[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
  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
                                     
[GRAPHIC] [TIFF OMITTED] 

                                     

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

                               __________



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                     COMMITTEE ON HOMELAND SECURITY


               BENNIE G. THOMPSON, Mississippi, Chairman

LORETTA SANCHEZ, California,         PETER T. KING, New York
EDWARD J. MARKEY, Massachusetts      LAMAR SMITH, Texas
NORMAN D. DICKS, Washington          CHRISTOPHER SHAYS, Connecticut
JANE HARMAN, California              MARK E. SOUDER, Indiana
PETER A. DeFAZIO, Oregon             TOM DAVIS, Virginia
NITA M. LOWEY, New York              DANIEL E. LUNGREN, California
ELEANOR HOLMES NORTON, District of   MIKE ROGERS, Alabama
Columbia                             BOBBY JINDAL, Louisiana
ZOE LOFGREN, California              DAVID G. REICHERT, Washington
SHEILA JACKSON LEE, Texas            MICHAEL T. McCAUL, Texas
DONNA M. CHRISTENSEN, U.S. Virgin    CHARLES W. DENT, Pennsylvania
Islands                              GINNY BROWN-WAITE, Florida
BOB ETHERIDGE, North Carolina        MARSHA BLACKBURN, Tennessee
JAMES R. LANGEVIN, Rhode Island      GUS M. BILIRAKIS, Florida
HENRY CUELLAR, Texas                 DAVID DAVIS, Tennessee
CHRISTOPHER P. CARNEY, Pennsylvania
YVETTE D. CLARKE, New York
AL GREEN, Texas
ED PERLMUTTER, Colorado
VACANCY

       Jessica Herrera-Flanigan, Staff Director & General Counsel

                        todd Gee, Chief Counsel

                     Michael Twinchek, Chief Clerk

                Robert O'Connor, Minority Staff Director

                                  (ii)


                            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
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


  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.
    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 
whistle-blower 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.
    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.
    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 threat-based 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 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.
    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 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.
    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. 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.

        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 planning 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 
        over-the 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 improve 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 
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.
    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.
    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 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.

        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 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.
    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. 
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 statutes, 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 fact-finders, 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 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 Sec. 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 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 end-date 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 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.




    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 (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 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.
    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. 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.
    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 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.
---------------------------------------------------------------------------
    \1\ The 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.
---------------------------------------------------------------------------
    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 
different 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-fits-all 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.
    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 
protection-of 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.
    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.
    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.
    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 probably 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 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 legislation 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 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 
whistle-blowers 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?
    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?
    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.
    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 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.
    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 
respect 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 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 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.
    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 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 different 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 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.
    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 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 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 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.
    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.
    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 
one-third 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 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, 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
    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.
    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 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 
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 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.
    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:]

               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 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 non-
mission-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 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 secure. 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\
---------------------------------------------------------------------------
    \1\ The 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.
---------------------------------------------------------------------------
    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.
         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:
         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\
---------------------------------------------------------------------------
    \2\ Such 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'').
---------------------------------------------------------------------------
         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 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 industries, 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 person 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 security 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 
whistle-blower 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, 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 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 fifteen 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 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 controls,'' 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 security 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 witness 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.
    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 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 `build-in' 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.
    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 Amtrak-used, 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 state-supported 
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 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 life-safety 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 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
    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 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.
    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 high-density 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.
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \2\ The 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.
---------------------------------------------------------------------------
    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. 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:
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
        [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 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\
---------------------------------------------------------------------------
    \5\ 71 FR 76841 December 21, 2006.
---------------------------------------------------------------------------
    For its part, Transportation Security Administration's (TSA) 
simultaneously-issued 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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.''
---------------------------------------------------------------------------
    \7\ Parenthetically, 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \8\ Chlorine Institute Pamphlet 74, ``Estimating the Area Affected 
by a Chlorine Release April, 1998
---------------------------------------------------------------------------
    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.
    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 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.
    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 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 risk-based?
    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.
    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 cost-
benefit 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 begin to tell the railroads how to do something on their 
right-of-way, 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?
    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 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--
    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.
    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.
    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.
    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?
    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.
    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 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:
         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.
         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.]


                             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 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.


                          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.


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\
---------------------------------------------------------------------------
    \3\ The delay in implementation is due to an FRA request.
---------------------------------------------------------------------------
         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.
         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\
---------------------------------------------------------------------------
    \4\ Terrorism 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.
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.

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.

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. 



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.

    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 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 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?
    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.

    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, canines) $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 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.
---------------------------------------------------------------------------
    \1\ Transportation Worker Identification Implementation in the 
Maritime Sector; Final Rule, January 25,2007.
---------------------------------------------------------------------------
    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?
    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 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 review 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 standard-size 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 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 risk-based 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 (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, 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 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)

    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 risk-based, 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 
security 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 consensus-based 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 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 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.

    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.

    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 dual-track 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;
         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
         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 video-based 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.
        --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 
efforts 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.''

    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 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 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;
        --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 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?
    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 curb-side, 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. 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 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-by-case 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). 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.

    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?
    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.
    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 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, 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 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
         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.

    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 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. 
Sec. 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 allocation 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 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.
    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 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.
    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 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. Sec. Sec. 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. 
Sec. 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 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 self-help 
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 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 together'' 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 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.

                                 
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