out this section. Amounts made available pursuant
to this subsection shall remain available until expended.
SUBTITLE V--RAIL PROGRAMS
PART E--MISCELLANEOUS
CHAPTER 281. LAW ENFORCEMENT
Sec. 28101. Rail police officers
(a) In General._Under regulations prescribed by the Secretary
of Transportation, a rail police officer who is employed by a
rail carrier and certified or commissioned as a police officer
under the laws of a State may enforce the laws of any
jurisdiction in which the rail carrier owns property, to the
extent of the authority of a police officer certified or
commissioned under the laws of that jurisdiction, to protect--
(1) employees, passengers, or patrons of the rail
carrier;
(2) property, equipment, and facilities owned,
leased, operated, or maintained by the rail carrier;
(3) property moving in interstate or foreign commerce
in the possession of the rail carrier; and
(4) personnel, equipment, and material moving by rail
that are vital to the national defense.
(b) Assignment.--A rail police officer employed by a rail
carrier and certified or commissioned as a police officer under
the laws of a State may be temporarily assigned to assist a
second rail carrier in carrying out law enforcement duties upon
the request of the second rail carrier, at which time the
police officer shall be considered to be an employee of the
second rail carrier and shall have authority to enforce the
laws of any jurisdiction in which the second rail carrier owns
property to the same extent as provided in subsection (a).
SUBTITLE VII--AVIATION PROGRAMS
PART A--AIR COMMERCE AND SAFETY
SUBPART IV--ENFORCEMENT AND PENALTIES
Sec. 46301. Civil penalties
(a) General Penalty.--
(1) A person is liable to the United States
Government for a civil penalty of not more than $25,000
(or $1,100 if the person is an individual or small
business concern) 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), 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), section 47107(b) (including any
assurance made under such section), or section
47133 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 separate violation occurs under this subsection
for each day the violation (other than a violation of
section 41719) continues or, if applicable, for each
flight involving the violation (other than a violation
of section 41719).
(3) Penalty for diversion of aviation revenues.--The
amount of a civil penalty assessed under this section
for a violation 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.
(4) Aviation security violations.--Notwithstanding
paragraph (1) 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] shall be
$10,000; except that the maximum civil penalty shall be
$25,000 in the case of a person operating an aircraft
for the transportation of passengers or property for
compensation (except an individual serving as an
airman).
(5) Penalties applicable to individuals and small
business concerns.--
(A) An individual (except an airman serving
as an airman) or small business concern is
liable to the Government for a civil penalty of
not more than $10,000 for violating--
(i) 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
(ii) a regulation prescribed or order
issued under any provision to which
clause (i) applies.
(B) A civil penalty of not more than $10,000
may be imposed for each violation under
paragraph (1) committed by an individual or
small business concern related to--
(i) the transportation of hazardous
material;
(ii) the registration or recordation
under chapter 441 of an aircraft not
used to provide air transportation;
(iii) a violation of section
44718(d), relating to the limitation on
construction or establishment of
landfills;
(iv) a violation of section 44725,
relating to the safe disposal of life-
limited aircraft parts; or
(v) a violation of section 40127 or
section 41705, relating to
discrimination.
(C) Notwithstanding paragraph (1), the
maximum civil penalty for a violation of
section 41719 committed by an individual or
small business concern shall be $5,000 instead
of $1,000.
(D) Notwithstanding paragraph (1), the
maximum civil penalty for a violation of
section 41712 (including a regulation
prescribed or order issued under such section)
or any other regulation prescribed by the
Secretary by an individual or small business
concern that is intended to afford consumer
protection to commercial air transportation
passengers shall be $2,500 for each violation.
(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.
(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), 46302 (for a violation relating to
section 46504), 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. The Secretary of Homeland
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 [49
USCS Sec. Sec. 44902, 44903(d), 44907(a)-(d)(1)(A),
44907(d)(1)(C)-(f), 44908, and 44909]), 46302 (except
for a violation relating to section 46504), 46303, or a
regulation prescribed or order issued under such
chapter 449. The Secretary of Homeland Security 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 Secretary of Homeland Security 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
Secretary of Homeland Security or Administrator
initiates if--
(A) the amount in controversy is more than--
(i) $50,000 if the violation was
committed by any person before the date
of enactment of the Vision 100--Century
of Aviation Reauthorization Act;
(ii) $400,000 if the violation was
committed by a person other than an
individual or small business concern on
or after that date; or
(iii) $50,000 if the violation was
committed by an individual or small
business concern on or after that date;
(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
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--
(A) $50,000 if the violation was committed by
any person before the date of enactment of the
Vision 100--Century of Aviation Reauthorization
Act;
(B) $400,000 if the violation was committed
by a person other than an individual or small
business concern on or after that date; or
(C) $50,000 if the violation was committed by
an individual or small business concern on or
after that date.
(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 44717 and 44719-
44723), or chapter 449 (except sections 44902,
44903(d), 44904, 44907(a)-(d)(1)(A) and
(d)(1)(C)-(f), 44908, and 44909) 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 Secretary 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.
(i) Small Business Concern Defined.--In this section, the
term ``small business concern'' has the meaning given that term
in section 3 of the Small Business Act (15 U.S.C. 632).
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