[House Report 110-74]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-74
======================================================================
PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 1401) TO IMPROVE THE
SECURITY OF RAILROADS, PUBLIC TRANSPORTATION, AND OVER-THE-ROAD BUSES
IN THE UNITED STATES, AND FOR OTHER PURPOSES
_______
March 26, 2007.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Hastings of Florida, from the Committee on Rules, submitted the
following
R E P O R T
[To accompany H. Res. 270]
The Committee on Rules, having had under consideration
House Resolution 270, by a record vote of 7 to 4, report the
same to the House with the recommendation that the resolution
be adopted.
SUMMARY OF PROVISIONS OF THE RESOLUTION
The resolution provides for consideration of H.R. 1401 to
improve the security of railroads, public transportation, and
over-the-road buses in the United States. The resolution
provides for one hour and twenty minutes of general debate,
with one hour equally divided and controlled by the Chairman
and Ranking Minority Member of the Committee on Homeland
Security and twenty minutes equally divided and controlled by
the Chairman and Ranking Minority Member of the Committee on
Transportation and Infrastructure.
The resolution waives all points of order against
consideration of the bill except those arising under clause 9
or 10 of rule XXI. The resolution makes in order the amendment
in the nature of a substitute recommended by the Committee on
Homeland Security as the original bill for the purpose of
further amendment.
The resolution makes in order those amendments printed in
this report. Finally, the resolution provides one motion to
recommit with or without instructions.
EXPLANATION OF WAIVERS
The resolution includes a waiver of all points of order
against consideration of the bill except for those arising
under clauses 9 and 10 of rule XXI. Points of order for
violating clause 9 of rule XXI (regarding earmark statements)
or clause 10 of rule XXI (regarding direct spending increases)
are not waived.
COMMITTEE VOTES
The results of each record vote on an amendment or motion
to report, together with the names of those voting for and
against, are printed below:
Rules Committee record vote No. 97
Date: March 26, 2007.
Measure: H.R. 1401.
Motion by: Mr. Dreier.
Summary of motion: To make in order and provide appropriate
waivers for an amendment by Rep. Lungren (#10) of California to
strike the $5 million punitive damages and criminal penalties
for employers who violate the section on whistleblower
protections. This amendment also ensures that if the Government
asserts the state secret privilege to protect sensitive or
classified information, the Government will not be penalized
for doing so. This amendment removes the contractors and
subcontractors of non-Federal employers from the whistleblower
section.
Results: Defeated 4-7.
Vote by Members: McGovern--Nay; Hastings (FL)--Nay;
Matsui--Nay; Welch--Nay; Castor--Nay; Arcuri--Nay; Sutton--Nay;
Dreier--Yea; Diaz-Balart--Yea; Hastings (WA)--Yea; Sessions--
Yea.
Rules Committee record vote No. 98
Date: March 26, 2007.
Measure: H.R. 1401.
Motion by: Mr. Diaz-Balart.
Summary of motion: To make in order and provide appropriate
waivers for an amendment by Rep. Mica (#5) of Florida to
removes railroad employees from the whistleblower section of
the bill. Expands the existing Title 49 whistleblower provision
for railroad employees to include both safety and security.
Results: Defeated 4-7.
Vote by Members: McGovern--Nay; Hastings (FL)--Nay;
Matsui--Nay; Welch--Nay; Castor--Nay; Arcuri--Nay, Sutton--Nay;
Dreier--Yea; Diaz-Balart--Yea; Hastings (WA)--Yea; Sessions--
Yea.
Rules Committee record vote No. 99
Date: March 26, 2007.
Measure: H.R. 1401.
Motion by: Mr. Diaz-Balart.
Summary of motion: To make in order and provide appropriate
waivers for an amendment by Rep. Mica (#4) of Florida to
require the development of a national security needs assessment
to determine the total cost of needed capital and operations
security improvements for the Nation's public transportation
systems, freight railroads, intercity passenger railroads, and
over-the-road bus companies.
Results: Defeated 4-7.
Vote by Members: McGovern--Nay; Hastings (FL)--Nay;
Matsui--Nay; Welch--Nay; Castor--Nay; Arcuri--Nay; Sutton--Nay;
Dreier--Yea; Diaz-Balart--Yea; Hastings (WA)--Yea; Sessions--
Yea.
Rules Committee record vote No. 100
Date: March 26, 2007.
Measure: H.R. 1401.
Motion by: Mr. Hastings of Washington.
Summary of motion: To make in order and provide appropriate
waivers for an amendment by Rep. Dent (#11) of Pennsylvania to
requirer carriers who provide covered transportation to
individuals entering the United States to provide passenger
information to Customs and Border Protection (CBP) prior to
arrival at or departure from a port of entry, expanding the
Advance Passenger Information System (APIS) currently used for
aviation and maritime.
Results: Defeated 4-7.
Vote by Members: McGovern--Nay; Hastings (FL)--Nay;
Matsui--Nay; Welch--Nay; Castor--Nay; Arcuri--Nay; Sutton--Nay;
Dreier--Yea; Diaz-Balart--Yea; Hastings (WA)--Yea; Sessions--
Yea.
Rules Committee record vote No. 101
Date: March 26, 2007.
Measure: H.R. 1401.
Motion by: Mr. Hastings of Washington.
Summary of motion: To make in order and provide appropriate
waivers for an amendment by Rep. Brown-Waite (#2) to exclude
security critical infrastructure information from disclosure
under the Freedom of Information Act, including the criteria
used by the Secretary to determine risk and create
vulnerability assessments and security plans, among others.
Results: Defeated 4-7.
Vote by Members: McGovern--Nay; Hastings (FL)--Nay;
Matsui--Nay; Welch--Nay; Castor--Nay; Arcuri--Nay; Sutton--Nay;
Dreier--Yea; Diaz-Balart--Yea; Hastings (WA)--Yea; Sessions--
Yea.
Rules Committee record vote No. 102
Date: March 26, 2007.
Measure: H.R. 1401.
Motion by: Mr. Hastings of Florida.
Summary of motion: To report the rule.
Results: Adopted 7-4.
Vote by Members: McGovern--Yea; Hastings (FL)--Yea;
Matsui--Yea; Welch--Yea; Castor--Yea; Arcuri--Yea; Sutton--Yea;
Dreier--Nay; Diaz-Balart--Nay; Hastings (WA)--Nay; Sessions--
Nay.
SUMMARY OF AMENDMENTS MADE IN ORDER
1. Thompson, Bennie (MS): Manager's Amendment. The
amendment makes technical and clerical changes to H.R. 1401, as
reported by the Committee on Homeland Security. It also
clarifies the relationship between the Department of Homeland
Security and Transportation in carrying out certain portions of
the bill, and modifies the whistleblower protections for
federal employees and contractors to make them more similar to
those granted in H.R. 985. (10 minutes)
2. Arcuri (NY): The amendment requires the Secretary of
Homeland Security, in coordination with the Secretary of
Transportation, to conduct an assessment of the safety and
security vulnerabilities of placing high voltage direct current
electric transmission lines along active railroad rights-of-
way. The Amendment requires the Secretary to report the
findings of this assessment to Congress within 6 months of
enactment of the Act. (10 minutes)
3. Cohen (TN): Establishes a program to coordinate with
state and local governments to enable minimize the need for
transportation of toxic inhalation hazardous materials by rail.
(10 minutes)
4. Castle (DE): This amendment requires the Secretary of
Homeland Security to study foreign rail security practices that
are not currently used in the U.S. and submit a report on
recommendations for implementing such practices. (10 minutes)
5. Sessions (TX): Prohibits funds in this act, except those
noted in Section 108, from being used by Amtrak for any of the
Top 10 worst revenue losing long-distance routes as noted by
its September 2006 monthly performance report. This amendment
provides a waiver from this provision should the Secretary deem
a route or a portion of a route as critical to homeland
security. (10 minutes)
6. Flake (AZ): This amendment would strike section 203,
``Transportation Security Administration Breeding Program
Increase'' which authorizes an increase in the number of
domestically bred canines under the Transportation Security
Administration's Puppy Program. (10 minutes)
7. Flake (AZ): This amendment would strike the section of
the bill that provides a new Homeland Security grant program,
``Over-The-Road Bus Security Assistance.'' (10 minutes)
8. Lynch (MA): The Amendment provides that not later than 1
year after the Secretary issues the detailed worker training
guidance required under Section 109, the Secretary must submit
a report to Congress on the progress of providers of covered
transportation in meeting the Section's worker training
requirements. The report must include the results of a survey,
conducted by the Secretary, of covered workers regarding the
effectiveness and adequacy of the training programs. (10
minutes)
TEXT OF AMENDMENTS MADE IN ORDER UNDER THE RULE
1. An Amendment To Be Offered by Representative Thompson of
Mississippi, or His Designee, Debatable for 10 Minutes
Section 2(2)(E), strike ``railroad and transit cars'' and
insert ``railroad cars, public transportation cars and buses,
and over-the-road buses''.
Section 2(6)(B), strike ``the public transportation
designated recipient providing the transportation'' and insert
`` the designated recipient''.
Section 2(14), strike the period after ``over-the-road bus''
and insert ``--''.
After section 2, insert the following:
SEC. 3. NO PREEMPTION OF STATE LAW.
(a) No Preemption of State Law.--Nothing in section 20106 of
title 49, United States Code, preempts a State cause of action,
or any damages recoverable in such an action, including
negligence, recklessness, and intentional misconduct claims,
unless compliance with State law would make compliance with
Federal requirements impossible. Nothing in section 20106 of
title 49, United States Code, confers Federal jurisdiction of a
question for such a cause of action.
(b) Secretarial Power.--Section 20106 of title 49, United
States Code, preempts only positive laws, regulations, or
orders by executive or legislative branch officials that
expressly address railroad safety or security. The Secretary
and the Secretary of Transportation have the power to preempt
such positive enactments by substantially subsuming the same
subject matter, pursuant to proper administrative procedures.
Section 101(a), strike ``, in consultation with the Secretary
of Transportation,''.
Section 103, strike ``, in consultation with the Secretary of
Transportation,'' each place it appears, except subsection (o).
Section 103(c)(1), strike ``high-or'' and insert ``high-
or''.
Section 103(e), strike ``vulnerabilities and security
plans''and insert ``a vulnerability assessment and security
plan''.
Section 103(k)(3)--
(1) strike ``those submissions'' and insert ``such
submission''; and
(2) strike ``vulnerability assessments and security
plans'' and insert ``the vulnerability assessment and
security plan''.
Section 103(o), strike ``, hereinafter referred to as
`Amtrak' ''.
Section 104(a), strike ``, in consultation with the Secretary
of Transportation,''.
Section 105(a), strike ``, in consultation with the Secretary
of Transportation,''.
Section 105(b)(2), strike ``rail'' and insert ``railroad''.
Section 105(b)(3), strike ``redevelopment and''.
Section 105(b)(4), insert ``, including stations and other
railroad transportation infrastructure owned by State or local
governments'' before the period.
Section 105(b)(12) insert ``security'' before ``inspection''
each places it appears.
Section 105(b)(16), strike ``front-line railroad employees''
and insert ``railroad employees, including front-line
employees''.
Strike section 105(c) and insert the following:
(c) Department of Homeland Security Responsibilities.--In
carrying out the responsibilities under subsection (a), the
Secretary shall--
(1) determine the requirements for recipients of
grants under this section, including application
requirements;
(2) pursuant to subsection (f), determine who are the
recipients of grants under this section;
(3) pursuant to subsection (b), determine the uses
for which grant funds may be used under this section;
(4) establish priorities for uses of funds for grant
recipients under this section; and
(5) not later than 5 business days after making
determinations under paragraphs (1) through (4),
transfer grant funds under this section to the
Secretary of Transportation for distribution to the
recipients of grants determined by the Secretary under
paragraph (2).
Section 105--
(1) strike subsection (f);
(2) redesignate subsections (d) through (m) as
subsections (g) through (o), respectively;
(3) insert after subsection (c), as amended, the
following:
(d) Department of Transportation Responsibilities.--The
Secretary of Transportation shall distribute grant funds under
this section to the recipients of grants determined by the
Secretary under subsection (f).
(e) Monitoring and Auditing.--The Department of Homeland
Security and the Department of Transportation jointly shall
monitor and audit the use of funds under this section.
(f) Eligibility.--A railroad carrier is eligible for a grant
under this section if the carrier has completed a vulnerability
assessment and developed a security plan that the Secretary has
approved under section 103. Grant funds may only be used for
permissible uses under subsection (b) to further a rail
security plan.
Section 105(j), as redesignated (relating to standards)--
(1) strike ``The Secretary shall require a'' and
insert ``A'';
(2) after ``108'' insert ``shall be required''; and
(3) strike ``Amtrak'' and insert ``the National
Railroad Passenger Corporation''.
Section 105(m), as redesignated (relating to guidelines)--
(1) strike ``, in consultation with the Secretary of
Transportation,''; and
(2) strike ``recipients of grants under this
section'' the first place it appears and insert ``, to
the extent that recipients of grants under this section
use contractors or subcontractors, such recipients''.
Section 105 strike subsection (n), as redesignated.
Section 105, redesignate subsection (o), as redesignated, as
subsection (n).
Section 106, strike ``, in consultation with the Secretary of
Transportation,'' each place it appears.
Section 106(b)(2), insert ``, including stations and other
public transportation infrastructure owned by State or local
governments'' before the period.
Section 106(b)--
(1) redesignate paragraphs (10) through (17) as
paragraphs (11) through (18), respectively; and
(2) after paragraph (9) insert the following:
(10) Purchase and placement of bomb-resistant trash
cans throughout public transportation facilities,
including subway exits, entrances, and tunnels.
Section 106(b)(15), as redesignated--
(1) strike ``front-line'' before ``public''; and
(2) insert ``, including front-line employees'' after
``employees''.
Section 106(b)(16), as redesignated, after ``reimbursement''
insert ``, including reimbursement of State, local, and tribal
governments for costs,''.
Section 106(b)(17), as redesignated, after ``costs'' insert
``, including reimbursement of State, local, and tribal
governments for costs''.
At the end of section 106(b), strike paragraph (18), as
redesignated, and insert the following:
(18) Such other security improvements as the
Secretary considers appropriate, including security
improvements for newly completed public transportation
systems that are not yet operable for passenger use.
Section 106--
(1) strike subsections (c) and (d);
(2) redesignate subsections (e) through (j) as
subsections (g) through (l), respectively; and
(3) insert after subsection (b) the following:
(c) Department of Homeland Security Responsibilities.--In
carrying out the responsibilities under subsection (a), the
Secretary shall--
(1) determine the requirements for recipients of
grants under this section, including application
requirements;
(2) pursuant to subsection (f), determine who are the
recipients of grants under this section;
(3) pursuant to subsection (b), determine the uses
for which grant funds may be used under this section;
(4) establish priorities for uses of funds for grant
recipients under this section; and
(5) not later than 5 business days after making
determinations under paragraphs (1) through (4),
transfer grant funds under this section to the
Secretary of Transportation for distribution to the
recipients of grants determined by the Secretary under
paragraph (2).
(d) Department of Transportation Responsibilities.--The
Secretary of Transportation shall distribute grant funds under
this section to the recipients of grants determined by the
Secretary under subsection (f).
(e) Monitoring and Auditing.--The Department of Homeland
Security and the Department of Transportation shall jointly
monitor and audit the use of funds under this section.
(f) Eligibility.--A designated recipient is eligible for a
grant under this section if the recipient has completed a
vulnerability assessment and developed a security plan that the
Secretary has approved under section 103. Grant funds may only
be used for permissible uses under subsection (b) to further a
public transportation security plan.
Section 106, subsection (g), as redesignated (relating to
terms and conditions), strike ``under effect'' and insert ``as
in effect''.
Section 106, subsection (j), as redesignated (relating to
guidelines), strike ``recipients of grants under this section''
the first place it appears and insert ``, to the extent that
recipients of grants under this section use contractors or
subcontractors, such recipients shall''.
Section 106, strike subsection (k), as redesignated (relating
to monitoring).
Section 106, redesignate subsection (l), as redesignated
(relating to authorization of appropriations), as subsection
(k).
Section 107, strike ``, in consultation with the Secretary of
Transportation,'' each place it appears.
Section 107(b)(1), insert: ``, including terminals and other
over-the-road bus facilities owned by State or local
governments'' before the period.
Section 107(b)(8) strike--
(1) strike ``front-line'' before ``over-the-road'';
and
(2) insert ``, including front-line employees'' after
``employees''.
Section 107(b)(10), after ``reimbursement'' insert
``including reimbursement of State, local, and tribal
governments for costs,''.
Section 107(b)(12), after ``costs'' insert ``, including
reimbursement of State, local, and tribal governments for such
costs.''.
Section 107--
(1) redesignate subsections (e) through (j) as
subsections (g) through (l ), respectively; and
(2) strike subsections (c) and (d) and insert the
following:
(c) Department of Homeland Security Responsibilities.--In
carrying out the responsibilities under subsection (a), the
Secretary shall--
(1) determine the requirements for recipients of
grants under this section, including application
requirements;
(2) pursuant to subsection (f), determine who are the
recipients of grants under this section;
(3) pursuant to subsection (b), determine the uses
for which grant funds may be used under this section;
(4) establish priorities for uses of funds for grant
recipients under this section; and
(5) not later than 5 business days of making
determinations under paragraphs (1) through (4),
transfer grant funds under this section to the
Secretary of Transportation for distribution to the
recipients of grants determined by the Secretary under
paragraph (2).
(d) Department of Transportation Responsibilities.--The
Secretary of Transportation shall distribute grant funds under
this section to the recipients of grants determined by the
Secretary under subsection (f).
(e) Monitoring and Auditing.--The Department of Homeland
Security and the Department of Transportation shall jointly
monitor and audit the use of funds under this section.
(f) Eligibility.--A private operator providing transportation
by an over-the-road bus is eligible for a grant under this
section if the operator has completed a vulnerability
assessment and developed a security plan that the Secretary has
approved under section 103. Grant funds may only be used for
permissible uses under subsection (b) to further an over-the-
road bus security plan.
Section 107, subsection (i), as redesignated (relating to
annual reports), after ``funds'' insert a period.
Section 107, subsection (j), as redesignated (relating to
guidelines), strike ``recipients of grants under this section
the first place it appears'' and insert ``to the extent that
recipients of grants under this section use contractors or
subcontractors, such recipients shall''.
Section 107, strike subsection (k) as redesignated (relating
to monitoring).
Section 107, redesignate subsection (l), as redesignated
(relating to authorization), as subsection (k).
Section 108(a), strike ``Amtrak'' the first place it appears
and insert ``the National Railroad Passenger Corporation''.
Section 108(c) strike ``recipients of grants under this
section'' the first place it appears and insert ``, to the
extent that recipients of grants under this section use
contractors or subcontractors, such recipients shall''.
Section 109(a), strike ``, in consultation with the Secretary
of Transportation,''.
Section 109(a)(1), insert a comma after ``employees''.
Section 109(b)(3) strike ``and fire fighter workers'' and
insert ``or emergency response personnel''.
Section 109(c)(9), strike ``Any other subject'' and insert
``Other security training activities that''.
Section 109(d)(1), strike ``in final form''.
Section 109(d)(2), insert ``proposal'' after ``training
program''.
Section 109(d)(3), insert ``proposal'' after ``training
program''.
Section 109(d)(4), insert ``as necessary'' after ``workers''.
Section 110(a), strike ``, in consultation with the Secretary
of Transportation,''.
Section 110(c), strike ``, in consultation with the Secretary
of Transportation,''.
Section 110(c)(1), insert ``working jointly with the
Secretary of Transportation,'' before ``consolidates''.
Section 111(b)(3) strike ``freight''.
Section 111(b), strike ``and'' at the end of paragraph (6),
redesignate paragraph (7) as paragraph (8), and insert the
following after paragraph (6):
(7) to assess the vulnerabilities and risks
associated with new rail and public transportation
construction projects prior to their completion; and
Section 111(c)(2)(E)--
(1) strike ``including,'' and insert ``, including'';
and
(2) strike ``Institution or Tribal University'' and
insert ``Institutions or Tribal Universities''.
Strike section 112 of the bill and insert the following (and
make all necessary technical and conforming changes):
SEC. 112. WHISTLEBLOWER PROTECTIONS.
(a) In General.--No covered individual may be discharged,
demoted, suspended, threatened, harassed, reprimanded,
investigated, or in any other manner discriminated against,
including by a denial, suspension, or revocation of a security
clearance or by any other security access determination, if
such discrimination is due, in whole or in part, to any lawful
act done, perceived to have been done, or intended to be done
by the covered individual--
(1) to provide information, cause information to be
provided, or otherwise assist in an investigation
regarding any conduct which the covered individual
reasonably believes constitutes a violation of any law,
rule, or regulation relating to rail, public
transportation, or over-the-road-bus security, which
the covered individual reasonably believes constitutes
a threat to rail, public transportation, or over-the-
road-bus security, or which the covered individual
reasonably believes constitutes fraud, waste, or
mismanagement of Government funds intended to be used
for rail, public transportation, or over-the-road-bus
security, if the information or assistance is provided
to or the investigation is conducted by--
(A) by a Federal, State, or local regulatory
or law enforcement agency (including an office
of the Inspector General under the Inspector
General Act of 1978 (5 U.S.C. App.; Public Law
95-452);
(B) any Member of Congress, any committee of
Congress, or the Government Accountability
Office; or
(C) a person with supervisory authority over
the covered individual (or such other person
who has the authority to investigate, discover,
or terminate);
(2) to file, cause to be filed, testify, participate
in, or otherwise assist in a proceeding or action filed
or about to be filed relating to an alleged violation
of any law, rule, or regulation relating to rail,
public transportation, or over-the-road bus security;
or
(3) to refuse to violate or assist in the violation
of any law, rule, or regulation relating to rail public
transportation, or over-the-road bus security.
(b) Enforcement Action.--
(1) In general.--A covered individual who alleges
discharge or other discrimination by any person in
violation of subsection (a) may--
(A) in the case of a covered individual who
is employed by the Department or the Department
of Transportation, seek relief in accordance
with--
(i) the provisions of title 5, United
States Code, to the same extent and in
the same manner as if such individual
were seeking relief from a prohibited
personnel practice described in section
2302(b)(8) of such title; and
(ii) the amendments made by section
112A;
except that, if the disclosure involved
consists in whole or in part of classified or
sensitive information, clauses (i) and (ii)
shall not apply, and such individual may seek
relief in the same manner as provided by
section 112B;
(B) in the case of a covered individual who
is a contractor or subcontractor of the
Department or the Department of Transportation,
seek relief in accordance with section 112B;
and
(C) in the case of any other covered
individual, seek relief in accordance with the
provisions of this section, with any petition
or other request for relief under this section
to be initiated by filing a complaint with the
Secretary of Labor.
(2) Procedure.--
(A) In general.--An action under paragraph
(1)(C) shall be governed under the rules and
procedures set forth in section 42121(b) of
title 49, United States Code.
(B) Exception.--Notification made under
section 42121(b)(1) of title 49, United States
Code, shall be made to the person named in the
complaint and to the person's employer.
(C) Burdens of proof.--An action brought
under paragraph (1)(C) shall be governed by the
legal burdens of proof set forth in section
42121(b) of title 49, United States Code.
(D) Statute of limitations.--An action under
paragraph (1)(C) shall be commenced not later
than 1 year after the date on which the
violation occurs.
(3) De novo review.--With respect to a complaint
under paragraph (1)(C), if the Secretary of Labor has
not issued a final decision within 180 days after the
filing of the complaint (or, in the event that a final
order or decision is issued by the Secretary of Labor,
whether within the 180-day period or thereafter, then,
not later than 90 days after such an order or decision
is issued), the covered individual may bring an
original action at law or equity for de novo review in
the appropriate district court of the United States,
which shall have jurisdiction over such an action
without regard to the amount in controversy, and which
action shall, at the request of either party to such
action, be tried by the court with a jury.
(c) Remedies.--
(1) In general.--A covered individual prevailing in
any action under subsection (b)(1)(C) shall be entitled
to all relief necessary to make the covered individual
whole.
(2) Damages.--Relief in an action under subsection
(b)(1)(C) (including an action described in subsection
(b)(3)) shall include--
(A) reinstatement with the same seniority
status that the covered individual would have
had, but for the discrimination;
(B) the amount of any back pay, with
interest; and
(C) compensation for any special damages
sustained as a result of the discrimination,
including litigation costs, expert witness
fees, and reasonable attorney fees.
(3) Possible relief.--Relief in an action under
subsection (b)(1)(C) may include punitive damages in an
amount not to exceed the greater of 3 times the amount
of any compensatory damages awarded under this section
or $5,000,000.
(d) Use of State Secrets Privilege.--
(1) If, in any action for relief sought by a covered
individual in accordance with the provisions of
subsection (b)(1)(A), (B), or (C), the Government
agency moves to withhold information from discovery
based on a claim that disclosure would be inimical to
national security by asserting the privilege commonly
referred to as the ``state secrets privilege'', and if
the assertion of such privilege prevents the covered
individual from establishing an element in support of
the covered individual's claim, the court shall resolve
the disputed issue of fact or law in favor of the
covered individual, provided that, in an action brought
by a covered individual in accordance with the
provisions of subsection (b)(1)(A) or (B), an Inspector
General investigation under section 112B has resulted
in substantial confirmation of that element, or those
elements, of the covered individual's claim.
(2) In any case in which the Government agency
asserts the privilege commonly referred to as the
``state secrets privilege'', whether or not an
Inspector General has conducted an investigation with
respect to the alleged discrimination, the head of the
Government agency involved shall, at the same time it
asserts the privilege, issue a report to authorized
Members of Congress, accompanied by a classified annex
if necessary, describing the reasons for the assertion,
explaining why the court hearing the matter does not
have the ability to maintain the protection of
classified information related to the assertion,
detailing the steps the agency has taken to arrive at a
mutually agreeable settlement with the covered
individual, setting forth the date on which the
classified information at issue will be declassified,
and providing all relevant information about the
underlying substantive matter.
(e) Criminal Penalties.--
(1) In general.--It shall be unlawful for any person
employing a covered individual described in subsection
(b)(1)(C) to commit an act prohibited by subsection
(a). Any person who willfully violates this section by
terminating or retaliating against any such covered
individual who makes a claim under this section shall
be fined under title 18, United States Code, imprisoned
not more than 1 year, or both.
(2) Reporting requirement.--
(A) In general.--The Attorney General shall
submit to the appropriate congressional
committees an annual report on the enforcement
of paragraph (1).
(B) Contents.--Each such report shall--
(i) identify each case in which
formal charges under paragraph (1) were
brought;
(ii) describe the status or
disposition of each such case; and
(iii) in any actions under subsection
(b)(1)(C) in which the covered
individual was the prevailing party or
the substantially prevailing party,
indicate whether or not any formal
charges under paragraph (1) have been
brought and, if not, the reasons
therefor.
(f) No Preemption.--Nothing in this section, section 112A, or
section 112B preempts or diminishes any other safeguards
against discrimination, demotion, discharge, suspension,
threats, harassment, reprimand, retaliation, or any other
manner of discrimination provided by Federal or State law.
(g) Rights Retained by Covered Individual.--Nothing in this
section, section 112A, or section 112B shall be deemed to
diminish the rights, privileges, or remedies of any covered
individual under any Federal or State law or under any
collective bargaining agreement. The rights and remedies in
this section, section 112A and section 112B may not be waived
by any agreement, policy, form, or condition of employment.
(h) Definitions.--In this section, section 112A and section
112B, the following definitions apply:
(1) Covered individual.--The term ``covered
individual'' means an employee of--
(A) the Department;
(B) the Department of Transportation;
(C) a contractor or subcontractor; and
(D) an employer within the meaning of section
701(b) of the Civil Rights Act of 1964 (42
U.S.C. 2000e(b)) and who is a provider of
covered transportation.
(2) Lawful.--The term ``lawful'' means not
specifically prohibited by law, except that, in the
case of any information the disclosure of which is
specifically prohibited by law or specifically required
by Executive order to be kept classified in the
interest of national defense or the conduct of foreign
affairs, any disclosure of such information to any
Member of Congress, committee of Congress, or other
recipient authorized to receive such information, shall
be deemed lawful.
(3) Contractor.--The term ``contractor'' means a
person who has entered into a contract with the
Department, the Department of Transportation, or a
provider of covered transportation.
(4) Employee.--The term ``employee'' means--
(A) with respect to an employer referred to
in paragraph (1)(A) or (1)(B), an employee as
defined by section 2105 of title 5, United
States Code; and
(B) with respect to an employer referred to
in paragraph (1)(C) or (1)(D), any officer,
partner, employee, or agent.
(5) Subcontractor.--The term ``subcontractor''--
(A) means any person, other than the
contractor, who offers to furnish or furnishes
any supplies, materials, equipment, or services
of any kind under a contract with the
Department, the Department of Transportation,
or a provider of covered transportation; and
(B) includes any person who offers to furnish
or furnishes general supplies to the contractor
or a higher tier subcontractor.
(6) Person.--The term ``person'' means a corporation,
partnership, State entity, business association of any
kind, trust, joint-stock company, or individual.
Section 113(c), strike ``the Secretary of Transportation
and''.
Section 116(b), strike ``designate the Center'' and insert
``select an institution of higher education to operate the
National Transportation Security Center of Excellence''.
Section 116(c)--
(1) redesignate paragraphs (1) through (3) as
paragraphs (2) through (4), respectively; and
(2) insert after the subsection heading the
following:
(1) Consortium.--The institution of higher education
selected under subsection (b) shall execute agreements
with other institutions of higher education to develop
a consortium to assist in accomplishing the goals of
the Center.
Section 116(c)(3), as redesignated, insert ``or'' before
``Tribal''.
Section 116, strike ``Consortium'' each place it appears and
insert ``consortium''.
Section 118, after ``risk'' strike all that follows through
``security''.
Section 120(d)(1), strike ``any rule'' and all that follows
through ``an employer'' and insert the following: ``if an
employer performs background checks to satisfy any rule,
regulation, directive, or other guidance issued by the
Secretary regarding background checks of covered individuals,
the employer shall be prohibited''.
Section 123(a), strike ``the Committee on Homeland Security
and Government Affairs of the Senate and the Committee on
Homeland Security of the House of Representatives'' and insert
``the appropriate congressional committees''.
Section 124, strike ``railcar'' and insert ``railroad car''
each place it appears.
Section 124(b)(1), strike subparagraph (B) and insert the
following:
(B) More than 25 kilograms (55 pounds) of a
division 1.1, 1.2, or 1.3 explosive, as defined
in section 173.50 of title 49, Code of Federal
Regulations, in a motor vehicle, rail car, or
freight container.
Section 124(b)(3)(A), strike ``railyards'' and insert
``railroad yards''.
Section 124 (f), insert ``railroad'' before ``carrier''.
Section 125(d)--
(1) redesignate paragraph (16) as paragraph (17);
(2) in paragraph (15), strike ``and'' after the
semicolon; and
(3) after paragraph (15), insert the following:
(16) nonprofit employee labor organizations; and
Section 124(f), insert ``railroad'' before ``carrier''.
Section 125 at the end, insert the following:
(f) Savings Provision.--An action of the Secretary or the
Secretary of Transportation under this Act is not an exercise,
under section 4(b)(1) of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 653(b)(1)), of statutory authority to
prescribe or enforce standards or regulations affecting
occupational safety or health.
Section 126(a)(1), ``The Secretary shall'' and insert ``The
Secretary and the Secretary of Transportation shall jointly''.
Section 126(a)(2), strike ``the Secretary shall'' and insert
``the Secretary and the Secretary of Transportation shall
jointly''.
Section 126(a)(3), insert ``and the Secretary of
Transportation'' after ``Secretary''.
Section 126(b)(3), insert ``and the Secretary of
Transportation'' after ``Secretary''.
Section 128, strike ``shall'' and insert ``should''.
Section 128, insert ``(a) Preference.--'' before ``In''.
Section 128 at the end, insert the following:
(b) Savings Provision.--Nothing in this section shall affect
grant recipient requirements pursuant to section 5323(j) of
title 49, United States Code, section 24305(f) of title 49,
United States Code, and the Buy American Act (41 U.S.C. 10).
Section 130(a), strike ``undeclared passengers or contraband,
including''.
Section 130 at the end, insert the following:
(c) Use of Transportation Data.--In carrying out this
subsection, the Secretary shall make use of data collected and
maintained by the Secretary of Transportation.
Section 131, strike the text and insert the following: ``In
carrying out section 119, the Secretary shall require each
provider of covered transportation, including contractors and
subcontractors, assigned to a high-risk tier under section 102
to submit the names of their employees to the Secretary to
conduct checks of their employees against available terrorist
watchlists and immigration status databases.''.
At the end of title I, insert the following (and conform the
table of contents accordingly):
SEC. 132. REVIEW OF GRANT-MAKING EFFICIENCY.
(a) Annual Study.--The Comptroller General of the United
States shall conduct an annual study for each of the first 3
years after the enactment of this title regarding the
administration and use of the grants awarded under sections
105, 106, and 107 of this title, including--
(1) the efficiency of the division of the grant-
making process, including whether the Department of
Transportation's role in distributing, auditing, and
monitoring the grant funds produces efficiency compared
to the consolidation of these responsibilities in the
Department of Homeland Security;
(2) whether the roles of the Department of Homeland
Security and the Department of Transportation in the
administration of the grants permit the grants to be
awarded and used in a timely and efficient manner and
according to their intended purposes;
(3) the use of grant funds, including whether grant
funds are used for authorized purposes.
(b) Report.--The Comptroller General of the United States
shall submit an annual report to the appropriate congressional
committees on the results of the study for each of the first 3
years after enactment of this title, including any
recommendations for improving the administration and use of the
grant funds awarded under sections 105, 106, and 107.
SEC. 133. ROLES OF THE DEPARTMENT OF HOMELAND SECURITY AND THE
DEPARTMENT OF TRANSPORTATION.
The Secretary of Homeland Security is the principal Federal
official responsible for transportation security. The roles and
responsibilities of the Department of Homeland Security and the
Department of Transportation in carrying out sections 101, 103,
104, 105, 106, 107, 109, 110, 111, 113, 123, 124, 125, 126,
127, 128, 129, 130, 131, and 201 of this Act are the roles and
responsibilities of such Departments pursuant to the Aviation
and Transportation Security Act (Public Law 107-71); the
Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 108-458); the National Infrastructure Protection
Plan required by Homeland Security Presidential Directive 7;
Executive Order 13416: Strengthening Surface Transportation
Security, dated December 5, 2006; the Memorandum of
Understanding between the Department and the Department of
Transportation on Roles and Responsibilities, dated September
28, 2004; the Annex to the Memorandum of Understanding between
the Department and the Department of Transportation on Roles
and Responsibilities concerning Railroad Security, dated
September 28, 2006; the Annex to the Memorandum of
Understanding between the Department and the Department of
Transportation on Roles and Responsibilities concerning Public
Transportation Security, dated September 8, 2005; and any
subsequent agreements between the Department of Homeland
Security and the Department of Transportation.
Section 201(a), strike ``ensure that canine detection teams
are deployed'' and insert ``encourage the deployment of canine
detection teams''.
Section 201(b), strike ``to increase'' and insert ``to
encourage an increase in''.
Strike ``rail carrier'' and insert ``railroad carrier'' each
place it appears in the bill.
----------
2. An Amendment To Be Offered by Representative Arcuri of New York, or
His Designee, Debatable for 10 Minutes
At the end of title I, insert the following (and conform the
table of contents accordingly):
SEC. __. ASSESSMENT AND REPORT.
(a) Study.--The Secretary, in coordination with the Secretary
of Transportation, shall assess the safety and security
vulnerabilities of placing high voltage direct current electric
transmission lines along active railroad rights-of-way. In
conducting the assessment, the Secretary shall, at a minimum,
evaluate the risks to local inhabitants and to consumers of
electric power transmitted by those lines, associated with a
train collision or derailment that damages such electric
transmission lines.
(b) Report.--Not later than 6 months after the date of
enactment of this Act, the Secretary shall transmit the results
of the assessment in subsection (a) to the appropriate
congressional committees as defined in this Act.
----------
3. An Amendment To Be Offered by Representative Cohen of Tennessee, or
His Designee, Debatable for 10 Minutes
At the end of title I, add the following:
SEC. _____. ALTERNATIVE MATERIAL SOURCES.
The Secretary of Transportation, in consultation with the
Secretary, shall establish a program to coordinate with State
and local governments to minimize the need for transportation
of toxic inhalation hazardous materials by rail.
----------
4. An Amendment To Be Offered by Representative Castle of Delaware, or
His Designee, Debatable for 10 Minutes
At the end of title I, insert the following (and conform the
table of contents accordingly):
SEC. ___. STUDY OF FOREIGN RAIL SECURITY PRACTICES.
The Secretary shall--
(1) study select foreign rail security practices, and
the cost and feasibility of implementing selected best
practices that are not currently used in the United
States, including--
(A) implementing covert testing processes to
evaluate the effectiveness of rail system
security personnel;
(B) implementing practices used by foreign
rail operators that integrate security into
infrastructure design;
(C) implementing random searches or screening
of passengers and their baggage; and
(D) 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;
and
(2) report the results of the study, together with
any recommendations that the Secretary may have for
implementing covert testing, practices for integrating
security in infrastructure design, random searches or
screenings, and an information clearinghouse to the
Committee on Homeland Security and Governmental Affairs
of the Senate, the Committee on Homeland Security of
the House of Representatives, the Committee on
Commerce, Science, and Transportation of the Senate,
and the Committee on Transportation and Infrastructure
of the House of Representatives not later than 1 year
after the date of enactment of this Act.
----------
5. An Amendment To Be Offered by Representative Sessions of Texas, or
His Designee, Debatable for 10 Minutes
At the end of title I, insert the following new section:
SEC. 132. USE OF FUNDS BY AMTRAK.
None of the funds appropriated pursuant to this Act, except
pursuant to section 108, may be used by Amtrak for any of the
10 long-distance routes of Amtrak that have the highest cost
per seat/mile ratios according to the September 2006 Amtrak
monthly performance report, unless the Secretary has
transmitted to Congress a waiver of the requirement under this
section with respect to a route or portion of a route that the
Secretary considers to be critical to homeland security.
----------
6. An Amendment To Be Offered by Representative Flake of Arizona, or
His Designee, Debatable for 10 Minutes
Strike section 203.
----------
7. An Amendment To Be Offered by Representative Flake of Arizona, or
His Designee, Debatable for 10 Minutes
Strike section 107 and redesignate the succeeding sections
accordingly and conform the table of contents.
----------
8. An Amendment To Be Offered by Representative Lynch of Massachusetts,
or His Designee, Debatable for 10 Minutes
At the end of section 109, add the following:
(g) Reporting Requirements.--Not later than one year after
the issuance of guidelines under subsection (a)(2), the
Secretary shall conduct a survey regarding the satisfaction of
workers regarding the effectiveness and adequacy of the
training programs. In addition, the Secretary shall submit a
report to the appropriate congressional committees regarding
the results of the survey and the progress of providers of
covered transportation in meeting the requirements of
paragraphs (1) and (3) of subsection (d).