**Testimony of S. Mark Lindsey**

**Chief Counsel, Federal Railroad Administration**

**U.S. Department of Transportation**

**before the Committee on the Judiciary**

**United States Senate**

**April 8, 2004**

Mr. Chairman, members of the Committee, I am very pleased to be here
today to testify on behalf of the Secretary of Transportation concerning
the need for stronger Federal criminal laws, to deter terrorist attacks
and other violence against railroad carriers and mass transportation
systems. This hearing is especially timely in light of the March 11
attacks on four commuter trains in Madrid, the subsequent discoveries of
bombs under railroad tracks in both Spain and France, and the
intelligence reports that terrorists might try to bomb rail lines and
buses in major U.S. cities this summer.

Passenger railroads and mass transportation systems pose attractive
targets for terrorist attacks because of the large concentration of
people, the difficulty of securing such open and extensive systems, and
the fact that such attacks can be highly disruptive to the economy.
While freight railroads carry only a small number of people as crew,
they are likewise attractive targets for terrorists because they also
operate over open and extensive systems and because they carry hazardous
materials. The U.S. Department of Transportation (DOT), the U.S.
Department of Homeland Security (DHS), and other Federal agencies have
been working with the railroad and transit industries, sharing
knowledge, expertise, ideas, and resources to mitigate the terrorist
threat to our Nation's railroads and mass transportation systems. The
security efforts of the various Federal and private parties were
detailed in testimony given to the Senate Committee on Commerce,
Science, and Transportation on March 23, 2004.

While FRA and other Federal agencies will continue our efforts to
safeguard our railroads and mass transportation systems, the enactment
of stronger Federal criminal laws is also necessary. The enactment of
legislation along the lines of S. 2289 (introduced by Senator Sessions)
should help deter attacks against these systems and ensure that any acts
that do occur are appropriately punished. DOT strongly supports S. 2289
and appreciates the Committee's commitment to help deter acts of
violence against transportation systems.

S. 2289 would consolidate the existing "wrecking trains" statute at18
U.S.C. 1992 and the mass transportation anti-terrorism statute at 18
U.S.C. 1993 into a new and more comprehensive section 1992. FRA and the
Federal Transit Administration have worked very closely with the
Department of Justice (DOJ) since 1997 in trying to secure the passage
of similar legislation. DOT submitted anti-terrorism bills in 1997,
1999, and 2002, each of which contained many of the central provisions
of S. 2289. DOT's legislative proposals formed the basis for the mass
transportation statute, which was first enacted as part of the USA
PATRIOT Act in 2001.

**There are eight gaps or ambiguities in the wrecking trains and mass
transportation statutes that S. 2289 would address.**

**First, the bill would update and slightly expand the wrecking trains
statute\'s language regarding acts of violence against railroad
carriers.** The wrecking trains statute was enacted in 1940 and contains
terminology that is not as expansive as that used in modern Federal
criminal statutes. The bill would update the language used in referring
to acts targeted at railroads (e.g., replacing the term "explosive
substance" with "biological agent or toxin, destructive substance, or
destructive device"). And more types of railroad property and equipment
would be explicitly protected (guideways, locomotive tenders, and
on-track equipment). The definitions of the mass transportation statute
would be slightly modified to reflect the addition of railroads, and
terrorist acts involving hazardous materials including radioactive
materials and spent nuclear fuel.

**Second, the bill would extend to railroads the protections that apply
to mass transportation systems under the mass transportation statute.**
The mass transportation statute contains a much more comprehensive
listing of prohibited conduct than does the wrecking trains statute. The
mass transportation prohibitions cover mass transportation by air,
marine, and surface transportation. While these statutory prohibitions
clearly apply to attacks against commuter railroads, and arguably apply
to Amtrak and tourist railroad operations as well, the massive freight
railroad operations of this country are not covered. The vulnerabilities
of freight shipments\--whether spent nuclear fuel or other hazardous
materials---need to be addressed to better protect the general public.

In particular, the following six additional acts of terrorism from the
mass transportation statute would be made applicable to railroads
explicitly:

> \(1\) placing a biological agent or toxin on or near railroad
> equipment;
>
> \(2\) placing a biological agent or toxin on railroad infrastructure
> with intent to, or knowing or having reason to know such activity
> would likely derail, disable, or wreck railroad on-track equipment
> \[The bill would also cover placement of these substances "near"
> railroad and mass transportation property, a provision which is not
> currently in the mass transportation statute.\];
>
> \(3\) damaging a centralized dispatching facility;
>
> \(4\) interfering with, disabling, or incapacitating any person
> engaged in dispatching, operating, or maintaining railroad on-track
> equipment;
>
> \(5\) using a dangerous weapon, with the intent to cause death or
> serious bodily injury to an employee or passenger of a railroad
> carrier any other person while any of the foregoing is on the property
> of a railroad carrier "that is used for railroad purposes" \[The
> highlighted qualifying language would also be made applicable to
> similar acts committed on the property of mass transportation systems;
> this qualifier is not currently in the mass transportation statute.\];
> and
>
> \(6\) conveying or causing to be conveyed false information, knowing
> the information to be false, concerning an attempt or alleged attempt
> being made or to be made, to engage in any of the prohibited acts.

**Third, the bill would lower the evidentiary threshold for Federal
prosecution of acts against railroads to the same threshold as in the
mass transportation statute.** The wrecking trains statute prohibits
specified acts against railroad equipment and property that is engaged
in interstate or foreign commerce. The mass transportation statute is
much broader in scope and applies not only to acts committed on,
against, or affecting a mass transportation provider engaged in or
affecting interstate or foreign commerce, but also to a person who
travels, communicates, or transports materials across a State line in
aid of the commission of the offense. With this expanded scope, attacks
against railroad carriers will be easier to prosecute.

The bill also substitutes the word "knowingly" for the term "willfully,"
which is the *mens* *rea* the defendant must have in committing the
prohibited conduct under the wrecking trains statute and the
anti-terrorism mass transportation statute. We believe that the use of
"knowingly" merely clarifies existing law since the courts have equated
the term "willfully" in the wrecking trains statute with the term
"knowingly." Courts construing the wrecking trains statute have held
that it is not necessary to show that the defendant had a specific
intent to wreck a train but merely that the defendant was aware of his
acts and did not act because of ignorance, mistake, or accident, and
that the defendant's conduct could substantially interfere with the
interstate railroad system.

**Fourth, the bill would extend to mass transportation systems a
provision in the existing wrecking trains statute that makes it a crime
to undermine or make the use of the mass transportation infrastructure
hazardous or unworkable.** In addition, the bill would add "track" and
"electromagnetic guideways" to the list of types of mass transportation
infrastructure protected.

**Fifth, the bill would make it a crime to cause the release of a
hazardous material or a biological agent or toxin on or near the
property of a railroad or mass transportation provider with the intent
to endanger the safety of any person or with a reckless disregard for
the safety of human life.** This is a new prohibition that does not
exist in current law. Freight trains haul a tremendous amount of
hazardous materials--nearly a million rail tank cars and 238,000
intermodal loads of hazardous materials annually, and lesser amounts are
hauled by mass transportation providers. In calendar year 2002, trains
provided over a billion ton-miles of hazardous materials transportation.
Rail is the predominant method of transportation for certain classes of
hazardous materials that pose an especially high risk, including
explosives, radioactive materials, and flammable solids. It is essential
that the Federal criminal statutes deter terrorists from using these
hazardous materials and biological agents and toxins to harm the public.

**Sixth, the bill would clarify that it is not a violation of the
statute to transport on railroad or mass transportation equipment or
property hazardous materials in commerce that are in accordance with
Federal hazardous materials transportation law and DOT's implementing
regulations, or, if in violation of these provisions, the violation is
merely a civil violation and not a criminal violation.**

**Seventh, the bill would close a gap in the "mass transportation"
statute noted in the "Shoe Bomber" case, where the district court
observed that the literal language of the statute prohibited an
attempted act of terrorism but did not explicitly penalize such an
attempt.** The district court correctly rejected as meritless Mr.
Reid\'s argument that Congress had not made attempt crimes under the
mass transportation statute punishable. The bill would also update the
definition of "dangerous weapon" in the mass transportation statute to
cover box cutters and other previously unrecognized weapons.

**Eighth, the bill would toughen or clarify the penalties for certain
violations.** For violations not falling in the "aggravated offense"
category, the penalty would be a fine or imprisonment of not more than
20 years, or both. The bill would make it an "aggravated offense" to
commit prohibited acts against a train or a mass transportation vehicle
that carries a passenger or employee, radioactive waste, spent nuclear
fuel, or designated hazardous materials. The general penalty for
aggravated offenses would be a fine, or imprisonment for any term of
years or life, or both. A term of not less than 30 years would apply to
an offense involving high-level radioactive waste or spent nuclear fuel.
A sentence of either life imprisonment or capital punishment would apply
where the offense has resulted in the death of another person.
Currently, the maximum penalty under the mass transportation statute is
life imprisonment. The death penalty is already available for a
violation of the "wrecking trains" statute that results in a death. The
bill would correct this anomaly by making available the death penalty
for attacks against mass transportation systems that result in a death
of a person. Recently, a Federal district court ruled that the wrecking
trains statute does not impose a mandatory minimum sentence of life
imprisonment or death against an individual who willfully derailed a
freight train killing the conductor and seriously injuring the
locomotive engineer. The bill would make clear that if a violation of
the statute results in a death, that the court's choice would be to
impose a sentence either of life imprisonment or the death penalty.

**Conclusion**

Federal agencies, working in cooperation with the railroads and mass
transportation systems, have been working hard to prevent terrorist
attacks against our Nation's railroads and mass transportation systems.
With the rest of the senior leadership team at DOT, FRA is committed to
this effort to improve transportation security by the relentless pursuit
of this goal by Transportation Secretary Norman Mineta. His actions on
September 11 to protect the flying public, his stewardship of the
creation of the Transportation Security Administration (TSA), his
leadership in making the transition of the TSA and Coast Guard to the
DHS, all are accomplishments which provide us all at DOT a high standard
by which to gauge our own efforts.

The Department appreciates the Committee's continued efforts to deter
terrorist activity and protect the Nation's railroads and mass
transportation systems. We are ready to work with you on improving the
Federal criminal statutes in order to bring about an even safer and more
secure rail transportation system. Thank you for the opportunity to
appear before your Committee, and I welcome the chance to respond to
your questions.