[Congressional Record Volume 156, Number 22 (Monday, February 22, 2010)]
[Senate]
[Pages S622-S624]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DODD (for himself, Mr. Menendez, Ms. Mikulski, and Mr. 
        Cardin):
  S. 3015. A bill to amend chapter 53 of title 49, United States Code, 
to establish a public transportation safety program, and for other 
purposes; to the Committee on Banking, Housing, and Urban Affairs.
  Mr. DODD. Mr. President, I rise today to introduce, at the request of 
the administration and on behalf of my fellow original cosponsors 
Senator Menendez, Senator Mikulski, and Senator Cardin, the Public 
Transportation Safety Program Act of 2010. This legislation is designed 
to provide the Federal Transit Administration with the proper funding 
and rulemaking, examination, and enforcement authority to improve the 
safety of our nation's transit systems.
  The issue of improving transit safety is a bipartisan issue, on which 
I think all Members can come to agreement. While this proposal from the 
administration is a good and appropriate first step in the Federal 
Government's efforts to improve transit safety, I look forward to 
working with my cosponsors and all of my colleagues on the Senate 
Banking Committee to make the final bill, which will emerge from the 
Senate Banking Committee, the strongest legislation possible for 
ensuring the safety of our nation's transit systems.
  Transit is among the safest modes of transportation. Between 1998 and 
2007, incidents on public transportation rail systems fell by half.
  But in light of a recent series of high-profile accidents, Americans 
have grown concerned, and rightfully so. As our Nation's transit 
systems age, it is becoming increasingly clear that it is time for the 
Federal government to take a more direct role in their oversight.
  Currently, the Federal Transit Administration has limited authority 
to implement and enforce national transit safety standards and we have 
gone without a proper national transit safety program for far too long.
  Having been handed an unfunded mandate, States have been forced to 
scrape by with State Safety Oversight boards. Many of these boards lack 
authority, expertise, a dedicated budget or even full-time employees to 
monitor safety.
  This is unacceptable. This ad hoc approach to transit safety 
oversight must be replaced with better oversight and clear national 
transit safety standards. Congress should provide the FTA with the 
authority and the resources to bring consistency and Federal leadership 
to our transit safety system. It is our duty to ensure that accidents 
like those that occurred in 2009 are prevented.
  I commend the Administration, particularly Secretary LaHood and 
administrator Rogoff, for taking a leadership role on this very 
important issue and sending the proposed legislation to Congress. This 
proposal is a good start, and I look forward to discussing it with my 
colleagues.
  The Obama administration has indicated its commitment to improving 
transit safety. It is time for us to do the same.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3015

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Public Transportation Safety 
     Program Act of 2010''.

     SEC. 2. PUBLIC TRANSPORTATION SAFETY PROGRAM.

       (a) In General.--Section 5329 of title 49, United States 
     Code, is amended to read as follows:

[[Page S623]]

     ``Sec. 5329. Public transportation safety program

       ``(a) Rail Fixed Guideway Safety.--
       ``(1) Program.--The Secretary shall, as soon as 
     practicable, establish and implement a public transportation 
     safety program to improve the safety of, and reduce the 
     number and severity of accidents involving, the design, 
     construction, and revenue service operation of rail fixed 
     guideway public transportation systems that receive financial 
     assistance under this chapter.
       ``(2) Exclusion.--This section shall not apply to rail 
     fixed guideway public transportation systems subject to 
     regulation by the Federal Railroad Administration under 
     subtitle V of this title and the Rail Safety Improvement Act 
     of 2008 (Public Law 110-432; 122 Stat. 4848).
       ``(3) National transportation safety board.--When 
     promulgating public safety transportation regulations, the 
     Secretary shall, to the extent practicable, take into 
     consideration relevant recommendations of the National 
     Transportation Safety Board.
       ``(b) Bus Safety.--The Secretary may establish and 
     implement a public transportation safety program to improve 
     the safety of, and reduce the number and severity of 
     accidents involving, public transportation bus systems that 
     receive financial assistance under this chapter in accordance 
     with the provisions of this section.
       ``(c) Regulations and Orders.--
       ``(1) In general.--The Secretary shall promulgate 
     regulations and issue orders for the safe operation of rail 
     fixed guideway public transportation systems, after 
     appropriate consideration of costs and benefits. The 
     Secretary shall ensure that the regulations establish a 
     Federal certification program for employees and contractors 
     who carry out a State public transportation safety program in 
     compliance with this section and oversee the performance of 
     employees or contractors responsible for performing safety 
     activities identified in such program.
       ``(2) Consultation by dhs secretary.--Before prescribing a 
     security regulation or issuing a security order that affects 
     the safety of public transportation design, construction or 
     operations, the Secretary of Homeland Security shall consult 
     with the Secretary.
       ``(3) Waivers.--The Secretary may waive compliance with any 
     part of a regulation promulgated or order issued under this 
     section if the waiver is in the public interest, or a 
     regulation or order issued under this section. The Secretary 
     shall not issue a waiver and shall immediately revoke a 
     waiver if the waiver would not be consistent with the goals 
     and objectives of this section. The Secretary shall make 
     public the reasons for granting or revoking the waiver.
       ``(d) Preemption.--
       ``(1) In general.--A State may adopt or continue in force a 
     law, regulation, or order related to public transportation 
     safety until the Secretary promulgates a regulation or issues 
     an order covering the subject matter of the State 
     requirement. A State may adopt or continue in force an 
     additional or more stringent law, regulation, or order 
     related to public transportation safety only if the law, 
     regulation, or order--
       ``(A) has a safety benefit;
       ``(B) is not incompatible with a law, regulation, or order 
     of the United States Government; and
       ``(C) does not unreasonably burden interstate commerce.
       ``(2) Damages.--Nothing in this section shall be construed 
     to preempt an action under State law seeking damages for 
     personal injury, death, or property damage alleging that a 
     party--
       ``(A) has failed to comply with the Federal standard of 
     care established by a regulation or order issued by the 
     Secretary under this section;
       ``(B) has failed to comply with its own program, rule, or 
     standard that it created under a regulation or order issued 
     by the Secretary; or
       ``(C) has failed to comply with a State law, regulation, or 
     order that is not incompatible with paragraph (1) of this 
     subsection.
       ``(3) Effective date.--This subsection shall apply to all 
     State law causes of action arising from events or activities 
     occurring on or after the enactment of this section.
       ``(4) Federal jurisdiction.--Nothing in this section 
     creates a Federal cause of action on behalf of an injured 
     party or confers Federal question jurisdiction for State law 
     causes of action.
       ``(e) Safety Program Activities.--
       ``(1) In general.--In carrying out this section, the 
     Secretary may take actions the Secretary considers necessary, 
     including--
       ``(A) conducting inspections, investigations, audits, 
     examinations, and testing of a public transportation system's 
     equipment, facilities, rolling stock, operations, and persons 
     engaged in the business of a public transportation system;
       ``(B) delegating to a public entity or other qualified 
     person the conduct of inspections, investigations, audits, 
     examinations, and testing of a public transportation system's 
     equipment, facilities, rolling stock, operations, and persons 
     engaged in the business of a public transportation system;
       ``(C) making reports, issuing subpoenas, requiring the 
     production of documents, taking depositions, and prescribing 
     recordkeeping and reporting requirements; and
       ``(D) making grants or entering into agreements--
       ``(i) for research, development, testing and training of 
     every area of public transportation safety; and
       ``(ii) to assist a public entity or qualified person in 
     carrying out the delegated activities set forth in 
     subparagraph (B) of this paragraph.
       ``(2) Accidents and incidents.--Activities authorized under 
     this subsection may be engaged in for safety purposes, 
     including accident and incident prevention and investigation.
       ``(3) Cost sharing.--The Federal share of a grant awarded 
     or an agreement entered into under paragraph (1)(D) of this 
     section may be up to 100 percent.
       ``(4) Entry.--In carrying out this subsection, an officer 
     or employee of the Secretary, or agent designated by the 
     Secretary under paragraph (1)(B) of this subsection, at 
     reasonable times and in a reasonable way, may enter and 
     inspect public transportation equipment, facilities, rolling 
     stock, operations, and relevant records. When requested, the 
     officer, employee, or the designated agent shall display 
     proper credentials. During an inspection, the officer, 
     employee, or designated agent of the Secretary qualifies as 
     an employee of the United States Government under chapter 171 
     of title 28.
       ``(f) State Participation.--
       ``(1) Safety program.--A State may establish and implement 
     a State public transportation safety program through statute 
     and regulation that requires, at a minimum, compliance with 
     the regulations and policies issued by the Secretary under 
     this section and complies with subsection (d) of this 
     section.
       ``(2) Grants.--The Secretary may make grants or enter into 
     agreements under this subsection to carry out a State public 
     transportation safety program, including to train employees 
     necessary to administer and manage the program, and to 
     enforce Federal and State public transportation safety laws, 
     regulations and orders, provided that--
       ``(A) employees responsible for carrying out the safety 
     oversight functions of a State public transportation safety 
     program meet the safety certification criteria established 
     through regulations issued under subsection (c)(1) of this 
     section;
       ``(B) a State submits its public transportation safety 
     program, which shall provide a right of entry and inspection 
     to carry out the program, to the Secretary for review and 
     written approval prior to implementing the program; and
       ``(C) a State submits each amendment to its public 
     transportation safety program to the Secretary for review and 
     written decision at least 60 days before the amendment 
     becomes effective. If a State does not receive a written 
     response from the Secretary by the end of the 60-day period, 
     the amendment shall be deemed to be approved.
       ``(3) Multi-state requirements.--When a single public 
     transportation authority operates in more than one State, the 
     affected States, if establishing and implementing a public 
     transportation safety program as authorized under this 
     subsection, shall--
       ``(A) establish and implement the program jointly to ensure 
     uniform safety standards and enforcement procedures that 
     shall be, at a minimum, in compliance with this section and 
     the regulations and policies issued by the Secretary under 
     this section; or
       ``(B) designate an entity (other than the public 
     transportation authority) to carry out the activities and 
     requirements specified by subparagraph (A) of this paragraph.
       ``(4) Conflict of interest.--A State may not--
       ``(A) allocate grant funds awarded under paragraph (1) of 
     this subsection to a State agency or local entity that 
     operates a public transportation system that receives Federal 
     transit assistance;
       ``(B) allow a State agency or local entity that operates a 
     public transportation system to provide funds to a State 
     agency or an entity designated by the State that is 
     responsible for establishing, implementing, or maintaining a 
     State public transportation safety program; or
       ``(C) allow a State agency or local entity that operates a 
     public transportation system to participate in the oversight 
     of establishing, implementing, or maintaining a State public 
     transportation safety program.
       ``(5) Cost sharing.--In the case of a State that implements 
     a safety program under this section, the following applies:
       ``(A) The Secretary shall reimburse the State from a grant 
     made or agreement entered into under this section, an amount 
     that is up to 100 percent of the costs incurred by the State 
     in a fiscal year for developing, implementing and enforcing a 
     State public transportation safety program.
       ``(B) The Secretary, through regulations promulgated under 
     this section, shall establish a schedule of reimbursable 
     costs that the Secretary shall use to assist the State in 
     defraying the State's costs of developing, implementing and 
     enforcing a State public transportation safety program.
       ``(C) To help defray the costs of developing, implementing 
     and enforcing a State public transportation safety program, 
     the State may submit to the Secretary a voucher that does not 
     exceed the amount identified on the schedule of reimbursable 
     costs for an eligible activity.
       ``(D) The Secretary shall pay the State an amount not more 
     than the Federal Government's share of costs incurred as of 
     the date of the voucher.
       ``(6) Notice of withdrawal.--The Secretary shall ensure 
     that the State is carrying out the State public 
     transportation safety program, as follows:

[[Page S624]]

       ``(A) If the Secretary finds, after notice and opportunity 
     to comment, that the State transportation safety program 
     previously approved is not being followed or has become 
     inadequate to ensure enforcement of the regulations or 
     orders, the Secretary shall withdraw approval of the program 
     and notify the State.
       ``(B) A State public transportation safety program shall no 
     longer be in effect upon the State`s receipt of the 
     Secretary's notice of withdrawal of approval.
       ``(C) A State receiving notice under subparagraph (A) of 
     this paragraph may seek judicial review of the Secretary's 
     decision under chapter 7 of title 5, United States Code.
       ``(D) Notwithstanding the withdrawal, a State may retain 
     jurisdiction in administrative and judicial proceedings begun 
     before the withdrawal if the issues involved are not related 
     directly to the reasons for the withdrawal.
       ``(g) Enforcement.--
       ``(1) In general.--The Secretary has the authority--
       ``(A) to establish, impose and compromise a civil penalty 
     for a violation of a public transportation safety regulation 
     promulgated or order issued under this section;
       ``(B) to establish, impose and compromise a civil penalty 
     for violation of the alcohol and controlled substances 
     testing provisions under section 5331 of this chapter;
       ``(C) to request an injunction for a violation of a public 
     transportation safety regulation promulgated or order issued 
     under this section; and
       ``(D) to notify the Attorney General when the Secretary 
     receives evidence of a possible criminal violation under 
     paragraph (5).
       ``(2) Deposit of civil penalties.--An amount collected by 
     the Secretary under this section shall be deposited into the 
     General Fund of the United States Treasury.
       ``(3) Enforcement by the attorney general.--At the request 
     of the Secretary, the Attorney General shall bring a civil 
     action--
       ``(A) for appropriate injunctive relief to ensure 
     compliance with this section;
       ``(B) to collect a civil penalty imposed or an amount 
     agreed upon in a compromise under paragraph (1) of this 
     subsection; or
       ``(C) to enforce a subpoena, request for admissions, 
     request for production of documents or other tangible things, 
     or request for testimony by deposition issued by the 
     Secretary under this section.
       ``(4) Jurisdiction.--An action under paragraph (3) of this 
     subsection may be brought in a district court of the United 
     States in any State in which the relief is required. On a 
     proper showing, the court shall issue a temporary restraining 
     order or preliminary or permanent injunction. An injunction 
     under this section may order a public transportation agency 
     receiving assistance under this chapter to comply with this 
     section, or a regulation promulgated under this section.
       ``(5) Criminal penalty.--A person who knowingly violates 
     this section or a public transportation safety regulation or 
     order issued under this section shall be fined under title 
     18, United States Code, imprisoned for not more than 5 years, 
     or both; except that the maximum amount of imprisonment shall 
     be 10 years in any case in which the violation results in 
     death or bodily injury to any person. For purposes of this 
     subparagraph--
       ``(A) a person acts knowingly when--
       ``(i) the person has actual knowledge of the facts giving 
     rise to the violation; or
       ``(ii) a reasonable person acting in the circumstances and 
     exercising reasonable care would have that knowledge; and
       ``(B) actual knowledge of the existence of a statutory 
     provision, or a regulation or a requirement required by the 
     Secretary is not an element of an offense under this 
     paragraph.
       ``(h) Emergency Authority.--
       ``(1) Ordering restrictions and prohibitions.--If, through 
     testing, inspection, investigation, or research carried out 
     under this section, the Secretary decides that an unsafe 
     condition or practice, or a combination of unsafe conditions 
     and practices, causes an emergency situation involving a 
     hazard of death, personal injury, or significant harm to the 
     environment, the Secretary immediately may order restrictions 
     and prohibitions, without regard to section 553 and section 
     554 of title 5, United States Code, that may be necessary to 
     abate the emergency situation.
       ``(2) Emergency condition or practice.--The order shall 
     describe the condition or practice, or a combination of 
     conditions and practices, that causes the emergency situation 
     and promulgate standards and procedures for obtaining relief 
     from the order. This paragraph does not affect the 
     Secretary's discretion under this subsection to maintain the 
     order in effect for as long as the emergency situation 
     exists.
       ``(3) Review of orders.--After issuing an order under this 
     subsection, the Secretary shall provide an opportunity for 
     review of the order under section 554 of title 5, United 
     States Code. If a petition for review is filed and the review 
     is not completed by the end of the 30-day period beginning on 
     the date the order was issued, the order stops being 
     effective at the end of that period unless the Secretary 
     decides in writing that the emergency situation still exists.
       ``(4) Civil actions to compel issuance of orders.--An 
     employee of a rail fixed guideway public transportation 
     system provider who may be exposed to imminent physical 
     injury during that employment because of the Secretary's 
     failure, without any reasonable basis, to issue an order 
     under paragraph (1) of this subsection, or the employee's 
     authorized representative, may bring a civil action against 
     the Secretary in a district court of the United States to 
     compel the Secretary to issue an order. The action shall be 
     brought in the judicial district in which the emergency 
     situation is alleged to exist, in which the employing 
     provider has its principal executive office, or in the 
     District of Columbia. The Secretary's failure to issue an 
     order under paragraph (1) of this subsection may be reviewed 
     only under section 706 of title 5, United States Code.
       ``(i) Effect on Employee Qualifications and Collective 
     Bargaining.--This section does not--
       ``(1) authorize the Secretary to promulgate regulations and 
     issue orders related to qualifications of employees, except 
     qualifications specifically related to safety; or
       ``(2) prohibit collective bargaining agreements between 
     public transportation agencies and public transportation 
     employees or their representatives, including agreements 
     related to qualifications of the employees that are not 
     inconsistent with regulations and orders promulgated under 
     this section.
       ``(j) Public Transportation Employee Protections.--
     Applicable provisions of the public transportation employee 
     protection provisions under section 1413 of the Implementing 
     Recommendations of the 9/11 Commission Act of 2007 (6 U.S.C. 
     1142) apply to direct and indirect recipients of Federal 
     transit assistance under this chapter.
       ``(k) Judicial Review.--A person adversely affected or 
     aggrieved by a final action of the Secretary under this 
     section or under section 5331 of this title may petition for 
     review of the final action in the United States Court of 
     Appeals for the District of Columbia or in the court of 
     appeals for the United States for the circuit in which the 
     person resides and has its principal place of business. 
     Judicial procedures require--
       ``(1) the petition be filed not more than 60 days after the 
     Secretary's action becomes final;
       ``(2) the clerk of the court immediately send a copy of the 
     petition filed under paragraph (3) of this section to the 
     Secretary;
       ``(3) the Secretary file with the court a record of any 
     proceeding in which the final action was issued as provided 
     in section 2112 of title 28, United States Code; and
       ``(4) the court to consider an objection to a final action 
     of the Secretary only if the objection was made in the course 
     of the proceeding or review conducted by the Secretary or if 
     there was a reasonable ground for not making the objection in 
     the proceeding.''.
       (b) Authorizations.--Section 5338 of title 49, United 
     States Code, is amended--
       (1) by redesignating subsections (e), (f) and (g) as 
     subsections (f), (g) and (h), respectively;
       (2) by inserting after subsection (d) the following:
       ``(e) Safety Program.--There are authorized to be 
     appropriated such amounts in each fiscal year as necessary to 
     administer section 5329 and to make grants or enter into 
     agreements to carry out section 5329.''; and
       (3) in subsection (h), as redesignated, by striking ``and 
     (d)'' and inserting ``(d) and (e)''.
       (c) Prohibitions Against Regulating Operations and 
     Charges.--Section 5334(b)(I) of title 49, United States Code, 
     is amended by inserting ``or for purposes of establishing and 
     enforcing programs to improve the safety of the nation's 
     public transportation systems, and reducing accidents on rail 
     fixed guideway and bus systems for public transportation,'' 
     after ``emergency,''.
       (d) Alcohol and Controlled Substances Testing.--Section 
     5331(b)(2) of title 49, United States Code, is amended--
       (1) by redesignating subparagraphs (A) and (B) as 
     subparagraphs (B) and (C), respectively; and
       (2) by inserting before subparagraph (B), as so 
     redesignated, the following:
       ``(A) shall establish and implement an enforcement program, 
     including the imposition of penalties for failure to comply 
     with this section;''.
       (e) Conforming Amendment; Repeal.--
       (1) Chapter analysis.--The analysis for chapter 53 of title 
     49, United States Code, is amended by striking the item 
     relating to section 5329 and inserting the following:

       ``5329. Public Transportation Safety Program.''.

       (2) Repeal.--Section 5330 of title 49, United States Code, 
     is repealed 3 years after the effective date of final 
     regulations issued by the Secretary under section 5329 of 
     title 49, as amended by this section.

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