![](media/image1.jpeg){width="6.302083333333333in" height="1.125in"}

# Legislative Bulletin..............................................March 27, 2007

**Contents:**

**H.R. 1401**--- Rail and Public Transportation Security Act

H.R. 1401--- Rail and Public Transportation Security Act (*Thompson,
D-MS*)

**[Order of Business]{.underline}**: The bill is scheduled to be
considered on Tuesday, March 27^th^, subject to a (likely) structured
rule. Summaries of amendments made in order under the rule will be
provided in a separate RSC document.

**[Summary]{.underline}**: H.R. 1401 would create a variety of new
programs, enforce a multitude of new intergovernmental and
private-sector mandates, and increase authorizations for rail and public
transportation (including over-the-road bus) security. Highlights of the
legislation by title are as follows:

***[Title I: Rail and Public Transportation Security]{.underline}***

-   Requires the Secretary of Homeland Security, in consultation with
    the Secretary of Transportation, to develop a comprehensive modal
    plan (the National Strategy for Rail and Public Transportation
    Security) for covered transportation (transportation provided by a
    railroad carrier, a provider of public transportation, or an
    over-the-road bus---i.e. a bus with a baggage compartment underneath
    the passenger portion). The plan, with required information as
    detailed in the bill, would be due to Congress within six months of
    this legislation's enactment.

-   Directs the Secretary of Homeland Security ("the Secretary") to
    assign each provider of covered transportation to one of no fewer
    than three risk-based tiers.

-   Requires the Secretary of Homeland Security, in consultation with
    the Secretary of Transportation, to issue regulations, within a year
    of this bill's enactment, that:

> \--require high- and medium-risk providers to complete vulnerability
> assessments and implement security plans;
>
> \--establish standards and guidelines for such assessments and plans;
> and
>
> \--create a security program for providers of covered transportation
> not assigned to a high- or medium-risk tier.

-   High- and medium-risk providers would have to submit their completed
    vulnerability assessments and security plans (which include the
    creation of a security coordinator for each provider) to the
    Secretary for review and approval (including information detailed in
    the legislation) within six months of the issuance of the applicable
    regulations.

-   Within twelve months of regulations issuance, the Secretary, in
    consultation with the Secretary of Transportation, would have to
    review and approve the vulnerability assessments and security plans,
    and periodically review security plans upon resubmission by
    providers. During the review periods, providers would have to
    implement interim security measures.

-   Requires covered providers to review and resubmit their
    vulnerability assessments and security plans three years after the
    initial submission, and every five years thereafter.

-   Authorizes the Secretary, for failure to comply with these
    requirements above, to impose:

> \--an administrative penalty of not more than \$100,000 total (after
> providing opportunity for a hearing to resolve the dispute);
>
> \--civil penalties, including injunctive relief and a fine of not more
> than \$75,000 for each day on which a violation occurs; and
>
> \--criminal penalties of not more than \$50,000 for each day of
> violation and/or imprisonment for not more than two years.

-   Instructs the Secretary to report to Congress, within 180 days of
    this bill's enactment, on the feasibility of name-based checks
    against terror watch lists for all National Railroad Passenger
    Corporation ("Amtrak") passengers.

-   Directs the Secretary to develop a plan, within 90 days of this
    bill's enactment, to improve tactical and strategic information
    sharing among covered transportation providers on their respective
    threats and vulnerabilities. Such information would be distributed
    to federal, state, and local agencies, tribal governments, and
    appropriate stakeholders.

-   Authorizes **[\$2.40 billion over four years]{.underline}** to
    create a **[new federal grant program]{.underline}** for improving
    [rail security]{.underline}, with 21 allowable uses listed in the
    bill (to be prioritized by the Secretary), including such matters as
    tunnel protection systems, cargo screening equipment, and global
    tracking equipment. Eligible grants recipients include state, local,
    and tribal governmental entities, Amtrak, and infrastructure owners,
    such as railroad carriers, private entities, and public-private
    entities. The federal share of a funded project would be 80%, except
    for projects costing \$25,000 or less (federal share would be 100%)
    and for projects responding to an urgent threat to national security
    (which, along with written notice to Congress, could be 100% federal
    share). No funds under this program could be used to supplant state
    or local funds or to pay the state or local share of a project under
    any other law.

-   Authorizes **[\$3.36 billion over four years]{.underline}** to
    [create a **new federal grant program** for improving the security
    of public]{.underline} transportation systems, with 17 allowable
    uses listed in the bill (to be prioritized by the Secretary),
    including many of the same items as listed for the new rail security
    program just described. Eligible grants recipients include public
    transportation agencies, and state, local, and tribal governmental
    entities that provide security or counterterrorism-related services
    for public transportation. No federal share information is provided.
    No funds under this program could be used to supplant state or local
    funds or to pay the state or local share of a project under any
    other law.

-   Authorizes **[\$87.0 million over four years]{.underline}** to
    create a **[new federal grant program]{.underline}** for improving
    the security of [over-the-road bus systems]{.underline}, with 13
    allowable uses listed in the bill (to be prioritized by the
    Secretary), including video surveillance equipment on buses, public
    awareness campaigns, and overtime reimbursement for security
    personnel. Eligible grants recipients include over-the-road bus
    providers, and state, local, and tribal governmental entities that
    provide security or counterterrorism-related services for
    over-the-road bus providers. No federal share information is
    provided. No funds under this program could be used to supplant
    state or local funds or to pay the state or local share of a project
    under any other law.

-   Authorizes appropriations over four years as follows for the
    Secretary of Transportation to make grants to Amtrak to carry out
    [fire and life safety improvements to Amtrak tunnels on the
    Northeast Corridor]{.underline}:

> **\--\$100.0 million** for the six tunnels in New York City;
>
> **\--\$20.0 million** for the two tunnels in Baltimore; and
>
> **\--\$20.0 million** for the Union Station tunnels in Washington, DC.

-   Instructs the Secretary, in consultation with the Secretary of
    Transportation within 90 days of this bill's enactment, to [develop
    security training programs]{.underline} for railroad, public
    transportation, and over-the-road bus workers (including "front-line
    employees").

-   Instructs the Secretary, on consultation with the Secretary of
    Transportation, to establish a [program for conducting security
    exercises for covered transportation]{.underline} to assess and
    improve the capabilities of certain entities to prevent, prepare
    for, mitigate against, respond to, and recover from acts of
    terrorism (these entities include federal, state, local, and tribal
    governmental entities; employees and managers of transportation
    providers; governmental and nongovernmental emergency responders;
    and law enforcement personnel, including rail and transit police).
    This program would have to consolidate all existing security
    exercises for covered transportation administered by the two federal
    departments and would have to be evaluated against clear and
    consistent performance measures.

-   **[Authorizes \$200.0 million over four years]{.underline}** to
    create a **[new federal research and development
    program]{.underline}** for rail, public transportation, and
    over-the-road bus security. This section outlines allowable uses and
    requires that activities under this program be coordinated with
    existing research initiatives and entities.

-   Provides [whistleblower protections]{.underline} for employees of
    the Department of Homeland Security and the Department of
    Transportation, contractors or subcontractors of those two
    departments, and employees of covered transportation providers. That
    is, no individual covered by this provision could be discharged,
    demoted, suspended, threatened, harassed, reprimanded, investigated,
    or in any other manner discriminated against (including by a denial,
    suspension, or revocation of a security clearance or by any other
    security access determination), if such discrimination is due, in
    whole or in part, to any lawful act done, perceived to have been
    done, or intended to be done on the part of the whistleblower. The
    protections, which would be enforceable by civil and criminal code
    remedies, would not pre-empt any existing federal or state
    protections for such individuals. Whistleblowers prevailing in any
    action would be given the right to all relief necessary to make them
    whole, including damages, back-pay plus interest, reinstatement with
    prior seniority status, attorneys fees, witness fees, and other such
    items. Punitive damages would be capped at either three times the
    compensatory damages or \$5 million.

-   Authorizes "such sums as may be necessary" to increase the current
    number of Surface Transportation Security Inspectors (STSIs) to 600
    by the end of 2010 and outlines certain qualifications for
    individuals hired as STSIs.

-   Establishes the [National Domestic Preparedness
    Consortium]{.underline} within the Department of Homeland Security
    to identify, develop, test, and deliver training to state and local
    emergency responders; provide onsite and mobile training at the
    performance, management, and planning levels; and facilitate the
    delivery of awareness level training. The following institutions
    would be original members of the Consortium:

> \--the Center for Domestic Preparedness in Anniston, Alabama;
>
> \--the Energetic Materials Research and Testing Center at the New
> Mexico Institute of Mining and Technology;
>
> \--the National Center for Biomedical Research and Training and the
> Academy of Counter-Terrorist Education at Louisiana State University;
>
> \--the National Emergency Response and Rescue Training Center at Texas
> A&M University;
>
> \--the National Center for Exercise Excellence at the Nevada Test
> Site; and
>
> \--the Transportation Technology Center in Pueblo, CO.

-   Ensures that FY2007 funding levels for the original members of the
    Consortium in existence prior to this legislation are not reduced as
    a result of adding the Transportation Technology Center to the
    Consortium. In addition, this section would authorize funding levels
    for all members of the Consortium for FY2008-2011 to ensure yearly
    increases of not less than 3% of the amount for the preceding fiscal
    year.

-   **[NOTE]{.underline}**: The language regarding this Consortium
    (Section 114 of the underlying bill) could be seen as earmarks as
    defined in House Rules. See the earmarks discussion below.

-   Authorizes TSA to develop Visible Intermodal Protection Response
    (VIPR) teams, designed to augment security for any mode of
    transportation at any location within the United States. The
    Secretary would have the discretion to determine, consistent with
    ongoing security threats, when a VIPR team should be deployed and
    for what duration (in coordination with local law enforcement). VIPR
    teams could be activated and supported using any DHS asset,
    including federal air marshals, STSIs, canine detection teams, and
    advanced screening technology.

```{=html}
<!-- -->
```
-   Creates a new [National Transportation Security Center of
    Excellence]{.underline} at an institution of higher education (as
    defined in U.S. Code) to conduct research and education activities,
    and to develop or provide professional security training. 
    Activities would include training rail and public transportation
    employees and related professionals, with an emphasis on utilization
    of "intelligent transportation systems, technologies, and
    architectures" (undefined).  The bill lists certain selection
    criteria be met when designating the Center at the appropriate
    higher education institution. :

-   Establishes a consortium (to work in conjunction with the Center)
    which must include:

> \--higher education institutions that have existing transportation
> programs;
>
> \--at least two institutions that is are either a historically black
> college or university, a Hispanic serving institution, or a tribal
> university (even if the primary institution is one of the
> aforementioned higher education institutions); and
>
> \--at least one institution that has an established degree and an
> advanced degree program in transportation studies.

-   Stipulates that any statutory limitation that exists on the number
    of TSA employees does not apply to employees carrying out this Act.

```{=html}
<!-- -->
```
-   Provides that all grants distributed pursuant to this legislation
    for security-related purposes would have to be administered on the
    [basis of risk]{.underline} by the Secretary of Homeland Security as
    the lead federal official on transportation security.

-   Directs the Secretary to implement a [threat assessment screening
    program]{.underline} for all employees of covered transportation
    providers (within 180 days of enactment), including a name-based
    check for all employees against terrorist watch lists and
    immigration status lists, that mirrors the Coast Guard's threat
    assessment program for maritime facility employees and longshoremen.

-   Creates a redress process for employees who are found to be a
    security risk by a required background check to argue that they
    indeed are not a security risk.

-   Creates a task force to review the lists of crimes that disqualify
    individuals from certain transportation-related employment under the
    current Transportation Security Administration (TSA) regulations and
    to assess whether those lists are accurate indicators of terrorism
    security risk.

-   Authorizes general civil penalties for violations of regulations and
    orders issued by the Homeland Security Secretary, including a fine
    of not more than \$10,000 for each day a violation of such a
    regulation or order continues (not to exceed \$50,000 for
    individuals and small businesses; not to exceed \$400,000 for
    everyone else).

-   Instructs the Secretary to submit a report to Congress (including a
    classified report, if appropriate), within one year of this bill's
    enactment, containing a comprehensive threat assessment of the
    nation's school bus transportation system.

-   Directs the Secretary, in consultation with the Secretary of
    Transportation within 90 days of this bill's enactment, to issue
    regulations requiring enhanced security measures for shipments of
    security-sensitive materials (such as explosives and radioactive
    materials that could be used in a terrorist attack).

-   Rail carriers, within 90 days after the end of each calendar year,
    would have to compile commodity data by route and storage pattern.
    Rail carriers would also have to annually submit to DHS a written
    analysis of the security risks for each route and storage pattern,
    along with assessments and analysis of alternative routes and
    storage patterns for security-sensitive materials.

-   Requires the Department of Homeland Security to establish a
    standards program to support development, promulgation, and updating
    of national voluntary consensus standards for performance, testing,
    use, and training with respect to technologies that will improve the
    security of covered transportation in order to meet the security
    plan requirements created earlier in this legislation. In
    establishing the consensus standards, the Secretary would be
    required to consult with relevant public- and private-sector groups,
    appropriate federal, state, and local government agencies, and the
    existing Technology Clearinghouse.

-   Instructs the Secretary to assess likely methods of a deliberate
    attack on a rail tank car transporting toxic-inhalation-hazard
    materials and the degree to which such an attack could cause death,
    injury, or serious adverse affects to human health, the environment,
    critical infrastructure, national security, the national economy,
    and/or public welfare. The Secretary would have to consider the most
    current threat information in this assessment, along with other
    specified factors.

-   Instructs the Domestic Nuclear Detection Office (DNDO) to begin
    testing and evaluating, within one year of this bill's enactment,
    prototype systems to detect nuclear or radiological materials in
    rail security venues, including spectroscopic technologies. DNDO
    would have to establish appropriate training, operations, and
    response protocols for the systems.

-   Directs grant recipients under this legislation to give preference,
    to the extent practicable, to products, equipment, services,
    devices, and technologies that the Secretary has designated as
    qualified anti-terrorism technologies under the SAFETY Act (Subtitle
    G of Title VIII of the Homeland Security Act of 2002), if the grant
    recipient determines that such items meet or exceed the requirements
    of the applicable security plan. The Secretary would have to work
    with transportation providers to identify which such items provide
    the best liability protections under the SAFETY Act.

-   Directs the Secretary to deploy, where practicable, non-intrusive
    inspection imaging equipment at locations where rail shipments cross
    an international border to enter the United States, or to implement
    alternative procedures to check such rail shipments at locations
    where the deployment of non-intrusive equipment is not practicable.

-   Requires covered transportation providers, including contractors and
    subcontractors, assigned to a high-risk threat tier (established
    earlier in the bill) to conduct background checks of their employees
    against available terrorist watch-lists and immigration status
    databases.

***[Title II: Secure Transportation Through Increased Use of Canine
Detection Teams]{.underline}***

-   Requires that the Secretary coordinate with owner and providers of
    covered transportation systems to ensure that canine detection teams
    are deployed at each high-risk system to provide continuous coverage
    "if the Secretary considers it necessary."

-   Directs the Secretary to coordinate with owners and providers of
    covered transportation systems to increase the number of trained
    canine teams deployed at high-risk rail and mass transit systems by
    not less than 10% each fiscal year for fiscal years 2008
    through 2012. The canines would have to be trained to detect
    explosives and, to the greatest extent possible, chemical and
    biological weapons.

-   Authorizes "such sums as may be necessary" for the Transportation
    Security Administration (TSA) to train up to 100 additional canine
    teams per year for the National Explosives Detection Canine Team
    Program and *at least* the following number of additional teams:

> \--50 for 2008;
>
> \--55 for 2009;
>
> \--60 for 2010;
>
> \--66 for 2011; and
>
> \--73 for 2012.
>
> The additional teams would have to be deployed across the country to
> strengthen the security of covered transportation systems, including
> buses, subway systems, ferries, and passenger rail carriers.

-   Authorizes "such sums as may be necessary" for the TSA's **"[Puppy
    Program]{.underline}"** to increase the number of domestically bred
    canines to help meet the increase in demand for canine detection
    teams by this Title, while preserving the current quality of canines
    provided training. See puppy photos here:
    <http://www.tsa.gov/lawenforcement/programs/editorial_multi_image_0009.shtm>.

**[Additional Background]{.underline}**: According to the Homeland
Security Committee, the Aviation and Transportation Security Act of 2001
(ATSA) made the Transportation Security Administration (TSA) responsible
for the security of all modes of transportation, including rail and mass
transit. However, TSA has focused its resources and assets on aviation
security. This bill is aimed at directing more resources to rail, public
transportation, and over-the-road buses.

**[RSC Bonus Fact]{.underline}**: In 2005, the existing Intercity Bus
Security Grant Program distributed almost \$10 million to 25 private bus
companies, including \$46,908.00 to the Hampton Jitney bus line, which
shuttles people from New York City to the Hamptons. *\[Special thanks to
the Office of Rep. Jeff Flake (R-AZ) for this RSC Bonus Fact.\]*

**[Committee Action]{.underline}**: On March 8, 2007, the bill was
referred to the Homeland Security Committee, as well as the
Transportation & Infrastructure Committee. On March 13^th^, the Homeland
Security Committee marked up the bill and ordered it reported to the
full House by voice vote. On March 22^nd^, the Transportation &
Infrastructure Committee discharged the bill without taking official
action.

**[Possible Conservative Concerns]{.underline}**: Although this bill is
aimed at improving the security of vital transportation systems
nationwide, some conservatives may be concerned about the creation of
new programs and more bureaucracy at the Department of Homeland
Security, a department that has been criticized for being to big and
bloated. Furthermore, some conservatives may be concerned about the
various [costly]{.underline} intergovernmental and private-sector
mandates in the bill (see mandates discussion below), as well as the
increased funds available for Amtrak, an entity that many conservatives
have sought to de-fund, at least in part.

**[Administration Position]{.underline}**: A Statement of Administration
Policy (SAP) was not available at press time.

**[Cost to Taxpayers]{.underline}**: CBO estimates that H.R. 1401 would
authorize \$1.701 billion in FY2008 and a total of \$7.296 billion over
the FY2008-F2012 period. CBO also notes that fines from civil and
criminal penalties in the bill might yield the federal government
additional revenues. Collections of civil fines are recorded as revenues
and deposited in the Treasury; collections of criminal fines are
deposited in the Crime Victims Fund and later spent. CBO expects that
any additional receipts and direct spending from enacting this bill
would be "negligible."

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}**: Yes, the bill would create at least five new
programs and expand civil and criminal penalties.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: Yes.

[Intergovernmental mandates]{.underline}: CBO writes that, "H.R. 1401
contains intergovernmental mandates as defined in UMRA \[Unfunded
Mandates Reform Act\] because it would require certain public
transportation agencies and public rail carriers to conduct
vulnerability assessments, to create and implement security plans, to
train all employees in security, to complete background checks of
employees, and to submit additional information to DHS. Transportation
entities covered by the provisions in the bill also would be subject to
new projections for whistleblower employees, and the bill would preempt
state laws covering such employees." CBO expects the costs of these
mandates to "substantially exceed the threshold established in UMRA."

[Private-sector mandates]{.underline}: CBO writes that, "H.R. 1401
contains several private-sector mandates as defined in UMRA because it
would require certain rail and bus carriers to implement security
programs and procedures. Those carriers also would be subject to new
whistleblower protections for their employees. In addition, the bill
would require certain rail carriers to implement enhanced security
measures for shipments of materials determined to pose a risk to
national security." CBO expects the costs of these mandates to be
"large" and to "likely exceed the annual threshold established by UMRA
for private-sector mandates."

**[Does the Bill Comply with House Rules Regarding Earmarks/Limited Tax
Benefits/Limited Tariff Benefits?]{.underline}**: Although the Homeland
Security Committee, in House Report 110-65, asserts that, "no
congressional earmarks, limited tax benefits, or limited tariff benefits
are included in H.R. 1401," Section 114, which creates a National
Domestic Preparedness Consortium, names specific universities to which
funds are to be directed and details the increases for such funding each
year.

House Rule XXI, Clause 9(d) defines "earmark" as "a provision or report
language included

primarily at the request of a Member, Delegate, Resident Commissioner,
or Senator providing, authorizing or recommending a specific amount of
discretionary budget authority, credit authority, or other spending
authority for a contract, loan, loan guarantee, grant, loan authority,
or other expenditure with or to an entity, or targeted to a specific
State, locality or Congressional

district, other than through a statutory or administrative
formula-driven or competitive award process."

**[Constitutional Authority]{.underline}**: The Homeland Security
Committee, in House Report 110-65, cites constitutional authority in
Article I, Section 8, Clause 1, which grants Congress the power to
provide for the common defense of the United States.

**[RSC Staff Contact]{.underline}**: Paul S. Teller,
<paul.teller@mail.house.gov>, (202) 226-9718