109 HR 5714 IH: Rail and Public Transportation Security Act of U.S. House of Representatives 2006-06-29 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 109th CONGRESS 2d Session H. R. 5714 IN THE HOUSE OF REPRESENTATIVES June 29, 2006 Mr. Thompson of Mississippi (for himself, Ms. Corrine Brown of Florida, Ms. Jackson-Lee of Texas, Ms. Norton, Mr. Langevin, and Mrs. Christensen) 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 improve the security of rail and public transportation systems in the United States, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Rail and Public Transportation Security Act of 2006. (b)

Table of contents

Sec. 1. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Security of United States rail and public transportation systems. Sec. 4. Rail and public transportation security grant program. Sec. 5. Rail and public transportation security training program. Sec. 6. Rail and public transportation security exercise program. Sec. 7. Interagency cooperation. Sec. 8. Rail security research and development. Sec. 9. Whistleblower protections. Sec. 10. Increase in rail security inspectors.

2.

Definitions

In this Act: (1)

Appropriate congressional committees

The term appropriate congressional committees has the meaning given that term in section 2(2) of the Homeland Security Act of 2002 (6 U.S.C. 101(2)). (2)

Department

The term Department means the Department of Homeland Security. (3)

Secretary

The term Secretary means the Secretary of Homeland Security. (4)

Terrorism

The term terrorism has the meaning given that term in section 2(15) of the Homeland Security Act of 2002 (6 U.S.C. 101(15)).

3.

Security of United States rail and public transportation systems

The Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by adding at the end the following new title: .

4.

Rail and public transportation security grant program

Title V of the Homeland Security Act of 2002 (6 U.S.C. 311 et seq.) is amended— (1)by redesignating the second section 510 (as added by section 7303(d) of Public Law 108–458 (118 Stat. 3844)) as section 511; and (2)by adding at the end the following new section:

512.

Rail and public transportation security grant program

(a)

Grants authorized

The Secretary shall establish a grant program to allocate Federal financial assistance to United States rail and public transportation systems on the basis of risk and need. (b)

Prioritization process

In awarding grants under this section, the Secretary shall conduct an assessment of United States rail and public transportation systems to develop a prioritization for awarding grants authorized under subsection (a) based upon— (1)the most current risk assessment available from the Department; (2)the national economic and strategic defense considerations of individual rail and public transportation systems; and (3)any other factors that the Secretary determines to be appropriate. (c)

Application

(1)

In general

Any rail or public transportation security system subject to the requirements of section 1803 may submit an application for a grant under this section, at such time, in such form, and containing such information and assurances as the Secretary may require. (2)

Minimum standards for payment or reimbursement

Each application submitted under paragraph (1) shall include— (A)a comprehensive description of— (i)the purpose of the project for which the applicant seeks a grant under this section and why the applicant needs the grant; (ii)the applicability of the project to the Area Rail and Public Transportation Security Plan and other homeland security plans; (iii)the methodology for coordinating the project into the security of the greater area identified in the Area Rail and Public Transportation Security Plan; (iv)any existing cooperation or mutual aid agreements with other rail or public transportation systems, organizations, or State, territorial, and local governments as such agreements relate to rail and public transportation security; and (v)a capital budget showing how the applicant intends to allocate and expend the grant funds; and (B)a determination by the Transportation Security Administration that the project— (i)addresses or corrects rail and public transportation security vulnerabilities; and (ii)helps to ensure compliance with the Area Rail and Public Transportation Security Plan. (3)

Procedural safeguards

The Secretary, in consultation with the Office of the Inspector General and the Office of Grants and Training, shall issue guidelines to establish appropriate accounting, reporting, and review procedures to ensure that— (A)grant funds are used for the purposes for which they were made available; (B)grantees have properly accounted for all expenditures of grant funds; and (C)grant funds not used for such purposes and amounts not obligated or expended are returned. (d)

Use of funds

Grants awarded under this section may be used— (1)to help implement Area Rail and Public Transportation Security Plans required under section 1803; (2)to remedy rail and public transportation security vulnerabilities identified through vulnerability assessments approved by the Secretary; (3)for non-Federal projects contributing to the overall security of a rail or public transportation security system, as determined by the Secretary; (4)for the salaries, benefits, overtime compensation, and other costs of additional security personnel for State and local agencies for activities required by the Area Rail and Public Transportation Security Plan; (5)for the cost of acquisition, operation, and maintenance of equipment that contributes to the overall security of the rail and public transportation security system, as identified in the Area Rail and Public Transportation Security Plan, if the need is based upon vulnerability assessments approved by the Secretary or identified in the Area Rail and Public Transportation Security Plan; (6)to conduct vulnerability assessments approved by the Secretary; (7)to purchase or upgrade equipment, including communications equipment that is interoperable with Federal, State, and local agencies and tribal governments; and computer software, to enhance terrorism preparedness; (8)to conduct exercises or training for prevention and detection of, preparedness for, response to, or recovery from terrorist attacks; (9)to establish or enhance mechanisms for sharing terrorism threat information and to ensure that the mechanisms are interoperable with Federal, State, and local agencies and tribal governments; (10)for the cost of equipment (including software) required to receive, transmit, handle, and store classified information; (11)for the protection of critical infrastructure against potential attack by the addition of barriers, fences, gates, and other such devices, except that the cost of such measures may not exceed the greater of— (A)$5,000,000 per project; or (B)such greater amount as may be approved by the Secretary, which may not exceed 10 percent of the total amount of the grant; and (12)to conduct exercises to strengthen emergency preparedness of Federal, State, local and tribal officials responsible for rail and public transportation system security, including law enforcement personnel and firefighters and other first responders, in support of the Area Rail and Public Transportation Security Plan. (e)

Reimbursement of costs

An applicant for a grant under this section may petition the Secretary for the reimbursement of the cost of any activity relating to prevention (including detection) of, preparedness for, response to, or recovery from acts of terrorism that is a Federal duty and usually performed by a Federal agency, and that is being performed by a State or local government (or both) under agreement with a Federal agency. (f)

Prohibited uses

Grants awarded under this section may not be used to— (1)supplant State or local funds for activities of the type described in subsection (d); (2)construct buildings or other physical facilities, except buildings or other physical facilities otherwise authorized under section 611 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5196), and specifically approved by the Secretary; (3)acquire land; or (4)make any State or local government cost-sharing contribution. (g)

Matching requirement

(1)

In general

Except as provided in subparagraph (A) or (B) of paragraph (2), Federal funds for any eligible project under this section shall not exceed 75 percent of the total cost of such project. (2)

Exceptions

(A)

Small projects

The requirement of paragraph (1) shall not apply with respect to a project with a total cost of not more than $25,000. (B)

Higher level of federal support required

The requirement of paragraph (1) shall not apply with respect to a project if the Secretary determines that the project merits support and cannot be undertaken without a higher rate of Federal support than the rate described in paragraph (1). (3)

In-kind contributions

Each recipient of a grant under this section may meet the requirement of paragraph (1) by making in-kind contributions of goods or services that are directly linked with the purpose for which the grant is made, as determined by the Secretary, including any necessary personnel expenses, contractor services, administrative costs, equipment, fuel, or maintenance, and rental space. (h)

Multiple phase projects

(1)

In general

The Secretary may award grants under this section for projects that span multiple years. (2)

Funding limitation

Not more than 20 percent of the total grant funds awarded under this section in any fiscal year may be awarded for projects that span multiple years. (i)

Consistency with plans

The Secretary shall ensure that each grant awarded under this section— (1)is used to supplement and support, in a consistent and coordinated manner, the applicable Area Rail and Public Transportation Security Plan; and (2)is coordinated with any applicable State or Urban Area Homeland Security Plan. (j)

Coordination and cooperation

The Secretary shall ensure that all projects that receive grant funding under this section within any area defined in an Area Rail and Public Transportation Security Plan are coordinated with other projects in such area. (k)

Review and audits

The Secretary shall require all grantees under this section to maintain such records as the Secretary may require and make such records available for review and audit by the Secretary, the Comptroller General of the United States, or the Inspector General of the Department. (l)

Quarterly reports required as a condition of homeland security grants

(1)

Expenditure reports required

As a condition of receiving a grant under this section, the Secretary shall require the grant recipient to submit quarterly reports to the Secretary that describe each expenditure made by the recipient using grant funds. (2)

Deadline for reports

Each report required under paragraph (1) shall be submitted not later than 30 days after the last day of a fiscal quarter and shall describe expenditures made during that fiscal quarter. (3)

Publication of expenditures

(A)

In general

Not later than 1 week after receiving a report under this subsection, the Secretary shall publish and make publicly available on the Internet website of the Department a description of each expenditure described in the report. (B)

Waiver

The Secretary may waive the requirement of subparagraph (A) if the Secretary determines that it is in the national security interests of the United States to do so. (m)

Authorization of appropriations

There are authorized to be appropriated $400,000,000 for each of fiscal years 2007 through 2012 to carry out this section.

.

5.

Rail and public transportation security training program

Subtitle A of title VIII of the Homeland Security Act of 2002 (6 U.S.C. 361) is amended by adding at the end the following new section:

802.

Rail and public transportation security training program

(a)

In general

Not later than 90 days after the date of enactment of this section, the Secretary, in consultation with appropriate law enforcement, security, and terrorism experts, representatives of railroad carriers and public transportation owners and operators, and nonprofit employee organizations that represent rail and public transportation workers, shall develop and issue detailed guidance for a rail and public transportation worker security training program to prepare rail and public transportation workers, including front-line transit employees such as bus and rail operators, mechanics, customer service employees, maintenance employees, transit police, and security personnel, for potential threat conditions. (b)

Program elements

The guidance developed under subsection (a) shall require such a program to include, at a minimum, elements that address the following: (1)Determination of the seriousness of any occurrence. (2)Crew and passenger communication and coordination. (3)Appropriate responses to defend oneself. (4)Use of protective devices. (5)Evacuation procedures (including passengers, workers, and those with disabilities). (6)Live situational training exercises regarding various threat conditions, including tunnel evacuation procedures. (7)Any other subject the Secretary considers appropriate. (c)

Required programs

Not later than 60 days after the Secretary issues guidance under subsection (a) in final form, each rail and public transportation system shall develop a rail and public transportation worker security training program in accordance with that guidance and submit it to the Secretary for approval. Not later than 60 days after receiving a rail or public transportation system’s program under this subsection, the Secretary shall review the program and approve it or require the rail or public transportation system to make any revisions the Secretary considers necessary for the program to meet the guidance requirements. (d)

Training

Not later than 1 year after the Secretary approves the training program developed by a rail or public transportation system under this section, the railroad carrier or public transportation system owner or operator shall complete the training of all rail and public transportation workers in accordance with that program. (e)

Updates

The Secretary shall update the training guidance issued under subsection (a) from time to time to reflect new or different security threats, and require rail and public transportation systems to revise their programs accordingly and provide additional training to their workers.

. (b)

Clerical amendment

The table of contents in section 1(b) of the Homeland Security Act of 2002 (116 Stat. 2135) is amended by inserting after the item relating to section 801 the following: Sec. 802. Rail and public transportation security training program. .

6.

Rail and public transportation security exercise program

(a)Subtitle A of title VIII of the Homeland Security Act of 2002 (6 U.S.C. 361) is amended by adding at the end the following new section:

803.

Rail and public transportation security exercise program

(a)

In general

The Secretary, acting through the Assistant Secretary for Grants and Training, shall establish a Rail and Public Transportation Security Exercise Program (hereinafter in this section referred to as the Program) for the purpose of testing and evaluating the capabilities of Federal, State, and local agencies and tribal governments, rail and public transportation system employees and management, governmental and nongovernmental emergency response providers, the private sector, or any other organization or entity, as the Secretary determines to be appropriate, to prevent, prepare for, mitigate against, respond to, and recover from acts of terrorism, natural disasters, and other emergencies at rail and public transportation systems. (b)

Requirements

The Secretary, acting through the Assistant Secretary for Grants and Training and in coordination with the Assistant Secretary of Homeland Security (Transportation Security Administration), shall ensure that the Program— (1)consolidates all existing rail and public transportation system security exercise programs administered by the Department; (2)conducts, on a periodic basis, exercises at rail and public transportation systems that are— (A)scaled and tailored to the needs of each rail and public transportation system; (B)live in the case of the most at-risk rail and public transportation systems; (C)as realistic as practicable and based on current risk assessments, including credible threats, vulnerabilities, and consequences; (D)consistent with the National Incident Management System, the National Response Plan, the National Infrastructure Protection Plan, the National Preparedness Guidance, the National Preparedness Goal, and other such national initiatives; (E)evaluated against clear and consistent performance measures; (F)assessed to learn best practices, which shall be shared with appropriate Federal, State, local and tribal officials, rail and public transportation system employees and management; governmental and nongovernmental emergency response providers, and the private sector; and (G)followed by remedial action in response to lessons learned; and (3)assists State and local governments and rail and public transportation systems in designing, implementing, and evaluating exercises that— (A)conform to the requirements of paragraph (2); and (B)are consistent with any applicable Area Rail and Public Transportation Security Plan and State or Urban Area Homeland Security Plan. (c)

Remedial action management system

The Secretary, acting through the Assistant Secretary for Grants and Training, shall establish a Remedial Action Management System to— (1)identify and analyze each rail and public transportation system exercise for lessons learned and best practices; (2)disseminate lessons learned and best practices to participants in the Program; (3)monitor the implementation of lessons learned and best practices by participants in the Program; and (4)conduct remedial action tracking and long-term trend analysis. (d)

Grant program factor

In evaluating and prioritizing applications for Federal financial assistance under section 512, the Secretary shall give additional consideration to those applicants that have conducted rail and public transportation security exercises under this section. (e)

Consultation

The Secretary shall ensure that, in carrying out the Program, the Office of Grants and Training shall consult with— (1)a geographic and substantive cross section of governmental and nongovernmental emergency response providers; and (2)rail and public transportation system personnel and management.

. (b)

Clerical amendment

The table of contents in section 1(b) of the Homeland Security Act of 2002 (116 Stat. 2135) is amended by inserting after the item relating to section 802 the following: Sec. 803. Rail and public transportation security exercise program. .

7.

Interagency cooperation

The Secretary shall consider whether in fulfilling the requirements of this Act, in order to promote communications, efficiency, and nonduplication of effort, memoranda of agreement should be updated or executed with other Federal agencies, including the Department of Transportation, or between entities of the Department and other Federal entities, including between the Transportation Security Administration and the Federal Transit Administration, the Pipeline and Hazardous Materials Safety Administration, and the Federal Railroad Administration.

8.

Rail security research and development

(a)

Establishment of research and development program

The Secretary, through the Under Secretary for Science and Technology, in coordination with the Assistant Secretary of Homeland Security (Transportation Security Administration) and the Departmental Privacy Officer, and in consultation with the Secretary of Transportation, shall carry out a research and development program for the purpose of improving rail and mass transit security that may include research and development projects to— (1)reduce the vulnerability of passenger trains, stations, and equipment to explosives and hazardous chemical, biological, and radioactive substances; (2)test new emergency response and recovery techniques and technologies; (3)develop improved freight technologies, including— (A)technologies for sealing rail cars; (B)automatic inspection of rail cars; (C)communication-based train controls; (D)signal system integrity at switches; (E)emergency response training including training in a tunnel environment; (F)security and redundancy for critical communications, electrical power, computer, and train control systems; and (G)technologies for securing bridges and tunnels; (4)test wayside detectors that can detect tampering with railroad equipment; (5)support enhanced security for the transportation of hazardous materials by rail; (6)mitigate damages in the event of a cyber attack; and (7)address other vulnerabilities and risks identified by the Secretary. (b)

Coordination with other research initiatives

The Secretary shall ensure that the research and development program authorized by this section is consistent with the National Strategy for Transportation Security and the Transportation Sector Specific Plan, and shall to the greatest extent possible leverage other ongoing research and development security related initiatives at the National Academy of Sciences; the Department of Homeland Security; the Department of Transportation, including University Transportation Centers and other institutes, centers, and simulators funded by the Department of Transportation; the Technical Support Working Group; other Federal agencies; and other Federal and private research laboratories and research entities with the capability to conduct both practical and theoretical research and technical systems analysis. (c)

Privacy and civil rights and civil liberties issues

In carrying out research and development projects under this section, the Under Secretary for Science and Technology shall consult with the Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties as appropriate and in accordance with the plan required by section 319 of the Homeland Security Act of 2002. Pursuant to sections 222 and 705 of the Homeland Security Act of 2002, the Chief Privacy Officer shall conduct privacy impact assessments and the Officer for Civil Rights and Civil Liberties shall conduct reviews, as appropriate, for research and development initiatives developed pursuant to this section. (d)

Authorization of appropriations

There are authorized to be appropriated to the Secretary to carry out this section— (1)$50,000,000 for fiscal year 2007; (2)$50,000,000 for fiscal year 2008; and (3)$50,000,000 for fiscal year 2009. Amounts made available pursuant to this subsection shall remain available until expended.

9.

Whistleblower protections

(a)

In general

No covered individual may be discharged, demoted, suspended, threatened, harassed, reprimanded, investigated, or in any other manner discriminated against (including by a denial, suspension, or revocation of a security clearance or by any other security access determination) if such discrimination is due, in whole or in part, to any lawful act done, perceived to have been done, or intended to be done by the covered individual— (1)to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the covered individual reasonably believes constitutes a violation of any law, rule or regulation relating to national or homeland security, which the covered individual reasonably believes constitutes a threat to national or homeland security, or which the covered individual reasonably believes constitutes fraud, waste or mismanagement of Government funds intended to be used for national or homeland security, when the information or assistance is provided to or the investigation is conducted by— (A)a Federal, State, or local regulatory or law enforcement agency (including an office of Inspector General under the Inspector General Act of 1978); (B)any Member of Congress, any committee of Congress, or the Government Accountability Office; or (C)a person with supervisory authority over the covered individual (or such other person who has the authority to investigate, discover, or terminate misconduct); (2)to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding or action filed or about to be filed relating to an alleged violation of any law, rule or regulation relating to national or homeland security; or (3)to refuse to violate or assist in the violation of any law, rule, or regulation relating to national or homeland security. (b)

Enforcement action

(1)

In general

A covered individual who alleges discharge or other discrimination by any person in violation of subsection (a) may seek relief under subsection (c) by— (A)filing a complaint with the Secretary of Labor; or (B)if the Secretary has not issued a final decision within 180 days after the filing of the complaint and there is no showing that such delay is due to the bad faith of the claimant, bringing an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. (2)

Procedure

(A)

In general

An action under paragraph (1)(A) shall be governed under the rules and procedures set forth in section 42121(b) of title 49, United States Code. (B)

Exception

Notification made under section 42121(b)(1) of title 49, United States Code, shall be made to the person named in the complaint and to the person’s employer. (C)

Burdens of proof

An action brought under paragraph (1)(B) shall be governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code. (D)

Statute of limitations

An action under paragraph (1) shall be commenced not later than 1 year after the date on which the violation occurs. (c)

Remedies

(1)

In general

A covered individual prevailing in any action under subsection (b)(1) shall be entitled to all relief necessary to make the covered individual whole. (2)

Damages

Relief for any action under paragraph (1) shall include— (A)reinstatement with the same seniority status that the covered individual would have had, but for the discrimination; (B)the amount of any back pay, with interest; (C)compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees; and (D)punitive damages in an amount not to exceed the greater of 3 times the amount of any compensatory damages awarded under this section or $5,000,000. (d)

State secrets privilege

If, in any action brought under subsection (b)(1)(B), the Government asserts as a defense the privilege commonly referred to as the state secrets privilege and the assertion of such privilege prevents the plaintiff from establishing a prima facie case in support of the plaintiff’s claim, the court shall enter judgment for the plaintiff and shall determine the relief to be granted. (e)

Criminal penalties

(1)

In general

It shall be unlawful for any person employing a covered individual to commit an act prohibited by subsection (a). Any person violating this paragraph shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both. (2)

Reporting requirement

The Department of Justice shall submit to Congress an annual report on the enforcement of paragraph (1). Each such report shall (A) identify each case in which formal charges under paragraph (1) were brought, (B) describe the status or disposition of each such case, and (C) in any actions under subsection (b)(1)(B) in which the covered individual was the prevailing party or the substantially prevailing party, indicate whether or not any formal charges under paragraph (1) have been brought and, if not, the reasons therefor. (f)

Rights retained by covered individual

Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any covered individual under any Federal or State law, or under any collective bargaining agreement. The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment. (g)

Definitions

For purposes of this section— (1)the term covered individual means an employee of— (A)the Department of Homeland Security (which, for purposes of this section, includes the Transportation Security Administration); (B)a Federal contractor or subcontractor; and (C)an employer within the meaning of section 701(b) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(b)) and who is a railroad carrier or public transportation system owner or operator; (2)the term lawful means not specifically prohibited by law, except that, in the case of any information the disclosure of which is specifically prohibited by law or specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs, any disclosure of such information to any Member of Congress, committee of Congress, or other recipient authorized to receive such information, shall be deemed lawful; (3)the term Federal contractor means a person who has entered into a contract with the Department of Homeland Security; (4)the term employee means— (A)with respect to an employer referred to in paragraph (1)(A), an employee as defined by section 2105 of title 5, United States Code; and (B)with respect to an employer referred to in subparagraph (A) or (B) of paragraph (1), any officer, partner, employee, or agent; (5)the term subcontractor— (A)means any person, other than the Federal contractor, who offers to furnish or furnishes any supplies, materials, equipment, or services of any kind under a contract with the Department of Homeland Security or a subcontract entered into in connection with such a contract; and (B)includes any person who offers to furnish or furnishes general supplies to the Federal contractor or a higher tier subcontractor; and (6)the term person means a corporation, partnership, State entity, business association of any kind, trust, joint-stock company, or individual. (h)

Terms and conditions

A grant under this title shall be subject to terms and conditions of section 5333 of title 49, United States Code.

10.

Increase in rail security inspectors

(a)

In General

The Secretary shall increase by not less than 200 the number of positions for full-time rail security inspectors of the Department for each of the fiscal years 2007 through 2012. (b)

Authorization of appropriations

There are authorized to be appropriated to the Secretary to carry out subsection (a) $26,400,000 for each of the fiscal years 2007 through 2012.