[Senate Report 108-278]
[From the U.S. Government Publishing Office]
Calendar No. 536
108th Congress Report
SENATE
2d Session 108-278
======================================================================
RAIL SECURITY ACT OF 2004
___________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 2273
May 21, 2004.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred eighth congress
second session
JOHN MCCAIN, Arizona, Chairman
TED STEVENS, Alaska ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana DANIEL K. INOUYE, Hawaii
TRENT LOTT, Mississippi JOHN D. ROCKEFELLER IV, West
KAY BAILEY HUTCHISON, Texas Virginia
OLYMPIA J. SNOWE, Maine JOHN F. KERRY, Massachusetts
SAM BROWNBACK, Kansas JOHN B. BREAUX, Louisiana
GORDON SMITH, Oregon BYRON L. DORGAN, North Dakota
PETER G. FITZGERALD, Illinois RON WYDEN, Oregon
JOHN ENSIGN, Nevada BARBARA BOXER, California
GEORGE ALLEN, Virginia BILL NELSON, Florida
JOHN E. SUNUNU, New Hampshire MARIA CANTWELL, Washington
FRANK LAUTENBERG, New Jersey
Jeanne Bumpus, Staff Director and General Counsel
Rob Freeman, Deputy Staff Director
Robert W. Chamberlin, Chief Counsel
Kevin D. Kayes, Democratic Staff Director and Chief Counsel
Gregg Elias, Democratic General Counsel
Calendar No. 536
108th Congress Report
SENATE
2d Session 108-278
======================================================================
RAIL SECURITY ACT OF 2004
_______
May 21, 2004.--Ordered to be printed
_______
Mr. McCain, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 2273]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 2273) to provide increased rail
transportation security, having considered the same, reports
favorably thereon with amendments and recommends that the bill,
as amended, do pass.
Purpose of the Bill
The purpose of S. 2273 is to improve rail security by
requiring the completion of a vulnerability assessment and
security plan for the rail system, and by authorizing funds to
address immediate security needs.
Background and Needs
The terrorist bombing of 4 commuter trains in Madrid, Spain
on March 11, 2004, that resulted in 191 fatalities and 1,400
injuries, has heightened concerns about the vulnerability of
the rail system in the United States to terrorist attack. Less
than 2 weeks after the Madrid attack, an explosive device was
found buried in the bed of a passenger rail line in France, and
on April 2, a partially assembled bomb was discovered under a
high-speed rail line south of Madrid. Also on April 2, the
Department of Homeland Security (DHS) announced that it had
received uncorroborated intelligence information on possible
attacks this summer on United States cities involving trains
and buses.
Securing the United States rail system is a daunting
challenge. In 2002, rail transit ridership totaled 3.4 billion
trips.\1\ The transit system is intentionally barrier-free to
handle large numbers of passengers efficiently and
conveniently, but this characteristic makes transit more
vulnerable to terrorist acts. Another 23 million passengers
rode Amtrak, the nation's intercity passenger rail service
provider. The nation's freight rail network consists of more
than 140,000 miles of track, over which nearly 28 million
carloads move annually, including over 9 million trailers and
containers and 1.7 million carloads of hazardous materials and
hazardous waste.\2\ Such far-flung operations preclude around-
the-clock monitoring of all track, trains, and facilities.
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\1\ Federal Transit Administration, National Transit Database,
2002.
\2\ Association of American Railroads, Railroad Facts, 2003
Edition.
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Primary regulatory jurisdiction over rail security rests with
DHS, while jurisdiction over rail safety rests with the Federal
Railroad Administration (FRA) and the Research and Special
Programs Administration (RSPA) within the Department of
Transportation (DOT). FRA has jurisdiction over the safety of
freight railroads, Amtrak, the Alaska Railroad, and 18 commuter
rail authorities, including New Jersey Transit, Metro-North,
and the Long Island Railroad in the New Jersey/New York City
area; Metrolink in Los Angeles; and Caltrain in San Francisco.
RSPA is responsible for the regulation of hazardous materials
transportation by all modes, including the development of
container and packaging standards and testing procedures.
Because safety and security matters often overlap and because
of DOT's longstanding expertise with respect to rail safety,
the Homeland Security Act of 2002 (P.L. 107-296) which created
DHS, preserved a role for DOT in certain security matters. The
law requires that DHS consult with DOT on security regulations
or orders that may affect rail safety or the safety of
hazardous materials transportation. Further, the Act extended
to security matters the same level of Federal preemption that
applies to rail safety and hazardous materials transportation
safety.\3\
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\3\ Federal law (49 USC 20106) states that a State may only enforce
more stringent or additional requirements than Federal laws or
regulations if such: (1) is necessary to eliminate or reduce an
essentially local safety or security hazard; (2) is not incompatible
with a Federal law or regulation; and (3) does not unreasonably burden
interstate commerce. With respect to hazardous materials, Federal law
(49 USC 5125) stipulates that State law is preempted if (1) complying
with both the State law and the Federal requirement is not possible, or
(2) the State requirement is an obstacle to carrying out Federal law
and regulations. Further, State laws with respect to the classification
of hazardous materials; packing, labeling, and placarding; and
execution of shipping documents are preempted unless they are
``substantively the same'' as Federal regulations.
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The Senate Committee on Commerce, Science, and Transportation
(Committee or Commerce Committee) has jurisdiction over the
rail safety program administered by FRA and rail security
matters administered by DHS. The Senate Committee on Banking,
Housing, and Urban Affairs (Banking Committee) has jurisdiction
over public transportation matters, including rail, bus, and
paratransit services. Transit safety however, other than for
commuter authorities subject to FRA safety regulations, has not
been widely regulated by the Federal government. On May 6, the
Banking Committee reported legislation to address transit
security. Its proposal may be joined with the Rail Security Act
of 2004 on the Senate floor to form a comprehensive rail and
transit security improvement package.
Major Security Issues
The Commerce Committee's March 23 hearing on the state of
rail security revealed a number of important security issues,
including the need for a coordinated rail security initiative
and the need to protect critical railroad infrastructure and
the surrounding public areas.
(1) Need for a coordinated rail security initiative.--Only
modest resources have been dedicated to maritime and surface
transportation security over the past 2\1/2\ years compared to
the investments made to secure the airways. While the Federal
Transit Administration (FTA), individual commuter agencies,
Amtrak, and the freight railroads have, on their own
initiative, taken steps to safeguard passengers, facilities,
and cargo, rail security efforts remain fragmented. DHS has
still not signed memorandums of agreement (MOAs) with DOT as
recommended by the General Accounting Office (GAO) to make
clear each department's roles and responsibilities with respect
to rail security. Further, the Transportation Security
Administration's (TSA's) Maritime and Land Security Division
has yet to complete a threat and vulnerability assessment for
the rail system and prepare an integrated security plan that
reflects the unique characteristics of passenger and freight
rail operations. The Maritime and Land Division is pursuing a
number of individual projects, but does not appear to have an
overall strategy or comprehensive national plan for improving
rail security. Additionally, DHS does not appear to be
effectively coordinating ongoing rail security initiatives
undertaken by the railroads, State, and local authorities, and
others in order to assist with the promulgation of best
practices in security. This has led to a patchwork of different
approaches to improving security.
(2) Need to protect critical infrastructure.--A terrorist
attack on the nation's rail system could cripple freight and
commuter transportation. On a ton-mile basis, the nation's
freight railroads carry nearly 42 percent of all intercity
freight, including 65 percent of all coal shipments, 70 percent
of all automobiles, and 30 percent of all grain shipments. Even
the brief service disruptions following the 2001 terrorist
attacks caused emergencies for several cities awaiting rail
deliveries of chlorine used to purify their water.
Shortly after the 2001 terrorist attacks, the freight rail
industry, with the participation of a number of shipper
organizations, conducted a nationwide vulnerability assessment
that resulted in the identification of more than 1,300
facilities considered critical infrastructure requiring
heightened security protection. A number of these facilities
are included on the Information Analysis and Infrastructure
Protection (IAIP) Directorate's broader list of critical
infrastructure that includes nuclear facilities, chemical
plants, and other high-risk targets.
In general, the freight railroads are not seeking Federal
security funding. However, the Association of American
Railroads has indicated that at heightened states of alert, the
freight rail industry will need assistance from the National
Guard to secure critical assets. In addition, the freight
railroads support Federal aid for research regarding protective
measures and emergency response protocols, and Federal
reimbursement for extraordinary measures already taken, or
which may be required by future Federal mandates.
Amtrak serves over 500 train stations, the majority of which
are owned by cities, States, and freight railroads. However,
about 135 stations are owned by Amtrak, including Penn Station
in New York, which is used by 400,000 commuters and intercity
rail customers daily. Amtrak also owns and operates the
Northeast Corridor, the most heavily traveled passenger rail
corridor in the country, with over 1,200 trains per day,
including over 1,000 trains operated by commuter authorities.
In the days immediately following the September 11, 2001,
terrorist attacks, Amtrak requested $3.15 billion in emergency
funding ``safety, security and capacity'' improvements. Amtrak
subsequently submitted a modified request without the capacity
expansion elements for $515 million for system-wide security
upgrades, $1 billion to complete life-safety work in tunnels
along the Northeast corridor, and $254 million to renovate the
Thames and Niantic bridges in Connecticut and implement several
other capital improvements.
The details of this modified plan, when they later became
available, revealed that Amtrak planned, among other things, to
``expand'' its aviation unit by purchasing a helicopter, and to
install 6 cameras on every interlocking on the Northeast
Corridor. Due to continuing concerns about Amtrak's security
investment plan, Senator McCain, on January 13, 2003, asked FRA
and TSA to assist Amtrak in developing both a security plan and
a revised security investment plan. On April 10, 2003, Amtrak
submitted a revised investment plan recommending funding for
$110 million for a number of specific security improvements.
That request was updated by Amtrak on March 19 in preparation
for the Committee's March 23 hearing on railroad security.
------------------------------------------------------------------------
Amtrak Security Investment Plan (dated March 19, 2004) millions
of $
------------------------------------------------------------------------
Repair doors (New York tunnels)............................... $4.0
Secure major tunnel access points............................. $28.8
Secure Amtrak trains.......................................... $0.6
Back-up dispatch & control centers............................ $46.2
Secure stations............................................... $8.0
Watch list capability......................................... $0.1
Train tracking, communications, and critical incident response $15.3
Additional police officers.................................... $5.1
Emergency Preparedness Expansion.............................. $0.5
TOTAL......................................................... $109.7
------------------------------------------------------------------------
Source: Amtrak.
In addition to these items is the well-documented need to
make fire and life-safety improvements in the New York Penn
Station tunnels. Narrow, spiral staircases and crumbling walls
in the existing tunnels are inadequate to support the
evacuation of passengers and ingress by emergency responders in
the event of a train accident or tunnel fire. Existing
ventilation systems in the tunnels cannot remove smoke or heat
effectively. The total cost of this project is estimated at
$898 million. Amtrak received an appropriation of $100 million
for the tunnel work in the Department of Defense and Emergency
Supplemental Appropriations for Recovery from andResponse to
Terrorist Attacks on the United States Act 2002 (P.L. 107-117). Over
the past 2 years, about $75 million of this funding has been obligated.
According to the Department of Transportation Inspector General (DOT
IG), New Jersey Transit has contributed $25 million and the Long Island
Railroad (LIRR) has agreed to contribute $183 million to phase I of the
2-phase project. Funding needed to complete the project on schedule by
2013 is $570 million. The Long Island Railroad is expected to
contribute additional funding, perhaps as much as 50 percent of
remaining project costs, through bonds issued by New York State. In
addition to the Penn Station tunnels, $100 million is needed to address
life-safety work in Amtrak's tunnels in Baltimore, MD, and Washington,
D.C.
(3) Need to enhance the security of hazardous materials
transportation.--The September 11 attacks resulted in a
heightened interest in the safe transportation of hazardous
materials. According to the Association of American Railroads
(AAR), railroads move approximately 1.7 million carloads of
hazardous materials and hazardous waste each year. Railroads
and trucks carry approximately the same number of ton-miles of
hazardous materials, but railroads account for only 5 percent
of all hazardous materials incidents. The rail industry's
safety record in this area is very good, with 99.996 percent of
hazardous material moved to destination without incident. Over
the past 10 years, hazardous materials releases have declined
35 percent.
Despite a commendable safety record, government and industry
officials recognize that hazardous materials shipments could be
an attractive target for terrorism. FRA, working with DHS, has
initiated two research projects aimed specifically at
increasing the safety of rail tank cars carrying toxic-
inhalation chemicals such as anhydrous ammonia, used
extensively in farming, and chlorine. One of the projects
investigates ways to improve the integrity of the tank cars
used in the transportion of such products. The other is an
investigation of methods to detect potential tank car breaches
and transmit such information to the train crew and other
responsible parties.
Concerns about toxic-inhalation chemicals have also increased
as a result of a serious accident in Minot, North Dakota on
January 18, 2002. In that accident, 31 cars of a 112-car train,
including 15 cars carrying anhydrous ammonia, derailed and 8 of
the cars ruptured. One person died and 11 others sustained
serious injuries. The National Transportation Safety Board
(NTSB) concluded that the type of steel used for the tank
shells of the Minot cars contributed to the ruptures. Nearly 60
percent of the pressurized tank cars in service today were
built using the same type of non-normalized steel as the cars
that ruptured in Minot, raising concern about the safety and
security of those cars. The NTSB indicated that the cars, based
on their average useful life, could remain in service until
2039.
Actions to address hazardous materials transportation
security have also been recommended by GAO. In April 2003, GAO
issued a report entitled Rail Safety and Security: Some Actions
Already Taken to Enhance Rail Security, but Risk-Based Plan
Needed, recommending that DHS and RSPA work together to develop
a risk-based security plan to protect hazardous shipments.
(4) Research and development needs.--Witnesses at the
Committee's March 23 hearing cited the need for additional
research and development to test technologies and techniques
tailored to the unique characteristics of passenger and freight
rail transportation. These include technologies for sealing
rail cars, communication-based train controls (including
positive train control technology), explosive detection
technologies, and new emergency response techniques.
Summary of Provisions
Sections 2 and 8 of the Rail Security Act of 2004 addresses
the current lack of a coordinated rail security effort. Section
2 would direct the Under Secretary for Border and
Transportation Security (BTS) to conduct a vulnerability
assessment for rail transportation and make recommendations for
improving rail security within 180 days of enactment. All
carriers subject to FRA safety regulations, including commuter
railroads, would be included in the assessment. DHS would be
required to submit a report to the Senate Committee on
Commerce, Science, and Transportation and the House of
Representatives Committee on Transportation and Infrastructure
on the assessment and recommendations for improving rail
security, including recommendations for improving the security
of rail infrastructure; deploying equipment to detect
explosives and chemical or biological weapons; training
employees in terrorism prevention, passenger evacuation, and
response activities; and deploying surveillance equipment. The
report also would identify the immediate and long-term costs of
such measures.
The Committee encourages BTS to use the expertise of IAIP and
other entities at DHS in preparing the rail vulnerability
assessment and, to the extent practicable, to ensure that the
rail assessment can be integrated into the overarching critical
infrastructure assessments IAIP is designing and conducting.
Further, the Committee intends that the cost estimates in the
report should include recommendations about how the costs
should be allocated between the public and private sectors.
It is also the Committee's intent that the Under Secretary,
whether through TSA or another office in BTS, be responsible
for coordinating rail security, including initiatives of other
directorates within DHS; of FRA and other DOT agencies; of
State and local authorities; and of the rail carriers
themselves. DHS has testified that it is addressing homeland
security based on risk, looking across industries and modes of
transportation. However, each directorate at DHS is focused on
particular aspects of security: critical infrastructure, cyber
security, emergency preparedness, and border security, among
others, and the Committee remains concerned about
accountability. To that end, it is important that all of these
efforts with respect to rail security be coordinated through
BTS to ensure the overall program is effective and that gaps or
weaknesses in security are being properly addressed.
Section 5 of the legislation would require the completion of
an analysis of the feasibility of passenger, baggage, and cargo
screening on passenger trains, as well as a pilot program of
random screening, at 5 Amtrak stations. The Under Secretary
would be required to attempt to give preference to locations at
the highest risk of terrorist attack in selecting stations for
the pilot, and to achievea distribution of stations in terms of
geographic location, size, passenger volume, and whether the station is
used by commuter rail passengers as well as intercity passengers. The
Committee expects DHS to undertake the pilot program in a way that
minimizes inconvenience and delays for passengers.
Section 8 of the legislation would require that DOT and DHS
sign MOAs to clarify each department's roles and
responsibilities with respect to rail safety and security
within 60 days following enactment. MOAs have been signed
between DOT and the Coast Guard; TSA and the Federal Aviation
Administration; DHS and the Department of Agriculture; DHS and
the Department of Energy; DHS and the Department of Health and
Human Services; DHS and the Department of Justice and FBI; DHS
and the Department of Defense; and DHS and the CIA. It is
unclear why MOAs have not been signed between DHS and DOT,
other than ongoing jurisdictional concerns between the two
agencies. Congress explicitly preserved a role for DOT in rail
security when DHS was created, and the Commerce Committee
believes MOAs are needed to make certain that the departments
are coordinating their respective efforts and are not at cross-
purposes. This provision was also included in legislation
approved by the full Senate last November to reauthorize the
rail safety program.\4\
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\4\ Section 205 of S. 1402, the Federal Railroad Safety
Improvement Act.
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Section 8 would define DOT's authority to issue regulations
and orders governing ``every area of railroad safety'' to
include ``security''. Clarification of FRA's jurisdiction is
necessary to ensure that any regulations and orders which may
have some carryover into the security arena will withstand
legal challenge and protracted litigation by outside parties.
This change is consistent with the Homeland Security Act of
2002, which set forth Congress's intention that the definition
of ``safety'' include ``security''.
Sections 5, 10, and 11 of the Rail Security Act of 2004 would
authorize security funding for Amtrak. Section 5 would
authorize funds for the fire and life-safety work in the
Northeast Corridor tunnels ($670 million) between fiscal years
(FYs) 2005 and 2009, and encourages DOT to seek financial
contributions from other users. For example, the Long Island
Railroad has indicated it will contribute to phase II of the
Penn Station tunnel work, and the Committee fully expects DOT
to seek such contributions.
Section 10 of the bill would authorize $63.5 million of the
$110 million requested by Amtrak in its latest security
investment plan for immediate system-wide security upgrades.
The legislation does not authorize funding of $46.2 million
requested by Amtrak to consolidate its train dispatching
centers at Wilmington, DE, where Amtrak's Consolidated National
Operations Center (CNOC) is located, and to construct a new
facility to house a back-up for both the dispatching centers
and CNOC. The project is included in Amtrak's 5 year capital
plan but is not scheduled for completion until fiscal year
2008. The Committee believes Amtrak needs to implement back-up
for its train dispatching centers more quickly. Further, while
Amtrak has indicated that these operations need to be
consolidated for security reasons, the dispatching center in
New York City would not be consolidated under Amtrak's plan,
and it is unclear how the Boston dispatching center would be
consolidated since that facility is owned by the Massachusetts
Bay Transportation Authority.
Chairman McCain and Ranking Member Hollings have written FRA
to ask that the RAND Corporation, which is currently providing
consulting services on Amtrak's security plan, investigate
options for creating back-up facilities for Amtrak's
dispatching centers in the short-term, perhaps by utilizing
Amtrak's existing towers or modifying the existing dispatching
centers to back up each other. Further, FRA has been asked to
have RAND comment on Amtrak's proposed longer-term solution and
whether this is the most cost-effective and appropriate plan.
Based on RAND's recommendations and the rail security plan to
be developed by DHS, Amtrak could seek a grant under section 11
of the legislation, which authorizes up to $65 million in
additional funds for Amtrak for additional security
enhancements, to implement a project to create redundancy for
its dispatching centers.
All funds made available to Amtrak would flow through DOT,
and Amtrak would be required to submit a project management
plan for each grant received, addressing project budget,
construction schedule, staff organization, document control,
change order procedure, and other matters DOT deems
appropriate. These conditions are similar to those put in place
for the last 2 years with respect to Amtrak's annual
appropriation and have proved effective in avoiding further
financial crises at Amtrak and ensuring taxpayer dollars are
spent as intended. The conditions also respond to criticisms
leveled at DOT by GAO in a recent report on the Northeast
Corridor Improvement Project. The report, entitled Intercity
Passenger Rail: Amtrak's Management of Northeast Corridor
Improvements Demonstrates Need for Applying Best Practices,
issued in February 2004, criticized FRA for not seeking
authority to properly oversee the Northeast Corridor
Improvement Project or other Amtrak capital projects.
The Committee has included provisions in this legislation to
ensure that funding for Amtrak is distributed equitably. Most
Amtrak-owned property is located on the Northeast Corridor, yet
there are many Amtrak-owned stations and facilities in other
areas of the country that face the same security threats and
should receive a portion of the funding authorized by the bill.
Section 11 of the Rail Security Act of 2004 would authorize a
total of $250 million for FY 2005 for rail security enhancement
grants to freight railroads, Amtrak, the Alaska Railroad,
hazardous materials shippers, and owners of rail cars used in
the transportation of hazardous materials. The grants are
intended to be used for a wide variety of potential projects, a
number of which are described in the bill. However, it is the
Committee's intention that the highest priority be given to
projects that fund security improvements which address
vulnerabilities identified by DHS's vulnerability assessment
under section 2. It is also the Committee's intention that
grants be available to provide reimbursement for expenses
already incurred, to the extent considered appropriate by DHS.
To ensure that the bill's grant programs are implemented
expeditiously and that grant applications are reviewed in a
timely manner, section 12 would direct DHS to issue procedures
for the grant programs within 90 days following enactment.
Section 13 of the legislation would establish a research and
development (R&D) program funded at $50 million in each of FYs
2005 and 2006. The Committee is aware of numerous potential R&D
projects related to rail security, a number of which are
described in the bill. The Committee intends that the highest
priority be given to projects that fund security improvements
which address vulnerabilities identified by DHS's vulnerability
assessment under section 2.
One of the specific purposes of the grant programs under
sections 11 and 13 of the legislation is to improve the
security of hazardous materials transportation. In addition,
section 14 would incorporate, in modified form, the NTSB's
recommendations resulting from the Minot, ND accident. The
section would require each railroad using continuous welded
rail to include procedures in its safety program to improve the
identification of cracks in rail joint bars and direct FRA to,
among other requirements, initiate a rulemaking to develop
appropriate design standards for pressurized tank cars and
complete an assessment of the impact resistance of the steel
used in pressurized tank cars built before 1989.
Legislative History
The bill was introduced as S. 2273 by Senators McCain,
Hollings, Hutchison, Snowe, Fitzgerald, Inouye, Rockefeller,
Breaux, Dorgan, Lautenberg, Kennedy, Clinton, Schumer, Biden,
and Carper on April 1, 2004. The bill was referred to the
Committee on Commerce, Science, and Transportation.
On April 8, 2004, the Committee ordered S. 2273 to be
favorably reported to the Senate with 1 amendment. By voice
vote, the Committee adopted an amendment offered by Senators
McCain and Hollings making a number of technical changes and
corrections to the underlying legislation. The amendment also
makes several modifications to the bill based on discussions
with members of the Committee and their staffs.
Several members expressed concern about security at the
approximately 400 train stations not owned by Amtrak. To
address this concern, the amendment offered by Senators McCain
and Hollings would make State and local governments eligible
for grants under section 11, and would enlarge the size of the
grant program from $250 million to $350 million. The amendment
also would make colleges, universities, and research centers
eligible for grants.
Also at the request of several members, including Senators
Hutchison, Cantwell, and Boxer, the amendment would modify the
grant program to ensure that funds would be distributed
equitably, taking into account geographic location, passenger
volume, and whether a station is used by commuter passengers as
well as by Amtrak. Further, the amendment would require the
Under Secretary for Border and Transportation Security to
encourage non-Federal financial participation in awarding
grants.
The amendment also adopts a study requested by Senator Boxer
on the impact of blocked railroad grade crossings on security.
A similar amendment was added at Senator Boxer's request last
year to rail safety legislation reported by the Committee in
July 2002 and passed by the full Senate last November.
Further, to prevent the oversight requirements applicable to
Amtrak from holding up the distribution of funds for the tunnel
fire and life-safety work indefinitely, the amendment would
establish deadlines for Amtrak and DOT to complete work on
developing and reviewing project plans.
Finally, the amendment would prohibit a railroad from
discharging or discriminating against an employee for bringing
to the railroad's attention a perceived threat to security, or
for testifying before Congress or at any Federal or State
proceeding on a perceived threat to security.
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:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 18, 2004.
Hon. John McCain,
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. 2273, the Rail
Security Act of 2004.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Rachel
Milberg.
Sincerely,
Elizabeth M. Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
S. 2273--Rail Security Act of 2004
Summary: S. 2273 would authorize the Under Secretary of
Homeland Security for Border and Transportation Security to
provide grants to Amtrak for systemwide security upgrades,
provide grants to the freight rail industry for security
improvements, research ways to improve rail transportation,
assess the security of rail transportation in the United
States, and conduct a pilot program for screening passengers
and baggage at five Amtrak stations. The bill also would
authorize the Secretary of Transportation to provide grants to
Amtrak for improving tunnels in New York, Baltimore, and
Washington, D.C., and direct Amtrak to develop a plan for
addressing the needs of families of Amtrak passengers involved
in an accident that results in the loss of life.
For all of those activities, the bill would authorize the
appropriation of almost $1.2 billion over the 2005-2009 period.
Assuming appropriation of the authorized amounts, CBO estimates
that implementing these provisions would cost almost $1.2
billion over the 2004-2009 period. In addition, the bill would
require the completion of several studies related to rail
security and safety. Assuming appropriation of the necessary
amounts, CBO estimates that completing these studies would cost
$3 million over the 2005-2006 period.
CBO estimates that enacting the legislation would not
affect direct spending or revenues.
S. 2273 would impose intergovernmental and private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA),
but CBO estimates that the cost of those mandates would not
exceed the annual thresholds established by UMRA ($60 million
for intergovernmental mandates and $120 million for private-
sector mandates in 2004, adjusted annually for inflation).
Other provisions of the bill would benefit state and local
governments and the private sector by providing grants for
security and safety improvements to rails, locomotives, and
passenger facilities. Any costs to state and local
governmentsassociated with those grants would result from complying
with conditions of aid or would result from negotiated agreements with
Amtrak.
Estimated Cost to the Federal Government: The estimated
budgetary impact of the legislation is shown in the following
table. The costs of this legislation fall within budget
function 400 (transportation).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2005 2006 2007 2008 2009
----------------------------------------------------------------------------------------------------------------
CHANGES TO SPENDING SUBJECT TO APPROPRIATION \1\
Grants for security improvements:
Authorization level............................................ 535 118 118 118 195
Estimated outlays.............................................. 285 268 218 118 195
Research to improve security:
Authorization level............................................ 50 50 0 0 0
Estimated outlays.............................................. 5 27 38 21 9
Screening pilot program:
Authorization level............................................ 5 0 0 0 0
Estimated outlays.............................................. 3 2 0 0 0
Family assistance plan:
Authorization level............................................ 1 0 0 0 0
Estimated outlays.............................................. 1 0 0 0 0
Risk assessment and studies:
Authorization level............................................ 7 1 0 0 0
Estimated outlays.............................................. 7 1 0 0 0
Total charges:
Esimated Authorization level................................... 598 169 118 118 195
Estimated outlays.............................................. 301 297 256 139 204
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\1\ In 2002, the Congress provided $100 million to Amtrak for security improvements.
Basis of estimate: For this estimate, CBO assumes that the
legislation will be enacted in fiscal year 2004 and that the
authorized amounts will be appropriated near the start of each
fiscal year. Estimates of spending are based on information
from Amtrak, the Department of Transportation, and historical
spending patterns of similar programs.
S. 2273 would authorize grants to Amtrak and the freight
rail industry floor security improvements, authorize the Under
Secretary of Homeland Security for Border and Transportation
Security to research ways to improve rail transportation,
authorize the Under Secretary to conduct a pilot program for
screening rail passengers and their baggage, direct Amtrak to
develop a plan for assisting families of Amtrak passengers
involved in an accident, authorize a risk assessment of rail
transportation, and require several other studies related to
rail safety and security.
Grants for Security Improvements. S. 2273 would authorize
the appropriation of $670 million over the 2005-2009 period for
security improvements to Amtrak tunnels in New York, Baltimore,
and Washington, D.C. The bill also would authorize the
appropriation of $63.5 million in 2005 for systemwide
improvements to Amtrak security. Finally, the bill would
authorize the appropriation of $350 million in 2005 for the
Under Secretary of Homeland Security for Border and
Transportation Security to provide grants to Amtrak, the Alaska
Railroad, and the freight rail industry for security
improvements. Assuming appropriation of the authorized amounts,
CBO estimates that implementing these provisions would cost
$1.1 billion over the 2005-2009 period.
Research to Improve Security. S. 2273 would authorize the
appropriation of $100 million over the 2005-2006 period for the
Under Secretary of Homeland Security for Border and
Transportation Security to research ways to improve rail
transportation security. Assuming appropriation of the
authorized amounts, CBO estimates that implementing this
provision would cost $100 million over the 2005-2009 period.
Screening Pilot Program. S. 2273 would authorize the
appropriation of $5 million in 2005 for the Under Secretary of
Homeland Security for Border and Transportation Security to
study the cost and feasibility of screening Amtrak passengers,
baggage, and cargo. As part of this study, the Under Secretary
would conduct a pilot program for screening passengers and
baggage at five Amtrak stations. Assuming appropriation of the
authorized amounts, CBO estimates that implementing this
program would cost $5 million over the 2005-2006 period.
Family Assistance Plan. S. 2273 would require Amtrak to
develop a plan for addressing the needs of families of Amtrak
passengers involved in an accident that results in the loss of
life. The bill would authorize the appropriation of $500,000 in
2005 for Amtrak to develop this plan, and assuming
appropriation of the authorize amount, CBO estimates that
implementing this provision would cost $500,000 in 2005.
Risk Assessment and Studies. S. 2273 would direct the Under
Secretary of Homeland Security for Border and Transportation
Security to assess the vulnerability of rail transportation in
the United States. For this risk assessment, the bill would
authorize the appropriation of $5 million in 2005. S. 2273 also
would require a review of how well current rail regulations
address security needs; a study of rail security in Japan, the
European Union, and other countries; an examination of the
current system for screening rail passengers and baggage that
travel across the United States' border with Canada; a study of
the impact of highway-rail crossings on emergency responders;
and an analysis of the impact resistance of the steel shells of
pressurized tank cars constructed before 1989. Assuming
appropriation of amounts authorized for the risk assessment as
well as additional amounts necessary to complete the other
studies, CBO estimates that implementing these provisions would
cost about $8 million over the 2005-2006 period.
Intergovernmental and private-sector impact: S. 2273 would
impose intergovernmental and private-sector mandates as defined
in UMRA, but CBO estimates that the cost of those mandates
would not exceed the annual thresholds established by UMRA ($60
million for intergovernmental mandates and $120 million for
private-sector mandates in 2004, adjusted annually for
inflation). Other provisions of the bill would benefit state
and local governments and the private sector by providing
grants for security and safety improvements to rails,
locomotives, and passenger facilities. Any costs to state and
local governments associated with those grants would result
from complying with conditions of aid or would result from
negotiated agreements with Amtrak.
Planning for Amtrak accidents
Section 9 would impose a private-sector mandate on Amtrak,
the national passenger rail carrier, by requiring Amtrak to
submit a plan addressing the needs of the families of
passengers involved in fatal accidents. Amtrak would have to
submit the plan to the National Transportation Safety Board
(NTSB) and the Secretary of Transportation no later than six
months after the bill's enactment. As a part of the plan, and
in the event of a fatal accident, Amtrak would be required,
among other things, to provide a passenger list to federal
authorities and a toll-free hotline for use by families of
passengers.
The bill would authorize an appropriation of $500,000 to
the Department of Transportation for fiscal year 2005 to assist
Amtrak in carrying out this mandate. Based on information from
an Amtrak representative, CBO estimates that the additional
costs of the mandate would not exceed this amount. The bill
also would exempt Amtrak from certain liability in federal or
state court for damages due to its release of a passenger list
or passenger information pursuant to the plan submitted to the
NTSB. Because of this exemption, Amtrak may experience some
savings.
This liability provision is a preemption of state law, and
thus an intergovernmental mandate as defined in UMRA. CBO
estimates that this preemption would not affect the budgets of
state or local governments because, while it would limit the
application of state liability law, it would require no
additional spending.
Passenger screening pilot
Section 5 would require the Under Secretary of Homeland
Security for Border and Transportation Security, in cooperation
with the Secretary of Transportation, to conduct a pilot
program to test random security screening of passengers and
baggage at five passenger rail stations that Amtrak serves. As
part of this program, the Under Secretary would require that
intercity rail passengers produce a government-issued
photographic identification. Those passengers that use the
designated stations that do not have such an identification
would be required to obtain one. CBO estimates that the cost to
comply with this private-sector mandate would be small.
Whistle blower protection
The bill also would prohibit rail carriers, whether public
or privately owned, from discharging or discriminating against
any employee who reports a perceived threat to security or
testifies before the Congress or at any federal or state
proceeding regarding such a threat. Such a prohibition would
constitute both an intergovernmental and private-sector mandate
under UMRA. Under current law, employees are protected if they
report any safety issues. Because compliance with these broader
whistle-blower protections would involve only a small
adjustment in administrative procedures, CBO estimates that
public and private rail carriers would incur only minimal
additional costs.
Estimate prepared by: Federal Costs: Rachel Milberg. Impact
on State, Local and Tribal Governments: Gregory Waring. Impact
on the Private Sector: Jean Talarico.
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
The whisteblower protections in the legislation could affect
the approximately 235,000 employees of the rail industry,
including the 185,000 employees of the freight rail industry
and the 55,000 employees of Amtrak, the Alaska Railroad, and
commuter authorities subject to FRA safety regulations.\5\ In
addition, the grants under section 11 of the bill would be
available to cities and States, colleges and universities,
shippers of hazardous materials, and owners of rail cars used
to transport hazardous materials.
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\5\ Employment estimates are for 2002.
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ECONOMIC IMPACT
S. 2273 would authorize appropriations of $595 million for FY
2005, $168 million for FY 2006, $118 million for each of FYs
2007 and 2008, and $195 million for FY 2009. These funding
levels are not expected to have an inflationary impact on the
nation's economy.
PRIVACY
Section 9 of the legislation would require Amtrak to maintain
a list of the names of passengers aboard its trains and provide
the list to the NTSB and the Secretary of Transportation, at
their request, in the event of an accident that results in a
loss of life. The provision would prohibit Amtrak, the NTSB,
and the Secretary of Transportation from releasing information
on the list, but would allow them to provide information about
a passenger on the list to the passenger's family.
Section 17 of S. 2273 would establish certain whistleblower
protections for railroad employees with respect to security
matters. The provision would specifically prohibit the
Secretary of Transportation from disclosing the name of an
employee who has provided information about a violation of the
protections unless the employee consents. If the matter has
been referred to the Attorney General for enforcement, the
Secretary would be required to disclose the name of the
employee.
PAPERWORK
Section 10, 11, and 12 of the legislation create grant
programs which may create additional paperwork for applicants
and for DOT in administering the program. In addition, the
oversight provisions applicable to Amtrak may create additional
paperwork for Amtrak and DOT.
Section-by-Section Analysis
Section 1. Short title; table of contents
This section provides that the title of the Act is the ``Rail
Security Act of 2004'' and lists the table of contents for the
bill.
Sec. 2. Rail transportation security risk assessment
Section 2 would require the Under Secretary for Border and
Transportation at DHS, in consultation with the Secretary of
Transportation, to complete a vulnerability assessment for rail
transportation. The assessment would encompass all railroads
subject to FRA safety regulations. The assessment would include
identification of critical infrastructure, threats to those
assets, identification of vulnerabilities that are specific to
the rail transportation of hazardous materials, and
identification of security weaknesses.
Within 180 days following enactment, the Under Secretary
would be required to submit a report on the assessment and
recommendations for improving rail security to the Senate
Committee on Commerce, Science, and Transportation and the
House of Representatives Committee on Transportation and
Infrastructure, including recommendations for improving the
security of rail infrastructure, deploying equipment to detect
explosives and chemical or biological weapons, training
employees in terrorism prevention, passenger evacuation, and
response activities, and deploying surveillance equipment. The
report also would identify the immediate and long-term costs of
such measures. The report would be required to include a plan
for the government to provide increased security support for
freight and intercity passenger railroads at high or severe
threat alert levels. Additionally, the report would be required
to include a plan for coordinating rail security initiatives
undertaken by the public and private sectors. The report could
be submitted in both classified and redacted formats. The rail
security assessment would have to be updated every 2 years. An
appropriation of $5 million is authorized for FY 2005 to carry
out the section.
Sec. 3. Rail security
Under the current statute, railroad police officers are
authorized to operate only on the property of the railroad that
has hired them. This section would allow them to exercise
jurisdiction on the property of another railroad, enabling
officers in pursuit near arailroad interchange point to
continue their pursuit on another railroad.
Sec. 4. Study of foreign rail transport security programs
The section would direct GAO to complete a study of rail
passenger transportation security programs in other countries
within 1 year following enactment of this Act to identify
effective security initiatives, including passenger screening
procedures, and to submit a report to the Commerce Committee
and the House of Representatives Committee on Transportation
and Infrastructure. The report would include an assessment of
whether it is feasible to implement such measures in the United
States.
Sec. 5. Passenger, baggage, and cargo screening
Section 5 would direct the Undersecretary for Border and
Transportation Security, in cooperation with the Secretary of
Transportation, to analyze the cost and feasibility of
requiring security screening for passengers, baggage and cargo
on passenger trains and submit a report to the Senate Committee
on Commerce, Science, and Transportation and the House of
Representatives Committee on Transportation and Infrastructure
within one year following enactment of this Act. As part of the
study, a pilot program of random screening of passengers and
baggage would be completed at 5 Amtrak stations for the purpose
of testing a range of explosives detection technologies and
requiring passengers to produce valid identification prior to
boarding trains. The Under Secretary would be required to
attempt to give preference to locations at the highest risk of
terrorist attack in selecting stations for the pilot, and to
achieve a distribution in terms of geographic location, size,
passenger volume, and whether the station is used by commuter
rail passengers as well as intercity passengers. The section
authorizes an appropriation of $5 million for FY 2005 for this
purpose.
Sec. 6. Certain personnel limitations not to apply
Section 6 would make clear that any statutory limitation on
the number of employees at TSA would not apply to the extent
that such employees would be responsible for implementing the
provisions of this Act.
Sec. 7. Fire and life-safety improvements
Section 7 would authorize the Secretary of Transportation to
make grants to Amtrak to address longstanding fire and life-
safety work in tunnels along the Northeast Corridor,
specifically:
$570 million for the New York Penn Station
tunnels;
$57 million for the Union tunnel and the
Baltimore & Potomac tunnel in Baltimore; and
$40 million for the Washington, D.C. Union
Station tunnels.
Funds for the projects would be authorized for each of FYs
2005 through 2009, but would remain available until expended.
The Secretary would be required to seek financial contributions
or commitments from other users of the tunnels, if feasible.
Additionally, the bill would authorize $3 million to the
Secretary of Transportation in FY 2005 for the preliminary
design for a new tunnel in Baltimore.
Funds would be made available to Amtrak through a grant
agreement. Funding would be contingent on the Secretary
approving Amtrak's engineering and financial plan for the
tunnel projects and Amtrak would be required, for each project
funded, to have in place a project management plan addressing
the budget, construction schedule, change order procedures, and
other matters the Secretary deems appropriate. The Secretary of
Transportation would be required to complete the review of such
plans within 45 days. If the Secretary finds the plan to be
deficient or incomplete, Amtrak would then have 30 days to
submit a modified plan. The Secretary would then have 15 days
to review additional information on items previously submitted,
and 45 days to review items newly included in a modified plan.
If the Secretary still finds the plan to be incomplete or
deficient, the Secretary would be required, within those time
frames, to notify the Senate Committee on Commerce, Science,
and Transportation and the House of Representatives Committee
on Transportation and Infrastructure, and also to approve the
portions of the plan that are complete, obligate funds
associated with the completed portions of the plan, and execute
an agreement with Amtrak within 15 days on a process for
resolving issues in dispute.
Sec. 8. Memorandum of agreement
The section would require that DOT and DHS execute an MOA
regarding railroad transportation security matters within 60
days of enactment. The section also would provide that the
DOT's authority to issue regulations and orders governing
``every area of railroad safety'' includes ``security''.
Sec. 9. Amtrak plan to assist families of passengers involved in rail
passenger accidents
The section would require Amtrak to submit a plan to NTSB and
the Secretary of Transportation within 6 months following
enactment of this Act for addressing the needs of the families
of passengers involved in a rail passenger accident that
results in a loss of life. The plan would be required to
include a process by which Amtrak would maintain and provide to
NTSB and DOT, at their request, a list of the names of the
passengers aboard the train, and a plan for creating and
publicizing a toll free number, within 4 hours of the accident,
to handle calls from the families of passengers. Further, the
plan would have to include a process for notifying the families
of passengers involved in an accident, and an assurance that
Amtrak will properly train its employees and agents. Amtrak,
the NTSB, and the Secretary of Transportation would be
prohibited from releasing information on the list, but would be
allowed to provide information about a passenger on the list to
the passenger's family.
The section authorizes an appropriation of $500,000 for FY
2005 to carry out the section. The funds would remain available
until expended.
Sec. 10. Systemwide Amtrak security upgrades
The section would authorize DHS to make grants through the
Secretary of Transportation to Amtrak for a number of specific
purposes, including securing Amtrak trains, stations, and
tunnels; hiring additional police and security officers,
including canine units; obtaining train tracking and
interoperable communications systems; and expanding emergency
preparedness efforts. All funds would be made available to
Amtrak through grant agreements. Funding would be contingent
upon Amtrak having a systemwide security plan approved by DHS,
and Amtrak would be required, for each project funded, to have
in place a project management plan addressing the budget,
construction schedule, change order procedures, and other
matters the Secretary of Transportation deems appropriate. The
plan also would have to include appropriate measures to address
security awareness, emergency response, and passenger
evacuation training.
The Secretary of Homeland Security would be required to
ensure that, subject to meeting the highest security needs on
Amtrak's entire system, stations and facilities located outside
the Northeast Corridor receive an equitable share of these
funds. The section authorizes $63.5 million for FY 2005 to
carry out the section. The funds would remain available until
expended.
Sec. 11. Freight and passenger rail security upgrades
The section would authorize the Under Secretary for Border
and Transportation Security to make grants for full or partial
reimbursement for costs incurred to prevent or respond to acts
of terrorism. Freight railroads, the Alaska Railroad, shippers
of hazardous materials, owners of rail cars used to transport
hazardous materials, colleges and universities, State and local
governments (for passenger facilities and infrastructure not
owned by Amtrak), and Amtrak would be eligible for grants under
this section. Grants could be made for such projects as
security for train dispatching centers and stations;
accommodating screening equipment for passengers and cargo;
employee security awareness, preparedness, and emergency
response training; public outreach campaigns; structural
modification or replacement of rail cars used to transport high
hazard materials (poison inhalation hazardous materials, class
2.3 gases, class 6.1 materials, and anhydrous ammonia); sharing
of intelligence and information; train tracking and
interoperable communications systems; hiring additional police
and security officers, including canine units; and other
security-related improvements identified in the vulnerability
assessment required by section 2. Grants would have to be
equitably distributed, taking into account geographic location,
and would encourage non-Federal financial participation. With
respect to grants for passenger rail security, the Under
Secretary would be required, in making grants, to also take
into account passenger volume and whether a station is used by
commuter rail passengers as well as intercity rail passengers.
Grants to Amtrak would be made through DOT and would be
contingent upon Amtrak having a systemwide security plan
approved by DHS. Amtrak would be required, for each project
funded, to have in place a project management plan addressing
the budget, construction schedule, change order procedures, and
other matters the Secretary of Transportation deems
appropriate.
The section would authorize $350 million for the grant
program for FY 2005, of which a maximum of $65 million would be
available for Amtrak, and a maximum of $100 million would be
available for grants related to the transportation of hazardous
materials by rail. The funds would remain available until
expended.
Sec. 12. Oversight and grant procedures
The section would allow the Secretary of Transportation to
use up to 0.5 percent of amounts made available to Amtrak under
the Act for capital projects to enter into contracts for the
review of the projects and to oversee project construction. The
Secretary could also use these funds to make contracts for
safety, procurement, management, and financial compliance
reviews and audits.
The Under Secretary for Border and Transportation Security
would be directed to establish procedures and schedules for the
awarding of grants under the Act. The procedures would include
the execution of a grant agreement with the recipient and
require that applicants have a security plan in place. A final
rule establishing procedures would have to be issued within 90
days following enactment.
Sec. 13. Rail security research and development
This section would direct the Under Secretary for Border and
Transportation Security, in conjunction with the Secretary of
Transportation, to carry out a research and development program
for the purpose of improving freight and intercity passenger
rail security. The legislation would authorize appropriations
of $50 million in each of FYs 2005 and 2006, such sums to
remain available until expended. The program could include
projects to reduce the vulnerability of passenger trains,
stations, and equipment to explosives and biological and
chemical substances; to test new freight technologies for
sealing rail cars, automatically inspecting cars, and
communications-based train controls; to support enhanced
security for the transportation of hazardous materials by rail;
to test new emergency response techniques; and other projects
recommended in the report required by section 2.
The section also would require that the Under Secretary
coordinate this program with other R&D programs at DHS and DOT,
and carry out any research through a reimbursable agreement
with DOT if DOT is already sponsoring an R&D project in a
similar area, or has a unique facility or capability that would
be useful in carrying out the project. The section also would
direct the Under Secretary to adopt procedures, including
audits, to ensure that grants are expended in accordance with
the purposes of the Act and the priorities established by the
Under Secretary.
Sec. 14. Welded rail and tank car safety improvement
Within 90 days following enactment, FRA would have to require
each railroad using continuous welded rail (CWR) to include in
its safety program procedures to improve the identification of
cracks in rail joint bars. Further, FRA track inspectors would
be required to obtain copies of the most recent CWR programs of
each railroad, and FRA would be required to periodically review
CWRjoint bar inspection data from the railroads. FRA track
inspectors, when appropriate, could require railroads to increase the
frequency or improve the methods of inspecting rail joint bars.
The section also would require FRA, within 1 year following
enactment, to validate its predictive model for quantifying the
relevant dynamic forces acting on railroad tank cars under
accident conditions and, within 18 months following enactment
of this Act, to initiate a rulemaking to develop appropriate
standards for pressurized tank cars. Finally, within 2 years
following enactment of this Act, FRA would be required to
complete an analysis to determine the impact resistance of
steel used in pressurized tank cars built before 1989 and
submit a report to the Senate Committee on Commerce, Science,
and Transportation and the House of Representatives Committee
on Transportation and Infrastructure.
Sec. 15. Northern border rail passenger report
The section would require the Under Secretary for Border and
Transportation Security, within 180 days following enactment,
to review the current programs for preclearing airline
passengers and freight rail cargo between the United States and
Canada, the status of progress in finalizing a bilateral
protocol with Canada to provide for preclearance of passengers
traveling between the United States and Canada, and the
legislative or other barriers within the United States to
providing pre-screened passenger lists for rail passengers
traveling between the 2 countries. The Under Secretary would be
required to submit a report to the Senate Committee on
Commerce, Science, and Transportation and the House of
Representatives Committee on Transportation and Infrastructure,
with a draft of any changes in existing Federal law necessary
to provide for pre-screening of passengers.
Sec. 16. Report regarding impact on security of train travel in
communities without grade separation
The section would require the Secretary of DHS, in
consultation with State and local officials, to conduct a study
of the impact of blocked highway-railroad grade crossings on
the ability of emergency responders to perform safety and
security duties in the event of a terrorist attack. A report
and recommendations would be due to the Senate Committee on
Commerce, Science, and Transportation and the House of
Representatives Committee on Transportation and Infrastructure
within 1 year following enactment.
Sec. 17. Whistleblower protection program
Section 17 would establish a new section in title 49 to
prohibit railroads from discharging or otherwise discriminating
against an employee for bringing to the railroad's attention a
perceived threat to security, or for testifying before Congress
or at any Federal or State proceeding on a perceived threat to
security. A dispute, grievance, or claim arising under the
section would be subject to resolution under section 3 of the
Railway Labor Act. A proceeding by the National Railroad
Adjustment Board, a division of the Board, or another board of
adjustment established under section 3 to resolve a dispute,
grievance, or claim would have to be resolved within 180 days
after the dispute is filed. If the violation does not involve
an action involving pay, and no other remedy is available,
damages of not more than $20,000 could be awarded.
The section also provides that the burdens of proof
applicable to such violations would be those set forth in
section 42121(b)(2)(B) of title 49. A railroad employee could
not seek protection under this section and any other provision
of law for the same alleged unlawful act.
The provision would prohibit the Secretary of Transportation
from disclosing the name of an employee who has provided
information about a violation of the protections unless the
employee consents. If the matter has been referred to the
Attorney General for enforcement, the Secretary would be
required to disclose the name of the employee.
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 V. RAIL PROGRAMS
PART A. SAFETY
CHAPTER 201. GENERAL
SUBCHAPTER I. GENERAL
* * * * * * *
Sec. 20116. Whistleblower protection for rail security matters
(a) Discrimination Against Employee.--No rail carrier engaged
interstate or foreign commerce may discharge a railroad
employee or otherwise discriminate against a railroad employee
because the employee (or any person acting pursuant to a
request of the employee)--
(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 perceived
threat 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 perceived threat 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 expeditedand 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 title, 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 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.
* * * * * * *
PART C. PASSENGER TRANSPORTATION
CHAPTER 243. AMTRAK
* * * * * * *
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 Rail Security Act of 2004, Amtrak
shall submit to the Chairman of the National Transportation
Safety Board and the Secretary of Transportation 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 and
the Secretary of Transportation, 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.--The National Transportation Safety
Board, the Secretary of Transportation, and Amtrak may not
release to any person 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 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) Authorization of Appropriations.--There are authorized to
be appropriated to the Secretary of Transportation for the use
of Amtrak $500,000 for fiscal year 2005 to carry out this
section. Amounts appropriated 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
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] any 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] any rail carrier;
(2) property, equipment, and facilities owned,
leased, operated, or maintained by [the rail carrier]
any rail carrier;
(3) property moving in interstate or foreign commerce
in the possession of [the rail carrier] any rail
carrier; and
(4) personnel, equipment, and material moving by rail
that are vital to the national defense.