[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
COMMITTEE PRINT: RAIL AND PUBLIC TRANSPORTATION SECURITY ACT OF 2007
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HEARING
before the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MARCH 6, 2007
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Serial No. 110-12
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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
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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
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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\
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\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\
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\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'').
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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\
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\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.
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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.
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\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.
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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:
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\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\
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\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\
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\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
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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\
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\3\ The delay in implementation is due to an FRA request.
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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\
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\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.
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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\
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\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.
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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.