I 

108TH CONGRESS 

2D SESSION H. R. 4824

To direct the Secretary of Homeland Security to issue regulations concerning 

the shipping of extremely hazardous materials. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 13, 2004

Mr. MARKEY (for himself, Ms. MCCARTHY of Missouri, Mr. GRIJALVA, Mr. 

CASE, Mr. OWENS, Ms. LEE, Mr. TIERNEY, Ms. JACKSON-LEE of Texas, 

and Mr. GONZALEZ) introduced the following bill; which was referred to 

the Committee on Transportation and Infrastructure 

A BILL

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

materials.

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 2004’’. 

6 SEC. 2. RULEMAKING. 

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

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

9 Security, in consultation with the heads of other appro-
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1 priate Federal, State, and local government entities, secu2 rity experts, representatives of the hazardous materials 

3 shipping industry and labor unions representing persons 

4 who work in the hazardous materials shipping industry, 

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

6 opportunity for public comment, regulations concerning 

7 the shipping of extremely hazardous materials. 

8 (b) PURPOSES OF REGULATIONS.—The regulations 

9 shall be consistent, to the extent the Secretary determines 

10 appropriate, with and not duplicative of other Federal reg11 ulations and international agreements relating to the ship12 ping of extremely hazardous materials and shall require—

13 (1) physical security measures for such ship14 ments, such as the use of passive secondary contain15 ment of tanker valves, additional security force per16 sonnel, and surveillance technologies and barriers; 

17 (2) concerned Federal, State, and local law en18 forcement authorities (including, if applicable, tran19 sit, railroad, or port authority police agencies) to be 

20 informed before an extremely hazardous material is 

21 transported within, through, or near an area of con22 cern; 

23 (3) coordination with Federal, State, and local 

24 law enforcement authorities to create response plans 
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1 for a terrorist attack on a shipment of extremely 

2 hazardous materials; 

3 (4) the use of currently available technologies 

4 and systems to ensure effective and immediate com5 munication between transporters of extremely haz6 ardous materials, law enforcement authorities and 

7 first responders; 

8 (5) comprehensive and appropriate training in 

9 the area of extremely hazardous materials transpor10 tation security for all individuals who transport, 

11 load, unload, or are otherwise involved in the ship12 ping of extremely hazardous materials or who would 

13 respond to an accident or incident involving a ship14 ment of extremely hazardous material or would have 

15 to repair transportation equipment and facilities in 

16 the event of such an accident or incident; and 

17 (6) for the transportation of extremely haz18 ardous materials through or near an area of con19 cern, the Secretary to determine whether or not the 

20 transportation could be made by one or more alter21 nate routes at lower security risk and, if the Sec22 retary determines the transportation could be made 

23 by an alternate route, the use of such alternate 

24 route, except when the origination or destination of 

25 the shipment is located within the area of concern. 
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1 (c) JUDICIAL RELIEF.—A person (other than an indi2 vidual) who transports, loads, unloads, or is otherwise in3 volved in the shipping of hazardous materials and violates 

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

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

6 in United States district court, for each shipment with re7 spect to which the violation occurs—

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

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

10 $100,000. 

11 (d) ADMINISTRATIVE PENALTIES.—

12 (1) PENALTY ORDERS.—The Secretary may 

13 issue an order imposing an administrative penalty of 

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

15 (other than an individual) who transports, loads, un16 loads, or is otherwise involved in the shipping of haz17 ardous materials to comply with a regulation issued 

18 by the Secretary under this section. 

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

20 order described in paragraph (1), the Secretary shall 

21 provide to the person against whom the penalty is to 

22 be assessed—

23 (A) written notice of the proposed order; 

24 and 
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1 (B) the opportunity to request, not later 

2 than 30 days after the date on which the per3 son receives the notice, a hearing on the pro4 posed order. 

5 (3) PROCEDURES.—The Secretary may issue 

6 regulations establishing procedures for administra7 tive hearings and appropriate review of penalties 

8 issued under this subsection, including necessary 

9 deadlines. 

10 SEC. 3. WHISTLEBLOWER PROTECTION. 

11 (a) IN GENERAL.—No person involved in the 

12 shippping of extremely hazardous materials may be dis13 charged, demoted, suspended, threatened, harassed, or in 

14 any other manner discriminated against because of any 

15 lawful act done by the person—

16 (1) to provide information, cause information to 

17 be provided, or otherwise assist in an investigation 

18 regarding any conduct which the person reasonably 

19 believes constitutes a violation of any law, rule or 

20 regulation related to the security of shipments of ex21 tremely hazardous materials, or any other threat to 

22 the security of shipments of extremely hazardous 

23 materials, when the information or assistance is pro24 vided to or the investigation is conducted by—
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1 (A) a Federal regulatory or law enforce2 ment agency; 

3 (B) any Member of Congress or any com4 mittee of Congress; or 

5 (C) a person with supervisory authority 

6 over the person (or such other person who has 

7 the authority to investigate, discover, or termi8 nate misconduct); 

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

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

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

12 law, rule or regulation related to the security of 

13 shipments of extremely hazardous materials or any 

14 other threat to the security of shipments of ex15 tremely hazardous materials; or 

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

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

18 of shipments of extremely hazardous materials. 

19 (b) ENFORCEMENT ACTION.—

20 (1) IN GENERAL.—A person who alleges dis21 charge or other discrimination by any person in vio22 lation of subsection (a) may seek relief under sub23 section (c), by—

24 (A) filing a complaint with the Secretary of 

25 Labor; or 
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1 (B) if the Secretary has not issued a final 

2 decision within 180 days of the filing of the 

3 complaint and there is no showing that such 

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

5 bringing an action at law or equity for de novo 

6 review in the appropriate district court of the 

7 United States, which shall have jurisdiction 

8 over such an action without regard to the 

9 amount in controversy. 

10 (2) PROCEDURE.—

11 (A) IN GENERAL.— An action under para12 graph (1)(A) shall be governed under the rules 

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

14 title 49, United States Code. 

15 (B) EXCEPTION.—Notification made under 

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

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

18 complaint and to the person’s employer. 

19 (C) BURDENS OF PROOF.—An action 

20 brought under paragraph (1)(B) shall be gov21 erned by the legal burdens of proof set forth in 

22 section 42121(b) of title 49, United States 

23 Code. 

24 (D) STATUTE OF LIMITATIONS.—An action 

25 under paragraph (1) shall be commenced not 
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1 later than 90 days after the date on which the 

2 violation occurs. 

3 (c) REMEDIES.—

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

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

6 relief necessary to make the person whole. 

7 (2) COMPENSATORY DAMAGES.—Relief for any 

8 action under paragraph (1) shall include—

9 (A) reinstatement with the same seniority 

10 status that the person would have had, but for 

11 the discrimination; 

12 (B) the amount of any back pay, with in13 terest; and 

14 (C) compensation for any special damages 

15 sustained as a result of the discrimination, in16 cluding litigation costs, expert witness fees, and 

17 reasonable attorney fees. 

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

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

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

21 or under any collective bargaining agreement. 

22 SEC. 4. DEFINITIONS. 

23 In this Act, the following definitions apply: 

24 (1) EXTREMELY HAZARDOUS MATERIAL.—The 

25 term ‘‘extremely hazardous material’’ means—
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1 (A) a material that is toxic by inhalation; 

2 (B) a material that is extremely flam3 mable; 

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

5 (D) any other material designated by the 

6 Secretary to be extremely hazardous. 

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

8 concern’’ means an area that the Secretary deter9 mines could pose a particular interest to terrorists.

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