I 

109TH CONGRESS 

1ST SESSION H. R. 1414 

To direct the Secretary of Homeland Security to issue regulations concerning 

the shipping of extremely hazardous materials, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 17, 2005 

Mr. MARKEY (for himself, Ms. NORTON, Mr. KUCINICH, Mr. PALLONE, Ms. 

LEE, Mrs. MALONEY, Mr. THOMPSON of Mississippi, Mr. HOLT, Mrs. 

JONES of Ohio, Ms. BERKLEY, Mr. GRIJALVA, and Mr. DOGGETT) introduced the following bill; which was referred to the Committee on Homeland Security, and in addition to the Committee on Transportation and 

Infrastructure, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To direct the Secretary of Homeland Security to issue regulations concerning the shipping of extremely hazardous 

materials, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Extremely Hazardous 

5 Materials Transportation Security Act of 2005’’. 
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1 SEC. 2. RULEMAKING. 

2 (a) IN GENERAL.—Not later than 180 days after the 

3 date of enactment of this Act, the Secretary of Homeland 

4 Security, in consultation with the heads of other appro5 priate Federal, State, and local government entities, secu6 rity experts, representatives of the hazardous materials 

7 shipping industry and labor unions representing persons 

8 who work in the hazardous materials shipping industry, 

9 and other interested persons, shall issue, after notice and 

10 opportunity for public comment, regulations concerning 

11 the shipping of extremely hazardous materials. 

12 (b) PURPOSES OF REGULATIONS.—The regulations 

13 shall be consistent, to the extent the Secretary determines 

14 appropriate, with and not duplicative of other Federal reg15 ulations and international agreements relating to the ship16 ping of extremely hazardous materials and shall require— 

17 (1) physical security measures for such ship18 ments, such as the use of passive secondary contain19 ment of tanker valves and other technologies to en20 sure the physical integrity of pressurized tank cars 

21 used to transport extremely hazardous materials, ad22 ditional security force personnel, and surveillance 

23 technologies and barriers; 

24 (2) concerned Federal, State, and local law en25 forcement authorities (including, if applicable, tran26 sit, railroad, or port authority police agencies) to be 
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1 informed before an extremely hazardous material is 

2 transported within, through, or near an area of con3 cern; 

4 (3) the creation of terrorism response plans for 

5 shipments of extremely hazardous materials; 

6 (4) the use of currently available technologies 

7 and systems to ensure effective and immediate com8 munication between transporters of extremely haz9 ardous materials and all entities charged with re10 sponding to acts of terrorism involving shipments of 

11 extremely hazardous materials; 

12 (5) comprehensive and appropriate training in 

13 the area of extremely hazardous materials transpor14 tation security for all individuals who transport, 

15 load, unload, or are otherwise involved in the ship16 ping of extremely hazardous materials or who would 

17 respond to an accident or incident involving a ship18 ment of extremely hazardous material or would have 

19 to repair transportation equipment and facilities in 

20 the event of such an accident or incident; and 

21 (6) for the transportation of extremely haz22 ardous materials through or near an area of con23 cern, the Secretary to determine whether or not the 

24 transportation could be made by one or more alter25 nate routes at lower security risk and, if the Sec-
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1 retary determines the transportation could be made 

2 by an alternate route, the use of such alternate 

3 route, except when the origination or destination of 

4 the shipment is located within the area of concern. 

5 (c) JUDICIAL RELIEF.—A person (other than an indi6 vidual) who transports, loads, unloads, or is otherwise in7 volved in the shipping of hazardous materials and violates 

8 or fails to comply with a regulation issued by the Secretary 

9 under this section may be subject, in a civil action brought 

10 in United States district court, for each shipment with re11 spect to which the violation occurs— 

12 (1) to an order for injunctive relief; or 

13 (2) to a civil penalty of not more than 

14 $100,000. 

15 (d) ADMINISTRATIVE PENALTIES.— 

16 (1) PENALTY ORDERS.—The Secretary may 

17 issue an order imposing an administrative penalty of 

18 not more than $1,000,000 for failure by a person 

19 (other than an individual) who transports, loads, un20 loads, or is otherwise involved in the shipping of haz21 ardous materials to comply with a regulation issued 

22 by the Secretary under this section. 

23 (2) NOTICE AND HEARING.—Before issuing an 

24 order described in paragraph (1), the Secretary shall 
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1 provide to the person against whom the penalty is to 

2 be assessed— 

3 (A) written notice of the proposed order; 

4 and 

5 (B) the opportunity to request, not later 

6 than 30 days after the date on which the per7 son receives the notice, a hearing on the pro8 posed order. 

9 (3) PROCEDURES.—The Secretary may issue 

10 regulations establishing procedures for administra11 tive hearings and appropriate review of penalties 

12 issued under this subsection, including necessary 

13 deadlines. 

14 SEC. 3. WHISTLEBLOWER PROTECTION. 

15 (a) IN GENERAL.—No person involved in the ship16 ping of extremely hazardous materials may be discharged, 

17 demoted, suspended, threatened, harassed, or in any other 

18 manner discriminated against because of any lawful act 

19 done by the person— 

20 (1) to provide information, cause information to 

21 be provided, or otherwise assist in an investigation 

22 regarding any conduct which the person reasonably 

23 believes constitutes a violation of any law, rule or 

24 regulation related to the security of shipments of ex25 tremely hazardous materials, or any other threat to 
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1 the security of shipments of extremely hazardous 

2 materials, when the information or assistance is pro3 vided to or the investigation is conducted by— 

4 (A) a Federal regulatory or law enforce5 ment agency; 

6 (B) any Member of Congress or any com7 mittee of Congress; or 

8 (C) a person with supervisory authority 

9 over the person (or such other person who has 

10 the authority to investigate, discover, or termi11 nate misconduct); 

12 (2) to file, cause to be filed, testify, participate 

13 in, or otherwise assist in a proceeding or action filed 

14 or about to be filed relating to a violation of any 

15 law, rule or regulation related to the security of 

16 shipments of extremely hazardous materials or any 

17 other threat to the security of shipments of ex18 tremely hazardous materials; or 

19 (3) to refuse to violate or assist in the violation 

20 of any law, rule, or regulation related to the security 

21 of shipments of extremely hazardous materials. 

22 (b) ENFORCEMENT ACTION.— 

23 (1) IN GENERAL.—A person who alleges dis24 charge or other discrimination by any person in vio-
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1 lation of subsection (a) may seek relief under sub2 section (c), by— 

3 (A) filing a complaint with the Secretary of 

4 Labor; or 

5 (B) if the Secretary has not issued a final 

6 decision within 180 days of the filing of the 

7 complaint and there is no showing that such 

8 delay is due to the bad faith of the claimant, 

9 bringing an action at law or equity for de novo 

10 review in the appropriate district court of the 

11 United States, which shall have jurisdiction 

12 over such an action without regard to the 

13 amount in controversy. 

14 (2) PROCEDURE.— 

15 (A) IN GENERAL.— An action under para16 graph (1)(A) shall be governed under the rules 

17 and procedures set forth in section 42121(b) of 

18 title 49, United States Code. 

19 (B) EXCEPTION.—Notification made under 

20 section 42121(b)(1) of title 49, United States 

21 Code, shall be made to the person named in the 

22 complaint and to the person’s employer. 

23 (C) BURDENS OF PROOF.—An action 

24 brought under paragraph (1)(B) shall be gov25 erned by the legal burdens of proof set forth in 
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1 section 42121(b) of title 49, United States 

2 Code. 

3 (D) STATUTE OF LIMITATIONS.—An action 

4 under paragraph (1) shall be commenced not 

5 later than 90 days after the date on which the 

6 violation occurs. 

7 (c) REMEDIES.— 

8 (1) IN GENERAL.—A person prevailing in any 

9 action under subsection (b)(1) shall be entitled to all 

10 relief necessary to make the person whole. 

11 (2) COMPENSATORY DAMAGES.—Relief for any 

12 action under paragraph (1) shall include— 

13 (A) reinstatement with the same seniority 

14 status that the person would have had, but for 

15 the discrimination; 

16 (B) the amount of any back pay, with in17 terest; and 

18 (C) compensation for any special damages 

19 sustained as a result of the discrimination, in20 cluding litigation costs, expert witness fees, and 

21 reasonable attorney fees. 

22 (d) RIGHTS RETAINED BY PERSON.—Nothing in this 

23 section shall be deemed to diminish the rights, privileges, 

24 or remedies of any person under any Federal or State law, 

25 or under any collective bargaining agreement. 
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1 SEC. 4. REPORT ON EXTREMELY HAZARDOUS MATERIALS 

2 TRANSPORTATION SECURITY. 

3 (a) IN GENERAL.—Not later than 180 days after the 

4 date of enactment of this Act, the Secretary of Homeland 

5 Security, in consultation with the heads of other appro6 priate Federal agencies, shall transmit to Congress a re7 port on the security of, and risk of a terrorist attack on, 

8 shipments of extremely hazardous materials. 

9 (b) CONTENT.—The report under subsection (a) shall 

10 include— 

11 (1) information specifying— 

12 (A) the Federal and State agencies that 

13 are responsible for the regulation of the trans14 portation of extremely hazardous materials; and 

15 (B) the particular authorities and respon16 sibilities of the heads of each such agency; and 

17 (2) an assessment of the vulnerability of the in18 frastructure associated with the transportation of ex19 tremely hazardous materials. 

20 (c) FORM.—The report under subsection (a) shall be 

21 in unclassified form but may contain a classified annex. 

22 SEC. 5. DEFINITIONS. 

23 In this Act, the following definitions apply: 

24 (1) EXTREMELY HAZARDOUS MATERIAL.—The 

25 term ‘‘extremely hazardous material’’ means— 

26 (A) a material that is toxic by inhalation; 
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1 (B) a material that is extremely flam2 mable; 

3 (C) a material that is highly explosive; and 

4 (D) any other material designated by the 

5 Secretary to be extremely hazardous. 

6 (2) AREA OF CONCERN.—The term ‘‘area of 

7 concern’’ means an area that the Secretary deter8 mines could pose a particular interest to terrorists. 

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