U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

35–271 PDF 2009

COMMITTEE PRINT: RAIL AND PUBLIC 

TRANSPORTATION SECURITY ACT OF 2007 

HEARING 

BEFORE THE

COMMITTEE ON HOMELAND SECURITY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

MARCH 6, 2007 

Serial No. 110–12 

Printed for the use of the Committee on Homeland Security 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 


Congress.#13
COMMITTEE ON HOMELAND SECURITY 

BENNIE G. THOMPSON, Mississippi, Chairman 

LORETTA SANCHEZ, California, 

EDWARD J. MARKEY, Massachusetts 

NORMAN D. DICKS, Washington 

JANE HARMAN, California 

PETER A. DEFAZIO, Oregon 

NITA M. LOWEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

DONNA M. CHRISTENSEN, U.S. Virgin 

Islands 

BOB ETHERIDGE, North Carolina 

JAMES R. LANGEVIN, Rhode Island 

HENRY CUELLAR, Texas 

CHRISTOPHER P. CARNEY, Pennsylvania 

YVETTE D. CLARKE, New York 

AL GREEN, Texas 

ED PERLMUTTER, Colorado 

VACANCY 

PETER T. KING, New York 

LAMAR SMITH, Texas 

CHRISTOPHER SHAYS, Connecticut 

MARK E. SOUDER, Indiana 

TOM DAVIS, Virginia 

DANIEL E. LUNGREN, California 

MIKE ROGERS, Alabama 

BOBBY JINDAL, Louisiana 

DAVID G. REICHERT, Washington 

MICHAEL T. MCCAUL, Texas 

CHARLES W. DENT, Pennsylvania 

GINNY BROWN-WAITE, Florida 

MARSHA BLACKBURN, Tennessee 

GUS M. BILIRAKIS, Florida 

DAVID DAVIS, Tennessee 

JESSICA HERRERA-FLANIGAN, Staff Director & General Counsel 

TODD GEE, Chief Counsel 

MICHAEL TWINCHEK, Chief Clerk 

ROBERT O’CONNOR, Minority Staff Director 

(II) 

(III) 

C O N T E N T S 

Page 

STATEMENTS 

The Honorable Bennie G. Thompson, a Representative in Congress From 

the State of Mississippi, and Chairman, Committee on Homeland Security: 

Oral Statement ..................................................................................................... 1 

Prepared Statement ............................................................................................. 3 

The Honorable Peter T. King, a Representative in Congress From the State 

of New York, and Ranking Member, Committee on Homeland Security ........ 35 

The Honorable Gus M. Bilirakis, a Representative in Congress From the 

State of Florida ..................................................................................................... 49 

The Honorable Christopher P. Carney, a Representative in Congress From 

the State of Pennsylvania .................................................................................... 55 

The Honorable Yvette D. Clarke, a Representative in Congress From the 

State of New York ................................................................................................ 47 

The Honorable Henry Cuellar, a Representative in Congress From the State 

of Texas ................................................................................................................. 53 

The Honorable Charlie Dent, a Representative in Congress From the State 

of Pennsylvania .................................................................................................... 46 

The Honorable Bob Etheridge, a Representative in Congress From the State 

of North Carolian ................................................................................................. 50 

The Honorable Jane Harman, a Representative in Congress From the State 

of California .......................................................................................................... 37 

The Honorable James R. Langevin, a Representative in Congress From the 

State of Rhode Island ........................................................................................... 45 

The Honorable Daniel E. Lungren, a Representative in Congress From the 

State of California ................................................................................................ 52 

The Honorable Edward J. Markey, a Representative in Congress From the 

State of Massachusetts ........................................................................................ 96 

The Honorable Eleanor Holmes Norton, Delegate in Congress From the 

District of Columbia ............................................................................................. 41 

The Honorable David G. Reichert, a Representative in Congress From the 

State of Washington ............................................................................................. 43 

The Honorable Christopher Shays, a Representative in Congress From the 

State of Connecticut ............................................................................................. 39 

WITNESSES

PANEL I 

Mr. Richard Fairfax, Director of Enforcement Programs, Occupational Safety 

and Health Administration, Department of Labor: 

Oral Statement ..................................................................................................... 17 

Prepared Statement ............................................................................................. 19 

Mr. Richard Falkenrath, Deputy Commissioner for Counterterrorism, New 

York City Police Department, City of New York: 

Oral Statement ..................................................................................................... 26 

Prepared statement .............................................................................................. 27 

The Honorable Kip Hawley, Administrator, Transportation Security Agency, 

Department of Homeland Security: 

Oral Statement ..................................................................................................... 5 

Prepared Statement ............................................................................................. 7 

Page

IV 

Mr. Terri Rosapep, Deputy Associate Administrator, Program Management, 

Department of Transportation: 

Oral Statement ..................................................................................................... 13 

Prepared Statement ............................................................................................. 15 

PANEL II 

Mr. Edward Hamberger, President, American Association of Railroads: 

Oral Statement ..................................................................................................... 64 

Prepared Statement ............................................................................................. 66 

Mr. Bill Millar, President, American Public Transportation Association: 

Oral Statement ..................................................................................................... 57 

Prepared Statement ............................................................................................. 58 

Mr. Ed Rodzwicz, President, Teamsters Rail Conference: 

Oral Statement ..................................................................................................... 74 

Prepared Statement ............................................................................................. 76 

Mr. David Shuman, Private Citizen: 

Oral Statement ..................................................................................................... 88 

Prepared Statement ............................................................................................. 89 

Mr. Fred Weiderhold, Inspector General, National Railroad Pasenger 

Corporation (Amtrak): 

Oral Statement ..................................................................................................... 79 

Prepared Statement ............................................................................................. 81 

FOR THE RECORD

Prepared Statements: 

Ms. Patricia Abbate, Executive Director Citizens for Raid Safety, Inc. .......... 106 

The Honorable Sheila Jackson Lee, a Representative in Congress From 

the State of Texas ............................................................................................. 109 

APPENDICES

Appendix 1: Railroad Security Research and Development Program 111 

Appendix 2: Hazardous Materials Movements by Rail 113 

Appendix 3: Legislative and Regulatory Requirements and Recommended 

‘‘Best Practices’’ 117 

Appendix 4: The E-RailSafe Appeals Process 119 

Appendix 5: Questions and Responses: 

Responses from Mr. Edward R. Hamberger ...................................................... 121 

Responses from Hon. Kip Hawley ...................................................................... 128 

Responses from Mr. William W. Miller .............................................................. 150 

Responses from Mr. Edward W. Rodzwicz ......................................................... 153 

Responses from Mr. Terri Rosapep ..................................................................... 157 

Responses from Mr. Fred Weiderhold ................................................................ 164 

(1) 

COMMITTEE PRINT: RAIL AND PUBLIC 

TRANSPORTATION SECURITY ACT OF 2007 

Tuesday, March 6, 2007 

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON HOMELAND SECURITY, 

WASHINGTON, DC. 

The committee met, pursuant to call, at 10:09 a.m., in Room 311, 

Cannon House Office Building, Hon. Bennie Thompson [chairman 

of the committee] presiding. 

Present: Representatives Thompson, Markey, Harman, Norton, 

Lofgren, Etheridge, Langevin, Cuellar, Carney, Clarke, King, 

Shays, Lungren, Rogers, Reichert, Dent, Bilirakis, and Davis of 

Tennessee. 

Mr. THOMPSON. [Presiding.] The Committee on Homeland Security will come to order. 

The committee is meeting today to receive testimony on the committee print entitled, ‘‘Rail and Public Transportation Security Act 

of 2007.’’ 

Like all Americans, I am alarmed at the lack of security for rail 

and public transportation systems around the country. Each weekday 11.3 million passengers in 22 states use commuter heavy and 

light rail. History has shown that terrorists view rail and public 

transportation systems as potential targets. 

This coming Sunday will be the 3-year anniversary of the terrorist bombing of Madrid rail system, which killed and maimed 

hundreds of innocent civilians. This coming July marks the second 

anniversary of the terrorist bombing throughout London’s public 

transportation system. Last summer, a number of bombs tore 

through Mumbai’s system. Just last month, a passenger train outside New Delhi caught fire when suitcases filled with flammable 

liquid were exploded as the train headed for Pakistan. 

Despite all of these attacks, rail and public transportation security remains a secondary issue to aviation security. The 9/11 Act 

that Congress passed in 2004 directed TSA to develop a national 

strategy for transportation security. TSA produced a document, but 

it was not a comprehensive strategy. 

The President directed the Department of Homeland Security to 

complete a transportation sector specific plan more than 3 years 

ago. This plan has yet to be completed. 

Last December, the president issued an executive order directing 

the Department of Homeland Security to strengthen surface transportation security. Yet in the fiscal 2008 budget, the president only 

requested an additional $4 million for TSA’s surface transportation 

budget. 

2 

TSA’s entire surface transportation budget is less than 1 percent 

of the president’s requested for aviation security. Similarly, I am 

concerned about the money the President has requested for rail 

and public transportation security grants. $175 million for rail and 

public transportation security grants is not enough money when 

one considers the millions of men and women who use these systems daily. 

I am also concerned about the lack of training for frontline rail 

and public transportation workers. Labor organizations say that 

their members are not being given the training to respond to acts 

of terrorism. According to the National Transit Institute, only 

about 30 percent of the transit employee workforce has received the 

proper training developed by the NTI and federal agencies. 

Shouldn’t mandatory training for our frontline workers be mandatory and ongoing? 

I am also worried about security issues surrounding the transportation of hazardous material. In a survey completed by the 

Teamsters last year, rail workers reported that equipment and 

HAZMAT shipments were left unattended and unsecured. Additionally, dangerous HAZMAT shipments still passed through populated areas even when alternative routes is feasible. 

I know that DHS and DOT have issued proposed regulations that 

address some of these HAZMAT issues. But I am worried they do 

not go far enough. It is as though the Administration is waiting for 

the worst-case scenario before taking aggressive action. Well, the 

Committee has taken action. 

We have been working on a bipartisan basis to develop the Rail 

and Public Transportation Security Act of 2007. I appreciate subcommittee Chairwoman Jackson Lee marking up a draft of this bill 

last week. And I appreciate the cooperation we have received from 

the minority to date. This bill will require rail and public transportation systems to complete security plans and vulnerability assessments. Right now these plans are only completed on a voluntary 

basis. 

The bill will also mandate training for frontline rail and public 

transportation system employees. It will also give them whistleblower protections to encourage reporting of security risks. Thanks 

to an amendment offered by Representative Perlmutter and Jackson Lee, the bill also provides a redress process for employees who 

are terminated as a result of a background check. This bill will also 

make security grants available to rail, transit and bus systems. 

Finally, the bill will make substantial investments in the research and development we need to find new ways to secure these 

systems. My hope is that through these provisions this bill will address most of the glaring gaps that currently exist in surface transportation security. 

I look forward to working with my colleagues on this committee 

in getting this bill passed as soon as possible. Let me say that negotiations on this bill are continuing with Chairman Oberstar and 

the Transportation and Infrastructure Committee. 

I thank each of you for coming here today. I look forward to hearing your thoughts about this proposed legislation. 

3 

The chair now recognizes the ranking member of the full committee, the gentleman from New York, Mr. King, for an opening 

statement. 

PREPARED STATEMENT OF HON. BENNIE G. THOMPSON

March 6, 2007 (WASHINGTON)—Today, Committee on Homeland Security Chairman Bennie G. Thompson (D–MS) delivered the following prepared remarks for the 

full Committee hearing on the Committee Print entitled ‘‘Rail and Public Transportation Security Act of 2007’’: 

Like all Americans, I am alarmed at the lack of security for rail and public transportation systems around the country. Each weekday, 11.3 million passengers in 22 

states use commuter, heavy, or light rail. History has shown that terrorists view rail 

and public transportation systems as potential targets. 

This coming Sunday will be the three-year anniversary of the terrorist bombings 

of Madrid’s rail system, which killed and maimed hundreds of innocent civilians. 

This coming July marks the second anniversary of the terrorist bombings throughout London’s public transportation system. Last summer, a number of bombs tore 

through Mumbai’s rail system. Just last month, a passenger train outside New 

Delhi caught fire when suitcases filled with flammable liquids were exploded as the 

train headed for Pakistan. 

Despite all of these attacks, rail and public transportation security remains a secondary issue to aviation security. 

The 9/11 Act that Congress passed in 2004 directed TSA to develop a National 

Strategy for Transportation Security. TSA produced a document, but it was not a 

comprehensive strategy. 

The President directed the Department of Homeland Security to complete a 

Transportation Sector Specific Plan more than 3 years ago. This plan has yet to be 

completed. 

Last December, the President issued an Executive Order directing the Department of Homeland Security to strengthen surface transportation security. Yet, in 

the fiscal year 2008 budget, the President only requested an additional 4 million 

dollars for TSA’s surface transportation budget. 

TSA’s entire surface transportation budget is less than 1% of the amount the 

President requested for aviation security. Similarly, I am concerned about the 

money the President has requested for rail and public transportation security 

grants. 175 million dollars for rail and public transportation security grants is not 

enough money when one considers the millions of men and women who use these 

systems daily. 

I am also concerned about the lack of training for front-line rail and public transportation workers. Labor organizations say that their members are not being given 

the training to respond to acts of terrorism. According to the National Transit Institute (NTI), only about 30% of the transit employee workforce has received the proper training developed by the NTI and federal agencies. Shouldn’t training for our 

frontline workers be mandatory and ongoing? 

I am also worried about security issues surrounding the transportation of hazardous materials. In a survey completed by the Teamsters last year, rail workers 

reported that equipment and HAZMAT shipments were left unattended and unsecured. Additionally, dangerous HAZMAT shipments still pass through populated 

areas, even where an alternative route is feasible. I know DHS and DOT have 

issued proposed regulations that address some of these HAZMAT issues, but I am 

worried they do not go far enough. 

It is as though the Administration is waiting for the worst case scenario before 

taking aggressive action. 

Well, this Committee has taken action. We have been working on a bipartisan 

basis to develop the ‘‘Rail and Public Transportation Security Act of 2007.’’ I appreciate Subcommittee Chairwoman Jackson-Lee marking up a draft of this bill last 

week, and I appreciate the cooperation we have received from the Minority to date. 

This bill will require rail and public transportation systems to complete security 

plans and vulnerability assessments. Right now these plans are only completed on 

a voluntary basis. The bill will also mandate training for frontline rail and public 

transportation system employees. It will also give them whistleblower protections to 

encourage reporting of security risks. Thanks to an amendment offered by Representatives Perlmutter and Jackson-Lee, the bill also provides a redress process for 

employees who are terminated during a background check. 

The bill will also make security grants available to rail, transit, and bus systems. 

4 

Finally, the bill will make substantial investments in the research and development we need to find new ways to secure these systems. 

My hope is that through these provisions, this bill will address most of the glaring 

gaps that currently exist in surface transportation security. I look forward to working with my colleagues on this Committee in getting this bill passed as soon as possible. Let me also say that negotiations on this bill are continuing with Chairman 

Oberstar and the Transportation and Infrastructure Committee. In the past, jurisdictional disputes have prevented good bills that would improve national security 

from passing Congress. Chairman Oberstar and I are committed to working together 

to produce a bill that will strengthen rail and public transportation security. 

Mr. KING. Thank you, Chairman Thompson. And let me at the 

outset commend you for pushing this legislation forward. I agree 

with you that much more has to be done regarding rail and transit 

security. While there may be some differences in this legislation, I 

think these are differences of degree. And I am confident by the 

time the process is completed we should be in virtual agreement. 

And I want to thank you for your leadership on this issue. 

It is an issue of particular importance to New York. We saw it 

in Madrid. We saw it in London, the absolutely deadly impact of 

rail bombings, the impact they can have, devastating results from 

them. In New York City alone we have more than 450 subway stations, probably almost 2,000 exits and entrances to those stations. 

In addition to that, we have commuter lines. There are literally 

millions of people every day on the New York City subway and 

commuter lines. 

So this is an issue of tremendous personal impact. To any of 

those such as myself and Congresswoman Clark from New York 

who are realizing day in and day out the threat that faces our constituents. But it is a national issue. I don’t want to regionalize it. 

I just want to show the personal impact it has on us in New York. 

But I am sure that the gentlelady from the District of Columbia 

and certainly anyone from Los Angeles, Chicago—we can go 

through the whole litany of what a threat this is. And I know that 

Commissioner Falkenrath is here today from the NYPD’s counterterrorism bureau. He will be able to testify, you know, with expertise on it. But it is a very, very real issue. 

So, Mr. Chairman, I look forward to working with you on this 

legislation. I must though raise one issue which does have me concerned. That is the issue of how the grant funding will be administered. 

I think it is absolutely essential that this committee and the Department of Homeland Security continue to have jurisdiction over 

the administration of grant funding for rail and transit security. 

And I don’t say that as part of any turf battle with another committee or anything else. 

The fact is whether it is the 9/11 Commission or it is outside experts, everyone agrees that as much as possible we must centralize 

control over homeland security issues to one committee and obviously to the committee and to the Department of Homeland Security. And to be spreading that out, to be diluting that authority, to 

me, will dramatically hurt the Department of Homeland Security. 

It will certainly decrease the jurisdiction of this committee. And besides that, it will go away from the whole idea of risk and threatbased funding that we are fighting so hard for. 

So I would hope that as the process goes forward—and I know 

that Chairman Oberstar has legislation which would, in effect, be 

5 

giving his committee jurisdiction over that issue, we do all that we 

can to make sure that jurisdiction stays with this committee and 

ultimately that the Department of Homeland Security retains the 

power and the authority to distribute grants for rail and transit security. 

So with that, I look forward to working with you. I thank you 

for the truly bipartisan effort that has gone into this. And I yield 

back the balance of my time. 

Mr. THOMPSON. Thank you very much. I can assure the ranking 

member that your comments about the jurisdiction of the committee have been heard, and we have had very serious negotiations 

about that with T&I, and we will continue to do it. Your position 

and my position the same. 

Other members of the committee are reminded that under the 

committee rules opening statements may be submitted for the 

record. 

I welcome our first panel of witnesses. 

Kip Hawley is the administrator of TSA. Mr. Hawley brings more 

than 20 years of transportation and technology experience to TSA. 

I also want to note that Robert Jamison, the deputy administrator of TSA responsible for rail security, is here as well, sitting 

right behind Mr. Hawley. 

And I thank both of you for being here today. 

Terri Rosapep is a deputy associate administrator for program 

management at the Department of Transportation. He has been 

with the fellow Transit Administration for 5 years and has over 25 

years of transportation experience at the municipal and regional 

level. 

Welcome, sir. 

Richard Fairfax is the director of enforcement at the Occupational Safety and Health Administration of the Department of 

Labor. 

Welcome, also. 

Richard Falkenrath is a deputy commissioner for counterterrorism for the city of New York Police Department. He is one of 

the premier scholars and leaders in homeland security issues to 

emerge since 9/11. 

Without objection, the witnesses’ full statement will be inserted 

into the record. 

I now ask each witness to summarize his statement for 5 minutes, beginning with Mr. Hawley. 

STATEMENT OF HON. KIP HAWLEY, ADMINISTRATOR, 

TRANSPORTATION SECURITY AGENCY, DEPARTMENT OF 

HOMELAND SECURITY 

Mr. HAWLEY. Good morning, Mr. Chairman, members of the committee. It is a pleasure to be with you this morning to discuss 

TSA’s work in partnership with many of the people represented 

here this morning in support of our nation’s surface transportation 

systems. 

I am pleased to appear today with several of our colleagues in 

the public and private sectors because our surface transportation 

security efforts are enhanced by the partnerships we have with 

them. 

6 

We return to these partnerships again and again because the 

measures they have already put in place form a very solid security 

foundation. Our job is built upon what has been accomplished 

layering additional value onto our partner security efforts. 

We do that with intelligence sharing, vulnerability analysis, technology sharing, grant programs and, when appropriate, our viper 

teams through which TSA brings together federal air marshals, K– 

9 teams, and transportation security officers at the invitation of 

local law enforcement to provide a visible and unpredictable security presence in a variety of surface transportation environments. 

TSA centers its decision making on the assessments of surface 

transportation. One of our fundamental principles is to take advantage of all the work done prior to 9/11, even if it wasn’t originally 

done for security. With regard to mass transit and freight rail, we 

build upon the work done by the Federal Transit Administration, 

the Federal Railroad Administration, and other elements of the Department of Homeland Security, as well as the industry, which has 

conducted numerous vulnerability and readiness self-assessments. 

Consistent with Secretary Chertoff’s risk-based strategy for DHS, 

our assessments lead us to understand our vulnerabilities and direct our priorities. They lead us to focus on high-consequence risk 

reduction and the security fundamentals. The high-risk priorities 

for rail are high-density passenger transit systems in urban areas 

with underwater or underground tunnels and highly toxic chemicals in rail cars that are standing unattended in high-risk urban 

areas. 

Our mitigation measures include federal grant priorities for the 

passenger transit systems and an innovative and immediate risk 

reduction approach to freight rail. In addition to the two areas 

mentioned, our risk assessment evaluation leads us to focus on creating visible, unpredictable, random deterrents and on raising the 

overall level of security, the fundamentals. The three most important fundamentals are employee training, employee preparedness 

and public awareness. 

Employee training is the backbone of good security. And training 

is a top priority. We have surveyed the industry and have focused 

our inspectors on determining how well-trained are the frontline 

operators. 

The results indicate, as you mentioned in your opening statement, Mr. Chairman and Mr. King, there is much work to be done. 

We are working aggressively to address this issue. Our plan is to 

take advantage of the training programs and the train the trainer 

programs that FTA industry and other agencies have developed. 

Just last week we reissued guidance for the 2007 transit security 

grant program that will streamline the delivery of funding to transit agencies to get this training done. Also, we are moving toward 

a requirement whereby grant applicants cannot receive funding 

through the transit security grant program unless they demonstrate they already have the fundamentals well-covered or they 

gear their grant application for funds to address their deficiencies. 

In 2003 and including the president’s budget for fiscal year 2008, 

the Department of Homeland Security will make available almost 

$20 billion in funds that can be used to meet priority local security 

7 

needs. At the same time, DHS will make available nearly $750 million specifically targeted at mass transit security. 

TSA is committed to making sure those funds translate into risk 

reduction and an improved security baseline. 

Thank you, Mr. Chairman. I would be happy to answer your 

questions. 

And also, I just wanted to also reintroduce Robert Jamison, who 

is our deputy administrator, as you mentioned, also formerly deputy administrator at FTA and acting federal rail administrator, as 

well as John Salmon, who has got his 30 years in the rail transportation area, who spearheads our partnership efforts. So those gentlemen are with us today, too. 

[The statement of Mr. Hawley follows: ] 

PREPARED STATEMENT OF THE HONORABLE KIP HAWLEY

Good morning Chairman Thompson, Ranking Member King, and Members of the 

Committee. I am pleased to appear before you today to talk about our efforts at the 

Transportation Security Administration (TSA), in partnership with the Department 

of Transportation (DOT) and our transportation network partners, in the field of rail 

and surface transportation security. Many of these important security steps are 

built upon and fortified by a solid safety foundation that has been developed over 

the years by our transportation partners and DOT. 

Raising the Security Baseline of an Interconnected Network 

As we continue to strive to improve the security of these vital transportation systems, we must not forget the principles that make them viable and efficient. Many 

of these systems have been designed with mobility and ease of access as an essential 

component of their operational success. 

These very attributes—openness, accessibility, fast-paced operations, high passenger volume—present us with our greatest security challenge. 

Our efforts must work within this framework to enhance security while preserving the efficiency of these systems. 

Intelligence 

Non-linear risk drives everything we do. Instead of focusing on predicting the next 

attack, TSA takes a flexible approach and uses a risk-based methodology to address 

potential vulnerabilities to attack. 

TSA pursues a layered approach to security in transportation, including passenger 

transit, highway, pipeline, and freight rail security. This approach starts by 

leveraging the work of United States Government entities that takes place well beyond the doors of TSA and even America’s shores through effective gathering, analysis, and dissemination of intelligence. As detailed below, we do this by working collaboratively with the transportation and shipper industries, as well as with State 

and local officials. 

The disruption of the terror plot in the United Kingdom and of the developing plot 

targeting underwater tunnels connecting New York and New Jersey during this 

past summer illustrates the necessity of this approach. The best defense is one that 

prevents the terrorists from ever entering the United States. TSA complements 

these efforts by pursuing as a strategic and operational priority the expansion of 

visible, unpredictable deterrence environments in our surface transportation systems to disrupt terrorists’ planning and preparation activities and execution of their 

missions. For example, our aviation system security measures provide a significant 

barrier to entry for potential terrorists coming to our country. Our government’s investments and improvements in terrorism watch lists, border security, and intelligence networks significantly enhance surface transportation security. 

Network Approach and Strategy 

To effectively address transportation security, we employ a network approach. The 

overall transportation system is a network. It has intersections and junctions; and 

while each transportation mode has its own security challenges, there are common 

vulnerabilities and mitigation strategies. In an effort to employ the range of security 

resources most effectively, we work closely with transportation networks to leverage 

our security impact and determine risk-based priorities. 

8 

Building on this approach, TSA implements a comprehensive strategy that applies 

a common methodology across all transportation networks, regardless of mode. That 

strategy is simple and straightforward. It consists of five elements: • Assess industry threat, vulnerability, and consequence; • Develop baseline security standards; • Assess actual security status against baseline security standards; • Develop plans to close gaps between actual status and baseline security 

standards; and 

• Develop enhanced systems of security. 

Next, let me discuss how this strategy works in practice for the freight rail, passenger rail and rail transit, highway (trucking) and pipeline industries. 

Industry Threat Vulnerability and Consequence Assessments (TVC) 

The purpose of threat, vulnerability, and consequence assessments is to focus efforts on and highlight risk areas. Since September 2001, many Federal agencies and 

industry partners have been involved in significant efforts to identify the highest 

risk areas for our security focus. Those efforts have centered on analyzing threats, 

assessing vulnerabilities, and calculating consequences of potential terrorist attacks. 

Based upon this large body of work and our ongoing analysis, TSA determines the 

areas of highest risk for each mode of transportation so that we can properly focus 

on risk mitigation efforts. 

Freight Rail-TVC. Over the past several years, TSA has completed a number of 

freight rail corridor assessments in high threat urban areas. The point of the corridor assessments is to focus on high risk areas and determine the 

vulnerabilities. We have completed regionally based assessments in New Orleans, 

LA; Washington, DC; Houston, TX; Buffalo, NY; Cleveland, OH; and several cities in New Jersey including Newark, Elizabeth, and Perth Amboy. We are currently assessing Los Angeles, CA, and plan to visit additional urban areas in 

2007. The results of the initial six assessments demonstrated recognizable trends 

and risks. We identified railcars with toxic inhalation hazard materials (TIH) 

sitting unattended to be a high risk potential as a terrorist target. While these 

shipments represent less than one percent of all rail shipments, if attacked they 

could create an airborne hazard and potentially endanger the lives of people living and working in those communities. 

Passenger Transit-TVC. (Amtrak falls within our passenger transit division.) TSA 

has taken leadership in this area through a dual-track assessment initiative. 

Through the Baseline Assessment for Security Enhancement (BASE) program, TSA 

Surface Transportation Security Inspectors (STSIs) assess transit agencies’ posture 

in 17 Security and Emergency Management Action Items encompassing a range of 

areas essential to an effective security program such as security and emergency 

management planning, risk and vulnerability assessments, implementation of random, unpredictable deterrence, training, drills and exercises, public awareness campaigns, and facility, personnel, and information security. A concurrent initiative involves transit agencies conducting self-assessments on six fundamental areas and 

reporting the results to TSA. 

In assessing security in this area, TSA is building upon a base of knowledge derived from 37 assessments of readiness to prevent, detect, deter, and respond to terrorist incidents, conducted by the Federal Transit Administration (FTA) and the 

Federal Railroad Administration (FRA). The extensive field work conducted by TSA 

and these agencies in conjunction with the industry has been utilized to set our priorities and identify industry baseline standards. TSA and FTA/FRA assessments, in 

addition to in-house risk analysis, focus on passenger transit operating procedures 

and high risk/high consequence assets. 

Highway (Trucking)—TVC. TSA has been assessing the security risks of motor 

carriers through the Corporate Security Review (CSR) program, another form of assessment of industry readiness and vulnerabilities. Based up on our analysis we are 

focused on TIH and other hazardous chemicals of concern, which include explosives, 

flammables and other poisonous materials. 

Pipeline-TVC. Through the CSR program for pipelines, TSA has identified a number of pipeline systems that pose the highest security risk. TSA will also conduct 

a pipeline infrastructure study to identify the highest risk pipeline assets. 

Baseline Standards 

The purpose of baseline standards is to create measurable risk reduction targets. 

Freight Rail Baseline Standards. Because the potential risk posed by unattended 

TIH rail cars in high threat urban areas was identified as the highest risk area in 

rail, TSA developed a risk reduction goal of reducing the objectively-measured risk 

of TIH cars in high threat urban areas by 25 percent per year, starting in 2007. 

9 

That risk factor takes into account car hours, the population of urban areas and the 

proximity to residential and commercial structures. 

TSA has also identified 27 other focus areas as security action items for the rail 

industry to begin to address. The actions items were released to the industry in 

June and November 2006. The action items focus on security awareness training, 

security focused inspections, suspicious activity reporting, control of sensitive information and employee identification. TSA is assessing conformity with the security 

action items to evaluate how implementation of the action items reduces objectively 

measured risk. 

Passenger Transit Baseline Standards. Applying the information and experience 

gained from extensive assessments, in-house risk analysis performed at TSA and 

dialogue with the industry, TSA has developed baseline standards for the industry 

based on six fundamental principles. Those principles are: 

• Protect high risk/high consequence underground/underwater assets and systems; 

• Protect other high risk/high consequence assets and systems identified in vulnerability assessments; 

• Use visible, unpredictable deterrence; 

• Plan and conduct awareness and response training for key personnel; 

• Plan and conduct emergency drills and exercises; and 

• Plan and conduct public awareness and preparedness campaigns. 

Highway (Trucking) Baseline Standards. TSA has been working closely with a 

number of chemical shippers to develop a series of baseline security standards for 

both TIH and other hazardous chemicals of concern. Those standards will address 

specific areas such as vehicle tracking, vehicle attendance, vehicle alarm systems, 

truck cab access controls, locking fifth wheel on tank trailers and security route and 

stop areas. 

Pipeline Baseline Standards. TSA has been conducting corporate security reviews 

targeting the top 100 pipeline operators. From the results of these reviews, TSA has 

developed a series of security standards based upon the best operating practices of 

those companies. The pipeline standards address areas including security plans, employee security training, access controls and physical access security, and employee 

background investigation. 

Assess Security Status. The purpose of assessing security status is to determine how individual 

operations compare to the baseline standards. The assessment procedures vary depending upon transportation mode. Assessments in rail and passenger transit are conducted by TSA’s field inspector force, while 

highway and pipeline assessments are conducted by TSA’s subject matter experts in each network management division. The assessments are structured to target key areas of concern and to capture essential data 

to evaluate current practice versus baseline standards. 

Freight Rail Status. In order to evaluate the security baseline in freight rail, 

TSA in cooperation with the rail industry is developing a comprehensive database driven system to identify the specific locations where TIH risk is the highest. TSA inspectors will verify attended/unattended status and proximity to 

high risk structures. In addition to identifying high risk locations, the database 

will give TSA the ability to identify TIH cars in near real time. This capability 

will allow us to more effectively respond to emerging threat situations. 

Further, TSA inspectors have conducted field interviews with key rail management and personnel. Over 2,600 interviews have been completed, focused on employee security awareness, security procedures and systems to locate and protect 

TIH cars. 

Passenger Transit Status. The results of TSA’s dual-track assessment initiative 

have indicated variations in security posture among passenger rail and mass 

transit agencies. To date, 42 of the top 50 agencies by passenger volume have 

completed the self-assessment and reporting the results to TSA. The reports 

show the agencies have taken these reviews seriously. The concurrent STSI-led 

effort has completed in depth BASE assessments on 28 agencies in this group, 

driving more deeply into the specifics of security plans and procedures, operational security activities, and programs for employee security training, drills 

and exercises, and public awareness. Additional assessments have been scheduled, with the objective of covering all of the top 50 agencies, then moving on 

to agencies ranked 51 through 100. The data indicates varying security status 

among systems. The results are shaping TSA’s strategic and operational security priorities, including security enhancement programs, grant funding, and engagement with individual passenger rail and mass transit agencies. Follow-on 

assessments will measure progress in improvement in the Actions Items and 

the fundamentals. 

10 

Highway (Trucking) Status. TSA conducts highway corporate security reviews 

and assessments. Those assessments are targeted at companies hauling TIH 

and other hazardous chemicals of concern. TSA will compare actual practice to 

baseline standards. 

Pipeline Status. TSA will use its ongoing corporate security review process to 

determine the implementation of baseline standards. TSA will continue to work 

with individual companies to improve their security status. 

Closing Gaps. Once assessments have identified the gaps in actual practice compared to baselines 

standards, TSA develops action plans to close the gaps and takes steps where necessary to close the gaps 

in all modes. We have a variety of capabilities at our disposal including industry agreements, voluntary 

measures, security directives, and regulatory action. 

Freight Rail-Close Gaps. In order to reduce the gaps between actual practice 

and baseline standards, TSA pursued a two-pronged approach. We issued a Notice of Proposed Rulemaking (NPRM) on December 21, 2006, which includes 

several provisions to strengthen the security of the Nation’s freight rail systems 

in the highest threat urban areas. The proposed rule establishes incident reporting procedures, codifies TSA’s inspection authority, requires rail company 

security coordinators, and most importantly creates a positive chain of custody 

from beginning to end which requires secure handoffs when cars change hands. 

While the proposed rule provides a number of important security initiatives, TSA 

believed that additional, speedier steps could be taken. As a result, we reached an 

agreement with the rail industry to reduce unattended TIH standstill car time in 

high threat urban areas beginning in early 2007. A comprehensive database will be 

used to identify highest priority risk reduction opportunities and working in conjunction with TSA, the rail carriers will develop site-specific action plans to reduce 

or remove the TIH risks. In addition to reducing the TIH risks, TSA will work with 

rail carriers to improve the security performance in the security training and security procedures baseline. TSA is also developing an improvised explosive device 

(IED) training course for rail employees to be available in the second quarter of 

2007. 

Passenger Transit-Close Gaps. The strategies to close security gaps start with 

high risk/high consequence assets. 

As we know, an attack on underground, underwater, and other critical infrastructure can dramatically increase the consequences by magnifying the actual impact, 

complicating the response efforts and substantially prolonging the recovery time. 

We must remain focused on minimizing high consequence risks. TSA, in partnership DHS’s Office of Grants and Training (G&T), is leveraging the Transit Security 

Grant Program funds to focus on reducing risk and increasing security capabilities 

in State and local transit systems with the most risk. Including the President’s 2008 

budget, the Department of Homeland Security provided over $748 million to transit 

agencies and Amtrak in this pursuit. 

An interagency transit tunnel risk mitigation working group has ranked this infrastructure for attention based on risk, established research and development priorities, and produced a comprehensive list of measures to guide transit agencies with 

this infrastructure in their security enhancement efforts. Working with the Science 

and Technology Directorate of DHS (S&T) and the National Laboratories, we are 

advancing new testing methodologies to expand our understanding of the physical 

effects of explosives events in transit tunnels to inform the continued development 

of technological solutions for risk mitigation. 

While transit agencies cannot harden every entry point, nor screen every passenger coming into busy stations, they can deploy visible, unpredictable mobile 

teams that disrupt terrorists’ planning capabilities and provide high levels of security. TSA assessments review the scope and quality of transit agencies’ efforts in 

this area. Expanding such deterrence is a funding priority under the TSGP. TSA 

supplements the activities of transit agencies by expanding our canine program and 

leveraging our security network to create surge capacity with Visible Intermodal 

Protection Response (VIPR) Teams. 

VIPR Teams, consisting of Surface Transportation Security Inspectors (STSIs), canine teams, Federal Air Marshals (FAMs), and advanced screening technology, provide TSA the ability to leverage a variety of resources quickly and effectively. These 

deployments are designed to raise the level of security in any mode of transportation 

across the country in heightened security environments. The teams work with local 

security and law enforcement officials to supplement existing security resources, 

provide deterrent presence and detection capabilities, and introduce an element of 

unpredictability to disrupt potential terrorist planning activities. More than 30 

VIPR exercises have been conducted at key commuter and regional passenger rail 

facilities, and more are planned throughout 2007. The transition to regional planVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
11 

ning and employment will expand the frequency of these exercises, enhancing their 

deterrent effect. 

Explosives detection canine teams are being trained, certified, and deployed by 

TSA to passenger transit systems. Since late 2005, TSA’s National Explosive Detection Canine Team Program (NEDCTP) has worked in partnership with passenger 

transit systems to train, certify, and deploy 56 explosives detection canine teams to 

13 major systems in a risk-based application of resources. Forty-two of these teams 

are currently in place and the other 14 are projected for training, certification, and 

deployment in the coming months. In addition, the President’s fiscal year 2008 

budget proposes an additional $3.5 million to strengthen dramatically NEDCTP by 

approximately 45 teams to support the Nation’s largest mass transit systems and 

expand coverage to ferry systems. 

I want to emphasize that our STSI workforce and the canine teams we fund for 

passenger transit are just the point of the spear. There are literally thousands of 

transit and rail law enforcement and security officers on duty night and day to provide security where they are needed for these segments of the transportation network. Furthermore, each rail and passenger transit system makes a deliberate and 

strategic decision when they develop their annual budgets as to where they should 

apply their revenues and other funding sources to close security vulnerabilities. This 

approach creates a more effective network of local security rather than deploying 

a far greater Federal workforce to perform these same functions. 

Since the security of these systems is a shared responsibility among Federal, 

State, and local partners, the Administration has provided significant resources to 

bolster these security efforts since 9/11. Funds from DHS grants programs may be 

used for planning, training, exercises, equipment, and other security enhancements. 

With the fiscal year 2007 funding, DHS will have invested nearly $18 billion in local 

planning, organization, equipment, training, and exercises. 

In addition to visible unpredictable deterrence, TSA recognizes that training for 

key personnel is essential to rail as its baseline of security. There are numerous 

passenger transit training courses available today. Well-trained, vigilant employees 

provide a security force multiplier in a transit system, adding eyes and ears critical 

to detection and prevention. Readiness to report and respond to incidents in a timely manner can mitigate consequences and expedite recovery. 

Based on our assessments in the field, it is evident that we must make sure that 

transit agencies have a comprehensive training program for front-line employees. 

Working with FTA and a peer advisory group of transit police chiefs and security 

directors, TSA has produced a training plan to guide transit agencies in providing 

basic and follow-on training for the range of their employees—train operators, station managers, control system personnel, and various levels of management. To expedite improvement in this area, we have recently amended the Transit Security 

Grant Program to streamline the application process to ensure quick, priority funding for employee training. We have also provided the option for transit agencies to 

request reprogramming of their prior grant funding so they may quickly address 

this deficiency. 

As noted, TSA is using the TSGP to drive improvement in the six security fundamental areas, most notably training for key personnel, drills and exercises and public awareness and preparedness. Elevated posture in these areas provides the foundation for an effective transit security program. 

The $175 million TSGP is the centerpiece of DHS’s interagency strategy to close 

gaps between operator security status and baseline standards. For purposes of the 

TSGP, ‘‘transit’’ includes Amtrak, which is eligible for $8.3 million, and commuter 

ferry systems, which are eligible for $7.8 million. The TSGP guidance emphasized 

the six fundamental principles previously mentioned, as well as efforts in support 

of the national preparedness architecture. We are directing transit grant awards 

based on the results of the system security assessments, the security fundamentals, 

and support of national preparedness. DHS leverages the grants program to close 

the gaps at high risk properties. 

Highway (Bus and Trucking)-Close Gaps. TSA is working on a number of strategies to close gaps in performance versus actual standards. We are currently 

considering a number of voluntary incentive programs and regulatory options. 

TSA, in partnership with G&T, is using the Intercity Bus Security Grants Program which was funded at $12 million in FY 2007 to close gaps in the overthe road bus industry and the Trucking Security Program also funded at $12 

million in FY 2007 to address security issues in the trucking industry. 

Pipeline-Close Gaps. TSA has had an extensive working relationship with the 

pipeline industry. TSA has prepared an employee security awareness training 

program for all pipeline employees, worked with operators to prepare or imVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
12 

prove security plans, conducted site specific visits to evaluate security practices, 

and developed risk mitigation strategies for high risk assets. This cooperative 

relationship has resulted in improved conformity to baseline standards. 

Enhanced Systems of Security 

The final part of our strategy is to enhance the systems of security. As we take 

actions to close gaps, we also need to improve security technology and explore the 

way these technologies may apply to multiple modes of transportation. 

DHS is developing a number of screening techniques and technologies which may 

be implemented or deployed quickly to systems facing a specific threat, or in support 

of major events such as National Special Security Events (NSSEs). Pilot programs 

to test these technologies are already underway in several major American cities. 

Through the DHS Science and Technology (S&T) Directorate’s Rail Security Pilot 

(RSP), DHS has field tested the effectiveness of explosives detection techniques and 

imaging technologies in partnership with the Port Authority of New York and New 

Jersey. Close coordination between TSA and S&T ensures that technology development and testing for the mass transit environment align with TSA’s strategic priorities. To ensure technology enhances security capabilities in transit agencies, the 

Federal effort seeks development of mobile and fixed systems amenable to the demands of the transit environment that may be deployed flexibly for maximum deterrent effect and protection of high risk infrastructure. Pilot testing will employ equipment in this manner to validate capabilities most effectively. Future research and 

development initiatives will maintain this focus. 

The Systems Support Division (SSD) of G&T has conducted operational tests to 

evaluate manufacturer claims on ballistic-resistant trash receptacles and published 

a report of its findings to help ensure mass transit systems, among others, have the 

facts needed to guide critical procurement decisions. Similarly, SSD has published 

a closed circuit television (CCTV) technology handbook to provide a reference point 

on current CCTV technologies, capabilities and limitations. 

Finally, we maintain mobile security equipment, which can fit into two standard 

size shipping containers, for rapid deployment for use in screening and detection at 

any major system in the country should the need arise. 

In addition to technologies that may apply primarily to passenger modes, TSA is 

working closely with a number of parties to develop advanced railcar tracking systems with geofenced event-notification capabilities. TSA is also cooperating in efforts 

to develop next generation hazardous materials rail cars designed to better withstand terrorist attacks and operating accidents. 

TSA is working with selected hazardous material carriers to test truck tracking 

and control technologies. We are also in the early stages of security technology applications to the pipeline industry. Two specific areas TSA is involved in are blast 

mitigation and unmanned aerial surveillance vehicles. 

Presidential Action and TSA’s Objectively Measured Risk Reduction Process 

On December 5, 2006, the President issued Executive Order 13416, which builds 

upon the improvements made in surface transportation security since September 11, 

2001, specifically actions taken under Homeland Security Presidential Directive 7, 

‘‘Critical Infrastructure Identification, Prioritization, and Protection’’ (HSPD–7). Executive Order 13416 requires the strengthening of our Nation’s surface transportation systems by the facilitation and implementation of a comprehensive, coordinated, and efficient security program. As the Federal official with principal responsibility for protecting surface transportation infrastructure, Secretary Chertoff has the 

lead in implementing this policy in coordination with the Secretary of DOT and the 

heads of other relevant agencies. The order sets deadlines for key security activities 

including security assessments of each surface transportation mode and an evaluation of the effectiveness and efficiency of current Federal Government surface transportation security initiatives. We continue to build upon current security initiatives 

to develop a comprehensive transportation systems sector specific plan, as defined 

in the National Infrastructure Protection Plan (NIPP). The five-part strategy cited 

earlier in my testimony is meeting the requirements of the Executive Order. 

Annexes to DHS-DOT Memorandum of Understanding 

Three annexes to a September, 2004 memorandum of understanding between 

DHS and DOT have been completed and signed, evidencing the close and continuous 

cooperation between TSA and DOT to leverage resources. 

The first, between TSA and FRA, memorializes how we will coordinate our programs and initiatives at an agency level to better secure passenger and freight railroad transportation, and improve stakeholder relationships, and to include assisting 

railroads in prioritizing assets and addressing current and emerging threats and 

vulnerabilities. While TSA is responsible for rail security and FRA is responsible for 

13 

rail safety, the annex provides detailed operational guidance to enable the two agencies to avoid duplication and maximize efficiency and cooperation in their planning, 

inspection, training and enforcement activities. 

The second annex is between the Pipeline and Hazardous Materials Safety Administration (PHMSA) and TSA. This annex delineates our respective roles and responsibilities regarding pipelines and hazardous materials transportation security. 

It discusses sharing data and compliance information between the agencies, coordinating research and regulatory activities, providing joint public information and 

emergency response materials, collaboration in inspection and enforcement activities, and sharing technical support. 

The third annex is between the Federal Transit Administration (FTA), DHS/G&T, 

and TSA. It similarly provides for close and continuous cooperation between the two 

respective agencies in matters relating to security of the Nation’s transit systems. 

Eight working groups have been established under the Annex, coordinating Federal 

efforts in such areas as security training, security standards development, assessments, exercises, public awareness, and information sharing. 

Together, these annexes allow much more efficient use of the government’s time 

and money, while maximizing the value of what these agencies can achieve for industry and the traveling public. 

Summary 

TSA has a clear strategy to address surface transportation security. That strategy 

focuses first on identifying areas of high risk and then establishing baseline security 

standards to address those risks. Once baseline standards are established, we assess 

the actual status of security in the transportation industries, and in close coordination with stakeholders, devise strategies for bringing actual practices up to the 

standards we have established. Finally, we are developing advanced systems of security through a coordinated research and development program, to further enhance 

security beyond the baseline standards. In furtherance of this strategy, I have established an Office of Transportation Sector Network Management specifically to address the cross-cutting issues that affect all aspects of the transportation sector as 

a unified whole. The intermodal members of this Office are implementing our transportation security strategy through cooperation with stakeholders where appropriate, regulation and inspection where necessary, and through the distribution of 

grants to assist the industry to implement these objectives we have set forth. 

I understand that rail and surface transportation security legislation is a priority 

for the Committee. The Department and TSA look forward to working cooperatively 

with the Committee as we have in the past. 

Regarding the recently proposed legislation, H.R. 1269, we agree with many of the 

objectives of its provisions. The commitment to a comprehensive program for sustained security enhancement is laudable. As such, there is much opportunity to 

work together toward our common purpose of bolstering security in transit agencies 

nationwide. Working with the Committee, we will aim to ensure that deadlines in 

the bill are realistic, that mandates are not so proscriptive as to constrain executive 

action and flexibility in the execution of security programs, that funding levels are 

focused on high—consequence risk reduction, and that new legislative requirements 

do not merely duplicate our current efforts. We appreciate your initiative in this 

area, which provides a framework for further discussions as the legislative process 

moves forward. 

Thank you for this opportunity to inform you of our efforts in freight rail, commuter rail and other transit, trucking and pipeline security. I would be happy to 

answer any questions that you might have. 

Mr. THOMPSON. Thank you very much for your testimony. 

I now recognize Mr. Rosapep to summarize his statement for 5 

minutes. 

STATEMENT OF TERRY ROSAPEP, DEPUTY ASSOCIATE 

ADMINISTRATOR, PROGRAM MANAGEMENT, DEPARTMENT 

OF TRANSPORTATION 

Mr. ROSAPEP. Thank you. Chairman Thompson and Ranking 

Member King and members of the committee, on behalf of the secretary of transportation and the administrator of the Federal Transit Administration, I am pleased to have this opportunity to update 

you on FTA’s public transportation security program. 

14 

America’s transit systems are complex, dynamic and inter-connected. Comprised of over 6,000 individual transit operators, these 

systems by nature are open and accessible and therefore, difficult 

to secure. Each work day public transportation moves approximately 14 million passengers in the United States. 

After 9/11, FTA developed an aggressive transit security initiatives program. Key elements of this program included conducting 

readiness assessments at 37 of the largest transit systems, representing upwards of 90 percent of all transit riders. These assessments provided a comprehensive view of transit system preparedness, gaps and additional needs and helped shaped the development of three important priorities that continue to form the fundamental baseline of transit security, that being employee training, 

public awareness and emergency preparedness. 

Another key initiative was an outreach effort called connecting 

communities security and emergency preparedness forums. These 

forums held at 18 regions across the country improved public agency coordination and planning efforts between transit agencies, 

emergency management agencies, law enforcement and other partners. 

Another activity involved deploying technical assistance teams 

on-site at the 50 largest transit agencies. The technical assistance 

teams used FTA’s top 20 security action items as an assessment 

tool to help transit agencies identify any gaps in their security program and develop products to fill those gaps. 

Finally, security drill and exercise grants were provided to over 

80 transit agencies. These grants helped transit agencies plan, conduct and evaluate various types of security exercises ranging from 

tabletop programs to large-scale interagency regional drills. 

In September of 2005, FTA, the Transportation Security Administration, and the Office of Grants and Training signed an annex 

to the DOT/DHS memorandum of understanding regarding security 

roles and responsibility. This MOU annex provides a structured 

framework for close collaboration among the federal partners. 

FTA, TSA and G&T continue to build upon the initial post–9/11 

security initiatives in partnership with industry stakeholders such 

as the American Public Transportation Association and local transit agencies. Key activities now underway include an eyes and ears 

public awareness toolkit known at transit watch. Transit agencies 

can use the toolkit material or customize them to fit their own specific need such as the New York City subway systems’ see something, say something message to educate passengers to be mindful 

of their environment and how to react should they see something 

suspicious. 

In the area of training, the curriculum has been expanded with 

the addition of new security forces such as the terrorist activity 

recognition and reaction training course for frontline transit employees. Almost 8,000 employees have taken this training. And another course titled strategic counterterrorism for transit managers 

has been delivered to over 750 transit managers. 

Another initiative is the connecting communities forums. The 

next phase of these new updated forums has begun. Last month a 

connecting communities forum was held in the national capital region at the WMATA training facility. 

15 

Reflecting the importance of stakeholder outreach, FTA, TSA and 

G&T are conducting semi-annual safety and security roundtables 

to address direct stakeholder outreach. The roundtables bring together the safety and security chiefs of the 50 largest agencies plus 

other key industry leaders for peer-to-peer informational exchanges. The last roundtable was held in Newark, New Jersey in 

December. And the next roundtable is tentatively scheduled for 

Chicago this spring. 

And finally, we are working with our federal partners to develop 

security standards to provide transit agencies with consistent 

benchmarks and recommended practices. Leveraging the success of 

the FTA–APTA process for developing standards in other areas, we 

are proceeding closely with our federal partners to develop standards in key security areas such as infrastructure protection, risk 

assessment and emergency preparedness. 

Mr. Chairman, members of the committee, please be assured that 

FTA will continue to work closely with Congress and our partners 

at DHS to strengthen the nation’s public transportation security. 

Thank you for this opportunity to speak today. And we will be 

happy to answer any questions you may have. 

[The statement of Mr. Rosapep follows:] 

PREPARED STATEMENT OF TERRY ROSAPEP

Chairman Thompson, Ranking Member King, and other members of the Committee, thank you for this opportunity to testify today on behalf of the Secretary of 

Transportation and the Federal Transit Administration (FTA). I am pleased to have 

this opportunity to update you on transit security and how the U. S. Department 

of Transportation’s (DOT) initiatives in that area support the Department of Homeland Security’s (DHS) transportation security mission. Additional DOT initiatives in 

support of railroad security were previously detailed in the Federal Railroad Administration’s February 6 testimony before this committee, and I refer the Committee 

to that Statement. 

FTA and Transit Security 

America’s transit systems are dynamic, interconnected, and composed of over 

6,000 local systems. Unlike airports, these systems are also inherently open, and 

therefore difficult to secure. In New York’s Penn Station alone, more than 1,600 people per minute pass through its portals during a typical rush hour. The combination 

of open access and large numbers of people makes transit systems an inviting target 

for those who seek to cause the United States harm. The deliberate targeting of the 

public transportation systems in Tokyo, Moscow, Madrid, and London by terrorists 

underscores this point. 

FTA, the Federal Railroad Administration (FRA), other Federal and State partners, and the transit industry have built a solid foundation for security in the years 

following the attacks of September 11, by focusing on three security priorities: public awareness, employee training, and emergency preparedness. After September 11, 

2001, FTA undertook an aggressive nationwide security program and led the initial 

Federal effort on transit security. The initial response included conducting threat 

and vulnerability assessments in 37 large transit systems, 30 of which carry almost 

90 percent of all transit riders. The assessments at that time gave us a comprehensive view of transit system readiness, vulnerabilities, and consequences, and identified the three important priorities that continue to form the fundamental baseline 

of DOT’s transit security initiatives. 

Today, under Executive Order 13416, FTA, in partnership with FRA and DHS, 

continues to build upon these priorities as they provide focused benefits to the dynamic, open nature of America’s transit network. Employee Training develops the 

skills of 400,000 front-line transit employees, who are the eyes and ears of the transit network, and first line of defense against terrorism. Public Awareness programs 

such as Transit Watch educate passengers to be mindful of their environment, and 

how to react should they see something suspicious. Emergency Preparedness programs build local, collaborative relationships within communities that allow for 

quick and coordinated response in a crisis. Over the last five years, we have learned 

16 

that terrorists adapt and change their strategies in response to security measures. 

But regardless of where an attack comes from or how it is devised, security training 

of employees and the awareness of passengers can help to prevent or mitigate it. 

In 2002, to help guide transit agency priorities, FTA issued a ‘‘Top 20 Security 

Action Item List’’ to improve transit safety and security operations, particularly 

with regard to employee training, public awareness, and emergency preparedness. 

In a joint effort coordinated with the Mass Transit Sector Coordinating Council, 

FTA, and the Transportation Security Administration (TSA), the Security Action 

Items for transit agencies were revised in 2006. 

The Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy 

for Users (SAFETEA–LU) mandates several steps to move transit security forward 

through collaboration among Federal, State, local, and private entities. In September 2005, FTA and two agencies within DHS—TSA and the Office for Domestic 

Preparedness, now the Office of Grants and Training (G&T)—signed the Public 

Transportation Security Annex to the DOT/DHS Memorandum of Understanding 

(MOU) on security. The MOU recognizes that DHS has primary responsibility for 

transportation security and that DOT plays a supporting role, providing technical 

assistance and assisting DHS when possible with implementation of its security 

policies as allowed by DOT statutory authority and available resources. The Annex 

identifies specific areas of coordination among the parties, including citizen awareness, training, exercises, risk assessments, and information sharing. To implement 

the Annex, the three agencies have developed a framework that leverages each 

agency’s resources and capabilities. 

With the Annex in place as a blueprint, FTA, TSA and G&T have established an 

Executive Steering Committee. Since 2005, the Executive Steering Committee has 

interacted with DHS, DOT, FRA and transit industry leaders. This committee oversees eight project management teams that spearhead the Annex’s programs. Each 

of these programs advances one or more of FTA’s three security priority areas (public awareness, employee training, and emergency preparedness). We have been implementing the Annex energetically since its inception. 

The eight teams are as follows: 

1. Risk Assessment and Technical Assistance Team 

The Risk Assessment and Technical Assistance team is using a risk-based approach to transit security, working toward one industry model for conducting 

transit risk assessments. The team issued the ‘‘TSA/FTA Security and Emergency Management Action Items’’ and is developing the Next Generation Security and Emergency Management Technical Assistance Program Master Plan to 

identify and prioritize industry security needs. 

2. Transit Watch and Connecting Communities Team 

The Transit Watch and Connecting Communities team is reinstating and expanding these two FTA programs, which foster public awareness and coordinated emergency response. The initial roll-out of Transit Watch helped to institute this program at many transit agencies across the country. The next phase of Transit Watch, 

recently released, includes a focus on unattended bags, Spanish language materials 

and emergency evacuation instructions. Twelve new Connecting Communities forums are scheduled for 2007; the second forum is being held this week in the National Capitol Region, at WMATA’s Turner facility in New Carrollton, Maryland. 

3. Training Team 

The Training team is developing new courses on timely security topics such as security design considerations and National Incident Management System (NIMS) for 

transit employees, and also working towards developing one integrated security 

training curriculum. 

4. Safety and Security Roundtables TeamThe Safety and Security Roundtables 

team works on direct stakeholder outreach. They are responsible for planning 

two roundtables each year for the safety and security chiefs of the 50 largest 

transit agencies and Amtrak. The roundtable format emphasizes peer-to-peer informational exchanges among the participants. The last roundtable was held in 

Newark, New Jersey in December 2006 and the next roundtable is tentatively 

scheduled for Chicago this spring. 

5. Web-based National Resource Center Team 

The Web-based National Resource Center team is developing a secure library site 

for information on best practices, grants, and other security matters. Access to the 

National Resource Center will be available to security chiefs of transit agencies. 

6. Emergency Drills and Exercises TeamThe Emergency Drills and Exercises 

team is updating the program to incorporate DHS Exercise program guidance. 

The scope of this effort includes both tabletop exercises and regional field drills. 

17 

7. Annual Plan and Grant Guidance Team 

FTA lends its subject matter expertise to the DHS Infrastructure Protection grant 

process. In the context of the MOU Annex, FTA is also able to leverage its longstanding working relationships with transit agencies to help TSA vet security initiatives. 

8. Standards and Research TeamThe Standards and Research team’s primary 

focus is the development of industry security standards. This is a critical area 

because it provides transit agencies with consistent industry benchmarks and 

recommended practices. Leveraging the success of the FTA, FRA and American 

Public Transportation Association (APTA) process for developing standards in 

other areas, FTA is proceeding closely with its Federal partners to develop standards in key areas such as infrastructure protection, risk assessments and emergency preparedness. 

I would like to add that FTA also supports security projects through its Urbanized 

Area Formula Grant Program. Under this program, transit agencies are required to 

spend at least 1 percent of their annual formula fund allocation on public transportation security, or to certify that they do not need to spend 1 percent of their allocation for such purposes. For transit agencies in Urbanized Zone Areas (UZAs) over 

200,000 in population, only capital projects are eligible to count towards the 1 percent security threshold. SAFETEA-LU usefully expanded the definition of capital 

projects to include security planning, training and emergency drills and exercises. 

In contrast to TSA’s broad statutory authority for security in all modes of transportation, FTA has limited statutory and regulatory authority on security matters, and 

does not have a dedicated security grant program. FTA has done a great deal to 

assist transit agencies in improving their security practices through training programs, research, technical assistance and oversight activities. FTA and FRA continue to work together to improve passenger rail and rail transit security. FTA will 

continue to use all of these resources, in close collaboration with TSA and G&T to 

improve transit security. 

I want to assure you that FTA has been, and is, using all of the resources and 

capabilities in its toolbox to strengthen the joint security initiative formalized in the 

September 2005 Public Transportation Security Annex to the DOT/DHS MOU. The 

MOU Annex expands that toolbox. Since September 11, 2001, transit security has 

benefited from exceptionally strong partnerships, and genuinely collaborative initiatives, among the industry, different agencies and departments, and the MOU Annex 

captures that spirit of cooperation. 

Please also be assured that the FTA will continue to strengthen public transportation security. We look forward to continuing to work with Congress to achieve the 

goal of protecting our Nation’s public transportation infrastructure. I would be 

happy to answer any questions you may have. Thank you. 

Mr. THOMPSON. Thank you very much for your testimony. 

I now recognize Mr. Fairfax to summarize his statement for 5 

minutes. 

STATEMENT OF RICHARD FAIRFAX, DIRECTOR OF 

ENFORCEMENT PROGRAMS, OCCUPATIONAL SAFETY AND 

HEALTH ADMINISTRATION, DEPARTMENT OF LABOR 

Mr. FAIRFAX. Good morning, Chairman Thompson and ranking 

member, distinguished members of the committee. Thank you for 

the opportunity to appear before you today to discuss OSHA’s administration of the whistle-blower provision for the 14 statutes that 

we enforce. 

While the administration has not taken an official position on the 

whistle-blower legislation you are considering, I will be able to discuss the scope in OSHA’s administration of these statutes and how 

OSHA addresses the respective whistle-blower complaints, which 

we hope will be of assistance to you. 

When the Occupational Safety Act law was passed in 1978, 

OSHA authority was limited to a single statute, section 11C of the 

OS Act. Currently we employ approximately 72 field investigators 

that enforce 14 whistle-blower statutes. Also under OSHA, 26 

18 

states operate their own state plan programs under section 18 of 

the OS Act. And under this section, they enforce their equivalent 

of section 11C of the OS Act. For the other 13 statutes, OSHA enforces those in those state planned states. 

The general provisions of each statute are administratively enforced by the primary agency while OSHA administers only the 

whistle-blower provisions of those statutes. A whistle-blower complaint under any of the 14 statutes is based on the belief by an employee that he or she has been retaliated against through an unfavorable personnel action for that employee’s engagement in a protected activity. In some cases, complainants can file under more 

than one statute. 

To establish a violation under any of the 14 statutes, our investigators have to establish a prima facie case which consists of four 

elements. 

The first is that protected activity, meaning the OSHA, must establish that the complainant engaged in an activity protected by 

this specific statute. 

Employer knowledge: OSHA must establish that the person involved in the decision to take adverse action was aware of or suspected that the complainant engaged in a protected activity. 

Adverse action: OSHA must establish the complainant suffered 

from some form of adverse employment action initiated by the employer. 

And finally, nexus: OSHA must establish a causible link or a 

nexus between the protected activity and the adverse employment 

action. 

In investigating a whistle-blower complaint under any of the 

statutes, the Department of Labor does not represent the complainant nor the respondent, but, in fact, is a neutral fact finder. Investigators must test both the complainant’s allegation and the respondent’s non-retaliatory reason for the alleged adverse action. 

Consequently, investigations can become quite complicated and 

time consuming as multiple interviews are required and evidence 

along with it—multiple interviews are required and gathering evidence along with statements must be verified. If the investigator 

is unable to prove by the preponderance of evidence that any of the 

elements form a prima facie case, we dismiss the complaint. 

An investigation consists of gathering evidence by two principle 

means, both interviewing the complainant and all the respondent’s 

witnesses and the complainant’s witnesses and then collecting documentary evidence. Once the investigative report is written, the 

secretary’s findings can be issued. The statutes require that the 

secretary through OSHA either dismiss the case or find reasonable 

grounds to believe that a violation of the relevant statute has occurred. 

We call this in our lingo a merit case. In a merit case, the remedies available and permitted vary according to the individual statute. Remedies not only involve corrective action for the complainant, but also involve issues to address the impact of the violation 

in the workplace. Both complainants and respondents have the 

right to appeal 11 of the 14 statutes. These appeals go before an 

administrative law judge. And then both parties can further appeal 

this before the administrative review board. 

19 

I would like to take a few moments and just, I guess, talk about 

the program. Presently we average about 1,900 cases a year under 

our 14 statutes. Remember that we only have 72 investigators. 

While the statutes have differing prescribed timeframes for completion of the investigation and issuance of findings, we have found 

that we are seldom able to meet our time requirements to complete 

these investigations. 

Despite the increased number of the statutes and increasing 

number of complaints filed under the newer statute, the total number of complaints varies each year from 1,800 to 2,100. The outcomes of the complaints for the fiscal year 2006 are consistent with 

past years. Of the approximately 1,900 complaints we investigated, 

65 percent we dismissed. 

Fourteen percent were withdrawn by the complainant, and approximately 22 percent we found in favor of the complainant. Of 

that 22 percent, 66 were settled by OSHA. Twenty-eight percent 

were settled by the parties themselves. And approximately 6 percent were not settled, and we issued a merit finding. 

In conclusion, I hope the testimony has shed light on our complex 

process by which we cover whistle-blower complaints under the 14 

statutes. 

And I would be more than happy to answer any questions the 

committee may have. Thank you. 

[The statement of Mr. Fairfax follows:] 

PREPARED STATEMENT OF RICHARD E. FAIRFAX

Good morning Chairman Thompson, Ranking Member King, distinguished Members of the Committee, ladies and gentlemen. Thank you for the opportunity to appear before you today to speak to you about OSHA’s administration of the whistleblower provisions of fourteen statutes. Also, I understand the Committee would like 

the Department’s views on the ‘‘Rail and Public Transportation Security Act 

of 2007.’’ The Administration does not yet have an official position on the legislation 

so I will not be able to comment on specific provisions in the bill. As a general matter, however, we would caution that an overly broad expansion of covered protected 

activity, particularly combined with a broad definition of adverse action, could result 

in the Department of Labor becoming the arbiter of another agency’s employment 

disputes, which could also be resource-intensive for the Department. 

Organization and Responsibilities 

When the Occupational Safety and Health Act became law in 1970, OSHA had 

no specific program for investigating complaints filed under the Act’s whistleblower provision, Section 11(c). Initially, complaints were investigated by Compliance Safety and Health Officers in the field. By 1974, it had become apparent that 

specialized skills were needed to conduct retaliation investigations, and in 1975, a 

central whistleblower investigation office was established. This office consisted of 

two supervisors and ten investigators, all located in the ten regional offices around 

the country. By 1980, there were over 70 investigators and supervisors. In 1981, the 

whistleblower program was again decentralized, with responsibility delegated to 

each of the ten Regional Administrators. Currently, the whistleblower program employs 72 full-time field investigators, nine supervisors, and one program manager 

in the field. 

Under my direction, the Office of Investigative Assistance (OIA) develops policies 

and procedures for the Whistleblower Protection Program, administers appeals of 

cases dismissed under 11(c), the Asbestos Hazard Emergency Response Act of 1986 

(AHERA), and the International Safe Container Act (ISCA), develops and presents 

formal training for Federal and State field staff, and provides technical assistance 

and legal interpretations to field investigative staff. OIA employs six staff. 

Twenty-six states operate state plans pursuant to Section 18 of the Occupational 

Safety and Health Act of 1970, which provides that any state that desires to assume 

responsibility for development and enforcement of occupational safety and health 

standards may do so. To establish a state plan, a state must submit to the Secretary 

of Labor a state plan for the development of such standards and their enforcement. 

20 

Private-sector employees in state plan states may file occupational safety and health 

retaliation complaints with either federal OSHA or the state or both. Complaints 

under any of the other thirteen whistleblower statutes administered by OSHA fall 

under the jurisdiction of Federal OSHA. 

History of Delegation of Statutes to OSHA 

In the 1980s and 1990s, because of the perceived expertise of the OSHA retaliation investigators, whistleblower investigative and administrative responsibilities 

under the Surface Transportation Assistance Act of 1982 (STAA), ISCA, and 

AHERA were delegated to OSHA to administer. For similar reasons, in 1997, under 

an agreement with the Department’s Wage & Hour Division, the enforcement of the whistleblower provisions of six environmental statutes and the nuclear 

safety statute, the Energy Reorganization Act (ERA), was delegated to OSHA. 

In 2001, the enforcement of the whistleblower provisions of the Wendell H. Ford 

Aviation Investment and Reform Act for the 21st Century (AIR21) was added, and 

in 2002, the enforcement of the whistleblower provisions of the Sarbanes-Oxley Act, 

(SOX) and the Pipeline Safety Improvement Act of 2002 (PSIA) was also added. 

The Fourteen Whistleblower Statutes Administered by OSHA 

The whistleblower provisions of the following statutes are administered and enforced by the primary agency. For example, OSHA enforcement officers investigate 

the safety or health complaints underlying a whistleblower complaint, the FAA investigates airline safety complaints, the Federal Motor Carrier Safety Administration investigates violations of commercial motor carrier safety complaints, and the 

SEC investigates allegations of corporate fraud. • Section 11(c) of the Occupational Safety and Health Act of 1970 (11(c)) • Asbestos Hazard Emergency Response Act of 1986 (AHERA) • Clean Air Act of 1977 (CAA) • Comprehensive Environmental Response, Compensation, and Liability Act of 

1980 (CERCLA) 

• Energy Reorganization Act of 1978 (ERA) • Federal Water Pollution Control Act of 1972 (aka Clean Water Act) (FWPCA) • International Safe Container Act of 1977 (ISCA) • Pipeline Safety Improvement Act of 2002 (PSIA) • Surface Transportation Assistance Act of 1982 (STAA) • Safe Drinking Water Act of 1974 (SDWA) • Solid Waste Disposal Act of 1976 (SWDA) • Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the 

Sarbanes-Oxley Act of 2002 (SOX) 

• Toxic Substances Control Act of 1976 (TSCA) • Wendell H. Ford Aviation Investment and Reform Act for the 21st Century 

(AIR21) 

Jurisdiction 

Investigators must confirm that complaints fall within the jurisdiction of a whistleblower statute administered by OSHA. Investigators review every new case upon 

assignment to ensure the complaint was timely filed, that a prima facie allegation 

is present under one of the statutes, and that the case has been properly docketed 

and all parties notified. If he or she has not already done so, the investigator checks 

on prior or current retaliation, safety and health, or other regulatory cases related 

to either the complainant or the employer. This enables the investigator to coordinate related investigations and obtain additional background data pertinent to the 

case at hand. If the complaint fails to meet any of the elements of a prima facie 

allegation, or if other jurisdictional issues preclude the continuation of the investigation, the complaint must be dismissed, unless it is withdrawn. 

The Elements of a Violation 

Under the whistleblower statutes, employers are not permitted to retaliate 

against an employee for engaging in activities protected by statute. To prove a violation, each of the four elements of a prima facie allegation must be proven. The elements are: 

Protected Activity 

It must be established that the complainant engaged in activity protected by the 

specific statute(s) under which the complaint was filed. Protected activity generally 

falls into four broad categories: providing information relating to an alleged violation of the law to a government agency (e.g., OSHA, FMCSA, EPA, NRC, DOE, 

FAA, SEC, DOT), a supervisor (the employer), a union, health department, fire department, Congress, or the President; filing a complaint or instituting a proceeding 

provided for by law, for example, a formal occupational safety and health complaint 

to OSHA under Section 8(f); testifying in proceedings; and, under some of the statVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
21 

utes, refusing to perform an assigned task on the basis of a reasonable apprehension 

of death or serious injury or refusing to perform a task that is deemed illegal under 

the specific statute(s). 

Employer Knowledge 

The investigation must show that a person involved in the decision to take the 

adverse action was aware, or suspected, that the complainant engaged in protected 

activity. For example, a respondent manager need not have specific knowledge that 

the complainant contacted a regulatory agency if the complainant’s previous 

internal complaints would cause the respondent to suspect a regulatory action was 

initiated by the complainant. 

Adverse Action 

The evidence must demonstrate that the complainant suffered some form of adverse employment action initiated by the employer. Although the language of the 

statutes may differ, they frequently use the terms ‘‘discharge or otherwise discriminate.’’ The phrase adverse employment action has been defined in the decisions of 

many courts, including the Supreme Court. This is an area of the law that is currently in flux, and investigators and supervisors regularly review decisions to keep 

up-to-date on case law. Examples of retaliatory employment actions include discharge, demotion, reprimand, harassment, lay-off, failure to hire or recall, failure to 

promote, blacklisting, transfer to a different job, change in duties or responsibilities, 

denial of overtime, reduction in pay, denial of benefits, and constructive discharge, 

wherein the employer deliberately created working conditions that were so difficult 

or unpleasant that a reasonable person in the employee’s situation would have felt 

compelled to resign. 

Nexus 

A causal link—nexus—between the protected activity and the adverse action must 

be established. Nexus cannot always be demonstrated by direct evidence, such as 

animus (exhibited animosity) toward the protected activity. It may also involve proximity in time between the protected activity and the adverse action (timing), disparate treatment of the complainant in comparison to other similarly situated employees, false testimony or manufactured evidence, or a pretextual defense put forth 

by the respondent. 

Under ten of the statutes administered by OSHA, a complainant must prove by 

a preponderance of the evidence that the alleged adverse action was motivated by 

the alleged protected activity in order to establish that the law was violated. Under 

four of the statutes, a complainant must prove by a preponderance of the evidence 

that the alleged protected activity was a contributing factor to the alleged adverse 

action. Once a complainant establishes a prima facie case that his or her protected 

activity was either a motivating or contributing factor in the adverse action, the 

burden of production shifts to the respondent to articulate a reason for the adverse 

action. The burden then shifts back to the complainant to establish that the respondent’s articulated reason was a pretext for discrimination or that the respondent’s reason, while true, is only one of the reasons for its conduct, and that another 

reason was complainant’s protected activity. To avoid liability in a ‘‘mixed 

motive’’ case, the respondent must demonstrate, depending on the statute, either by 

a preponderance of the evidence or by clear and convincing evidence, that it would 

have taken the same adverse action notwithstanding the complainant’s protected activity. 

Investigating Complaints 

DOL does not represent either the complainant or the respondent; as neutral factfinders, investigators must test both the complainant’s allegation and the 

respondent’s non-retaliatory reason for the alleged adverse action. It is on 

this basis that relevant and sufficient evidence is identified and collected in order 

to reach the appropriate disposition of the case. If the complainant is unable to 

prove by preponderance of the evidence any of the elements of a prima facie allegation, the case is dismissed. 

Early Resolution 

OSHA makes every effort to accommodate early resolution of complaints in which 

both parties seek resolution prior to the completion of the investigation. An early 

resolution is often beneficial to both parties, since potential losses are at their minimum when the complaint is first filed. Consequently, the investigator is encouraged 

to contact the respondent immediately after completing the evaluation interview if 

he or she believes an early resolution may be possible. However, the investigator 

must first determine if an inspection or investigation under the substantive provisions of the various statutes is planned prior to any contact with a respondent, so 

as not to inadvertently give notice to the respondent of an imminent OSHA (or FAA 

22 

or other) inspection. Thereafter, at any point the investigator can explore how an 

appropriate settlement may be negotiated and the case concluded. 

On-site Investigation 

Personal interviews and collection of documentary evidence are conducted on-site 

whenever practicable. Generally, investigators personally interview all appropriate 

witnesses during a single site visit. The respondent’s designated representative has 

the right to be present for all management interviews, but interviews of employees 

are to be conducted in private. In limited circumstances, testimony and evidence 

may be obtained by telephone, mail, or electronically. 

Interviewing the Complainant 

The investigator generally arranges to meet with the complainant as soon as possible to interview and obtain a statement detailing the complainant’s allegations. 

The complainant is asked to provide a list of witnesses and all documentation in 

his or her possession relevant to the case. The investigator also ascertains the restitution sought by the complainant and advises the complainant of his or her obligation to seek employment, in order to mitigate any possible damages, and to maintain records of interim earnings. 

Contact with the Respondent 

Following receipt of OSHA’s letter notifying the respondent of the complaint, the 

respondent submits a written position statement, which may or may not include 

supporting evidence. In some instances, the material submitted may be sufficient to 

adequately document the company’s official position. However, in most cases, 

the investigator needs to visit the respondent’s worksite to interview witnesses, review records and obtain documentary evidence, or to further test the respondent’s 

stated defense. 

The investigator generally interviews all company officials who had direct involvement in the alleged protected activity or retaliation, and attempts to identify other 

persons (witnesses) at the employer’s facility who may have knowledge of the situation. While at the respondent’s establishment, the investigator makes every effort 

to obtain copies of, or at least review and document in a memorandum to file, all 

pertinent data and documentary evidence which the respondent offers and which 

the investigator determines is relevant to the case. 

If necessary, subpoenas may be obtained for testimony or records when conducting 

an investigation under § 11(c) or AHERA. The other whistleblower provisions do not 

authorize subpoenas. If the respondent fails to cooperate or refuses to respond, the 

investigator evaluates the case as best as possible and makes a determination based 

on the available evidence. 

Analysis 

After having gathered all relevant evidence available and resolved any discrepancies in testimony, the investigator evaluates the evidence and draws conclusions 

based on the evidence and the law, according to the requirements of the statute(s) 

under which the complaint was filed. 

Upon completion of the field investigation and after discussion of a non-meritorious case with the supervisor, the investigator again contacts the complainant in 

order to provide him or her the opportunity to present any additional evidence the 

complainant deems to be relevant. If the complainant offers any new evidence or 

witnesses, the investigator then ascertains whether such information is relevant, 

and if so, what further investigation might be necessary prior to final closing of the 

case. 

Documenting the Investigation 

Investigators document any and all activities associated with the investigation of 

a case, developing a substantial case file that contains the original complaint; the 

respondent’s response(s); all of the documentary evidence; memoranda to the file 

about every contact with any party or witness that is otherwise not documented, 

such as through a witness statement; all correspondence to or from the parties, 

other government agencies, or others; results of any research conducted; the Final 

Investigative Report; and a copy of the Secretary’s Findings or other correspondence 

closing the case. 

Issuance of Secretary’s Findings and Orders, if Appropriate 

Once the Final Investigative Report is written, the investigator forwards it, together with the case file, to the supervisor for review and concurrence, so that Secretary’s Findings can be issued. This allows either dismissal of the case or a finding 

of a violation of the relevant statute. If there is a violation, the investigator, where 

appropriate, broaches the subject of settlement with the respondent. If the respondent is amenable, settlement negotiations may be initiated. The appropriate remedy 

23 

in each individual case will already have been carefully explored and documented 

by the investigator. 

Remedies 

The remedies available and permitted vary according to statute, and are subject 

to legal interpretations and decisions. Remedies not only involve corrective actions 

for the individual who filed the complaint, but also address the impact of the violation on the entire work force. Thus, to prevent a chilling effect or to ensure that 

a similar violation does not recur, orders may include requirements for posting, 

management training, and informational speeches to workers and their representatives. 

Full relief of the complainant’s loss is generally sought during settlement 

negotiations, but compromises may be considered in appropriate cases to accomplish 

a mutually acceptable and voluntary resolution of the matter. If settlement is 

reached, an agreement is signed and the case is closed. If an equitable settlement 

is impossible, OSHA issues to the respondent Secretary’s Findings and an 

Order, by way of which the complainant is made whole. Restitution may encompass 

any or all of the following, and it is not necessarily limited to these: 

•7 Reinstatement or preliminary reinstatement—depending on the statute under which the complaint was filed—to the same or equivalent job, 

including restoration of seniority and benefits that the complainant would have 

earned but for the retaliation. 

• Wages lost due to the adverse action, offset by interim earnings. 

• ‘‘Front pay,’’ which encompasses future wage losses, calculated from the enddate of back-wages, and projected to an agreed-upon future date in cases where 

reinstatement is not feasible. 

• Expungement of all warnings, reprimands, or derogatory references resulting 

from the protected activity that have been placed in the complainant’s personnel 

file or other records. 

• Respondent’s agreement to provide a neutral reference to potential employers 

of the complainant. 

• Posting of a notice to employees stating that the respondent agreed to comply 

with the relevant whistleblower statute and that the complainant has been 

awarded appropriate relief. 

• Compensatory damages, such as out-of-pocket medical expenses resulting 

from cancellation of a company insurance policy, expenses incurred in searching 

for another job, vested fund or profit-sharing losses, or property loss resulting 

from missed payments. 

• Compensatory damages under certain statutes, such as for pain and suffering, 

including mental anguish, the loss of a home, loss of reputation, etc. 

• A lump-sum payment to be made at the time of the signing of the settlement 

agreement as agreed by the parties. 

• Punitive damages, under certain statutes, when a management official involved in the adverse action knew about the relevant whistleblower statute before the adverse action or when the respondent’s conduct is egregious. 

The Surface Transportation Assistance Act of 1982, the Wendell H. Ford Aviation 

Investment and Reform Act for the 21st Century (AIR21), the Sarbanes-Oxley Act 

of 2002 (SOX), and the Pipeline Safety Improvement Act of 2002 (PSIA) authorize 

the Secretary to order preliminary reinstatement based on her investigative findings. However, in the last few years, the Secretary and complainants have experienced some difficulty in compelling recalcitrant employers to comply with preliminary reinstatement orders issued by either OSHA or the Office of Administrative 

Law Judges under AIR21 and SOX. Although AIR21 (as well as SOX, by incorporating AIR21) expressly provides that the filing of objections does not stay the 

Secretary’s preliminary order reinstating the employee, the jurisdictional provisions 

of the statute reference only a section entitled ‘‘final orders.’’ Accordingly, a number 

of judges have held that they lack authority under the statute to enforce preliminary reinstatement orders even though the statute explicitly states that those orders are not to be stayed during the administrative adjudication. Those judges have 

interpreted the statute as providing the Secretary and whistleblowers with a cause 

of action to enforce only final orders of the Secretary. 

Hearings and Appeals 

Because of OSHA’s role as a neutral fact-finder, many of its findings are not challenged. Complainants or Respondents who object to OSHA’s findings under the Energy Reorganization Act of 1978, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, the Sarbanes-Oxley Act of 2002, the Pipeline Safety 

Improvement Act of 2002, the Surface Transportation Assistance Act of 1982, and 

the environmental statutes may request a de novo hearing before a Department of 

24 

Labor Administrative Law Judge (ALJ). After a decision is issued by an ALJ, review 

of the case is by the Administrative Review Board (ARB), which is authorized to 

issue final orders of the Secretary of Labor. Depending on the whistleblower law involved, the ARB either reviews the entire ALJ decision under a de novo standard 

of review, or de novo on matters of law, and a ‘‘substantial evidence’’ standard of 

review on the ALJ’s findings of fact. Judicial review of final agency decisions is in 

the U.S. Courts of Appeals. 

Actions under OSHA, AHERA, and ISCA are enforced by the Secretary in district 

court. There is no statutory right to appeal OSHA, AHERA, and ISCA determinations by OSHA. The agency-level decision is the final decision of the Secretary of 

Labor. However, if a complaint is dismissed, the complainant may request from the 

Director of the Directorate of Enforcement Programs (DEP) a review of the case file. 

This review is not de novo. Rather, a committee constituted of staff of the Office 

of Investigative Assistance and the Office of the Solicitor’s Occupational Safety and 

Health Division (the appeals Committee) reviews the case file and findings for proper application of the law and for substantial evidence. If the investigation is found 

to be lacking, the case is remanded to the field to be reopened for further investigation. 

Program Performance 

The complexity of complaints filed under the more recently enacted statutes has 

resulted in longer OSHA investigations that exceed in length their statutory timeframes. 


11012-1.eps
25 

This discrepancy between the timeframes prescribed in the statutes and agency 

practice is not limited to the investigative stage. The Office of administrative Law 

Judges and the Administrative Review Board face the same challenges. Indeed, two 

years ago, when Congress amended the Energy Reorganization Act of 1978 (ERA), 

it added, among other things, the ‘‘kick-out’’ provision allowing complainants to remove a case to U.S. District Court if the Department of Labor failed to issue a final 

decision within a year, so long as the delay is not due to the bad faith of the complainant. Although the ERA amendments in 2005 did not change the statutory 90- 

day timeframe for issuing final decisions, we believe that in setting a one-year timeframe for removal to district court, Congress recognized that it is not unreasonable 

for the Department to take up to one year to complete the investigatory and adjudicative processing of a whistleblower complaint under the ERA. 

Despite the increased numbers of statutes and increasing numbers of complaints 

filed under the newer statutes, the total number of complaints filed annually remains relatively steady at 1,800 to 2,100 complaints per year. However, the proportion of the more complex cases has grown in relation to the simpler cases under the 

other statutes (see graph below). 

The outcomes of OSHA’s investigations for fiscal year 2006 are consistent with 

those of the past five or more years. The results do not vary more than five percentage points from year to years. Twenty-two percent of the investigations resulted in 

a disposition favorable to the complainant (‘‘merit’’ cases). Of thes, 66% were settled 

by OSHA, 28% were settled by the parties themselves, and inthe remainder—7%— 

OSHA issued findings or preliminary orders in favor of complainants. In addition, 

65% were dismissed, and 14% were withdrawn. Generally, investigations leading to 

dismissal of claims entail as much work and last as long as those leading to findings 

of violations. OSHA does not track the length of investigations broken out by length 

of investigation. 

The State Plan States had similar results with their 11(c)-type complaints in fiscal year 2006—60% were dismissed; 20% withdrawn; and 20% wre meritorious, of 

which 75% were settled. 

Conclusion 

I hope that my testimony has shed some light on the complex process by which 

whistleblower complaints are resolved. Not only do our investigators juggle the competing demands of numerous open cases at any one time, they must have knowledge 

and expertise in applying numerous related statutes and implementing regulations 


11012-2.eps
26 

(beyond the 14 whistleblower statutes and their particular implementing regulations). Investigators must know the parlance of, for example, federal criminal fraud 

statutes, federal securities laws and regulations, Federal Aviation Administration 

regulations, other Department of Transportation regulations, Nuclear Regulatory 

Commission regulations and many others. 

I look forward to answering any questions you might have. 

Mr. THOMPSON. Thank you very much for your testimony. 

We now recognize Mr. Falkenrath to summarize his statement 

for 5 minutes. 

STATEMENT OF RICHARD FALKENRATH, DEPUTY 

COMMISSIONER FOR COUNTERTERRORISM, NEW YORK CITY 

POLICY DEPARTMENT, CITY OF NEW YORK 

Mr. FALKENRATH. Mr. Chairman and Mr. King, thank you very 

much for the opportunity to appear here this morning. It is a great 

privilege. 

I commend your committee for taking this issue up so early in 

the 100th Congress. I agree with your assessment of its importance 

and of the threat to the mass transit systems of this country that 

you expressed in your opening statement. 

I personally wake up every day thinking there could be an attack 

in New York City. And as I go to work, I think what it could be. 

I think the single most likely target of a terrorist attack, if I had 

to pick one, would be an attack on our mass transit systems and 

in particular, our subway because of the vulnerability of that system, the density of that system, and the demonstrated proclivity of 

terrorist organizations around the world to attack similar systems 

in other cities. 

I believe that New Yorkers feel the terrorist threat to mass transit more acutely than most other Americans because the city is 

more intensely reliant on mass transit than any other city in America. New York has the busiest, the densest, the most complex mass 

transit system in the Western hemisphere. 

In your opening statement, you noted that 11.2 million Americans ride mass transit every day. 6.6 million of those are in New 

York City alone, more than half. The single largest mass transit 

system is, of course, the New York City subway with 5 million people per day, 5.08 million in September 2006. 

And then there are another six rail lines that operate making the 

rail system immensely complicated. Those rail lines have about 1.5 

million in addition. Then we have a bus system that 2.4 million 

New Yorkers ride every day often connecting to the rail system and 

a ferry system with over 100,000 people riding the ferry system. 

So we have an extraordinarily dense mass transit system. Fewer 

New Yorkers get to work by car relatively than any other city in 

America. They ride the mass transit system. So we feel this threat 

very acutely. 

Many different agencies are involved in protecting this system. 

But the ones who directly protect it are all state and local agencies. 

There really is no federal presence in the mass transit system 

itself. This is done at the local level. And I think it is very important for this committee to remember that as you conduct oversight 

in this area and write legislation, you will often be hearing from 

federal officials. But always remember that the security is provided 

27 

at the local level. And that is why we are grateful for this opportunity to be here today. 

The NYPD and our partner agencies have pioneered many innovative counterterrorism tactics for use in the mass transit system. 

I enumerate them in my written statement. And we think we are 

doing a reasonably good job. 

The commitment of resources to this sector is enormous. We 

alone, the NYPD, has signed 2,800 police officers just to the subway every single morning. And others are assigned as directed by 

the police commissioner as needed. And we work very closely with 

our partner agencies. 

Now, I would like to recommend a couple of changes in the draft 

bill that I reviewed. First, I would note that the federal government is not deficient in any regulatory power relating to mass transit authority. The conferral of regulatory authority in the Aviation 

and Transportation Security Act, which is now vested in the secretary of homeland security, is extraordinarily broad. 

Not to put too fine a point on it, the secretary of homeland security can order just about anything he wishes on an emergency basis 

and have the force of law behind it. So there is really no shortage 

of federal regulatory power in this area already. 

The reporting requirements in the bill, I respectfully would submit, are excessive. And in particular, we would object to those in 

section five, which create a large number of reporting requirements 

that the secretary of homeland security would impose upon state 

and local and special district agencies to fulfill. I now in New York 

am involved in reviewing many reports being generated pursuant 

to federal requirements. I am aware of almost a dozen. 

And I have got to tell you, I am going to be very honest here. 

Very few people take these reports seriously. They are really not 

that useful for the policy decision makers or the operational decision makers. And the only ones who read them, I think, are the 

contractors paid to read them and make sure that they are complying with the federal requirement. So, please, pare back section 

five. 

On the grants, three comments also expressed in my written 

statement. First, I believe the grants should be able to be used for 

personnel costs, for daily operating security costs. Second, the types 

of agencies needs to be widened who are eligible to apply for the 

grants. It is not just transit authorities who are involved in this. 

It is also law enforcement agencies not directly connected to transit 

authorities. 

And third and finally, I would request that the law direct the 

secretary of homeland security to distribute all of these funds on 

the basis of risk. I think that is a very important principle that the 

Congress really ought to throw its full weight behind. We have not 

seen that to date out of either the Congress or the executive 

branch. And we in New York believe we should see that. 

Thank you, sir. 

[The statement of Mr. Falkenrath follows:] 

PREPARED STATEMENT OF RICHARD A. FALKENRATH

Good morning, Mister Chairman, Congressman King, and Members of the Committee. I am honored to have this opportunity to represent the New York City Police 

Department this morning before your Committee. 

28 

For the record, my name is Richard A. Falkenrath,. I am the Deputy Commissioner for Counterterrorism in the New York City Police Department. Prior to joining the NYPD, I was the Stephen and Barbara Friedman at Brookings Institution. 

From 2001 until 2004, I served on the White staff, first as Director for Proliferation 

Strategy on the National Security Council staff; then as Special Assistant to the 

President and Senior Director for Policy and Plans staff within the Office of Homeland Security; and finally, as Deputy Assistant to President and Deputy Homeland 

Security Advisor. Before government service, I was an Assistant Professor of Public 

Policy at the John F. Kennedy School of Government, Harvard University. 

I commend the Committee for addressing the critical subject of mass transit security so early in the 110th Congress. This subject is one of the foremost counterterrorism concerns of the New York City Police Department. 

At your request, I am pleased to provide my views on your Committee’s draft 

‘‘Rail and Public Transportation Security Act of 2007.’’ In certain respects, this testimony builds upon the testimony I provided to the Senate Committee on Homeland 

Security and government Affairs on September 12, 2006. 

New York City’s Rail and Public Transportation Systems 

New York City has the largest, busiest, most complex rail and mass transit system, in the Western Hemisphere. No U.S. city is as intensely reliant on mass transit 

as is New York City. For this reason among others, the threat to mass transit in 

New York is real and New Yorkers feel the terrorist threat to mass transit systems 

powerfully than most Americans. 

There are seven separate passenger rail systems in the New York area: 

Transit System Daily Ridership 

Staten Island Rapid Transit 12,800 

Amtrak 60,000 

Metro-North Railroad 125,000 

Port Authority Trans-Hudson (PATH) 230,000 

Long Island Rail Road 282,000 

New Jersey Transit 857,000 

NYC Subway 5,000,000 

Total 6,566,800 

The New York City subway the largest mass transit system in the nation by far, 

with 840 miles of track and 468 stations. Indeed, New York City has only 35 fewer 

stations than all of the other subway stations in the country combined. The average 

weekday subway rider count was 5.08 million in September 2006. By ,contrast, average daily load on U.S. passenger aircraft is approximately two—nationwide. 

New York City’s transit systems rely on a complex network of underground tunnels, including 22 underwater rail tunnels (three under the Hudson River and 19 

under the East and Harlem Rivers), in addition to the two vehicular tunnels under 

the Hudson, one under the East River and one under New York Harbor. Many of 

these tunnels are old; several are less structurally robust than we would like. 

There are 468 subway stations in New York City; most were built before 1930, 

only half of which have been renovated over the last twenty years. Four of the busiest are: 

Station Daily Passenger Load 

Grand Central Terminal 737,097 

Penn Station 594,000 

Times Square Subway Station 585,315 

Union Square Subway Station 304,292 

Two major mass transit hubs are also being constructed in Lower Manhattan at 

the Fulton Street Station and under the reconstructed World Trade Center. 

Each day, an estimated 2.4 million people ride New York City buses, which operate 207 routes daily covering 12,581 bus stops. Tens of thousands of passengers 

from New Jersey Transit buses, Metropolitan Suburban Bus Authority other systems serving outlying areas make their way into the City and then transfer to MTA 

buses or the subway. 

Finally, an estimated 70,000 people, spread over 110 trips per day, ride the Staten 

Island Ferry, which is operated by New York City’s Department of Transportation. 

29 

A single ferry can carry as many as 6,000 passengers. In addition, there are a number of privately operated ferries such as the New York Waterway, which makes 

more than 1,600 trips per day carrying up to 31,000 passengers around the Port of 

New York and New Jersey. The Circle Line and NY Fast Ferry make 42 and 56 

trips per day, respectively, carrying thousands of passengers. Water taxis make 

hundreds of trips per day between 14 pick-up and drop-off locations around New 

York and New Jersey. 

II. The Terrorist Threat New York City’s Mass Transit Systems 

New York’s extraordinary network of mass transit systems is the City’s lifeblood. 

It is also, in most threat assessments, including my own, the single most likely target of another terrorist attack in New York. 

We are aware of approximately 250 terrorist attacks on rail targets between 1998 

and 2006. Most of these attacks have involved the use of improvised explosive devices against a passenger rail car. For example: 

• In March 2004, a synchronized bomb attack occurred during the morning 

rush hour on Madrid’s commuter train system, killing 191 and injuring over two 

thousand. Ten bombs detonated aboard four trains that passed through one of 

Madrid’s main transit hubs. 

• On the morning of July 7, 2005, terrorists targeted commuter system through 

a series coordinated attacks. Three underground trains and one bus were targeted. The attacks killed 52 commuters and injured close to one thousand. 

• On July 11, 2006, a series of seven bomb blasts took place over a period of 

11 minutes on the Suburban Railway in Mumbai, which like New York is a financial hub. More than two hundred people lost their lives and over 700 were 

injured in the attacks. 

Mass transit systems present several distinguishing characteristics that combine 

to make them attractive targets for our terrorist enemies. Mass transit systems are 

inherently open systems thus, easy to enter. They are densely packed with people 

at predictable-times, and an attack against mass transit can have severe economic 

impact. 

The threat to New York City’s transit system is not just theoretical; it is real. 

There have been 22 bomb threats and 31 intelligence leads related to subway attack 

plots this year. The NYPD Transit responds to approximately 300 suspicious package calls per month. 

In August 2004, shortly before the Republican National Convention, Shahawar 

Matin Siraj and James Elshafay were arrested by the NYPD for planning a bomb 

attack on the Herald Square subway station in Manhattan, not far from where the 

convention was to be held. During the spring and summer of 2004, these two individuals began to demonstrate increasing determination to attack the United States, 

transit systems in particular. Believing that an individual who was actually an undercover police officer would provide them with explosives, Siraj and Elshafay conducted pre-operational surveillance at the Herald Square station. In the spring of 

2006, Elshafay pled guilty, cooperated the prosecution and testified against Siraj. 

Siraj was found guilty of conspiring attack the Herald Square subway. On January 

8, 2007, Siraj was sentenced to 30 years in prison and on March 2, 2007, Elshafay 

was sentenced to five years. 

Counterterrorism Operations in New York City’s Mass Transit System 

Responsibility for the direct protection of mass transit systems falls to local law, 

enforcement agencies and to the transit authorities that own and operate the systems. Many transit authorities maintain their own independent police forces or employ private security guards. Thus, multiple local, state, and private security forces 

are often involved in the direct protection of mass transit hubs. 

At Grand Central Station, for example, the Metropolitan Transit Authority (MTA) 

Police Department provides security on the main concourse for Metro North, while 

the New York City Police Department secures the perimeter of the station and the 

subway lines and tracks. MTA Police and NYPD Transit Bureau police officers are 

at times supported by a detachment of New York State National Guard troops on 

state active duty. During periods of heightened alert, New York State troopers may 

be assigned to patrol and ride commuter trains. 

At Penn Station, MTA Police provide security for the Long Island Rail Road, 

where they may be supplemented by New York State troopers during periods of 

heightened alert. 

Amtrak Police patrol Amtrak lines with support from the NYPD, and New Jersey 

Transit Police provide security for New Jersey Transit lines. NYPD Transit Bureau 

officers remain responsible for securing the subway. The New York State National 

Guard also provides additional support at Penn station from time to time. 

30 

Of all the agencies involved in the security of New York City’s transit system, the 

NYPD Transit Bureau has the largest area of responsibility and provides the greatest commitment of personnel. Nearly 2,700 officers are assigned to the NYPD Transit Bureau, which secures and polices the New York City subway system. Crime 

rates in the New York subway today are extremely low by national standards and 

are lower than the Citywide average crime rates. The NYPD’s commitment of law 

enforcement personnel to the subway is a reflection of both our attack on conventional crime and our assessment of the terrorist threat to the system. 

One way to measure the risk of terrorist attack is to look at which jurisdictions 

are willing to put up their own resources, rather than wait for federal funding. As 

you know, New York City has been spending hundreds of millions of its tax revenue 

dollars to fund counterterrorism activities. 

The NYPD Transit Bureau plays a central part in counterterrorism operations in 

this high threat environment. The nature of the transit system, with its confined 

spaces, heavy mechanical equipment, and dense concentration of passengers, demands that these officers be prepared to act decisively with minimal supervision 

under the most extreme and dangerous conditions. Due to the sheer size of the system, the NYPD cannot cover all stations and all trains at all times. Therefore, the 

NYPD has developed a number of innovative counterterrorism tactics and techniques for use in the mass transit system. These techniques include: 

• Container Inspection and Explosives Trace Detection Program The NYPD routinely conducts more than 300 explosive screening deployments per week 

throughout the subway and the Staten Island Ferry; the number deployments 

is increased during periods of heightened threat or concern. These screening operations consist of either a physical inspection of bags, briefcases, and other containers being carried into the subway, or an external swab of these containers 

for explosives residue using explosives trace detection equipment. The U.S. 

Court of Appeals recently the legality of these operations, after which the practice was adopted by the Massachusetts State Police. 

• Transit Order Maintenance Sweeps (TOMS) The NYPD Transit routinely deploys teams of uniformed officers to conduct high visibility sweeps of trains for 

suspicious persons or packages. 

• Critical Response Vehicle (CRV) deployments Every day, the NYPD conducts 

high visibility counterterrorism deployments of over 150 uniformed personnel to 

high risk areas in the City, frequently including mass transit facilities. 

• Underwater tunnel operations The Special Operations Unit of the NYPD 

Transit Bureau patrols and inspects the underwater tunnels and ventilation facilities of the New York City subway every day, verifying that the alarm and 

access control devices at these sensitive locations are in working order. In addition, the NYPD Transit Bureau stations a police officer at the entrance of each 

of the subway’s underwater tunnels on a 24/7 basis. 

• Radiological detection Most NYPD Transit Bureau supervisors are deployed 

with advanced radiation sensors, and the Counterterrsim Bureau and Special 

Operations Division will from time to time conduct special radiological detection 

operations in the mass transit system. 

• Canine deployments The NYPD Transit Bureau has an active canine program 

that is currently being expanded. More than a dozen canine units are currently 

in the program; the target strength of the program is 27 canine units. In addition to detection capabilities, the dogs also serve as a deterrent to both crime 

and terrorism. 

The MTA and Port Authority Police Departments also conduct explosive detection 

operations in the portions of New York City’s mass transit system for which they 

are directly responsible. In addition, the MTA is engaged in a number of different 

chemical and biological weapons detection pilot projects in the major mass transit 

hubs and is in the process of deploying an advanced CCTV, access control, and 

alarm at its major stations. 

The New York City Police Department has also been centrally involved in a regional, multi-agency effort to enhance the security of Amtrak’s Northeast Corridor 

(NEC). The NEC Working Group includes representatives from law enforcement 

agencies with jurisdiction along the Amtrak line between Washington, DC and New 

York. Members include NYPD (Intelligence Division, Transit Bureau, Counterterrorism Bureau), Amtrak, NJ Transit, PATH, SEPTA (Southeast Philadelphia Transit Authority), Washington Metro, CSX (freight trains), Baltimore Transit, Delaware 

State Police, Maryland Police, and other law enforcement agencies covering jurisdictions through which Amtrak trains travel. All members are on a group email list 

so that information can be disseminated in ‘‘real time.’’ The Working Group meets 

quarterly and holds bi-monthly conference calls. The Working Group supports the 

31 

1The Homeland Act of 2002 superseded the Aviation and Transportation Act, vesting all powers and authorities assigned by the ATSA to the Secretary of Homeland Security. 

NEC Executive Group, which includes fhe top executives of-the agencies having a 

vested interest in the security of Amtrak and rail transportation. 

As this brief summary should make clear, the NYPD and its partner agencies 

have mad an enormous commitment of resources to the security of New York City’s 

mass transit system. We have no illusions, however, about the vulnerability of the 

system to terrorist attack or to the terrorists’ intent to attack. We have done a great 

deal, but much more remains to be done. 

The federal government, on the other hand, has done very little to improve the 

security of New York City’s mass transit system. This is understandable to a certain 

extent as the federal government has no significant operational presence in the 

mass transit system and no particular expertise as to its workings. The one thing 

the federal government has done since 9/11 of course, is make grants to the mass 

transit system operators. The recipients of these grants, of course, welcome them. 

However, given the severity of the terrorist threat to the U.S. mass transit system 

and the overall level of U.S. expenditures on homeland security and the war on terror since the terrorist attacks of September 11, 2001, the federal government’s financial commitment to mass transit security has been virtually zero. The disparity 

between the federal investment in aviation security and federal investment in mass 

transit security is a national embarrassment. 

IV. Analysis of Draft ‘‘Rail and Public Transportation Security Act of 

2007’’ 

Before reviewing the specific provisions of the draft ‘‘Rail and Public Transportation Security Act of 2007,’’ it is worth noting that that the federal government has 

already been authorized by, law to do virtually anything it wishes in the general 

area of transportation security. In particular, the Aviation and Transportation Security Act of 2001 (ATSA), as amended, declares that of the Administrator of the 

Transportation Security Administration ‘‘shall be responsible for security in all 

modes of transportation’’ (Sec. 101).1 In addition, under the terms of the ATSA, the 

TSA Administrator ‘‘is authorized to issue, rescind, and revise such regulations as 

are necessary to carry out the functions of the Administration.’’ The ATSA also gives 

TSA Administrator the power to issue these regulations immediately, exempting 

them from all other statutory and executive regulatory requirements and ‘‘without 

providing notice or an opportunity for comment.’’ This is one of the most sweeping, 

unconditional conferrals of regulatory and other executive powers in the entire U.S. 

Code, and it builds upon a wide and diverse range diverse range of other powers 

previously conferred upon the U.S. Secretary of Transportation, the National Transportation Safety Board, the Surface Transportation Board, and other federal entities. 

Thus, strictly speaking, the executive branch is not deficient in any legal authority to act, directly or indirectly, in ways that it deems important for the security 

of the nation’s rail or public transportation systems. My first observation about the 

draft Rail and Public Transportation Security Act of 2007, therefore, is that it confers no powers upon the federal executive branch that the executive dranch does not 

already possess. 

Reporting Requirements The draft Act would, however, impose upon the federal 

executive branch a variety of different reporting and procedural requirements related to rail and public transportation security. The draft Act would require the Secretary of Homeland Security to: 

• publish a nationwide ‘‘modal plan’’ (also referred to as the ‘‘National Strategy 

for Rail and Public Transportation Security’’); 

• publish a ‘‘strategic information sharing plan’’; and 

• promulgate regulations that require state and local agencies and transit authorities to conduct vulnerability assessments and prepare and implement security plans for the various different transportation systems for which they are 

responsible. 

From a legislative vantage point in Washington, these reporting requirements, 

taken in isolation, may seem appropriate, valuable, and not unduly burdensome. My 

vantage point has been from the executive branch, first in Washington and now in 

the field, so I take a different view. 

Since the attacks of September 11, 2001, the field of homeland security has been 

gripped by a mania for plans, strategies, and other mandatory reports. I myself 

have been directly involved in drafting several such documents, such as the National Strategy for Homeland Security and the National Response Plan. In New York 

City, for instance, I personally am reviewing or contributing to about a dozen difVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
32 

ferent homeland security plans, reports, or strategies mandated by the federal government, often as, a condition for receiving federal grants. Most, if not all, of these 

documents are being written merely to fulfill federal requirements; they are of almost no value to operating agencies in the field; and they seem to be ignored by 

virtually everyone except the government contractors paid to verify the reporting requirements have been met—who are, in fact, often employed by the same companies 

as the contractors retained to write the reports the first place. For these reasons, 

I have become skeptical of the value of many these ‘‘national’’ policy documents. Too 

often, they reflect only the watered-down concensus of mid-level working group participants who have no significant connection to policy and operational decision-making of the most important agencies. 

In addition, I do not believe it is reasonable to expect the Secretary of Homeland 

Security, or anyone else for that matter, to produce a useful comprehensive national 

strategy for securing all U.S. transportation systems. The complexity of the mass 

transit system in New York City alone boggles the mind. An attempt to generalize 

about the security deficiencies of all transportation systems in all parts of the 

United States—and to make meaningful proposals about how to remedy these deficiencies—is a complete waste of time. Since joining the New York City Police Department, I have learned how little Washington-based officials—as I once was— 

know about the real-world,, day-to-day activities of critical local transit authorities, 

and infrastructure operators. The sooner that the federal government, and the Department of Homeland Security in particular, realize that there are no ‘‘one-size-fitsall solutions in homeland security, the better. 

For these reasons, I would recommend that the federal reporting requirements 

contained in sections 3 and 6 of the draft Act be pared back and the reporting mandate in Section 5 be stricken entirely. 

Allocation of Grant Funds The draft Act would also authorize for appropriation 

substantial sums of money for various rail and public transportation security purposes, particularly grants to transit system operators. Specifically, the draft Act 

would authorize a total of $4.387 billion for transit security over 2008—2011, as follows. 

Purpose Amount (in millions) Percentage 

Rail Security $600 14 

Public Transport $3,360 76 

Bus Security $87 2 

Fire & Life Safety $140 3 

New York $100 

Boston $20 

Washington, DC $20 

Security R&D $200 5 

Total $4,387 100 

I fully support the expansion of federal grants to non-federal security providers. 

I would note that the sums contemplated in the draft Act are substantially higher 

than those proposed in the President’s FY2008 Budget, the Congress’s Budget resolutions, or prior year appropriations in this area. The authorization of an expense 

does no good if the funds are never actually appropriated. 

However, I have three major concerns with the particularities of the draft Act’s 

grant authorizing provisions. 

First, the draft Act fails to fund the single most important item for the 

protection and security of our mass transit system: daily security operations. According to the terms of the draft Act, the transit grants may be used only 

for ‘‘overtime reimbursement for additional security personnel during periods of 

heightened security as determined by the Secretary.’’ This is unsound for a number 

of reasons. As I previously explained, the presence of well trained and proactive law 

enforcement personnel in the mass transit system is the most important defense 

against, and deterrent of, terrorist attacks on the system. These deployments should 

be continuous, not limited merely to the Secretary’s, determinations of ‘‘heightened 

security.’’ New York City operates in a period of heightened security all the time, 

irrespective of whether a federal announcement about a threat condition has been 

made to the media. The limitation of funding to overtime costs essentially penalizes 

the security agencies in high risk areas that deploy personnel into mass transit systems on a routine basis. 

33 

If the Rail and Public Transportation Security Act of 2007 is enacted as currently 

drafted, most of the funds authorized by this Act would, if appropriated, end up 

being spent on equipment and various services provided by contractors, not the 

agencies that actually provide security grant a day-to-day basis. This bias pervades 

virtually all homeland security grant programs. It is a reflection of the interests of 

government vendors, who sell more products, and federal auditors, whose jobs are 

simplified when grants can be connected to invoices. The federal government should 

rebalance its grant programs by shifting funds from equipment and contractor services toward operational security costs. 

I recommend that the Committee revise the draft Act so that grants would be 

available to support ongoing security operations. Equipment and technological fixes 

are not the answer to mass transit security. The answer is people who can recognize 

threats and respond. The bill should allow grants to be used, subject to the approval 

of the Secretary of Homeland Security, to support not only the overtime expenses 

already in the bill, but also straight time and other ongoing personnel-expenses security to mass transit systems. This would be similar to the authority provided in 

the Fiscal Year 2007 Urban Areas Security Initiative grants, where personnel expenses for counterterrorism and intelligence are allowable expenses. 

Second, even for the limited personnel expenses permitted by the draft 

Act (mainly training), the draft Act fails to recognize that the agencies conducting security operations in the mass transit system may not be connected to the transit authorities that operate the systems. The draft Act’s definition of a ‘‘transit worker’’ is far too narrow, as it fails to recognize the diverse 

protection schemes needed to secure a transit system, which frequently crosses city, 

county, and state lines. In New York City, for example, the MTA is primarily responsible for operating the subway system, but the NYPD is responsible for patrolling and policing the subway. The draft Act would cover security training for the 

MTA employees—such as subway train operators, conductors, booth clerks, cleaners, 

property agents, etc—working within the transit systems or on MTA property, but 

the Act would not support security training for police officers assigned to the NYPD 

Transit Bureau (or specialized units such as the Emergency Services Unit, the K– 

9 Unit, or others) who are deployed to patrol subway stations, conduct random bag 

checks, and provide general security within the transit system. City, county, and 

state police agencies along Amtrak’s Northeast Corridor contribute to the protectionof this vital inter-city rail line, but their personnel expenses would similarly be excluded from the grant program due to the narrow definition of ‘‘transit worker.’’ The 

Act should reflect the nuanced organizational structures that operate and protect 

transit systems to ensure all relevant non-federal institutions and organizations are 

covered by the grants this Act seeks to provide. 

The bill should not limit training to employees of the mass transit system. Any 

person who provides to the mass transit should be eligible for training. In addition, 

in order to train someone, another person must fulfill the trainee’s duties: The overtime and backfill costs associated with training should also be eligible for reimbursement. 

Third, the draft Act fails to direct the Secretary to distribute federal 

transit security grants solely on the basis of terrorist risk. The draft Act 

would give the Secretary freedom to allocate the transit security grants on the basis 

of considerations other than objective assessments of terrorist risk. New York City’s 

experience has been that the Department of Homeland Security frequently fails to 

incorporate these objective assessments of terrorist risk into its grant allocation decisions even when it has the statutory discretion to do so. The 9/11 Commission and 

virtually all independent experts and officials agree that terrorist risk is the only 

legitimate basis for allocating homeland security funds across the nation. The 110th 

Congress has the opportunity to do what the 108th and 109th refused to do—refused to do—incorporate terrorist risk fully into federal homeland security grant 

making processes. 

Accordingly, the Committee should add to the draft Act a provision that directs 

the Secretary to allocate all grant funds authorized in the Act on the basis of objective assessments of terrorist risk, including the relative daily ridership of the mass 

transit systems. 

V. Conclusion 

I go to work every morning—frequently via mass transit—with the mindset that 

today will be the day that terrorists strike New York City again. The most likely 

scenario, I believe, is an attack in the subway system with multiple, near-simultaneous satchel bombs. The NYPD and our partner agencies have shouldered the responsibility for guarding against this horrific possibility. It is high time for the federal government to contribute in a significant way. 

34 

The Committee’s draft ‘‘Rail and Transportation Security Act of 2007’’ is a step 

in the right direction, particularly in its authorization of grant funds at a level that 

begins to be commensurate with the true terrorist risk to our mass transit system. 

I urge the Committee to make the adjustments in the draft Act that I have identified in this testimony, and I urge the Congress to not only pass the Act but also 

to appropriate funds at the levels it would authorize. 

Mr. THOMPSON. Thank you very much. 

I think Ranking Member King will agree with me that we have 

tried on two former occasions to target the money where the greatest risks happen to be. But suffice it to say when it gets over to 

the Senate, it is a different matter. But we hear you. We understand it. And we agree with you. 

I thank the witnesses for their testimony. I remind each member 

that he or she will have 5 minutes to question the panel. 

I will now start with my questions first. 

Mr. Fairfax, are you comfortable that the existing whistle-blower 

statutes managed by DOL serve a useful purpose? 

Mr. FAIRFAX. Yes, sir, I am. The 14 statutes we enforce all provide protection, whether it is protection for workers complaining 

about safety and health issues or in the case of Sarbanes-Oxley, 

complaining about reporting financial misdeeds or, you know, AIR 

21, which is the FAA dealing with airplane safety complaints. I 

think complainants need and must have a right to protect, file a 

complaint without fear of retribution. And I think all 14 statutes 

serve a very useful purpose. 

Mr. THOMPSON. Thank you very much. 

Mr. Hawley, can you give me TSA’s position on whistle-blower? 

Mr. HAWLEY. Yes, sir. We have, as you know, whistle-blower protection that is through the arrangement with the Office of Special 

Counsel. And that is a parallel system that we use and afford those 

protections to TSA employees. 

Mr. THOMPSON. Do you know how many whistle-blower complaints have been issued under that process? 

Mr. HAWLEY. I believe the answer is one from a transportation 

security officer and, I believe, something like 18 in total. 

Mr. THOMPSON. Over what period of time? 

Mr. HAWLEY. To be delivered to the committee. But I believe it 

is the—well, I will have to—not seeing any answer, we will have 

to get back to you. 

Mr. THOMPSON. Well, so we go from 1,900 a year to 18? Do you 

think that is because employees are not comfortable with the existing manner that whistle-blower complaints are held? 

Mr. HAWLEY. I have heard that opinion expressed. And I don’t 

really—I can’t say for sure eliminate that possibility. But it is 

something that is any TSA employee that has that we have a number of avenues to raise concerns, both within TSA and outside of 

TSA. And if there is anybody with any doubt, they should come forward. And there is no retribution. And there are protections 

against retribution. 

Mr. THOMPSON. So if we formalized the whistle-blower process as 

proposed in this legislation, where is TSA on it? 

Mr. HAWLEY. We would certainly work with the committee on it. 

There are maybe some technical issues, but I think that is something we would support generally. And my numbers, I am told, are 

12 non–TSOs, one TSO in the last 2 years. 

35 

Mr. THOMPSON. Thank you. And I think some of us think that 

if we had a more robust system to allow people to make complaints 

we probably would have more. I think the fact that we don’t has 

a chilling effect on employees. 

The other issue, Mr. Hawley, I have: How has your relationship 

been with DOT as you deal with matters of security? 

Mr. HAWLEY. I think very close. And we have, as we mentioned, 

we brought Robert Jamison, who is the former deputy from DOT, 

deputy administrator and acting rail administrator. And we have 

MOUs. We deal closely with Mr. Rosapep and his colleagues at 

FTA. 

Mr. Rosapep mentioned the December meeting of the roundtable. 

It is something that I attended and FTA is—actually the FTA administrator attended. So we have both formal and informal processes we work together. And I think all of us agree TSA does security, and DOT does safety. And we understand those roles and support each other. 

Mr. THOMPSON. Thank you. My comments in my opening statement talked about a report that was overdue. Can you tell us 

where we are now? 

Mr. HAWLEY. Yes, sir. It is still under review. And I accept whatever comment you would care to make on that. It is late. And the 

work is done. I think there used to be a time at TSA when our 

words were ahead of our actions. And I am pleased now that our 

actions are well ahead of our words. And we have got quite a lot 

of things we have actually done that reflect the work that went 

into those reports. And I very deeply regret that the reports are not 

here for you to review at the same time. 

Mr. THOMPSON. And you are aware that report is 3 years overdue? 

Mr. HAWLEY. Well, all I know is it is extremely overdue. You are, 

no doubt, correct. 

Mr. THOMPSON. You take my word for it? 

Mr. HAWLEY. I absolutely do. 

Mr. THOMPSON. Okay. Thank you. 

Ranking Member King? 

Mr. KING. Thank you, Chairman Thompson. 

I would ask all the members of the panel—you probably heard 

the dialogue between myself and Chairman Thompson at the start 

about the funding for these grants remaining with the Department 

of Homeland Security. Could each of the four you tell me where 

you stand on that issue? 

Mr. HAWLEY. We are in agreement with that position. DHS, the 

secretary—I think I can speak on behalf of the secretary. 

Mr. ROSAPEP. At DOT, we support that as well. We think it is 

important that transit security really be part of the overall security 

approach of states and local areas. And it is important that transit 

security be addressed really within that overall context. And DHS 

has a full range of programs that address all aspects of security. 

And we think it is important that transit stay within that mix. 

Mr. FAIRFAX. We certainly support the department’s for its transportation security. And we are still studying the bill. And our only 

aspect is the whistle-blower provision of it. And we are still looking 

at that and trying to figure out the scope of it. 

36 

Mr. FALKENRATH. We think the money should stay with DHS. 

We have a difficult enough time dealing with DHS on these monies. The arrangements of who deals with them internally at DHS 

have changed a lot in the last couple of years. We don’t need more 

change. We need to settle down, get a little bit of continuity in this 

arrangement so that we can develop the working relationships we 

need and get on with business. 

Mr. KING. Thank you. Also, I know Mr. Perlmutter is not here. 

And I just would like to ask Mr. Hawley and Commissioner 

Falkenrath—we will make available copies to you of his amendment which passed last week regarding protections for employees 

as to when they can be dismissed, et cetera, as to whether or not 

you think that would interfere with operations and secondly, 

whether or not you believe that that would preempt state and local 

officials from taking appropriate action against employees. 

Again, Mr. Perlmutter is not here. I don’t profess to be an expert 

on the amendment, but I would appreciate if before we have our 

markup next week if you could get back to us with an opinion on 

that as to how you feel the impact upon both the national level and 

also at the local level. And again, I am not reflecting Mr. Perlmutter, although I do have some concerns, though. And I would 

like to see them addressed by the department and by the NYPD. 

Mr. HAWLEY. Sure. This has been an issue that has come up in 

a couple of contexts. And we have issued in our transportation 

worker identification credential a card, so to speak, a set of legislatively and, you know, criteria that have gone through a rule making process to lay out what the crimes are, that there is a 7-year 

cooling off period, if you will, for some crimes. Some are permanent 

bars. 

And there is an appeal process and a redress process that is built 

in. So we have written those up and put those out to the public for 

those wishing to do other background checks, particularly in the 

private sector. And we believe that is enough to support our federal 

needs for security, those background check guidelines. 

Mr. KING. Well, again, if you could get back to us, though, before 

next week with an analysis of the amendment. 

And, Commissioner Falkenrath, I know you haven’t seen it. But 

if you could just have someone in the department take a look at 

it and get back to us on it. 

Mr. FALKENRATH. We will, sir. Although we are against the preemption of state and local authorities—that is clear. 

Mr. KING. Right. Again, and I don’t want to—I mean, that is my 

characterization of it. So I am not even, you know, asking you to 

accept that. I wish you would take a look at it and see if you agree 

with us on that. 

Commissioner Falkenrath, in the minute-and-a-half that I have 

left, you raised issues that you and I have discussed obviously 

about the whole issue of funding as far as personnel. And I am in 

basic agreement with you. What we can do as far as getting this 

through the House and through the Senate in the form that you 

and I would like is another question. 

But you did raise the issue that right now the legislation seems 

to be geared towards just transit employees. And you are right. In 

New York, most of the actual transit security work is done by probVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
37 

ably non-transit employees. It is done by NYPD. It is done by the 

MTA police and the Amtrak police. If the training money was also 

allocated to police as opposed to just transit employees, do you 

think that would make a significant improvement over the legislation? 

Mr. FALKENRATH. I think that is one improvement that should be 

made in the legislation. I mean, as you know, the NYPD Transit 

Bureau used to be a separate agency. 

Mr. KING. Right. 

Mr. FALKENRATH. Part of the MTA essentially. And it was reorganized in 1994. And so, that fact just has to make its way to that 

bill to understand that there have been reorganizations. 

Mr. KING. I believe you said there is about 2,700 cops in the 

transit division. 

Mr. FALKENRATH. Yes, sir. And now up and down the Amtrak 

corridor we have regular meetings with all the Amtrak security 

agencies. Local state police departments are providing security for 

the Amtrak Northeast corridor. They would be excluded as well. So 

it is not just NYPD. It is all the law enforcement agencies that contribute to this mission that just happen not to work for a transit 

agency. 

Mr. KING. I assume that the MTA Commissioner Bill Morange 

would also agree with you on this? 

Mr. FALKENRATH. I believe so. 

Mr. KING. Yes. 

Mr. FALKENRATH. They actually speak for themselves. But we 

have an excellent working relationship. 

Mr. KING. Right. Okay. 

And my time is expired. 

Mr. Chairman, I do think Commissioner Falkenrath does raise a 

very serious issue, though, as far as the training. Training is essential, but it would be going really largely to people who are not involved in the day to day security work on the mass transit. 

Thank you. I yield back. 

Mr. THOMPSON. Thank you very much. 

I now yield to the gentlelady from California, Ms. Harman. 

Ms. HARMAN. Thank you, Mr. Chairman and Ranking Member 

King. 

I strongly support this legislation and this focus on transit security. And I think the testimony this morning was very helpful. 

Let me first say to Mr. Hawley, I appreciate your responsiveness. 

You have a very big job. Not every decision you make is wildly popular up here. But I have found that you are open and try to deal 

with member questions fairly. And I really appreciate the effort 

you have made in the Los Angeles area to try to match resources 

with needs. So I want to thank you for that. 

I also appreciate your strategic approach to problems. There is 

no such thing as 100 percent security. I think everybody knows 

that. What we all have to do is manage risks and be as strategic 

as possible. And I think you are trying to do that. So thank you, 

on behalf of a grateful member on this committee. 

Mr. HAWLEY. Thank you. 

Ms. HARMAN. To Mr. Falkenrath, I would point out to members 

they may notice that before you moved to this important role at the 

38 

NYPD, you were working at the National Security Council or the 

White House. Or which was it? Both. And with a think-tank in between. So you have seen this problem from both ends. Therefore, 

we can hope that you are very mindful of the perspective we take 

here as federal legislators trying to get this right from the federal 

perspective. 

But you are the one I want to ask some questions to. Three of 

my four children live in New York. Two of them are regular riders 

of the subways. Millions of other New Yorkers do the same thing. 

This mother worries all the time. In fact, I got into an argument 

with Mayor Bloomberg because I said the subways were vulnerable, something you just said. So now maybe you will get into an 

argument with Mayor Bloomberg. 

But it is critical that we do our best to have a strategy to protect 

millions and millions of subway riders in New York and elsewhere, 

certainly not just my kids. And you have testified to the steps you 

are taking. You have also made some suggestions about how we 

could change some features in this bill to make it more effective. 

But my question to you—and maybe it is to others, too—is what 

role does intelligence play in this whole effort. Surely, funding matters. Surely, funding to transit workers matters. But if there is no 

such thing as 100 percent security, what do we really need to do? 

And should we think about it in this bill or in other steps we take 

to maximize learning in advance about threats to our mass transit 

systems from hopefully specific places or specific individuals whom 

we could then target effectively? 

Mr. FALKENRATH. In my opinion, it is immensely important. In 

fact, intelligence in our law enforcement investigations are probably our most important line of defense against an attack on New 

York City subway. Once a plot is formed and the weapon is in their 

hands and they are just walking into the place to set it off, the advantages have all gone to the attacker and not with us. So the intelligence is enormously important. 

I think you know about our program. We take that part of the 

mission pretty seriously, too, both in the context of the FBI joint 

terrorism task force and unilaterally. So we pursue that very aggressively. 

The tip line that was mentioned earlier is in every subway car. 

You can see a number to call. That number will be answered by 

an NYPD detective. And every single lead will be run down without 

fail. And we get a lot of leads in the subway off of that. Some of 

them are referred to the JTF, but most are not. And that intelligence is very important. 

Our protective measures that we deploy, which I enumerate in 

the testimony, are all intelligence driven. And we put them in 

places where we deem important for one reason or another. We just 

don’t have the resources to cover the breadth of this system. I understand your issue with the subway security as a mother. I also 

ride mass transit to get to work frequently. And it is a worry. It 

enters your mind when you are there, there is no question about 

it. 

Ms. HARMAN. Would others like to comment on the value of intelligence and any steps that we should be taking, specifically focused 

on mass transit security that we are not or additions to this legislaVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
39 

tion that you would recommend focused on getting accurate national intelligence? 

Mr. HAWLEY. I think the legislation—one of the strong points of 

the legislation is that it hits that point exactly very hard in terms 

of information sharing and the importance of intelligence. And I 

would like to support what Commissioner Falkenrath said and particularly the point you made about strategic intelligence that if the 

target is America, finding out when the plots are being set up prior 

to, as Commissioner Falkenrath says, they start showing up at our 

targets, if you stop them way back in the process, that is the way 

to do it. And that happens with sharing of information. 

Ms. HARMAN. Thank you. 

My time is expired, Mr. Chairman. 

But this is a subject obviously that our committee will continue 

to probe. Thank you. 

Mr. THOMPSON. Thank you very much. 

The gentleman from Connecticut, Mr. Shays? 

Mr. SHAYS. Thank you very much, Mr. Chairman. Thank you for 

conducting this hearing with the ranking member. 

I would like to first ask any one of you what you think the strategy to deal—well, let me first—the strategy to deal with the Cold 

War was contain, react and mutually assure destruction. What is 

our strategy to deal with terrorism? 

Mr. HAWLEY. It is proactive, and it is network-oriented. And I 

think as Congresswoman Harman was saying, it has to start off at 

the strategic level, which is to say that the target is the U.S. and 

our allies and to start to push it as far back as possible and fight 

it in layers every step of the way. And this relates to the transportation security agency. Our role is looking at the transportation 

networks, all of them that connect in the United States and then 

having our layers plug into efforts that are already in place and be 

as proactive as possible. 

And I think Commissioner Falkenrath hit it right on the head in 

saying that it starts at getting the intelligence at the ground level 

from citizens who are the eyes and ears. And it goes all the way 

up to the foreign intelligence and military. 

Mr. SHAYS. Thank you. I am very comfortable with that response. It is proactive instead of reactive. And I like the concept 

of networking. If I said to you it is to detect, prevent, preempt then 

maybe to be unilateral, are you uncomfortable with any of that description? 

Mr. HAWLEY. Only unilateral. I think it is— 

Mr. SHAYS. Let me ask you if a small group of dedicated scientists were creating a biological agent that would wipe out humanity as we know it, do you think even Jimmy Carter would wait 

to get permission from anyone to deal with it? 

Mr. HAWLEY. Well, I am referring to my partners in terms of 

none of us in the U.S. government work alone is really what I was 

referring to. 

Mr. SHAYS. Got you. Okay. Went to Great Britain after they 

made the arrests of the individuals who were going to hijack the 

airplanes and come into the United States. When I met with Scotland Yard, I said did homeland security have anything to do with 

40 

these arrests because homeland security took some credit. And they 

said absolutely not. 

Then I was at 10 Downing Street meeting with the advisers to 

Tony Blair. And I said did homeland security have anything to do 

with it. And he said a lot. And it was really kind of cool because 

what it said to me was the people who needed to know knew, and 

the people who didn’t need to know didn’t know. 

And that gets into your sense of networking. Do you think we are 

safer today than we were before September 11th, any of you? 

Mr. HAWLEY. I would say without question. 

Mr. SHAYS. Yes. Why do you think people don’t feel we are safe? 

Mr. HAWLEY. I am not sure they don’t. I think that the travel 

levels have recovered beyond what they were prior to 9/11. And I 

think the degree of connectedness both among parties in the U.S. 

government with the state and locals and with other partners 

across— 

Mr. SHAYS. Polls state that they think that we are much less 

safe. 

Mr. HAWLEY. I beg your pardon? 

Mr. SHAYS. Polls will state that they think we are much less 

safe. And what is shocking is that even the experts feel that way, 

the outside experts. Any— 

Mr. HAWLEY. Not this one. 

Mr. SHAYS. Well, anybody? 

Mr. HAWLEY. I can’t speak for the poll. I haven’t seen that polling data. My personal opinion is we are substantially safer than we 

were on September 10th. 

Mr. SHAYS. Yes. Don’t you think the reason they don’t feel as 

safe is they had a false sense of security before September 11th? 

In other words, people just really didn’t think there was a problem. 

And now they know there is a problem and they don’t feel as safe, 

even though, in fact, they are safer. I mean, I would agree that 

they are safer. 

If you give the administration more power, what do you think— 

and more power to do things that would seem invasive to civil liberties, what is our solution to that? 

Mr. HAWLEY. I don’t see us lacking authority to do our job at this 

point. And I think in the committee bill there are some additional 

clarifications that help us enforce the authority that we do have 

that further close the loop. So I think we do have the administrative tools. 

Mr. SHAYS. Right. But my point in asking the question is the administration has been given more authority. You all have. Which 

means that we need to have greater congressional oversight to 

make sure it is not abused. One of the most important ways to do 

it is to have a workable whistle-blower statute. 

And the thing that troubles me with the punishment of whistleblowers is that their insecurity is the first thing that is taken away 

from them is their security clearance, which is like going to a bus 

driver and saying you don’t have a license to drive a bus. Is there 

anything, in the 5 seconds here, that speeds up the process of determining the validity of what a whistle-blower tells us? 

41 

In other words, it takes so long. Is there any way that we speed 

up the process to determine the validity of what the whistle-blower 

is saying? 

Mr. FAIRFAX. We have been struggling with trying to speed up 

the process for years and haven’t really been successful. You know, 

the investigative process requires us to interview the complainants, 

the respondents, their witnesses. When different statements are 

made, we have to go back and reverify and double check the data. 

So the process takes a long time. And we have been struggling, like 

I said, with it and have not been able to shorten that timeframe 

down. 

Mr. SHAYS. Thank you, gentlemen, for your service to our country. I appreciate it. 

Mr. THOMPSON. Thank you very much. 

I now go to the gentlelady from the District of Columbia, Ms. 

Norton. 

Ms. NORTON. Thank you very much. 

I guess this is for Mr. Hawley. Mr. Hawley, I sponsored with the 

support of many in this committee a comprehensive rail security 

bill in the last Congress. There was great frustration that this remained an area where Congress had not tackled. You or TSA has 

issued proposed rules. And one of its provisions would bar state 

and local jurisdictions from engaging in rerouting of hazardous materials. 

Well, it is understandable. It is a federal responsibility. But in 

the absence of any federal action, despite the fact that hazardous 

substance trains run literally within a stone’s throw of this building and other federal buildings, the local jurisdiction and the District of Columbia on its own filed a suit. 

The fact that that suit is still being heard in the Congress tells 

you it was not frivolous. The reason it was not frivolous is that despite your authority under the commerce clause, when it is not exercised, the courts have held that a local jurisdiction doesn’t have 

to just sit there and be hit. And so, it is still being heard. 

You have proposed regulations that essentially are inspection 

regulations while the train is not moving, do a thorough inspection. 

My question to you is particularly in light of the way in which 

trains have been attacked in Europe and elsewhere, is it your view 

that trains are not likely to be attacked when they leave their station, as it were? You even propose that notice be given to locations 

that information that hazardous substances may be going through 

the jurisdiction so that local jurisdictions could take the required 

action. 

Why one? Why not say notice or something that is required probably wouldn’t be difficult to do because the trains probably come 

rather on schedule? And if not rerouting—and I am one of those 

who thinks you can’t reroute very many places. 

I do think there are parts of the country where the population 

is so dense or places like your nation’s capital where you might 

want to do some rerouting. But why have you not therefore come 

forward with alternatives to rerouting other than inspections in 

place, which do not, of course, count or leave terrorists free, I suppose, to do their work on—to work their will when the train is in 

motion? 

42 

Mr. HAWLEY. I respect the question. And I know that in the second panel there will be more chance to discuss this from the railroad operator point of view. 

But the specific answer to your question on why no notice is that 

the current system is that the municipalities are, in fact, informed 

of the kinds of materials that are moving through. The reason we 

did not require notification on specific shipments has to do with security in that there is an irregular pattern of these shipments 

which adds to the security level and that you can’t plan exactly 

when and where one of these TIH cars is coming in if you are on 

the other side. 

Ms. NORTON. You are saying—I am sorry—they do inform local 

jurisdictions when— 

Mr. HAWLEY. Not the when, the what. They say we are moving 

this kind of material through your city. But they do not say and 

we do not suggest that we require exactly when a particular car 

is coming because— 

Ms. NORTON. I am sorry, they are moving it through your city, 

you know, sometime this year? 

Mr. HAWLEY. It says— 

Ms. NORTON. If it doesn’t say when, how could local jurisdictions 

prepare in case there is a problem? 

Mr. HAWLEY. Well, local jurisdictions are able to prepare in 

terms of the first responder as well as work with the security 

agents of the given railroad. But it is a security vulnerability to be 

passing out the information of the exact movements of TIH cars. 

So we do not believe that that adds to the security. We believe that 

actually makes it more vulnerable. So we have the capability as do 

the railroads— 

Ms. NORTON. So you think if you were to supply that information 

to the local police chief or the local fire chief that the District of 

Columbia and New York City would be more vulnerable than it is 

now with no such information? 

Mr. HAWLEY. Not at all. It is not the police chief or the fire chief 

I am worried about. But it is the more widely that information is 

spread around, the— 

Ms. NORTON. Well, who is asking for it to be widely spread 

around? Again, I understand your security concern. There are also 

in every local jurisdiction people who have the appropriate clearance. And so, I don’t understand that to protect security you are 

making local jurisdictions less secure by not giving them information that is necessary. 

Mr. HAWLEY. It is like passing out the flight plan for Air Force 

One. That is not something that is out there. 

Ms. NORTON. Even if you give that information to those officials 

who have the needed security clearance—and there are such officials in every jurisdiction. 

Mr. HAWLEY. Absolutely. On the security clearance, that is another issue that we do completely share. 

Ms. NORTON. Thank you, Mr. Chairman. That is why we are in 

court. 

Mr. THOMPSON. And that is why we will have a rail bill to mark 

up. 

43 

That is an issue, Mr. Hawley, I want to assure you. In the absence of a policy when local officials become proactive on behalf of 

their citizens and then for our government to tell them that they 

should not become proactive in the protection of their citizens, that 

is a concern. And obviously I understand the policy. But we have 

any number of local officials who come with that very concern. 

We will now hear from the gentleman from Washington, Mr. 

Reichert. 

Mr. REICHERT. Thank you, Mr. Chairman. 

Mr. Hawley, I come from the Seattle area. We operate quite a 

large ferry system. What grant program provides assistance to the 

ferry system as far as security goes? 

Mr. HAWLEY. There is a port grant program that is administered 

by the Coast Guard. 

Mr. REICHERT. Coast Guard has a separate grant system? 

Mr. HAWLEY. Yes, sir, the port security grant. 

Mr. REICHERT. I want to go back to Mr. Falkenrath’s comments. 

I was a sheriff in Seattle up until about 2 years ago. But the things 

that you said really struck a note with me. From the local law enforcement perspective, we know that there is enough rules and regulations. 

We know there is enough bureaucracy that we have to go 

through as local law enforcement officers. We know that reporting 

requirements are cumbersome. And, you know, it does seem to be 

a waste of time for us to assign resources to that. 

It seems to be at the benefit of bureaucrats and politicians rather 

than really getting at the heart of what the problem is and us trying to get our job done on the street as cops, firefighters, and emergency managers and others of those who are out there protecting 

our country. And it sometimes gets very disappointing that the federal bureaucracy gets in the way. 

I do agree that personnel costs must be a part of the grant program. We are working toward that. There are other types of agencies that are involved in working with transit authorities, other law 

enforcement agencies and emergency managers that do come into 

play. And it should be based on risk. 

Now, all of you did say that, you know, you support still the idea 

and concept of the Department of Homeland Security managing 

grants. But I would like to just get into it a little bit deeper. Why 

is it important for the Department of Homeland Security to oversee, not only the prioritization of grants, but the distribution and 

the monitoring of grants? 

And, Mr. Falkenrath, maybe you could answer first. 

Mr. FALKENRATH. Well, as someone who was involved in establishing the Department of Homeland Security, the concept then— 

and I think it is still valid—is you needed to integrate all the federal government’s different programs to accomplish this mission 

otherwise it was simply too complicated for a state and local agency 

to deal with all the different parts of the federal government. They 

couldn’t. 

Now, I must tell you this Department of Homeland Security has 

a ways to go with integrating its different programs. It is not just 

the Coast Guard’s port security grant for which you can apply for 

ferries. It is also the TSA administered transit security grant. That 

44 

gives money to ferries, too, totally separate application, totally separate working groups, totally separate people coming to the meetings. And so, that is our reality. 

On the reporting requirements, though, sir, you will note that in 

your own bill it makes provisions to provide technical assistance to 

the state and local agencies for fulfilling these reporting requirements. Btu what that is is that is contracts for government contractors, who are then the same ones, I think, who read the report. So 

it is almost like a self-licking ice cream cone. 

And the writing of these reports is, in my judgment, very poorly 

linked up with any sort of strategic risk assessment that is rigorous and sound and with operational day to day decision making. 

So my judgment is that I am not against them per say. I, in fact, 

believe with the author of the HSPD that required the drafting of 

the report that is now 3 years overdue. You know, I have been on 

both sides of this. But I think it is excessive. 

Mr. REICHERT. Yes, I would agree. 

Mr. Hawley? 

Mr. HAWLEY. Just picking up on the back to the Seattle ferries 

thing, that that is a reason itself. We have a $7.5 million in transportation security grant program of which ferries are eligible. And 

in this year’s meeting Thad Allen, the commandant of the Coast 

Guard, and I were in the same meeting. 

We were talking to have the whole effect of all of the DHS money 

to hit what the same vulnerability risk assessment to make sure 

that we were hitting, regardless of which arm was handing out the 

grant, that it was a connected strategy at the top. And I think that 

is the critical piece, that it all starts with the risk look at threat 

vulnerability and consequence across the whole nation. Infrastructure protection, transit, port, all of these are driven by the same 

risk assessment. 

Mr. REICHERT. Wasn’t the whole concept behind grants and 

trainings and homeland security a one-stop shop for those first responders? Anybody? 

Mr. HAWLEY. It was a concept. It is not the current reality. 

Mr. REICHERT. Is that the goal? 

Mr. FALKENRATH. I have actually myself come to question the 

wisdom of that concept because I have seen how it went in the one 

portion of the Department of Homeland Security that did consolidate control over several of these grants. And frankly, we were dissatisfied with that outcome as well. So it is sort of six-and-a-half 

dozen at the moment. 

I just would—I think, though, it would be imprudent to bring yet 

another cabinet department in. You know, at least in this case we 

have one deputy secretary and one secretary who oversees it all. 

It would be another if the only person who oversaw them all was 

the president of the United States. 

Mr. REICHERT. Thank you, Mr. Chairman. 

Mr. THOMPSON. Thank you very much. 

I now yield to the gentleman from Rhode Island, Mr. Langevin. 

Mr. LANGEVIN. Thank you, Mr. Chairman. 

Gentlemen, thank you for your testimony here today. 

45 

Mr. Hawley, I will start with you. I know you all have a very difficult job to do. And we appreciate your service to the country. I 

want to start out by asking what is it that keeps you up at night. 

In your area of responsibility, what is the thing that you are 

most worried about? And do you feel, in your opinion, that you and 

your department have done everything you can to close and address that vulnerability, first of all? 

Mr. HAWLEY. Well, I think my biggest concern is it gets back to 

the issue on the strategy, which is connecting all the pieces from 

the person on the subway car to the detective answering the phone 

to the intelligence officer who might be abroad, to have all of us 

connected, that there might be some piece of information out there. 

And the 9/11 Commission talked about connecting the dots. 

How do we make sure that of all the information coming in that 

we process fast enough the information and get it to the people 

who need it, particularly on the ground and in the New York City 

case? Because they are not federal officers on the ground, that we 

make sure the NYPD has the information when they need it and 

vice versa, that they get it to us in case there is some kind of a 

network aviation problem or something. So it is that information 

sharing. 

That is I have actually oriented my day. I spend the first hour 

of every day working on the intel side with all the intel agencies 

of the U.S. government and law enforcement and then converting 

that to the TSA team to what actually are we doing about it, what 

information could we share with the other partners in the work. 

And that is the real work of what we do. 

And as I said earlier, we are behind in writing our reports. We 

are absolutely not behind in getting on top of information and sharing it. 

Mr. LANGEVIN. Let me turn to transportation security with re- spect to rail. On average we spend $9 per air passenger annually 

on security and only one penny per rail in mass transit passenger. 

And while we can all agree that our rail and mass transit systems 

are far from secure, the president’s fiscal year 2008 budget only 

calls for only $41.4 million out of a $6.4 billion to be spent on rail 

and mass transit security. So this is only a 1 percent increase from 

fiscal year 2007, which doesn’t even keep up with inflation. 

The administration’s proposed budget is, I think we can agree, 

far from adequate to close many of the existing gaps. So, Mr. 

Hawley and Mr. Rosapep, in terms of rail and mass transit security, where do the biggest gaps remain? And have your respective 

departments come up with specific plans to address these threats? 

And what are your priorities in terms of closing many of the existing gaps? 

Mr. HAWLEY. I would say in the transit area, I mentioned at the 

beginning it is underwater, underground tunnels and, yes, adjacent 

or in highly dense areas. And when you boil it all down, it gets to 

the fundamentals of training and public awareness and emergency 

response. 

And one of the reasons that we don’t spend more money at the 

federal level is because of the feet on the street and the work that 

NYPD does and others across the country at the local level where 

the state and locals pick up the people there, which is why they 

46 

absorb the budget and we in the federal government absorb the airport environment. So it is truly not an apples to apples. 

And I think we look at threats and risks at the total system perspective and we don’t really say we are going to focus on aviation 

or focus on transit. We focus on the whole country. 

Mr. LANGEVIN. Mr. Rosapep? 

Mr. ROSAPEP. We agree from the department’s standpoint with 

the priorities that Mr. Hawley laid out, again, in terms of the need 

to provide additional training and emergency preparedness planning for particularly the transit agencies. F.T. does not have its 

own security grant program. But we can redirect and are redirecting some of our internal resources to put more money into the 

training programs that we develop and deliver. 

And another provision under the last transportation reauthorization bill does allow transit agencies to use some of their capital 

transit dollars for what are more operational expenses, such as 

paying for training, developing preparedness plans and conducting 

drills. So those are areas that we are trying to reinforce with our 

grantees. 

Mr. LANGEVIN. I see my time is almost expired. But I want to reiterate that, you know, when we are spending $9 per air passenger annually and only basically one penny per rail and mass 

transit passenger, in my opinion, we are not doing enough in the 

right areas to protect our rail system, particularly our passengers. 

We need to redouble those efforts. It is only a matter of time, in 

my opinion, that is going to be a target. And we need to do better 

than what we are doing right now. 

Thanks, The CHAIRMAN. Mr. THOMPSON. Thank you very much. 

We now yield to the gentleman from Pennsylvania, Mr. Dent. 

Mr. DENT. Thank you, Mr. Chairman. 

Mr. Hawley, good morning. 

Mr. Hawley, a question for you. Could you describe the national 

security impact, if any, in transferring rail security, mass transit 

and over the road security transits out of the Department of Homeland Security into the Department of Transportation? 

Mr. HAWLEY. I think the primary issue is the connectedness to 

the overall risk assessment we have that is done at the DHS level 

and that coordinating the forces that we have and the money that 

we have to hit the center of the target. And we feel that that is 

best done from the security point of view at DHS and certainly the 

safety area is DOT. But we work very closely. We have an MOU 

with DOT to that regard. 

And I would like to thank the Allentown and Bethlehem Airport 

for lending us Dempsey Jones to the federal security directorate to 

lend to Jackson, Mississippi for a period. So thank you. 

Mr. DENT. You are welcome. 

Mr. THOMPSON. Good man. 

Mr. DENT. Most welcome. And my second question deals with 

this. The rail and mass transit security bill that proposes to make 

it a criminal offense for a supervisor to retaliate against an alleged 

whistle-blower. 

Given that supervisors often have to make difficult decisions that 

sometimes irritate their employees, do you think this provision will 

47 

have a chilling effect on managers who have to make unpopular decisions for fear that they could be accused of retaliation against 

those claiming to be whistle-blowers? And, you know, will we now 

have to provide Miranda warnings to managers and supervisors in 

light of the fact that what they say in the course of their duties 

could possibly land them in jail? 

Mr. Fairfax? 

Mr. FAIRFAX. Okay. Well, we are still studying the whistle-blower 

provisions of this bill. But the scope in how we do investigations 

doesn’t really, I don’t think, lend itself to that concern. But we 

have a fair investigative process. I don’t think there is a chilling 

effect on supervisors when we do the investigations. They are allowed to bring forth their witnesses. 

We interview them. We interview all their witnesses. We interview the complainants and the complainant witnesses. That is part 

of why I was saying earlier, the process takes so long is there is 

a lot of, you know, discussion, documentation, verification, 

reverification. And only about 22 percent of our cases end up being 

merit against an employer once we have gone through the whole 

process. 

Mr. DENT. You don’t have any major concerns then about this? 

I think that is what I heard, about those criminal provisions in the 

real security bill? 

Mr. FAIRFAX. No. We have those in areas like Sarbanes–Oxley 

and such. 

Mr. DENT. Okay. 

Anybody else? Okay. 

I yield back the balance of my time. Thank you, Mr. Chairman. 

Mr. THOMPSON. Thank you very much. 

I now yield to the gentlelady from New York, Ms. Clarke. 

Ms. CLARKE. Thank you very much, Mr. Chairman. I want to 

first of all just thank you for sponsoring and shepherding this very 

important piece of legislation. I also want to thank Ranking Member King for his commitment and resolve to get this system right 

through bipartisan cooperation. 

I would like to also extend my thanks to Chairwoman Jackson 

Lee and Ranking Member Lungren for their hard work on this bill. 

The Rail and Public Transportation Security Act of 2007 takes a 

major stride in the security of America. This bill authorizes more 

TSA officials to better secure ground transportation, increases the 

number of transportation security inspectors, and creates a research center to study future solutions, calls on transportation providers around the country to do what New York has already done 

and create a detailed security plan to ensure the safety of passengers. 

Further, this bill creates a security training program, which will 

train employees of all covered transportation carriers to know what 

to look for and how to react should a security situation arise. The 

women and men working in our subways, railroad stations, bridges 

and tunnels are our first line of defense. For example, if an unusual package sitting in the New York City subway is detected and 

acted upon early enough, countless lives will be saved. Or if there 

is an explosion in a tunnel, maintenance workers may well be on 

the scene even before the police. 

48 

A proper evacuation may again save lives. Through this bill 

transportation providers will be able to team with labor unions to 

ensure employees are trained to deal with these scenarios. However, I do believe that this emphasis should not preclude law enforcement personnel from being recipients of funding through this 

provision. 

Finally, I again want to thank Chairman Thompson and Ranking 

Member King for their efforts to include $100 million in funding for 

safety upgrades to Penn Station in New York City. This much 

needed improvement will dramatically improve conditions for 

countless New Yorkers and visitors to our city. 

You know, I heard Congressman Shays raise the issue of a false 

sense of security and vulnerability. And I have to tell you that as 

a New Yorker whose father is a Port Authority employee and was 

in the twin towers in 1993 and who continues to mourn the lives 

that were lost on 9/11, the sense of security is always shaky. But 

we know that life goes on. And securing our nation will always be 

a work in progress. 

As a former member of the New York City Council, I am keenly 

aware of the financial strain our municipality continues to bear as 

a result of being the number one terrorist target of our nation and 

being constantly under the threat and having always to be in a 

state of readiness. 

My question is to you, Mr. Falkenrath. You have discussed that 

New York City would like more flexibility in how it can spend federal grant dollars on overtime pay. Please give us some idea of 

what type of situation has caused New York to pay overtime for police and other first responders where it would not be able to use 

the funds contained within this bill. 

Mr. FALKENRATH. Thank you, ma’am. The main program we call 

is called operation atlas. It is a counterterrorism program by which 

we take large contingents of uniformed officers and deploy them 

around the city in highly visible counterterrorism operations to provide immediate presence and to provide a deterrent effect on anyone who may be conducting a casing operation. 

As you may know, New York City has been repeatedly cased by 

al-Qa’ida operatives and their affiliates. We know this with certain 

knowledge. Several have, in fact, been indicted and convicted in 

federal court or in British court for these exact activities. 

And we learned from that that we need to provide a highly unpredictable and highly visible law enforcement presence around the 

city at key targets that may be cased from time to time. This is 

a part of Al Qaida trade craft. So that is what we do. And we pay 

for that for the most part out of overtime, which is very expensive. 

As you know, we are 5,000 cops less than we were on 9/11 in 

New York City. And yet we do even more than we did at that 

point. 

Ms. CLARKE. Mr. Chairman, I think that it is really important 

that, you know, we look at how we are utilizing the funds in this 

regard. New York City can provide a model for other vulnerable regions around this nation. And they have set the trend, but at extreme cost to our city. And I hope that we can show some appreciation for the level of intelligence and the level of skill that has been 

49 

developed as a result of this particular region of our nation having 

been going through these terrorist activities. 

Thank you very much, Mr. Chairman. And I yield back the rest 

of my time. 

Mr. THOMPSON. Thank you very much. I don’t think there is any 

question about New York’s standing in this whole discussion. The 

Ranking Member and I have had a number of discussions. And 

hopefully we won’t have any surprises in the future with cuts in 

money and the like because we understand the gravity of the situation. 

I have been to New York with the then Chairman and saw firsthand the situation. I met with Commissioner Kelly. I applaud New 

York for stepping up, obviously, because there is no federal standard. So it is really a state and local issue at this point. And that 

is why we are trying to move this issue forward. 

Thank you very much. 

I now yield to the gentleman from Florida, Mr. Bilirakis. 

Mr. BILIRAKIS. Thank you, Mr. Chairman. Thank you. I am 

pleased to be here this morning to continue our examination of rail 

and public transportation security legislation. Before my questions, 

I just want to say that I think the bill we are here to examine is 

a reasonably good bill at which some alterations could be better. 

I was pleased last week’s subcommittee markup was largely bipartisan due to the open-mindedness of Chairwoman Jackson Lee 

and Ranking Member Lungren. I hope that the spirit of bipartisanship prevails during next week’s markup as this committee addresses issues that concern me and many of our colleagues, specifically, how best to maintain the primary role that DHS plays in 

transportation security, protects sensitive information from public 

disclosure, and provides sufficient flexibility in the conduct of background checks on transportation employees. 

My first question is to Mr. Hawley. In your written testimony, 

you said that current aviation security measures provide a significant barrier to entry for potential terrorists coming to our country. 

You further stated, ‘‘Our government’s investments in improvement 

in terrorism watchlists, border security, and intelligence networks 

significantly enhanced service transportation security.’’ 

Would you please explain what type of screening or pre-screening, if any, is currently being conducted on freight and passengers 

that cross the border by rail? 

Mr. HAWLEY. Sure. On cross-border transportation on freight, it 

is principally done through Customs and Border Protection, which 

has its own system there that is integrated also with ocean-borne 

freight coming into the United States. And they are the same authority on passengers when they are coming into the United States 

to make the decision whether they come in or not. So it is really 

not a TSA thing at the border. 

Mr. BILIRAKIS. Okay. How is this similar or different from 

screening measures on air passengers and cargo? 

Mr. HAWLEY. Well, it is very different on the passenger side in 

that we do a watchlist analysis on whether the passenger is on one 

of the watchlists. We do not do beyond that in terms of further 

background check or interview, particularly unless somebody presents a problem at the checkpoint. So there is a little bit of a difVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
50 

ferent model. And we, as you know, do extensive physical security 

on passengers as they come through where more special attention 

is required. 

Mr. BILIRAKIS. Okay. The bill that was approved in the subcommittee last week would increase from 100 to 500 the number 

of surface transportation security inspectors between now and 

2010. What other areas might this committee consider 

supplementing to bolster rail and public transportation security? 

Mr. HAWLEY. I think the committee has done—it is focus on the 

critical pieces, which are training. There is a lot in here that gets 

from the principle of training down to delivered training and the 

priority of delivered training. And I think that is absolutely right 

on in the surface arena, both for transit and in freight rail. So I 

think that is one. Information sharing is one. 

You know, we have moved beyond the what are we going to do. 

I think we know what the critical pieces are with the fundamental 

pieces are. And now it is about the when are we going to do it and 

how quickly can we get it out there. 

So things that accelerate the process by removing, you know, 

making the process streamlined, like in training. We have now got 

a system where we can turn it around in 90 days. You say I need 

so many people trained in this category. We can now turn that 

around right away. So those are the areas I would highlight. 

Mr. BILIRAKIS. Okay, thank you. 

Thank you, Mr. Chairman. 

Mr. THOMPSON. Thank you very much. 

I now yield to the gentleman from North Carolina, Mr. 

Etheridge. 

Mr. ETHERIDGE. Thank you, Mr. Chairman. Let me thank you 

and the ranking member and the subcommittees for getting this 

bill before us. 

Let me ask a question, Mr. Hawley, of you. According to the GAO 

and the FRA it has been focusing on efforts to improve rail safety. 

They have been addressing issues such as human error inspection 

and rail track failure. It seems, according to this report, or at least 

the report I have read, that—it says that the safety issue tends to 

be more pressing than the risk of terrorism. 

My question to you is, if you will share with us, what is the synergy between safety and security concerns and where do these 

issues overlap when they do diverge. And secondly, what measures 

have been or can be implemented to serve both purposes of safety 

and security so you maximize the limited dollars that we have? 

Mr. HAWLEY. Yes, sir, I appreciate the question. I think it is a 

critical point, particularly in freight rail where the things like the 

stability of the rail car and the integrity of the hull, particularly 

if something is carrying a dangerous chemical. 

That very much has to do with safety, but it has a clear security 

need. And it highlights the necessary relationship between DHS 

and DOT so that we know what they are doing on the safety side 

and we can say this would have more of a security impact and so 

as that we do not use our resources to double the effort that they 

have already done. So we know what they are doing. 

One example is inspectors where we now are cross-training inspectors for the Federal Rail Administration to look for security 

51 

type of things while they are out there anyway. And we focused our 

efforts on where we considered the vulnerability, which is a TIH 

car or the toxic inhalation hazard car sitting unattended. And that 

is where we get after it because it is not so much a safety issue, 

but that really is a security issue. So that is where we focus. 

Mr. ETHERIDGE. So you are talking about open lines of communication? 

Mr. HAWLEY. Very definitely. 

Mr. ETHERIDGE. All right. Let me move to another one because 

part of the difficulty, I know, as we talk about mass transit of serving is really the open nature of the system, you know, the multiple 

access points, the large number of people that we serve on a very 

tight schedule at short periods of time and the need of passenger 

flow because of the amount of it. Research, I think, is needed into 

methods of attaining security without shutting down the system. 

My question is this. I know there has been a few initiatives in 

the past such as TRIP, the pilot project in Maryland, et cetera. And 

there is a wealth of information, I think, that we can draw from 

from experiences from people like, well, Mr. Falkenrath, who is 

with us this morning can certainly share things in New York. But 

there is also experiences from other nations, and particularly Israel 

and others who have really done a lot to secure their system. 

My question, Mr. Hawley, is what steps has the department 

taken to develop a robust research and development program for 

rail and mass transit security? And what lessons are being taken 

from the practices and technologies of other countries? 

And then I hope, Mr. Falkenrath, you will have a moment to tell 

us what are your prognosis for the ability to develop and deploy a 

system that will actually offer this kind of security. 

Mr. HAWLEY. Sure. We work very closely with other countries 

and in sharing information on screening, specifically with the U.K. 

I have had the opportunity to meet with them on some of their pilots in both transit and aviation that give us some interesting results. We do that pilot. You mentioned the ones, the TRIP and 

other ones that we have done. 

We have established we can do screening. The issue is with so 

many people going through, it has to be on a segregated basis, either by random or based on behavior. So we look at explosive detection technology and behavior detection technology as the two 

best ways of figuring stand-off detection to select who might be the 

problem you do encounter. And then I know New York City is very 

aggressive on this. 

Mr. FALKENRATH. Yes, we have a bag search program and an explosive detection program that is deployed every day in the subway. It was challenged in federal court. We were sued. The federal 

court upheld the legality of that. And after they did so, other jurisdictions began to adopt the practice like the state police of Massachusetts. So we have a lot of practice with this. 

We do not do behavioral recognition. The officers who run this 

are told to pick people simply on the basis of numbers, every tenth 

or every twentieth person. And they are just pulled aside. But if 

someone changes their behavior when they see the screening patrol, like walks away, turns around, we will respond to that in addition. 

52 

I don’t believe that this practice was learned from any other 

country. I believe it was pioneered in New York City. And we do 

it on our own nickel. 

Mr. ETHERIDGE. Thank you. Let me thank all of you for your 

service and your commitment. This is a big issue. And any 

thoughts you have as this legislation moves that can make it better 

and more secure for this country, we would appreciate it. 

Thank you, Mr. Chairman. I yield back. 

Mr. THOMPSON. Thank you very much. 

I now yield to the gentleman from California, Mr. Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. I appreciate 

it. 

And I thank all of you for your service. 

And I would say that I as the ranking member of the subcommittee from whence this bill came, I am proud of the bill with 

a couple of exceptions that I am concerned about. And for the gentleman from the Labor Department—and I understand there is 

some questioning that has already gone into this. But I would like 

to get down to this part. 

Dealing with the whistle-blower section, this proposed legislation 

would require OSHA to investigate all whistle-blower claims resulting from, and I quote the bill, ‘‘an alleged violation of any law, rule 

or regulation relating to national or homeland security.’’ Right now 

in looking at whistle-blower claims, does OSHA deal with intelligence and security matters? 

Mr. FAIRFAX. No, not directly under the whistle-blower statutes. 

Mr. LUNGREN. So you haven’t developed an expertise in making 

judgments with respect to security, either homeland security or national security matters? 

Mr. FAIRFAX. No. 

Mr. LUNGREN. Or intelligence matters? 

Mr. FAIRFAX. No, we haven’t. I mean, when we have taken over 

other statutes on whistle-blower protection, we have been in the 

same situation, though, where we have had to, you know, work 

with the other respective agencies, train our people and move forward. But to answer your question, no, we don’t have— 

Mr. LUNGREN. No, I understand you work in other areas. But we 

are talking about national security and homeland security and intelligence, which at least we treat somewhat differently in the Congress because of the difference of its very nature. 

Mr. FAIRFAX. Right. 

Mr. LUNGREN. Mr. Falkenrath from the New York City Police 

Department, again, I want to talk about the whistle-blower protection provisions. These also would apply under this bill to state and 

local government employees of public transportation agency. 

It provides for penalties for whistle-blower retaliation of up to 10 

years imprisonment and up to $5 million in punitive damages. How 

would that affect local government employees? In other words, are 

you concerned that managers would be hesitant to remove employees that appear to present a security risk due to fear of criminal 

and civil liability? 

And the bill also says that if the jurisdiction involved were to 

raise a state secret issue—that is, it involves intelligence—that 

automatically the ruling would be against the entity. In other 

53 

words, if you dared on any level of the government raise the fact 

that you could not disclose to the court the reason for the action 

taken based on intelligence, that that automatically would allow 

the claimant to win his or her lawsuit in terms of funds. 

Mr. FALKENRATH. Sir, the provisions you describe sound troubling. But I apologize I am going to have to get you an answer for 

the record. We are going to need to study that exact provision and 

provide you the answer you seek in writing. 

Mr. LUNGREN. And, Mr. Hawley, could you render an opinion on 

how that might impact your department or some of these other 

agencies with which you work? 

Mr. HAWLEY. I would have to study the more detail on this particular provision. But obviously, as you point out, maintaining classified information is of paramount importance to the security mission. And there is the balance that says so is the ability of employees not to be improperly subject to retribution. So this has not been 

raised to me as a subject that we have had concern as we have 

looked at the bill. But I will look at it again with the perspective 

you raise. 

Mr. LUNGREN. I mean, see, I understand the idea we want to balance it. But it sounds to me that tilts it in one fashion. When we 

are dealing with issues of homeland security and we say if the government dares raise the issue of sensitive intelligence, automatically the claimant wins, that may be the way some people think 

it ought to work. 

But I just wonder whether we are serious about the threat that 

is out there and understand that intelligence is such a key aspect 

to our ability to defend ourselves. And that is not taking anything 

away from trying to protect workers against being unduly acted 

upon. But I just wish you would look at that and give us a response. 

Thank you very much, Mr. Chairman. 

Mr. THOMPSON. Thank you very much. 

Just for the record, Mr. Fairfax, when you received the Sarbanes–Oxley responsibility for whistle-blower, how much expertise 

did labor have in financial? 

Mr. FAIRFAX. Well, very little in OSHA. We brought people in to 

train our people. But we did not have expertise in that area. 

Mr. THOMPSON. And so, you brought them all, and you have now 

developed— 

Mr. FAIRFAX. We worked with the Securities and Exchange Commission. We brought in people from the Department of Justice to 

train our people. And then if need be, we contract out and bring 

in other experts to help with financial matters. 

Mr. THOMPSON. So it is your testimony that you basically have 

created the expertise once you were given the responsibility? 

Mr. FAIRFAX. Yes. 

Mr. THOMPSON. Thank you. 

I now yield to the gentleman from Texas, Mr. Cuellar. 

Mr. CUELLAR. Thank you, Mr. Chairman. Thank you for your 

leadership on this bill that I support. 

And again, gentlemen, thank you for being here with us. 

I want to follow up on a line of questioning that Mr. Bilirakis 

just brought up about the border. I am from Laredo, the border 

54 

area, as you know. If you have a family that is sitting in the living 

room or the kitchen and they are worried about an outside threat, 

let us say, outside invasion, we certainly want to do everything to 

protect them in their living room and the kitchen. But at the same, 

we can’t forget about the front door. 

Just like the border is our front door to literally hundreds of 

thousands of rail cars coming in. For example, in the Laredo area, 

northbound and southbound in 2006 we had over 401,000 rail cars 

that came in. And keep in mind that we depend a lot on what happens in Mexico, that is the what is screened and what comes in and 

the contractors that are involved to get that work done. 

Buses, for example, in the Laredo area—7and I am just giving 

you just a snapshot—we have over 100 buses that come a day. 

That is, people coming from Mexico coming in with no inspection 

station in place there and still 100 buses. And I believe in 2005 we 

had 35,841 separate buses that came in just through that part. 

And that doesn’t include the 4 million trucks that come in, the containers. So I am just talking about the rail and the buses that are 

coming in. 

Are we doing enough to protect ourselves for the rail cars coming 

in and the buses coming in from other countries? Any suggestions 

that you can give us? And I know this has to do more with Customs. And I don’t know if you have any suggestions. Maybe we 

ought to make a minor modification on the international bridges 

that we have, international rail bridges that we have to cover some 

of this infrastructure and rails that are coming in from foreign 

countries. And in particular, I am talking about Mexico and the 

border, the Southwest border. 

Mr. HAWLEY. I wouldn’t have any legislative proposal. But as you 

point out, it is a shared responsibility. And the Customs and Border Protection has people on the ground there. We have an interest 

obviously and coordinate with them. And then we take responsibility as it moves inland into the United States. 

And then I think on your second panel you will have another 

party. The railroad industry has a piece of that, too. So we all work 

together. But I think you have put your finger exactly on the issue. 

And it is what Mr. Langevin was talking to me about, of the things 

that we worry about is not being totally connected. 

And I think we have become since 9/11 a whole lot more better 

connected. And we do recognize that it is the total journey, not just 

what started in Mexico but coming across the border or any border 

really and where it goes in the United States. It is one seamless 

thing. And we have to watch the whole piece. 

Mr. CUELLAR. And do we have a seamless trail that we can follow right now? 

Mr. HAWLEY. Well, information is the key. And that is why having the railroads in that because it is their customers and they 

track it and not at our expense. But we have the ability to reach 

in and find out what we need to know on an almost real time basis 

from railroads if we have a concern about either a category of goods 

or specific cars that we need to track anywhere as it is in the 

United States. 

Mr. CUELLAR. Are we able to track the hazardous materials that 

are coming in through our—and again, I am not even talking about 

55 

the millions of trucks that we have on a yearly basis, but just the 

rail cars right now? 

Mr. HAWLEY. In the United States we absolutely are. I don’t 

know exactly what they get coming in advance of the border. But 

once it is in the United States, we have very granular ability to 

find cars, to know where they are. 

Mr. CUELLAR. Once they cross the border, or once they get into 

our screen inside the United States? 

Mr. HAWLEY. I am personally only familiar with once it is in the 

United States. I don’t know exactly what we have prior to the border entry. I could get that from Customs and Border Protection and 

supply it for the record. 

Mr. CUELLAR. Okay. All right. I would ask you if you have any 

other suggestions because, I mean, I am very supportive of this legislation. But I just want to make sure that we look at not only taking care of our families in the kitchens and in the living rooms, but 

making sure that our front door is well-protected. 

Being from the border and having my family in the border I certainly want to make sure that we take care of the front door. 

Thank you. 

I yield back the remainder of my time, Mr. Chairman. 

Mr. THOMPSON. Thank you very much. 

I now yield to the gentleman from Pennsylvania, Mr. Carney. 

Mr. CARNEY. Thank you, Mr. Chairman. Thank you for your 

leadership on this bill. It is great. 

This question is for Mr. Hawley and Mr. Rosapep. In 2005, the 

GAO testified before the Senate Committee on Commerce, Science 

and Transportation that coordination between the Departments of 

Homeland Security and Transportation could be improved, noting 

that the lack of coordination could lead to confusion, duplication, 

and gaps in preparedness. Has coordination improved? 

Mr. HAWLEY. Yes. And since that time, we have arranged a 

memorandum of understanding. And we have charted it out. And 

we have both formal and informal communications. And frankly, I 

think we rely on each other moving forward. And it is a very tight, 

I think, very positive relationship. 

Mr. CARNEY. So the gaps are closed or closing? 

Mr. HAWLEY. I believe so, yes. 

Mr. ROSAPEP. I would agree. I mean, since we have adopted the 

MOU we really have stood up a structure for staff to be working. 

We have an executive steering committee to coordinate the overall 

security and transit security efforts. We have eight working groups 

that have staff from both agencies involved to address all the important elements really that are in your bill. And we have a group 

on training. We have a group on grants, a group on standards and 

so forth. 

So there really is the structure in place to provide that coordination. It is a work in progress, but the structure really is there. 

Mr. CARNEY. It is an iterative process, you would say? 

Mr. ROSAPEP. Yes, I mean, to be honest, I mean, all this is about 

relationships between people. And as you are working closer together, you start to learn each other’s strengths and weaknesses 

and how to complement each other. 

56 

Mr. HAWLEY. I think it is only fair to point out that as we have 

made tremendous progress certainly with DHS and DOT that—talk 

about personal relationships, you know, Commissioner Falkenrath, 

you know, I feel good communications there. But that would be an 

area where we really need to take the next step, is to get those 

closer connections certainly with TSA to be better connected to our 

operating partners at the local level. And that is really the primary 

focus of our activity now, is to close those gaps. 

Mr. CARNEY. What steps would you recommend that we take, formal or informal, for that matter, to make that happen? 

Mr. HAWLEY. Well, I think a lot of it gets down to the basics of 

communication. And I would like Commissioner Falkenrath to offer 

his perspective. He certainly has been very clear to me in expressing it and should share it with the committee. But it starts with 

who do I call. You know, it is DHS. You know, where is my point 

of contact that can track getting information flowing both ways? 

And for an organization as sophisticated and as real time as 

NYPD, you know, that is a moving part, as are we. So that, I 

think, is the challenge. 

Mr. FALKENRATH. It is not complicated. You pick up the phone. 

You call. You say we need to work on this together, and we want 

to do it. If you are having a meeting, you invite the agencies that 

are involved. You do not rely solely on the agencies you have 

worked with historically. You take a look at where the risk is and 

you figure out which agencies are critical for addressing that risk 

on a day to day basis. And you bring them in front and center. 

Mr. CARNEY. I agree. I mean, it is not all—the obvious things are 

not always the things we do. And I am glad to see some common 

sense is prevailing here. Those sorts of relationships are absolutely 

critical, not only to the day to day operation, but to build in the 

culture of cooperation. 

And I think that is where, from my perspective at least, DHS has 

been woefully deficient, is creating the culture. And I think this is 

a step toward that. And I think we are going to be—you know, we 

are certainly heading in the right direction. I appreciate your comments. Thank you. 

Mr. THOMPSON. Thank you very much. 

Let me say how much we appreciate the first panel for their 

presentation and how you responded to all the questions from the 

members. Thank you very much. 

We will now take a short break until we can get set up for the 

second panel. 

I welcome the second panel of witnesses. 

Bill Millar is the president of the American Public Transit Association, which represents public transportation systems across the 

nation. 

Ed Hamberger is the president of the American Association of 

Railroads. 

Ed Rodzwicz is the president of the Teamsters Rail Conference, 

which represents thousands of frontline rail and public transportation workers. 

Fred Weiderhold is the inspector general of Amtrak. 

57 

And I guess Mr. Shuman is on his way, who is an independent 

transportation consultant with nearly 30 years of experience assisting railroads. 

Without objection, the witnesses’ full statement will be inserted 

in the record. 

And because of time constraints, I would ask each witness to try 

to summarize his statement for about 3 minutes or the best you 

can do, beginning with Mr. Millar. And I know that is tough for 

this bunch. 

STATEMENT BILL MILLAR, PRESIDENT, AMERICAN PUBLIC 

TRANSPORTATION ASSOCIATION 

Mr. MILLAR. Yes, sir. Thank you, Mr. Chairman. And on behalf 

of the 1,500 members of the American Public Transportation Association, I am pleased to be here today and to give you our views 

on the proposed Rail and Public Transportation Security Act of 

2007. 

I want to start by particularly thanking you, Mr. Chairman, for 

your long support of improving security for public transportation. 

And we look forward to continuing to work with you and the committee in that regard. 

On an annual basis, over 10 billion times Americans used public 

transportation, less than 1 billion times that they used the nation’s 

airline system. Unfortunately, security has been an issue for our 

industry for a long time. 

According to the Government Accountability Office, about onethird of terrorists’ attacks worldwide target transportation systems 

and transit systems are the mode most commonly attacked. U.S. 

transit systems have worked with our customers to protect their 

customers against terrorism since long before September 11, 2001. 

But certainly, since 9/11, we, like everyone else in our society, has 

stepped up our concern about this. Our industry so far has spent more than $2.5 billion of its own 

money in addition to a small amount of federal assistance that has 

been provided for security. Overall, we have identified over $6 billion worth of security investments that should be made. Some of 

these are simple. 

Some are complex, things like interoperable communications systems, greater use of security cameras, automated vehicle locator 

systems, and a variety of other capital expenditures. But also investment is needed in so-called soft costs such as law enforcement 

personnel, overtime costs for transit employees, extra security, 

more extensive worker training, and a whole host of other costs 

that we face. 

We would ask the Congress also to provide funding to sustain 

APTA’s security standards program, which is an ongoing effort in 

cooperation with DHS and DOT. We would also urge—and I know 

Ms. Harman commented on this earlier. We would urge Congress 

to provide funding to maintain the public transit information sharing and analysis center, the so-called ISAC, which is the link that 

brings that world of intelligence to public transportation that is so 

important. 

Turning to the specifics of the Rail and Public Transportation Security Act, we strongly support the $3.36 billion which would be 

58 

authorized for security grants under this bill. These investments 

would enable us to make a considerable dent in the $6 billion 

worth of needs. And we are very appreciative that these funds 

would be available for operational and capital needs. 

We do encourage the Congress to recognize and provide flexibility 

as needs from city to city, locality to locality very substantially. 

Large rail systems are different than smaller bus systems. Both 

are different than commuter rail. 

We do have some concerns about the bill’s details and how these 

details might be implemented by the Department of Homeland Security. We are concerned that they have created a complicated and 

inefficient grants distribution process. And we have ideas to improve that process. 

We are concerned about the requirement for a local match. We 

wonder what 600 rail inspectors, many of whom do not understand 

the public transit operating environment, will do. We worry about 

the negative impact of the threat of civil and criminal penalties. 

And we are concerned that grant funds appropriated would not 

be delivered expeditiously. We believe that if there were cooperation with the Federal Transmit Administration its well-established 

grant delivery program could be used, even if the policy is set by 

the Congress and the DHS, which we completely agree with in 

terms of security. 

We fully support security training. But training requires funds, 

not only for the training itself, but in our business, if an employee 

is away from driving a bus, let us say, to get properly trained, 

there is nobody to drive the bus. So we have to make sure that 

there is money there to provide substitutes so that our staff members can have proper and appropriate amounts of training without 

denigrating service to our riders, without increasing transit fares 

and without raising local taxes. 

We would hope that the legislation could provide for the ISAC, 

as I mentioned earlier. And finally, we support the concept of coordination of transportation security tools and resources through a 

national center of excellence. Within that concept, we would recommend that organizations already federally funded such as the 

National Transit Institute at Rutgers or the Mineta Institute at 

San Jose State University ought to be key elements to that. 

Mr. Chairman, again, I want to thank you for your leadership 

and the leadership on this committee in this effort. This is a national issue that must have a national response. We look forward 

to working with you as you craft the details of your proposal. 

Thank you very much. 

[The statement of Mr. Millar follows:] 

PREPARED STATEMENT OF WILLIAM W. MILLAR

Mr. Chairman, thank you for this opportunity to provide testimony to the Committee on the Rail and Public Transportation Security Act of 2007. We appreciate 

your making the security of the tens of millions of Americans who use public transportation an important priority of this Committee, and we look forward to working 

with you on this issue. We thank you for your leadership on transit security. 

ABOUT APTA 

The American Public Transportation Association (APTA) is a nonprofit international association of more than 1,500 public and private member organizations, 

59 

including transit systems and commuter rail operators; planning, design, construction, and finance firms; product and service providers; academic institutions; transit 

associations and state departments of transportation. APTA members serve the public interest by providing safe, efficient, and economical transit services and products. 

More than ninety percent of the people using public transportation in the United 

States and Canada are served by APTA member systems. 

OVERVIEW 

Mr. Chairman, public transportation is one of the nation’s critical infrastructures. 

We cannot overemphasize the critical importance of the service we provide in communities throughout the country. Americans take about 10 billion transit trips each 

year. People use public transportation vehicles over 34 million times each weekday. 

This is more than eighteen times the number of daily domestic boardings on the 

nation’s airlines. 

Safety and security are the top priority of the public transportation industry. The 

Government Accountability Office (GAO) released a report several years ago which 

said ‘‘about one-third of terrorist attacks worldwide target transportation systems, 

and transit systems are the mode most commonly attacked.’’ Transit agencies had 

already taken many steps to improve security prior to the September 11, 2001 terrorist attacks and have significantly increased efforts since that date. Since 9/11, 

public transit agencies in the United States have spent over $2.5 billion on security 

and emergency preparedness programs, and technology to support those programs, 

largely from their own budgets with only minimal federal funding. 

Since 9/11, the federal government has spent over $24 billion on aviation security 

while has only allocated $549 million for transit security. Last year’s attacks in 

Mumbai and the previous attacks in London and Madrid further highlight the need 

to strengthen security on public transit agencies in the U.S. and to do so without 

delay. We need to do what we can to prevent the kind of attacks that caused more 

than 400 deaths and nearly 3,000 injuries on rail systems in Mumbai, London and 

Madrid. 

We urge Congress to act decisively. While transit agencies are doing their part, 

we need the federal government to be a full partner in the fight against terrorism. 

Terrorist attacks against U.S. citizens are clearly a federal responsibility and the 

federal government needs to increase its support for transit security improvements. 

In light of documented needs, we urge Congress to increase federal support for transit security grants to assist transit agencies in addressing the $6 billion in identified 

security needs. We ask that Congress provide no less than $545 million in the Fiscal 

Year (FY) 2008 Homeland Security Appropriations bill for transit security. Funding 

at that level annually would allow for significant security improvements in the nation’s transit agencies over a 10-year period. Federal funding for additional security 

needs should provide for both hard and soft costs as described below and be separate from investments in the federal transit capital program. 

We also urge Congress to provide $500,000 to the Department of Homeland Security (DHS) for grant funding to the APTA security standards program, under which 

APTA is working with its federal partners to develop transit security standards. Finally, we urge Congress to provide $600,000 annually to maintain the Public Transit Information Sharing Analysis Center (ISAC) which provides for the sharing of 

security information between transit agencies and DHS. 

To improve the distribution of funds under the existing transit security programs, 

we recommend that the existing process for distributing DHS grants be modified so 

that grants are made directly to transit agencies, rather than through State Administrating Agencies (SAA). We believe direct funding to transit agencies would be 

quicker and cheaper. The current process and grant approval procedures have created significant barriers and time delays in getting funds into the hands of transit 

agencies for security improvements. We believe that DHS should work with Federal 

Transit Administration (FTA) on the distribution of funds since FTA understands 

transit and already effectively administers a much larger capital grant program to 

transit agencies. 

As transit security is part of the larger war on terrorism, we urge Congress to 

continue providing transit security grants with no state or local match requirement. 

A local or state match requirement would have detrimental consequences by making 

security improvements contingent on a community’s ability to raise local funding. 

A local match requires the approval of a local governing body. Approval of such 

grants in an open, public forum, where specific project information is discussed is 

simply inappropriate for security sensitive projects. We should not make such information available to potential terrorists. 

BACKGROUND 

60 

In 2004, APTA surveyed its U.S. transit agency members to determine what actions were needed to improve security for their customers, employees and facilities. 

In response to the survey, transit agencies around the country identified in excess 

of $6 billion in transit security investment needs. 

In FY 2003, $65 million in federal funds were allocated by DHS for 20 transit 

agencies. In FY 2004, $50 million was allocated by DHS for 30 transit agencies. In 

FY 2005, Congress specifically appropriated $150 million for transit, passenger and 

freight rail security. Out of the $150 million, transit received $135 million. In FY 

2006, Congress appropriated $150 million. Out of the $150 million, transit received 

$136 million. In FY 2007, Congress appropriated $175 million. Out of $175 million, 

transit is slated to receive $163 million. We appreciate these efforts, but more needs 

to be done. 

Transit agencies have significant and specific transit security needs. Based on 

APTA’s 2003 Infrastructure Database survey, over 2,000 rail stations have no security cameras. According to our 2005 Transit Vehicle Database, 53,000 buses, over 

5,000 commuter rail cars, and over 10,000 heavy rail cars have no security cameras. 

Less than one-half of all buses have automatic vehicle locator systems (AVLs) that 

allow dispatchers to know the location of the bus if an emergency occurs. Nearly 

seventy-five percent of demand response vehicles lack these AVLs. Furthermore, no 

transit agency has a permanent biological detection system. In addition, only two 

transit agencies have a permanent chemical detection system. A more robust partnership with the federal government would help to better address many of these 

specific needs. 

We are disappointed that the Administration proposed only $175 million for transit, passenger and freight rail security in the FY 2008 DHS budget proposal. Regrettably, the Administration failed to make a significant funding proposal to enhance 

the security of the tens of millions of Americans who use transit. Instead, the Administration chose to freeze security funding for transit, passenger rail, and freight 

rail security at the level in FY 2007. This funding level falls well short of the funds 

needed to ensure the safety of Americans who take public transportation. We are 

also disappointed that the Administration failed to propose funding for transit security standards or the Public Transit ISAC. Both of these programs could significantly enhance transit security for a minimal cost. 

APTA is a Standards Development Organization (SDO) for the public transportation industry. We are now applying our growing expertise in standards development to transit industry safety and security, best practices, guidelines and standards. We have already initiated our efforts for security standards development and 

have engaged our federal partners from both the DHS and DOT in support of this 

initiative. Unfortunately, DHS has not agreed to provide funding to APTA for this 

effort. We respectfully urge Congress to provide $500,000 to the DHS so that it can 

provide that amount in grant funding to the APTA security standards program. Our 

efforts in standards development for commuter rail, rail transit and bus transit operations have been significant and our status as a SDO is acknowledged by both 

the FTA and the Federal Railroad Administration (FRA). The FTA and the Transportation Research Board have supported our standards initiatives through the provision of grants while our members have dedicated a portion of their APTA dues 

for standards development. 

We also would like to work with Congress and the Department of Homeland Security’s Directorate of Science and Technology to take a leadership role in advancing 

research and technology development to enhance security and emergency preparedness for public transportation. 

SECURITY GRANT PROGRAM 

The DHS’s Office of Grants and Training (G&T) is responsible for the distribution 

of the transit security grant program. G&T should be commended for reaching out 

to the transit industry in numerous listening sessions on our concerns. Staff from 

G&T have attended APTA conferences and participated in panel discussions. G&T 

staff has conducted various conferences around the country to explain the details 

of the transit security grant program. We continue to work with G&T on streamlining and improving the grant program but are frustrated with the results thus far. 

Since the creation of the DHS, four separate offices have been responsible for the 

distribution of transit security grants. Funds were originally distributed by the Office for Domestic Preparedness (ODP). Then it became known as the Office of State 

and Local Government Coordination and Preparedness (SLGCP). Now it is known 

as the Office of Grants and Training (G&T). In addition, the Transportation Security Administration (TSA) is responsible for establishing policy for the program and 

must now coordinate with G&T. 

61 

Along with the organizational changes, each new office has changed the distribution process for the transit security grants. In FY 2003 under ODP, grants went directly to the transit authorities. In FY 2004 under SLGCP, grants went to the State 

Administrating Agencies (SAAs), which then distributed grants to the transit systems. In FY 2005 under SLGCP, grants went through the SAAs, which then distributed grants to eligible transit systems on a regional basis in coordination with the 

urban area. Eligible transit systems were then required to work with the SAAs, the 

urban area, and the other eligible transit systems in their region to come up with 

a regional transit security plan on how to spend the federal funding before the transit system could be awarded the grant. This is currently the process. 

The transit systems that have been allocated DHS funds are accustomed to receiving federal transit funding directly to designated recipients from the FTA under authorizing law. We believe that DHS should work with the FTA in distributing 

grants to take advantage of FTA’s current familiarity with transit agencies and its 

own grant making process. While we believe Congress should continue to make federal transit security grants available through the DHS, the FTA model has been in 

place for years and works well in distributing funds quickly to transit systems. In 

contrast, DHS’s current process and conditions have created significant barriers and 

time delays in getting funds into the hands of transit agencies where they can be 

used to protect riders. We urge Congress to get transit security grants directly to 

the transit authorities in a way that takes advantage of FTA’s experience and effective delivery system. 

In that regard, we note that Section 3028, Subsection (c) of Safe, Accountable, 

Flexible, Efficient Transportation Equity Act—A Legacy for Users, SAFETEA–LU 

(P.L. 109–59) requires the Secretary of Transportation and the Secretary of the Department of Homeland Security to ‘‘issue jointly final regulations to establish the 

characteristics of and requirements for public transportation security grants, including funding priorities, eligible activities, methods for awarding grants, and limitations on administrative expenses.’’ We believe this rulemaking could be used to address our concerns and we ask the Committee to direct that it do so. 

INFORMATION SHARING 

Since the terrorist attacks of September 11, 2001, public transit agencies across 

the country have worked diligently to strengthen their security plans and procedures. They have also been very active in training personnel and conducting drills 

to test their capacity to respond to emergencies. Also, to the extent possible within 

their respective budgets, transit agencies have been incrementally hardening their 

facilities through the introduction of technologies such as surveillance equipment, 

access control and intrusion detection systems. While transit agencies have been 

diligent, they have been unable to fully implement programs with current levels of 

assistance from the federal government. 

A vital component of ensuring public transit’s ability to prepare and respond to 

critical events is timely receipt of security intelligence in the form of threats, warnings, advisories and access to informational resources. Accordingly, in 2003, the 

American Public Transportation Association, supported by Presidential Decision Directive #63, established an ISAC for public transit agencies throughout the United 

States. A grant in the amount of $1.2 million was awarded to APTA by the Federal 

Transit Administration to establish and operate a very successful Public Transit 

ISAC that operated 24 hours a day, 7 days a week, and gathered information from 

various sources, including DHS. The ISAC also passed information on to transit 

agencies following a careful analysis of that information. However, given that the 

Federal Transit Administration was subsequently unable to access security funds, 

and given the decision of DHS to not fund ISAC operations, APTA has had to look 

for an alternate method of providing security intelligence through DHS’s newly created Homeland Security Information Network (HSIN). APTA continues to work with 

DHS staff to create a useful HSIN application for the transit industry. It is clear, 

however, that while the HSIN may become an effective resource, it does not duplicate or provide the 24/7 two-way communication functions provided through the 

Public Transit ISAC. We believe that consistent, on-going and reliable funds from 

Congress should be provided for the Public Transit ISAC which has been proven an 

effective delivery mechanism for security intelligence. We respectfully urge Congress 

to provide $600,000 annually to maintain the Public Transit ISAC. 

In addition, APTA’s membership includes many major international public transportation systems, including the London Underground, Madrid Metro, and the Moscow Metro. APTA also has a strong partnership with the European-based transportation association, the International Union of Public Transport. Through these relationships, APTA has participated in a number of special forums in Europe and Asia 

62 

to give U.S. transit agencies the benefit of their experiences and to help address 

transit security both here and abroad. 

COST OF HEIGHTENED SECURITY 

Following the attacks in London in 2005, APTA was asked to assist the Transportation Security Administration (TSA) in conducting a teleconference between the 

TSA and transit officials to discuss transit impacts pertaining to both increasing 

and decreasing the DHS threat levels. There is no question that increased threat 

levels have a dramatic impact on budget expenditures of transit agencies and extended periods pose significant impacts on personnel costs. The costs totaled 

$900,000 per day for U.S. public transit agencies or an estimated $33.3 million from 

July 7 to August 12, 2005 during the heightened state of ‘‘orange’’ for public transportation. This amount does not include costs associated with additional efforts by 

New York, New Jersey and other systems to conduct random searches. 

Many transit agencies are also implementing other major programs to upgrade security. For example, New York’s Metropolitan Transportation Authority (NY–MTA) 

is taking broad and sweeping steps to help ensure the safety and security of its 

transportation systems in what are among the most extensive security measures 

taken by a public transportation system to date. NY-MTA will add 1,000 surveillance cameras and 3,000 motion sensors to its network of subways and commuter 

rail facilities as part of a $260 million Integrated Electronic Security System. In 

fact, NY–MTA plans to spend over $1.2 billion on transit security. 

SECURITY INVESTMENT NEEDS 

Mr. Chairman, since the awful events of 9/11, the transit agencies have invested 

more than $2.5 billion of their own funds for enhanced security measures, building 

on the industry’s already considerable efforts. At the same time, our industry undertook a comprehensive review to determine how we could build upon our existing industry security practices. This included a range of activities, which include research, 

best practices, education, information sharing in the industry, and surveys. As a result of these efforts we have a better understanding of how to create a more secure 

environment for our riders and the most critical security investment needs. 

Our survey of public transportation security identified enhancements of at least 

$5.2 billion in additional capital funding to maintain, modernize, and expand transit 

system security functions to meet increased security demands. Over $800 million in 

increased costs for security personnel, training, technical support, and research and 

development have been identified, bringing total additional transit security funding 

needs to more than $6 billion. 

Responding transit agencies were asked to prioritize the uses for which they required additional federal investment for security improvements. Priority examples 

of operational improvements include: 

Funding current and additional transit agency and local law enforcement personnel 

Funding for over-time costs and extra security personnel during heightened 

alert levels 

Training for security personnel 

Joint transit/law enforcement training 

Security planning activities 

Security training for other transit personnel 

Priority examples of security capital investment improvements include: 

Radio communications systems 

Security cameras on-board transit vehicles and in transit stations 

Controlling access to transit facilities and secure areas 

Automated vehicle locator systems 

Security fencing around facilities 

Transit agencies with large rail operations also reported a priority need for federal capital funding for intrusion detection devices. 

ONGOING TRANSIT SECURITY PROGRAMS 

Mr. Chairman, while transit agencies have moved to a heightened level of security 

alertness, the leadership of APTA has been actively working with its strategic partners to develop a practical plan to address our industry’s security and emergency 

preparedness needs. In light of our new realities for security, the APTA Executive 

Committee has established a Security Affairs Steering Committee. This committee 

63 

addresses our security strategic issues and directions for our initiatives. This committee will also serve as the mass transit sector coordination council that will interface with DHS and other federal agencies forming the government coordinating 

council. 

In partnerships with the Transportation Research Board, APTA supported two 

TCRP panels that identified and initiated specific projects developed to address Preparedness/Detection/Response to Incidents and Prevention and Mitigation. 

In addition to the TCRP funded efforts, APTA has been instrumental in the development of numerous security and emergency preparedness tools and resources. 

Many of these resources were developed in close partnership with the FTA and we 

are presently focused on continuing that same level of partnership with various entities within DHS. Also, APTA has reached out to other organizations and international transportation associations to formally engage in sharing information on 

our respective security programs and to continue efforts that raise the bar for safety 

and security effectiveness. 

RAIL AND PUBLIC TRANSPORTATION SECURITY ACT OF 2007 

Mr. Chairman, we thank you for making public transportation security improvements a priority for your Committee. We appreciate your interest and support for 

strengthening the federal program intended to protect tens of millions of transit 

users and the hundreds of thousands of transit workers against terrorism. We appreciate the $3.36 billion which would be authorized for transit security grants 

under this bill and believe it would allow us to make considerable progress in addressing the $6 billion in transit security needs that have been identified. 

This legislation and current programs place the responsibility for transit security 

squarely on the DHS, however we urge the Congress to require DHS to effectively 

partner with both transit agencies and the FTA in its efforts to enhance transit security. Every major transit agency has already conducted security risk assessments 

for their system. Transit agency operators understand their security vulnerabilities 

and needs. While we understand the need for DHS and the Congress to ensure that 

limited resources are used as efficiently as possible, we also feel strongly that providing these systems with the resources to deter, detect, and prevent terrorist activities, and to respond effectively if a critical event does occur, should be of paramount 

importance. We remain convinced that a more efficient delivery system for grants, 

ideally one where funds go directly to transit agencies, is one of the most effective 

ways to enhance security. The current system where agencies, after receiving an allocation, must develop regional plans for use of grant funds, pass those proposals 

back up to DHS through state agencies, then have DHS often request grant proposal modifications which are passed back down through the chain before they are 

resubmitted and ultimately awarded has not worked well. It is slow and inefficient. 

We also appreciate that funds under this bill are made available to address both 

operational and capital needs. Funding is needed to support additional security personnel, as well as overtime and salary costs related to training, drills, planning and 

risk assessments. Funding is also needed for technology and capital improvements. 

In both cases, however, we urge Congress to provide flexibility because assessments, 

technology, and operating needs do vary in different cities and among transit agencies with a wide variety of different operating conditions. Large rail systems are different from bus systems in smaller communities, and both are different than commuter rail operations. We believe that the determination of appropriate technology 

needs and operating improvements are something that is best done in partnership 

with the transit industry and not determined unilaterally by DHS. Further, the requirement for assessments at all agencies in communities with more than 50,000 

people should recognize the differences among resources, capabilities and risks in 

different size communities and agencies. 

We are also concerned about how the regulatory responsibility placed on DHS in 

the bill may move accountability away from the transit agencies themselves. Transit 

agencies should be held accountable for the efficient use of grant funds, but grant 

oversight should not become an impediment to using these grants to improve security. We also question whether the civil penalties and enforcement of regulations required under the bill will improve security. Transit systems are generally state, 

county, or municipal agencies headed by local officials responsible to the people of 

their community. If transit systems are fined, such penalties will essentially be paid 

by taxpayers and fare paying customers or come at the expense of transit service 

or transit security. 

As noted earlier, we are concerned about the requirement for a state or local 

match for security grants. National security is a federal responsibility. Security 

should not be predicated on a community’s ability to raise local tax funds. We are 

64 

also concerned about a process that would necessitate the detailed disclosure of how 

security funds are to be used in a public forum. A local match requires the approval 

of a local governing body. Approval of such grants in an open, public forum, where 

specific project information is discussed is simply inappropriate for security sensitive projects. We should not make such information available to potential terrorists. 

We further urge Congress to fund the development of security standards and protocols by the industry, and for the Public Transit Information Sharing Analysis Center (ISAC). Security standards are currently being developed by APTA in partnership with DHS and the DOT, but, to date, funding support has not been provided 

by DHS. Similarly, the public transit ISAC continues to provide a vital 24/7 security 

information service to the transit industry and its continuation is also in need of 

funding support. 

CONCLUSION 

Mr. Chairman, I want to thank you for your leadership and to thank this Committee for its efforts to improve security in the nation’s transit agencies. We pledge 

our cooperation as you continue to develop the national response to this issue. We 

genuinely appreciate the opportunity to comment on this important legislation and 

stand ready to work with DHS and the Congress to protect our riders, employees 

and communities against potential terrorist acts. 

Mr. THOMPSON. Thank you very much, Mr. Millar. 

Mr. Hamberger? 

STATEMENT OF EDWARD HAMBERGER, PRESIDENT 

AMERICAN ASSOCIATION OF RAILROADS 

Mr. HAMBERGER. Thank you, Mr. Chairman. 

And just as Mr. Millar and I cooperated here this morning sharing a microphone, I would draw attention before the committee 

that every year close to half a billion of his passengers ride on 

freight rail right-of-way on commuter rails. So we cooperate out in 

the real world as well. 

Thank you for the opportunity to discuss freight rail security in 

general and the Rail and Public Transportation Security Act of 

2007 in particular. At your request, I will skip the general comments and get right into our views on some of the provisions in the 

bill. 

First, I want to thank the subcommittee for its appreciation of 

the unique characteristics of the transportation technology center 

in Pueblo, Colorado. We strongly support the provision that would 

make TTCI a member of the National Domestic Preparedness Consortium. Today a facility specifically targeted out of the emergency 

response training for freight and passenger railroad environments 

is notably absent from the NDPC. Your legislation now corrects 

that oversight. 

We also strongly support the provision calling on DHS to establish a research and development program for projects related to rail 

security. My written statement identifies a number of projects that 

we believe would significantly enhance rail security. 

The rail industry recognizes the importance of whistle-blower 

protection for its employees. And, in fact, our employees already receive such protection under the Federal Railroad Safety Act. Creating a new separate system under the Department of Labor is duplicative and potentially confusing. Perhaps a better approach 

would be to expand the current whistle-blower protections to include security matters so that there are not two parallel systems. 

And I would respectfully ask you to take a look at that. 

65 

Turning to the issue of security training for railroad employees, 

it is an issue we take very seriously. And, in fact, working with the 

National Transit Institute at Rutgers University, referenced by Mr. 

Millar, freight railroads have developed an interactive uniform security awareness curriculum for freight rail employees. We submitted this training regimen to both TSA and the Federal Railroad 

Administration in 2006 and have received positive responses in return. 

Recently TSA inspectors surveyed 2,600 railroad employees and 

found that 80 percent of those had a medium or high level of security awareness. All frontline class one rail employees will have 

completed this security training by the end of this year. 

Finally, I would like to address the issue of background checks. 

I believe everyone understands the need for background checks. 

But it is imperative that that process be fair. 

And I would like to thank this committee for bringing to the 

freight railroad industry’s attention concerns with the background 

check for employees of railroad contractors. To help alleviate that 

confusion, as I testified 2 weeks ago, class one railroads have 

agreed to adopt new practices that include a robust appeals process, which will apply to individuals employed by railroad contractors who have been denied access to railroad property. 

Under this process, not only the contractor, but the contract employee also will have the right to appeal the initial decision of access. And the employee will be so notified by the e-rail safe program. The appeals process will provide the contractor and the contractor employee an opportunity to supply additional information 

pertinent to the appeal, mitigating circumstances, for example. 

Once received, the appeal will be considered promptly by a diversified appeals board. 

The provision adopted by the subcommittee in last week’s markup does not seem to take into account the robust nature of this new 

voluntary system that the industry has set up. In addition, the 

adopted provision does not explicitly recognize that railroads have 

a broader need than security when doing background checks. These 

include workplace safety, drug, and alcohol abuse and protection of 

the property entrusted to us by our customers. I do appreciate commitments from staff to continue to work with us to try to clarify 

that particular facet of the amendment. 

Finally, the adopted provision covers all rail employees, not just 

employees of rail contractors. There is already a grievance process 

in place for railroad employees, which has been arrived at through 

collective bargaining, includes union representation, and provides 

recourse and due process for our employees. So I respectfully suggest that the amendment does not need to extend to railroad employees. 

We are proud of our security record since September 11th. And 

we look forward to continuing to work with this committee, our employees and other agencies as you go about your business of writing 

this legislation. 

Thank you for the opportunity to be here. 

[The statement of Mr. Hamberger follows:] 

66 

PREPARED STATEMENT OF EDWARD R. HAMBERGER

On behalf of the members of the Association of American Railroads (AAR), thank 

you for the opportunity to discuss freight railroad security in general and the Rail 

and Public Transportation Security Act of 2007 in particular. AAR members account 

for the vast majority of rail mileage, employees, and revenue in Canada, Mexico, 

and the United States. 

Unlike U.S. passenger railroads and transit systems, U.S. freight railroads are, 

with minor exceptions, privately owned and operated, and they rely almost exclusively on their own earnings to fund their operations. Freight railroads move approximately 40 percent of our nation’s freight (measured in ton-miles)—everything 

from lumber to vegetables, coal to orange juice, grain to automobiles, and chemicals 

to scrap iron—and connect businesses with each other across the country and with 

markets overseas. 

From 1980 through 2006, Class I railroads spent more than $370 billion—more 

than 40 cents out of every revenue dollar—on capital expenditures and maintenance 

expenses related to infrastructure and equipment. Non-Class I carriers had billions 

of dollars of additional spending. These massive, privately-funded expenditures help 

ensure that railroads can meet our current and future freight transportation demands safely and cost effectively. 

As the Federal Railroad Administration (FRA) noted in congressional testimony 

a few weeks ago, ‘‘The railroads have an outstanding record in moving all goods 

safely.’’ Indeed, nothing is more important for railroads than the safety and security 

of their operations. For railroads, safety and security are interconnected: a safer 

workplace will tend to be a more secure workplace, and a more secure workplace 

will tend to be a safer workplace. And railroads have become much safer. According 

to FRA data, railroads reduced their overall train accident rate by 70 percent from 

1980—2006, and their rate of employee casualties by 81 percent. Railroads have 

lower employee injury rates than other modes of transportation and most other 

major industry groups, including agriculture, construction, manufacturing, and private industry as a whole. 

We should also be encouraged by the continuing improvements in rail safety. 

Based on preliminary data, 2006 was the safest year ever for railroads by the three 

most commonly-cited rail safety measures: the train accident rate, the employee casualty rate, and the grade crossing collision rate all reached record lows. 

Freight railroads are justifiably proud of these accomplishments. At the same 

time, though, railroads want rail safety and security to continue to improve, and 

they are always willing to work cooperatively with members of this committee, others in Congress, the Department of Homeland Security (DHS), the Department of 

Transportation (DOT), the FRA, rail employees, and others to find practical, effective ways to make this happen. 

To that end, we appreciate this committee’s interest in rail security. Below I will 

describe the many ways that U.S. freight railroads have addressed security in the 


11012-3.eps
67 

post 9–11 era, provide our views on various provisions of the Rail and Public Transportation Security Act of 2007, and offer suggestions on how rail security can be further improved. 

The Aftermath of September 11 

Almost immediately after the 9/11 attacks, the AAR Board of Directors established a Railroad Security Task Force. The overarching goals of this task force were 

to (1) help ensure the safety of rail employees and the communities in which railroads operate; (2) protect the viability of national and regional economic activity; 

and (3) ensure that railroads can continue to play their vital role in support of our 

military. 

Over the next several months, the task force conducted a comprehensive risk 

analysis of the freight rail industry. Using intelligence community ‘‘best practices,’’ 

five critical action teams (consisting of more than 150 experienced railroad, customer, and intelligence personnel) examined and prioritized railroad assets, 

vulnerabilities, and threats. Separate critical action teams covered information technology and communications; physical infrastructure; operational security; hazardous 

materials; and military traffic needs. Freight railroads also cooperated fully with a 

separate team covering passenger rail security. 

The end result of these analyses was the creation of the industry’s Terrorism Risk 

Analysis and Security Management Plan, a comprehensive, intelligence-driven, priority-based blueprint of actions designed to enhance freight railroad security. The 

plan was adopted by the AAR in December 2001 and remains in effect today. 

As a result of the plan, freight railroads quickly enacted more than 50 permanent 

security-enhancing countermeasures. For example, access to key rail facilities and 

information has been restricted, and cyber-security procedures and techniques have 

been strengthened. In addition, the plan defines four progressively higher security 

alert levels and details a series of actions to be taken at each level: 

Alert Level 1 is ‘‘New Normal Day-to-Day Operations.’’ It exists when a general 

threat of possible terrorist activity exists, but warrants only a routine security posture. Actions in effect at this level include conducting security training and awareness activities; restricting certain information to a need-to-know basis; restricting 

the ability of unauthorized persons to trace certain sensitive materials; and periodically confirming that security systems are working as intended. 

Alert Level 2 (the level in effect today) is ‘‘Heightened Security Awareness.’’ It applies when there is a general non-specific threat of possible terrorist activity involving railroad personnel or facilities. Additional actions in effect at this level include 

security and awareness briefings as part of daily job briefings; content inspections 

of cars and containers for cause; and spot content inspections of motor vehicles on 

railroad property. 

Alert Level 3 means there is ‘‘a credible threat of an attack on the United States 

or railroad industry.’’ Examples of Level 3 actions include further restricting physical access and increasing security vigilance at control centers, communications 

hubs, and other designated facilities, and requesting National Guard security for 

critical assets. 

Alert Level 4 applies when a confirmed threat against the rail industry exists, an 

attack against a railroad has occurred, an attack in the United States causing mass 

casualties has occurred, or other imminent actions create grave concerns about the 

safety of rail operations. Security actions taken at this level include stopping nonmission-essential contractor services with access to critical facilities and systems; increasing vigilance and scrutiny of railcars and equipment during mechanical inspections to look for unusual items; and continuous guard presence at designated facilities and structures. 

Alert Levels 3 and 4 can be declared industry-wide for a short period of time or, 

if intelligence has identified that terrorist action against a specific location or operation is imminent, for a particular geographic area (e.g., the Midwest) or subset of 

rail traffic (e.g., hazardous materials). 

The rail security plan is not simply something that has been put in a binder on 

a shelf to be taken down and dusted off once in a while. Rather, it is a robust and 

dynamic paradigm for railroad operations that has been in effect for more than five 

years; it is evaluated and modified, as necessary, on an ongoing basis; and it has 

substantially raised the baseline of railroad security. Railroads took this action 

without waiting for legislation or a regulatory regime to tell them to do so. 

Indeed, railroads are a model for other industries in their approach to improving 

security. As a former FRA administrator noted regarding rail efforts at enhancing 

security, ‘‘I can say how impressed I am by the scope of the analysis, the sophistication of the analytical framework, and the manner in which rail carriers have devoted substantial resources—both funding and senior leadership—to the completion 

68 

of this important task. They’ve done remarkable work.’’ And a former Secretary of 

the U.S. Department of Health and Human Services has noted that ‘‘The anti-terrorist measures the railway industry has taken. . .have added and will continue to 

add to the safety of our citizens, the delivery of vital goods and the ability of our 

men and women in uniform to carry our battle to the enemy.’’ 

Access to pertinent intelligence information is a critical element of the railroad 

security plan. Congress should ensure that DHS is routinely communicating relevant intelligence to the railroad industry through the Railway Alert Network 

(RAN), a secure 24/7 communications network operated by the AAR at the Secret 

level that links federal security personnel with railroad operations centers. Through 

the RAN, railroads and the intelligence community can share information to maintain situational awareness and immediately institute appropriate alert levels. 

Railroad industry security requires constant communication with the Transportation Security Administration (TSA) and elsewhere within DHS, the Department 

of Defense (DOD), the DOT, the FBI’s National Joint Terrorism Task Force 

(NJTTF), state and local law enforcement, and others. A railroad police officer and 

railroad analysts who hold Top Secret clearances work with government intelligence 

analysts at NJTTF and at DHS to help evaluate intelligence and serve as subject 

matter experts. 

Communication is also enhanced by the Surface Transportation Information Sharing and Analysis Center (ST–ISAC), which was established by the AAR at the request of the DOT. The ST–ISAC collects, analyzes, and distributes security information from worldwide resources to help protect vital information technology systems 

and physical assets from attack. It operates 24/7 at the Top Secret level. 

Rail security efforts strongly benefit from the fact that major railroads have their 

own police forces. Safety and security would be enhanced if police officers of one 

railroad were permitted to exercise law enforcement powers on the property of another railroad. This flexibility could prove especially valuable in the event of a national security threat involving an individual railroad. 

Notwithstanding rail industry efforts, there can be no 100 percent guarantee 

against terrorist assaults, including assaults involving hazardous materials 

(hazmat) on railroads. If such an incident occurs, railroads have well-established 

programs and procedures that would be invoked that are designed to respond to and 

minimize the impact of such incidents. 

In this regard, emergency response efforts are critical. Railroads help communities develop and evaluate hazmat emergency response plans. Through their own 

efforts and the Transportation Community Awareness and Emergency Response 

Program (TRANSCAER), they provide basic training for more than 20,000 emergency responders each year. 

In addition, more than 20 years ago, the AAR established the Emergency Response Training Center (ERTC), a world-class training facility that is part of the 

Transportation Technology Center, Inc. (TTCI) in Pueblo, Colorado. The ERTC has 

provided in-depth hazmat emergency response training to more than 38,000 emergency responders and railroad and chemical industry professionals from all over the 

country and abroad. The ERTC is providing basic railroad safety and security training for 100 rail security inspectors hired by the TSA, and this summer ERTC will 

be training NJTTF personnel. 

The ERTC is considered by many to be the ‘‘graduate school’’ of hazmat training 

because of its focus on comprehensive, hands-on training using actual rail equipment. TTCI boasts a collection of around 70 rail freight cars (including tank cars), 

some 15 rail passenger cars, 25 highway cargo tanks, van trailers, and intermodal 

containers, as well as computer work stations equipped with the latest emergency 

response software. TTCI is currently developing a Passenger Railcar Security and 

Integrity Training Facility to test the effectiveness of various response and remediation techniques in mitigating incidents involving passenger trains. This facility focuses on chemical, biological, radiological, nuclear, or explosive incidents and other 

activities associated with potential terrorist events. 

Many members of Congress have had the opportunity to visit TTCI in person. I’m 

pleased to offer all members of this committee an open invitation to visit the facility 

to gain first-hand knowledge of its capabilities. On April 11, 2007, we plan to conduct a tank car test crash as part of an evaluation of tank car safety. This committee might want to consider scheduling a field visit to TTCI to view this demonstration. 

The Rail and Public Transportation Security Act of 2007 

As I noted earlier, railroads appreciate your interests in addressing rail security. 

As you consider specific legislation, though, we respectfully urge you to consider the 

extensive steps railroads have already taken to make our freight railroads more seVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00072 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
69 

1The way railroads addressed the disruptions caused by Hurricane Katrina is illustrative of 

this point. Railroads prepared for the storm, assessed damage, and had most of their lines back 

in operation in the region in a matter of a few days. Again, rail industry preparation and response efforts were a model for everyone else. 

cure. We also hope you remain mindful of the need to establish a proper balance 

between efforts to enhance security, on the one hand, and allowing the free flow of 

goods that is critical to our societal and economic health, on the other. 

We also urge you to remember that any railroad security regime must take into 

consideration the nature of rail operations. Our freight railroads form a vast, overwhelmingly open system designed to move goods efficiently and cost-effectively 

throughout North America. By its nature, the system cannot be ‘‘closed.’’ Moreover, 

in order to survive for more than 170 years, as they have, railroads have had to 

learn to be resourceful, flexible, and productive. Sudden disruptions brought about 

by weather, grade crossing accidents, rockslides, equipment failures, and countless 

other contingencies are a fact of life for railroads. I can think of no other industry 

that faces these kinds of disruptions as routinely, and typically handles them as 

well, as railroads do. 

Consequently, this committee should keep in mind the impressive capabilities 

railroads have honed over the years in responding to unusual circumstances. We especially urge you to refrain from transferring key operational decision-making authority to a federal bureaucracy. Doing so would make it much more difficult for 

railroads to respond to and recover from challenges related to safety and security.1

Regarding specific rail-related provisions of the Rail and Public Transportation 

Security Act of 2007: 

• Section 3 calls for the Department of Homeland Security (DHS) to develop 

and implement a national strategy for rail and public transportation security. 

Railroads support this provision, particularly with respect to the mandate to develop a strategy to research and develop new technologies for securing rail 

transportation. 

• Section 5 requires DHS to issue regulations requiring railroads to conduct 

vulnerability assessments and prepare security plans. As discussed earlier, the 

rail industry is already well beyond the assessment stage. The legislation 

should make clear that DHS should review and may accept the security assessments and plans railroads already have in place to meet the requirements of 

this section. 

Section 5 also calls for the identification of a security coordinator ‘‘to require immediate communications from appropriate federal officials. AAR’s 

members already maintain safety/security offices that are open around the 

clock, and the AAR maintains a 24/7 security emergency line. 

Section 5 also requires plans for locating shipments of railroad cars transporting ‘‘extremely hazardous materials or nuclear waste’’ that are ‘‘lost or 

stolen.’’ With all due respect, the loss or theft of tank cars is not a problem 

in our industry. Railroads, at the request of the TSA, have agreed to provide movement data on all rail cars carrying toxic inhalation hazards 

(TIH).* 

• Section 6 requires DHS to develop a strategic information sharing plan to ensure the development of tactical and strategic intelligence pertaining to threats 

and vulnerabilities for dissemination to appropriate stakeholders. We support 

appropriate sharing of information. However, there should be clear and unequivocal protections to ensure that strategic information does not fall into the 

hands of those who would harm us. 

• Section 7 establishes a program for making grants to both passenger and 

freight railroads for infrastructure protection. We strongly support this provision, particularly the inclusion of ‘‘overtime reimbursement for additional security personnel during periods of heightened security’’ as an eligible security improvement. * 

• Section 11 requires DHS to develop a security training program for railroad 

workers and to issue guidance on such training to railroads. I address employee 

security training more fully below. It is important to note, though, that freight 

and passenger railroad environments are very different, and some elements of 

the employee security training program recommended in the bill (e.g., element 

5 on evacuation procedures) may be appropriate for passenger railroads but are 

not appropriate for freight railroads. Moreover, some elements of the bill (e.g., 

element 1 on determining the seriousness of a threat) would require freight railroad employees to put themselves in harm’s way, which contradicts existing 

freight railroad policies and procedures. 

70 

• Section 12 requires DHS to develop a program for conducting security exercises, including live exercises at railroad facilities. The railroad industry conducts regular table top exercises to ensure maximum continued effectiveness of 

its security plan. Railroads are concerned that live government exercises, if unannounced and not carefully coordinated with the railroads involved, could result in fatalities or injuries. To guard against this, we recommend that the provision be modified to require DHS to coordinate such exercises with railroads 

to ensure the proper safety of all participants in the exercises while on railroad 

property.* 

• Section 13 requires DHS to establish a research and development program for 

projects related to rail security. The AAR strongly supports this provision. On 

February 13, 2007, AAR offered testimony at a hearing of this Committee’s Subcommittee on Appropriations. That testimony included a list of R&D projects 

that, if appropriately funded, would significantly enhance rail security. I attach 

this list as Appendix 1 at the end of this testimony. 

Earlier in this testimony, I discussed the facilities available at the Transportation Technology Center, Inc., including the Emergency Response 

Training Center. Many of the projects outlined and recommended in the 

Rail and Public Transportation Security Act of 2007, and many other 

projects that are not mentioned but have important safety and security benefits, are already underway at TTCI. We urge you to utilize this unique and 

invaluable resource. 

We also strongly support the provision that would make TTCI a member 

of the National Domestic Preparedness Consortium (NDPC), a group of premier institutions that develop, test, and deliver training to state and local 

emergency responders. Today, a facility specifically targeted at emergency 

response training for freight and passenger railroad environments is notably absent from the NDPC. Including TTCI in the NDPC offers a unique 

opportunity to improve our nation’s ability to prevent, minimize, and respond to potential rail-related terrorist attacks. 

• Section 14 calls for new whistleblower protections, under the Department of 

Labor, designed to shield rail employees from retaliation for certain conduct involving issues related to homeland security. 

Railroads do not object to equitable whistleblower protections for rail workers, but they do not believe that there should be one set of rules for whistleblowing on safety matters and a different set of rules for whistleblowing on 

security matters. The Federal Railroad Safety Act already has a whistleblower provision (49 U.S.C, Section 20109), and any expansion of rail employee whistleblower protections to include security should be undertaken 

within the context of Section 20109. Creating a new, separate system under 

the aegis of the Department of Labor is both unnecessary and potentially 

confusing, since situations could develop that could be handled under either 

Section 20109 or the Department of Labor. 

With respect to Section 14, if the government invokes a states secrets privilege in a case where a railroad employee has filed a claim against a railroad, the railroad should not be precluded from presenting its justifications 

for any action taken against that employee, and the railroad should be able 

to obtain a judgment based on the justifications the railroad is able to provide. 

• Section 15 would increase the number of non-aviation TSA inspectors from 

100 to ‘‘at least 600’’ by the end of 2010. Railroads welcome the provisions specifying minimum qualifications for such inspectors and for requiring a clear delineation of responsibilities between TSA inspectors, FRA inspectors, state and 

local law enforcement, and railroad police. We are not convinced, however, that 

such an inspection workforce is necessary in the freight railroad environment, 

or that the new TSA inspectors would not simply duplicate the work currently 

performed by FRA inspectors. Railroads would prefer to see the limited resources available for rail security applied to the physical protection of personnel, critical assets, and the public. 

• Section 16 establishes a National Transportation Security Center of Excellence (NTSCE) at an institution of higher education to conduct research and 

education and develop professional rail security training. We would hope that 

the work of the NTSCE and of other institutions associated with it would be 

integrated with the work underway at TTCI in Pueblo, Colorado so as not to 

duplicate efforts. 

Railroads respectfully suggest that a number of other additional legislative 

provisions would enhance railroad security: 

71 

2Such a measure was contained in legislation (H.R. 2351) introduced in the 109th Congress 

sponsored by Rep. James Oberstar, chairman of the House Transportation and Infrastructure 

Committee, and is included in S. 184 (the ‘‘Surface Transportation and Rail Security Act of 

2007’’), which is now included in S. 4 (the ‘‘Improving America’s Security by Implementing Unfinished Recommendations of the 9/11 Commission Act of 2007’’). 

• Address the ‘‘bet the company’’ risk railroads must assume because of their 

common-carrier obligation to carry highly-hazardous materials, especially ‘‘toxic 

inhalation hazards’’ (TIH). 

• Encourage rapid development and implementation of ‘‘inherently safer technologies’’ as substitutes for highly-hazardous materials, especially TIH. 

• Ensure that any technology that is mandated to track and locate rail cars carrying hazmat and/or to identify actual or imminent hazmat release is fully proven, functional, reliable, and cost effective, and does not impede or endanger existing railroad systems. 

• Make expenses mandated by the government (including mandates that result 

from high-risk corridor assessments) eligible for critical infrastructure protection grants. 

• Allow police officers of one railroad to exercise law enforcement powers on the 

property of another railroad.2

• Engage the expertise and experience of rail industry personnel as significant 

domestic intelligence assets. 

Many of the additional steps railroads recommend pertain to hazardous materials. 

Appendix 2 of this testimony contains an excerpt of AAR testimony offered on February 13, 2007, to this Committee’s Subcommittee on Appropriations that discusses 

the hazmat issue in far more detail. 

Rail Employee Security Training 

Railroad security efforts depend a great deal on the efforts of railroads’ dedicated 

and highly-professional employees—including engineers and conductors aboard 

trains; maintenance of way crews, inspectors, and signalmen working along railroad 

rights-of-way; railroad police officers; and others. They are the ‘‘eyes and ears’’ in 

the industry’s security efforts, and we should all be grateful for their vigilance and 

care. 

The freight rail industry trains its employees to be vigilant, to report suspicious 

objects and activities, and to keep out of harm’s way. The training has encompassed 

topics such as what to do when an employee sees a stranger or suspicious activity 

on rail property; to whom an anomaly should be reported; the need to keep information about train movements and cargos confidential; and the need to keep rail property secure and safe. 

With 9/11, it became clear to railroads, as it did to firms in other industries, that 

security awareness would have to take on new importance. In response, Class I railroads soon thereafter provided a training video and/or printed materials to all employees—in most cases mailing the materials to employees’ homes—that could be 

characterized as ‘‘Security Awareness 101.’’ In the materials, the railroads expressed 

to their employees three fundamental expectations that to this day remain cornerstones of rail employees’ responsibilities regarding security: don’t put yourself in 

danger; report suspicious activities on or around railroad property; and don’t divulge 

sensitive information about rail operations to others. 

Over time, freight railroads began to incorporate security issues in a more formal 

fashion—for example, as part of employees’ periodic FRA-mandated safety rules recertification, as part of new-hire training, and as part of new manager training. 

Many railroads have incorporated security issues into employees’ manual of standard operating practices. Moreover, all railroads are compliant with U.S. DOT-mandated HM–232 security training for employees who handle hazardous materials. 

More recently, railroads concluded that rail security would be enhanced if rail employee security training was more uniform across railroads through use of a standardized curriculum, and railroads have made that harmonization a reality. 

Much has been done in collaboration with the National Transit Institute (NTI) at 

Rutgers University. NTI was established under the Intermodal Surface Transportation Efficiency Act of 1991 to develop, promote, and deliver training and education 

programs for the public transit industry. Freight railroads are fortunate to have 

been able to take advantage of NTI’s success in promoting safety and security in 

public transit to develop an interactive, uniform security awareness curriculum for 

freight railroad employees. 

The standardized curriculum has four modules: What is Security; Vulnerability, 

Risk, and Threat; What to Look For; and Employees’ Role in Reducing Risk. The goal 

of the standardized curriculum is to provide rail employees with an understanding 

72 

of their role and responsibility in system security, and how to implement their companies’ procedures upon detection of suspicious objects or activities. 

For example, one module of the curriculum focuses on what system security entails in a general sense—i.e., the use of operating and management policies and procedures to reduce security vulnerabilities to the lowest practical level, as well as a 

process focusing on preventing all levels of crime against people and property. 

Under a system security approach, rail employees are taught to realize that they 

and their duties are part of a larger, extensive system and that system security begins with the employee. To that end, employees are encouraged to be observant and 

to be familiar with their companies’ policies and procedures in the event of a threat 

or incident. 

Another module of the curriculum covers how to identify suspicious or dangerous 

activities. In the case of suspicious individuals, the focus is on behavior—specifically, where the person is, when he or she is there, and what he or she is doing. 

Railroads know that their employees know their daily work area better than anyone 

and are in the best position to determine if something looks wrong or is out of place. 

Thus, employee training emphasizes being familiar with the work area; observing 

and reporting suspicious activities and objects; reporting missing or malfunctioning 

equipment; and, if appropriate and endorsed by railroad policies, approaching and 

engaging persons to resolve or confirm suspicions. Rail employees are not to approach threatening people; try to intervene in dangerous activities; or pick up, 

touch, or move suspicious objects. They are expected to withdraw from dangerous 

environments and situations and are expected to report dangerous situations immediately. 

As part of the standardized curriculum, employees are also trained how to react 

to threats, which may take the form of perceived suspicious activity, suspicious and/ 

or out-of-place objects or vehicles, evidence of tampering with equipment, phone 

calls or other warnings, or other circumstances. Again, railroads do not expect their 

employees to ‘‘play the hero’’ by potentially putting themselves in harm?s way. Instead, they are expected to follow their company’s policies and procedures, inform 

the appropriate authority of the situation, move to a safe location, and wait for further instructions. 

We submitted our employee security training program both to DHS and to FRA 

for review and comment in February 2006. TSA reviewed the rail industry’s training 

program, and advised us that it is ‘‘relevant and up-to-date’’ and is ‘‘helpful’’ in 

‘‘rais[ing] the baseline of security-related knowledge.’’ Recently, TSA inspectors surveyed 2,600 railroad employees and determined that 80 percent of the employees 

have a medium or high level of security awareness. 

Class I railroads will complete security training for front-line workers (security 

personnel, dispatchers, train operators, other on-board employees, maintenance and 

maintenance support personnel, and bridge tenders) by the end of this year. Going 

forward, rail employee security training is being documented and records of it are 

being maintained. 

As the information noted above makes clear, railroads treat very seriously their 

obligations in regard to security and have made sustained, earnest efforts to provide 

their employees with the tools and training they need to react appropriately when 

security-related issues arise. Moreover, railroads are not standing still in this regard. Through their efforts with NTI and others, railroads are continually refining 

their training efforts to improve their usefulness and effectiveness. Railroads are 

also always open to reasonable, constructive suggestions on how employee security 

training can be improved. 

Criminal Background Checks 

The legislation before you now includes a provision on criminal background checks 

that would apply to all covered transportation providers—railroads, public transportation providers, and over-the road bus operators. This provision is unwarranted, excessively broad in scope, and an intrusion into the rights of the industry to protect 

its workforce and property from convicted criminals. It is a reaction to a limited situation involving employees of railroad contractors that is already being appropriately addressed. Moreover, the legislation actually conflicts with the parameters 

prescribed by the regulatory regime set up for the U.S. government?s transportation 

worker identification credentials (TWIC). 

On February 16, 2007, I testified before this Committee’s Subcommittee on Transportation Security and Infrastructure Protection. In that testimony, I noted that 

railroads have an obligation to their employees, their customers, the communities 

they serve, and their shareholders to keep their personnel, their operations, and facilities as safe and secure as possible. Railroads take this obligation, which has 

taken on a new dimension in the post-9/11 world, very seriously. Like all other inVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00076 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
73 

dustries, railroads employ a variety of risk management tools to achieve this goal. 

One such tool is the use of criminal background checks of prospective employees and 

contractors seeking access to railroad property. 

For any firm, the basic purpose of a criminal background check is to reduce the 

likelihood that a prospective employee will engage in workplace crime. Even when 

a conviction is not directly related to the potential duties of a position (e.g., a conviction for embezzlement by an applicant for an auditing position), the conviction may 

be considered an indication that a necessary personal qualification (integrity, reliability, self control, etc.) is missing. Convictions of particular concern to railroads 

include crimes against persons, crimes involving weapons, crimes involving theft or 

fraud, and crimes involving drugs or alcohol. 

There are also important liability considerations behind criminal background investigations. These include protection against lawsuits for ‘‘negligent hiring’’ and 

‘‘negligent retention.’’ Courts have ruled that employers can be held liable for the 

damaging actions of their employees, if, based on the employee’s previous actions, 

he or she should have been disqualified for the position. Similar liability can arise 

from the actions of contractors and employees of contractors. 

The above points all hold true for railroads. In addition, railroads face a growing 

body of requirements and recommended ‘‘best practices’’ related to homeland security that directly or indirectly call for criminal background checks for persons with 

access to rail property. These requirements and recommended practices emanate 

from DHS or one of its agencies, such as the TSA, the Coast Guard, or the U.S. 

Customs and Border Protection (CBP); from the DOT or one of its agencies, such 

as the Federal Motor Carrier Safety Administration or the Pipeline and Hazardous 

Materials Safety Administration; or from another government entity. Appendix 3 

lists several examples. 

A few years ago, the railroads determined that not all contractors working on railroad property were conducting background checks on their employees. To help close 

this gap, a nationally-recognized background investigation firm, eVerifile, was retained to create an industry-wide program known as e-RailSafe. The e-RailSafe program provides background checks and credentialing for the employees of contractors 

who need access to the property of Class I freight railroads. 

The e-RailSafe program began in late 2005. To date, four of the seven Class I railroads are participating. Others have signed contracts with e-Verifile but have not 

yet initiated the program. 

As I noted in my testimony on February 16th, when contacted by the Committee 

about some of the confusion surrounding the e-RailSafe program, we moved swiftly 

to clarify the rationale for the program and to provide a robust and responsive appeals process for contractor employees who were denied credentials due to their 

criminal backgrounds. A more complete description of the program and the appeals 

process is included in Appendix 4. Let me reiterate today that the background 

checks done by the railroad industry are conducted for a wide variety of basic, common sense reasons. As private property owners, we have a right—and an obligation)—to safeguard our personnel and property from persons with criminal backgrounds. If those background checks also help meet the recommended practices of 

the Department of Homeland Security, then all the better. But we strongly oppose 

the legislation before you that would severely constrain the ability of the railroads 

to protect its workforce and property. 

Among our concerns with the provision are the following: 

• It would apply not only to the employees of contractors, but to all employees 

of transportation providers. 

• The provision is retroactive to background checks performed since June 23, 

2006. 

• The waiver and appeals process requires an ?independent decision-maker? 

with the ability to order reinstatement or provide other remedies. This is an intrusion into the rights of private companies to determine who it employs and 

who it allows on its property. As far as we are aware, no other U.S. industries 

are bound by a similar federal mandate. 

• The disqualifiers specified are different than what is required by the DHS 

under its TWIC program. For example, while there are 11 permanent disqualifiers required by the TWIC, including murder, the legislation before you only 

includes treason, espionage and sedition. 

• The timeframes for the disqualifiers in the legislation before you are also different from the TWIC. For example, this legislation would disqualify an applicant for credentials if he or she had a felony conviction within the last 6 years. 

A person applying for a TWIC card is disqualified if he or she has had a felony 

conviction within the last 7 years. This legislation would disqualify an applicant 

for credentials if he or she has been incarcerated within the last 4 years. A perVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
74 

son applying for a TWIC card is disqualified if he or she has been incarcerated 

within the last 5 years. 

• As we have testified previously, our background checks do not use the same 

disqualifiers as does the U.S. government when it is considering an applicant 

for the issuance of security credentials. Our purposes are different. 

• This legislation, for example, does not include the crimes of theft, drug use, 

or drunk driving as disqualifiers. In fact, the legislation would actually prevent 

a railroad from firing its own employees or denying property access to a contractor’s employees found guilty of such offenses. The omission of drug use and 

drunk driving is particularly surprising given the stringent drug and alcohol 

testing program the federal government requires for railroad employees. 

In short, this provision is a wholesale federal intrusion into the rights of private 

property owners to determine whom they can employ or have access to their property. We believe that the measures we are undertaking address this committee’s 

concern that a process exist to give contractor employees a robust right of appeal. 

Conclusion 

U.S. freight railroads are proud of the success they achieved in keeping our nation’s vital rail transport link open following the September 11, 2001 terrorist attacks. Since then, railroads have taken many steps to increase the security of our 

nation’s rail network, including the development of a comprehensive security management plan that incorporates four progressively severe alert levels. Railroads will 

continue to work with this committee, others in Congress, federal agencies, and all 

other relevant parties to further enhance the safety and security of our nation’s railroads and the communities they serve. 

Mr. THOMPSON. Thank you very much. Five seconds to spare. 

Mr. Rodzwicz, thank you very much. 

STATEMENT OF EDWARD W. RODZWICZ, PRESIDENT, 

TEAMSTERS RAIL CONFERENCE 

Mr. RODZWICZ. Thank you, Mr. Chairman. 

As president of the Teamsters Rail Conference, I appear today on 

behalf of more than 70,000 rail conference members who will be 

impacted by the proposed Rail and Public Transportation Security 

Act of 2007. Rail labor has taken every opportunity since 9/11 to 

advocate for strong security legislation for the railroad industry. 

And we are pleased to see that you have listened to what we have 

said. 

The bill addresses many of the issues we have raised over the 

past five-and-a-half years. I want to comment upon a number of 

the provisions contained in the bill so that you have the benefit of 

rail laborers’ view. 

The Teamster Rail Conference is dedicated to improving rail security and safety in America in order to adequately protect rail 

workers and the communities they serve. Each and every day we 

are on the front lines of the nation’s transportation system and see 

the woeful lack of security on our railroads. This lack of security 

is more than just troubling. It is tragic because we have seen the 

damage that can be done by accidents on the railroads and shudder 

to think of the damage that could be wrought by terrorism or sabotage. 

Worker training is one area of grave concern for rail employees. 

The rail conference is most pleased with the strong requirements 

contained in section 11 governing security training programs for 

frontline railroad workers. The timeline appears appropriate to us. 

And we appreciate and look forward to consulting with the secretaries in developing these programs. 

We wish to voice strong support for the requirement in subsection c8 that the program include training on understanding seVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
75 

curity incident procedures, including procedures for communicating 

with governmental and non-governmental emergency response providers. There is no question in our minds that this element will be 

strongly opposed by at least some management groups. 

The conference also wants to voice our support for the whistleblower protections contained in section 14 of the bill. Railroad 

workers should not and cannot be subjected to dismissal when they 

provide security threat information to the government. These protections are absolutely necessary in order for our members to feel 

comfortable in the security environment this bill will create 

throughout the industry. 

The proposed language strikes an appropriate balance between 

legitimate security needs for worker protection, the provisions for 

potentially stiff damages, and recourse to the judicial system to ensure that rail employees who blow the whistle on unsafe practices 

are afforded a fair forum for enforcement of their federal rights 

should their employer retaliate against them for protecting their 

fellow workers and the public. 

Moreover, we are pleased with the subcommittee’s adoption of 

Mr. Perlmutter’s amendment which forcefully establishes that railroad workers who are subject to background checks are entitled to 

due process. These background checks already have cost at least a 

half dozen workers their jobs. And the Association of American 

Railroads was forced to concede last week that they did not have 

a process in place that would permit these workers to defend themselves. 

As is the case with the whistle-blower protections, the rail conference believes there should be a single process applicable in all 

modes and that the Perlmutter amendment provides the process 

this committee should adopt. 

Finally, while we view the bill positively in most respects, we 

wish to voice our concern regarding section 13, which addresses security research and development. Among the projects eligible for 

federally supported R&D are automatic inspection of railroad cars, 

and communication-based train controls which are included in subsections B(3)(b) and D(3)(c). Both of these subjects have been implicated in a most contentious round of collective bargaining that has 

not yet been completed for all of rail labor. 

With respect to automatic inspection of railroad cars, we do not 

oppose research into technologies that could safeguard humans 

while assisting in conducting a security inspection of a railroad car. 

Indeed, we have voiced concern over unnecessarily exposing railroad workers to risk of injury or death while securely transferring 

certain hazardous material cars under proposed regulations. However, we adamantly oppose the use of federal funds to support research and development of technologies that would perform safety 

inspection of railroad cars. 

As to communication-based train controls—and as you know, a 

major controversy arose last year when the industry attempted to 

gain the legal and political processes in order to eliminate a crew 

member on road freight trains via implementation of positive train 

control systems. 

Federal support for R&D efforts to enhance security via communication-based train control systems in order to, for example, utiVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00079 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
76 

lize positive train control as a means of instantly locating a car carrying toxic by inhalation material, is an effort we would endorse. 

However, we oppose and caution the committee to not permit DMS 

to become ensnared in federally funded R&D efforts that facilitate 

the efforts of those who advocate crew size reduction. 

Thank you, Mr. Chairman. And I am prepared to answer any 

questions. 

[The statement of Mr. Rodzwicz follows:] 

PREPARED STATEMENT OF EDWARD W. RODZWICZ

Thank you and good morning Chairman Thompson, Ranking Member King, and 

members of the Committee. My name is Edward Rodzwicz, and I am President of 

the Teamsters Rail Conference. I appear today on behalf of more than 70,000 Rail 

Conference members who belong to our constituent Brotherhood of Locomotive Engineers and Trainmen and Brotherhood of Maintenance of Way Employees Division, 

and who will be impacted by the proposed Rail and Public Transportation Security 

Act of 2007. 

I want to begin by thanking the Chairman and the Ranking Member for the work 

they have done in putting together the bill. Rail Labor has taken every opportunity 

since 9/11 to advocate for strong security legislation for the railroad industry, and 

we are pleased to see that you have listened to what we have said. The bill addresses many of the issues we have raised over the past 5 1/2 years. 

In my brief time today, I want to comment upon a number of provisions contained 

in the bill, so that you have the benefit of the view of the Rail Conference. For the 

sake of clarity, I will address those provisions in the order they are contained in 

the bill. Therefore, the order in which our points are made should not be interpreted 

as a prioritization of issues. 

Section 5 covers rail and public transportation assessments and plans. Subsection 

(d)(1)(G) would require that Section 11 training include ‘‘recurrent training and periodic unannounced exercises for employees.’’ The need for recurrent training for 

front-line railroad workers has long been a major theme for us, and we fully support 

conducting periodic unannounced exercises so that the sufficiency of security plans 

can be tested and in order for our members to better understand the goals and elements of their employers’ security plans. 

Subsection (g)(3) would require that the Secretary of Homeland Security, in consultation with the Secretary of Transportation, approve vulnerability assessments 

and security plans. We support a requirement that assessments and plans be reviewed and approved. It has been our experience that a mandatory approval process 

produces a much better product than a process whereby approval is deemed if the 

submission is not rejected within a certain time frame. It is our expectation that 

the industry will request an alternative to mandatory approval, and we strongly 

urge the Committee to retain the proposed language in the final bill. For the same 

reasons, we support the procedures, protocols and standards set forth in Subsection 

(k). 

Concerning Subsection (l), which pertains to the periodic review of vulnerability 

assessments and security plans, we note that paragraph (1) mandates a periodic review within three years of the initial filing and at least once every five years thereafter. This schedule reflects the timeline proposed in parallel Notices of Proposed 

Rulemaking pertaining to rail transportation of certain hazardous materials, which 

were published by the Transportation Security Administration (‘‘TSA’’) and the Pipeline and Hazardous Materials Safety Administration (‘‘PHMSA’’) last December. In 

comments on these proposed rules, the BLET voiced a concern that the schedule for 

subsequent reviews was too long, and suggested that reviews be conducted triennially. See DOT DMS Docket No. TSA–2006–26514–59 at p. 4. 

With respect to the rail security assistance grant program outlined in Section 7, 

we fully support the inclusion, in Subsection (b)(15) of security awareness, preparedness, and response training for front-line railroad employees, including Section 11 

training, which also is reflected in Section 8(b)(14). Further, we applaud the Committee for the standards included in Subsection (h). Regarding eligibility standards 

set forth in Subsection (f), we are most grateful for the amendment offered by Congresswoman Clarke, providing that National Labor College, which is located at the 

George Meany Center in Silver Spring, Maryland, may be considered as a ‘‘private 

entity’’ in the application of paragraph (1). 

Under labor sponsorship, the hazardous materials training programs at the National Labor College have been a resounding success. The program has, over its fifVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
77 

1 Brotherhood of Locomotive Engineers and Trainmen (BLET); Brotherhood of Maintenance of 

Way Employes Division (BMWED); Brotherhood of Railroad Signalmen (BRS); International 

Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (IBB); 

SEIU’s National Conference of Firemen & Oilers (NCFO); Transport Workers Union (TWU); 

Transportation-Communication International Union (TCU); Brotherhood of Railway Carmen; 

and United Transportation Union (UTU). 2 Brakemen, Laborers, Workers from the Building & Bridge Department, Signalmen, Carmen, 

Switchmen, Conductors, Track Department Workers, Locomotive Engineers, Yardmasters, and 

Hostlers. 

teen years, continually evolved and expanded to meet the training and competency 

needs of rail workers that are not met by the railroads. Initially offering only one 

course, the program now offers five. Training has moved beyond the conventional 

classroom to include simulation and on-line activities. A core of professionally 

trained instructors has been replaced with a corps of peer instructors. Because of 

this program’s 16+ years of success, tens of thousands of rail workers are working 

more safely and in safer environments. 

Since the onset of training in April 1991, the union-run program has trained more 

than 20,000 rail workers. Evolving from an 8-hour program of awareness training 

only, the National Institute for Environmental Health Sciences (NIEHS)-funded and 

George Meany Center-sponsored program now offers five courses: a 5-day Chemical/ 

Emergency Response training in the classroom; an on-line Emergency Responder 

Awareness Level 101 course; the OSHA 10-hour General Industry Safety and 

Health Outreach Program; disaster site training; and the newest addition, a Radioactive Material Transportation Safety Program, which is funded by a separate grant 

from the U.S. Department of Energy. 

The newest program began last summer at the National Labor College, and includes a Modular Emergency Response Radiological Transportation Training 

(MERRTT) ‘‘train the trainer’’ course. By contrast, we are unaware of any railroad 

currently conducting training focusing on transportation of spent nuclear fuel and 

high-level radioactive waste, even though the Department of Energy is expected to 

begin a 38-year project to transport such waste from DOE sites to storage and disposal facilities as early as next year. The labor hazmat program has trained workers 

in 49 states and the District of Columbia. We also have fostered the creation of community partnerships that include joint rail worker, fire fighter, EMT, and public 

safety personnel training in communities throughout the U.S. 

The progam has a new emphasis on railroad security and disaster response and 

teaches the five-day students about their role in serving as skilled support personnel 

in an incident command emergency setting. Much of the program material is available in Spanish and a comprehensive web site serves both the English and the 

Spanish-speaking work forces. The five-day program addresses the training requirements of the Department of Transportation’s Hazardous Materials Regulations at 49 

CFR Part 172, as well as the requirements of OSHA First Responder and Operations Level training under 29 CFR Part 1910.120. Railroads generally do not provide wages or support for workers attending the program. In fact,—and this is most 

unfortunate—members sometimes are not allowed time off from work to attend the 

program, even though the railroad is not paying wages. 

The program currently serves eight rail unions,1 and at least ten crafts,2 from 

major railroads as well as from commuter and short-line railroads. This cross-company, cross-union, cross-craft training has proved invaluable, as one group learns 

from another. Each union has its own craft-specific tasks and challenges, and prior 

to this hazmat training program there was little, if any, cross-union training. Hazards and challenges faced by those in the yards may be different than those faced 

by road train crews, and different still from those who work along the track or in 

the shops. 

Understanding the work of other crafts, the safety and health challenges that 

each face, and the coordination of each craft’s efforts in an emergency, enhances 

railroad hazardous materials safety and security. A well-trained and knowledgeable 

workforce is the first line of defense and can prevent a minor incident from becoming a major hazardous materials accident. The eight rail unions have worked together to enhance rail safety by providing comprehensive training to its members 

and by providing substantial administrative and personnel support to the union-run 

Railway Workers Hazardous Materials Training Program. 

Labor has been able to offer these programs through a combination of federal 

funds and subsidies from the North American Railway Foundation, which is a private non-profit organization. However, subsidies and contributions are hard to come 

by. Nonetheless, we take great pride in having trained over 20,000 railroad workers 

since the program’s inception. At the end of the day, though, this represents but a 

78 

small fraction of the front-line railroad workers who require thorough, in-depth 

training, and recurrent training. 

We are pleased the Subcommittee concurred that the National Labor College 

qualifies as a ‘‘training partner,’’ as that term is used in Section 648(a)(2) of the Department of Homeland Security Appropriations Act of 2007. See 120 Stat. 1427. 

Considering the NLC to be a ‘‘private entity’’ for purposes of Section 7(f)(1) of the 

bill will provide access to Section 7 grants, thereby facilitating Labor’s ongoing efforts to provide world-class safety and security training to railroad workers. 

We also wish to bring to the Committee’s attention a difference in language between the rail and the public transportation assistance programs, and propose a resolution of that difference. Section (8)(d)(2)(A), addressing public transportation, requires that—in establishing security improvement priorities for recipients of assistance—the Homeland Security Secretary, in consultation with the Secretary of 

Transportation, also shall consult with the management and employee representatives of the designated recipients. However, Section (7)(c), which deals with the 

same subject for rail, provides only for a determination by the Homeland Security 

Secretary, in consultation with the Secretary of Transportation. We believe that rail 

security programs could benefit from the same broad stakeholder participation afforded in public transportation, and respectfully request that language similar to 

Section (8)(d)(2)(A) be incorporated into Section 7(c). 

With respect to the fire and life safety improvements contained in Section 10, we 

are pleased that the issue of the tunnels on the Northeast Corridor finally will be 

addressed, after years of neglect because Amtrak has not been reauthorized since 

the late 1990s. Indeed, we appreciate that the Committee proposes authorizations 

over the next four years to deal with this issue. We point out, however, that the 

Senate’s authorization bill for Amtrak—S. 294—currently provides significantly 

higher authorizations over this period. Therefore, we urge the Committee to support 

the greater amounts when this matter is taken up in conference. 

We are most pleased with the strong requirements contained in Section 11, governing security training programs for front-line railroad workers. The timeline appears appropriate to us, and we appreciate and look forward to consulting with the 

Secretaries in developing the program. We wish to voice particularly strong support 

for the requirement in Subsection (c)(8) that the program include training on understanding security incident procedures, including procedures for communicating with 

governmental and nongovernmental emergency response providers. 

There is no question in our minds that this element will be strongly opposed by 

at least some management groups. In this regard, we point to the recent decision 

by staff of the Securities and Exchange Commission to allow Norfolk Southern to 

exclude a Teamster shareholder proposal calling on the company to disclose its efforts to safeguard the security of its operations and minimize material financial risk 

arising from terrorist attack and/or other homeland security incidents. 

We strongly believe the Commission’s staff failed in its interpretation of ‘‘Ordinary 

Business’’ when it concurred with the Company’s position that homeland security 

issues are strictly in the purview of management. It is absurd to equate issues such 

as the ramifications of a hijacking of a freight train carrying toxic or explosive materials with everyday management decisions such as setting shipping charges. It is 

our strong belief that the safety and security of our nation’s rail network is a matter 

of national policy concern. 

As you know, there have been more than 250 terrorist attacks on railroads worldwide in the past 12 years. The FBI has warned that our rail system is a likely target for terrorists and still the carriers are allowed to keep their security plans in 

the dark not only to their workers but also their investors and the communities in 

which they operate. The fact is that corporations can and do safely disclose information about actions taken to protect their infrastructure and personnel as well as associated costs. We have to look no further than Canada where the Canadian Pacific 

Railway discloses such information. We should settle for no less. 

The Teamsters are appealing the staff’s decision. We hope that the Congress and 

the Administration would encourage the Commissioners of the SEC to review and 

reverse the staff’s decision. And we implore the Committee to hang tough when elements of Section 11 come under attack from railroads and other providers of covered 

transportation. Further, and for the reasons I stated before with respect to vulnerability assessments and security plans, we strongly support affirmative approval of 

security training programs, as required by Subsection (d)(2). We also believe that 

the one-year timeline for completing initial training contained in Subsection (d)(3) 

is adequate. 

We wish to voice our concern regarding Section 13, which addresses security research and development. Among the projects eligible for federally supported R&D 

are ‘‘automatic inspection of railroad cars’’ and ‘‘communication-based train conVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00082 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
79 

trols,’’ which are included as Subsections (b)(3)(B) and (b)(3)(C). Both of these subjects have been implicated in a most contentious round of collective bargaining that 

has not yet been completed for all of Rail Labor. 

With respect to automatic inspection of railroad cars, we do not oppose research 

into technologies that could safeguard humans while assisting in conducting a secu- rity inspection of a railroad car. Indeed, we have voiced concern over unnecessarily 

exposing railroad workers to risk of injury of death while securely transferring certain hazardous materials cars under proposed regulations. However, we adamantly 

oppose the use of federal funds to support research and development of technologies 

that would perform safety inspections of railroad cars. 

As to communication-based train controls—and as you know—a major controversy 

arose last year when the industry attempted to ‘‘game’’ the legal and political processes in order to eliminate a crewmember on road freight trains via implementation 

of positive train control systems. Federal support for R&D efforts to enhance security via communication-based train control systems, in order to, for example, utilize 

positive train control as a means of instantly locating a car carrying toxic-by-inhalation material is an effort we would endorse. However, we oppose, and caution the 

Committee not to permit DHS to become ensnared in, federally-funded R&D efforts 

that facilitate the efforts of those who advocate crew size reduction. 

Lastly we want to voice our strongest support for the whistleblower protections 

contained in Section 14 of the bill. These protections are absolutely necessary in 

order for our members to feel comfortable in the security environment this bill will 

create throughout the industry. The proposed language strikes an appropriate balance between legitimate security needs and worker protection. The provisions for potentially stiff damages and recourse to the judicial system to ensure that rail employees who ‘‘blow the whistle’’ on unsafe practices are afforded a fair forum for enforcement of their federal rights should their employer retaliate against them for 

protecting their fellow workers and the public at large. Finally, we urge the Committee to stand fast on requiring a single process for all modes in providing these 

protections. 

Moreover, we are pleased and thankful for the Subcommittee’s adoption of Mr. 

Perlmutter’s amendment, which forcefully establishes that railroad workers who are 

subject to background checks are entitled to due process. These background checks 

already have cost at least a half dozen workers their jobs, and the Association of 

American Railroads was forced to concede last week that they did not have a process in place that would permit these workers to defend themselves. As is the case 

with whistleblower protections, the Rail Conference believes there should be a single 

process applicable in all modes, and that the Perlmutter Amendment provides the 

process this Committee should adopt. 

Once again, I thank the Committee for hearing us today on this important matter, 

and will be happy to attempt to answer any questions you may have. 

Mr. THOMPSON. Thank you very much. 

Mr. Weiderhold? 

STATEMENT OF FRED WEIDERHOLD, INSPECTOR GENERAL, 

NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK) 

Mr. WEIDERHOLD. Thank you, Mr. Chairman and members of the 

committee. I know we are on kind of a quick clock here so I will 

try to condense my remarks as much as possible. 

First, I want to say thank you for probably what is the most significant piece of legislation for rail and transit since 9/11. It has 

been sorely missing in the overall approach that the country is taking with respect to mitigating security concerns in this nation. And 

I thank you personally and professionally for that, Mr. Chairman. 

I have four quick points I would like to make for the committee. 

I don’t have time to get into the detailed remarks on a section by 

section analysis. But they are included in my written remarks. And 

I would be most happy to respond to those at a later time. 

The first point I would like to make is let me be one of those witnesses, at least, who is absolutely adamant about the point that I 

think the time that we need, the time that we are taking to respond to rail and transit security is running out. Most every witVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
80 

ness you have that appears before this committee comes up and invokes Madrid and London and Mumbai, just as the members did 

in some of their opening remarks. 

Those are wakeup calls. But I think in some quarters and some 

persons they reach over and hit the snooze alarm on the wakeup 

call button. Not everybody gets this yet. 

Time is running out, Mr. Chairman. In your opening remarks, 

you pointed out that Madrid was almost 3 years ago. And in my 

personal opinion, we have come a little bit, we have moved the ball 

a little bit. 

But we have not moved it far enough or fast enough. Your bill 

goes a long way in jump starting a lot of the initiatives that have 

been put on the back burner. And I appreciate that. 

The second point I would like to make is that the committee really needs to capitalize and leverage the collective knowledge and experiences that cut across the departmental boundaries in the public 

and the private sectors. I know that the committees, both DHS and 

T&I are kind of wrestling with the language in the bill about consult versus coordinate. I would urge you to find the synergies that 

exist between and among both the members, the committees, and 

the departments that are out there. 

There are very good people working this issue on both sides of 

the fence. And we need to find a way to absolutely capitalize on the 

talent that is out there. 

The other point I would make is that there is really more good 

news out here than bad news. Commissioner Falkenrath brought 

up the fact that we have a working relationship with the NYPD. 

And Commissioner Kelly has been very forthcoming, very forward 

leaning. And we have a number of relationships like that between 

our company and local and state law enforcement that is really the 

model that the country should be using going forward. 

I wish that the rest of the country was nearly as prepared as 

New York City is right now. New York City has a game face when 

it comes to protecting their transportation and transit assets. We 

do not have that across the country. It is sorely needed. 

Another piece of good news is that we are kind of cross-pollinating personnel. Mr. Falkenrath comes from the NSC in the 

White House. He is now embedded in one of the major urban areas 

in the country leading the counterterrorism effort. Mr. Jamison, 

who I have worked with before, who I have a lot of respect for, has 

made the transition from the FTA to the TSA, which I think is a 

big plus. 

Within Amtrak we have recently hired Jim McDonnell, who was 

the high ranking DHS official who was responsible for infrastructure protection. And we are hoping hiring people like that will help 

our handshake with DHS. 

The third point I would like to make is you should ensure that 

the security standards and best practices are fully developed before 

we rush into regulations. 3 years ago, right on the heels of Madrid, 

TSA, DHS called us over, called over Amtrak, called over APTA, 

called over the freight industry. And we sat down and met with 

DHS to hammer out some security directives. Why did we have to 

do that. We had to do that because there were no security directives in place. 

81 

So over a period of time, a couple of months and a number of 

meetings with the principle operators and with the appropriate 

lawyers, we hammered out these security directives. They are good, 

but they are far from perfect. There are a lot of problems that exist 

with those security directives. But those were almost 3 years ago. 

And we have not iterated those directives yet to form the basis for 

the right kind of standards and the right kind of basis for regulations that would be forthcoming. 

The other thing I would point to—and I think Mr. Millar intended to cover it in his testimony—is you need to look to organizations like APTA that are established security developments organizations, what we call SDO organizations. There is a lot of talent 

out here in the community. And we want both the Department of 

Homeland Security and the Department of Transportation to acknowledge and use that talent. 

Finally, last point is—and it has been talked about among several of the witnesses. And that is this relationship between security 

and safety. I can tell you as a railroader for 30 years—and most 

of the people at this table who have been in and around the industry we get up every day. We have a safety message. We have safety 

training. We do safety inspections. It is a part of the fabric of our 

lives as railroaders. 

Right now as we sit here, security is not on the same playing 

field as safety. I would encourage you at every turn not to bifurcate, not to delink safety and security. So where you have the opportunity to, again get some synergy between the two of those functions, please do. 

I am prepared to answer any questions that you may have on the 

written testimony. Thank you. 

[The statement of Mr. Weiderhold follows:] 

PREPARED STATEMENT OF FRED E. WEIDERHOLD

Thank you for the opportunity to appear before you today to discuss rail security 

issues and the Rail and Public Transportation Security Act of 2007 draft bill. I 

share the Committee’s concern and sense of urgency that much more can be done 

to secure and safeguard our nation’s rail and transit assets. The responsibility to 

act is shared among federal, state, and local governments, and the private sector, 

and your bill will help jump start some long overdue initiatives. 

You have heard testimony from many witnesses about the complexity of the rail 

environment, the challenges to secure such an ‘open system’, and the need to balance vulnerabilities, threats, and risks in allocating federal security dollars—these 

are real challenges. Having worked intimately with passenger rail safety and security issues for over twenty years, I will tell you the work to secure the railroad is 

very difficult, and often frustrating; however, I will also tell you that collectively we 

can greatly improve our readiness. 

Before offering specific comments on the draft bill, I would offer some over-arching observations for your consideration: 

• The time to take action to possibly prevent, mitigate, and recover from 

a terrorist attack involving rail and transit assets is quickly passing—we 

need to act now. 

The reality, as the Committee Members are very well aware, is that we are operating our rail services in the wake of Madrid, London, Mumbai, and other cities 

where terrorist have elected to wage their war. I suspect that every witness who 

testifies before you about rail and transit security will invoke the names of the cities 

attacked, but how much have we really accomplished over the past several years— 

clearly, not enough. The Committee has received testimony from the GAO regarding 

delays to the Transportation Sector Specific Plan, and the Committee is taking action to ensure better coordination of transportation security strategies and plans. 

Amtrak is not waiting; its Board, its new Chief Risk Officer, and management have 

82 

made new commitments to increase significantly its canine resources, place more of 

its own, and other, police and security on its trains and in its stations, review its 

screening protocols, re-direct capital monies to critical asset protection, and ‘buildin’ security wherever possible. Your bill, and the specific inclusion of funds to address Amtrak?s security investment needs, is welcome and appreciated. 

• Capitalize and leverage the collective knowledge and experience that 

cuts across Departmental boundaries and the public and private sectors. 

Your bill requires greater cooperation and real coordination between and among 

those Departments and agencies with responsibilities for homeland security; this is 

a great message. It is an understatement to say we are not using all of our resources optimally. The GAO has commented that the sheer number of public and 

private stakeholders, and the complexity of our rail systems, may lead to duplication 

of effort, communications challenges, and confusion about roles and responsibilities—that has happened. The good news is there has been some progress—in well 

executed, risk-based vulnerability assessments, in meaningful state and local law 

enforcement cooperation, in emergency response training, in advancing security 

technologies (helpful, but not a panacea), and, mostly, in very good people stepping 

forward, trying very hard to work the issues. DHS and DOT must continue to reach 

out and tap these resources, and rail and transit security should not be compromised or relegated to turf struggles. 

• Ensure security standards and best practices are fully developed before 

regulations are promulgated. 

One of the difficulties we have encountered in evaluating Amtrak’s efforts to improve its security posture is the lack of security standards that have been fully vetted, practiced, and iterated. Although some security directives were prepared by 

TSA in May 2004, these directives are not necessarily the comprehensive bases for 

an effective rail passenger security strategy or effective regulations. The Committee 

may want to direct a joint Department review of the effectiveness, lessons learned, 

and potential enforceability, of the existing TSA Security Directives (RAILPAX 04– 

02) before additional directives are enacted. 

The Committee should look to organizations like APTA, which is recognized as a 

Standards Development Organization, as a starting point to develop baselines for 

rail security and emergency preparedness best practices. Amtrak also is re-examining its protocols and will most likely redefine its own baseline security standards, 

working closely with domestic and international rail and transit partners, as well 

as DHS and DOT. 

• Ensure linkage between security and safety. 

One of the definitions we are using within Amtrak to determine when we have 

achieved adequate security awareness is when security has the same status as safety on our railroad. All rail operators—be they freight, passenger, or transit—live 

and practice safety in their daily work lives. Railroaders begin their day with safety 

messages and safety inspections; we train for it, we measure it, we have recognition 

ceremonies to celebrate it, and we do not take it for granted. In the new world of 

terrorism, especially terrorism directed at rail and transit, the same must become 

true for security. Certainly, there are protocols, practices, and skill sets that differentiate security from safety, but the work is performed over the same assets and 

the same operations. Whenever possible, security and safety should be addressed 

concurrently. 

Specific Comments for Draft Bill: 

Section 3—National Strategy for Rail and Public Transportation Security 

This section requires that the Secretary of the Department of Homeland Security 

(DHS), in consultation with the Secretary of the Department of Transportation 

(DOT), develop a comprehensive modal plan for covered transportation. While consultation is certainly a prerequisite for effective working relationships between the 

two Departments, there will also be occasions where close coordination is required, 

where interdepartmental, cross-functional teams should be established, and where 

joint operations may be warranted. 

At Section 3 (a) (4), the Committee includes a requirement that DHS and DOT 

develop a process for expediting security clearances and facilitate intelligence and 

information sharing. The Committee may wish to prioritize this requirement by 

mandating an expedited security clearance process for select senior rail and transit 

officials (CEO, COO, Chief Security Officer or equivalent) for all carriers assigned 

to the high risk tier. Senior railroad officials have had to wait well over one year 

for such clearances. Additionally, the Committee may want to direct that the processes for facilitating intelligence and information sharing be evaluated by the Department OIGs. 

83 

At Section 3 (a) (7), the Committee requires that the joint modal plan include, ‘‘a 

framework for resuming the operation of covered transportation in the event of an 

act of terrorism and prioritizing resumption of such operations’’. This directive is 

highly significant because it requires DHS and DOT to become attentive to continuity of operation planning, not just for individual carriers, but for transportation 

systems. 

Section 4—Assignment to Risk-Based Tiers 

We agree that it is extremely important to establish criteria by which those carriers and systems that face the greater risks are prioritized. Terrorists’ strikes 

against rail targets have historically involved light rail passenger systems and transit, often focusing on multiple targets, and, as we saw in the London bombings, follow-up attacks on connecting bus services. For these reasons, we encourage assignment based on modal and inter-modal ‘‘systems’’ as well as individual providers 

within those systems. 

Section 5—Rail and Public Transit Assessments and Plans 

We agree with the Committee?s direction to mandate vulnerability assessments 

and security plans for the rail sector. We know the Committee will find many carriers have already completed such assessments, and security plans have been prepared and are exercised during heightened threat levels. 

Using DHS Office of Domestic Preparedness (now Grants & Training) funds, vulnerability assessments for Amtrak’s Northeast Corridor and Chicago Union Station 

were completed in May 2006. Vulnerability assessments for the balance of most of 

Amtrak’s other system assets should be completed this fiscal year. The methodology 

used for Amtrak’s vulnerability assessments are consistent with that used for the 

majority of the transit properties. We believe these assessments, while not exhaustive, provide a valuable mapping of the vulnerabilities of key Amtrak, and Amtrakused, assets, but these are only starting points. 

The Amtrak OIG has observed that many of the vulnerability assessments are 

carrier-specific and not necessarily linked to larger system or nodal vulnerabilities. 

An appropriate role for a DHS Area Rail and Public Security Committee, or larger 

DHS entity, would be to link the assessments and plans into a larger rail transportation security matrix. 

An interesting provision that the Committee recommends in Section 5 (f) is for 

Security Performance Requirements (for the security plans). We presume the performance requirements are intended to answer the question of ‘how effective’ the security plans are in adding to value to security preparedness. These performance requirements may evolve into the ‘successor’ guidelines to the RAILPAX Security Directives. 

The Committee, and DHS and DOT, need to appreciate the complexity of the passenger rail operating environment and impact on stakeholders with respect to conducting vulnerability and threat assessments and preparation of security plans. For 

example, Amtrak serves over 500 rail stations across the country, but owns less 

than 80. Initially, Amtrak began its vulnerability assessments of Amtrak-owned 

properties, and, only later, expanded its assessment approach to include other ‘Amtrak-used’ assets. Even using an ‘‘owned assets’’ approach, there are difficulties in 

implementation with the myriad of stakeholders sometimes present. 

For example, here at Washington Union Station, part of the facility is directly 

owned by Amtrak (from the gate areas north), the Main Hall and retail facilities 

are owned by the Union Station Redevelopment Corporation (USDOT, Amtrak, DC), 

areas of Columbus Circle are owned/controlled by the U.S. Park Police, Capitol Police, and the District of Columbia. In addition, Virginia and Maryland operate statesupported commuter services into the station (using both Amtrak and CSX operating crews and equipment). Which entity should have responsibility for vulnerability assessments and security planning for a complex property or inter-modal facility? 

Given the criticality and iconic value of an asset such as Washington Union Station, Amtrak, appropriately, elected to undertake assessments that involved all 

property owners, all operators and users, and other stakeholders. At other stations 

and facilities, it may be less clear. 

Section 6—Strategic Information Sharing 

The goal of this requirement is to develop an information sharing plan to ensure 

the development of both tactical and strategic intelligence products for the rail sector, with special attention being paid to the coordination of intelligence analyses between TSA and other intelligence groups. We agree with this recommendation. 

Amtrak has access to several sources of intelligence information today, both 

through DHS and DOT, as well as through other sources. Amtrak participates in 

84 

the Surface Transportation Information Sharing and Analysis Center (ST–ISAC), 

which was established and is maintained by the Association of American Railroads 

(AAR). The ST–ISAC provides useful information to Amtrak, especially in the areas 

of cyber-security and after-action threat analyses. Amtrak also participates in the 

Railway Alert Network (RAN), another AAR-maintained information and intelligence sharing system. 

More recently, Amtrak placed personnel on the FBI’s New York and Washington 

Field Office’s Joint Terrorism Task Forces (JTTFs), and the National Joint Terrorism Task Force (NJTTF), with access to those units’ intelligence centers. Additional Amtrak and OIG staff are assigned to various Department of Justice sponsored Anti-Terrorism Advisory Councils (ATACs) and working groups. 

I would rate the dissemination of unclassified information, For Official Use Only 

(FOUO), and Sensitive Security Information (SSI) to Amtrak as good and improving. 

However, we absolutely share the AAR?s concern about the critical need to safeguard and compartmentalize all classified information, including SSI. 

With respect to Section 6 (e), regarding the relationship of Security Clearances to 

intelligence information dissemination, the Committee and DHS may want to consider greater use of intelligence ‘tear sheets’ to disseminate more critical information. Additionally, the Committee and DHS should be concerned about the availability and use of classified communications channels with rail sector officials. 

The Committee should also be cognizant of the fact that rail service providers, 

when conducting vulnerability, threat, and risk analyses, as well developing security 

plans and mitigation and response strategies, are generating a considerable amount 

of highly sensitive data that can be easily exploited to the provider’s, and the nation’s, detriment. Amtrak has taken advantage of DHS’s Protected Critical Infrastructure Information Program by submitting work product for protection under the 

Critical Infrastructure Information Act. 

Section 7—Rail Security Assistance 

Amtrak strongly supports its inclusion as an eligible entity for security improvement grants. A stable funding mechanism for sustained security and emergency preparedness improvements at Amtrak, and within the passenger rail sector, is critically important. 

Most of you know that Amtrak’s financial condition has been precarious in recent 

years, and Amtrak’s funding of police and security operations has been limited to 

its own internal police forces (about 350 persons) and work on a major fire and lifesafety tunnel project in New York City. Amtrak was requested, on several occasions, 

by both House and Senate Members to delineate what it needs to advance its security and emergency preparedness, but well intended bills have never been enacted. Since FY 2005, Amtrak has been allocated only about $22 million in DHS grant 

funds. Amtrak has used some of these grant funds to conduct vulnerability assessments, install a pilot chemical sensor system in four stations, fund a Washington, 

DC tunnel security pilot project, and fund several other higher priority projects. 

However, there are many more security and emergency preparedness projects and 

initiatives for Amtrak that require the support contemplated by the Committee?s 

bill. 

In addition to those grant funds available to Amtrak under the Committee’s bill, 

Amtrak’s Board of Directors and its senior management are committed to doing as 

much as possible within the limits of Amtrak’s internal finances. Amtrak’s new 

Chief Risk Officer, a former high ranking DHS manager, has requested that Amtrak 

increase its canine units and work immediately to get more police and counter-terrorism security forces riding its trains. Amtrak has had great difficulty in filling its 

police and security staffing levels because its pay and retirement benefits are well 

below those of competing jurisdictions, resulting in double-digit attrition and a high 

vacancy rate. The Chief Risk Officer is working closely with Amtrak?s authorizing 

committees to find relief for this most serious problem. 

Section 10—Fire and Life Safety Improvements 

We strongly support the Committee’s recommendation to provide additional grant 

authority to address security issues involving Amtrak’s Northeast Corridor tunnels. 

The New York City, Baltimore, and Washington DC, underground and underwater tunnels present special safety and security issues for Amtrak. 

In New York City, over 1,100 trains daily use the 81,000 feet of tunnels into out 

of the City, with Amtrak and New Jersey Transit using the North River Tunnels 

beneath the Hudson River, and Amtrak and Long Island Rail Road using the East 

River Tunnels. 

The scope of Amtrak’s current Life Safety Program, valued at $470 million for 

Phase One, with a completion date of 2009, encompasses the construction of three 

major ventilation structures in Weehawken, New Jersey, Queens, New York, and 

85 

Manhattan. Also included in this project is the installation of a fire standpipe system throughout the New York Penn Station complex. The Weehawken Ventilation 

plant was placed into service in January 2005, and the dry standpipe was placed 

into service in January 2006. Through December 2006, $279.6 million has been 

spent on this project, funded through Federal Railroad Administration grants, the 

Long Island Rail Road, and Amtrak. 

Amtrak’s Northeast Corridor rail services and Maryland Transit Administration’s 

MARC services pass into the heart of Baltimore through a series of tunnels, which 

were constructed in 1872. The Baltimore & Potomac tunnels house vital electric 

power lines and are critical to Amtrak’s mainline operations. 

With regard to the First Street Tunnel here in Washington, DC, Amtrak is working closely with DHS and is participating in the National Capital Region’s Rail Corridor Pilot Project program. This project, which has proceeded much more slowly 

that I would have hoped, is one which I would like to brief to the Committee at 

a later time. 

Section 11—Security Training Program 

There is no substitute for having a well trained work force who can serve as the 

‘eyes and ears’ and who act as the first line of defense in noticing suspicious activities and things that are ‘out of place’ on our railroad. Likewise, we need an alert 

and vigilant public, who know what to do and how to act before and during emergencies, and how to report to matters that warrant the carrier’s attention. 

Amtrak has followed the Federal Transit Administration’s and the American Public Transit Association’s lead in developing employee awareness training. Using security awareness training developed by Rutgers University National Transit Institute (NTI) for mass transit employees in 2003, the NTI’s transit training modules 

were modified slightly and customized to address Amtrak’s facilities and rail environment. An introductory and mandatory block of four hours of security training, 

including some class, Web-based, and CD-based training, was delivered to all Amtrak employees (17,000+) in FY 2006. This training was intended to be equivalent 

to ‘‘Security 101’’ for railroad workers. An additional four-hour, instructor-led block 

training for up to 14,000 employees is being delivered in FY 2007, with the first 

classes started in January 2007. My Office reviewed this training, and we believe 

that it provides a good foundation of security awareness from which additional, 

more specialized training can be targeted for select employees. One of the challenges 

for security training is to keep it topical, customize the training for the scope and 

responsibilities of the employee’s position, and reinforcing the training through 

meaningful exercises. 

Amtrak has also begun a limited version of the popular ‘‘see something, say something’’ program that is used by a number of transit properties. Amtrak has implemented a station and on-board announcements program, alerting the public to have 

control of their personal baggage and carry-on articles, and to report suspicious behavior during high threat levels declared at the national level. This program is 

being expanded to be a part of Amtrak’s normal business practice. 

With regard to Section 11 (c) (3), requiring inclusion of ‘‘appropriate responses to 

defend oneself, including using non-lethal force,’’ as a part of employee security 

training, we believe this requirement may run counter to prevailing best practice. 

Amtrak, and most other carriers, recommend that employees, unless trained as police or full-time security staff, avoid physical confrontation, but instead be aware of 

their surroundings and contact qualified carrier and/or law enforcement personnel 

at the earliest opportunity. 

Section 12—Security Exercises 

Most carriers, including Amtrak, have considerable experience with emergency response drills and exercises, with greater frequency of such activities since 9/11. 

There is a growing body of ‘lessons learned’ from the exercises, drills, and table-tops, 

and resulting after-action reports that assist in safety and security investment decisions, and facilitate changes in operational protocols. 

From an OIG perspective, I have seen very well conducted and useful security exercises, and I have also seen poorly executed, artificially constrained, and little 

value added exercises. More importantly, I have seen very meaningful recommendations from exercises and assessments that have not been timely acted upon. I very 

much support the inclusion of the Remedial Action Management Program, using 

FEMA’s experiences, in monitoring implementation of lessons learned and best practices. My Office will also be monitoring the adoption and application of observations 

and recommendations generated by security exercises. 

Section 13—Security Research and Development 

86 

The Committee has recognized the need for more collaborative research and development and technology convergence to develop affordable and effective rail security 

solutions; we very much agree. There are considerable challenges for passenger carriers to find and apply the most appropriate security technologies to fit their environments. Much of what has been accomplished to date by passenger rail is accomplished by information exchanges through existing industry associations and 

through professional relationships and private sector marketing. There has been 

some assistance provided by DHS in the form of providing screening equipment for 

pilot projects and special security events, but much more can be done in this area. 

It is appropriate to recognize important work being done in security technology 

advancement by the rail industry. The AAR maintains a Transportation Technology 

Center (TTCI) in Pueblo, Colorado, which is used for both testing and training purposes; Amtrak routinely uses TTCI services. We support the Committee?s adoption 

of the amendment to make TTCI a member of the National Domestic Preparedness 

Consortium (NDPC). 

Amtrak has also established relationships with the Lawrence Livermore National 

Laboratory, working with the OIG to conduct CBRNE assessments at ten major 

urban stations; with Argonne Laboratories, to install chemical sensor technology; 

and with Minnesota State University to install a SMART CCTV system at four stations. Amtrak, and the Amtrak OIG, have also benefited from the work and ongoing 

support of the Technical Support Working Group in making critical vulnerability assessments of key passenger rail assets. 

Section 14—Whistleblower Protection 

We very much understand the desire of the Committee to protect and safeguard 

those who would come forward to report violations of security-related statutes and 

regulations. Whistleblower statutes are intended to encourage vigilance using our 

greatest resource, our employees, by protecting them from retaliation and discrimination for such reporting. 

As an Office of Inspector General, my Office responds to whistleblower allegations 

under the Railroad Safety Act; we also investigate allegations of harassment and 

intimidation under 49 CFR 225, regarding Railroad Accident Reporting. Additionally, under the Inspector General Act, we have responsibilities that are analogous 

to whistleblower protection applicable to Amtrak employees. 

From our reading of the draft bill, and from an Amtrak OIG perspective, there 

does not appear to be any precedential equivalent to the allowable damages and 

criminal penalties for violations of this provision. The Committee may want to extend further inquiry into this area as well as be briefed on the extant DOT whistleblower statutes and regulations, including 49 CFR 42121, which involves whistleblower protection of employees providing air safety information, and applicable DOT 

reports on whistleblower cases. 

Other Recommendations: 

• Authorize railroad police officers to exercise law enforcement powers on the 

property of another railroad. This would allow railroads to better leverage their 

police and security assets. The proposal was included in earlier legislation from 

the 109th Congress, sponsored by the House Transportation & Infrastructure 

Committee. 

• With regard to the Committee’s proposed directives on background checks, we 

agree that September 11 altered the vigilance which we all must employ in the 

transportation industry with respect to third parties as well as employees and 

contractors. Thus the issue of background checks of certain employees is a 

somewhat complex issue, yet a critical piece of the cloak of security. The difficulty lies in the determination of which employees should be subject to background checks and what should be considered disqualifying factors. In 

managing a personnel security program, the following factors are vital: assigning risk designations for all employee positions; determining who completes the 

background checks (carrier/DHS/DOT); determining which background check 

system is most appropriate (when should NCIC be allowed); ensuring that the 

background checks are timely and thorough; establishing controls to protect 

against terminations that are based upon inaccurate or stale information, including the right to submit promptly rebutting information (Amtrak fully complies with the Fair Credit Reporting Act, which already provides a level of protection for individuals to challenge inaccurate information contained in a background check); adopting document control policies for personnel security files; 

and, ensuring that those performing background checks are properly trained 

and audited. 

For instance, some of the criteria for assessing risk would be unescorted access 

to secure areas, potential for dangerous activities or compromising one’s duties and 

87 

responsibilities, potential for greatest harm to passengers or human life, and the degree to which oversight can be exercised with respect to such personnel. Amtrak engineers who operate the trains, mechanical personnel who inspect, analyze and repair safety critical parts such as brakes, personnel who work in rail traffic control 

facilities, and baggage handlers would perhaps all be designated as requiring higher 

security clearances and the more extensive background checks. Under any contemplated program, carriers would be required to submit its comprehensive plan to 

be approved by either the Department of Homeland Security or the Department of 

Transportation. 

Background: Amtrak Office of Inspector General 

The Amtrak OIG is a fully statutory designated federal entity OIG established by 

the Inspector General Act of 1978. The OIG was established in 1989, has about 100 

employees, and operates from seven field offices throughout the United States. 

The OIG is responsible for oversight of all of Amtrak’s programs and operations. 

For the past several years, the OIG has been heavily involved in evaluating and 

overseeing security operations within Amtrak. Immediately following the bombings 

in Chechnya, in December 2003, Amtrak’s Board Chairman asked me to conduct an 

in-depth review of Amtrak’s police and security operations. My Office worked with 

the Federal Railroad Administration (FRA) to obtain the services of the RAND Corporation to conduct this review. We were barely one month into our work when terrorists struck the Spanish rail system on March 11, 2004. In May 2004, we provided 

Amtrak with our observations and recommendations to improve security preparedness and to formalize and upgrade its police and security planning and operations. 

Amtrak has made some progress toward addressing some of the security shortfalls 

that were identified, but significant challenges remain. 

We have been very forward leaning in our security assessments. During the past 

two years, my Office has conducted several ‘red team’ operations covering critical 

Amtrak assets; we have performed detailed CBRNE site assessments using the 

Lawrence Livermore National Laboratory Homeland Defense Operational Planning 

System (HOPS) group; we have been greatly assisted by the California National 

Guard and the Technical Support Working Group (TSWG) in contracting for highly 

detailed, virtual digital mapping of key stations (for use by asset stakeholders and 

first responders); and we have been similarly assisted by the National Guard Bureau and their Full Spectrum Infrastructure Vulnerability Assessment (FSIVA) 

teams. We have also independently contracted and sponsored counter-surveillance 

training for select Amtrak police, OIG staff, and other railroad security staff. In 

short, we on our own have sought help from almost any quarter, be it federal, state, 

and private entities, to find those ‘‘right things’’ to do. 

My Office and Amtrak also reached out to the international rail and security communities, sponsoring visits in February 2005 from the Guardia Civil, Spain’s premier counter-terrorism unit and Spain’s national railways operator, Renfe. In 2006, 

Amtrak officials were briefed by both British and Indian Railway officials regarding 

attacks in their countries, and as recently as last month, Amtrak senior managers 

were provided special briefings by the British Transport Police. 

Another important development affecting Amtrak’s Northeast Corridor was the 

creation of Northeast Rail Police Coalition. Last year, NYPD Commissioner Ray 

Kelly called for a summit of police chiefs and other high ranking law enforcement 

officials from New York City to Washington DC. Commissioner Kelly proposed a coordinated approach by city, state, and local law enforcement to improve passenger 

rail security. The group, comprised of NYPD, Amtrak Police, Baltimore City Police, 

Delaware State Police and Delaware Homeland Security, Metropolitan DC and 

Transit Police, New Jersey Transit Police, Philadelphia Police, and other New Jersey and Pennsylvania State law enforcement, agreed to provide periodic support to 

Amtrak by boarding trains with officers and bomb dogs at key stations, conducting 

surveillance of the track and other facilities, and conducting other protective measures. This coalition began their work starting in July 2006, and we are pleased to 

report has become an integral part of Amtrak’s security operations. 

The Amtrak OIG has also joined the President?s Council for Integrity and Efficiency (PCIE) Homeland Security Roundtable, chaired by DHS Inspector General 

Richard Skinner, where we will be sharing red teaming and other security assessment approaches with the OIG community. And we will begin using the PCIE’s 

Guide to Evaluating Agency Emergency Preparedness (November 2006) in our FY 

2007 and FY 2008 evaluations of emergency planning at Amtrak. 

We have had extensive involvement in the rail security and the anti-terrorism 

field. 

Mr. THOMPSON. Thank you very much. 

88 

Welcome, Mr. Shuman. Please. 

STATMENT OF DAVID SHUMAN, PRIVATE CITIZEN 

Mr. SHUMAN. Thank you, Mr. Chairman. I am pleased to have 

the opportunity to appear before you today to talk about a threat 

that should be specifically addressed in the proposed security bill. 

And that threat pertains to the continuing vulnerability of cities to 

the intentional release of rail transported ultra-hazardous materials. 

Now, enactment of the bill would clearly lead to a significant improvements in several areas, especially as that it would ensure that 

dollars and not just lip service stand behind our commitment to oppose threats behind box cutters and shoe bombs. But it also bodes 

well that the bill’s 18 identified uses of rail security assistance 

funds are spot on in order of priority. But the bill needs to do more. 

Five weeks ago on January 28th, a dump truck with explosives 

and a chlorine tank blew up in Ramadi killing 16. On February 20 

and 21, two similar attacks killed 11 and wounded 180 near Baghdad after an al-Qa’ida chlorine bomb factor was discovered, military spokesmen expressed shock over the brutality of the weapons 

and the fear that with experimentation and more learning the 

bombs would become far more deadly. 

Now, at a moment when al-Qa’ida is turning its attention to the 

potential of chlorine, it is worth renewing a serious look at this 

threat. Terrorists know they will only get one crack at tank cars. 

They will intend to make full use of that one opportunity. And we 

can deny them that opportunity only by severely restricting the 

movement of ultra-hazardous materials through those places where 

an attack will be worth the terrorists’ while. And that is in highdensity urban corridors. 

Railroads will not do this of their own accord. And this has been 

aptly demonstrated by the industry’s reaction to the D.C. HAZMAT 

ban. The burdens on interstate commerce and massive disruptions 

of rail operations that the industry posits is far from likely to occur 

only one in 3,200 of CSX’s cars were even affected by that ban. 

Meanwhile, the Pipeline and Hazardous Materials Administration has proposed rules this past December that, in fact, do leave 

all questions as to routing up to the railroad’s own discretion. It is 

expressed in the rules ultimate decision making power is left to 

their judgment and their judgment alone. The carriers are also advised by the administration not to consider alternative routes that 

could involve the tracks of another railroad. 

The agency’s proposed rules have been represented by DOT Secretary Peters to accomplish one thing: establish a scientific system 

for determining where and when alternative routing of HAZMAT 

should occur. While, in fact, it is intended to do something quite 

different: provide political cover for any railroad resisting pressure 

to reroute. 

The plan would create a federally mandated black box procedure 

with data selection, analysis, and interpretation of results all performed by the very parties, affected railroads, that are meant to be 

governed by the outcome. The 27 factors proposed to evaluate alternative railroads are custom designed to revalidate pre-existing operations. 

89 

1 1In addition to the District of Columbia, legislation to ban ultra-hazardous shipments has 

been introduced in Chicago, Boston, Philadelphia, Cleveland, Baltimore, St. Louis, Albany and 

Buffalo. 2The Pipeline and Hazardous Materials Safety Administration’s (PHMSA) Notice of Proposed 

Rulemaking (NPRM) indicates that standards-based planning as contemplated in the Bill is not 

viewed favorably by all potential affected service providers: ‘‘Commenters are nearly unanimous 

in opposition to requirement for DOT and DHS to review and approve specific security plans, 

unless done on-site as part of a compliance or outreach review.’’ 71 FR 76838, December 21, 

2006. 

Carriers are told to make their decisions based on ‘‘the financial 

management principles generally applied to other business decisions.’’ The full text is no less startling than an EPA rule which 

would require electric utilities to install pollution controls but only 

if compliance produced greater profits without raising rates. 

Several little factors serve to tilt results towards existing routes 

with no anti-terror justification whatsoever. And to provide a pattern of legitimacy, one factor to be considered is population density 

that is probably balanced out by another superficially innocuous 

factor, the extent of emergency response capabilities along the 

route. 

Now, where would these greatest capabilities be? Where there 

are most people, one presumes. AAR standards require higher inspection frequencies on major HAZMAT routes. Thus the methodology asks how frequently are the tracks inspected. You can guess 

where the high frequency of inspections is more likely to occur on 

routes where HAZMAT now moves or on alternative routes where 

it does not. 

There will be no opportunity to challenge railroad decisions as 

the entire decision making process would be considered SSI. It is 

hard to believe that this is all meant to pass as a serious methodology applicable to any legitimate public purpose. I recommend in 

my prepared statement a number of conditions under which tank 

cars with TIH would be allowed to enter city course. 

Thank you. 

[The statement of Mr. Shuman follows:] 

PREPARED STATEMENT OF DAVID SHUMAN

Good morning Chairman Thompson, Ranking Member King, and Members of the 

Committee. I am pleased to have the opportunity to appear before you today to talk 

about an issue that is of great concern to many of us who live or work in the Nation’s Capital or in any of a host of other major cities throughout the country. That 

issue is the continuing and worsening vulnerability of our cities to the intentional 

release or detonation of rail-transported ultra-hazardous materials.1

The proposed Rail and Public Transportation Security Act of 2007 (Rail Security 

Act or Bill) would provide a vehicle which will mandate the preparation of vulnerability assessments and security plans by surface transportation providers, require 

that these plans actually meet meaningful standards, and backs these mandates 

with strong incentives to encourage compliance.2 All well and good. The Bill proposes to get major actors organized, become aware of their responsibilities, and critical lines of communication. This is also good. It is past time that some order supplant a laissez faire system characterized by endlessly circulating drafts of interagency memorandums of understanding. And of greatest consequence, in my view, 

enactment would ensure that dollars, not just lip service, stand behind the our response to transport-related security threats other than box cutters and lip balm. It 

also bodes well that in terms of cost-effectiveness, the Bill’s eighteen identified uses 

of rail security assistance funds are spot-on in order of priority. 

But there is one thing that the Bill could do, should do, but which it does not 

do. And that is to preserve all useful and viable options that may be employed to 

reduce the threat that weaponizable railroad tank cars, especially those laden with 

toxic inhalation hazards (TIH) such as chlorine, pose to major population centers. 

90 

3 Judging by news coverage, the PHMSA’s proposed rules have already been positioned as ‘‘reroute friendly.’’ For example: 

The release of deadly chemicals from a rail car in a densely populated city could have catastrophic consequences, whether it’s caused by a terrorist attack or a derailment. 

Last week, transportation and Homeland security officials proposed ways to make it harder 

for terrorists to attack rail cars—and less likely that an accident would result in mass casualties. 

Transportation Secretary Mary Peters wants rail companies to send poison gases, like chlorine 

or anhydrous ammonia, and other hazardous cargo along routes that pose the least danger for 

nearby residents. Access Controls and Security Systems, December 22, 2006. 4 In case there is any doubt as to what the PHMSA analysis would yield, the agency awarded 

a grant to the Railroad Research Foundation to provide, as the NPRM puts it, ‘‘a formal methodology to assist the rail carriers in complying with the enhanced safety and security planning 

requirements of this proposed rulemaking.’’ The Railroad Research Foundation is a creature of 

the railroad industry, and its president, also leads the AAR, where he has long been the a vociferous opponent of alternative routing requirements. 

The option in danger of succumbing to misguided administrative action and which 

the Rail Security Act should expressly revitalize is the authority, exercisable by a 

public entity, to prohibit railroads from moving loaded ultra-hazardous tank cars 

through high-threat urban areas (HTUA). 

This action is needed because PHMSA has proposed rules that would effectively 

contract-out to the railroad industry critical authority over public safety. That is, 

in the guise of requiring carriers to examine ‘‘alternative’’ routings of ultra-hazmat 

shipments, PHMSA’s proposed rule would effectively shield railroads from any attempt to compel diversions.3 In the process, railroads would enjoy the bonus of a 

public relations fig leaf—non-diversion would be seen to be compelled through the 

workings of a government sanctioned, black-box analysis developed, run and with 

results interpreted all by the very party—the affected railroad—that is meant to be 

governed by the outcome.4 There would be no opportunity for the public, local government, or any other interested party to challenge the results of a PHMSA-sponsored alternative routing analysis: 

[D]ata compiled under the proposed regulations would be considered SSI under 

regulations promulgated by DOT and DHS (49 CFR Parts 15 and 1520, respectively). SSI (sensitive security information) is subject to special handling rules 

and qualifying information is protected from public disclosure under those regulations if copies of any data are kept or maintained by DOT. See 69 FR 28066 

(May 18, 2004) and 70 FR 1379 (January 7, 2005). 71 FR 76840 (December 21, 

2006. 

Either purposively or unwittingly, the factors proposed to evaluate alternative rail 

routes can only revalidate preexisting operating patterns or condemn for rank incompetence railroad management. Appropriately for a private concern but hugely inappropriate for the purposes to which they are proposed to be put, the factors most 

heavily weight business considerations, in passing ask about the proximity of iconic 

targets, and for other indicia of risk (e.g., population density) provide a countervailing factor—‘‘emergency response capability along route’’ which of course correlates with population. The adequacy or inadequacy of the response capability 

never need be assessed, for all data and analysis performed is protected from prying 

eyes. 

PHMSA strongly suggests that an alternative route must not only be safer and 

more secure than customary routes, but operating over it should not diminish profitability. Carrier decisions should be based on ‘‘the financial management principles 

generally applied to other business decisions.’’ This is like mandating power utilities 

to provide pollution controls unless they would reduce net income or increase 

charges to customers. It is hard to believe that this is all meant to pass as a serious 

methodology applicable to any public purpose: 

As used in this proposal, ‘‘commercially practicable’’ means that the route may 

be utilized by the railroad within the limits of the railroads particular operating 

constraints and, further, that the route is economically viable given the economics of the commodity, route, and customer relationship. The question of commercial practicability must be reasonably evaluated by each rail carriers a part of 

its analysis based on the specific circumstances of the route and proposed traffic. 

If using a possible alternative route would significantly increase a carrier’s operating costs, as well as the costs to its customers, the carrier should document 

these facts units route analysis. We expect that carriers will make these decisions 

in good faith, using the financial management principles generally applied to 

their other business decisions. 

PHMSA most directly announced its abdication of authority in the NPRM to regulate routing when it noted: ‘‘[I]n promulgating its March 2003 security regulations 

91 

5 71 FR 76841 December 21, 2006. 

6 Even as TSA moves forward strategically, there have been precious few signs that it is advancing in the trenches. Homeland security will be ill-served if TSA morale, never high, engages 

with the acutely adversarial management-labor relations typical of railroads. (As example, the 

industry reached an interim agreement with seven unions last week—after 28 months of talks). 

The need for mandatory rerouting can be reduced only with stringent inspections and testing. 

This in turn requires a motivated force of inspectors. DHS management might reflect on a fundamental difference between Transportation Security Officers (TSO) and marines—marines 

emerge from training with intense pride in their organization and mutual respect of foot soldier 

and officers. The social contract between all is respected, and that contract provides for no bargaining. Such a ‘‘contract’’ in which mutual expectations are implicit is absent with respect to 

DHS employees. 7Parenthetically, the growing success of insurgent efforts at downing US aircraft should alert 

TSA to reenergize programs aimed at countering external, not just in-plane threats to aviation. 8 Chlorine Institute Pamphlet 74, ‘‘Estimating the Area Affected by a Chlorine Release April, 

1998 

under Docket HM–232, PHMSA specifically required rail carriers to address en 

route security; however, PHMSA deliberately decided to leave the specifics of hazardous materials rail routing decisions, and other en route security matters covered 

by transportation security plans, to the judgment of rail carriers.’’ 5

For its part, Transportation Security Administration’s (TSA) simultaneouslyissued NPRM respecting hazmat chain-of-custody (and, more broadly, its increasingly sophisticated strategic processes) are welcome, and partially validate the appointment of a top-tier railroader as its head. However, more complete success will 

require a far more deft hand at labor relations than has so far been exhibited by 

DHS or is the norm in the railroad industry.6

It would be very poor timing indeed to throw away the one crude, but highly effective defense against train weaponization. Because it is now that the malefactors operating in the terrorist proving grounds of Iraq are turning their attention to the 

potential of chlorine.7 Five weeks ago, on January 28, a dump truck with explosives 

and a chlorine tank blew up in Ramadi, killing 16. On February 20, a tanker filled 

with chlorine was exploded, north of Baghdad, killing nine and wounding 148, The 

following day in southern Baghdad a truck bomb that combined explosives with 

chlorine gas blew up killing at least two and injuring 32. Soon after, as reported 

by Reuters relying on U.S. military statements ‘‘Al Qaeda militants in Iraq were 

preparing to make crude chemical weapons using chlorine at a car bomb factory discovered west of Baghdad.’’ 

U.S. and Iraqi police spokesmen reportedly expressed concern that the bombers 

were in the early learning stages with respect to the maluse of chlorine, and technical advances were highly probable. The chlorine was largely combusted rather 

than dispersed, more efficient and sophisticated devices could apparently have been 

far more deadly. How much more deadly? The Chlorine Institute estimates a chlorine release maintaining a minimum 20 parts per million could be ‘‘immediately 

dangerous to life or health’’ (IDLH) 0.6 mile downwind in the event of a release of 

150 lbs, 2.2 miles for a one ton release, and 14.8 miles downwind in the event of 

a 90-ton tank car rupture.8 Since these estimates were made, the chlorine IDLH has 

been revised by the Federal Government downward, to 10 parts per million, expanding the recognized extent of deadly risk substantially. 

The emerging threat represented by terrorist interest in chemical weaponry (the 

ability to cut a tank car open has already been demonstrated in southern Iraq, according to data compiled by Rand) warrants the inclusion in the Rail Security Act 

concrete instructions for the PHMSA and TSA. I would suggest that: within one 

year, no ultra-hazmat car should be permitted in any HTUA—and smaller cities as 

well—if: 

1) the tank car is not in compliance with the most recently approved tank car 

specifications which will markedly decrease the risk of penetration by small 

arms and low-yield explosive devices, 

2) the tank car’s chain of custody has not been meticulously maintained to TSA 

requirements, 

3) the operating railroad has failed any inspections in the past six months designed to monitor compliance with chain of custody requirements, 

4) the originating shipper has been found out of compliance with relevant regulations over a similar period and 

5) the rail corridor in the affected urban core is not protected by devices proven 

effective in deterring attacks or by stationed guards. Successful components of 

the Washington D.C. corridor’s $9.6 million test project could be such qualified 

devices. 

92 

This would not be the first that regulation of railroad security has been ‘‘contracted out’’ to the very parties whose activities are intended to be regulated. Most 

of us who were involved in the District of Columbia’s 2005 foray into the regulation 

of railroad movements (I was the District’s rail expert in the ensuing litigation) 

knew that federal law preempted relevant local or state legislation. But we soldiered 

on because at the time, there was no federal law to do the preempting. The District 

had no choice but to defend itself, for the federal government certainly wasn’t going 

to fight for the city. And, sure enough, the Justice Department, Homeland Security, 

the Surface Transportation Board—all chimed in arguing that federal law trumps. 

But what was the preempting federal law? TSA, which in theory had sole jurisdiction, had not promulgated any rail security regulations; it was too involved in refighting 9/11. All there was a ‘‘top-secret’’ (Association of American Railroads (AAR) 

words) voluntary plan dashed together by the rail industry in December 2001 in a 

successful effort to forestall regulation by the federal agencies that were supposed 

to be doing the work. This law was so top secret that it could not be divulged to 

the District’s lawyers, its lawmakers, or, from what I could discern, a Federal 

Judge. Of course, all railroads which interchanged with US roads necessarily participated in the planning process, so my understanding is that Canadian and Mexican nationals did receive sufficiently elevated security clearances from the AAR so 

that they could make a contribution. The AAR then informed anyone who would listen that the plan rated a grade of ‘‘A’’ from this federal agency or that military officer. 

Mr. CUELLAR. [Presiding.] Thank you very much. 

And I thank all the witnesses for their testimony. 

I would now recognize myself for 5 minutes of questioning. 

Mr. Hamberger, according to the GAO, the FIA has been focusing 

its efforts to improve rail safety addressing issues such as human 

error inspections and railroad track failure. And it seems that the 

industry views safety as a bigger, more pressing concern than the 

risk of terrorism. 

I know that in part of my district in San Antonio, as you know, 

there have been several, several, several incidents dealing with 

some of the issues I just mentioned. Is there a nexus between safety and security concerns? And what measures would you recommend that have been or can be implemented that serves both 

purposes of safety and security? 

Mr. HAMBERGER. Well, I appreciate that question, Mr. Cuellar. 

And I am unfortunately aware of the accidents that have occurred 

down in Bexar County. There is a definite overlap correlation between safety and security. And we have tried at one end of the 

spectrum to make sure that our employees in their daily safety 

briefings that Mr. Weiderhold mentioned has now been expanded 

to be a safety and security awareness briefing. 

But in other areas, for example, I mentioned the research at the 

transportation technology center. We are working on a laser-based 

imaging machine that when a tank car would go by or any car really would go by, we would be able to see if there is something that 

would check against the database to see if there is something hanging or attached to that car that should not be there. And it could 

be a broken bar. Or it could be a trailing air hose. Or it could be 

something that a terrorist had planted. So there is some correlation 

there. 

In addition, we have gone through a major effort to try to improve the crash worthiness of the tank cars that move the toxic by 

inhalation chlorine and the anhydrous ammonia, to name two, 

around the country, about 100,000 carloads a year. We came up 

with a new standard. It was to go into effect January 1, 2007. It 

93 

would make it both more impregnable to assault by terrorists as 

well as safer should an accident occur. 

At the request of the Federal Railroad Administration we have 

deferred the implementation date of that until January 1, 2008. 

But there is a definite overlap between safety and security. 

Mr. CUELLAR. Okay. Could I ask you if you have any other recommendations that you can provide in writing to our committee 

clerk? 

Let me ask another question, the line of questioning I had to the 

prior panel. Knowing what goes through the border—I think one of 

the other witnesses said once it gets into the United States we 

know what is happening. But, you know, being from the border 

area, I certainly want to make sure that we look at the safety of 

the public and the employees, whether governmental employees or 

rail employees or those rail cars coming into the United States. 

That is, before they hit the border. 

Could you tell us a little bit of any suggestions you might have? 

Because I know in the Laredo area they were talking about doing 

some inspections on the other side. And I think that hearing got 

postponed. I know that some of the employees or some of the 

unions here had concerns about that for different reasons. 

But could you tell us a little bit about inspections coming in from 

that we might do on the other side and how we can also use technology to move those rail cars faster through those X-ray machines 

that we have? 

Mr. HAMBERGER. Well, you hit the nail right on the head there 

with the X-ray machines, which are set up at all of—as I understand it, that close to 100 percent of rail cars coming into the country by land, that is to say from Canada or Mexico, go through an 

X-ray machine. 

We need to get to the Customs and Border Patrol, I believe it is 

24, it might be 48 hours in advance an electronic consist. They are 

then able to as the train rolls through the machine to try to match 

up what is on the consist with what they are seeing inside of the 

car. 

And if there is a question or a concern, they need clarification, 

they notify the train engineer and it is pulled over and they inspect 

that car. So I am pleased to say that we are North American network. The major Canadian railroads, the major Mexican railroads 

are members of the A.R. and subscribe to our car tracking system. 

So there is a system in place for inspecting the rail cars as they 

come across by land. 

Mr. CUELLAR. Do you feel satisfied with the integrity of the information that is given to us before it gets to the U.S. side? 

Mr. HAMBERGER. I have no reason not to be satisfied. But let me 

do some questioning of the people who are more involved on the 

day to day basis and respond, if I could, for the record. 

Mr. CUELLAR. All right. Thank you. 

At this time, the chair will recognize other members for 5 minutes. The chair recognizes for 5 minutes the gentleman from California, Mr. Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

Mr. Rodzwicz? Is that how you pronounce it, Rodzwicz? I want 

to pronounce it correctly. 

94 

Mr. RODZWICZ. I have been on this Earth for 60 years, and no 

one has ever pronounced it the first time correctly. 

[Laughter.] 

It is Rodzwicz. 

Mr. LUNGREN. Rodzwicz. 

Mr. RODZWICZ. Yes. 

Mr. LUNGREN. Thank you. 

Mr. RODZWICZ. Just don’t look at it when you pronounce it, you 

will be fine. 

[Laughter.] 

Mr. LUNGREN. That is fine. A lot of vowels. 

Mr. RODZWICZ. Yes. 

Mr. LUNGREN. And a few consonants. 

Mr. Rodzwicz, we have had some discussion about the background check and the limitations placed on it with respect to this 

bill. 

Some are concerned that the language is imprecise, such that it 

would prohibit a rail line, a transit line from dismissing an employee for legitimate theft, a background in theft or, let’s say, someone at a bus company, a DUI in the background, because it specifically limits it only to the felonies that are in here. 

Number one, is that your reading of this section of the bill? And, 

number two, if it is, would you support us putting language in 

there that would make it clear that the entities would have the 

ability to do that so long as they were not making a claim that it 

was for security reasons? 

Mr. RODZWICZ. Quite candidly, I would like an opportunity to review that portion of the bill more closely. 

I like to be conversant with a subject before I provide an answer 

and I haven’t had that opportunity as of yet. 

Mr. LUNGREN. Well, let me put it this way. Would you have an 

objection of the bill specified that that section which limited the 

felonies for which a background check could be done and for which 

someone could be disabled from working were limited to the area 

of security? 

Mr. RODZWICZ. At this point, I would say yes. But once again, I 

think we have to look at it perhaps on an individual basis. 

One example that comes to mind, let’s, for example, say that we 

have a young college student that was caught with some substance 

in his college years that might be or is a felony. 

Should we hold that individual liable for something that happened, say, 30 years ago or 20 year ago? I don’t know. 

Mr. LUNGREN. You stated in your written testimony that there 

should be mandatory review and approval of all vulnerability assessments and security plans. 

Let me ask you, should that be for all under all circumstances, 

in that this bill would include all public transportation, including 

a number of public transportation agencies that are no larger than 

a handful of employees for, for instance, paratransit buses? 

In other words, should we require that of the department or only 

require the secretary to review those that are most serious, from 

his standpoint? 

In other words, here we are asking the secretary to have responsibility in these areas. Should we have it in every single possible 

95 

company that might be there or should we use the risk-based approach that the secretary and his department should only be looking at those of a particular size, for instance? 

Mr. RODZWICZ. I would say, at this point, yes, we should, but, 

however, I rely on the educated people that serve the public in 

Congress to make a better judgmental decision on that issue. 

Mr. LUNGREN. Thank you. 

Mr. Millar, do you believe and is it the position of your association that the public transportation security grants should be riskbased? 

Mr. MILLAR. Yes, sir. We are fully supportive of that concept. 

Mr. LUNGREN. There has been some discussion on the Hill, not 

yet in this committee, that we ought to have two agencies of the 

government handle these security grants, DOT and DHS. 

What is your association’s position on that? 

Mr. MILLAR. Our view has been that the Department of Homeland Security has not proven itself to be a good grant-making agency and that the Department of Transportation has had relationships going back 40 years or more with the transportation systems 

involved. 

And our view has always been that the Congress should set the 

policy in cooperation with DHS, but once the policy is set, once the 

program is established, the money should be transferred to the Department of Transportation for purely administrative purposes. 

DOT is already set up with grant application processes, with 

audit processes, with payment processes and things that at least so 

far DHS has not done a good job of. 

Mr. LUNGREN. But wouldn’t that be an argument against us ever 

setting up a DHS in the first place? 

That is, we tried to take responsibilities from other agencies and 

departments that existed for decades because the Congress believed it important to have a single department of government 

which, across all agencies, would be the primary instrument of the 

federal government with respect to security from a homeland security standing. 

Mr. MILLAR. Our view has been that Department of Homeland 

Security, if the Congress wishes to set up such an agency to centralize the policy of the government in this regard, that is perfectly 

fine with us, but we think it doesn’t make sense to take advantage 

of administrative structures that already exist across the government that work perfectly well, why duplicate those. 

And in the 5 years since DHS has been created, I can tell you 

chapter and verse of all the different difficulties that they have 

had, including four times reorganizing the agencies that are responsible for these grants. 

We still have members who have not been able to spend their 

money that you appropriated in the year 2004. It is not a system 

that is working well. 

It may get better, but why not use a system that is working well? 

Keep the control, as the Congress wishes, centralized, but allow 

simply the administrative function to work to allow the funds to 

flow quickly. 

Mr. LUNGREN. I thank the gentleman. 

Mr. CUELLAR. Thank you, Mr. Lungren. 

96 

At this time, the chair will recognize for 5 minutes the gentleman from Massachusetts, Mr. Markey. 

Mr. MARKEY. Thank you, Mr. Chairman. 

Mr. Shuman, you testified in the D.C. court case on rerouting 

that you did not believe that CSX would incur any significant harm 

to its business as a result of compliance with the District of Columbia act. 

Could you please elaborate on why your cost estimates were so 

much lower than those submitted to the court by CSX and what 

assumptions did CSX make that you feel were erroneous? 

Mr. SHUMAN. Congressman, for starters, CSX admitted that it 

really did not make any cost estimates, that it was unable to, that 

there were too many different kinds of costs and it was a very complex process. 

And so they had a back-of-the-envelope figure based upon diverting all cars that had, in the past, gone through the District of Columbia, but substantially more cars that had been going through 

after the voluntary diversion plan. 

So their estimate of about $2 million in costs versus ours of 

about $800,000 really, though, reflected a different base number of 

cars. 

Nevertheless, their $2 million estimate still was a small fraction 

of 1 percent of their total system revenues. 

Mr. MARKEY. Mr. Hamberger, has AAR conducted its own costbenefit analysis associated with requiring the most hazardous materials to be rerouted? 

Mr. HAMBERGER. We have not. 

Mr. MARKEY. You have not. 

So are you in disagreement with Mr. Shuman in terms of his 

analysis? 

Mr. HAMBERGER. I have not studied his analysis. 

Mr. MARKEY. Okay, thank you. 

Mr. Shuman, from your perspective, do you believe it to be minimal, the cost for rerouting the tiny percentage of extremely hazardous shipments? 

Why do you think CSX has so vigorously opposed the District of 

Columbia act? 

Mr. SHUMAN. Well, in fact, TIH or the chemicals in question total 

three-tenths of 1 percent of railway business and even a fraction 

of that was involved in HAZMAT. 

I can tell you my personal conspiracy theory with respect to that 

and that is that the railroads resist very strongly any infringement 

on their sovereignty over their rights-of-way. 

They have fought tooth-and-nail over competitive access. They 

fought very hard, made things very difficult—I am very glad to 

hear that Mr. Hamberger and Mr. Millar are on good terms now, 

but they made it very difficult for commuter systems to be developed that would operate or share rights of way with railroads, partly on safety reasons, but partly because they could extort very high 

dividends by selling off these rights to states when the states had 

no competitive alternatives. 

I think that they see that as a precedent, that their backs are 

up because it is a slippery slope from if there is control, people 

97 

begin to tell the railroads how to do something on their right-ofway, interfere with their use, then some day they will allow— 

Mr. MARKEY. You aren’t saying that they oppose even homeland 

security mandates because they think it could lead to other things. 

So they have to be pure and oppose any kind of government regulations. Is that what you are saying? 

Mr. SHUMAN. Absolutely. 

Mr. MARKEY. Let me just stop you there. 

Mr. Shuman, your testimony recommends that the committee 

add language to the bill that prohibits railroads from moving extremely hazardous materials through high threat urban areas. 

During next week’s markup of legislation, I plan to offer an 

amendment that will require rail carriers to analyze both the 

routes they use and the locations in which they store extremely 

hazardous materials and to require DHS to issue regulations that 

require the rail carriers to use the most secure routes and storage 

facilities so that areas of concern would be avoided whenever possible. 

Is that approach consistent with what you are recommending? 

Mr. SHUMAN. I am not quite as absolute as you are. I agree, in 

general, but I believe that if railroads can demonstrate that their 

operations are consistent with a number of factors, such as rigid 

adherence to DHS’ proposed rule on chain of control, chain of custody over cars, that the tank cars are all hardened to the latest 

standards which came out a couple of months ago, that they have 

been inspected thoroughly inside of the wheel wells and the bogies 

and everything else, if there is no IUD, that he is there, that no 

one has access to the tracks in the area— 

Mr. MARKEY. Let me just stop you there. 

Let me go to you, Mr. Hamberger. In your testimony, you claim 

that you are in opposition to the banning of shipments of extremely 

hazardous materials. 

You claim that the ban could foreclose the safest routes from 

being used and reduce safety as a result. 

Are you saying that some rural routes are not safe enough for 

extremely hazardous materials to be shipped on and do you have 

a list of those routes? 

Mr. HAMBERGER. What I am saying is that by rerouting around 

an urban area, you may increase the number of miles that a loaded 

tank car would be moving. It might move over track that is not signaled, for example. 

It might go through areas where the emergency responders have 

not been trained as well as in the area where it currently goes. 

So as I understand, for example, the voluntary rerouting that 

CSX is doing on its north-south line currently is adding about 2 

million miles of additional travel by loaded tank cars around the 

country and that is 2 million miles of additional exposure. 

Mr. MARKEY. And setting the safety question aside for a moment, 

does AAR agree that terrorists would be more likely to attempt an 

attack on a shipment of extremely hazardous materials if the shipment was traveling through a densely populated area rather than 

along a more remote route? 

98 

Mr. HAMBERGER. Mr. Markey, it is, I think, difficult, as Mr. 

Cuellar pointed out, to separate the safety and security items from 

each other. 

We have absolutely no indication that there is any threat assessment that there is going to be an attack on freight rail. There has 

not been such an attack that we are aware of. 

There are lots of attacks on passenger rail. 

Mr. MARKEY. Thank you, Mr. Chairman. 

Mr. CUELLAR. Thank you, Mr. Markey. 

At this time, the chair will recognize for 5 minutes the gentlewoman from the District of Columbia, Ms. Norton. 

Ms. NORTON. Thank you very much, Mr. Chairman. 

Don’t think I am not sympathetic with industry, tracks laid, they 

were laid 100 years ago. They are not like trucks that have some 

mobility. 

And yet you carry the most hazardous materials in the country 

and you have to carry them. You are a common carrier and I understand that. 

Mr. HAMBERGER. Thanks for recognizing that, yes, ma’am. 

Ms. NORTON. You are a common carrier, you have got to carry 

them, and I just think this needs to be figured out. 

I certainly don’t believe that one could reroute traffic very easily 

or very often. The reason that the courts have sued one of your 

members, of course, has more to do with the regulators than it does 

with them, because the District, left without any action by Congress and any action by the regulators, on its own motion, said we 

have to do something. 

Mr. Shuman, as I understand it, you were helpful to the city in 

this regard. The point was that even under commerce clause authority, a local jurisdiction doesn’t have to sit there and be a sitting 

duck. 

And so they tried to issue their own rerouting motion. Then, of 

course, rerouting is possible here. We even understand that rerouting has taken place here. 

To show you the seriousness of this matter, the court, of course, 

still has the matter before it. So it didn’t just come about because 

the District is a local jurisdiction. 

I wasn’t able to get from the last panel even the notion that notice ahead of time. 

I would ask this question then of, I guess, Mr. Hamberger, any 

of you who are equipped to answer this question, whether you 

think that at least in some instances, like the nation’s capital of 

the United States, for goodness sake, where, in fact, alternative 

routes, alternative tracks do exist, where you have not only the nation’s capital, but 4 million people in the region, where the entirely 

federal presence is located, in a situation where there are, by any 

light, it seems to me, exceptional circumstances, where rerouting 

would be possible in those limited circumstances, do you think that 

working with the authorities, that might be a prudent thing to do? 

And for places where it was not, and I am willing to concede that 

that is probably most places, what do you think should be done to 

protect local jurisdictions beyond moving trains? 

I understand what has already been done. And do you believe 

that the notion of giving some notice that hazardous materials to 

99 

a highly placed official with the appropriate security rating might 

be an appropriate thing to do, to give some sense to first responders that they might want to be alert? 

And if not that, what alternatives do you propose? I have named 

two for you and I would like to hear your response. 

One, for quite exceptional jurisdictions, and, two, for most jurisdictions in the United States who might not be able to reroute and 

bearing in mind your own concerns and your own industry. 

Mr. HAMBERGER. With respect to rerouting around the District of 

Columbia, the CSX did, of its own volition, in consultation with the 

Department of Homeland Security, post the Madrid bombing, made 

its own determination based on its own security plan that it would 

be prudent and appropriate to reroute around Washington, D.C. 

Ms. NORTON. Are you testifying that CSX is rerouting around 

Washington whenever hazardous substances are coming through 

this area? 

Mr. HAMBERGER. On their north-south line, that is correct. That 

is my understanding and that they did that of their own volition 

and— 

Ms. NORTON. Because they have never conceded that and it is 

important to hear that, if that is happening. 

Now, of course, you have areas like New York and God knows 

how many others which have even larger populations. New York 

happens to get more threats by far than even the nation’s capital. 

Mr. HAMBERGER. I think you just— 

Ms. NORTON. Again, I am not trying to pin you down on jurisdictions. I am really trying to say what do we do. 

Mr. HAMBERGER. I think that is really the broader question, is 

really the great question, and, that is, what do we do. 

Ms. NORTON. And I have given you something that seems to me 

to be fairly mild, just to say, ‘‘Look, we are not doing anything,’’ 

but for your police chief, you, TSA—maybe TSA should tell us who 

that should be. 

But we do want you to know that— 

Mr. HAMBERGER. We do indeed notify the emergency responders 

of the materials that are moving through there by jurisdiction to 

try to make— 

Ms. NORTON. But not when the last panel said—the last panel 

said— 

Mr. HAMBERGER. Not exactly when, no, ma’am. We subscribe to 

that theory, as well, that— 

Ms. NORTON. Mr. Hamberger, let me stop you right there. 

When I examined him and said I can understand your security 

concerns and without trying to make it worse and I named the police chief, who, certainly, in every large jurisdiction, has the appropriate security clearance, I named the fire chief, I named the two 

chiefs’ first responders, he was not willing to concede that even 

they should know when hazardous substances are traveling 

through a local jurisdiction. 

Are you sitting there and telling me that you think that is reasonable? 

Mr. HAMBERGER. We are indeed telling those individuals what 

hazardous materials are moving through there and— 

100 

Ms. NORTON. What good does it do if they do not know when it 

is coming and nobody in the jurisdiction knows? 

Mr. HAMBERGER. When an incident happens, we are immediately 

in touch with them and they— 

Ms. NORTON. Sorry, sorry? 

Mr. HAMBERGER. When an incident happens, we are immediately 

in touch with the emergency responders so that they can respond. 

Ms. NORTON. Oh, my God, Mr. Hamberger, you are testifying 

that when an incident happens and when you are blowing up, they 

will tell you you are blowing up. 

This committee is about prevention. After 9/11, the entire Congress has been about prevention. And all I am asking, particularly 

in light of my understanding of your own liabilities, of your own 

concerns, of the situation as an old common carrier you are in, I 

am simply asking you what would be the harm in telling the two 

chief security officers in a local jurisdiction that hazardous substances are traveling through. 

By the way, they would probably be gone in 5 minutes, the way 

trains travel, but are traveling through and telling the time and 

the day they are traveling, what would be the harm to your industry in doing that? 

Mr. HAMBERGER. The reason we have not required that is because it is our belief, as Secretary Hawley indicated, that that 

would be a potential security degradation and so we have not—we 

do tell the communities and it, of course, is something that our 

electronic consist has, as well, when there is an incident, what is 

in each car and what the appropriate response is. 

Ms. NORTON. And you say, ‘‘And guess when it is coming.’’ I must 

tell you, Mr. Hamberger, that is why there is going to be a bill 

here. There should have been a bill long ago particularly considering the issues raised by these substances. 

And when I hear you say that, even though I have conceded to 

you that there may be few jurisdictions where you could reroute 

and have asked you, on your own motion, to come forward with 

what could be done concerning moving vehicles and the industry is 

not able to say that even notice to people with high security clearances would be appropriate, you can see why regulation is appropriate and necessary. 

And I must tell you, I don’t think there is a single member of 

Congress who would agree with you that the police chief and the 

fire chief should not know when hazardous substances are traveling through their jurisdiction. 

I cannot think that in either party there would be anybody to 

come forward and show his face and raise his hand and say ‘‘amen 

to that.’’ 

And I thank you, Mr. Chairman. 

Mr. CUELLAR. Members, at this time, we will go into a second 

round of questions. And at this time, I will recognize myself for just 

one question. 

Mr. Hamberger, this has to do with the rail bridges, the crossings that we have. And, again, I have my own opinion, because I 

have seen the rail bridges. 

Do you think there is adequate protection and security of the rail 

bridges? And I am talking about the international rail bridges. 

101 

And keep in mind, for example, let me give you a scenario. Let’s 

assume something were to happen while a train would be crossing 

carrying certain types of hazardous materials and it would spill 

into the Rio Grande and think about what would happen if you 

have literally thousands of people on both sides of the river with 

that type of materials. 

Do you think that there is adequate—that we need to do more 

to help protect the rail bridges, the international crossings that we 

have? 

And, quite honestly, I have my own opinion, but what is your 

opinion of your? 

Mr. HAMBERGER. Mr. Cuellar, as part of the risk assessment and 

vulnerability assessment that we did as an industry, we went out 

and we actually identified 1,308 critical assets of the rail network. 

Many of those are indeed bridges and it is our view, with 140,000 

miles of track in the United State alone, that it is impossible to 

guard every mile, every bridge at all times. 

And that is why we have set up at the AAR a secret level operations center that is tied in to the national and joint Terrorism 

Task Force, that is tied into the intelligence center at TSA, so that 

if there is any credible threat, resources, our own police forces and 

the FBI can be directed to provide protection at that point. 

And that actually is part of my written testimony, is an idea, instead of going from 100 inspectors to 600 inspectors, perhaps those 

additional personnel could be used in more of an air marshal kind 

of situation as opposed to just going out and inspecting compliance 

with TSA regulations. 

Mr. CUELLAR. What sort of priority do you all give to international border crossings? And the reason I say that, because I am 

very familiar. I am an attorney, but I am a custom broker. 

Mr. HAMBERGER. When we looked at— 

Mr. CUELLAR. I am a custom broker, so I am familiar with movement of goods coming in and I am a big believer of trade. I think 

you know my record. I am a big believer in trade and I want to 

see those cars coming in. 

But at the same time, without impeding trade and tourism, I certainly want to make sure we provide that balance of security especially for rail. 

Mr. HAMBERGER. As we took a look at it, and we did this with 

the assistance of a consulting firm here in town who is comprised 

primarily of former military and civilian intelligence personnel, we 

asked them to come in and take a look at our system the way they 

would look at it if, indeed, they were looking to attack it. 

They brought with them their best practices from the intelligence 

community and they looked at harm that could be done to the economy, harm that could be done to the population, and harm that 

could be done to our military preparedness and where those three 

circles intersected. 

And then, of course, a follow-on was what kind of recovery if possible, and that is why bridges are, indeed, an issue of concern. 

So I don’t know whether the international aspect of that played 

into that analysis, per se, but, certainly, given the level of economic 

activity across those bridges, they certainly would have to be high 

on the list, I would think. 

102 

Mr. CUELLAR. All right, thank you. 

At this time, Mr. Lungren, do you have any questions? 

Mr. LUNGREN. Yes, thank you, Mr. Chairman. 

Mr. CUELLAR. At this time, the chair will recognize for 5 minutes 

the gentleman from California, Mr. Lungren. 

Mr. LUNGREN. Mr. Shuman, I would like to just ask you some 

questions about this rerouting of hazardous materials around 

urban areas. 

How do you define urban areas? 

Mr. SHUMAN. An urban area would have to be an HTUA. I am 

not sure precisely what the definition is. It has to do with population density. It has to do with also the urban areas that you 

would want to avoid, ones with iconic targets, places that, for some 

reason, there would be a— 

Mr. LUNGREN. Let me ask you, how would you distinguish between San Francisco and Sacramento, which I represent? 

Mr. SHUMAN. They are both quite populous. 

Mr. LUNGREN. San Francisco is far more populous. The Bay Area 

is more populous than the Sacramento area. 

My question is if you were to reroute it to get it out of the San 

Francisco area, if someone decided that was iconic, what do you say 

to the people of Sacramento? 

What I guess I am asking is, it is not quite as easy as saying 

we are just going to reroute it around urban areas, is it? 

Mr. SHUMAN. Well, there is a conflation between security and 

safety, as well as convergence. 

Mr. LUNGREN. Well, I don’t care about conflation and convergence. 

What I am saying is, okay, we reroute it away from the capital 

of the United States. That is important. And I don’t know where 

the tracks otherwise lie, but let’s say it follows the path of the Beltway. 

So now you have exposed the people in the surrounding area of 

D.C. rather than D.C. itself. 

Mr. SHUMAN. You have exposed them to an increased safety risk, 

which is miniscule. The railroads have an exceptional safety record. 

We did calculations on the CSX diversions, 2 million additional 

miles a year would produce a possibility of a major accident once 

in 1,136 years. 

Mr. LUNGREN. Now, we are on security. The issue is security. If 

you reroute it around going directly through D.C., and I might happen to agree with that, because that is the nation’s capital, but let’s 

say that requires you to go around here. 

So you go around the suburbs of D.C. You are still exposing people in those suburbs to the potential of a terrorist attack, if, in fact, 

their point is to attack a particularly security-sensitive material 

that is on that train, right? 

Mr. SHUMAN. I would think that the possibilities are vanishingly 

small and that is because, as I noted, that I don’t think there will 

be more than one terrorist attack on a tank car, because I think 

that Al Qaeda would recognize that the counterterrorist techniques 

that go into place after something like that happens, they won’t 

have a crack at it again. 

103 

They are going to look for these most promising, the most biggest 

statement they can make and they are not going to waste it on the 

suburbs of Washington, D.C. or in Sacramento. 

Mr. LUNGREN. They aren’t, you can say that with absolute certainty. 

Mr. SHUMAN. I can’t say that with absolute certainty, but— 

Mr. LUNGREN. Well, neither can I. So what I am trying to suggest is maybe it is a little more complicated than saying if you reroute it around urban areas, that you are ensuring that it is not 

going to be the subject of a terrorist attack. 

I mean, look, when I was attorney general of the state of California, we had an issue about whether or not we were going to 

allow, by the federal government, to take spent fuel rods that were 

taken from foreign countries that we take into the United States 

and that is part of our overall obligation under the treaty to make 

sure of nonproliferation. 

So we happen to think we trust ourselves better than we do 

other countries. And some local communities wanted to stop it from 

going through there. 

If we allowed local communities to stop it from going through 

there, it would protect those local communities, but the damage, 

the danger to the rest of the world from nuclear proliferation would 

be greater. 

The federal government, in that regard, did not allow local governments to say, ‘‘No, you can’t come through our areas,’’ number 

one. 

Number two, as I recall, we didn’t give them the time at which 

it came through either, because we thought that would be, at least 

the federal government thought, at that time, that would be of a 

more serious nature. 

So I may disagree with Ms. Norton that maybe there are some 

people in the Congress who have a different opinion, which might 

be the more you give out information with respect to times that 

things may come through as opposed to notifying the communities 

this may come through at a time, therefore, be prepared with your 

response, is a rational balancing of the concerns that are out there. 

And that is the only thing I would like to raise, because I have 

sat here and listened to presentations which suggest that there is 

just one way to look at it and it might be a little more complicated 

than that. 

And while in some cases it may make good sense to reroute it 

around an urban area, in other circumstances, it may not. 

And maybe I am not pressing enough, as some members are, to 

be able to know absolutely that it is perfect or it is the proper rule 

every time. 

So I thank you, Mr. Chairman, for my 5 minutes. 

Mr. CUELLAR. Thank you, Mr. Lungren. 

At this time, the chair will recognize for 5 minutes the gentleman from Massachusetts, Mr. Markey. 

Mr. MARKEY. Thank you, Mr. Chairman. 

Mr. Hamberger, you have testified that more than 2,000 rail employees have been trained as part of an AAR program. 

How many of these employees are frontline workers? 

104 

Mr. HAMBERGER. I believe, to be precise, Mr. Markey, my testimony said 20,000 emergency responders get trained by us each 

year around the country and we are in the process of giving a 

frontline—all the frontline employees security training. 

Mr. MARKEY. Twenty thousand. So 20,000— 

Mr. HAMBERGER. Twenty thousand emergency responders. 

Mr. MARKEY. Twenty thousand rail employees— 

Mr. HAMBERGER. No, sir. These are emergency responders in 

communities in which we operate. The rail employees— 

Mr. MARKEY. How many rail employees have been trained? 

Mr. HAMBERGER. Well, they are all getting security awareness 

training and those that whose job requires them to deal with hazardous materials receive the training under HM–232 at FEMSA. 

So all of those would have received the training. 

Mr. MARKEY. Well, the Teamsters recently reported that approximately 90 percent of them have received no security training whatsoever. 

Now, security awareness is one thing. Security training is something else. So how many have received security training? 

Mr. HAMBERGER. I would submit to you, sir, that the training 

that we are in the process of giving to all frontline employees, and 

you were not here in my testimony where the TSA has done a survey of 2,600 rail employees and found that 80 percent of them had 

a medium or high level of security awareness. 

I think our security— 

Mr. MARKEY. Do you dispute the Teamsters’ argument that 90 

percent of them have received no security training whatsoever? 

Mr. HAMBERGER. I would suggest that if they went back out in 

the field at this point, they would have a much different result considering— 

Mr. MARKEY. And what percent do you say have received security training? 

Mr. HAMBERGER. TSA found 80 percent had a medium or high 

level of security awareness and 100 percent will have it by the end 

of the year. 

Mr. MARKEY. Would you provide to the committee, not TSA’s, but 

your own documentation of the training? 

Mr. HAMBERGER. Yes, sir. 

Mr. MARKEY. Of workers. 

Mr. HAMBERGER. Yes, sir. 

Mr. MARKEY. For not awareness, but actual training. 

Mr. HAMBERGER. Well, there are two different things, sir. There 

is the security awareness training and that is to say when someone 

sees something that is not normal, sees something—I have an example here of a BNSF employee who noticed that there were not 

any flags out as some work was being done around a railcar and 

that is not safe. 

There should have been some blue flags out and he went and realized, as he was going to warn his fellow employees to put the 

blue flags out, that these weren’t exactly well-meaning folks. 

They were stealing things out of an intermodal van container. He 

called the Burlington Northern police, who came and took care of 

the situation. 

105 

So you recognize and report. It is our philosophy that it is not 

up to the individual employee to become a law enforcement officer. 

That is why we have law enforcement officers. 

Mr. MARKEY. Let me go to Rodzwicz. 

Mr. Rodzwicz, can you please comment on what you just heard 

from Mr. Hamberger? 

Mr. HAMBERGER. Yes. If Mr. Hamberger would like to pay for another survey done by the Teamsters, I think we would be more 

than willing to show that security awareness and security training 

are two different things. 

Mr. MARKEY. Could you provide to the committee your own analysis of this problem in terms of the number of Teamsters that have 

been trained? 

Mr. RODZWICZ. Yes, I will. 

Mr. MARKEY. I appreciate that very much. 

So you dispute the key assertion made by Mr. Hamberger. 

Mr. RODZWICZ. Unfortunately, today, my colleague and I disagree. 

Mr. MARKEY. And let me ask the whole panel 

Do you think that TSA should be mandating security training for 

all rail, mass transit employees? 

Mr. MILLAR. Our view is that they should be supporting our security standard-setting program and part of that could certainly include training. But to mandate something— 

Mr. MARKEY. That they could or should? 

Mr. MILLAR. Excuse me? 

Mr. MARKEY. Could or should? 

Mr. MILLAR. That they should be supporting it, yes, sir. 

Mr. MARKEY. Should. That is helpful to me. 

Yes, Mr. Hamberger? 

Mr. HAMBERGER. We are already providing that training and we 

would welcome their review and work with us on what the requirements— 

Mr. MARKEY. Do you think it should be mandated? 

Mr. HAMBERGER. We are already doing it, so I am not sure what 

it would add since we are already doing it. 

Mr. MARKEY. Would you oppose if we mandated it? 

Mr. HAMBERGER. No, sir. 

Mr. MARKEY. Mr. Rodzwicz: 

Mr. RODZWICZ. No, I would not. 

Mr. MARKEY. Okay, great. 

Mr. Weiderhold? 

Mr. WEIDERHOLD. I think it should be mandated. Security awareness and security training go hand-in-glove. You need a building 

block first. Then you need to customize the training for the craft 

of employees. 

That is taking place at Amtrak. I am sure it is taking place at 

other roads right now. It is an iterative process. 

Mr. MARKEY. Thank you. 

Mr. Shuman? 

Mr. SHUMAN. I believe that every railroad employee should be 

taught to be aware of suspicious events. 

However, I believe that some of the problems that you have seen 

in rail yards of not confronting interlopers, where some of the risks 

106 

are very high, is a result of not wanting to face somebody with a 

knife or a gun there. 

If I were a railroad employee— 

Mr. MARKEY. I appreciate that. I am not asking you that question. I am asking you the question of should there be mandated security training. 

Mr. SHUMAN. Every railroad employee should be made aware 

and if that involves training, absolutely. 

Mr. MARKEY. Okay, fine. I understand there are complications 

subsequent to that, but that is the key question I wanted to ask. 

Thank you, Mr. Chairman, very much. 

Mr. CUELLAR. Thank you, Mr. Markey, for your questions. 

I believe we have gone now through the first and second rounds 

of questioning. 

At this time, we have also received statements for the record 

from representatives of the Citizens for Rail Safety and the American Bus Association. I ask for unanimous consent that those statements be included in the record, without objection. 

[The information follows:] 

FOR THE RECORD

PREPARED STATEMENT OF PATRICIA ABBATE, EXECUTIVE DIRECTOR, CITIZENS FOR

RAIL SAFETY, INC. 

Mr. Chairman, Congressman King and Members of the Committee, I am pleased 

to submit this statement before the Committee on Homeland Security to address important issues relating to the safety and security of our rail system. 

Citizens for Rail Safety is a public advocacy non-profit public interest group dedicated to improving rail safety throughout the United States. We are actively engaged in providing proprietary academic research regarding a broad spectrum of 

freight and passenger rail issues in the fields of safety and security. 

On any given day, thousands of trains move across the American landscape. Each 

one of them presents a potential threat to the safety of individuals and families, to 

the continued functioning of our communities and our economy, and to the life of 

our great cities. Whether carrying millions of workers to and from their jobs, or providing the safest means of transporting hazardous materials, or bringing food and 

agricultural necessities to consumers, railroads pose an inviting target to would-be 

terrorists, along with the ever-present risk of an unforeseen accident or derailment. 

As most of us here are already aware, just one 90-ton car of chlorine, whether 

involved in an accident or an act of terrorism, could create a toxic cloud 40 miles 

long and 10 miles wide and could kill as many at 100,000 people in 30 minutes, 

if its contents are released. 

Between 1988 and 2003 there were 181 acts of terror, worldwide, involving railroads and related rail targets. Security experts and government officials, as well as 

chemical and rail trade associations, acknowledge the vulnerability of railcars, 

bridges, and tunnels to intentional acts of terror. The risk of death and serious illness from unintentional accidents involving hazardous materials is also high. 

Though the vast majority, 99.98 percent according to the railroads, of Hazmat shipments arrive safely without major incident, there are fatalities, hospitalizations, 

and/or evacuations every year from the escape of a large quantity of toxic gases or 

liquids. 

A recent study we commissioned, researched by experts at the National Labor 

College, found that our nation is not adequately prepared for an act of terrorism 

or other accidents or emergencies involving the release of hazardous materials from 

rail cars. 

We announced the findings and recommendations of this study, Training in 

Hazmat and Rail Security: Current Status and Future Needs of Rail Workers and 

Community Members, at our National Rail Safety Symposium last November. During this event, we were very fortunate to have Chairman Thompson and Congressman Stephen Lynch present key notes to our audience on this subject. 

Some of the key findings of this study include the following: 

107 

• Rail workers and emergency responders are not prepared for a Hazmat event. 

They are poorly trained in recognizing and responding to Hazmats. 

• Citizens in areas of high amounts of track are uninformed about what is traveling through their cities and towns, and many do not have emergency action 

plans in place if a derailment or rail-related terrorist attack was to take place. 

• Tracks, Cars, and Rail yards need to be more secure and protected which 

means the railroads need more security training for rail workers and more rail 

police officers. 

• Radioactive waste transported with the use of the rails will increasingly grow 

for years, however the amount of training for communities and rail workers has 

remained minimal and stagnant. 

Quality training for rail workers, emergency responders, and residents of rail communities—including joint training exercises—is one necessary part of an overall 

safety and security action plan. Changes also need to be made in rail equipment 

and operations to make Hazmat transport safer. With more than one million tons 

of hazardous materials being moved across our country each day, the need for this 

kind of specialized training is clear. 

In two recent and fatal rail Hazmat accidents, more and better training could 

have saved lives. In Graniteville, South Carolina in 2005, a conductor lived because 

his military training taught him not to run, but to walk out of a cloud of chemical 

gas. Chlorine killed his engineer partner, who without training, ran and because of 

his deep inhalation of chlorine gas, ran to his death. Also, in Graniteville, residents 

did not generally know that the gas cloud that threatened them was heavier than 

air and that their safest escape was not only upwind, but also uphill. 

In Bexar County, Texas, in 2004, three people—a trainman and two community 

residents—died as a result of a major chlorine leak following a derailment. If emergency dispatchers knew the dangers of rail Hazmat and the lethal nature of chemical releases, appropriate advice and a proper response to the 911 calls might have 

saved those residents. Instead they heard the word ‘‘smoke’’ and the phrase ‘‘difficulty breathing’’ and sent firefighters to an assumed medical emergency. 

Citizens for Rail Safety is about to release the findings and recommendations 

from another just-completed study by Penn State University, Securing and Protecting America’s Railroad System. This study found that resources currently directed to rail security are inadequate, given the potential for catastrophic loss of life 

or economic disruption from attacks on the rail system. The growing use of rail systems for work-related passenger travel and the critical role played by freight railroads in U.S. and global commerce makes insuring their security a matter of urgent 

public concern. While the efforts to secure the system led by the Department of 

Homeland Security represent a good start in tackling the issues, legislation specifically dealing with rail security is needed to identify the threats, clarify the roles of 

the various public and private sectors, and establish a level of funding commensurate with the importance of the rail system and the potential loss of life and economic damage that might result from terrorist attacks. 

In addition to prevention, the rail system plays or can play an important role in 

mitigation and recovery efforts after man-made or natural disasters. 

The top key findings of this study include the following: 

• Across the globe, railroads have been among the most common targets of terrorist attack, leading to significant loss of life, interruption of vital services, and 

political repercussions. 

• The rail sector in the U. S. has not received adequate resources and attention 

to protect it and the public from terrorist acts directed against rail operations, 

facilities, and assets. 

• Traditional approaches to rail security, focusing on policing and cordoning of 

rail assets, are inadequate to provide security against post-9/11 terrorist 

threats. The North American rail network is too vast and diverse to be protected simply through more policing, surveillance, or anti-trespass measures. 

• Responsibilities for rail security remain divided among a number of federal 

agencies; between federal and state agencies; between government and the private sector; and between shippers, users, and providers. 

• Rail security encompasses a variety of separate threats, due to the diversity 

of rail operations and the still emerging nature of terrorist activities and goals. 

This study identified many action steps and a list of recommendations. Some of 

the key recommendations from this study include the following: 

• Congress needs to pass comprehensive rail security legislation and allocate 

adequate financial and administrative resources to enhance current security efforts. 

108 

• Resources to enhance security must be adequate to deal with potential problems and be allocated according to a careful assessment of risk, not formulas 

based on population or political earmarking. 

• Passenger and transit operations in major urban areas, in particular those 

that have been targets of past terrorist acts, should receive increased percentages of all funds expended for rail security, until such time as actual terrorist 

acts cause a shift in the assessment of risk. 

• A congressionally established National Commission on Rail Security composed of leaders from government, the rail industry, rail unions, and public representatives should be created and empowered to study the state of rail security 

and report back to Congress its findings within a reasonable period of time. 

• Federally funded research on rail security issues should be expanded. Research should be directed both to areas of product and service delivery and scenarios that examine the consequences of possible terrorist acts against railroads. 

• Information sharing within the rail security network should be enhanced 

through public and private investment in shared and secure information systems. 

• The General Accountability Office (GAO) of the federal government should 

provide regular assessments of the state of rail freight and passenger security 

for the scrutiny of Congress, concerned government agencies, the rail industry, 

and the public. 

• Research should be funded to examine the potential of special rail passenger 

operations in recovery operations after natural and man-made disasters, such 

as hurricanes or the release of hazardous materials in large cities. Rail has the 

potential to move large numbers of people away from disasters more efficiently 

and with a greater concern for social equity than reliance upon cars. 

• Enhanced training of rail personnel to deal with both the prevention of terrorism and its aftermath is necessary, and should be a shared public and private responsibility. 

As we continue to commission and release the findings and recommendations of 

academic studies on the topics of rail safety and security, we are also planning to 

take the information from these studies ‘‘on the road’’ this year. We will be conducting a series of ‘‘town meetings’’ in targeted rail communities, where we will 

bring together citizens, local political leaders and members of the rail community 

to openly discuss findings and recommendations from our studies. These meetings 

will bring an increased level of awareness to the residents living in areas where rail 

activity is high as to not only the threats inherent in our rail system, but also to 

the actions that can be taken to reduce those risks. 

The protection of rail and public transportation systems in our country is of vital 

importance. The members and Board of Directors of Citizens for Rail Safety applaud 

the efforts of this Committee in the creation of the ‘‘Rail and Public Transportation 

Security Act of 2007’’ that has outlined a variety of actions to bring about a safer 

and more secure rail system. 

For far too long the security and safety of our freight and passenger rail systems 

have been overlooked. We are encouraged that this new legislation will begin the 

process of securing our nation’s vast rail system and we look forward to working 

with you on this endeavor. 

Mr. CUELLAR. I want to thank the witnesses, all of you, for being 

here, for your valuable testimony, for your time for answering our 

questions, and, of course, the members for the questions that have 

been asked. 

The members of the committee may have additional questions for 

the witnesses, and we ask that you respond expeditiously in writing to those questions. 

Hearing no further business, the committee stands adjourned. 

[Whereupon, at 1:11 p.m., the committee was adjourned.] 

(109) 

FOR THE RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTIVE

IN CONGRESS FROM THE STATE OF TEXAS

Over the past month, this Committee has heard testimony on the important issue 

of rail, mass transportation, and over-the-road bus security. After hearing the experts’ testimony, I, like many Americans, continue to be shocked at the lack of attention and oversight in transportation security—specifically, in the areas of rail 

and mass transit. I know there are many priorities this Congress faces, but I believe 

that in light of the horrid events of 9/11, Madrid, London, and Mumbai that we 

must do something to secure our transportation systems—it is with that conviction 

that I seek to address these issues. The recent world events are a wake-up call that 

we must do more to secure our transportation systems, and we must act quickly and 

responsibly. I firmly believe that this legislation will take an important step in securing our transportation systems. 

As far back as 1995 in Hyder, Arizona, we have seen how terrorist acts severely 

impact our economy and transportation systems. In the 9/11 attacks, two of New 

York City’s busiest transit stations were lost and considerable damage occurred to 

the tunnel structures, endangering hundreds of lives underground. This damage 

was so great that in the immediate aftermath of 9/11, Congress appropriated $1.8 

billion to rebuild subway infrastructure that was damaged in the attacks. 

Ultimately, making this bill into law takes a step forward towards protecting the 

more than 11.3 million passengers in 35 metropolitan areas and 22 states who use 

commuter, heavy, or light rail each weekday. 

The RAND Corporation database of worldwide terrorist incidents, between 1995 

and June 2005 indicated that there were over 250 terrorist attacks worldwide 

against rail targets, resulting in almost 900 deaths and over 6,000 injuries. These 

numbers do not include those killed or injured in the London and Mumbai attacks 

in 2005 and 2006. 

Despite all of these attacks, rail and public transportation security remains secondary to aviation. The time has come for this Committee and this Congress to let 

the American people know where we stand on the issue of rail and mass transit 

security. The question for us to resolve is simple—Do we truly believe that it is acceptable to spend approximately 1 penny on rail security compared to 9 dollars 

spent on air security? For me, the answer is clear and by voting to pass this bill, 

I want everyone to know that we are taking serious steps to advance rail and mass 

transit security. 

This bill authorizes more than $5.1 billion dollars for the next four years, for rail, 

mass transit, and bus security. With this bill—for the first time—we will have comprehensive vulnerability assessments and security plans for rail, mass transit and 

buses. 

Most importantly, this bill finally does something to help our frontline workers, 

who have been left out in the cold when it comes to security training. Labor organizations have repeatedly called for additional training for rail and mass transit employees. The absence of mandated security training stands in stark contrast to other 

transportation sectors in the United States, such as the maritime sector, and that 

conducted by other countries, such as the United Kingdom. 

For example, shortly after 9/11, the Amalgamated Transit Union (ATU) conducted 

a survey of its members and found that 80% reported that their employers had not 

provided them with any security training. In a subsequent survey in the fall of 

2005, approximately 60% of ATU members had still not received training in emergency preparedness and response. 

This bill provides the framework by which to create an ongoing and constant oversight process for transportation security. Working with other federal government 

agencies, the Department of Homeland Security will monitor and assess the 

progress made by transportation providers and their workforces. Lastly, this bill will 

110 

finally authorize some much needed human resources to the Transportation Security Administration in the form of 600 additional rail security officers. 

I want to thank my colleagues for all of their hard work and dedication to these 

important issues, and I look forward to the witnesses’ testimony. 

(111) 

A P P E N D I X E S 

Appendix 1: Railroad Security Research and Development Program 

Freight and passenger railroad security would be enhanced if funding were provided for research and development and other projects, including the following: 

• Automated inspections of rail cars—Build on existing ‘‘machine vision’’ and 

other technologies to develop tools to identify unknown objects (e.g., explosive 

devices) and substances (e.g., chemical or radioactive agents) on freight and passenger rail cars. 

• Communications-based train control—Further enhance train control systems 

to protect passengers, trains, and/or hazardous cargo from unsafe use. 

• Emergency bridge replacement—Test and develop ways to rapidly replace 

large railroad bridges damaged by terrorist acts in order to maintain the fluidity of the rail network, minimize economic disruptions, and enhance mobility. 

• Sealing rail cars—Develop technologies to automatically seal leaks or 

breaches on railroad tank cars. 

• Tampering resistance and detection—Test and develop ways to increase the 

resistance of critical rail infrastructure and equipment to tampering and identify track and equipment that has been subject to tampering efforts. 

• Right-of-way integrity monitoring—Develop a comprehensive system to ensure 

that railroad rights-of-way are unobstructed and intact prior to the approach of 

a train, especially on routes with high-density passenger operations or hazmat 

movements. 

• Bridge and tunnel inspections—Develop infrared, machine vision, or other 

technologies to automatically monitor the integrity of bridges and tunnels and 

the presence of unauthorized personnel and equipment. 

• Signal system security at turnouts—Test and develop ways to verify that rail 

switches and turnouts are properly set and secure. 

• Computer security—develop new technical standards governing security for 

railroad computer systems and ways to mitigate damages in the event of a 

cyber attack. The logical focal point of this R&D effort would be Railinc, a subsidiary of the AAR located in Cary, North Carolina, that focuses on rail-related 

information technology. 

• National transportation security research consortium—Create a steering committee of government and industry security and operations experts to evaluate 

proposed projects and technologies related to rail security and identify those 

with the most promise. TTCI could act as program manager for such an endeavor. 

• National railroad emergency operations center—Develop a single database and 

location from which all emergency responders could receive information vital. 

Currently, such information must be obtained from several different sources. 

• Rail infrastructure test and training facility—Create a new facility at TTCI 

that includes mock-ups of bridges, tunnels, and underground stations, to simulate responses to fires, noxious gases, explosions, and other incidents, and to 

test new technologies for detection, containment, and treatments. 

(113) 

3The delay in implementation is due to an FRA request. 

Appendix 2: Hazardous Materials Movements by Rail 

Each year, 1.7 to 1.8 million carloads of hazardous materials (hazmat) are transported by rail in the United States, with two-thirds moving in tank cars. ‘‘Toxic inhalation hazards’’ (TIH)—gases or liquids, such as chlorine and anhydrous ammonia, that are especially hazardous if released—are a subset of hazardous materials 

and are a major (though not exclusive) focus of hazmat-related rail safety efforts. 

In each of the past couple of years, railroads have transported just over 100,000 carloads of TIH, virtually all in tank cars. 

Railroads recognize and deeply regret the occurrence of a few tragic accidents involving hazardous materials over the past couple of years. Nevertheless, the rail 

hazmat safety record is extremely favorable. In 2005, 99.997 percent of rail hazmat 

shipments reached their final destination without a release caused by an accident. 

Railroads reduced hazmat accident rates by 86 percent from 1980 through 2005. 

Still, no one disputes that efforts should be made to increase hazmat safety and 

security where practical. Railroads understand this better than anyone. Today, the 

federal government, through the railroads’ common carrier obligation, requires railroads to transport these materials, whether railroads want to or not. And while accidents involving highly-hazardous materials on railroads are exceedingly rare, history demonstrates that railroads can suffer multi-billion dollar judgments, even for 

accidents where no one gets hurt and the railroads do nothing wrong. In essence, 

the transport of highly-hazardous materials is a ‘‘bet the business’’ public service 

that the government makes railroads perform. 

Railroads face these huge risks for a tiny fraction of their business. In 2005, railroads moved just over 100,000 TIH carloads and nearly 37 million total carloads. 

Thus, shipments of TIH constituted only about 0.3 percent of all rail carloads. The 

revenue that highly-hazardous materials generate does not come close to covering 

the potential liability to railroads associated with this traffic. Moreover, the insurance industry is unwilling to fully insure railroads against the multi-billion dollar 

risks associated with highly-hazardous shipments. And even though TIH accounts 

for a tiny fraction of rail carloads, it contributes approximately 50 percent to the 

rapidly-rising overall cost of railroad insurance. 

For all these reasons, the current environment for the rail transportation of highly-hazardous materials, especially TIH, is untenable. This leads to our recommendation that Congress should limit railroads’ liability for carrying hazardous materials, 

perhaps modeled after the Price-Anderson Act. 

In the meantime, railroads support prompt, bold actions by all stakeholders to reduce the risks associated with hazmat transport. Railroads themselves are taking 

the lead: 

• In December 2006, an industry committee approved a new standard for chlorine and anhydrous ammonia tank cars that will significantly reduce the risk 

of a release. (Anhydrous ammonia and chlorine combined account for around 80 

percent of rail TIH movements.) The standard will be phased in beginning in 

2008.3

• As noted earlier, railroads help communities develop and evaluate emergency 

response plans; provide training for more than 20,000 emergency responders 

each year through their own efforts and the Transportation Community Awareness and Emergency Response Program (TRANSCAER); and support Operation 

Respond, a nonprofit institute that develops technological tools and training for 

emergency response professionals. 

• Railroads work closely with chemical manufacturers in the Chemical Transportation Emergency Center (Chemtrec), a 24/7 resource that coordinates and 

communicates critical information for use by emergency responders in mitigating 

hazmat incidents. 

• Upon request, railroads provide local emergency response agencies with, at a 

minimum, a list of the top 25 hazardous materials transported through their 

communities. The list helps responders prioritize emergency response plans. 

114 

4Terrorism and the Chemical Infrastructure: Protecting People and Reducing Vulnerabilities, 

National Research Council—Board on Chemical Sciences and Technology, May 2006, p. 106. 5 Homeland Security: DHS is Taking Steps to Enhance Security at Chemical Facilities, but Additional Authority is Needed, Government Accountability Office, January 2006, p. 7. 

• For trains and routes carrying a substantial amount of highly-hazardous materials, railroads utilize special operating procedures to enhance safety. 

• Railroads participate in a variety of R&D efforts to enhance tank car and 

hazmat safety. For example, the Tank Car Safety Research and Test Project 

(which is funded by railroads, tank car builders, and tank car owners) analyzes 

accidents involving tank cars to help identify the causes of tank car releases and 

prevent future occurrences. 

• In addition to implementing their Terrorism Risk Analysis and Security Management Plan, railroads are working with DHS and the DOT to identify opportunities to reduce exposure to terrorism on rail property. 

• Railroads offer hazmat awareness training to all employees who are involved 

in hazmat transportation. Employees responsible for emergency hazmat response 

efforts receive far more in-depth training. 

• Railroads are pursuing a variety of technological advancements to enhance 

rail safety, including hazmat safety. 

• Railroads are working with TIH manufacturers, consumers, and the government to explore the use of coordinated routing arrangements to reduce the mileage and time in transit of TIH movements. 

Manufacturers and consumers of hazardous materials should take a number of 

steps to help ensure hazmat safety. 

First, concerted efforts should be made to encourage development and utilization 

of ‘‘inherently safer technologies,’’ which involve the substitution of less-hazardous 

materials for highly-hazardous materials, especially TIH, in manufacturing and 

other processes. As noted in a recent report by the National Research Council (part 

of the National Academy of Sciences), ‘‘the most desirable solution to preventing 

chemical releases is to reduce or eliminate the hazard where possible, not to control 

it.’’ Ways this can be achieved include ‘‘modifying processes where possible to minimize the amount of hazardous material used’’ and ‘‘[replacing] a hazardous substance with a less hazardous substitute.’’ 4 In a similar vein, in a January 2006 report, the Government Accountability Office (GAO) recommended that the Department of Homeland Security ‘‘work with EPA to study the advantages and disadvantages of substituting safer chemicals and processes at some chemical facilities.’’ 5

One real-world example of product substitution occurred at the Blue Plains wastewater treatment facility just a few miles from the U.S. Capitol. Like many wastewater treatment facilities, Blue Plains used chlorine to disinfect water. Not long 

after 9/11, the facility switched to sodium hypochlorite, a safer alternative. 

Railroads recognize that the use of TIH cannot be immediately halted. However, 

over the medium to long term, product substitution would go a long way in reducing 

hazmat risks. 

Second, manufacturers and receivers of TIH, in conjunction with railroads and the 

federal government, should continue to explore the use of ‘‘coordination projects’’ to 

allow TIH consumers to source their needs from closer suppliers. For manufacturers 

and users, this could involve ‘‘swaps.’’ For example, if a chlorine user contracts with 

a chlorine supplier located 600 miles away, but another supplier is located 300 miles 

away, the supplier located 600 miles away might agree to allow the closer shipper 

to supply the user. 

Third, hazmat consumers and manufacturers should support efforts aimed at increasing tank car safety and reliability. Recently, for example, the FRA, Dow Chemical, Union Pacific, and the Union Tank Car Company announced a collaborative 

partnership to design and implement a next-generation railroad tank car. (TTCI has 

been selected to support testing and developments initiatives related to this project.) 

The government too has a key role to play. First, if the government requires railroads to transport highly-hazardous materials (via their common carrier obligation), 

it must address the ‘‘bet the company’’ risk this obligation forces railroads to assume. 

Second, the government should help facilitate the ‘‘coordinated routing arrangements’’ and ‘‘coordination projects’’ mentioned earlier. 

Third, the government should encourage the rapid development and use of ‘‘inherently safer technologies’’ to replace TIH and other highly-hazardous materials. 

Fourth, the government should reject proposals that would allow state or local authorities to ban hazmat movements through their jurisdictions. Bans would not 

eliminate risks. Instead, bans would shift risks from one place to another and from 

one population to another. In doing so, bans could foreclose routes that are optimal 

115 

6 It has been estimated, for example, that a ban on hazmat transport through the District of 

Columbia would result in some 2 million additional hazmat car-miles as carriers had to use circuitous alternative routes. 

in terms of overall safety, security, and efficiency and force railroads to use less direct, less safe routes. The result would likely be an increase in exposure to hazmat 

release and reduced safety and security.6

If hazmat transport were banned in one jurisdiction, other jurisdictions would 

want to follow suit. Already, numerous cities across the country are considering 

hazmat bans. An integrated, effective national network requires uniform standards 

that apply nationwide. If policymakers determine that hazmat movements should be 

banned, they should be banned nationwide, not locality-by-locality. 

Finally, the government should reject proposals that would force railroads to provide local authorities advance notification of hazmat movements through their jurisdictions because hazmat prenotification would not accomplish the goals of those 

seeking it. Upon request, railroads already notify communities of, at a minimum, 

the top 25 hazardous commodities likely to be transported through their area. Railroads also provide training for hazmat emergency responders in many of the communities they serve, and already have procedures in place to assist local authorities 

if a hazmat incident occurs. Thus, information obtained by local authorities through 

a pre-notification system would not improve their ability to respond to hazmat incidents in any meaningful way. 

Moreover, at any one time, thousands of carloads of hazmat are moving by rail 

throughout the country, constantly leaving one jurisdiction and entering another. 

The vast majority of these carloads do not—and due to the nature of rail operations, 

cannot be made to—follow a rigid, predetermined schedule. The sheer quantity and 

transitory nature of these movements would make a workable prenotification system extremely difficult and costly to implement for railroads and local officials alike. 

That’s why the fire chief of Rialto, California, commented, ‘‘You’d have to have an 

army of people to stay current on what’s coming through. I think it wouldn’t be almost overwhelming. It would be overwhelming.’’ The greater the number of persons 

to be notified, the greater the difficulty and cost. 

In the event of a hazmat incident, train consists are available to emergency responders, and railroads, at TSA request, have agreed to provide movement data on 

all TIH cars. 

Finally, pre-notification would vastly increase the accessibility of hazmat location 

information. Making this information more accessible could increase vulnerability to 

terrorist attack by magnifying the possibility that the information could fall into the 

wrong hands. 

(117) 

Appendix 3: Legislative and Regulatory Requirements and Recommended 

‘‘Best Practices’’ Related to Homeland Security That Directly or Indirectly 

Call for Criminal Background Checks for Persons With Access to Railroad 

Property 

• On June 23, 2006, DHS and DOT released their Recommended Security Action Items for the Rail Transportation of Toxic Inhalation Hazard Materials. 

‘‘Establishing procedures for background checks and safety and security training for contractor employees with unmonitored access to company-designated 

critical infrastructure’’ was one of the recommended voluntary best practices for 

the rail industry in this report. On February 12, 2007, DHS and DOT released 

a supplement that affirmed this guidance. 

• DOT regulations (Title 49, Part 1572) require that employees who perform locomotive servicing or track maintenance and are required to operate motor vehicles that contain a certain minimum amount of hazardous materials must 

have a hazardous materials endorsement (HME) on their commercial driver’s license. To obtain an HME, a criminal background check must be performed. 

• Railroad employees who require access to port facilities are required to hold 

transportation worker identification credentials (TWIC), a credentialing process 

required by DHS. Eventually, DHS plans to require a TWIC card for all transportation workers, including contractors, whose job may require unescorted access to a secure area or transportation industry. TWIC credentialing includes 

a criminal background check. 

• The Customs-Trade Partnership Against Terrorism (C–TPAT) program, a 

part of the SAFE Ports of 2006 Act that was signed into law in October 2006, 

is a voluntary government-business initiative to strengthen and improve overall 

international supply chain and U.S. border security. C–TPAT gives strong emphasis to background checks for rail employees, contractors, and others who 

have access to rail facilities. 

Under C–TPAT’s minimum security criteria for railroads, ‘‘background 

checks and investigations shall be conducted for current and prospective 

employees as appropriate and as required by foreign, federal, state and 

local regulations. . . .Once employed, periodic checks and reinvestigations 

should be performed based on cause and/or the sensitivity of the employee’s 

position.’’ Rail carriers ‘‘should strongly encourage that contract service providers and shippers commit to C–TPAT security recommendations.’’ Moreover, the Supply Chain Security Best Practices states that ‘‘Temporary employees, vendors, and contractors. . .are subject to the same background investigations required of the Company’s permanent employees.’’ 

• Regulations governing the transport of hazardous materials (49 CFR, Part 

172.802) require carriers of certain hazardous materials to develop and implement security plans. These plans must address personnel security by implementing measures to confirm information provided by job applicants for positions that involve access to and handling of hazardous materials covered by the 

security plan. 

(119) 

Appendix 4: The E-RailSafe Appeals Process 

The e-RailSafe program is an initiative developed by the Class I freight railroads 

to safeguard railroad personnel, assets and customer shipments. The program was 

developed by U.S. and Canadian railroads in partnership with e-Verifile.com, Inc. 

Railroads electing to use e-RailSafe are requiring contractors doing or seeking to do 

business with them to obtain credentials for their employees through the e-RailSafe 

program, a web-based service at www.erailsafe.com. The program provides testing, 

background checks, and badges for current contractor employees and future applicants. The website provides answers to frequently asked questions and will soon include a description of the appeals process. 

Enrolling in e-RailSafe 

Contractors log into the website and input basic information into the e-RailSafe 

system about the employees they wish to be issued credentials for work on railroad 

property. When the applicant completes his or her log on, a nationwide background 

investigation is triggered. While not all railroads use the same criteria, in general 

an applicant can be denied access to railroad property if he or she has had a felony 

conviction within the last seven years or has been in prison within the last five 

years on a felony conviction. A history of misdemeanors for crimes of concern may 

also trigger a denial of property access. After the investigation is complete, the applicant is approved or denied access onto railroad property. If approved, a credential 

is sent to the contractor to disburse to his or her employee. 

Applicants Denied Access to Railroad Property 

An applicant denied access to railroad property through the e-RailSafe 

credentialing program will be directly informed of the decision by correspondence 

from e-RailSafe. That letter will also include a description of the appeals process 

available to the applicant. E-RailSafe will also inform the applicant?s employer that 

credentials have been denied to the applicant and provide appeal guidance to the 

contractor. Both the contractor company and the contractor employee can appeal directly to e-RailSafe. 

An applicant will have 15 working days from the date posted on the letter received from e-RailSafe to appeal the decision. If the applicant requires additional 

time to gather documentation, the applicant can notify e-RailSafe of his or her intention to appeal and is afforded an additional 15 working days to submit his or 

her appeal and supporting documentation. The appeal should include the following: 

• Individual’s name 

• Contractor company’s name 

• Mailing address 

• E-Mail address 

• Daytime telephone 

• Justification for Appeal (brief explanation) 

Once e-RailSafe receives the appeal and supporting documentation, e-RailSafe 

must forward the applicant?s appeal to the appropriate railroad within 24 hours for 

expedited review. 

The railroad must render a decision on the appeal no later than 10 working days 

from the date of receipt from e-RailSafe of the applicant?s appeal. The appeals 

boards within each railroad will include at a minimum a person from the railroad 

police, human resources and legal departments. The decision on the appeal will be 

communicated back to e-RailSafe by the railroad. E-RailSafe will promptly notify 

the applicant as well as the applicant’s employer of the decision on the appeal. 

120 


11012-4.eps
(121) 

Appendix 5: Questions and Responses 

SUBMITTED ON BEHALF OF THE ASSOCIATION OF AMERICAN RAILROAD BY EDWARD R. 

HAMBERGER IN RESPONSE TO HON. BENNIE G. THOMPSON QUESTIONS

Question 1.: Your industry has continuously resisted mandatory security plans 

and vulnerability assessments, which will be required by this legislation. However, 

ports, the chemical industry, and the aviation industry all have to submit mandatory plans to DHS. Why do you feel your industry should be excluded from 

this requirement? 

The Association of American Railroads does not object to the federal government 

requiring railroads to develop and implement security plans based upon risk assessments. Indeed, railroads have already met this requirement. Railroads implemented 

security plans based upon risk assessments in 2001 and continue to review and refine their plans. However, the industry prefers an iterative federal review process 

rather than an approval process which is not sufficiently flexible to accommodate 

rapid changes in the security environment. 

Question 2.: According to the GAO, the FRA has been focusing its efforts to improve rail safety, addressing issues such as human error, inspections, and rail track 

failure. It seems that the industry views safety as a bigger, more pressing concern 

than the risk of terrorism. Is there a nexus between safety and security concerns? Where do those issues overlap and where do they diverge? 

The AAR does not believe that the rail industry’s (or, for that matter, the FRA’s) 

efforts to enhance rail safety in any way detract from rail security. On the contrary, 

safety and security for railroads are interconnected: a safer workplace will tend to 

be a more secure workplace, and a more secure workplace will tend to be a safer 

workplace. 

Rail safety is constantly improving. In fact, based on preliminary data, 2006 was 

the safest year ever for railroads by the most important rail safety measures. Railroads are justifiably proud of this accomplishment and will continue to try to make 

their operations even safer in the years ahead. 

At the same time, rail security is constantly improving too. The AAR’s testimony 

recounted many of the huge variety of actions the industry and individual railroads 

have taken to raise the baseline of railroad security—actions that were taken without waiting for legislation or a regulatory regime to tell them to do so. 

For both agencies to function effectively there must be a clear understanding of 

the proper roles of the FRA and the TSA. Railroads are comfortable that a proper 

understanding has been reached, and are committed to work with each agency and 

with other appropriate parties to ensure that rail safety and security continue to 

improve. 

Question 3.: What measures have been or can be implemented that serves 

both purposes of safety and security? 

Examples of measures that serve both safety and security include the use of railroad police, workforce training and inspections of track, tunnels and bridges. 

Question 4.: How have you determined the greatest risk of attack for 

your system? What is the greatest risk? 

In 2001, AAR brought together more than 150 railroad and counterterrorism experts to perform a comprehensive risk analysis of freight railroad operations. The 

experts identified critical assets (both physical and IT), vulnerabilities, potential 

consequences of an attack, and the general terrorist threat based upon known terrorist objectives, capabilities and tactics. Since that time, the Department of Homeland Security has not provided AAR with intelligence information that is contrary 

to the industry’s risk analyses and planning assumptions. For example, there has 

never been a terrorist attack on freight railroads in the United States or in any 

other country. AAR continues to watch terrorist activities worldwide and is available 24x7 to DHS officials in the event DHS receives information that might indicate a threat to freight or passenger railroads. AAR offers to brief the Committee 

more fully in closed session. 

122 

Question 5.: Given the open nature of passenger rail systems—multiple 

access points, large crowds of people, and no barriers—can anything be 

done to protect these systems? 

Securing rail passenger systems is a formidable task. AAR member passenger 

railroads have developed security systems that include multiple layers of defense, 

including passenger awareness campaigns, police force presence, and use of canine 

teams. With greater resources, passenger operators can increase police and canine 

forces in stations, passenger waiting areas, and on train cars. The American Public 

Transportation Association, representing public transit and commuter rail, has testified on this subject. 

Question 6.: The Port Authority of New York and New Jersey released a report 

recently that the PATH train tunnels that run under the Hudson River are more 

susceptible to attack than previously thought. What steps are being taken to ensure the security of the tunnels in New York and elsewhere? 

The Association of American Railroads does not represent the owners of the PATH 

train tunnels under the Hudson River. This question should be posed to the Port 

Authority of New York/New Jersey and APTA. The safety and security of tunnels 

on Amtrak’s Northeast Corridor have long received the attention of the railroad 

and.federal authorities. Numerous Congressional hearings over the years have elicited detailed testimony as to the problems and solutions. Improvements using federal dollars continue to be made for the protection of the traveling public. The 

freight railroads have an extensive inspection program for tunnels and bridges. 

Question 7.: How much money will it cost to ensure that these tunnels are 

secure and who should pay for these security upgrades? 

The Association of merican Railroads is not in a position to answer this question. 

The Class 1member freight railroads of the Association of American Railroads pay 

for their own security upgrades as part of their operating costs. 

Question 8.: It has been noted that there are far too few federal inspectors to cover the 230,000 miles of track in this country. 

In addition to the continuous inspections undertaken by the freight industry itself, 

there are approximately 400 railroad safety inspectors employed by the Federal 

Railroad Administration and an additional 160 railroad safety inspectors employed 

by the states. These 560 inspectors examine some 219,000 miles of track on a regular basis. Using a comparison of the safety inspections for the railroad industry 

(FRA) and the federal safety inspections of the manufacturing industry as a whole 

by OSHA, there is clearly a much stronger record of inspections in the railroad industry than elsewhere. Comparing FRA inspections to OSHA inspections, there are 

4,113 inspections per 1000 employees in the railroad industry versus 0.34 inspections per 1000 employees in general manufacturing. In the railroad environment, 

there are 2.38 federal safety inspectors per 1000 employees versus 0.02 federal safety inspectors per 1000 employees in the general manufacturing sector. Given the extraordinary safety record of the railroad industry—with last year being the safest 

year on record—we do not agree with the notion that there are insufficient numbers 

of federal inspectors. 

Question 9.: What is your response to criticism that the industry cannot 

be trusted to police itself? 

This is totally at odds with the facts. In fact, railroads did not wait for the government to act before moving decisively to enhance security. Immediately after the 

events of 911, the industry mobilized a task force of outside security and terrorism 

experts to work with the industry to assess vulnerabilities and develop a comprehensive risk-based security plan. We were one of the first if not the very first 

industry to do that. The result was a comprehensive security plan that has been 

widely praised and resulted in more than 50 permanent changes in the way we do 

business. In addition, it outlines more than 100 additional actions railroads will 

take in response to credible threats at higher alert levels. Railroads did this because 

we take seriously the role we play in maintaining the safety and security of our employees, customers and the communities in which we operate. 

Question 10. Doesn’t the fact that since your members are in business to 

make money, there might be an incentive to cut corners on things like security from terrorist acts? Especially in light of the fact that the Administration doesn’t seem to think rail security is a priority? 

The exact opposite is true. It is because our members are in business to make 

money that there is an incentive to have as effective a security plan as possible. 

Any terrorist attack that disrupts the rail network would have a devastating impact 

on railroad service, revenues and profitability. Thus it is in our own self interest 

123 

not to cut comers on security—or safety for that matter—but rather to enhance it. 

Railroads do not cut corners when it comes to either safety or security, as evidenced 

by the fact that 2006 was the safest in history in terms of both train accident rates 

and employee casualty rates. 

Question 11.: In 2007, 2 boys, a 16 and 13 year old, escaped from a juvenile detention home in Nelsonville, Ohio and took a 12 mile joyride in a stolen train before 

they were caught. How can the American public have any peace of mind 

about the security of our nation’s rail system when children can break in 

undeterred and commandeer a train? 

Terrorists can find far more accessible and vulnerable targets than can be reached 

through a stolen locomotive. The potential result of attempting to take a locomotive 

is far too uncertain for terrorists to find it attractive. They can find far more accessible and vulnerable targets elsewhere. The incident referred to in this question involved the Hocking Valley Scenic Railway, a short excursion railway that hauls 

tourists and operates largely with volunteers. Class I railroad employees receive robust safety and security training, and are trained to disable a train when it is unattended. It is doubtful those volunteers receive the same sort of security and safety 

training as do the employees of major freight railroads. Among other things, Class 

I railroad employees are trained to disable the locomotive when leaving it unattended. 

Question 12.: What role, if any, did the federal government play in AAR’s 

Terrorism Risk Analysis and Security Management Plan? Has DHS given 

you any feedback or guidance with regard to the plan? Have you shared 

this plan with the unions? 

The Department of Transportation and the Department of Defense provided guidance to AAR in the conduct of risk analyses and the development of a 4-alert level 

security plan of action. For example, DOT’S Office of Security and Intelligence (S– 

60) and DOD provided threat information and assisted railroad staff in obtaining 

security clearances. AAR regularly consulted the Federal Railroad Administration 

throughout the planning process to ensure consistency with safety regulations. It 

should be remembered that DHS did not exist in 2001 when the railroads developed 

their security plan. FRA provided very positive feedback with respect to the industry plan. AAR has conducted several in-depth briefings for TSA officials and staff, 

including at least two briefings on risk assessment methodologies used by the industry. TSA has visited each of the Class 1railroads at least once to review how each 

railroad has implemented the industry plan. No corrective action has been required. 

AAR interprets this in a positive light even though TSA has not provided formal 

feedback on the industry plan to AAR. 

To protect against divulging vulnerabilities, the detailed security plan is not available to labor unions, posted on web sites, or otherwise publicly available. A general 

description of the security plan has been available on our website for many years. 

Railroad employees, such as railroad police, operations officers, and IT security officers, who are responsible for carrying out specific actions at various alert levels are 

fully aware of their responsibilities and are periodically tested through industry 

table top exercises. Rank and file employees receive general security awareness 

training and, when the alert level changes, specific instructions in their areas of operation. 

Question 13.: I was disturbed to read the article by Carl Prine, ‘‘Terror on the 

Tracks.’’ How can you explain a journalist being able to walk on a rail yard 

unchallenged and get close enough to hazmat shipments and other rail infrastructure to leave his business card behind? What was the response of 

your industry to this expose? What have you done to make our nation’s rail 

yards more secure in light of this report? 

First and foremost we continuously remind our employees to report any suspicious 

activities or any suspicious individuals on railroad property. Securing the nation’s 

rail network would be impossible if it depended upon always keeping people away 

from trains and tracks. The rail network includes 140,000 route miles, more than 

1.3 million freight cars (including some 250,000 tank cars). To provide continuous 

and complete security along that entire network at all times is as impossible as it 

is to provide complete security along our nation’s entire highway network and to 

every single tank truck. Mr. Prine could also have approached the millions of trucks 

in rest stops and placed his business card there, as well as on buses and passenger 

trains. But that would prove as little about the state of security for those modes 

as it does for rail security. The best security plan is one that is able to find out 

about an attack before it happens so that it can be prevented from happening at 

all. That is why railroads have adopted a plan that relies heavily on intelligence 

124 

to prevent an attack or take appropriate counter measures. It should also be noted 

that at this point, there has never been a credible threat of an attack on a U.S. 

freight train. Indeed, all terrorist attacks up to now have been on passenger trains, 

not freight trains. 

Question 14.: TSA started working to secure the aviation system in late 

2001; it was heavily criticized for not involving aviation stakeholders in its 

efforts. In response TSA committed to taking steps to enhance its coordination with stakeholders in the future. Is it your opinion that rail and mass 

transit stakeholders are appropriately involved as TSA moves forward with 

current and future security efforts, such as the recently issued proposed 

rule on rail? 

AAR and individual railroads formally commented on the TSA notice of proposed 

rulemalung. It is vitally important for TSA to enhance coordination with the rail 

industry to avoid unintended negative consequences of government action. AAR and 

its member railroads are always available for TSA to consult, either through formal 

rulemaking or through the Critical Infrastructure Protection Advisory Council 

(CIPAC) process if security-sensitive matters are to be discussed. In addition, the 

AAR maintains a security Operations Center at the SECRET level should TSA wish 

to communicate classified threat information via secure communications. 

Question 15.: TSA issued rail security directives in May 2004. What was the 

industry’s reaction to these standards and how could they be improved? 

The Association of American Railroads joined with then DHS Secretary Tom 

Ridge in a press conference to support the initiative. The directives were issued on 

an emergency basis following the Madrid bombings and apply to passenger rail operations and the freight railroads that host such operations. Now, three years later, 

TSA and all stakeholders should review the directives for their cost and effectiveness. Money devoted to implementing some of these directives might be better spent 

investing in more visible security measures, such as canine teams. Also, the role of 

TSA’s surface transportation inspectors should be reviewed with an eye toward 

transforming them into operational security forces to add positive protection to rail 

passengers as federal air marshals provide to airline passengers. 

Question 16.: TSA continues to emphasize the importance of carriers identifying 

and reporting security risks to homeland security officials. Has your industry promoted whistleblower protections so that employees can report security 

concerns without fear of retaliation or retribution from employers? 

The safety and security of the nation’s rail system is the industry’s highest priority. Railroads strongly encourage their front-line employees, who are the industry’s eyes and ears, to report any suspicious activity or behavior to their supervisor. 

Railroads do not object to equitable whistleblower protections for workers, but they 

do not believe that there should be one set of rules for whistle blowing on safety 

matters and a different set of rules for whistle blowing on security matters. Creating a new, separate system under the aegis of the Department of Labor is both 

unnecessary and potentially confusing. 

Question 17.: TSA has recently issued a Notice of Proposed Rulemaking (NPRM) 

that would impose several new security requirements for rail carriers, rail transit 

systems, and rail operations at certain facilities that ship or receive hazardous materials. As part of this proposal, TSA would require rail and transit operators (as 

well as hazmat facilities) to allow physical inspection of their operations. In addition, chain of custody and hazmat tracking requirements will need to be enforced. 

How many additional TSA inspectors do you anticipate will be needed for 

this expanded role? Do you agree with the rule? 

The Association of American Railroads does not take a position on the number 

of TSA inspectors that would be required to implement the NPRM. The nation’s 

freight railroads have every incentive to secure hazmat shipments. If properly 

trained, TSA inspectors could provide operational security for hazmat shipments. 

The Association of American Railroads filed detailed comments on the TSA NPRM 

which are attached. 

Question 18.: What effect will this rule have on your industry as a result 

of real world implementation? 

The real-world impact depends upon the final rule. AAR explained in its comments that certain rule interpretations by TSA would create unmanageable situations for freight railroads, causing for example the shift of TM shipments off the 

rails and onto the highways. 

Question 19.: Will this rule improve security of hazmat transport? 

125 

If properly structured, the rule could lead to enhanced security for hazmat shipments by rail. 

Question 20.: It is my understanding that as drafted the NPRMs recently 

released by TSA and DOT will preclude state and local officials from mandating the rerouting of hazardous material. This seems very favorable to 

industry and detrimental to security of our high population urban areas. 

How can you justify this provision in the NPRMs? 

It is important to recognize that federal preemption has been and remains an essential aspect of federal railroad safety law. The guiding principle underlying federal railroad safety law is that safety and efficiency are best promoted if one set 

of uniform regulations applies to railroads: preemption assures, consistent with the 

commerce clause, that different or conflicting requirements can’t be imposed at the 

state or local level and that federal regulations must remain the standard of conduct 

for railroads nationwide; 

In 1970, after extensive consideration, Congress concluded that because of the 

railroad industry’s interstate nature, safety is best served by uniform nationwide 

regulations and that railroad safety would not be ‘‘advanced sufficiently by subjecting the national rail system to a variety of enforcement in 50 different judicial 

and administrative systems.’’ Therefore, Congress gave the Secretary plenary power 

over rail safety and expressly preempted state law wherever the Secretary of Transportation has issued a regulation or order covering the subject matter of the state 

law. Since 1970, DOT has issued numerous regulations and orders governing many 

aspects of rail safety, regulations that are reviewed and updated as dictated by experience and new technology. 

Without federal preemption, the railroads would be subject to innumerable state 

and local laws and ordnances. The result would be the disintegration of the efficient 

national rail network for hazardous materials transportation. 

Mandatory rerouting would not eliminate risks, but would simply shift them from 

one place to another and from one population to another. In doing so, it could foreclose routes that are optimal in terms of overall safety and security. Because railroads have limited routing options, rerouting could add hundreds of miles and several days to a hazmat shipment. Additional switching and handling of cars could 

be needed, as could addtional dwell time in yards. 

The result of these and other factors would likely be an increase in exposure to 

hazmat release and reduced safety and security. 

Moreover, if hazmat transport were banned in one jurisdiction, other jurisdictions 

(including perceived ‘‘low threat7’ areas that did not want to see increased hazmat 

traffic because of mandatory rerouting elsewhere) would be sure to follow suit. Already, numerous cities across the country are considering hazmat bans. 

Banning hazmat transport by rail in even one city would be problematic, but banning them in cities throughout the country would virtually shut down hazmat shipments by rail. Indeed, the clarity and efficiency that uniform national standards 

bring would be lost if local andlor state governments could dictate what types of 

freight could pass through their jurisdictions. This problem would be especially 

acute for railroads, whose network characteristics and limited routing options mean 

that disruptions in one area could have profound impacts hundreds or thousands 

of miles away. These disruptions would negatively impact all rail traffic, not just 

hazmat traffic. For all these reasons, the provision of the NPRM maintaining federal preemption is appropriate. 

An integrated, effective national network requires uniform standards that apply 

nationwide. If policymakers determine that hazmat movements should be banned, 

they should be banned nationwide, not locality-by-locality. 

Question 21.: What do you feel is the carriers’ role in providing security 

training for its employees? 

Railroads provide general security awareness training for rank and file employees, 

including a training program developed by Rutgers University’s National Transit Institute. Employees with specific responsibilities to carry out provisions of company 

security plans receive detailed instructions as to required actions at various threat 

levels and are tested periodically through industry table top exercises. 

Question 22.: Do you wish you had more guidance from DHS on this 

issue? 

Railroads are always open to new training materials and techniques. TSA has indicated it is developing employee security training with respect to EDidentification. 

Unfortunately, TSA has not coordinated this effort with the railroad industry. AAR 

is concerned that this training could cause an employee to put him or herself in 

harm’s way which is contrary to industry policy. 

126 

Question 23.: Do you think TSA should mandate security training for 

mass transit employees? 

The Association of American Railroads does not represent mass transit rail. This 

question should be posed to the American Public Transportation Association. 

Question 24.: What are the costs of securing our rail and mass transit systems? 

The Association of American Railroads does not represent mass transit rail and 

therefore cannot answer the question as it relates to mass transit systems. This 

question should be posed to the American Public Transportation Association. 

With respect to the cost of securing the nation’s freight rail systems, the AAR has 

not undertaken a comprehensive assessment of all security-related expenditures 

made by our member railroads since the implementation of the AAR’s Terrorism 

Risk Analysis and Security Management Plan in 2001. This would be a difficult exercise as railroads’ accounting systems do not contain a separate account for security expenses. 

The Terrorism Risk Analysis and Security Management Plan which governs the 

security operations of the AAR’s member railroads are risk-based. Costs associated 

with security measures are ramped up significantly as threat-level alerts are elevated. At the highest alert levels, the AAR estimates that railroads would not be 

able adequately to guard all critical infrastructure assets for an extended period of 

time. It is for this reason that the AAR seeks the cooperation of the state governors 

to deploy National Guard assets when such conditions would warrant. 

The following provides a few examples of security expenditures by freight railroads: • Railroad police programs (industry-wide, includes personnel, equipment, ca- nines) $202 million annually, over $1 billion since 9/11). The entire amount arguably is not devoted to counter-terrorism per se, but at the same time it is 

often difficult to differentiate between counter-terrorism and police activity that 

provides security to railroad employees and the property of rail customers. Railroads carry large volumes of high-value commodities, the theft and sale of 

which could generate funds for terrorist activities; 

• One railroad’s redundant control center for disaster recovery ($15 million): • One railroad’s IT security, including system upgrades, labor and training ($15 

million); 

• DHS/CBP security requirements for cross-border rail transportation caused 

railroads to increase physical security and add technology such as CCTV, access 

controls and alarms. To accommodate CBP personnel who operate VACIS machines, railroads had to build new tracks and inspection facilities at border 

crossings. At one border crossing point, one railroad spent approximately $10 

million for initial construction and overall security costs. The same railroad estimates expenses of $1.4 million for camera and sensor upgrades in 2007 and recurrent annual costs of adding resources at more that $300,00 at the same border crossing. 

• Associated expenses due to train delays caused by CBP inspections have cost 

one railroad at least $1 million at that one border crossing. 

Question 25.: How would you compare the risks facing the passenger rail 

systems with the risks faced by other modes of transportation? Is the current allocation of federal resources for rail security commensurate with the 

unique risks these systems face? 

Based on an AAR and ST/PT–ISAC analysis of available threat information, the 

commuter and passenger rail systems face substantially greater risk of terrorist attack than the freight rail industry. While many terrorist attacks globally that have 

been directed at railroads transporting freight. AAR has no information regarding 

threats to other modes of transportation. 

Question 26.: In your written testimony, you state that only ‘‘four of the 

seven Class 1 railroads are participating in e-RailSafe. What companies 

have not yet implemented the program? 

The e-RailSafe program was instituted in late 2005. Of the seven Class 1 railroads, CSX, Canadian Pacific (CP) and Kansas City Southern (KCS) have not yet 

implemented the program. All have contracts with e-/RailSafe and plan to implement the e-RailSafe program in the near future. 

Question 27.: Do you think that there is a substantial nexus between the 

disqualifying offenses and the jobs performed? If so, what is it? 

The e-RailSafe background check program is designed to preclude employees of 

contractors who have been convicted of core crimes of concern from gaining access 

to Class 1 railroad property. Core crimes of concern include felony crimes against 

127 

1Transportation Worker Identification Implementation in the Maritime Sector; Final Rule, 

January 25,2007. 

persons such as assault, rape and murder, property crimes such as theft, burglary 

and arson, societal crimes such as people smuggling, narcotics crimes and prostitution, and federal crimes such as train wrecking. Persons convicted of-felony crimes 

determined by the railroads to be core crimes of concern are deemed potential 

threats to the railroad workforce, its property, and for customer shipments. Even 

when a conviction is not directly related to the job to be performed, the conviction 

may be considered an indication that a necessary personal qualification -integrity, 

reliability, honesty -is missing. Courts have also ruled that employers can be held 

liable for the damaging actions of their employees, including the employees of contractors, if based on that person’s previous actions, he or she should have been disqualified for the job. 

Question 28.: In your written testimony, you state that police are examining the disqualifiers used by individual railroads under the e–RailSafe 

program. What is the purpose of the examination? 

The railroad police of the Class 1railroads are regularly reviewing the implementation of the e-RailSafe program. Part of this ongoing review includes efforts to 

standardize elements of the background check process among all member railroads. 

On March 6,2007, the railroad police agreed to a common list of core crimes of concern as automatic disqualifiers. 

Question 29.: You have stated that the disqualifiers in the e–RailSafe program should not necessarily be the same as disqualifiers under government-sponsored programs. Why should the disqualifiers be different when 

consistency in ‘‘rolling out9’ a program like this is of premiere importance? 

The purposes of federal government credentialing programs (such as the transportation worker identification card (TWIC) and the hazardous materials endorsement 

(HME)) and the e- RailSafe program are very different. In the case of the TWIC, 

the federal government determined that the credentialing is required ‘‘to prevent 

those who may pose a security threat from gaining unescorted access to secure areas 

of ports.’’ 1 It is an access control measure aimed at protecting ports against terrorist 

activity. The TWIC disqualifiers are ostensibly aimed at weeding out potential terrorists. As a consequence TWIC disqualifiers include crimes such as espionage, sedition, and treason. Other dsqualifying criminal offenses are included presumably as 

possible indicators that a person would be susceptible to committing terrorist activities. 

In the case of the e–RailSafe program, the credentialing is required to prevent 

harm to the railroad’s workforce, property and customer shipments. It is an access 

control measure aimed at protecting persons and property against harm from a variety of persons, not just would-be terrorists. The TWIC disqualifiers, for example, do 

not include felony theft, the unlawful use of controlled substances in violation of federal drug and alcohol rules, or attempted train wrecking. In the railroad environment, persons with such felony convictions in their immediate past represent a potential threat to railroad workers and property. 

Question 30.: You go on to cite TWIC permanently disqualified as an example. Are you of the opinion that workers who commit these crimes 

should be able to work for rail companies within seven years? 

The TWIC final rule lists 12 permanent disqualifiers including (1) espionage; (2) 

sedition; (3) treason; (4) a federal crime of terrorism; (5) a crime involving a transportation security incident; (6) improper transportation of a hazardous material; (7) 

unlawful possession, use, sale, distribution, manufacture, purchase, receipt, transfer, or storage of explosive devices; (8) murder; (9) making certain threats; (10) violations of RICO; (11) attempts to commit crimes 1—4;and (12) conspiracy or attempt 

to commit crimes 5—10. 

The e-RailSafe program does not include any ‘‘permanent’’ disqualifiers. In general, member railroads are concerned with felony crimes that have occurred within 

the last 7 years. 

Question 31.: If someone is convicted of a felony in one jurisdiction, but 

they are now working in a jurisdiction where the crime they committed is 

merely a misdemeanor, how is that reconciled? 

The e-RailSafe program flags individuals who have felony convictions in their 

past, regardless of the jurisdiction in which they occurred. 

Question 32.: With the appeals process recently agreed upon by rail companies, who in the company will hear an impacted worker’s appeal? 

128 

The background check appeals board within each railroad includes at a minimum 

three individuals: one from the railroad police force, one from human resources, and 

one from the legal department. 

Question 33.: Chris Kozub from the National Transit Institute (NTI) has testified 

before our Committee on training for mass transit employees. In his testimony, he 

stated that NTI and FTA’s training had reached about 20% of the transit employee 

workforce which is approximated to be about 300,000. As of today that number has 

increased to slightly higher than 30%. While reaching 90,000 employees—many of 

whom are employed by the larger, security critical, metropolitan systems of the 

country—is a noteworthy accomplishment, NTI is still below the halfway point and 

has a lot of work still to do. Do you feel that this ’is adequate to give workers 

the tools they need to respond to or prevent a disaster? 

The Association of American Railroads does not represent mass transit rail. This 

question should be posed to the American Public Transportation Association. 

Question 34.: Do you feel that the federal government should be responsible for ensuring that all employees receive training? 

The railroads have already entered into a voluntary agreement with TSA regularly to reinforce security awareness and operational security concepts to all employees at all levels of the organization. As detailed in our testimony, the freight railroad industry is providing security training to the railroad workforce through a cooperative program with the Rutgers University National Transit Institute (NTI). 

Our industry takes seriously the responsibility to provide appropriate security training to our workforce. We do not believe it is the responsibility of the federal government to oversee the training of the nation’s private sector workforce. 

Question 35.: Is the President’s budget request reasonable to help secure 

the nation’s rail and mass transit systems? Is the disproportionately low 

amount of TSA’s budget ($41.4 million out of $6.4 billion) dedicated to rail 

and mass transit security an indication to your organization that it is not 

a priority of DHS? 

The Association of American Railroads has not taken a position on the President’s 

budget request. 

Question 36.: What are your thoughts in the utilization of security practices used by other countries? With which practices were you most impressed? Which do you think could be effectively implemented in the US? 

AAR is not aware of unique practices used by foreign countries to secure freight 

rail operations. The North American freight rail industry is the envy of freight rail 

operators worldwide for its efficiency, safety, and security. AAR routinely hosts visitors from foreign countries who seek to learn the keys to a sound, privately-owned 

freight railroad network. 

HON. KIP HAWLEY RESPONSES TO QUESTIONS FROM HON. BENNIE G. THOMPSON

Question 1.: What proactive measures has the Administration taken to 

prevent terrorist attacks to mass transit and rail infrastructure? 

Response: The Department of Homeland Security (DHS) has consistently stated 

that mass transit security and passenger rail security are a shared responsibility 

among a variety of stakeholders, including state, local, and Federal agencies, and 

private owners and operators. The primary focus for the Department and the Transportation Security Administration (TSA) has been on information sharing, preparedness, domain awareness, training, and using a risk-based management approach to 

maximize the impact of available resources through random, visible security activities. We have employed wide-ranging strategies that engage our stakeholders and 

help ensure the security of mass transit and passenger rail systems. These strategies include: 

• Regional Groups 

• TSA Field Presence 

• National Explosives Detection Canine Team Program 

• Security Training 

• Grant Programs 

• Visible Intermodal Prevention and Protection Teams (VIPR) 

Regional Groups 

The creation of regional groups enhances coordination and improves communication among Federal, State, and local governmental partners and area mass transit 

stakeholders. This strategy has been implemented through various programs and 

initiatives in the past year. The creation of these groups helps to establish a forum 

129 

and process for more effective communication and information exchange among various governmental agencies and public transportation stakeholders. For example: 

• Through the National Infrastructure Protection Plan (NIPP), the Department 

has established a forum and a process for more effective communication and information exchange among various agencies and with the public transportation 

stakeholders. In January 2006, TSA led the formation of the Transportation 

Sector Government Coordinating Council (TSGCC). Among its initial actions, 

the TSGCC called for the establishment of coordinating councils in each of the 

transportation modes. 

• In March 2006, TSA led the effort to organize the Transit, Commuter and 

Long–Distance Rail Government Coordinating Council (TCLDR–GCC). This 

body brings together representatives from DHS, the Department of Transportation (DOT), TSA, the Federal Transit Administration (FTA), and the Federal 

Bureau of Investigation in a networked, collaborative process to develop consistent and effective security strategies and programs. 

• The TCLDR–GCC engaged stakeholders in the passenger rail and mass transit communities to establish a Mass Transit Sector Coordinating Council. Participating entities include American Public Transportation Association (APTA), 

the Community Transport Association of America, and individual transit agencies representative of the community in system size and geographic spread. 

• In support of these efforts, DHS established the Critical Infrastructure Partnership Advisory Committee (CIPAC) (as announced in the Federal Register on 

March 24, 2006 [Volume 71, Number 57, pages 14930–33]). CIPAC provides a 

process for engagement between GCCs and SCCs on a broad spectrum of collaborative security-related activities. 

• In August 2005, the Department initiated the interagency Passenger Rail and 

Rail Transit Information Pilot Program. This program is aimed at knocking 

down any bureaucratic hurdles in the handling and dissemination of information by Federal entities. It ensures decision makers at all levels have a comprehensive and accurate picture of the state of passenger rail and rail transit 

security, and has streamlined procedures that improve communication and information sharing with stakeholders during both normal operating periods and 

emergencies. By integrating a network approach to the Federal Government entities involved in transit security, this program ensures the coordinating forums 

act upon timely and reliable information. 

• TSA is working with DHS/G&T and DOT/FTA on developing the National Resource Center (NRC). The NRC will provide a comprehensive database allowing 

the transit industry to access information on a broad spectrum of subjects pertinent to transit security. Presently, this information is not readily available in 

any consolidated format. As an initial product of this effort, a periodic newsletter will be prepared and coordinated by TSA. This newsletter will provide 

items on Federal transit security initiatives; recent suspicious activity reporting 

with security context; and updates on model security practices observed in Surface Transportation Security Inspection program (STSI) assessments, technology programs, and other areas of interest. The newsletter will also incorporate effective security practices and items of general interest from transit 

agencies. 

TSA Field Presence 

Another key component of DHS’s security strategy for rail and transit systems is 

TSA’s field presence. We build upon the work done by the Department, the FTA, 

the Federal Railroad Administration, and industry, which has conducted numerous 

vulnerability and readiness self-assessments. 

Through STSI, TSA has deployed 100 inspectors to 18 field offices across the 

country. These inspectors provide support to our Nation’s largest railroads and mass 

transit systems, performing frequent inspections of key facilities, including stations 

and terminals, to identify potential threats. Inspectors are actively engaged in a 

range of security enhancement programs, such as assessing transit systems postures 

in implementing core transit security fundamentals and comprehensive security action items. Inspectors also conduct systematic examinations of stakeholder operations, including compliance with security requirements; identification of security 

gaps; and development of effective practices. The program’s consistent presence and 

engagement with transit system security officials fosters an integrated approach to 

security enhancement efforts. 

Field activities also assess compliance with security requirements and implementation of noncompulsory security standards and protective measures with the objective of a broad-based enhancement of passenger rail and rail transit security. 

Through the Baseline Assessment for Security Enhancement (BASE), inspectors reVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00133 Fmt 6601 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
130 

view the implementation by mass transit and passenger rail systems of the 17 Security and Emergency Management Action Items (security action items) that TSA and 

the FTA jointly developed, in coordination with the Mass Transit Sector Coordinating Council. This initiative aims to elevate security posture throughout the mass 

transit and passenger rail mode by implementation of baseline security measures 

adaptable to the operating circumstances of any system. 

TSA’s surface inspectors are actively engaged in performing Security Analysis and 

Action Programs (SAAPs), which constitutes a systematic vulnerability assessment 

of a mass transit or passenger rail system. The program utilizes several different 

tools to identify vulnerabilities based on specific scenarios, such as an IED on a passenger train. SAAPs can be conducted on individual critical infrastructure facilities 

or entire rail systems, with particular emphasis on critical control points. TSA focuses attention on six Transit Security Fundamentals that provide the essential 

foundation for a successful security program. 

TSA deploys inspectors to serve as Federal liaisons to mass transit and passenger 

rail system operations centers and provide other security support and assistance in 

periods of heightened alert or in response to security incidents. TSA initiated this 

component of STSI program responsibilities in the aftermath of the attacks on the 

London transit system in July 2005. TSA inspectors are deployed to operations centers of transit systems in their areas to assess the security response and serve as 

liaisons for information and coordination of resource support from the Federal Government. Since this initial deployment, inspectors have developed relationships with 

security officials in transit systems in their areas, coordinated access to operations 

centers, participated in or observed exercises, and provided other assistance consistent with the overall objective of enhancing security through collaborative effort. 

TSA conducts vulnerability assessments of High Threat Urban Area (HTUA) rail 

corridors where toxic inhalation hazard (TIH) shipments are transported. In December 2006, TSA introduced a package of new security measures that will require 

freight rail carriers to ensure 100 percent positive hand-off of TIH materials, establish security protocols for custody transfers of TIH rail cars in the high threat urban 

areas, and appoint a rail security coordinator to share information with the Federal 

Government, as well as formalizing TSA?s freight and passenger rail inspection authority. 

Over the last year, detailed region-wide rail corridor assessments were completed 

in Houston, Buffalo, and northern New Jersey, and a fourth assessment is in the 

early stages of completion for the Los Angeles area. The HTUA corridor assessments 

provide site-specific mitigation strategies and lessons learned as well as tactics that 

can be modified for use at the corporate or national level. HTUA corridor assessments supported the development of the Recommended Security Action Items issued 

by DHS and DOT on June 23, 2006. These performance-based SAIs were developed 

to foster an enhanced security posture in the freight rail mode in general and specifically targeted the transport of TIH materials. These practices have been agreed 

to in binding commitments by the Nation’s railways, and form the basis for pending 

regulation. 

Buttressing these regional efforts is an expansion of explosives detection capabilities. The Department is aggressively testing screening technologies, with an emphasis on practical use in a transit environment and mobility. These new technologies 

include: 

• Developing and deploying chemical detection equipment in segments of the 

Washington, D.C., New York City, and Boston rail systems; 

• Testing the ‘‘movable checkpoint’’ equipment, which can fit into two standardsize shipping containers and be rapidly deployed for use in screening and detection at any major system in the country in a particular threat situation; 

• Developing new surveillance camera systems designed to detect human anomalous behavior for use with surveillance/closed circuit television camera systems; 

• Evaluating new explosives detection equipment by field testing its effectiveness in partnership with the Port Authority of New York and New Jersey; and 

• Testing a detection system in Baltimore in partnership with the Maryland 

Transit and State authorities to ascertain its ability to identify explosive compounds on passengers before they board a train. 

By continuing these initiatives, the Department plans to identify optimal technological solutions that expand detection capabilities for explosives and chemical, biological, and radiological weapons. 

National Explosives Detection Canine Team Program 

Through the National Explosives Detection Canine Team program, teams are 

being trained, certified, and deployed by TSA to passenger transit systems. Since 

131 

late 2005, TSA’s National Explosives detection Canine Team Program has worked 

in partnership with passenger transit systems to train, certify, and deploy 53 explosives detection canine teams to 13 major systems in a risk-based application of resources. Forty of these teams are currently in place and 13 are projected for training, certification, and deployment in the coming months. 

The TSA-trained and certified teams provide strong detection and deterrent capabilities and can be sent quickly to key junction points across systems, stations, terminals, and other facilities. This resource provides a visible and effective detection 

and deterrence presence in the public transportation system and can be surged to 

other venues as threats dictate. Teams can post at key junctions or points within 

systems, stations, terminals, and facilities, and deploy throughout rail systems. Random deployment heightens the deterrent effect. The Department provides funding, 

training, and management to the National Explosives Detection Canine Team program. 

Security Training 

Training and public awareness are crucial, strategic underpinnings to enhancing 

rail security. DHS is involved in several training initiatives, including: 

• Funding several Land Transportation Anti–Terrorism Programs that provide 

training to local authorities in protecting land transportation infrastructure, including rail, light rail, and mass transit; 

• Partnering with the FTA on Connecting Communities, a series of forums to 

help transportation and emergency response agencies work together to prepare 

and protect their communities; 

• Working on the development of an interactive computer-based program for 

both passenger and freight rail employees to provide the knowledge and skills 

necessary to identify security threats, observe/report suspicious activities and 

objects, and initiate action to mitigate, or recover from, a threat or incident; and 

• Supporting the Transit Watch Program, led by FTA, which provides a nationwide safety and security awareness program to passengers and employees 

through both printed materials and CD–ROM format. 

Grant Programs 

To foster continued development of effective transit security programs, the Department administers the Transit Security Grant Program (TSGP) focused on rail 

transit, intracity bus, and ferry systems. A network integrating the Department’s 

Office of Grants and Training, TSA, and FTA has been established to provide assistance to eligible transit systems in completing applications for award. Both in funding allocations and priorities, this year’s program reflects the Department’s riskbased approach to security. 

The program guidelines and application materials were recently published. Factors considered in evaluating proposals include the enhancement of capabilities to: 

(1) deter, detect, and respond to terrorist attacks employing improvised explosive devices; (2) mitigate high consequence risks identified in individual transit system risk 

assessments; (3) implement technology for detection of explosives and monitoring for 

suspicious activities; (4) improve coordination with law enforcement and emergency 

responders; and (5) expand security training and awareness among employees and 

passengers. 

TSA uses the TSGP to drive improvement in the six security fundamental areas 

mentioned earlier, including training for key personnel, drills and exercises, and 

public awareness and preparedness. The $175 million TSGP is the centerpiece of 

DHS’s interagency strategy to close gaps between operator security status and baseline standards. For purposes of the TSGP, ‘‘transit’’ includes Amtrak, which is eligible for $8.3 million, and commuter ferry systems, which are eligible for $7.8 million. 

The TSGP guidance emphasized the six fundamental principles as well as efforts 

in support of the national preparedness architecture. We expect to direct transit 

grant awards based on our system assessments, security fundamentals, and support 

of national preparedness. DHS leverages the grants program to close the gaps at 

high risk properties. 

For example, in Mass Transit, attacks by improvised explosives devices (IEDs) 

presented high risk; our field assessments determined that lack of training was a 

vulnerability, and we applied grants funding to close the gap. Alread implemented 

and showing results. TSA considers this to be an effective strategic approach. 

VIPR Teams 

Additional security resources are applied through the development of VIPR 

Teams, which are deployed randomly. VIPR teams add to TSA’s strategy of layered 

security, and introduce an element of unpredictability to disrupt potential terrorist 

planning activities. Consisting of personnel from the Federal Air Marshal Service 

132 

(FAMS), STSI, and explosives detection canine teams, VIPR teams were created as 

a way to prepare for emergency situations in which TSA assets would be invited 

to assist a local transit agency. VIPR teams allow TSA and local entities to develop 

templates that can be immediately implemented in emergency situations. FAMS 

participation in VIPR deployments are planned for brief periods and are scheduled 

not to interfere with normal aviation operations. Using advanced screening technology, these teams provide the capability to leverage a variety of resources quickly 

and effectively. The deployments are designed to raise the level of security anywhere in the country. The teams work with local security and law enforcement officials to supplement existing security resources and provide deterrent presence and 

detection capabilities. More than 25 VIPR exercises have been conducted at key 

commuter and regional passenger rail facilities, and more are planned throughout 

2007. 

Question 2.: Each mode of transportation presents its own risks. How would 

you characterize the risks faced by passenger rail systems? How would you 

compare these with the risks faced by other modes of transportation? Is 

the current allocation of federal resources for rail security commensurate 

with the unique risks these systems face? 

Response: The Transportation Security Administration (TSA) takes a network 

approach to transportation security and views it as a shared responsibility and effort among all of TSA; the Department of Homeland Security (DHS); other government agencies and entities at all levels, including Federal, State, local, tribal and 

territorial; and owner-operators. 

The difference in Federal funding for aviation and surface transportation does not 

present the complete picture. Whereas Federal funding constitutes a substantial 

portion of aviation security monies, the Federal portion for surface transportation 

security constitutes a much smaller percentage of the total spent for surface transportation. When the money spent by private industry, states, and localities is added 

to the Federal portion, the total funds for surface transportation security are commensurate with the risk. 

Much of the Nation’s aviation infrastructure is federally owned. Surface modes of 

transportation are approximately 95 percent privately owned and operated. They receive security funding support from multiple streams (i.e., State, local, private, as 

well as Federal). The Department has consistently stated that responsibility for surface transportation security is a shared responsibility among a variety of stakeholders, including State, local, and Federal agencies, and private owners and operators. The appropriate role for the Federal government includes: using the substantial resources already in place and providing critical information; setting national 

priorities; developing transportation security fundamentals; coordinating ongoing efforts; and encouraging certain actions that reduce risk to the Nation’s transportation system. 

The bulk of Federal spending in aviation security has covered the compensation 

and benefits of Transportation Security Officers, who work every day in more than 

450 airports nationwide to ensure the skies remain secure. Aviation security allows 

for point defense. We can seal off an area of the airport and only permit entry to 

those with tickets who have passed through screening. 

The rail and mass transit modes do not accommodate this type of approach. These 

systems operate over a broad geographic spread with numerous stations and transfer points providing the efficiency and fast-pace that are essential to moving thousands of passengers, particularly during daily rush hours. The point defense approach taken at the airports is neither practicable nor desirable. Rather, an integrated strategy, tapping the strengths of the Federal government, State and local 

governments, and passenger rail and mass transit agencies, must be pursued. 

In evaluating the resources required to address surface transportation risk issues, 

it is important to take into account not just TSA’s budget and statutory obligations 

in aviation, but also the substantial efforts, capabilities and expertise that already 

exist in the surface transportation environment, as well as very different operating, 

legal, and resource requirements. Therefore, the level of TSA’s budget allocated to 

surface transportation security relative to aviation does not and cannot reflect the 

overall relative risk between them. In fact, TSA does give attention and priority to 

surface transportation, but TSA’s role relative to the security partners in the 

networked approach is different than it is in aviation. 

TSA has looked across all modes of transportation and set risk-based priorities. 

These priorities are used to focus TSA’s attention and resources on the most critical 

issues. TSA has conducted or participated in various risk analyses that compare 

risks across different transportation modes, including most recently the DHS Strategic Homeland Infrastructure Risk Assessment (SHIRA). Surface transportation, 

133 

transit, and rail are currently high priorities for TSA. The level of funding is determined by the degree to which TSA can effectively mitigate the risks, compared to 

the degree with which industry and other stakeholders are able to mitigate the 

risks. 

For transit, a top priority is high density passenger transit systems in urban 

areas with underwater or underground tunnels. The risk of an improvised explosive 

device attack in a mass transit environment has been repeatedly demonstrated 

throughout the world, including London, Madrid, and India. Consequently, TSA 

augmented its security efforts in Mass Transit to include: Visual Intermodal Protection and Response (VIPR) teams; bomb-sniffing dogs; assistance with training and 

managing system-owned explosive detecting canines; and a range of pilot and experimental screening, detection, and deterrence programs. 

In addition, TSA is also working to improve the risk basis for the Transportation 

Security Grant program. While the criteria for allocating grants among large transit 

systems continue to evolve, the criteria for approving specific project plans for actually spending the money is tightly focused on projects that mitigate prioritized risks. 

Question 3.: What methods are being used to analyze and characterize 

the nature of various risks to rail and other modes of surface transportation? 

Response: The Transportation Security Administration (TSA) has been working 

continuously to update and expand its assessments of threats and vulnerabilities in 

the transportation sector. TSA uses these assessments in conjunction with our security partners in government and industry to mitigate risk by operationalizing intelligence and addressing vulnerabilities. 

Headquarters Analysis 

TSA’s layered approach to security seeks to identify and deter threats well before 

they reach the Nation’s airports, railways, highways, mass transit, ports and pipelines. Transportation-specific intelligence is critical to TSA’s overall risk-based security strategy, and its products provide a threat framework to prioritize security resources and operationalize intelligence. Two of TSA’s operational programs have 

field units—the Office of Security Operations, which is responsible for both aviation 

Transportation Security Officers (TSO) screening and surface inspector operations, 

and the Office of Law Enforcement, which is responsible for the Federal Air Marshal Service (FAMS). These elements incorporate intelligence into their operations 

and plans on a daily basis, acting or deploying on the basis of the latest information. 

TSA also coordinates closely and shares information with other Department of 

Homeland Security (DHS) components, the intelligence and law enforcement communities, other government departments and agencies, such as the Department of 

Transportation (DOT), and the transportation industry. These security partners provide intelligence and, especially in industry, are often well-positioned to 

operationalize transportation-specific intelligence by adjusting their business or security operations. 

TSA’s Office of Intelligence has produced classified and unclassified annual threat 

assessments for each transportation mode and the cargo/supply chain sector since 

2004. These reports are disseminated throughout TSA, DHS, and private industry. 

Other Office of Intelligence products include: 

• Transportation Intelligence Gazette 

• Special Threat Assessments 

• Weekly Field Intelligence Report 

• Suspicious Incidents Report 

• Intelligence Notes 

• Transportation Situational Awareness Notes 

TSA is also conducting specific analyses related to underwater mass transit tunnels. In October 2006, an Underwater Tunnel Working Group was established consisting of members from various DHS and DOT entities. This interagency team has 

taken significant steps to identify vulnerabilities of underwater tunnels and implemented aggressive mitigation strategies to protect high-risk and high-consequence 

tunnel infrastructure in both the short and long term. 

Field Assessments 

At the field level, TSA conducts various assessments which are either explicitly 

vulnerability assessments or at least provide vulnerability-related information. In 

all cases, they further TSA’s risk-based security strategy and are described below. 

Corporate Security Reviews 

A Corporate Security Review (CSR) evaluates corporate level security policies, 

practices, and procedures. Specific CSR evaluation criteria have been established for 

the pipeline, rail, and highway modes. The CSR criteria identify a desired baseline 

134 

of security for a company, and the accumulation of individual assessments establishes an actual baseline in a given industry or mode, as well as potentially identifying best practices and common concerns. 

In the highway mode, TSA entered into agreements with 37 State departments 

of transportation or bridge administrations to conduct CSRs of their facilities and 

critical infrastructure. In addition, TSA conducts CSRs of motor coach, school bus, 

and trucking companies. By the end of fiscal year 2006, 71 CSRs had been conducted in the highway mode. Additionally, 950 CSRs were conducted by the Missouri Commercial Motor Vehicle Inspectors under a pilot project that TSA is currently evaluating. 

In the pipeline mode, a total of 54 CSRs have been conducted, including seven 

reviews in fiscal year 2006 with companies that represent approximately 60 percent 

of the product transported through the Nation’s pipelines. In addition, TSA has 

joined with Natural Resources Canada to conduct four security assessments for critical cross-border energy pipeline systems. 

TSA has also developed a CSR program in the rail mode and will be conducting 

assessments in spring 2007. 

TIH Rail Assessments 

TSA conducts vulnerability assessments of High Threat Urban Area (HTUA) rail 

corridors where toxic inhalation hazard (TIH) shipments are transported. Over the 

last year, detailed region-wide rail corridor assessments were completed in Houston, 

Buffalo, and northern New Jersey, and a fourth assessment is in the early stages 

of completion for the Los Angeles area. The HTUA corridor assessments provide 

site-specific mitigation strategies and lessons learned as well as tactics that can be 

modified for use at the corporate or national level. HTUA corridor assessments supported the development of the Recommended Security Action Items (SAI) issued by 

DHS and DOT on June 23, 2006. These performance-based SAIs were developed to 

foster an enhanced security posture in the freight rail mode in general and specifically targeted the transport of TIH materials. These practices have been agreed to 

in binding commitments by the Nation’s railways, and form the basis for pending 

regulation. 

Surface Transportation Security Inspectors (STSI) 

BASE Reviews 

Within the last year, the STSI program has conducted 26 Baseline Assessments 

for Security Enhancement (BASE reviews) as part of a program to conduct security 

reviews of the 50 largest transit systems nationwide. The BASE process reviews security procedures put in place by a transit (rail and bus) system to assist in evaluating the performance of its security system. BASE is not a compliance inspection, 

but rather a collaborative effort between the stakeholder and TSA. No enforcement 

actions occur as a result of BASE. To conduct this joint review, STSIs meet with 

security representatives of the transit agency to review the agency’s pertinent documents. 

Security Action Items (SAI))—Non-regulatory inspections 

To gain an understanding of the degree of implementation across the Nation, railroad carriers of TIH materials, DHS and DOT agreed to conduct SAI Implementation Surveys (SAIIS) of freight rail operations. These surveys are conducted by 

STSIs. The surveys are not compliance inspections, but rather assessments to determine the depth and degree of employee security awareness and security action item 

implementation. The results of the SAI Surveys will be reviewed and the data used 

to guide future policy decisions regarding the security of hazardous material rail 

shipments. Since October 2006, STSIs have conducted 165 field site visits of freight 

railroad yards and facilities and interviewed 2,600 front line railroad workers. 

Security Analysis and Action Programs (SAAP)—Risk Assessments 

STSIs conduct Security Analysis and recommend an Action Program. SAAPs are 

full risk assessments of transit and rail systems. They are not compliance inspections. An SAAP assessment rigorously analyzes the likelihood and consequence of 

the threat stream matrix for the rail environment and analyzes the effectiveness of 

countermeasures to manage risk effectively. SAAPs leverage the DHS Vulnerability 

Identification Self Assessment Tool (VISAT). 

The STSI program has completed full SAAP assessments on the following rail systems: 

• Virginia Railway Express 

• Alaska Railroad 

• Tri—Met (Portland, Oregon) 

135 

Question 4.: TSA has recently issued a Notice of Proposed Rulemaking (NPRM) 

that would impose several new security requirements for rail carriers, rail transit 

systems; and rail operations at certain facilities that ship or receive hazardous materials. As part of this proposal, TSA would require rail and transit operators (as 

well as hazmat facilities) to allow physical inspection of their operations. In addition, chain of custody and hazmat tracking requirements will need to be enforced. 

How many additional inspectors does TSA anticipate will be needed for 

this expanded role? Will additional funds be necessary? 

Response: Initial rollout of the Transportation Security Administration’s (TSA) 

rail transportation security final rule will be handled with existing resources. TSA 

is currently evaluating any additional requirements. We anticipate that the Surface 

Transportation Security Inspectors (STSI) will inspect railroads and rail chemical 

facilities for adequate physical security measures surrounding rail secure areas and 

records documenting a proper chain of custody, completion of the Department of 

Transportation’s requirement for a security inspection, and the appointment of a 

Rail Security Coordinator. 

Question 5.: How would you characterize TSA’s efforts in securing the 

passenger and freight rail system? What should be the federal government’s top priority in securing the passenger rail system? 

Response: The Transportation Security Administration (TSA) pursues a riskbased, threat managed, layered approach to security in transportation, including 

passenger rail, mass transit, and freight rail. This approach starts by leveraging the 

work of other U.S. Government and allied foreign entities through effective gathering, analysis, and dissemination of intelligence and through information sharing. 

The disruption of the terror plot in the United Kingdom in summer 2006 and 

other threats illustrate the necessity of this approach. The best defense is one that 

prevents the terrorists from ever entering the United States. Aviation system security measures provide a significant barrier to entry for potential terrorists coming 

to our country. Our government’s investments and improvements in terrorism watch 

lists, border security, and intelligence networks significantly enhance surface transportation security. As a strategic and operational priority, TSA complements these 

efforts by pursuing the expansion of visible, unpredictable deterrence environments 

in our surface transportation systems to disrupt terrorists? planning and preparation activities and execution of their missions. 

In securing transportation systems, we employ a network approach. While each 

transportation mode has its own security challenges, there are common 

vulnerabilities and mitigation strategies. In an effort to employ the range of security 

resources most effectively, we work closely with transportation networks to leverage 

our security impact and determine risk-based priorities. 

Building on this approach, TSA implements a comprehensive strategy that applies 

a common methodology across all transportation networks, regardless of mode. That 

strategy is straightforward. It consists of five elements: 

• Assess industry threat, vulnerability, and consequence; 

• Develop baseline security standards; 

• Assess actual security status against baseline security standards; 

• Develop plans to close gaps between actual status and baseline security 

standards; and 

• Develop enhanced systems of security. 

The top priorities in passenger rail security are encompassed within three guiding 

principles for the application of these elements: 

• Focused effort to mitigate high consequence risk; 

• Expanded employment of random, unpredictable deterrence; and 

• Elevation of the security baseline through training, drills and exercises, and 

public awareness campaigns. 

Question 6.: As TSA started working to secure the aviation system in late 2001, 

it was heavily criticized for not involving aviation stakeholders in its efforts. In response, TSA committed to taking steps to enhance its coordination with stakeholders in the future. 

What steps is TSA taking to ensure that rail and mass transit stakeholders are appropriately involved as it moves forward with current and 

future security efforts, such as the recently issued proposed rule on rail? 

Response: A close partnership and information sharing with stakeholders is 

paramount to enhancing the security of mass transit and passenger rail and is an 

integral element of the Transportation Security Administration’s (TSA) overall strategy. We are furthering this strategy through constructive engagement with governmental security partners; communications with transit system operating and secuVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00139 Fmt 6601 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
136 

rity officials; regional collaboration, and semiannual roundtables with transit officials. 

TSA operates in the framework developed under the National Infrastructure Protection Plan to ensure effective engagement and coordination with rail and mass 

transit stakeholders. On the Federal side, the entities responsible for rail and transit security have organized in Government Coordinating Councils (GCCs); these are, 

respectively, the Freight Rail GCC and Transit, Commuter and Long Distance Rail 

(TCLDR) GCC. Stakeholders in these modes have organized into Sector Coordinating Councils (SCCs), respectively the Freight Rail SCC and the Mass Transit 

SCC, bringing together key management and trade association officials in these industries. 

The councils meet independently to develop priorities and positions and jointly to 

develop and implement security strategies and programs. The Critical Infrastructure Partnership Advisory Council (CIPAC), established by Secretary Chertoff to 

cover all critical infrastructure sectors, provides the process that enables consensusbased engagement among the councils. Intermodal issues are addressed by the 

Transportation Sector GCC under this process. 

TSA has utilized the Freight Rail Sector Coordinating Council (FRSCC) as a 

means to include stakeholders in developing programs and policies to enhance the 

security of the freight rail network. The FRSCC was one mechanism in the development of the Freight Rail Modal Implementation Plan, an annex to the Transportation Sector Specific Plan. Additionally, TSA has developed and continually refines 

stakeholder relationships through the High Threat Urban Area Rail Corridor Assessments. In this capacity, stakeholders, including the affected carriers, and State 

and local government entities are involved in assessing high traffic rail corridors to 

identify mitigation strategies. 

In the passenger rail and mass transit mode, TSA has established the Transit Policing and Security Peer Advisory Group. Formed under the auspices of the GCC/ 

SCC framework, TSA works with transit agency security professionals to harness 

the application of resources and the development of programs to maximize the impact in enhancing security. The Advisory Group brings together the expertise of 13 

transit police chiefs and security directors from systems across the Nation as a 

sounding board and liaison group to advance effective security programs. 

To advance regional engagement and maximize application of available security 

resources, TSA is leading the formation of regional public transportation GCCs and 

encouraging public transportation stakeholders in metropolitan areas throughout 

the United States to form regional SCCs. These councils will foster development and 

communication of coordinated policies and positions on matters in transportation security and operational efficiency. Members of the respective councils will engage in 

collaborative efforts to develop and implement security strategies, plans, and programs under the CIPAC. Through regional engagement and regional deployment of 

resources, TSA seeks to advance the use of a full spectrum of available resources 

from Federal, State, and local governmental entities and the area transit systems 

in a concerted effort to disrupt the terrorists’ ability to orient planning and preparation activities. This regional deployment approach entails developing and implementing a sustainable program to elevate security posture through information 

sharing, visible and random deterrent activities, and enhancing vigilance through 

security training and awareness programs. 

Twice yearly, TSA and the Federal Transit Administration host Transit Security 

Roundtables, bringing together the security chiefs and directors of the Top 50 transit agencies (by passenger volume) in a working group forum to tackle specific security challenges. 

Question 7.: Why hasn’t TSA required security training for rail and mass 

transit employees? 

Response: The Federal Government currently has security training requirements 

in place in both passenger and freight rail. The Transportation Security Administration and the Federal Transit Administration’s (FTA) Rail Fixed Guideway Systems: 

State Safety Oversight Rule, title 49, Code of Federal Regulations (49 CFR), section 

659.19 (k)(7), requires that system safety plans include the process used by the rail 

transit agencies to develop an approved, coordinated schedule for employee emergency training activities. 

With regard to passenger rail, the Federal Railroad Administration (FRA) regulation on passenger train emergency preparedness,I CFR Part 239, applicable to certain commuter or other short-haul passenger train service and intercity passenger 

train service, requires employee training as a component of the required emergency 

preparedness plan. The regulation states that the plan shall address individual employee responsibilities and provide for initial training, as well as periodic training 

137 

at least once every two calendar years thereafter, on the applicable plan provisions. 

At a minimum, the initial and periodic training must include: 

(A) Rail equipment familiarization; 

(B) Situational awareness; 

(C) Passenger evacuation; 

(D) Coordination of functions; and 

(E) Hands-on instruction for location, function, and operation of on-board emergency equipment. 

The requirement also applies to control center personnel and requires that they 

be provided with initial training, as well as periodic training at least once every two 

calendar years thereafter, on appropriate courses of action for each potential emergency situation. At a minimum, the initial and periodic training must include: 

(A) Dispatch territory familiarization and 

(B) Protocols governing internal communications between appropriate control 

center personnel when an imminent potential emergency situation exists. 

Moreover, with regard to freight rail, the Department of Transportation (DOT) 

currently requires security training for all hazardous materials employees in freight 

rail transportation (49 CFR 172.704). 

Additionally, TSA works collaboratively with rail and mass transit stakeholders 

to enhance the scope and quality of security training. This approach encompasses 

multiple components: 

• Coordinating with rail and mass transit stakeholders through the Mass Transit Sector Coordinating Council and Freight Rail Sector Coordinating Council to 

identify and address difficulties and deficiencies in training efforts; 

• Issuing of Security Action Items for the rail and mass transit modes with security training for employees as a key element; 

• On-site assessment of security posture in the Security Action Items by TSA 

Surface Transportation Security Inspectors; 

• Setting targeted counterterrorism training for front-line employees—one of 

the six Transit Security Fundamentals that are the foundation of an effective 

security program—as a strategic priority and funding priority under the Transit 

Security Grant Program (TSGP); and 

• Implementing an expedited training initiative under the TSGP that assists 

transit agencies in the difficult task of freeing employees for training programs 

through targeted funding. 

The Mass Transit Security Training Program identifies specific types of training 

at basic and follow-on levels for particular categories of transit employees. Presented 

in a readily understandable matrix, it provides effective guidance to transit agency 

officials in building and implementing training programs for employees working in 

their systems. To support execution of such training programs, the TSGP offers prepackaged training options agencies may obtain with grant funding. Agencies taking 

advantage of this program have their applications expedited for approval to ensure 

funds are delivered within 90 days of submission. This initiative aims to expand significantly the volume and quality of training for transit employees during 2007. 

Thus far, 21 agencies have applied for training under this initiative among the Tier 

2 systems alone for fiscal year (FY) 2007 TSGP funding. Nine other transit agencies 

proposed training in their standard fiscal year 2007 TSGP applications. 

Question 8.: Is there yet a list, consolidated by TSA on the security 

courses available to front line rail and mass transit employees? 

If not, why not? 

Response: Yes. The Transportation Security Administration (TSA), in coordination with the DHS Office of Grants & Training and the Federal Transit Administration, developed the Mass Transit Security Training Program, which identifies specific types of training at basic and follow-on levels for particular categories of transit 

employees. Presented in a readily understandable matrix, the Program provides 

guidance to transit agency officials in building and implementing training programs 

for employees working in their systems. To support execution of such training programs, the TSGP offers pre-packaged training options agencies may obtain with 

grant funding. Agencies taking advantage of this program have their applications 

expedited for approval to ensure funds are delivered within 90 days of submission. 

In freight rail, TSA has reviewed existing training materials produced by the Association of American Railroads. Each railroad may have training materials to supplement these courses. TSA reviews corporate training materials through its Corporate Security Review program. After completing a Corporate Security Review, 

TSA has a comprehensive understanding of the training courses available to a company’s employees and can work with them on an necessary improvements. 

138 

Congress created TSA as the one agency responsible for transportation 

security. Why won’t TSA take the lead on these issues? 

Response: The Aviation and Transportation Security Act established the Transportation Security Administration (TSA) as the lead in transportation security for 

mass transit and rail. Additionally, Congress has given responsibility and funding 

for safety and security activities to the Department of Transportation (DOT). With 

TSA as the lead, the Department of Homeland Security, in cooperation with DOT 

and other federal agencies, and in partnership with public and private sector owners 

and operators, has taken significant steps to enhance mass transit and rail security. 

For example, the development and distribution of the Mass Transit Security Training Program, supported by the expedited training application initiative under the 

Transit Security Grant Program (TSGP), demonstrates TSA leadership in this vital 

area. TSA initiated this effort in direct response to the results of the ongoing dualtrack security assessment initiative. 

Under the Baseline Assessment for Security Enhancement (BASE) program, TSA 

Surface Transportation Security Inspectors (STSIs) assess transit agencies? posture 

in 17 Security and Emergency Management Action Items encompassing a range of 

areas essential to an effective security program such as: 

• Security and emergency management planning; 

• Risk and vulnerability assessments; 

• Implementation of random, unpredictable deterrence; 

• Training, drills and exercises; 

• Public awareness campaigns; and 

• Facility, personnel, and information security. 

A concurrent initiative involves transit agencies conducting self-assessments on 

six fundamental areas and reporting the results to TSA. 

The assessment results demonstrated the need for more focused effort in security 

training for transit agency employees. Although an extensive Federal security training program has been implemented since 9/11—17 security courses, more than 500 

deliveries, and more than 90,000 transit employees trained—the assessment results 

indicated wide variations in the quality of transit agencies’ security training programs and an inadequate level of refresher or follow-on training. Well-trained employees are a security force multiplier for security efforts implemented by transit 

agencies. To elevate the level of training generally, bring greater consistency, and 

assist agencies in developing and implementing training programs, TSA produced 

and disseminated the Mass Transit Security Training Program. 

TSA will continue to apply assessment results to drive strategic priorities, security programs, and allocation of resources. 

If so, has this information been disseminated to the stakeholders and relevant agencies? 

Response: Yes, stakeholders and agencies have been informed through Information Bulletin 243 (IB–243), issued under the Transit Security Grant Program 

(TSGP). The information has also been provided directly to the Mass Transit Sector 

Coordinating Council (SCC) and the Transit Security and Policing Peer Advisory 

Group. Finally, the Transportation Security Administration (TSA) has posted the information on the Public Transit Portal of the Homeland Security Information Network. 

Question 9.: TSA failed to include any training requirements for front-line rail 

workers in the recently released Notice of Proposed Rulemaking concerning the 

movement of hazardous material by freight rail. Can you explain to the Committee why TSA again missed an opportunity to impose a training requirement for these workers? 

Response: The Department of Transportation (DOT) currently requires security 

awareness training for all hazmat employees. DOT’s Pipeline and Hazardous Materials Administration currently requires security training of all hazardous materials 

(hazmat) employees in freight rail transportation (49 CFR 172.704). Title 49 CFR 

171.8 defines a hazmat employee as a person who in the course of their employment 

directly affects transportation safety. The term hazmat employee specifically covers 

persons who ‘‘load, unload, or handle hazardous materials,’’ ‘‘[prepare] hazardous 

materials for transportation,’’ ‘‘are responsible for the safety of transporting hazardous materials,’’ or ‘‘[operate] a vehicle used to transport hazardous materials.’’ 

Employers must provide hazmat employee training, which includes the following: 

• General awareness/familiarization training; 

• Function-specific training; 

• Security awareness training, which must include a component covering how 

to recognize and respond to possible security threats; 

139 

• In-depth security training, which must include information concerning the 

company security plan and its implementation, company security objectives, 

specific security procedures, employee responsibilities, actions to take in the 

event of a security breach, and the organizational security structure; and 

• Recurrent training every three years. 

To supplement this requirement, the Department of Homeland Security (DHS) 

and DOT issued Security Action Items (June 23, 2006) that recommend that toxic 

inhalation hazard rail carriers ‘‘regularly reinforce security awareness and operational security concepts to all employees at all levels of the organization.’’ 

TSA Surface Transportation Security Inspectors are currently assessing the level 

of security awareness training throughout industry to identify gaps in employee security knowledge. After reviewing training videos produced by the railroad industry, 

we determined that videos are a good starting point, but additional training materials are necessary. TSA is in the final stages of producing an improvised explosive 

device Recognition Training Video for railroad employees. Further DVD video training programs are planned including identifying and reporting suspicious activity 

and behavior. 

Question 10.: What steps has the Department taken to develop a robust 

research and development program for rail and mass transit security? I 

know that there have been a few initiatives in the past like TRIP and the 

pilot in Maryland last year, but these initiatives appear to me to be piecemeal. 

Response: The Transportation Security Administration (TSA) participates in the 

Integrated Process Teams (IPT) convened by the Department of Homeland Security’s (DHS) Science and Technology Directorate (S&T) across a variety of critical 

infrastructure and potential threats. These IPTs provide a means to submit technology requirements for funding and coordinate requirements with other DHS internal stakeholders (i.e. Customs and Border Protection, United States Coast Guard) 

to eliminate duplication of effort and share experience and knowledge. The coordinated effort has harnessed research and development resources effectively to advance TSA’s strategic priorities. These include protection of underwater and underground infrastructure (transit tunnels are a top priority for research and development of hardening and security enhancement technologies) and development of mobile and fixed systems amenable to the demands of the transit environment that 

may be deployed flexibly for maximum deterrent effect and protection of high risk 

infrastructure. Pilot testing will employ equipment in this manner to validate capabilities most effectively and deliver deterrent effects. Future research and development initiatives will maintain this focus. 

Question 11.: To date, how much has the Department spent on research 

and development for rail and mass transit? 

Response: In fiscal year 2006 DHS S&T executed $7M towards a Rail Security 

Pilot (RSP) charged with demonstrating explosive screening technologies, concepts 

of operations, and training to reduce the threat of suicide and leave-behind bombers 

in the heavy rail (e.g., subway) mass transit environment. The pilot was broken into 

two phases; phase 1 consisted of off-the-shelf technologies while phase 2 demonstrated prototype technologies. These pilots were conducted at the Port–Authority 

Trans–Hudson’s (PATH) Exchange Place Station in Jersey City, NJ; the Baltimore 

Metropolitan Transit Authority’s Johns Hopkins station in Baltimore, MD; and the 

Atlanta MARTA Five Points and airport stations. 

The RSP performed market studies to identify potential candidate technologies for 

field testing, conducted lab tests to qualify potential technologies for field testing, 

worked with host authorities to develop viable concepts of operations, instrumented 

the test site to collect key data necessary for model benchmarking and to assess the 

pilot’s effectiveness, installed the equipment at the host site, conducted pilot operations and conducted operations experiments, and provided feedback to the equipment vendors on their systems to accelerate the development of screening equipment for the rail environment. 

Millions of dollars have been spent on developing technologies associated with 

protecting people and infrastructure in the transportation sector above and beyond 

the RSP. Some of the projects that have a direct application to protect rail and mass 

transit are listed here. 

• BioWatch 

• PROTECT chemical detection system 

• Motivation and Intent—Project Hostile Intent 

• Automated Scene Understanding 

• Improvised Explosive Device and Leave-behind Bomb Detection 

• Cargo Security 

140 

• Autonomous Rapid Facility Chemical Agent Monitor • Lightweight Autonomous Chemical Identification System • Low Vapor Pressure Chemical Detection Systems • Explosives Detection Research • Explosives response capabilities including Bomb Assessment tools and Render 

Safe technologies 

• Explosives Conveyance Protection 

In addition, the Office of Infrastructure Protection (IP) has developed the National 

Capitol Region Rail Pilot Project (NCRRPP). The NCRRPP is an intelligent videobased security program that provides security enhancements along an 8.1 mile rail 

corridor that runs through Washington, D.C., that is owned and/or operated by 

CSXT and Amtrak. The CSXT concept for this security pilot project was developed 

following the Madrid rail bombings in March 2004 and was later expanded to include an Amtrak portion as a result of the London Bombings. The CSXT portion 

runs from the Long Bridge to the Benning Rail Yard and includes critical areas such 

as 14th St. (Long Bridge), L?Enfant Plaza and the Virginia Avenue Tunnel. The 

Amtrak portion includes the virtual fence system described in other sections of this 

response and also substantial work in the buffer zone area around Union Station, 

the cargo area and places where unauthorized personnel can enter the tracks. The 

Amtrak spur also includes coverage of the 1st Street Tunnel. The National Capital 

Region was chosen for the initial pilot program because of the location of the rail 

line, including its proximity to some of the Nation’s most significant monuments and 

icons, as well as the U.S. Capitol. Recognizing the sensitivity surrounding rail infrastructure and freight traffic through large cities, as well as the unique security challenges presented by such an operation, this pilot project seeks to address security 

challenges while maintaining efficient rail operations. IP has spent $15 million total on the NCRRPP. Ten million was funded for the 

CSX portion of the project from the Long Bridge to Benning Yard Rail Yard, and 

$5 million was funded for the Amtrak portion of the project from the 1st Street 

Spur, through the First Street Tunnel and Union Station to New York Avenue. 

Question 12.: What steps has TSA taken to implement recommendations 

made by GAO in its September 2005 report on passenger rail security? 

Recommendation 1: Establish a timeline for completing the department’s 

framework for analyzing sector risks and ensure that the risk assessment 

methodologies used by sector-specific agencies are consistent with this 

framework. 

The National Infrastructure Protection Plan (NIPP) establishes the risk assessment framework for the protection of critical infrastructure and key resources. The 

Transportation Sector Specific Plan (TSSP) has been prepared in a coordinated effort integrating Federal entities operating through Government Coordinating Councils (GCCs) with transportation stakeholders operating through Sector Coordinating 

Councils (SCCs). Modal annexes for passenger rail/mass transit and freight rail are 

being developed in a similar coordinated effort with the stakeholders in the respective modes. The risk management strategy for the TSSP and its modal annexes and 

for the National Strategy for Transportation Security aligns with the NIPP framework. The TSSP and modal annexes will specify timelines for risk analysis and 

other security priorities. 

Recommendation 2: a. Establish a plan for completing its methodology for 

conducting risk assessments that includes timelines and addresses how it 

will work with passenger rail stakeholders and leverage existing federal 

expertise in Department of Homeland Security components, including the 

Office for Domestic Preparedness, as well as the Department of Transportation modal administrations, including the Federal Railroad Administration and the Federal Transit Administration. 

At the operational level, the Transportation Security Administration (TSA) conducts security assessments under the Surface Transportation Security Inspection 

(STSI) Program. The purpose of assessing security status is to determine how individual operations compare to the baseline standards. Assessments in rail and passenger transit are conducted by TSA’s field inspector force. The assessments are 

structured to target key areas of concern and to capture essential data to evaluate 

current practice versus baseline standards. 

Passenger Rail and Mass Transit Status. The results of TSA’s dual-track assessment initiative—STSI-led Baseline Assessment for Security Enhancement 

(BASE) reviews of security posture in the 17 Security and Emergency Management Action Items and the self-assessments by transit agencies on their posture 

in the 6 Transit Security Fundamentals—have indicated variations in security 

posture among passenger rail and mass transit agencies. 

141 

—To date, 48 of the top 50 agencies by passenger volume have completed the 

self-assessment and reporting the results to TSA. The reports show the agencies 

have taken these reviews seriously. 

—The concurrent STSI-led effort has completed in depth BASE assessments on 

34 of the top 50 agencies, focusing more deeply into the specifics of security 

plans and procedures, operational security activities, and programs for employee security training, drills and exercises, and public awareness. 

—Additional assessments have been scheduled, with the objective of covering all 

of the top 50 agencies, then moving on to agencies ranked 51 through 100. TSA 

will complete assessments of the top 50 during fiscal year 2007 and initiate assessments on agencies ranked 51 through 100 during fiscal year 2007 for projected completion before mid–FY 2008. 

—The data indicates varying security status among systems. 

—The results are shaping TSA’s strategic and operational security priorities, including security enhancement programs, grant funding, and engagement with 

individual passenger rail and mass transit agencies. 

—Follow-on assessments will measure progress in improvement in the Actions 

Items and the fundamentals. 

Freight Rail Status. To evaluate the security baseline in freight rail, TSA in cooperation with the rail industry is developing a comprehensive database driven 

system to identify the specific locations where toxic by inhalation (TIH) risk is 

the highest. TSA inspectors will verify attended/unattended status and proximity to high risk structures. In addition to identifying high risk locations, the 

database will give TSA the ability to identify TIH cars in near real time. This 

capability will allow us to more effectively respond to emerging threat situations. 

Further, TSA inspectors have conducted field interviews with key rail management and personnel. Over 2,600 interviews have been completed, focused on 

employee security awareness, security procedures and systems to locate and 

protect TIH cars. 

b. Evaluate whether the risk assessment methodology used by the Office for Domestic Preparedness should be leveraged to facilitate the 

completion of risk assessments for rail and other transportation modes. 

To promote interagency coordination and information sharing on risk assessment activities and to bring the assessment methodologies within a consistent framework and leverage the existing methodologies, DHS, and its Federal partners have formed the Federal Risk Assessment Working Group, the 

Interagency Mass Transit Security Information Program, and the Risk Assessment Policy Group. These groups work together to coordinate Federal risk assessment activities and to promote consistency in risk assessment approaches. 

The former Office of Domestic Preparedness (since renamed the Office of Grants 

and Training, G&T) is a participant in these risk assessment coordination 

groups. G&T also participated in the development of the BASE program. 

Recommendation 3: a. Develop security standards that reflect industry 

best practices and can be measured, monitored, and enforced by Transportation Security Administration rail inspectors and, if appropriate, by rail 

asset owners. This could be accomplished by using the rule-making process, with notice in the Federal Register and an opportunity for interested 

stakeholders to comment, to promulgate long-term regulations that incorporate these standards. 

TSA is working closely with the Department of Transportation (DOT), other DHS 

components with transportation security responsibilities, and the transit and passenger rail industry to develop and disseminate the Security and Emergency Management Action Items, the Recommended Protective Measures for Homeland Security Advisory System (HSAS) Threat Levels, and the Transit Tunnels Security Action Items. Collectively, these security guidelines aim to elevate baseline security 

posture. Under the BASE program, STSIs assess transit agencies’ implementation 

of these security measures. 

The BASE program aims to elevate security generally and expand TSA’s awareness and understanding of security posture in the passenger rail and mass transit 

mode. This information enables more effective targeting of security programs and 

technical assistance to elevate security. Through this process, TSA also identifies 

best security practices for sharing with the passenger rail and mass transit community, further enhancing security posture. The thorough review of security programs 

and procedures affords the systems assessed the opportunity to review the state of 

their security program and identify strengths and weaknesses. This information can 

guide the effective application of available security resources, focus collaborative efVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00145 Fmt 6601 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
142 

forts with TSA, and facilitate the preparation of funding requests through security 

grant programs. 

A key component of the strategic approach to passenger rail security is the development of security standards reflecting the combined expertise and experience of 

subject matter experts in the Federal government and the industry. The American 

Public Transportation Association (APTA) has initiated an effort to develop consensus on performance-based security standards for public transportation systems, 

including passenger rail. Federal participation in this effort will facilitate achievement of objectives articulated in section 3028 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users (SAFETEA–LU) Pub. L. 109– 

59) and in the Public Transportation Annex to the DHS/DOT Memorandum of Understanding(MOU) on transportation security. APTA seeks this participation. TSA 

is working with its Federal partners in the Transit, Commuter and Long Distance 

Rail Government Coordinating Council to engage in an effective manner that enables active involvement in the development of security standards and accords with 

applicable legal requirements. Adoption of the resulting standards by passenger rail 

systems would be evaluated by STSIs during assistance programs and inspections. 

b. Set timelines for completing the memorandum of understanding modal 

agreements for rail, mass transit, and research and development, which 

both the Department of Homeland Security and the Department of Transportation have agreed to pursue. 

All actions are completed. In September 2004, DHS and DOT executed a MOU 

to facilitate the development and deployment of transportation security measures. 

TSA, the Federal Transit Administration, the Office of Intelligence, Security and 

Emergency Response (S–60) in the Office of the Secretary/DOT, and DHS’s Office 

of State and Local Government Coordination and Preparedness (SLGCP) and G&T 

have completed the Public Transportation Annex. In the freight rail mode, TSA joins 

the Federal Railroad Administration and the Pipeline and Hazardous Material Safety Administration in the Rail Security Annex, executed in 2006. 

Recommendation 4: a. Evaluate the feasibility of establishing and maintaining an information clearinghouse on existing and emergency security 

technologies and security best practices used in the passenger rail industry 

both in the United States and abroad. 

Effective implementation and use of the Homeland Security Information Network 

is critical to the success of Federal information-sharing efforts. DHS established 

HSIN for stakeholders to use in the various Sector Coordinating Councils. The network includes a Public Transit Portal, intended for use as an information-sharing 

and exchange resource for transit systems throughout the country. An often expressed concern of transit system security officials is the absence of a single source 

or one stop shop for Federal information on transit security. The Public Transit Portal on HSIN has been developed to meet this purpose as the gateway to Federal 

information updates and resources for the mode and information and material developed by the Public Transit Information Sharing and Analysis Center. Feedback 

from mass transit and passenger rail systems will help ensure information products 

meet security needs. A concerted effort to populate the site with useful and timely 

information is ongoing. 

A key component of the portal is the Mass Transit Resource Center. The Resource 

Center provides a comprehensive database for the transit industry to access information on a broad spectrum of subjects pertinent to transit security. This material 

is not readily available in a consolidated format elsewhere. TSA uses the Portal to 

provide timely security alerts, advisories, and information bulletins to passenger rail 

and mass transit agencies. Technology updates constitute an important component 

of this resource. Overall, the Resource Center covers more than 20 subject areas of 

security interest to the public transportation community, reflecting the feedback received from stakeholders on the type of information they require to meet the security mission. 

Technology must be fully incorporated into the security operations of mass transit 

and passenger rail agencies. Presently, a variety of technologies are on the market 

or being tested, such as intrusion detection, video surveillance, anomaly detection, 

and chemical/biological/ radiological/nuclear detection. TSA, along with its public 

and private partners, is working to identify technology gaps and conduct research 

and development to provide technological solutions. The Federal partners are also 

harnessing the information gained from completed developmental testing and other 

use experience to provide the transit community a security technology information 

resource to guide procurement decisions. This resource will be a key component of 

the Public Transit Portal in the HSIN, meeting a specific requirement of Executive 

Order 13416, ‘‘Strengthening Surface Transportation Security.’’ 

143 

b. Evaluate the potential benefits and applicability—as risk analyses warrant and as opportunities permit—of implementing covert testing processes 

to evaluate the effectiveness of rail system security personnel; implementing practices used by foreign rail operators that integrate security 

into infrastructure design; and implementing random searches or screening of passengers and their baggage, pending the results of an ongoing 

joint federal and industry review of the impact of random screening on 

passenger rail operators. 

Security-oriented design considerations for infrastructure that assist the passenger rail industry to deter and minimize the effects of attacks on the entire rail 

passenger system are being evaluated by the DOT and TSA. DOT, working with industry representatives, has issued a report which offers security-oriented design 

considerations for transit infrastructure. There is also an effort underway by DOT 

to require vulnerability assessments on preliminary design plans for new public 

transportation projects including passenger rail. The Federal government provides 

training courses focused on effective design for security. The existing courses are 

‘‘Transit System Security’’ and ‘‘Transit System Security Design Review.’’ In development is a course that will be entitled, Transit Security Design Considerations. 

Three transit agencies have instituted random bag inspection programs: the New 

York Metropolitan Transportation Authority, the Port Authority Trans–Hudson, and 

the Massachusetts Bay Transportation Authority. The decision to implement this 

type of program is best left to the individual transit agencies and their supporting 

law enforcement and security forces. The local officials are best placed to assess the 

advantages and drawbacks of this approach. 

TSA provides assistance to transit agencies in security enhancement, regardless 

of the approach taken on this particular issue. TSA, in conjunction with the DHS 

Office of Science and Technology, advances the development and testing of security 

technologies suitable for the passenger rail and mass transit mode. To ensure technology enhances security capabilities in transit agencies, the Federal effort seeks development of mobile and fixed systems amenable to the demands of the transit environment that may be deployed flexibly for maximum deterrent effect and protection 

of high risk infrastructure. Pilot testing will employ equipment in this manner to 

validate capabilities most effectively. Future research and development initiatives 

will maintain this focus. 

Through the Visible Intermodal Prevention and Response (VIPR) program, TSA 

deploys resources to supplement security activities of transit agencies. Deployments 

may consist of varying force packages of STSIs, Federal Air Marshals, explosives detection canine teams, and Transportation Security Officers, as well as necessary 

equipment, including security screening technologies. To enhance the capabilities 

and effectiveness of these deployments, TSA has procured screening technologies 

that are deployed and exercised in the passenger rail mode to develop concepts of 

operations specific to particular transit agencies. The resulting experience and operating procedures guide procurement decisions and operational use of screening 

equipment. 

Covert testing has potential value as part of an overall security engagement approach with particular transit agencies. TSA has developed proposals for this activity. Coordination for testing with a particular system is ongoing. 

On the international front, TSA engages extensively with its foreign counterparts 

on rail and transit security matters with the aim of sharing and gleaning effective 

practices for potential integration in the domestic strategic approach. TSA conducts 

and maintains these efforts in collaboration and coordination with the Department 

of State, DHS component agencies, and other Federal agencies on projects involving 

transportation security within international and regional organizations. 

Engagement within the Group of 8 (G8) and with the European Union, the Asia 

Pacific Economic Cooperation, and the Mexican and Canadian governments fosters 

sharing of effective practices and technologies in mass transit and passenger rail security. The expanding cooperation in this area has culminated in creating an international working group on land transport security outside of any preexisting forum 

with preliminary focus on passenger rail and mass transit security. The United 

States will support this collaborative effort by providing information on most effective security practices and the effectiveness of security technologies. 

TSA also participates in the Rail and Urban Transport Working Group in support 

of technology information-sharing across five countries. The membership of this 

group consists of the United States, United Kingdom, Canada, France, and Israel. 

In this forum, technology and operational experts come together to share information on technology testing and evaluation projects. 

Through the Joint Contact Group, the United States and the United Kingdom engage in a bilateral cooperative effort to develop and promulgate best practices in rail 

144 

and mass transit security with the objective of developing security solutions applicable on a wider international basis. This group also explores opportunities to encourage broader private sector involvement in the protection of soft targets, such as 

through training of mass transit employees. 

Another international initiative focuses on vetting suspicious packages detected in 

transit systems. This joint effort, involving TSA STSIs, Los Angeles law enforcement 

representatives, and British security officials, will bring training, experience, and 

lessons learned to the American participants from a British program known as Hidden and Obviously Typical (HOT) on suspicious packages. This program enhances 

the ability of the trained personnel to identify indicators of security concerns with 

packages left unattended in transit and rail facilities and vehicles. 

TSA will continue a dynamic effort to engage with international counterparts, 

whether through bilateral arrangements or broader forums and working groups, and 

advance sharing of lessons learned and best practices to enhance security in passenger rail and mass transit systems. 

Question 13.: Each mode of transportation presents its own risks. How would 

you characterize the risks faced by passenger rail systems? How would you 

compare these with the risks faced by other modes of transportation? Is 

the current allocation of federal resources for rail security commensurate 

with the unique risks these systems face? 

Response: The Transportation Security Administration (TSA) takes a network 

approach to transportation security and views it as a shared responsibility. The responsibility and effort are shared among all of TSA; the Department of Homeland 

Security (DHS); other government agencies and entities at all levels, including Federal, State, local, tribal and territorial; and owner-operators. 

The difference in Federal funding for aviation and surface transportation does not 

present the complete picture. Whereas Federal funding constitutes a substantial 

portion of aviation security monies, the Federal portion for surface transportation 

security constitutes a much smaller percentage of the total spent for surface transportation. When the money spent by private industry, states, and localities is added 

to the Federal portion, the total funds for surface transportation security are commensurate with the risk. 

Much of the Nation’s aviation infrastructure is federally owned. Surface modes of 

transportation are approximately 95 percent privately owned and operated. They receive security funding support from multiple streams (i.e., State, local, private, as 

well as Federal). The Department has consistently stated that responsibility for surface transportation security is a shared responsibility among a variety of stakeholders, including State, local, and Federal agencies, and private owners and operators. The appropriate role for the Federal government includes: using the substantial resources already in place and providing critical information; setting national 

priorities; developing transportation security fundamentals; coordinating ongoing efforts; and encouraging certain actions that reduce risk to the Nation’s transportation system. 

The bulk of Federal spending in aviation security has covered the compensation 

and benefits of Transportation Security Officers, who work every day in more than 

450 airports nationwide to ensure the skies remain secure. Aviation security allows 

for point defense. We can seal off an area of the airport and only permit entry to 

those with tickets who have passed through screening. 

The rail and mass transit modes do not allow for this type of approach. These systems operate over a broad geographic spread with numerous stations and transfer 

points providing the efficiency and fast-pace that are essential to moving thousands 

of passengers, particularly during daily rush hours. The point defense approach 

taken at the airports is neither practicable nor desirable. Rather, an integrated 

strategy, tapping the strengths of the Federal government, State and local governments, and passenger rail and mass transit agencies, must be pursued. 

In evaluating the resources required to address surface transportation risk issues, 

it is important to take into account not just TSA’s budget and statutory obligations 

in aviation, but also the substantial efforts, capabilities and expertise that already 

exist in the surface transportation environment, as well as very different operating, 

legal, and resource requirements. Therefore, the level of TSA’s budget allocated to 

surface transportation security relative to aviation does not and cannot reflect the 

overall relative risk between them. In fact, TSA does give attention and priority to 

surface transportation, but TSA’s role relative to the security partners in the 

networked approach is different than it is in aviation. 

TSA has looked across all modes of transportation and set risk-based priorities. 

These priorities are used to focus TSA’s attention and resources on those issues. 

TSA has conducted or participated in various risk analyses that compare risks 

145 

across different transportation modes, including most recently the DHS Strategic 

Homeland Infrastructure Risk Assessment (SHIRA). Surface transportation, transit 

and rail are currently high priorities for TSA. The level of funding is determined 

by the degree to which TSA can effectively mitigate the risks, as compared to the 

degree with which industry and other stakeholders are able to mitigate the risks. 

For transit, a top priority is high density passenger transit systems in urban 

areas with underwater or underground tunnels. The risk of an improvised explosive 

device attack in a mass transit environment has been repeatedly demonstrated 

throughout the world, including London, Madrid, and India. As a result, TSA augmented its security efforts in Mass Transit to include: Visual Intermodal Protection 

and Response (VIPR) teams; bomb-sniffing dogs; assistance with training and managing system-owned explosive detecting canines; and a range of pilot and experimental screening, detection, and deterrence programs. 

In addition, TSA is working to improve the risk basis for the Transportation Security Grant program. While the criteria for allocating grants among large transit systems continue to evolve, the criteria for approving specific project plans for actually 

spending the money is tightly focused on projects that mitigate prioritized risks. 

Question 14.: Why did the President only request an additional $4 million 

for surface transportation security? Your surface transportation security 

budget is still less than 1% of your aviation budget. 

Response: The Transportation Security Administration (TSA) supports the President’s fiscal year (FY) 2008 budget request. The budget request accurately reflects 

the funding necessary to carry out different approaches to different modes of transportation. 

The difference in Federal funding for aviation and surface transportation does not 

present the complete picture. Whereas Federal funding constitutes a substantial 

portion of aviation security monies, the Federal portion for surface transportation 

security constitutes a much smaller percentage of the total spent for surface transportation. When the money spent by private industry, states, and localities is added 

to the Federal portion, the total funds for surface transportation security are commensurate with the risk. 

Much of the Nation’s aviation infrastructure is federally owned, which requires 

a Federal budget. Surface modes of transportation are approximately 95 percent privately owned and operated, and receive security funding from multiple streams (i.e., 

State, local, private, as well as Federal). The Department has consistently stated 

that responsibility for surface transportation security is a shared responsibility 

among a variety of stakeholders, including State, local, and Federal agencies, and 

private owners and operators. The appropriate role for the Federal government includes: using the substantial resources already in place and providing critical information; setting national priorities; developing transportation security fundamentals; 

coordinating ongoing efforts; and encouraging certain actions that reduce risk to the 

Nation’s transportation system. 

The bulk of Federal spending in aviation security has covered the compensation 

and benefits of Transportation Security Officers, who work every day in more than 

450 airports nationwide to ensure the skies remain secure. Aviation security allows 

for point defense. We can seal off an area of the airport and only permit entry to 

those with tickets who have passed through screening. 

The rail and mass transit modes do not allow for this type of approach. These systems operate over a broad geographic spread with numerous stations and transfer 

points providing the efficiency and fast-pace that are essential to moving thousands 

of passengers, particularly during daily rush hours. The point defense approach 

taken at the airports is neither practicable nor desirable.Rather, an integrated 

strategy, tapping the strengths of the Federal government, State and local governments, and passenger rail and mass transit agencies, must be pursued. 

Funding comparisons should also include: 

—The commitment of Federal funds to intelligence activities to identify terrorists and detect their activities before they can present a threat or achieve their 

objectives; 

— The commitment of Federal funds to capital improvements of passenger rail 

and mass transit systems that integrate security enhancements; 

—The availability to transit agencies of 1 percent of Federal Transit Administration grants for training and exercises, approximately $40 million annually; 

—The ability of States to allocate State Homeland Security Grant program 

funds to rail and transit system security; 

—Direct grants to transit providers under the transit security and intercity bus 

security grant programs; 

146 

—The law enforcement agencies—either maintained by transit agencies or provided by State or local government—providing law enforcement and security 

services for passenger rail and mass transit systems operating within and/or 

through their respective jurisdictions; and 

—Information sharing efforts that ensure security awareness is maintained at 

the Federal, State and local, and transit agency levels—such as the Public 

Transit portal of the Homeland Security Information Network that is maintained and operated at no cost to the transit community; the fee-funded Information Sharing and Analysis Center maintained by the American Public Transportation Association, now integrated into the Public Transit portal of the 

Homeland Security Information Network; and State and local intelligence fusion 

centers. 

Federal funding contributes to all of these efforts, and will continue to do so, as 

part of a comprehensive, integrated strategic approach aligning the efforts of a 

range of entities and programs at the Federal, State, and local government and 

transit agency levels. 

Question 15.: What is the role of funding in this issue (surface transportation security)? Is it a lack of funds or a lack of priorities on the part of 

the Department that is our biggest obstacle? 

Response: The Department of Homeland Security’s (DHS) priorities are well defined. The primary focus for DHS and the Transportation Security Administration 

(TSA) in mass transit and passenger rail has been information sharing, preparedness, domain awareness, training, and using a risk-based management approach to 

maximize the impact of available resources through random, visible security activities. One of the ways this is being done is through the transit security grant and 

intercity bus security grant programs. Through administration of these programs, 

TSA encourages potential grant applicants to submit project proposals that are 

aligned with national transportation security priorities. TSA is able to leverage 

grant funds to reduce risk by awarding grants to those projects that rank highest 

through evaluations based on: • Funding priorities; • Cost effectiveness; • Ability to reduce risk of catastrophic events; • Sustainability without additional Federal funds, combined with leveraging of 

other funding; and 

• Ability to complete the project within the submitted timeframe. 

TSA develops national priorities through system-wide risk assessments. Grant 

funds are awarded to transit systems that propose projects in alignment with national priorities and transit security fundamentals. The projects are implemented by 

transit systems often using additional private resources. Risk is reduced in those 

systems which also raises the level of security throughout the transportation sector. 

Question 16.: What lessons can we learn from the attacks in Madrid, London, and Mumbai? 

The London Underground’s security efforts—use of CCTV, station design, training, etc.—are often cited as best practices. Despite these efforts, the system was successfully attacked. What does this mean for other passenger rail systems? 

Can attacks not be prevented? If so, should we focus most of our efforts 

and dollars on response and recovery, rather than prevention? 

Response: Prevention is the highest priority for the Transportation Security Administration (TSA), and we take a layered, proactive, strategic approach rather than 

ceding to the terrorists by taking a reactive posture. 

This approach starts by leveraging the work of other U.S. Government and allied 

foreign entities through effective gathering, analysis, and dissemination of intelligence and through information sharing. 

The disruption of the terror plot in the United Kingdom in summer 2006 and 

other threats illustrates the necessity of this approach. The best defense is one that 

prevents the terrorists from ever entering the United States. Our aviation system 

security measures provide a significant barrier to entry for potential terrorists coming to our country. Our government’s investments and improvements in terrorism 

watch lists, border security, and intelligence networks significantly enhance surface 

transportation security. 

TSA complements these efforts by pursuing, as a strategic and operational priority, the expansion of visible, unpredictable deterrence environments in our surface 

transportation systems to disrupt terrorists’ planning and preparation activities and 

execution of their missions. In securing transportation systems, we employ a network approach. While each transportation mode has its own security challenges, 

there are common vulnerabilities and mitigation strategies. In an effort to employ 

147 

the range of security resources most effectively, we work closely with transportation 

networks to leverage our security impact and determine risk-based priorities. 

Building on this approach, TSA implements a comprehensive strategy that applies 

a common methodology across all transportation networks, regardless of mode. That 

strategy is straightforward. It consists of five elements: • Assess industry threat, vulnerability, and consequence; • Develop baseline security standards; • Assess actual security status against baseline security standards; • Develop plans to close gaps between actual status and baseline security 

standards; and 

• Develop enhanced systems of security. 

The top priorities in passenger rail security are encompassed within three guiding 

principles for the application of these elements: • Focused effort to mitigate high consequence risk; • Expanded employment of random, unpredictable deterrence; and • Elevation of the security baseline through training, drills and exercises, and 

public awareness campaigns. 

All of TSA’s efforts—in development programs and resources to enhance and supplement security in rail and transit systems, in research and development of advanced security technologies, in deployment of Visual Intermodal Protection and Response teams—are driven by these priorities. 

Question 17.: In 2005, the Government Accountability Office testified before the 

Senate Committee on Commerce, Science and Transportation that coordination between Departments of Homeland Security and Transportation could be improved, 

noting that the lack of coordination could lead to confusion, duplication, and gaps 

in preparedness. Has coordination improved? What steps should be taken to 

further improve coordination? 

Response: Coordination between the Department of Homeland Security (DHS) 

and the Department of Transportation (DOT) on rail and transit security activities 

is strong. It is institutionalized in specific annexes to the DHS/DOT Memorandum 

of Understanding (September 2005). TSA and the Federal Transit Administration 

(FTA), along with the DHS Offices of State and Local Government Coordination and 

Grants and Training (G&T), have executed and implemented the Public Transportation Annex. In the freight rail mode, TSA joins the Federal Railroad Administration and the Pipeline and Hazardous Material Safety Administration in the Rail Security Annex. 

These Federal agencies coordinate their activities under these agreements, as implemented through the Government Coordinating Councils and subject matter specific working groups. Regular consultations and meetings occur under these processes to ensure a coherent Federal approach to rail and mass transit security. 

Recognizing the importance of information leadership, the Mass Transit and Passenger Rail Security Information Sharing Network has been fully established and 

information-sharing and communications protocols have been put in place. Participating entities include TSA’s Mass Transit and Passenger Rail Division, Office of 

Intelligence, Office of Chief Counsel, and Public Affairs; DHS G&T, and State and 

local Government Coordination and the Homeland Infrastructure Threat and Risk 

Analysis Center (HITRAC); and DOT’s FTA. This Network ensures the timely dissemination of accurate information during normal operations and security incidents 

among Federal entities and with the passenger rail and mass transit community. 

Accompanying this network, the Homeland Security Information Network—Public 

Transit Portal (HSIN–PT) is being developed to facilitate communications among 

the transit community and the respective transit security related government agencies. The HSIN–PT officially launched earlier this year. 

Further steps needed at this stage involve continuing to refine and enhance the 

existing procedures to maintain effective coordination on matters related to passenger rail and mass transit security. 

Question 18.: Chris Kozub from the National Transit Institute (NTI) has testified 

before our Committee on training for mass transit employees. In his testimony, he 

stated that NTI and FTA’s training had reached about 20% of the transit employee 

workforce which is approximated to be about 300,000. As of today that number has 

increased to slightly higher than 30%. While reaching 90,000 employees—many of 

whom are employed by the larger, security critical, metropolitan systems of the 

country—is a noteworthy accomplishment, NTI is still below the halfway point and 

has a lot of work still to do. 

What steps have been taken to reach the remaining 70%? 

Which agency is responsible ensuring that all employees receive training? 

148 

Response: Well-trained employees are a security force multiplier for security efforts implemented by transit agencies. The Transportation Security Administration 

(TSA) has set targeted counterterrorism training of front-line employees as a strategic priority, using the Transit Security Grant Program (TSGP) to provide transit 

agencies with the resources necessary to expand the scope and quality of training 

in their systems. 

TSA, in coordination with the DHS Office of Grants & Training and the Federal 

Transit Administration (FTA), developed the Mass Transit Security Training Program, which identifies specific types of training at basic and follow-on levels for particular categories of transit employees. Presented in a readily understandable matrix, the Program provides effective guidance to transit agency officials in building 

and implementing training programs for employees working in their systems. To 

support execution of such training programs, the TSGP offers pre-packaged training 

options agencies may obtain with grant funding. Agencies taking advantage of this 

program have their applications expedited for approval to ensure funds are delivered within 90 days of submission. This initiative aims to expand significantly the 

volume and quality of training for transit employees during 2007. Thus far, 21 agencies have applied for training under this initiative among the Tier 2 systems alone 

for fiscal year (FY) 2007 TSGP funding. Nine other transit agencies proposed training in their standard fiscal year 2007 TSGP applications. 

Which agency is responsible ensuring that all employees receive training? 

Response: The Transportation Security Administration (TSA) has lead responsibility for ensuring transit agency employees receive security training. As is the case 

with all of our security programs, we execute this responsibility in coordination with 

our Federal partners. In security training, TSA and FTA jointly fund security training courses. Since 9/11, the 18 Federal security courses have been delivered more 

than 500 times reaching more than 90,000 transit employees. The Mass Transit Security Training Program, advanced by the expedited training application initiative 

under the TSGP, demonstrates TSA leadership in providing transit agencies with 

focused training guidance and the means to expand the scope and quality of training 

of their employees. 

Question 19.: It is my understanding that as drafted the Notice of Proposed 

Rulemakings (NPRMs) recently released by TSA and the Department of Transportation will preclude state and local officials from mandating the rerouting of hazardous material. Why did you include this provision in your NPRMs? 

Response: The Transportation Security Administration’s (TSA) Rail Transportation Security Notice of Proposed Rulemaking does not address rerouting of trains. 

We cannot answer for the Department of Transportation. 

Question 20.: Canine detection teams, which consist of a canine and a handler, 

are an important part of a layered homeland security system to prepare for, respond 

to, and prevent acts of terrorism. Canines can be trained to detect a variety of 

items, including explosives, narcotics, concealed humans, cadavers, and chemical 

and biological materials. Canine detection teams can be deployed quickly and can 

move easily throughout a variety of areas, including mass transit systems, airports, 

cargo areas, sea ports, the Nation’s borders, ports of entry, office buildings, and stadiums. At our Full Committee hearing on February 9th, Secretary Chertoff testified 

the Department of Homeland Security ‘‘can’t produce the dogs fast enough,’’ and canines ‘‘are better than most technologies.’’ Yet, we have a serious shortage of trained 

detection canines. 

Could you please give us some examples of how TSA utilizes canine detection teams? 

Response: The National Explosives Detection Canine Team Program (NEDCTP) 

deploys Transportation Security Administration (TSA)-certified explosives detection 

canine teams in the aviation and mass transit environments. The NEDCTP deploys 

a four-pronged approach in the aviation environment and a three-pronged approach 

in the mass transit environment. The aviation sector consists of cargo screening (national goal is 25 percent of the teams? overall utilization), Intensified Canine Patrol 

Strategies (ICPS) (random and unpredictable deployment of canine teams at curbside, check points, gate areas, terminals, etc.), pro-active searches (public visibility/ 

deterrence), and response to threats. The mass transit sector consists primarily of 

ICPS, pro-active searches and response to threats. 

Do you know approximately how many canine teams TSA currently has? 

Response: TSA has 422 planned with 393 deployed teams in the aviation environment and 56 planned with 48 deployed teams in the mass transit environment. 

149 

These numbers change slightly on an ongoing basis, due to the addition of teams, 

retirement of canine, team performance issues, and handler assignments. 

How many more does TSA need? 

Response: The current base of funds will support 478 teams in fiscal year (FY) 

2007, of which 422 are in aviation and 56 are in mass transit. The President’s fiscal 

year 2008 budget will add $3.5 million for approximately 45 teams in the mass transit/maritime (ferry systems) environment. Although TSA receives requests for additional canine teams, it is difficult to gauge the overall need for teams on a national 

basis. The number of teams planned and deployed is in direct proportion to baseline 

funding levels. 

Does TSA have a program to provide canines to state and local agencies? 

Response: Yes. 

If so, could you please describe it? 

Response: The NEDCTP provides TSA-certified explosives detection canines to 

over 80 law enforcement agencies across the United States through a Cooperative 

Agreement. In addition, TSA provides partial reimbursement to these agencies to 

offset the deployment costs of these teams and to meet TSA security requirements 

outlined within the Cooperative Agreement. TSA also provides explosives detection 

canines to law enforcement agencies across the country through its National Breeding and Development Center. These are canines that are considered excess to the 

NEDCTP because they do not meet the program’s rigorous standards but are adequate for use by State and local programs that have different requirements and 

training regimens. 

How does TSA and its canine training programs work with the Office for 

Bombing Prevention within the Preparedness Directorate? 

Response: The NEDCTP works in close partnership with the Office of Bombing 

Prevention (OBP) and collaborates with OBP on the Scientific Working Group for 

Dog and Orthogonal Detection Guidelines (SWGDOG). The NEDCTP has worked in 

concert with the OBP since its inception on issues such as training, performance 

standards, and deployment of highly skilled and qualified explosives detection canine resources. 

I visited TSA’s National Explosives Detection Canine Team Program and its 

Puppy Program in San Antonio, Texas, last August. Does TSA plan to expand 

both of these programs to accommodate the need for additional canine detection teams? 

Response: Yes. Based upon funding levels in the out years, TSA plans to expand 

both the production of the National Breeding and Development Center (Puppy Program), and the training of canines and handlers at the National Explosives Detection Canine Training Center. 

Both of these programs are co-located with the Department of Defense’s canine 

training programs at Lackland Air Force Base. Will this location permit the expansion of TSA’s programs or will additional facilities be necessary? 

Response: On March 9, 2007, the Assistant Administrator—Office of Law Enforcement/Federal Air Marshal Service met with senior leadership at Lackland Air 

Force Base and discussed this issue. The current partnership in place with the Department of Defense will help facilitate NEDCTP infrastructure requirements at 

Lackland, and tentative plans are in place to facilitate future expansion. 

Would you please discuss the resource-sharing arrangement between TSA 

and the Department of Defense with respect to canine training? 

Response: Both the Department of Homeland Security (TSA) and the Department of Defense benefit from the current resource sharing arrangement. Facilities, 

resources, veterinarian care, lessons learned (Iraq/Afghanistan), canine resources, 

kennels, etc., are all shared. Each week, military canine handlers graduate in the 

same facilities as their TSA-sponsored civilian law enforcement counterparts, and 

representatives from each department are present at these graduation ceremonies. 

This cooperative working relationship between the two Departments results in the 

delivery of the highest level of security by providing valuable canine resources at 

home and abroad. 

Are TSA-trained canines eligible to be transferred to another entity—Federal, state, or local—or sent overseas? 

Response: Yes. Based upon our current agreements with the Department of Defense, canine assets are occasionally exchanged if they are not suitable for deployment in a transportation environment. In addition, canines that do not meet the 

150 

rigid selection standards put in place by the NEDCTP are often offered to Federal, 

State and local police departments to assist in fulfilling their canine requirements. 

Question 21.: When TSA was originally formed shortly after September 11th, 

there was a Memorandum of Understanding between the Department of Defense 

and TSA regarding funding for the canine programs. 

Response: The National Explosives Detection Canine Team Program (NEDCTP) 

has entered into what is called an Inter Service Support Agreement (ISSA) with the 

Department of Defense. This agreement has been in place since 1972, beginning 

with the legacy Federal Aviation Administration (FAA) canine program (formerly 

called the Canine Explosives Detection Team Program). During the transfer of 

NEDCTP functions from FAA to the Department of Homeland Security’s Transportation Security Administration (TSA), this agreement was re-executed. 

Is a revision to this agreement necessary? 

Response: Not at this time. The agreement is currently being reviewed (Tri-annual Review) and is in the final coordination process within TSA. 

WILLIAM W. MILLAR RESPONSES TO QUESTIONS FROM THE HONORABLE BENNIE G. 

THOMPSON

1. Your industry has continuously resisted mandatory security plans and vulnerability assessments, which will be required by this legislation. However, ports, the 

chemical industry, and the aviation industry all have to submit mandatory plans 

to DHS. Why do you feel your industry should be excluded from this requirement? 

The public transportation industry has not resisted security plans and vulnerability assessments as suggested in this question. To the contrary, the industry fully 

supports continual security planning and the updating of assessments on a case-bycase as needed basis, determined through our continual work with federal, state, 

local, and on-staff security authorities. With respect to security plans, rail transit 

and commuter rail systems have had security plans in place as early as 1990. In 

1995, 49 CFR part 659 required all rail transit agencies by regulation to have system safety and security plans developed. At this same time the nation’s commuter 

rail systems engaged in a voluntary approach that also lead to the development of 

system safety security plans for those systems. We have on numerous occasions 

urged Congress to avoid a ‘‘one-size fits all’’ approach and to appreciate that, even 

under a risk based grant distribution mechanism, all public transportation systems 

may have needs, but not the same capacity to undertake strict, mandatory requirements as envisioned in the committee’s legislation. All public transportation systems 

have limited operations budgets, constrained by their public nature. The majority 

of the public transportation systems that have significant security related concerns 

already have security plans and appropriate assessment documents in place. The industry fully supports continuing that planning and updating those assessments, but 

has concerns about the rigid structure of requirements set up within the legislation. 

According to the GAO, the FRA has been focusing its efforts to improve rail safety, addressing issues such as human error, inspections, and rail track failure. It 

seems that the industry views safety as a bigger, more pressing concern than the 

risk of terrorism. 

2. Is there a nexus between safety and security concerns? Where do those issues 

overlap and where to they diverge? 

The transit industry has long acknowledged the connection between both safety 

and security. In fact, in testimony before Congress, APTA has noted that a dollar 

invested for security is also a dollar invested to enable transit to address all manners of hazards including natural disasters, operation incidents and security incidents. In many cases the procedures and technology that are used for security also 

enhances capabilities for addressing all manners of hazards. 

3. What measures have been or can be implemented that serves both purposes of safety and security? 

Examples of some measures that have been implemented include: standard operating procedures; training of employees; public outreach and engagement; technology tools such as Closed-circuit Televisions (CCTV’s) and interoperable radio systems. 

4. How have you determined the greatest risk of attack for your system? 

What is the greatest risk? 

Our estimation of risk exposure comes to us through research and historical data 

through the Mineta Institute and the Government Accountability Office (GAO). 

151 

These sources indicate that public transit has been a primary focus of terrorist activity and that the primary means of terror has been through the use of improvised 

explosive devices. 

5. Given the open nature of passenger rail systems—multiple access 

points, large crowds of people, and no barriers—can anything be done to 

protect these systems? 

Yes a great deal can be done, and is being done, to increase the security for public 

transportation systems, the people who use these systems and employees who work 

in those systems. The openness of the systems does create unique challenges, and 

we acknowledge that the public transit agencies cannot be 100% secured. We recognize, however, that we have a responsibility to the American people to take practical 

efforts in providing a secure service and environment. All public transportation systems can and do make continuous improvements to the security, preparedness, and 

response capabilities that will increase the safety and security of the nations 10 billion public transportation riders and over 360,000 of public transportation employees, especially in the event of a successful act of terrorism. 

The Port Authority of New York and New Jersey released a report recently that 

the PATH train tunnels the run under the Hudson River are more susceptible to 

attack then previously thought. 

6. What steps are being taken to ensure the security of the tunnels in 

New York and elsewhere? 

We respectfully suggest that the Port Authority of New York and New Jersey respond to this question. 

7. How much money will it cost to ensure that these tunnels are secure 

and who should pay for these security upgrades? 

We respectfully suggest that the Port Authority of New York and New Jersey respond to this question. 

8. What is your response to criticism that the industry cannot be trusted 

to police itself? 

We are unaware of claims that public transportation systems themselves ‘‘cannot 

be trusted to police themselves’’ as our systems already have security teams, police 

departments and other methods in place. Public transit agencies report to and are 

overseen by public boards, and as such are accountable to the public and political 

scrutiny. It is the position of the industry that we are not fully aware of the role 

and activities of the current team of federal rail inspectors, and as a result, we have 

questions regarding the benefits of drastic expansion of the available team of rail 

security inspectors. The industry would like to know more about the goals, objectives and activities of these inspectors and the systems themselves would be open 

to a greater level of coordination with appropriate transit agency specific security 

officials. 

9. Doesn’t the fact that since your members are in business to make 

money, there might be an incentive to cut corners on things like security 

from terrorist acts? Especially in light of the fact that the Administration 

doesn’t seem to think rail security is priority? 

Public transportation systems are not ‘‘in business to make money’’ as our systems are public in nature. The federal government has recognized this for decades 

and has provided federal assistance to U.S. public transit agencies. The top priority 

for all of APTA’s transit agency members is the safety and security of their riders 

and their employees. The ability of our systems to make the necessary security improvements and provide for the security operations requirements is directly related 

to the availability of public funding. 

TSA started working to secure the aviation system in late 2001; it was heavily 

criticized for not involving aviation stakeholders in its efforts. In response, TSA 

committed to taking steps to enhance its coordination with stakeholders in the future. 

10. Is it your opinion that rail and mass transit stakeholders are appropriately involved as TSA moves forward with current and future security 

efforts, such as the recently issued proposed rule on rail? 

TSA has existed for only the past five years, and as such their working relationship with the transit industry continues to be a work in progress. The transit industry looks forward to the development of a strong working relationship that includes 

the TSA’s engagement of transit at the earliest stages of strategic planning. 

152 

11. TSA issued rail security directives in May 2004. What was the industry’s reaction to these standards and how could they be improved? 

Our view is that the industry led standards which involve full partnership with 

the TSA would be much more effective than the issuance of directives or regulations. It needs to be noted that mandates without appropriate funding are doomed 

for failure. 

12. TSA continues to emphasize the importance of carriers identifying 

and reporting security risks to homeland security officials. Has your industry promoted whistleblower protections so that employees can report security concerns without fear of retaliation or retribution from employees? 

Transit employees are largely covered under state laws for whistleblower protection. All 50 states have some form of state whistleblower protection laws, and transit employees are indeed covered under state law. Also, while transit employees are 

largely exempt from OSHA requirements, there are 26 state job safety and health 

plans that OSHA approves and monitors in which transit employees are covered. 

13. TSA has recently issued a Notice of Proposed Rulemaking (NPRM) that would 

impose several new security requirements for rail carriers, rail transit systems; and 

rail operations at certain facilities that ship or receive hazardous materials. As part 

of this proposal, TSA would require rail and transit operators (as well as hazmat 

facilities) to allow physical inspection of their operations. In addition, chain of custody and hazmat tracking requirements will need to be enforced. How many additional inspectors TSA inspectors do you anticipate will be needed for this 

expanded role? 

We believe that there would be greater benefit to the transit industry by directing 

funds to transit agencies rather than for additional inspectors. 

14. Do you agree with the rule? 

As stated in the previous answer, we believe that there would be greater benefits 

to the transit industry by directing funds to transit agencies rather than for additional inspectors. 

15. What affect will this rule have on your industry as a result of real 

world implementation? 

See above. 

16. Will this rule improve security of hazmat transport? 

The transit industry does not transport hazardous material. 

17. It is my understanding that as drafted the Notice of Proposed Rulemakings 

(NPRMs) recently released by TSA and the Department of Transportation will preclude state and local officials from mandating the rerouting of hazardous material. 

This seems very favorable to industry and detrimental to security of our high population urban areas. How can you justify this provision in the NPRMs? 

This question does not apply to the transit industry. 

18. What do you feel is the carriers’ role in providing security training 

for its employees? 

We do provide security training for our employees, however, the transit industry 

is in need of appropriate funding levels to ensure that all employees are trained and 

on a regular and on-going basis. 

19. Do you wish you had more guidance from DHS on this issue? 

No, however, we do wish we had more federal funding from DHS to support security training. 

20. Do you think TSA should mandate security training for mass transit 

employees? 

We believe mandatory training without appropriate federal funding would be ineffective. 

21. What are the costs of securing our rail and mass transit systems? 

In 2004, APTA surveyed its U.S. transit agency members to determine what actions were needed to improve security for their customers, employees and facilities. 

In response to the survey, transit agencies around the country identified in excess 

of $6 billion in transit security investment needs. 

22. How would you compare the risks facing the passenger rail systems 

with the risks faced by other modes of transportation? Is the current allocation of federal resources for rail security commensurate with the unique 

risks these systems face? 

153 

The GAO released a report several years ago which said ‘‘about one-third of terrorist attacks worldwide target transportation systems, and transit systems are the 

mode most commonly attacked.’’ Since September 11, 2001, the federal government 

has spent over $24 billion on aviation security while has only allocated $549 million 

for transit security. Last year’s attacks in Mumbai and the previous attacks in London and Madrid further highlight the need to strengthen security on public transit 

agencies in the U.S. and to do so without delay. While transit agencies are doing 

their part, we need the federal government to be a full partner in the fight against 

terrorism. The federal government needs to increase federal support for transit security improvements. 

Chris Kozub from the National Transit Institute (NTI) has testified before our 

Committee on training for mass transit employees. In his testimony, he stated that 

NTI and FTA’s training had reached about 20% of the transit employee workforce 

which is approximated to be about 300,000. As of today that number has increased 

to slightly higher than 30%. While reaching 90,000 employees—many of whom are 

employed by the larger, security critical, metropolitan systems of the country—is a 

noteworthy accomplishment, NTI is still below the halfway points and has a lot of 

work still to do. 

23. Do you feel that this is adequate to give workers the tools they need 

to respond to or prevent a disaster? 

APTA strongly supports the security training program being offered by the NTI. 

However, further security training needs will continue to evolve and will require appropriate funding support through the federal government. 

24. Do you feel the Federal Government should be responsible for ensuring that all employees receive training? 

The federal government should be responsible for providing federal funding so 

that all employees can receive training. 

25. What are your thoughts in the utilization of security practices used 

by other countries? 

The U.S. transit industry works very closely with our international colleagues in 

the sharing of information and effective practices. While there are many things we 

are learning through our international partners, there are many responses and 

measures being implemented in the U.S. that are of interest to our international 

partners. 

26. With which practices were you most impressed? 

Some examples of the practices and measures we were impressed with include behavioral assessment training; empowerment and training of the London underground personnel; operations control centers; and software advancements at the 

Metro Madrid. 

27. Which do you think could be effectively implemented in the U.S. 

Some of these initiatives are already being implemented. We believe with increased federal funding support all of the mentioned efforts could be implemented. 

RESPONSES FROM EDWARD W. RODZWICZ

QUESTIONS FROM THE HONORABLE BENNIE G. THOMPSON

Question 1.: What has your organization done to raise awareness of your 

members and their employers to the security risk and to advance solutions 

and in-itiatives to enhance safety and security? 

The Teamsters Rail Conference is proud to have undertaken a number of initiatives to raise awareness about security issues and to educate our members about 

this issue. For example, in 2005, the Rail Conference began an initiative known as 

‘‘Safe Rails, Secure America,’’ and conducted surveys of more than 4,000 railroad 

workers nationwide. The report which resulted from these surveys was entitled 

‘‘HIGH ALERT: Workers Warn of Security Gaps on Nation’s Railroads.’’ The report 

details shocking inattention to security by the nation’s largest rail corporations. We 

have distributed High Alert on a broad basis, and have reported extensively on the 

survey results in our internal communications media. In addition, we have worked 

with various media to educate and inform the general public of the need for safety 

and security improvements. 

Also, along with a number of other organizations, Rail Conference constituents 

Brotherhood of Locomotive Engineers and Trainmen (BLET) and Brotherhood of 

Maintenance of Way Employes Division (BMWED) have sponsored hazardous materials training for more than a decade and a half at National Labor College, which 

is located at the George Meany Center in Silver Spring, Maryland. 

154 

Our Railway Workers Hazardous Materials Training Program (RWHMTP) has 

been a resounding success. The program has continually evolved and expanded to 

meet the training and competency needs of rail workers that are not met by the 

railroads. Initially offering only one course, the program now offers five, and training has moved beyond the conventional classroom to include simulation and on-line 

activities. A core of professionally trained instructors has been replaced with a corps 

of peer instructors. Because of this program’s success, tens of thousands of rail 

workers are working more safely and in safer environments. 

The RWHMTP has trained more than 20,000 rail workers, and the National Institute for Environmental Health Sciences-funded program now offers five courses: a 

five-day Chemical/Emergency Response training in the classroom; an on-line Emergency Responder Awareness Level 101 course; the OSHA 10-hour General Industry 

Safety and Health Outreach Program; disaster site training; and the newest addition, a Radioactive Material Transportation Safety Program, which is funded by a 

separate grant from the U.S. Department of Energy. 

The newest program began last, and includes a Modular Emergency Response Radiological Transportation Training (MERRTT)‘‘train the trainer’’ course. By contrast, 

we are unaware of any railroad currently conducting training focusing on transportation of spent nuclear fuel and high-level radioactive waste, even though the Department of Energy is expected to begin a 38-year project to transport such waste 

from DOE sites to storage and disposal facilities as early as next year. The labor 

hazmat program has trained workers in 49 states and the District of Columbia. 

We also have fostered the creation of community partnerships that include joint 

rail worker, fire fighter, EMT, and public safety personnel training in communities 

throughout the U.S. 

The program also includes an emphasis on railroad security and disaster response 

and teaches the five-day students how to serve as skilled support personnel in an 

incident command emergency setting. Much of the program material is available in 

Spanish and a comprehensive web site serves both the English and the Spanishspeaking work forces. The five-day program addresses the training requirements of 

the Department of Transportation’s Hazardous Materials Regulations at 49 CFR 

Part 172, as well as the requirements of OSHA First Responder and Operations 

Level training under 29 CFR Part 1910.120. Railroads generally do not provide 

wages or support for workers attending the program. In fact—and this is most unfortunate—members sometimes are not allowed time off from work to attend the 

program, even though the railroad is not paying wages. 

The program currently serves eight rail unions, and at least ten crafts, from major 

railroads as well as from commuter and short-line railroads. This cross-company, 

cross-union, cross-craft training has proved invaluable, as one group learns from another. Each union has its own craft-specific tasks and challenges, and prior to this 

hazmat training program there was little, if any, cross-union training. Hazards and 

challenges faced by those in the yards may be different than those faced by road 

train crews, and different still from those who work along the track or in the shops. 

Understanding the work of other crafts, the safety and health challenges that 

each face, and the coordination of each craft’s efforts in an emergency, enhances 

railroad hazardous materials safety and security. A well-trained and knowledgeable 

workforce is the first line of defense and can prevent a minor incident from becoming a major hazardous materials accident. The eight rail unions have worked together to enhance rail safety by providing comprehensive training to its members 

and by providing substantial administrative and personnel support to the union-run 

Railway Workers Hazardous Materials Training Program. 

Labor has been able to offer these programs through a combination of federal 

funds and subsidies from the North American Railway Foundation, which is a private non-profit organization. However, subsidies and contributions are hard to come 

by. Nonetheless, we take great pride in having trained over 20,000 railroad workers 

since the program’s inception, and we hope that H.R. 1401 will enable us to broaden 

the program offered by the RWHMTP. At the end of the day, though, this represents 

but a small fraction of the railroad workers who require thorough, in-depth training, 

and recurrent training. 

Question 2.: The Chlorine Institute has estimated that a 90-ton rail tank car, 

if targeted by an explosive device, could create a toxic cloud 40 miles long and 10 

miles wide. Such a cloud, according to U.S. Naval Research Laboratory, could kill 

100,000 people in 30 minutes in a major metropolitan area. 

Are our frontline workers able to handle an attack of that nature today? 

We believe that they are not. To demonstrate the lack of preparedness, one need 

look no further than the tragedy that befell Graniteville, South Carolina, on January 6, 2005, when a moving Norfolk Southern train struck a standing train. While 

155 

no explosion was involved in Graniteville, the collision forces caused a tank car containing chlorine to breach, releasing chlorine gas. See NTSB/RAR–05/04 at p. v. The 

chlorine gas release caused the death of nine—including the train’s engineer, BLET 

member Chris Seeling—and injured over 550 others, including 74 who were admitted to hospitals. Id. A hazardous materials team was not requested until seven minutes after the accident occurred, and only after the fire chief arrived at the scene. 

Id. at p. 13. A properly trained crew may have made such a request more quickly, 

and the casualties might have been reduced. 

Question 3.: If not, why not? 

Worker training still has not been given the attention that it deserves. The industry simply does not devote sufficient resources either to providing initial training 

for new workers or for periodic recurrent training to freshen the knowledge and 

skills of veteran workers. Far too often, training schedules are dictated by the need 

to deploy new workers in the field, rather than ensuring that those workers, and 

their more senior co-workers, have the necessary tools and skills set to work safely 

and efficiently. This long-standing trend has only been exacerbated by the retirement of the Baby Boomer generation of railroad workers, which is now underway. 

Question 4.: What can be done to get them prepared? 

Industry inaction over the past 5° years establishes beyond serious question that 

Congress must pass legislation to compel rail corporations to train their workers on 

proper safety and evacuation procedures; the use of appropriate emergency escape 

apparatus; the special handling of hazardous materials; and the roles and responsibilities of railroad workers within the railroad’s security plans, including an understanding of the plan’s threat level index and notification to the appropriate workforce segment each time the threat level is changed. 

Question 5.: What do you see as the biggest security lapse in our freight/ 

passenger rail systems? 

The biggest lapses have occurred in worker training, and access to rail lines and 

yards, as demonstrated in the High Alert report. 

You have been critical of industry for focusing too much on technology for security 

and not focusing on training of frontline employees. But isn’t technology important? What do you feel is the right balance between technological and 

human resources as it pertains to security? 

Technology can provide much value in security, but only within reasonable limits. 

Frankly speaking, the railroad industry only becomes excited with technology when 

it can be deployed in such a way as to reduce labor costs by automating some procedure currently performed by a human being, thereby enabling the railroad to eliminate jobs. Adopting such an approach with respect to security technology would be 

a waste of precious resources with precious little in return. 

As we have seen through overreliance on technology in the intelligence sector and 

its failures, there are some things that human beings are better suited to do. Another example—perhaps better suited to rail security considerations—is the extent 

to which video cameras can enhance security. All of the terrorists who struck the 

London Underground in the July 7, 2005 attack were recorded on surveillance cameras; however, the existence of that technology did nothing to prevent the carnage. 

Even with optimal use of technology to enhance safety, which we support, railroad 

workers will continue to be the eyes and ears when it comes to security on the nation’s railroads. Neither the industry nor the nation can afford to overlook these 

workers, because continuing to deny the resources necessary to train them leaves 

us all in a more vulnerable position. 

Question 6.: In what areas would your members like to have more training with re-gards to security? Have you brought these concerns to the industry? If so, what was the response? 

Training has been horribly inadequate in all areas. Locomotive engineers, trainmen and track maintenance workers are the true first responders to rail emergencies—the eyes and ears of the industry. They are the first on the scene, and 

often the last to leave. Yet, the rail corporations do not have quality safety and security training in place. That failure places these first responders in harm’s way, and 

by extension puts the communities served by the railroads in harm’s way as well. 

Even since 9/11 and the attacks on rail and transit systems overseas, the security 

training given to rail employees has been minimal, usually comprised of nothing 

more than a printed brochure or 10-minute videotape. The shocking findings of the 

High Alert report identified in Question #1 above include the following: 

• 94% of respondents said that rail yard access was not secure; 

• 70% of respondents reported seeing trespassers in the yard; and 

156 

• only minimal security training had been provided to employees who have 

been warned that they could be the targets of a terrorist attack. 

We have voiced our concern in every conceivable venue and at every possible opportunity, also as indicated in our response to Question #1. The industry’s initial 

response was to claim that High Alert was nothing more than a propaganda piece 

issued in support of our collective bargaining goals. In more recent times, the industry has simply ignored our message, except to chant over and over—as if a mantra— 

that substantive training is being provided. However, the industry has yet to back 

up its claims with data or documents. 

Question 7.: You note in your testimony ‘‘attempts’’ by TSA and FTA to establish 

se-curity training programs for employees. Yet you go on to say that de-spite these 

efforts, there still is no real, comprehensive, security training in place. How do you 

account for TSA’s reluctance to put forth a com-prehensive, standardized 

security training program? Why do you think rail and mass transit security 

is not yet a true priority for DHS? 

Considering the manner in which the 9/11 attacks were launched, it was reasonable for the federal government to focus on securing the commercial aviation industry. However, as aviation security was enhanced, no increased focus on rail and 

transit was evident until recently, and expenditure levels since 2001 have remained 

disproportionately aviation-targeted. For example, in 2006, the federal government 

spent $4.7 billion for airline security but only $136 million for rail and transit. To 

be certain, the industry’s constant unsupported claims that security and preparedness could not be better have contributed to the general atmosphere. Interestingly, 

however, several months ago—when TSA and the Pipeline and Hazardous Materials 

Safety Administration proposed security regulations that included a requirement 

under which a railroad must be able to provide the location of a car carrying certain 

types of hazardous materials within one hour from a TSA request, the industry 

howled in protest. We believe the action taken by the House on rail security in this 

session is an excellent first step in putting us on the right track. 

Question 8.: Do you think that TSA should mandate security training for 

frontline rail and mass transit employees? 

Yes, security training for railroad workers should be federally mandated, so that 

it is consistent throughout the railroad and transit industries. The similar 

vulnerabilities between the industries—as well as within each industry—places essentially the same burden on Rail Conference members and other front line railroad 

workers 

Question 9.: As TSA started working to secure the aviation system in late 2001, 

it was heavily criticized for not involving aviation stakeholders in its efforts. In response, TSA committed to taking steps to enhance its coordination with stakeholders in the future. 

What steps is TSA taking to ensure that Labor organizations are part of 

this process? It is my understanding that TSA has not reached out to labor organizations representing the millions of men and women who are literally the eyes and 

ears of the rail and mass transit systems. 

We have seen very little in the way of attempts by the TSA to ensure that rail 

labor is a part of the process. TSA does not regularly communicate with opportunities for input afforded us for more than a year and a half are public comment periods mandated by the Administrative Procedures Act. 

Question 10.: What are the top three security practices used in other 

countries that you would like to see vetted here in the U.S. In your opinion, 

what are the obstacles to have those practices adopted here? 

It is difficult to answer this question. Rail systems are especially vulnerable to 

terrorist attacks. I think that because railroads in other countries have directly experienced attacks, they may know better how to respond to them. However, I think 

the nature of railroads everywhere is that they are widespread and difficult to protect from attacks. 

According to a GAO report on the subject entitled, ‘‘Passenger Rail Security, Enhanced Federal Leadership Needed to Prioritize and Guide Security Efforts,’’ some 

foreign rail operators use testing and simulations to help keep employees alert to 

security threats or randomly screen passengers. Centralized clearinghouses on rail 

security technologies, such as chemical sensors, and best practices are also maintained in some foreign countries, and we would do well to become part of that network if we have not already done so. Application of measures used in other countries may pose challenges in the U.S. but they may be worth looking into, at the 

very least. 

157 

Question 11.: In the event of an attack, the people on the scene, the frontline employees, are critical to minimizing loss of life in the event of an 

emergency. They are called to recognize threats as well as respond to them. 

Workers are critical as the first responders to railroad accidents, which is why the 

lack of training is especially outrageous. Locomotive engineers, trainmen and track 

maintenance workers are the true first responders to rail emergencies—the eyes and 

ears of the industry. They are the first on the scene, and often the last to leave. 

Yet, the rail corporations do not have quality safety and security training for their 

workers in place. That failure places these first responders in harm’s way, and by 

extension puts the communities served by the railroads in harm’s way as well. 

Question 12.: Which systems are getting it right? 

Because there has been no successful attack on any domestic rail freight, passenger, commuter or transit system since 9/11, we suspect that the industries would 

claim that they all are ‘‘getting it right.’’ Unfortunately, in the absence of a rigorous 

program of training and simulation, there will be no way to know who is getting 

it right until an attack is attempted. Therefore, the Rail Conference doesn’t believe 

that any railroad can claim such an achievement. 

Question 13.: Who are the shining stars of employee training? 

We believe that no railroad can make such a claim at this time. 

Question 14.: What weight does your organization put on hazmat training? 

We put a great deal of weight on hazmat training. As stated in response to Question #1, the Teamster Rail Conference, through its divisions, has long participated 

in the programs run by the National Labor College. These programs have been an 

integral part of our education and training of our members for many years. 

Question 15.: Chris Kozub from the National Transit Institute (NTI) has testified 

before our Committee on training for mass transit employees. In his testimony, he 

stated that NTI and FTA’s training had reached about 20% of the transit employee 

workforce which is approximated to be about 300,000. As of to-day that number has 

increased to slightly higher than 30%. While reaching 90,000 employees—many of 

whom are employed by the larger, security critical, metropolitan systems of the 

country—is a noteworthy accom-plishment, NTI is still below the halfway point and 

has a lot of work still to do. 

15. Do you feel that this is adequate to give workers the tools they need 

to respond to or prevent a disaster? 

Considering the fact that this figure does not include railroad workers, 30 percent 

is not enough. All workers who are on the front lines deserve to have the training 

they need to respond to incidents. Each weekday, 11.3 million passengers in 35 metropolitan areas and 22 states use some form of rail or mass transit. These passengers ride on trains that cover over 10,000 miles of commuter and urban rail 

lines. The very nature of the rail system makes it vulnerable to attack. In addition 

to the more than 10,000 miles of commuter and urban rail lines, there are 300,000 

miles of freight rail lines. These lines are open and easily accessible to the general 

public. If an incident should occur, the workers will be the first to respond to it— 

and they need training in order to be able to do so. 

Question 16.: Do you feel that the Federal Government should be responsible for en-suring that all employees receive training? 

The federal government should mandate training for all railroad employees, 

whether it is supervised by the government and administered by the railroads or 

simply administered by the government—it needs to be done, and done this year. 

TERRY ROSAPEP RESPONSES TO QUESTIONS FROM THE HON. BENNIE G. THOMPSON

Question 1.: What proactive measures has the Administration taken to 

prevent terrorist attacks to mass transit and rail infrastructure? 

Mr. Rosapep: The Department of Homeland Security (DHS) and its Transportation Security Administration (TSA) have primary responsibility for transportation 

security, with the Federal Transit Administration (FTA) and the Federal Railroad 

Administration (FRA) providing support in the transit sector and with FRA, FTA, 

and the Pipeline and Hazardous Materials Safety Administration (PHMSA) providing support in the railroad sector. I will focus first on FRA’s role and then on 

FTA’s role in these security efforts. 

FRA’s involvement in railroad security predates the terrorist attacks on September 11, 2001. From October 1995 (when a deliberate act of vandalism caused a 

fatal Amtrak derailment near Hyder, Arizona) through March 2006 (when the USA 

158 

PATRIOT Improvement and Reauthorization Act of 2005 was enacted), FRA helped 

develop, and worked with Congress to secure the enactment of, Federal criminal legislation to deter and punish more effectively terrorist attacks against railroads and 

mass transportation systems. See 18 U.S.C. § 1992. 

Since 9/11, FRA has been actively engaged in the railroad industry’s response to 

the terrorist threat. The railroads have developed their own security plans, and FRA 

has worked with the railroads, rail labor, and law enforcement personnel to develop 

the Railway Alert Network, which permits timely distribution of information and intelligence on security issues. Working with FTA, FRA has participated in security 

risk assessments on commuter railroads, and FRA has conducted security risk assessments of Amtrak as well. FRA and PHMSA also assisted TSA in conducting risk 

assessments of rail corridors carrying high quantities of toxic inhalation hazard materials, helping negotiate the 27 security action items that the railroads have voluntarily agreed to implement, and in the development of the recently issued TSA notice of proposed rulemaking (NPRM) to ensure secure handoffs of dangerous hazardous materials in high threat urban areas. FRA also assisted in the development 

of the recently issued PHMSA NPRM that would strengthen the railroads’ hazardous materials security plans. FRA’s security director works on a daily basis with 

government agencies and the railroad industry to facilitate communications on security issues, and also participates in security training, reviews security plans, and 

performs other activities to promote rail security. For example, in 2007, FRA intends to conduct at least 15 security training sessions for rail labor organizations, 

as well as four sessions at the FBI Academy on railroad security and emergency response for law enforcement personnel. FRA is also conducting various research and 

development that will improve the safety and security of railroad operations. 

With respect to FTA’s role in transportation security efforts, that agency developed and launched a set of transit industry security initiatives, including the following: 

—readiness assessments at 37 of the largest transit agencies (FRA partnered 

with FTA on four of these assessments conducted at commuter rail agencies.); 

—drill and exercise grants offered to the 100 largest transit agencies; 

—Connecting Communities Security and Emergency Management Regional 

Workshops held at 18 regions across the country; 

—on-site security and emergency management technical assistance provided to 

the 50 largest transit agencies; 

—funding improvements in intelligence and information sharing activities, such 

as the creation of the Public Transportation Information Sharing & Analysis 

Center (PT–ISAC); 

—expanding the transit industry security training curriculum by developing 

and distributing specific new counter 

-terrorism training courses; 

—establishing and sponsoring semi 

-annual Security Roundtables to facilitate peer-to-peer information sharing 

among the security chiefs at the 50 largest transit agencies; 

—developing a Top 20 security action items baseline assessment tool and using 

it to identify and prioritize the development of industry guidance products to 

address any deficiencies; 

—partnering with key industry stakeholders to develop and distribute an industry-wide ‘‘eyes & ears’’ campaign known as Transit Watch; and 

—establishing and increasing international informational networks to identify 

lessons learned, best practices, etc. 

With the creation of DHS (and the designation of TSA as the agency with responsibility for transportation security and the Office of Grants and Training (G&T) responsible for administering the transit security grant program), FTA has collaborated closely with DHS on transitioning its initial set of security initiatives to a Federal level partnership approach, per the terms of the DHS/DOT MOU Annex for 

Public Transportation Security. (Please see the response to Question 6, below, for 

more on the MOU Annex.) 

Coordination among FTA, TSA, and G&T has helped solidify the transit industry 

focus on three strategic security priorities: 

—security training for transit employees; 

—public awareness (such as the Transit Watch campaign); and 

—emergency preparedness. 

Question 2.: Each mode of transportation presents its own risks. How would you 

characterize the risks faced by passenger rail systems? How would you compare 

these with the risks faced by other modes of transportation? Is the current allocaVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00162 Fmt 6601 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
159 

tion of Federal resources for rail security commensurate with the unique risks these 

systems face? 

Mr. Rosapep: FRA works with and supports DHS, which has the lead on transportation security matters and may be able to provide additional information on this 

subject. FRA provided input for the National Infrastructure Protection Plan, which 

describes these risks in greater detail, compares the risks to which the various 

modes are exposed, and discusses matters pertinent to the available resources. In 

general, it should be noted that Amtrak, the Alaska Railroad Corporation, and commuter railroads provide passenger rail service to more than 500 million passengers 

yearly. Passenger operators face many challenges in their efforts to provide a secure 

public transportation environment. By definition, the systems are open, providing 

numerous points of access and egress, leading to high passenger turnover and making them difficult to monitor effectively. Amtrak, for example, operates as many as 

300 trains per day serving over 500 stations in 46 States, and Amtrak trains use 

tracks owned by freight railroads except for operations in the Northeast Corridor 

and in Michigan. 

Question 3.: What methods are being used to analyze and characterize 

the nature of various risks to rail and other modes of surface transportation? 

Mr. Rosapep: In the first few years after 9/11, FRA participated with FTA in 

security risk assessments on the ten largest commuter railroads and contributed the 

funding for security risk assessments on three of these railroads. In addition, FRA 

participated in FTA’s ‘‘best practices tool kit’’ initiative, contributing its knowledge 

of commuter rail operations, infrastructure, and organization to ensure that the recommended security enhancement measures were sound and feasible in a railroad 

environment. FRA staff continues to work closely with many of the railroads that 

receive FTA grant funding, to plan and assist in the development and implementation of security simulations and drills. Since the establishment of DHS, FRA has 

worked closely with and supported DHS in its leadership role on transportation security matters. As a general matter, in addition to the specific items discussed in 

these answers, FRA also devotes staff with both railroad knowledge and facilitation 

skills to the FTA—and TSA-sponsored workshops across the country (called ‘‘Connecting Communities’’) to bring together commuter railroads, emergency responders, 

and State and local government leaders so that they might better coordinate their 

security plans and emergency response efforts. DHS may be able to provide additional information on this subject. 

Risk assessments are the primary analytical tool used by transit agencies to 

measure, quantify and prioritize relative risks to their people, operations and infrastructure. The dimensions of these risk assessments include threats, vulnerabilities 

and consequences. 

The guidance that FTA and TSA provide to transit agencies regarding conducting 

risk assessments is as follows: 

—establish a risk management process that is based on a system 

-wide assessment of risks and obtain management approval of this process; 

—ensure proper training of management and staff responsible for managing the 

risk assessment process; 

—update the system 

-wide risk assessment whenever a new asset/facility is added or modified, and 

when conditions warrant (e.g., changes in threats or intelligence); 

—use the risk assessment process to prioritize security investments; and 

—coordinate with regional security partners, including Federal, State, and local 

governments and entities with shared infrastructure (example: other transit 

agencies or rail systems), to leverage resources and experience for conducting 

risk assessments. 

Question 4.: Why did President Bush only request an additional $4 million for surface transportation security? Your surface transportation security budget is still less than 1% of your aviation budget. 

Mr. Rosapep: This question refers to the DHS budget, and the response should 

come from DHS. 

Question 5.: What lessons can we learn from the attacks in Madrid, London and Mumbai? 

a. The London Underground’s security efforts—use of CCTV, station design, training, etc.—are often cited as best practices. Despite these efforts, 

the system was successfully attacked. What does this mean for other passenger rail systems? Can attacks be prevented? If so, should we focus most 

160 

of our efforts and dollars on response and recovery, rather than prevention? 

Mr. Rosapep: We cannot guarantee that all terrorist attacks on transit can be 

prevented. However, some terrorist attacks have been prevented, primarily through 

effective intelligence—specific, timely analytical information that is shared with the 

appropriate authorities responsible for acting upon the information. The key is establishing and sustaining a comprehensive, balanced approach to transit security ? 

prevention, deterrence, mitigation, and response/recovery. 

Some specific lessons learned: 

Madrid: It underscores the important need for an ‘‘Eyes & Ears’’ campaign, like 

Transit Watch, and security awareness training for transit employees, to increase 

the odds of terrorists being detected during their casing/rehearsal activities. 

[London: Most of the casualties occurred at the London Underground station with 

tight clearances between the tunnel and the rail cars, such that most of the blast 

pattern effects of the improvised explosive device had nowhere to go but back into 

the railcars. While retrofitting/hardening very old infrastructure may be very challenging and expensive, this highlights the importance of mitigating terrorist attacks 

through security design. 

Mumbai: Planning of these attacks may have been aided by inside workers, emphasizing the importance of conducting background checks on employees, contractors, vendors, and others. 

Question 6.: In 2005, the Government Accountability Office testified before the 

Senate Committee on Commerce, Science, and Transportation that coordination between the Departments of Homeland Security and Transportation could be improved, noting the lack of coordination could lead to confusion, duplication, and gaps 

in preparedness. Has coordination improved? What steps should be taken to 

further improve coordination? 

Mr. Rosapep: In September 2004, DOT and DHS entered into a memorandum 

of understanding (MOU) concerning their respective roles on security issues. The 

MOU notes that DHS has primary responsibility for security in all modes of transportation, but also recognizes that DOT plays a supporting role, providing technical 

assistance and assisting DHS when possible with the implementation of its security 

policies. The MOU reflects the agencies’ shared commitment to a systems risk-based 

approach and to development of practical solutions, recognizing that each agency 

brings core competencies, legal authorities, resources, and expertise to the railroad 

transportation mission. The MOU requires early coordination between the parties 

on the development of regulations affecting security. Separate annexes have been 

signed concerning the implementation of the Homeland Security Council’s recommendations concerning toxic inhalation hazard materials, and concerning the 

day-to-day coordination between FRA and TSA, among FTA, TSA, and DHS’s G&T, 

and between PHMSA and TSA on security matters. 

For example, the FRA–TSA annex provides for close cooperation between the two 

agencies on their programs and activities, including regulations affecting railroad 

security, legislation, research and development, inspection activities, and the response to threats to railroad security in order to maximize passenger and freight 

railroad security while minimizing disruptions to railroad operations to the extent 

practicable. The agreement provides that if an FRA inspector observes a significant 

security issue, the information will be provided to TSA and the railroad; similarly, 

if a TSA inspector observes a significant rail safety issue, the information will be 

provided to FRA and the railroad. FRA has one full-time employee addressing rail 

security matters, and all of FRA’s 71 hazardous material inspectors and specialists, 

along with 17 State inspectors, devote a portion of their time to reviewing railroad 

and rail shipper security plans for compliance with PHMSA’s hazardous materials 

security regulations. 

While TSA inspectors have lead authority and responsibility in conducting security inspections and reviews, the interagency MOU does permit the use of FRA inspectors to support TSA’s security efforts. FRA inspectors have conducted basic security reviews of Amtrak and commuter railroad security both after the 2004 train 

bombings in Madrid and after the 2005 transit bombings in London. In both cases, 

FRA inspectors were deployed immediately after the bombings to assess the security 

posture of passenger railroad facilities based on a checklist of major security criteria. In the aftermath of the London bombings, FRA worked closely on these security reviews with TSA’s rail security inspectors. TSA focused primarily on urban 

rapid transit lines, while FRA inspectors concentrated on commuter and intercity 

rail passenger operations; in some situations, inspectors from the two agencies 

worked jointly. FRA will continue to support TSA in responding to rail security 

threats. 

161 

FRA, FTA, and PHMSA have assisted DHS and TSA in the preparation of the 

National Infrastructure Protection Plan issued in June 2006, and have actively supported DHS and TSA’s efforts to develop Sector-Specific Plans for critical infrastructure protection, as required by Executive Order 13416. I have previously noted how 

the three agencies have worked closely together on hazardous materials corridor 

risk assessments, assisting the railroads in adopting security best practices (known 

as security action items) for the transportation of certain hazardous materials, and 

developing NPRMS dealing with railroad hazardous material security. FRA has 

added TSA as a member of FRA’s Railroad Safety Advisory Committee, the group 

that assists FRA in developing its safety regulations, in order to ensure that FRA’s 

regulations advance both rail safety and security. From the time that DHS was created, FRA and TSA realized that close coordination was essential due to the great 

overlap between safety and security, and the two agencies have worked closely together since then. The close relationship of TSA, FRA, and PHMSA is reflected in 

the two recently issued, coordinated NPRMs to enhance the security of rail transportation. 

FRA will continue to support DHS in carrying out its security responsibilities, and 

work with the rail industry to secure the Nation’s freight and passenger railroad 

network. Together, DOT, DHS, and the rail industry are helping to ensure that security initiatives and programs are directed at potential threats to the Nation’s railroad network and that rail employees and others responsible for its security are prepared to identify and address such threats. 

The Annex agreed to by FTA, TSA, and G&T stipulates that these agencies have 

a mutual interest in ensuring coordinated, consistent, and effective activities that 

have the potential to materially affect the missions of both departments and sets 

out to delineate clear lines of authority and responsibility between the parties for 

transit security. Pursuant to this annex, DOT and DHS agreed to coordinate their 

programs and services, including training; awareness programs; emergency preparedness; security forums; information sharing; drills and exercises; risk assessment and reviews; technical assistance; research and technology; security standards; 

transit security grants programs; and interoperable communication. The Annex also 

stipulates that the FTA, TSA, and G&T will establish and implement an annual 

plan that will coordinate their transit security programs. 

In support of the MOU Annex implementation, eight working groups have been 

established under an Executive Steering Committee comprised of leadership representatives from TSA, FTA and G&T to provide for coordination of public transit 

security programs as identified and agreed to in the Annex. These working groups 

are being integrated into the Transit, Commuter and Long Distance Rail Government Coordinating Council to facilitate engagement as necessary with the Mass 

Transit Sector Coordinating Council under the Critical Infrastructure Protection Advisory Council process. As part of its efforts to coordinate the programs of the participating agencies, the Executive Steering Committee is also responsible for identifying emerging needs in public transportation security and making coordinated policy recommendations to the leadership of each agency. 

The Executive Steering Committee established the following project management 

teams: 

• Assessments & Technical Assistance 

• Standards & Research 

• Transit Watch & Connecting Communities 

• Transit Safety & Security Roundtables 

• National Resource Center 

• Training 

• Annual Plan, Regional Transit Security Strategies and Grants 

• Emergency Drills/Exercises 

Question 7.: Do you think TSA should mandate security training for mass 

transit employees? 

Mr. Rosapep: If transit agencies are mandated to conduct various training 

courses, many of them may strive for that minimum and not go above and beyond 

what may be desirable. We need to recognize and applaud the great strides that 

transit agencies have taken to incorporate training into their security programs and 

provide additional opportunities that allow them to take advantage of the existing 

offerings. Historically, the transit industry has been extremely receptive to guidance 

from the Federal government. The Federal government, therefore, should concentrate its resources on continued guidance and provide the resources necessary for 

transit agencies to take advantage of the existing and future offerings. 

According to the GAO, the FRA has been focusing its efforts to improve rail safety, addressing issues such as human error, inspections, and rail track failures. It 

162 

seems that the industry views safety as a bigger, more pressing concern than the 

risk of terrorism. 

Question 8.: Is there a nexus between safety and security concerns? 

Where do those issues overlap and where do they diverge? 

Mr. Rosapep: Rail safety and security are interrelated. FRA’s primary mission 

is to promote the safety of the U.S. railroad industry and to reduce the number and 

severity of accidents and incidents arising from railroad operations. FRA’s railroad 

safety mission necessarily includes its involvement in railroad security issues. As 

previously stated, DHS and its TSA have primary responsibility for transportation 

security, with FRA, FTA, and PHMSA providing support in the railroad sector. FRA 

works closely with TSA and the railroad industry on a daily basis in addressing railroad safety issues that involve security, participates in the Government Coordinating Council for Rail, and contributes its expertise to the implementation of Executive Order 13416, ‘‘Strengthening Surface Transportation Security,’’ including providing input for the National Infrastructure Protection Plan and Sector Specific 

Plans, as well as the National Strategy for Transportation Security. 

While FRA’s rules are focused on the safety of railroad operations, they necessarily have some bearing on security. For example, Federal passenger and freight 

equipment standards are intended to ensure that the equipment can withstand 

forces of derailments and collisions, whether caused by accidents or deliberate acts, 

thereby helping to protect passengers, employees, and surrounding communities. 

PHMSA’s December 21, 2006 NPRM on rail security proposes changes to the Hazardous Materials Regulations that would require rail carriers to inspect tank cars 

carrying hazardous material for the presence of improvised explosive devices or 

other suspicious objects. Carriers would likely perform that inspection at the same 

time as a safety inspection. 

Question 9.: What measures have been or can be implemented that serves 

both purposes of safety and security? 

Mr. Rosapep: FRA considers security concerns when developing rail safety rules. 

For example, FRA’s January 2002 final rule barring most extraterritorial dispatching of U.S. railroad operations addresses the agency’s concerns about the security of foreign dispatching facilities. See 49 CFR Part 241. Similarly, in 1998 FRA 

issued a regulation requiring passenger railroads to prepare, and obtain FRA approval of, plans to address emergencies arising from accidental or criminal events, 

including security threats. Each plan must address employee training and qualification, provide for initial and recurrent training of employees on the plans and coordination with emergency responders, and provide for the conducting of emergency 

simulation drills with actual equipment and simulated victims. See 49 CFR Part 

239. In addition, FRA’s safety regulations can affect both safety and security. For 

example, FRA issued comprehensive safety standards for passenger equipment in 

1999, including requirements for crashworthiness, fire safety, and emergency systems that help protect against, or reduce the consequences of, accidental events as 

well as deliberate acts. See 49 CFR Part 238. FRA will continue monitoring passenger railroads for compliance with this regulation and attend each full-scale simulation and follow-up review session, and has invited TSA to participate in these 

audits. 

FRA has a passenger equipment rulemaking well underway that will help promote passenger and employee safety in an emergency situation whether resulting 

from accidental or intentional acts. The rulemaking would address passenger/crew 

communication systems, provide for enhanced requirements for emergency window 

exits in passenger cars, and mandate that all passenger cars, including existing 

cars, have rescue windows for emergency responder access. See 71 FR 50276; August 24, 2006. A separate FRA regulatory proposal in development would enhance 

current requirements for passenger car emergency signage and lighting, and introduce new requirements for low-location exit path marking. 

In addition, FRA enforces in the rail mode of transportation the Hazardous Materials Regulations, which are promulgated by PHMSA. These regulations include requirements that railroads and other transporters of hazardous material, as well as 

shippers, have and adhere to security plans and also train their employees involved 

in offering, accepting, or transporting hazardous material on both safety and security matters. In December 2006 PHMSA proposed enhancements to its security 

plans requirements that would require carriers to choose the safest, most secure 

route, for the movement of certain hazardous materials. In addition, both agencies 

are jointly engaged in a comprehensive review of design and operational factors that 

affect the safety of transportation of hazardous material by railroad tank car and 

are hard at work on a proposal for better tank car design standards. 

163 

Finally, FRA conducts and supports research, development, and demonstration 

projects related to rail safety and rail security through its Office of Research and 

Development, in cooperation with DHS. Both theoretical and applied research on a 

wide range of issues has led to impressive results and to tangible technology and 

process improvements. 

Question 10.: Do you believe that the risk assessments conducted with 

Amtrak are sufficient to prevent a potential terrorist attack? 

Mr. Rosapep: Complementing FRA and TSA efforts, Amtrak has instituted its 

own security plan and conducts security training. FRA assisted Amtrak in the updating of its security plan. Specifically, in coordination with Amtrak’s Inspector 

General, FRA contracted with the RAND Corporation to conduct a systematic review and assessment of Amtrak’s security posture, corporate strategic security planning, and programs focusing on the adequacy of preparedness for combating terrorist threats. FRA, in conjunction with the Amtrak Board and management, has 

established goals based on the RAND study and has developed a substantive action 

plan for Amtrak to enhance its strategic security planning and better synchronize 

its overall risk management with cost effective security investment decisions. FRA’s 

security director is currently working with Amtrak in implementing the recommendations of the RAND study. So far, in carrying out the action plan, Amtrak 

has hired a Vice President for Risk Management, made management and organizational changes at the Amtrak police force, and conducted drills and exercises with 

Federal, state and local agencies to leverage interoperability and resources. In addition, Amtrak is developing a comprehensive corporate security plan and security investment plan. 

Chris Kozub from the National Transit Institute (NTI) has testified before our 

Committee on training for mass transit employees. In his testimony, he stated that 

NTI and FTA’s training had reached about 20% of the transit employee workforce, 

which is approximated to be about 300,000. As of today that number has increased 

to slightly higher than 30%. While reaching 90,000 employees—many of whom are 

employed by the larger, security critical, metropolitan systems of the country—is a 

noteworthy accomplishment, NTI is still below the halfway point and has a lot of 

work still to do. 

Question 11.: What steps have been taken to reach the remaining 70%? 

Mr. Rosapep: In collaboration with TSA, FTA has obligated funds for an additional 80 deliveries of the following security courses: 

—Terrorist Activity Recognition and Response; 

—National Incident Management System Training for Transit Employees; 

—Strategic Counter Terrorism Training for Transit Managers; and 

—Chem/Bio for Operations Control Center Personnel. 

FTA has developed a Strategic Curriculum Development Process for the development and revision of all FTA-sponsored safety and security courses. This process is 

in line with the DHS G&T requirement for course approval. To date, FTA has three 

security courses successfully revised into the new format which received approval 

from DHS G&T as ‘‘approved’’ courses. This benefits the grant recipient transit 

agencies as they can apply for training grants to take the course. (This assists in 

the funding of overtime and backfilling of positions when employees are sent to the 

training.) This action should assist the transit agencies by removing a funding barrier, making it easier for them to send employees to the training. 

Additionally, FTA is in the process of assessing the top 30 transit agencies and 

smaller and rural transit properties to determine what training courses they have 

provided to their employees as well as whom they are requiring to be trained within 

their agency. This needs assessment will allow FTA and its partners to better serve 

the transit industry with regard to transit security training and understanding 

what barriers transit agencies are facing with regard to the implementation of 

training programs. 

Finally, FTA, in collaboration with the National Transit Institute, is developing 

a comprehensive safety and security training DVD that will be sent out the targeted 

transit agencies to provide them with updated information on course overviews, 

training schedules, and registration and contact information. This will provide a 

one-stop shopping approach to enhance the availability of the training information. 

It is with the above actions that we anticipate closing the gap of untrained transit 

employees. 

Question 12.: Which agency is responsible for ensuring that all employees 

receive training? 

Mr. Rosapep: Transit security training is a shared responsibility among FTA, 

TSA, and G&T. TSA and G&T have the ability to provide monetary resources that 

164 

will allow the transit industry to take advantage of existing training courses. FTA 

has the historical knowledge and established relationships with experienced training providers. 

Question 13.: It is my understanding that as drafted the Notices of Proposed Rulemaking (NPRMs) recently released by TSA and the Department 

of Transportation will preclude state and local officials from mandating the 

rerouting of hazardous materials. Why did you include this provision in 

your NPRM? 

Mr. Rosapep: State and local officials are already precluded from mandating the 

rerouting of hazardous materials under statutory preemption provisions at 49 

U.S.C. §§ 20106 and 5125 (Sections 20106 and 5125). Section 20106 was originally 

enacted in the Federal Railroad Safety Act of 1970, then reenacted as positive law 

in the 1994 recodification, and subsequently amended; it requires that standards related to railroad safety and standards related to railroad security be ‘‘nationally uniform to the extent practicable.’’ Under Section 20106, a State may adopt or continue 

in force a law, regulation, or order related to railroad safety or security until the 

Secretary of Transportation (with respect to rail safety matters) or the Secretary of 

Homeland Security (with respect to rail security matters) issues a regulation or 

order covering the subject matter of the State requirement. 

PHMSA has covered the subject matter of rail routing of hazardous materials 

when it promulgated a final rule in 2003 that permitted railroads to tailor their en 

route security measures to their individual circumstance through required security 

plans. 49 C.F.R. § 172.800 et seq. See the Court of Appeals’ decision in CSX Transp., 

Inc. v. Williams, 406 F.3d 667 (D.C. Cir. 2005). That decision also found that the 

exception in Section 20106 (which allows a State to have an additional or more 

stringent law, regulation, or order when the State law, regulation, or order (1) is 

necessary to eliminate or reduce an essentially local safety or security hazard, (2) 

is not incompatible with a Federal law, regulation, or order, and (3) does not unreasonably burden interstate commerce) is not applicable to the forced rerouting of rail 

shipments of hazardous materials. 

PHMSA’s December 21, 2006 proposed rule would add additional railroad security 

planning requirements with respect to routing of certain hazardous materials that 

will enhance the safety and security of the rail movement of these commodities. 

Railroads would be required to compile annual data on specified shipments of hazardous materials, use the data to analyze safety and security risks along rail transportation routes where those materials are transported, assess alternative routing 

options, and choose the routes that posed the least safety and security risk. The 

NPRM also contains provisions requiring DOT access to data, route analysis, and 

route selection. This would provide DOT with basic oversight of, and insight into, 

route analysis performed by carriers. If the chosen route is found not to be the 

safest and most secure, commercially practical route, FRA would be permitted to require use of an alternative route until such time as the identified deficiencies are 

satisfactorily addressed. The coordinated NPRM issued by TSA would also add 

chain-of-custody, attendance, and tracking requirements for rail cars containing 

these hazardous materials. 

In addition, Section 5125 in the Federal hazardous material transportation law 

provides that a requirement established by a State, locality, or Indian tribe is preempted if it is not possible to comply with that requirement and a Federal requirement or compliance with the non-Federal requirement would create an obstacle to 

accomplishing and carrying out the Federal hazardous material transportation law 

or a regulation issued under that law. 

Unlike truck routing, with its web of interstate highways, toll roads, bypasses, 

and two-lane rural roads crisscrossing the country, within the rail system there are 

only a limited number of routing alternatives. Rail lines generally run through, 

rather than around, major metropolitan areas, and many hazardous material shipments originate in, and/or are destined for, locations in heavily populated areas. It 

would be totally impracticable to allow States and cities to mandate the rerouting 

of hazardous materials in order to shift the security risks associated with the transportation of hazardous materials to other jurisdictions. 

FRED WEIDERHOLD RESPONSES TO HON. BENNIE G. THOMPSON QUESTIONS

Note: 

The questions posed in the initial information request have been renumbered in 

accordance with a reasonable clustering of their overlapping nature. In turn, some 

of the questions that do not directly relate to the responsibilities of the Amtrak Office of Inspector General have been eschewed, in favor of a focus on areas where 

165 

my office has recent and valid experience and knowledge. To this end the text and 

numbering of the questions is re-ordered in each of the responses below. 

Question 1. Your industry has continuously resisted mandatory security 

plans and vulnerability assessments, which will be required by this legislation. However, ports, the chemical industry, and the aviation industry all 

have to submit mandatory plans to DHS. Why do you feel that your industry should be excluded from this requirement? 

Response: I disagree with this characterization of the railroad industry position. 

The industry undertook a forward-leaning approach following 911, with independently designed security plans, vulnerability assessments, and threat based alert-systems all deployed consistent with developed industry standards. We exercised selfhelp when the Department of Homeland Security (DHS) and the Transportation Security Administration (TSA) seemed focused on the aviation sector, sometimes to the 

apparent exclusion of surface transportation matters. At the same time, the attention we did receive from TSA was at times grudging, and the result of consistent 

attempts by us to integrate our ongoing efforts into what we sometimes viewed as 

a flawed federal government approach to protecting critical infrastructure. Principal 

among our concerns is the preparedness of TSA inspectors—and inspections—to 

deal with the special safety and infrastructure peculiarities of the rail environment. 

Collaborative discussion of rail security and infrastructure protection concepts, 

alongside an acknowledgment by government that the assessments we have undertaken have standing relative to any new requirements for baseline security reviews, 

is the first step to making the sector security progress we all hold as a shared objective. 

Question 2.: According to the GAO, the FRA has been focusing its efforts to improve rail safety, addressing issues such as human error, inspections, and rail track 

failure. It seems that the industry views safety as a bigger, more pressing concern 

than the risk of terrorism. 

(a) Is there a nexus between safety and security concerns? Where do 

these issues overlap and where do they diverge? 

There is undoubtedly a nexus between safety preparations and appropriately addressing security concerns. Protection of passenger, personnel, and public safety is 

the highest priority of the rail operator. Consistent with this value, we have implemented safety protocols designed to protect both the traveling public, our passengers, employees—and persons who have only incidental contact with our rights 

of way and infrastructure. Many of these measures have been implemented consistent with our obligations under federal regulations. In addition we have endeavored to conform to the spirit of the RAILPAX (02) security directives promulgated 

by TSA. We remain concerned that any security rules must be based in rigorous risk 

assessments. It is critically important that whatever progress we make in terms of 

terrorism risk mitigation not come at the cost of reductions in hard-won improvements in safety and accident prevention. Reconciling federal critical infrastructure 

protection objectives with parallel societal interests in enhanced safety is appropriately a subject of Congressional deliberations with the Administration. 

(b) What measures have been or can be implemented that serves both 

the purposes of safety and security? 

Improvements in passenger flow management promise dividends in both the safety and security domains. Amtrak has undertaken efforts at at least one major station to rationalize passenger movements within the facility to enhance the ability 

to control access to sensitive areas. In turn, these measures help to ensure against 

inadvertent passenger entry into areas where potentially dangerous infrastructure 

and equipment are located. 

Regular inventories of changes in critical infrastructure equipment—and critical 

system features—help to ensure that potentially vulnerable areas receive timely assessment and protection. As railroads attempt to leverage advances in computing 

and communications technologies to achieve greater efficiencies, it is particularly 

important that continuous oversight be maintained on the safety and security significance of particular systems and operating processes. My office focuses much of 

its security oversight activities in this problem area. 

Question 3.: Do you believe that risk assessments conducted with Amtrak 

are sufficient to prevent a potential terrorist attack? 

Assessments by themselves are unlikely to be sufficient to prevent a potential terrorist attack. Nonetheless, assessments are a critical part of the process of understanding—and thereby reducing—the terrorism risk exposure of railroad operations. 

This is why the methodologies used in risk assessments must be both rigorous and 

validated ? hopefully through empirical testing in as many representative railroad 

166 

environments as possible. Similarly, those undertaking such assessments must be 

knowledgeable about the railroad sector, and sensitive to the historical record or terrorist attacks on passenger and freight rail. With this sound basis for assessments, 

suggested remedial measures can themselves be evaluated for cost-effective application to varying rail conditions. 

Question 4.: Given the open nature of passenger rail systems—multiple 

access points, large crowds of people, and no barriers—can anything be 

done to protect these systems? 

While passenger rail systems are difficult to protect, there are things that can be 

done to manage the risk to rail operations and to passenger and worker security. 

Among the measures that Amtrak and commuter rail operators have taken are: assessments of vulnerability in critical facilities such as stations and infrastructure 

elements, surveillance and counter-surveillance operations designed to deter against 

terrorist exploitation of infrastructure weaknesses, alert-based modifications to passenger flow inside stations to present a different ’defensive posture’ to potential 

attackers who are undertaking surveillance, and increased uses of technology to detect potentially hazardous materials wherever they might be introduced within the 

public transportation system. All of these measures are designed to harden the passenger rail environment. It remains the case, however, that any hardening or deterrent effects that are achieved are themselves only relative, and may be time-bound 

and only conditionally effective, given uncertainties on the evolution of the terror 

threat. 

Question 5.: How have you determined the greatest risk of attack for 

your system? What is the greatest risk? 

Risk exposure for passenger (and freight) rail environments is assessed against 

the available threat information and vulnerability exposure of a particular infrastructure setting. Rigorous and frequent evaluations provide the information necessary to identify critical infrastructure and key assets that are fundamental to 

maintaining continuity of operations—as well as public (passenger) and personnel 

security. Information on key assets and critical node vulnerabilities is sensitive, and 

is not appropriately discussed in an open setting. I would be happy to share our insights on these subjects in a more controlled information dissemination process. 

6. What is your response to criticism that the industry cannot be trusted 

to police itself? 

I would challenge those that hold this view, with the information I related in response to question 1. The Class 1 railroads have undertaken considerable self-help 

in establishing a basis for sector infrastructure protection that matches many of the 

measures taken elsewhere in the U.S. What has been lacking until relatively recently is an acknowledgment by federal policy makers that the sector has adopted 

many measures equivalent in effect to proposed risk mitigation mandates articulated—often at a very superficial level—by our industry critics. Assessments by 

themselves do not improve the terrorism risk mitigation capabilities of the sector. 

Similarly, inspections will not by themselves do much to add protective and risk 

mitigation capacity. Instead, a virtuous cycle of inspections and evaluations, deployment of protective measures and protocols, and an evaluation of measure efficacy 

using rigorously validated metrics for risk management must be established. Once 

this is achieved, management of terror threats to passenger (and freight) rail will 

be placed on a much firmer basis. 

Question 7.: You’ve stated previously that a difficulty with improving 

your security posture is lack of security standards. You went on to say that 

the directives prepared by DHS in 2004 ‘‘are not necessarily the comprehensive basis for an effective rail passenger security strategy.’’ In your 

opinion, what should DHS do to provide industry with a comprehensive 

strategy? 

A first set of measures that DHS could undertake would be to reconcile continuous calls for measures to improve terrorism risk management in the rail sector 

with an acknowledgment of the measures that have already been taken since 2004 

to achieve the same end. Put succinctly, continual calls for assessments do not adequately acknowledge the progress already achieved in evaluating the criticality of 

rail infrastructure and process control elements. Much of rail is readily aware of its 

vulnerability exposure, and has undertaken measures designed to reduce that exposure. Acknowledgment that these measures have been taken, and a requisite revision to national and sector-wide protective strategies articulated by DHS and TSA, 

would be a tremendous improvement over the current situation. Once acknowledged, the focus of strategy-design would shift from a top-down protective effort to 

a more incrementally ‘‘do-able’’ reconciliation strategy, that would seek to ‘‘knit toVerDate Nov 24 2008 14:16 May 21, 2009 Jkt 000000 PO 00000 Frm 00170 Fmt 6601 Sfmt 6621 H:\DOCS\110-HRGS\110-12\35271.TXT HSEC PsN: DIANE
167 

gether’’ the efforts of the Class 1 and other (smaller) railroads—with those of the 

transit and commuter rail sectors—into a mutually reinforcing process of sector improvements. The security standards-creation (and/or security regulatory) process 

would thus be based on emerging industry best practices, rather than upon imposed 

regulations which are non-validated against meaningful metrics for assessing their 

value for terrorism risk mitigation. 

Question 8.: Is it your opinion that rail and mass transit stakeholders are 

appropriately involved as TSA moves forward with current and future security efforts, such as the recently issued proposed rule on rail? 

The SCC–GCC process within which passenger rail is consulted on appropriate responses to security/terrorism risk exposure, is one that has the potential to fully address sector concerns with respect to establishing an effective security regulatory 

framework. These efforts are a work in progress, and the establishment of working 

relationships between government agencies and railroad organizations is something 

that requires time and effort on both sides. I am cautiously optimistic that, with 

a genuine effort by all involved parties, concrete improvements in this area will be 

achieved. 

Question 9.: TSA has recently issues a Notice of Proposed Rule making (NPRM) 

that would impose several new security requirements for rail carriers, rail transit 

systems; and rail operations at certain facilities that ship or receive hazardous materials. As part of this proposal, TSA would require rail and transit operators (as 

well as hazmat facilities) to allow physical inspection of their operations. In addition, chain of custody and hazmat tracking requirements will need to be enforced. 

How many additional inspectors—TSA inspectors—do you anticipate will 

be needed for this expanded role? 

The answer to this question depends on the duties and training of the inspection 

force, together with developments in the ‘‘ambient’’ threat environment—against 

which the validity of protective measures must be continually evaluated. I am uncomfortable focusing on the number of inspectors as an appropriate index of the inspection capabilities necessary to maintain appropriate oversight of security developments (and regulatory compliance). Rather, emphasis should be placed on the empirical rigor and validity of the assessment methodologies used by these inspectors, 

and on the important differences that exist within different rail (passenger and 

freight), and industry settings. The TSA NPRM makes a number of assumptions relative to the likely development of autonomous security and best practice developments that might occur in industry in the absence of government regulations. These 

assumptions should be evaluated against the record since 2004 of industry leadership in the design and implementation of terrorism risk mitigation measures. The 

activities of inspectors—and the qualifications that these individuals should have 

before they are allowed on a rail property—should be determined in the context of 

developing industry best practices. 

Question 10.: How would you compare the risks facing the passenger rail 

systems with the risks faced by other modes of transportation? Is the current allocation of federal resources for rail security commensurate with the 

unique risks these systems face? 

Comparisons of terrorism risk exposure across critical sectors are inherently difficult. Achieving such a comparison among different transportation modes is doubly 

difficult and uncertain. After all, what criteria is one to use for assessing ‘‘relative’’ 

risk? History? Known vulnerability exposure? The ‘‘Revealed Preferences’’ of terrorists-as discerned through intelligence or informed opinion? It is perhaps safest to 

focus on the groups determined to pose the greatest threat to US homeland and national security, and then derive a relatively rigorous ‘‘threat profile’’ of their ’modus 

operandi’ relative to infrastructure attacks—determining their favored targets, attack methods, and pre-attack surveillance behavior. Using such a methodology, it 

is difficult to avoid the conclusion that passenger rail is a favored target of terrorists—the terrorists with which we are most concerned—Al Qaeda and its jihadist 

adherents around the world. Events since 911 reinforce this conclusion, with Moscow, Madrid, London and Mumbai offering empirical validation of the frequency of 

attacks using explosives against passenger rail targets. 

The critical question is: given this history, and revealed preference set of terrorists, are we doing all that can be done to increase the detection, deterrence and risk 

mitigation of potential attacks? Federal priorities should reflect the historical record 

of attacks against critical infrastructures—but they must also be sensitive to 

changes in the attack environment. Leveraging intelligence insights with a representative set of expert input might be the best way to appropriately capture the 

168 

dynamism of the risk environment—enhancing response sensitivity to the changing 

validity of selected response measures. 

Question 11.: Is the President’s budget request reasonable to help secure the Nation’s rail and mass transit systems? Is the disproportionately low amount of TSA’s 

budget ($41.4 million out of $6.4 billion) dedicated to rail and mass transit security 

and indication to your organizations that it is not a priority of DHS? 

Historically, passenger rail has not received the security funding from the Federal 

Government commensurate with the apparent terrorism risks to which it is exposed. 

In turn, the grant mechanism for providing support has itself been changeable, typically favoring state and locally supported entities. Amtrak was not even eligible for 

security grants before FY2005. In the light of this funding and assessment environment, it can be observed that the low level of funding has been inconsistent with 

the recent history of attacks on passenger rail. At the same time, the threat environment is uncertain, and the exact level and nature of funding required to meaningfully improve terrorism risk management remains to be determined. 

Question 12.: What are your thoughts in the utilization of security practices used by other countries? 

As I noted in my responses to some of the other questions, the international experience with terrorist attacks on passenger rail is unfortunately rich with events and 

casualties. Different countries have varying experience in responding to these 

events, typically conditioned by their national legal systems, and historical experiences with terrorism. 

It is undoubtedly the case that foreign countries have potentially usable experiences dealing with terrorism related to rail targets. Sensitive insights and information on rail-targeted terrorism is shared between law enforcement agencies in different countries. Much of this sharing takes place through established channels— 

structured agency to agency relationships crafted for other reasons. In the aftermath of the Madrid bombings my office facilitated links between the Guardia Civil 

in Spain and the Amtrak Police Department (and other interested stake holders)— 

whereby highly sensitive and otherwise unavailable insights were gained into the 

attack planning, device design, and operational practices—of a terrorist cell. After 

the Mumbai bombings insights were gained into device design and placement from 

specialists employed by the NYPD. These agents were deployed to India prior to 

those events, and were able to provide invaluable information on the nature of the 

attacks, and early investigative clues. Subsequently my office was able to use established contacts with Indian Railroad Ministry to gain even more insight into the lessons learned from that unfortunate incident. 

The investigative and forensic analysis excellence of the British railroad police is 

widely acknowledged. Of special importance in the British context is the extensive 

use of railroad surveillance (i.e. CCTV) in reconstruction of the rail bombers plans 

and pre-attack practice. Also of note in the British context was the speed with which 

the rail system returned to normal operation following the attacks. This return to 

normal service was facilitated by the ability of responding agencies to instill confidence in the traveling public that they understood the nature of the terrorism risk 

confronting the rail system, and that they had taken appropriate near-term measures to manage that risk—enabling a return to something approximating normal 

service. 

It is remains unclear the exact scope of the applicability of foreign experience to 

the U.S. Context. Public tolerance of wide-area surveillance of rail travel, and the 

use of operational modifications to rail travel habits as a risk mitigation measure, 

are largely untried in this country. Experimentation on different response regimes 

may allow for sustained progress in terrorism risk mitigation without compromising 

the advantages of the open and flexible rail environment. Federal policy should seek 

to foster the adoption of a varied set of protective responses—as both a means of 

increasing the protective efficacy of risk mitigation, but also to indicate to the public 

the continual prevalence of protection throughout all aspects of the U.S. Transportation system. Such an effort could help to allay perceptions that surface transportation modes receive less aggressive protection than is true of the aviation sector. 

Æ