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                                                       Calendar No. 536
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-278
======================================================================

 
                       RAIL SECURITY ACT OF 2004

                              ___________

                              R E P O R T

                                OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 2273



                                     

                  May 21, 2004.--Ordered to be printed




       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                      one hundred eighth congress
                             second session

                     JOHN MCCAIN, Arizona, Chairman
TED STEVENS, Alaska                  ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana                DANIEL K. INOUYE, Hawaii
TRENT LOTT, Mississippi              JOHN D. ROCKEFELLER IV, West 
KAY BAILEY HUTCHISON, Texas              Virginia
OLYMPIA J. SNOWE, Maine              JOHN F. KERRY, Massachusetts
SAM BROWNBACK, Kansas                JOHN B. BREAUX, Louisiana
GORDON SMITH, Oregon                 BYRON L. DORGAN, North Dakota
PETER G. FITZGERALD, Illinois        RON WYDEN, Oregon
JOHN ENSIGN, Nevada                  BARBARA BOXER, California
GEORGE ALLEN, Virginia               BILL NELSON, Florida
JOHN E. SUNUNU, New Hampshire        MARIA CANTWELL, Washington
                                     FRANK LAUTENBERG, New Jersey
           Jeanne Bumpus, Staff Director and General Counsel
                   Rob Freeman, Deputy Staff Director
                  Robert W. Chamberlin, Chief Counsel
      Kevin D. Kayes, Democratic Staff Director and Chief Counsel
                Gregg Elias, Democratic General Counsel



                                                       Calendar No. 536
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-278
======================================================================


                       RAIL SECURITY ACT OF 2004

                                _______
                                

                  May 21, 2004.--Ordered to be printed

                                _______
                                

       Mr. McCain, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                              R E P O R T

                         [To accompany S. 2273]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 2273) to provide increased rail 
transportation security, having considered the same, reports 
favorably thereon with amendments and recommends that the bill, 
as amended, do pass.

                          Purpose of the Bill

  The purpose of S. 2273 is to improve rail security by 
requiring the completion of a vulnerability assessment and 
security plan for the rail system, and by authorizing funds to 
address immediate security needs.

                          Background and Needs

  The terrorist bombing of 4 commuter trains in Madrid, Spain 
on March 11, 2004, that resulted in 191 fatalities and 1,400 
injuries, has heightened concerns about the vulnerability of 
the rail system in the United States to terrorist attack. Less 
than 2 weeks after the Madrid attack, an explosive device was 
found buried in the bed of a passenger rail line in France, and 
on April 2, a partially assembled bomb was discovered under a 
high-speed rail line south of Madrid. Also on April 2, the 
Department of Homeland Security (DHS) announced that it had 
received uncorroborated intelligence information on possible 
attacks this summer on United States cities involving trains 
and buses.
  Securing the United States rail system is a daunting 
challenge. In 2002, rail transit ridership totaled 3.4 billion 
trips.\1\ The transit system is intentionally barrier-free to 
handle large numbers of passengers efficiently and 
conveniently, but this characteristic makes transit more 
vulnerable to terrorist acts. Another 23 million passengers 
rode Amtrak, the nation's intercity passenger rail service 
provider. The nation's freight rail network consists of more 
than 140,000 miles of track, over which nearly 28 million 
carloads move annually, including over 9 million trailers and 
containers and 1.7 million carloads of hazardous materials and 
hazardous waste.\2\ Such far-flung operations preclude around-
the-clock monitoring of all track, trains, and facilities.
---------------------------------------------------------------------------
    \1\ Federal Transit Administration, National Transit Database, 
2002.
    \2\ Association of American Railroads, Railroad Facts, 2003 
Edition.
---------------------------------------------------------------------------
  Primary regulatory jurisdiction over rail security rests with 
DHS, while jurisdiction over rail safety rests with the Federal 
Railroad Administration (FRA) and the Research and Special 
Programs Administration (RSPA) within the Department of 
Transportation (DOT). FRA has jurisdiction over the safety of 
freight railroads, Amtrak, the Alaska Railroad, and 18 commuter 
rail authorities, including New Jersey Transit, Metro-North, 
and the Long Island Railroad in the New Jersey/New York City 
area; Metrolink in Los Angeles; and Caltrain in San Francisco. 
RSPA is responsible for the regulation of hazardous materials 
transportation by all modes, including the development of 
container and packaging standards and testing procedures.
  Because safety and security matters often overlap and because 
of DOT's longstanding expertise with respect to rail safety, 
the Homeland Security Act of 2002 (P.L. 107-296) which created 
DHS, preserved a role for DOT in certain security matters. The 
law requires that DHS consult with DOT on security regulations 
or orders that may affect rail safety or the safety of 
hazardous materials transportation. Further, the Act extended 
to security matters the same level of Federal preemption that 
applies to rail safety and hazardous materials transportation 
safety.\3\
---------------------------------------------------------------------------
    \3\ Federal law (49 USC 20106) states that a State may only enforce 
more stringent or additional requirements than Federal laws or 
regulations if such: (1) is necessary to eliminate or reduce an 
essentially local safety or security hazard; (2) is not incompatible 
with a Federal law or regulation; and (3) does not unreasonably burden 
interstate commerce. With respect to hazardous materials, Federal law 
(49 USC 5125) stipulates that State law is preempted if (1) complying 
with both the State law and the Federal requirement is not possible, or 
(2) the State requirement is an obstacle to carrying out Federal law 
and regulations. Further, State laws with respect to the classification 
of hazardous materials; packing, labeling, and placarding; and 
execution of shipping documents are preempted unless they are 
``substantively the same'' as Federal regulations.
---------------------------------------------------------------------------
  The Senate Committee on Commerce, Science, and Transportation 
(Committee or Commerce Committee) has jurisdiction over the 
rail safety program administered by FRA and rail security 
matters administered by DHS. The Senate Committee on Banking, 
Housing, and Urban Affairs (Banking Committee) has jurisdiction 
over public transportation matters, including rail, bus, and 
paratransit services. Transit safety however, other than for 
commuter authorities subject to FRA safety regulations, has not 
been widely regulated by the Federal government. On May 6, the 
Banking Committee reported legislation to address transit 
security. Its proposal may be joined with the Rail Security Act 
of 2004 on the Senate floor to form a comprehensive rail and 
transit security improvement package.

Major Security Issues

  The Commerce Committee's March 23 hearing on the state of 
rail security revealed a number of important security issues, 
including the need for a coordinated rail security initiative 
and the need to protect critical railroad infrastructure and 
the surrounding public areas.
  (1) Need for a coordinated rail security initiative.--Only 
modest resources have been dedicated to maritime and surface 
transportation security over the past 2\1/2\ years compared to 
the investments made to secure the airways. While the Federal 
Transit Administration (FTA), individual commuter agencies, 
Amtrak, and the freight railroads have, on their own 
initiative, taken steps to safeguard passengers, facilities, 
and cargo, rail security efforts remain fragmented. DHS has 
still not signed memorandums of agreement (MOAs) with DOT as 
recommended by the General Accounting Office (GAO) to make 
clear each department's roles and responsibilities with respect 
to rail security. Further, the Transportation Security 
Administration's (TSA's) Maritime and Land Security Division 
has yet to complete a threat and vulnerability assessment for 
the rail system and prepare an integrated security plan that 
reflects the unique characteristics of passenger and freight 
rail operations. The Maritime and Land Division is pursuing a 
number of individual projects, but does not appear to have an 
overall strategy or comprehensive national plan for improving 
rail security. Additionally, DHS does not appear to be 
effectively coordinating ongoing rail security initiatives 
undertaken by the railroads, State, and local authorities, and 
others in order to assist with the promulgation of best 
practices in security. This has led to a patchwork of different 
approaches to improving security.
  (2) Need to protect critical infrastructure.--A terrorist 
attack on the nation's rail system could cripple freight and 
commuter transportation. On a ton-mile basis, the nation's 
freight railroads carry nearly 42 percent of all intercity 
freight, including 65 percent of all coal shipments, 70 percent 
of all automobiles, and 30 percent of all grain shipments. Even 
the brief service disruptions following the 2001 terrorist 
attacks caused emergencies for several cities awaiting rail 
deliveries of chlorine used to purify their water.
  Shortly after the 2001 terrorist attacks, the freight rail 
industry, with the participation of a number of shipper 
organizations, conducted a nationwide vulnerability assessment 
that resulted in the identification of more than 1,300 
facilities considered critical infrastructure requiring 
heightened security protection. A number of these facilities 
are included on the Information Analysis and Infrastructure 
Protection (IAIP) Directorate's broader list of critical 
infrastructure that includes nuclear facilities, chemical 
plants, and other high-risk targets.
  In general, the freight railroads are not seeking Federal 
security funding. However, the Association of American 
Railroads has indicated that at heightened states of alert, the 
freight rail industry will need assistance from the National 
Guard to secure critical assets. In addition, the freight 
railroads support Federal aid for research regarding protective 
measures and emergency response protocols, and Federal 
reimbursement for extraordinary measures already taken, or 
which may be required by future Federal mandates.
  Amtrak serves over 500 train stations, the majority of which 
are owned by cities, States, and freight railroads. However, 
about 135 stations are owned by Amtrak, including Penn Station 
in New York, which is used by 400,000 commuters and intercity 
rail customers daily. Amtrak also owns and operates the 
Northeast Corridor, the most heavily traveled passenger rail 
corridor in the country, with over 1,200 trains per day, 
including over 1,000 trains operated by commuter authorities.
  In the days immediately following the September 11, 2001, 
terrorist attacks, Amtrak requested $3.15 billion in emergency 
funding ``safety, security and capacity'' improvements. Amtrak 
subsequently submitted a modified request without the capacity 
expansion elements for $515 million for system-wide security 
upgrades, $1 billion to complete life-safety work in tunnels 
along the Northeast corridor, and $254 million to renovate the 
Thames and Niantic bridges in Connecticut and implement several 
other capital improvements.
  The details of this modified plan, when they later became 
available, revealed that Amtrak planned, among other things, to 
``expand'' its aviation unit by purchasing a helicopter, and to 
install 6 cameras on every interlocking on the Northeast 
Corridor. Due to continuing concerns about Amtrak's security 
investment plan, Senator McCain, on January 13, 2003, asked FRA 
and TSA to assist Amtrak in developing both a security plan and 
a revised security investment plan. On April 10, 2003, Amtrak 
submitted a revised investment plan recommending funding for 
$110 million for a number of specific security improvements. 
That request was updated by Amtrak on March 19 in preparation 
for the Committee's March 23 hearing on railroad security.



------------------------------------------------------------------------

     Amtrak Security Investment Plan (dated March 19, 2004)     millions
                                                                  of $
------------------------------------------------------------------------
Repair doors (New York tunnels)...............................     $4.0
Secure major tunnel access points.............................    $28.8
Secure Amtrak trains..........................................     $0.6
Back-up dispatch & control centers............................    $46.2
Secure stations...............................................     $8.0
Watch list capability.........................................     $0.1
Train tracking, communications, and critical incident response    $15.3
Additional police officers....................................     $5.1
Emergency Preparedness Expansion..............................     $0.5
TOTAL.........................................................   $109.7
------------------------------------------------------------------------
Source: Amtrak.


  In addition to these items is the well-documented need to 
make fire and life-safety improvements in the New York Penn 
Station tunnels. Narrow, spiral staircases and crumbling walls 
in the existing tunnels are inadequate to support the 
evacuation of passengers and ingress by emergency responders in 
the event of a train accident or tunnel fire. Existing 
ventilation systems in the tunnels cannot remove smoke or heat 
effectively. The total cost of this project is estimated at 
$898 million. Amtrak received an appropriation of $100 million 
for the tunnel work in the Department of Defense and Emergency 
Supplemental Appropriations for Recovery from andResponse to 
Terrorist Attacks on the United States Act 2002 (P.L. 107-117). Over 
the past 2 years, about $75 million of this funding has been obligated. 
According to the Department of Transportation Inspector General (DOT 
IG), New Jersey Transit has contributed $25 million and the Long Island 
Railroad (LIRR) has agreed to contribute $183 million to phase I of the 
2-phase project. Funding needed to complete the project on schedule by 
2013 is $570 million. The Long Island Railroad is expected to 
contribute additional funding, perhaps as much as 50 percent of 
remaining project costs, through bonds issued by New York State. In 
addition to the Penn Station tunnels, $100 million is needed to address 
life-safety work in Amtrak's tunnels in Baltimore, MD, and Washington, 
D.C.
  (3) Need to enhance the security of hazardous materials 
transportation.--The September 11 attacks resulted in a 
heightened interest in the safe transportation of hazardous 
materials. According to the Association of American Railroads 
(AAR), railroads move approximately 1.7 million carloads of 
hazardous materials and hazardous waste each year. Railroads 
and trucks carry approximately the same number of ton-miles of 
hazardous materials, but railroads account for only 5 percent 
of all hazardous materials incidents. The rail industry's 
safety record in this area is very good, with 99.996 percent of 
hazardous material moved to destination without incident. Over 
the past 10 years, hazardous materials releases have declined 
35 percent.
  Despite a commendable safety record, government and industry 
officials recognize that hazardous materials shipments could be 
an attractive target for terrorism. FRA, working with DHS, has 
initiated two research projects aimed specifically at 
increasing the safety of rail tank cars carrying toxic-
inhalation chemicals such as anhydrous ammonia, used 
extensively in farming, and chlorine. One of the projects 
investigates ways to improve the integrity of the tank cars 
used in the transportion of such products. The other is an 
investigation of methods to detect potential tank car breaches 
and transmit such information to the train crew and other 
responsible parties.
  Concerns about toxic-inhalation chemicals have also increased 
as a result of a serious accident in Minot, North Dakota on 
January 18, 2002. In that accident, 31 cars of a 112-car train, 
including 15 cars carrying anhydrous ammonia, derailed and 8 of 
the cars ruptured. One person died and 11 others sustained 
serious injuries. The National Transportation Safety Board 
(NTSB) concluded that the type of steel used for the tank 
shells of the Minot cars contributed to the ruptures. Nearly 60 
percent of the pressurized tank cars in service today were 
built using the same type of non-normalized steel as the cars 
that ruptured in Minot, raising concern about the safety and 
security of those cars. The NTSB indicated that the cars, based 
on their average useful life, could remain in service until 
2039.
  Actions to address hazardous materials transportation 
security have also been recommended by GAO. In April 2003, GAO 
issued a report entitled Rail Safety and Security: Some Actions 
Already Taken to Enhance Rail Security, but Risk-Based Plan 
Needed, recommending that DHS and RSPA work together to develop 
a risk-based security plan to protect hazardous shipments.
  (4) Research and development needs.--Witnesses at the 
Committee's March 23 hearing cited the need for additional 
research and development to test technologies and techniques 
tailored to the unique characteristics of passenger and freight 
rail transportation. These include technologies for sealing 
rail cars, communication-based train controls (including 
positive train control technology), explosive detection 
technologies, and new emergency response techniques.

                         Summary of Provisions

  Sections 2 and 8 of the Rail Security Act of 2004 addresses 
the current lack of a coordinated rail security effort. Section 
2 would direct the Under Secretary for Border and 
Transportation Security (BTS) to conduct a vulnerability 
assessment for rail transportation and make recommendations for 
improving rail security within 180 days of enactment. All 
carriers subject to FRA safety regulations, including commuter 
railroads, would be included in the assessment. DHS would be 
required to submit a report to the Senate Committee on 
Commerce, Science, and Transportation and the House of 
Representatives Committee on Transportation and Infrastructure 
on the assessment and recommendations for improving rail 
security, including recommendations for improving the security 
of rail infrastructure; deploying equipment to detect 
explosives and chemical or biological weapons; training 
employees in terrorism prevention, passenger evacuation, and 
response activities; and deploying surveillance equipment. The 
report also would identify the immediate and long-term costs of 
such measures.
  The Committee encourages BTS to use the expertise of IAIP and 
other entities at DHS in preparing the rail vulnerability 
assessment and, to the extent practicable, to ensure that the 
rail assessment can be integrated into the overarching critical 
infrastructure assessments IAIP is designing and conducting. 
Further, the Committee intends that the cost estimates in the 
report should include recommendations about how the costs 
should be allocated between the public and private sectors.
  It is also the Committee's intent that the Under Secretary, 
whether through TSA or another office in BTS, be responsible 
for coordinating rail security, including initiatives of other 
directorates within DHS; of FRA and other DOT agencies; of 
State and local authorities; and of the rail carriers 
themselves. DHS has testified that it is addressing homeland 
security based on risk, looking across industries and modes of 
transportation. However, each directorate at DHS is focused on 
particular aspects of security: critical infrastructure, cyber 
security, emergency preparedness, and border security, among 
others, and the Committee remains concerned about 
accountability. To that end, it is important that all of these 
efforts with respect to rail security be coordinated through 
BTS to ensure the overall program is effective and that gaps or 
weaknesses in security are being properly addressed.
  Section 5 of the legislation would require the completion of 
an analysis of the feasibility of passenger, baggage, and cargo 
screening on passenger trains, as well as a pilot program of 
random screening, at 5 Amtrak stations. The Under Secretary 
would be required to attempt to give preference to locations at 
the highest risk of terrorist attack in selecting stations for 
the pilot, and to achievea distribution of stations in terms of 
geographic location, size, passenger volume, and whether the station is 
used by commuter rail passengers as well as intercity passengers. The 
Committee expects DHS to undertake the pilot program in a way that 
minimizes inconvenience and delays for passengers.
  Section 8 of the legislation would require that DOT and DHS 
sign MOAs to clarify each department's roles and 
responsibilities with respect to rail safety and security 
within 60 days following enactment. MOAs have been signed 
between DOT and the Coast Guard; TSA and the Federal Aviation 
Administration; DHS and the Department of Agriculture; DHS and 
the Department of Energy; DHS and the Department of Health and 
Human Services; DHS and the Department of Justice and FBI; DHS 
and the Department of Defense; and DHS and the CIA. It is 
unclear why MOAs have not been signed between DHS and DOT, 
other than ongoing jurisdictional concerns between the two 
agencies. Congress explicitly preserved a role for DOT in rail 
security when DHS was created, and the Commerce Committee 
believes MOAs are needed to make certain that the departments 
are coordinating their respective efforts and are not at cross-
purposes. This provision was also included in legislation 
approved by the full Senate last November to reauthorize the 
rail safety program.\4\
---------------------------------------------------------------------------
    \4\  Section 205 of S. 1402, the Federal Railroad Safety 
Improvement Act.
---------------------------------------------------------------------------
  Section 8 would define DOT's authority to issue regulations 
and orders governing ``every area of railroad safety'' to 
include ``security''. Clarification of FRA's jurisdiction is 
necessary to ensure that any regulations and orders which may 
have some carryover into the security arena will withstand 
legal challenge and protracted litigation by outside parties. 
This change is consistent with the Homeland Security Act of 
2002, which set forth Congress's intention that the definition 
of ``safety'' include ``security''.
  Sections 5, 10, and 11 of the Rail Security Act of 2004 would 
authorize security funding for Amtrak. Section 5 would 
authorize funds for the fire and life-safety work in the 
Northeast Corridor tunnels ($670 million) between fiscal years 
(FYs) 2005 and 2009, and encourages DOT to seek financial 
contributions from other users. For example, the Long Island 
Railroad has indicated it will contribute to phase II of the 
Penn Station tunnel work, and the Committee fully expects DOT 
to seek such contributions.
  Section 10 of the bill would authorize $63.5 million of the 
$110 million requested by Amtrak in its latest security 
investment plan for immediate system-wide security upgrades. 
The legislation does not authorize funding of $46.2 million 
requested by Amtrak to consolidate its train dispatching 
centers at Wilmington, DE, where Amtrak's Consolidated National 
Operations Center (CNOC) is located, and to construct a new 
facility to house a back-up for both the dispatching centers 
and CNOC. The project is included in Amtrak's 5 year capital 
plan but is not scheduled for completion until fiscal year 
2008. The Committee believes Amtrak needs to implement back-up 
for its train dispatching centers more quickly. Further, while 
Amtrak has indicated that these operations need to be 
consolidated for security reasons, the dispatching center in 
New York City would not be consolidated under Amtrak's plan, 
and it is unclear how the Boston dispatching center would be 
consolidated since that facility is owned by the Massachusetts 
Bay Transportation Authority.
  Chairman McCain and Ranking Member Hollings have written FRA 
to ask that the RAND Corporation, which is currently providing 
consulting services on Amtrak's security plan, investigate 
options for creating back-up facilities for Amtrak's 
dispatching centers in the short-term, perhaps by utilizing 
Amtrak's existing towers or modifying the existing dispatching 
centers to back up each other. Further, FRA has been asked to 
have RAND comment on Amtrak's proposed longer-term solution and 
whether this is the most cost-effective and appropriate plan. 
Based on RAND's recommendations and the rail security plan to 
be developed by DHS, Amtrak could seek a grant under section 11 
of the legislation, which authorizes up to $65 million in 
additional funds for Amtrak for additional security 
enhancements, to implement a project to create redundancy for 
its dispatching centers.
  All funds made available to Amtrak would flow through DOT, 
and Amtrak would be required to submit a project management 
plan for each grant received, addressing project budget, 
construction schedule, staff organization, document control, 
change order procedure, and other matters DOT deems 
appropriate. These conditions are similar to those put in place 
for the last 2 years with respect to Amtrak's annual 
appropriation and have proved effective in avoiding further 
financial crises at Amtrak and ensuring taxpayer dollars are 
spent as intended. The conditions also respond to criticisms 
leveled at DOT by GAO in a recent report on the Northeast 
Corridor Improvement Project. The report, entitled Intercity 
Passenger Rail: Amtrak's Management of Northeast Corridor 
Improvements Demonstrates Need for Applying Best Practices, 
issued in February 2004, criticized FRA for not seeking 
authority to properly oversee the Northeast Corridor 
Improvement Project or other Amtrak capital projects.
  The Committee has included provisions in this legislation to 
ensure that funding for Amtrak is distributed equitably. Most 
Amtrak-owned property is located on the Northeast Corridor, yet 
there are many Amtrak-owned stations and facilities in other 
areas of the country that face the same security threats and 
should receive a portion of the funding authorized by the bill.
  Section 11 of the Rail Security Act of 2004 would authorize a 
total of $250 million for FY 2005 for rail security enhancement 
grants to freight railroads, Amtrak, the Alaska Railroad, 
hazardous materials shippers, and owners of rail cars used in 
the transportation of hazardous materials. The grants are 
intended to be used for a wide variety of potential projects, a 
number of which are described in the bill. However, it is the 
Committee's intention that the highest priority be given to 
projects that fund security improvements which address 
vulnerabilities identified by DHS's vulnerability assessment 
under section 2. It is also the Committee's intention that 
grants be available to provide reimbursement for expenses 
already incurred, to the extent considered appropriate by DHS. 
To ensure that the bill's grant programs are implemented 
expeditiously and that grant applications are reviewed in a 
timely manner, section 12 would direct DHS to issue procedures 
for the grant programs within 90 days following enactment.
  Section 13 of the legislation would establish a research and 
development (R&D;) program funded at $50 million in each of FYs 
2005 and 2006. The Committee is aware of numerous potential R&D; 
projects related to rail security, a number of which are 
described in the bill. The Committee intends that the highest 
priority be given to projects that fund security improvements 
which address vulnerabilities identified by DHS's vulnerability 
assessment under section 2.
  One of the specific purposes of the grant programs under 
sections 11 and 13 of the legislation is to improve the 
security of hazardous materials transportation. In addition, 
section 14 would incorporate, in modified form, the NTSB's 
recommendations resulting from the Minot, ND accident. The 
section would require each railroad using continuous welded 
rail to include procedures in its safety program to improve the 
identification of cracks in rail joint bars and direct FRA to, 
among other requirements, initiate a rulemaking to develop 
appropriate design standards for pressurized tank cars and 
complete an assessment of the impact resistance of the steel 
used in pressurized tank cars built before 1989.

                          Legislative History

  The bill was introduced as S. 2273 by Senators McCain, 
Hollings, Hutchison, Snowe, Fitzgerald, Inouye, Rockefeller, 
Breaux, Dorgan, Lautenberg, Kennedy, Clinton, Schumer, Biden, 
and Carper on April 1, 2004. The bill was referred to the 
Committee on Commerce, Science, and Transportation.
  On April 8, 2004, the Committee ordered S. 2273 to be 
favorably reported to the Senate with 1 amendment. By voice 
vote, the Committee adopted an amendment offered by Senators 
McCain and Hollings making a number of technical changes and 
corrections to the underlying legislation. The amendment also 
makes several modifications to the bill based on discussions 
with members of the Committee and their staffs.
  Several members expressed concern about security at the 
approximately 400 train stations not owned by Amtrak. To 
address this concern, the amendment offered by Senators McCain 
and Hollings would make State and local governments eligible 
for grants under section 11, and would enlarge the size of the 
grant program from $250 million to $350 million. The amendment 
also would make colleges, universities, and research centers 
eligible for grants.
  Also at the request of several members, including Senators 
Hutchison, Cantwell, and Boxer, the amendment would modify the 
grant program to ensure that funds would be distributed 
equitably, taking into account geographic location, passenger 
volume, and whether a station is used by commuter passengers as 
well as by Amtrak. Further, the amendment would require the 
Under Secretary for Border and Transportation Security to 
encourage non-Federal financial participation in awarding 
grants.
  The amendment also adopts a study requested by Senator Boxer 
on the impact of blocked railroad grade crossings on security. 
A similar amendment was added at Senator Boxer's request last 
year to rail safety legislation reported by the Committee in 
July 2002 and passed by the full Senate last November.
  Further, to prevent the oversight requirements applicable to 
Amtrak from holding up the distribution of funds for the tunnel 
fire and life-safety work indefinitely, the amendment would 
establish deadlines for Amtrak and DOT to complete work on 
developing and reviewing project plans.
  Finally, the amendment would prohibit a railroad from 
discharging or discriminating against an employee for bringing 
to the railroad's attention a perceived threat to security, or 
for testifying before Congress or at any Federal or State 
proceeding on a perceived threat to security.

                            Estimated Costs

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 18, 2004.
Hon. John McCain,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2273, the Rail 
Security Act of 2004.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Rachel 
Milberg.
            Sincerely,
                                      Elizabeth M. Robinson
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

S. 2273--Rail Security Act of 2004

    Summary: S. 2273 would authorize the Under Secretary of 
Homeland Security for Border and Transportation Security to 
provide grants to Amtrak for systemwide security upgrades, 
provide grants to the freight rail industry for security 
improvements, research ways to improve rail transportation, 
assess the security of rail transportation in the United 
States, and conduct a pilot program for screening passengers 
and baggage at five Amtrak stations. The bill also would 
authorize the Secretary of Transportation to provide grants to 
Amtrak for improving tunnels in New York, Baltimore, and 
Washington, D.C., and direct Amtrak to develop a plan for 
addressing the needs of families of Amtrak passengers involved 
in an accident that results in the loss of life.
    For all of those activities, the bill would authorize the 
appropriation of almost $1.2 billion over the 2005-2009 period. 
Assuming appropriation of the authorized amounts, CBO estimates 
that implementing these provisions would cost almost $1.2 
billion over the 2004-2009 period. In addition, the bill would 
require the completion of several studies related to rail 
security and safety. Assuming appropriation of the necessary 
amounts, CBO estimates that completing these studies would cost 
$3 million over the 2005-2006 period.
    CBO estimates that enacting the legislation would not 
affect direct spending or revenues.
    S. 2273 would impose intergovernmental and private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA), 
but CBO estimates that the cost of those mandates would not 
exceed the annual thresholds established by UMRA ($60 million 
for intergovernmental mandates and $120 million for private-
sector mandates in 2004, adjusted annually for inflation). 
Other provisions of the bill would benefit state and local 
governments and the private sector by providing grants for 
security and safety improvements to rails, locomotives, and 
passenger facilities. Any costs to state and local 
governmentsassociated with those grants would result from complying 
with conditions of aid or would result from negotiated agreements with 
Amtrak.
    Estimated Cost to the Federal Government: The estimated 
budgetary impact of the legislation is shown in the following 
table. The costs of this legislation fall within budget 
function 400 (transportation).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2005     2006     2007     2008     2009
----------------------------------------------------------------------------------------------------------------
                                CHANGES TO SPENDING SUBJECT TO APPROPRIATION \1\

Grants for security improvements:
    Authorization level............................................      535      118      118      118      195
    Estimated outlays..............................................      285      268      218      118      195
Research to improve security:
    Authorization level............................................       50       50        0        0        0
    Estimated outlays..............................................        5       27       38       21        9
Screening pilot program:
    Authorization level............................................        5        0        0        0        0
    Estimated outlays..............................................        3        2        0        0        0
Family assistance plan:
    Authorization level............................................        1        0        0        0        0
    Estimated outlays..............................................        1        0        0        0        0
Risk assessment and studies:
    Authorization level............................................        7        1        0        0        0
    Estimated outlays..............................................        7        1        0        0        0
Total charges:
    Esimated Authorization level...................................      598      169      118      118      195
    Estimated outlays..............................................      301      297      256      139      204
----------------------------------------------------------------------------------------------------------------
\1\ In 2002, the Congress provided $100 million to Amtrak for security improvements.

    Basis of estimate: For this estimate, CBO assumes that the 
legislation will be enacted in fiscal year 2004 and that the 
authorized amounts will be appropriated near the start of each 
fiscal year. Estimates of spending are based on information 
from Amtrak, the Department of Transportation, and historical 
spending patterns of similar programs.
    S. 2273 would authorize grants to Amtrak and the freight 
rail industry floor security improvements, authorize the Under 
Secretary of Homeland Security for Border and Transportation 
Security to research ways to improve rail transportation, 
authorize the Under Secretary to conduct a pilot program for 
screening rail passengers and their baggage, direct Amtrak to 
develop a plan for assisting families of Amtrak passengers 
involved in an accident, authorize a risk assessment of rail 
transportation, and require several other studies related to 
rail safety and security.
    Grants for Security Improvements. S. 2273 would authorize 
the appropriation of $670 million over the 2005-2009 period for 
security improvements to Amtrak tunnels in New York, Baltimore, 
and Washington, D.C. The bill also would authorize the 
appropriation of $63.5 million in 2005 for systemwide 
improvements to Amtrak security. Finally, the bill would 
authorize the appropriation of $350 million in 2005 for the 
Under Secretary of Homeland Security for Border and 
Transportation Security to provide grants to Amtrak, the Alaska 
Railroad, and the freight rail industry for security 
improvements. Assuming appropriation of the authorized amounts, 
CBO estimates that implementing these provisions would cost 
$1.1 billion over the 2005-2009 period.
    Research to Improve Security. S. 2273 would authorize the 
appropriation of $100 million over the 2005-2006 period for the 
Under Secretary of Homeland Security for Border and 
Transportation Security to research ways to improve rail 
transportation security. Assuming appropriation of the 
authorized amounts, CBO estimates that implementing this 
provision would cost $100 million over the 2005-2009 period.
    Screening Pilot Program. S. 2273 would authorize the 
appropriation of $5 million in 2005 for the Under Secretary of 
Homeland Security for Border and Transportation Security to 
study the cost and feasibility of screening Amtrak passengers, 
baggage, and cargo. As part of this study, the Under Secretary 
would conduct a pilot program for screening passengers and 
baggage at five Amtrak stations. Assuming appropriation of the 
authorized amounts, CBO estimates that implementing this 
program would cost $5 million over the 2005-2006 period.
    Family Assistance Plan. S. 2273 would require Amtrak to 
develop a plan for addressing the needs of families of Amtrak 
passengers involved in an accident that results in the loss of 
life. The bill would authorize the appropriation of $500,000 in 
2005 for Amtrak to develop this plan, and assuming 
appropriation of the authorize amount, CBO estimates that 
implementing this provision would cost $500,000 in 2005.
    Risk Assessment and Studies. S. 2273 would direct the Under 
Secretary of Homeland Security for Border and Transportation 
Security to assess the vulnerability of rail transportation in 
the United States. For this risk assessment, the bill would 
authorize the appropriation of $5 million in 2005. S. 2273 also 
would require a review of how well current rail regulations 
address security needs; a study of rail security in Japan, the 
European Union, and other countries; an examination of the 
current system for screening rail passengers and baggage that 
travel across the United States' border with Canada; a study of 
the impact of highway-rail crossings on emergency responders; 
and an analysis of the impact resistance of the steel shells of 
pressurized tank cars constructed before 1989. Assuming 
appropriation of amounts authorized for the risk assessment as 
well as additional amounts necessary to complete the other 
studies, CBO estimates that implementing these provisions would 
cost about $8 million over the 2005-2006 period.
    Intergovernmental and private-sector impact: S. 2273 would 
impose intergovernmental and private-sector mandates as defined 
in UMRA, but CBO estimates that the cost of those mandates 
would not exceed the annual thresholds established by UMRA ($60 
million for intergovernmental mandates and $120 million for 
private-sector mandates in 2004, adjusted annually for 
inflation). Other provisions of the bill would benefit state 
and local governments and the private sector by providing 
grants for security and safety improvements to rails, 
locomotives, and passenger facilities. Any costs to state and 
local governments associated with those grants would result 
from complying with conditions of aid or would result from 
negotiated agreements with Amtrak.

Planning for Amtrak accidents

    Section 9 would impose a private-sector mandate on Amtrak, 
the national passenger rail carrier, by requiring Amtrak to 
submit a plan addressing the needs of the families of 
passengers involved in fatal accidents. Amtrak would have to 
submit the plan to the National Transportation Safety Board 
(NTSB) and the Secretary of Transportation no later than six 
months after the bill's enactment. As a part of the plan, and 
in the event of a fatal accident, Amtrak would be required, 
among other things, to provide a passenger list to federal 
authorities and a toll-free hotline for use by families of 
passengers.
    The bill would authorize an appropriation of $500,000 to 
the Department of Transportation for fiscal year 2005 to assist 
Amtrak in carrying out this mandate. Based on information from 
an Amtrak representative, CBO estimates that the additional 
costs of the mandate would not exceed this amount. The bill 
also would exempt Amtrak from certain liability in federal or 
state court for damages due to its release of a passenger list 
or passenger information pursuant to the plan submitted to the 
NTSB. Because of this exemption, Amtrak may experience some 
savings.
    This liability provision is a preemption of state law, and 
thus an intergovernmental mandate as defined in UMRA. CBO 
estimates that this preemption would not affect the budgets of 
state or local governments because, while it would limit the 
application of state liability law, it would require no 
additional spending.

Passenger screening pilot

    Section 5 would require the Under Secretary of Homeland 
Security for Border and Transportation Security, in cooperation 
with the Secretary of Transportation, to conduct a pilot 
program to test random security screening of passengers and 
baggage at five passenger rail stations that Amtrak serves. As 
part of this program, the Under Secretary would require that 
intercity rail passengers produce a government-issued 
photographic identification. Those passengers that use the 
designated stations that do not have such an identification 
would be required to obtain one. CBO estimates that the cost to 
comply with this private-sector mandate would be small.

Whistle blower protection

    The bill also would prohibit rail carriers, whether public 
or privately owned, from discharging or discriminating against 
any employee who reports a perceived threat to security or 
testifies before the Congress or at any federal or state 
proceeding regarding such a threat. Such a prohibition would 
constitute both an intergovernmental and private-sector mandate 
under UMRA. Under current law, employees are protected if they 
report any safety issues. Because compliance with these broader 
whistle-blower protections would involve only a small 
adjustment in administrative procedures, CBO estimates that 
public and private rail carriers would incur only minimal 
additional costs.
    Estimate prepared by: Federal Costs: Rachel Milberg. Impact 
on State, Local and Tribal Governments: Gregory Waring. Impact 
on the Private Sector: Jean Talarico.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       NUMBER OF PERSONS COVERED

  The whisteblower protections in the legislation could affect 
the approximately 235,000 employees of the rail industry, 
including the 185,000 employees of the freight rail industry 
and the 55,000 employees of Amtrak, the Alaska Railroad, and 
commuter authorities subject to FRA safety regulations.\5\ In 
addition, the grants under section 11 of the bill would be 
available to cities and States, colleges and universities, 
shippers of hazardous materials, and owners of rail cars used 
to transport hazardous materials.
---------------------------------------------------------------------------
    \5\ Employment estimates are for 2002.
---------------------------------------------------------------------------

                            ECONOMIC IMPACT

  S. 2273 would authorize appropriations of $595 million for FY 
2005, $168 million for FY 2006, $118 million for each of FYs 
2007 and 2008, and $195 million for FY 2009. These funding 
levels are not expected to have an inflationary impact on the 
nation's economy.

                                PRIVACY

  Section 9 of the legislation would require Amtrak to maintain 
a list of the names of passengers aboard its trains and provide 
the list to the NTSB and the Secretary of Transportation, at 
their request, in the event of an accident that results in a 
loss of life. The provision would prohibit Amtrak, the NTSB, 
and the Secretary of Transportation from releasing information 
on the list, but would allow them to provide information about 
a passenger on the list to the passenger's family.
  Section 17 of S. 2273 would establish certain whistleblower 
protections for railroad employees with respect to security 
matters. The provision would specifically prohibit the 
Secretary of Transportation from disclosing the name of an 
employee who has provided information about a violation of the 
protections unless the employee consents. If the matter has 
been referred to the Attorney General for enforcement, the 
Secretary would be required to disclose the name of the 
employee.

                               PAPERWORK

  Section 10, 11, and 12 of the legislation create grant 
programs which may create additional paperwork for applicants 
and for DOT in administering the program. In addition, the 
oversight provisions applicable to Amtrak may create additional 
paperwork for Amtrak and DOT.

                      Section-by-Section Analysis


Section 1. Short title; table of contents

  This section provides that the title of the Act is the ``Rail 
Security Act of 2004'' and lists the table of contents for the 
bill.

Sec. 2. Rail transportation security risk assessment

  Section 2 would require the Under Secretary for Border and 
Transportation at DHS, in consultation with the Secretary of 
Transportation, to complete a vulnerability assessment for rail 
transportation. The assessment would encompass all railroads 
subject to FRA safety regulations. The assessment would include 
identification of critical infrastructure, threats to those 
assets, identification of vulnerabilities that are specific to 
the rail transportation of hazardous materials, and 
identification of security weaknesses.
  Within 180 days following enactment, the Under Secretary 
would be required to submit a report on the assessment and 
recommendations for improving rail security to the Senate 
Committee on Commerce, Science, and Transportation and the 
House of Representatives Committee on Transportation and 
Infrastructure, including recommendations for improving the 
security of rail infrastructure, deploying equipment to detect 
explosives and chemical or biological weapons, training 
employees in terrorism prevention, passenger evacuation, and 
response activities, and deploying surveillance equipment. The 
report also would identify the immediate and long-term costs of 
such measures. The report would be required to include a plan 
for the government to provide increased security support for 
freight and intercity passenger railroads at high or severe 
threat alert levels. Additionally, the report would be required 
to include a plan for coordinating rail security initiatives 
undertaken by the public and private sectors. The report could 
be submitted in both classified and redacted formats. The rail 
security assessment would have to be updated every 2 years. An 
appropriation of $5 million is authorized for FY 2005 to carry 
out the section.

Sec. 3. Rail security

  Under the current statute, railroad police officers are 
authorized to operate only on the property of the railroad that 
has hired them. This section would allow them to exercise 
jurisdiction on the property of another railroad, enabling 
officers in pursuit near arailroad interchange point to 
continue their pursuit on another railroad.

Sec. 4. Study of foreign rail transport security programs

  The section would direct GAO to complete a study of rail 
passenger transportation security programs in other countries 
within 1 year following enactment of this Act to identify 
effective security initiatives, including passenger screening 
procedures, and to submit a report to the Commerce Committee 
and the House of Representatives Committee on Transportation 
and Infrastructure. The report would include an assessment of 
whether it is feasible to implement such measures in the United 
States.

Sec. 5. Passenger, baggage, and cargo screening

  Section 5 would direct the Undersecretary for Border and 
Transportation Security, in cooperation with the Secretary of 
Transportation, to analyze the cost and feasibility of 
requiring security screening for passengers, baggage and cargo 
on passenger trains and submit a report to the Senate Committee 
on Commerce, Science, and Transportation and the House of 
Representatives Committee on Transportation and Infrastructure 
within one year following enactment of this Act. As part of the 
study, a pilot program of random screening of passengers and 
baggage would be completed at 5 Amtrak stations for the purpose 
of testing a range of explosives detection technologies and 
requiring passengers to produce valid identification prior to 
boarding trains. The Under Secretary would be required to 
attempt to give preference to locations at the highest risk of 
terrorist attack in selecting stations for the pilot, and to 
achieve a distribution in terms of geographic location, size, 
passenger volume, and whether the station is used by commuter 
rail passengers as well as intercity passengers. The section 
authorizes an appropriation of $5 million for FY 2005 for this 
purpose.

Sec. 6. Certain personnel limitations not to apply

  Section 6 would make clear that any statutory limitation on 
the number of employees at TSA would not apply to the extent 
that such employees would be responsible for implementing the 
provisions of this Act.

Sec. 7. Fire and life-safety improvements

  Section 7 would authorize the Secretary of Transportation to 
make grants to Amtrak to address longstanding fire and life-
safety work in tunnels along the Northeast Corridor, 
specifically:
           $570 million for the New York Penn Station 
        tunnels;
           $57 million for the Union tunnel and the 
        Baltimore & Potomac tunnel in Baltimore; and
           $40 million for the Washington, D.C. Union 
        Station tunnels.
  Funds for the projects would be authorized for each of FYs 
2005 through 2009, but would remain available until expended. 
The Secretary would be required to seek financial contributions 
or commitments from other users of the tunnels, if feasible. 
Additionally, the bill would authorize $3 million to the 
Secretary of Transportation in FY 2005 for the preliminary 
design for a new tunnel in Baltimore.
  Funds would be made available to Amtrak through a grant 
agreement. Funding would be contingent on the Secretary 
approving Amtrak's engineering and financial plan for the 
tunnel projects and Amtrak would be required, for each project 
funded, to have in place a project management plan addressing 
the budget, construction schedule, change order procedures, and 
other matters the Secretary deems appropriate. The Secretary of 
Transportation would be required to complete the review of such 
plans within 45 days. If the Secretary finds the plan to be 
deficient or incomplete, Amtrak would then have 30 days to 
submit a modified plan. The Secretary would then have 15 days 
to review additional information on items previously submitted, 
and 45 days to review items newly included in a modified plan. 
If the Secretary still finds the plan to be incomplete or 
deficient, the Secretary would be required, within those time 
frames, to notify the Senate Committee on Commerce, Science, 
and Transportation and the House of Representatives Committee 
on Transportation and Infrastructure, and also to approve the 
portions of the plan that are complete, obligate funds 
associated with the completed portions of the plan, and execute 
an agreement with Amtrak within 15 days on a process for 
resolving issues in dispute.

Sec. 8. Memorandum of agreement

  The section would require that DOT and DHS execute an MOA 
regarding railroad transportation security matters within 60 
days of enactment. The section also would provide that the 
DOT's authority to issue regulations and orders governing 
``every area of railroad safety'' includes ``security''.

Sec. 9. Amtrak plan to assist families of passengers involved in rail 
        passenger accidents

  The section would require Amtrak to submit a plan to NTSB and 
the Secretary of Transportation within 6 months following 
enactment of this Act for addressing the needs of the families 
of passengers involved in a rail passenger accident that 
results in a loss of life. The plan would be required to 
include a process by which Amtrak would maintain and provide to 
NTSB and DOT, at their request, a list of the names of the 
passengers aboard the train, and a plan for creating and 
publicizing a toll free number, within 4 hours of the accident, 
to handle calls from the families of passengers. Further, the 
plan would have to include a process for notifying the families 
of passengers involved in an accident, and an assurance that 
Amtrak will properly train its employees and agents. Amtrak, 
the NTSB, and the Secretary of Transportation would be 
prohibited from releasing information on the list, but would be 
allowed to provide information about a passenger on the list to 
the passenger's family.
  The section authorizes an appropriation of $500,000 for FY 
2005 to carry out the section. The funds would remain available 
until expended.

Sec. 10. Systemwide Amtrak security upgrades

  The section would authorize DHS to make grants through the 
Secretary of Transportation to Amtrak for a number of specific 
purposes, including securing Amtrak trains, stations, and 
tunnels; hiring additional police and security officers, 
including canine units; obtaining train tracking and 
interoperable communications systems; and expanding emergency 
preparedness efforts. All funds would be made available to 
Amtrak through grant agreements. Funding would be contingent 
upon Amtrak having a systemwide security plan approved by DHS, 
and Amtrak would be required, for each project funded, to have 
in place a project management plan addressing the budget, 
construction schedule, change order procedures, and other 
matters the Secretary of Transportation deems appropriate. The 
plan also would have to include appropriate measures to address 
security awareness, emergency response, and passenger 
evacuation training.
  The Secretary of Homeland Security would be required to 
ensure that, subject to meeting the highest security needs on 
Amtrak's entire system, stations and facilities located outside 
the Northeast Corridor receive an equitable share of these 
funds. The section authorizes $63.5 million for FY 2005 to 
carry out the section. The funds would remain available until 
expended.

Sec. 11. Freight and passenger rail security upgrades

  The section would authorize the Under Secretary for Border 
and Transportation Security to make grants for full or partial 
reimbursement for costs incurred to prevent or respond to acts 
of terrorism. Freight railroads, the Alaska Railroad, shippers 
of hazardous materials, owners of rail cars used to transport 
hazardous materials, colleges and universities, State and local 
governments (for passenger facilities and infrastructure not 
owned by Amtrak), and Amtrak would be eligible for grants under 
this section. Grants could be made for such projects as 
security for train dispatching centers and stations; 
accommodating screening equipment for passengers and cargo; 
employee security awareness, preparedness, and emergency 
response training; public outreach campaigns; structural 
modification or replacement of rail cars used to transport high 
hazard materials (poison inhalation hazardous materials, class 
2.3 gases, class 6.1 materials, and anhydrous ammonia); sharing 
of intelligence and information; train tracking and 
interoperable communications systems; hiring additional police 
and security officers, including canine units; and other 
security-related improvements identified in the vulnerability 
assessment required by section 2. Grants would have to be 
equitably distributed, taking into account geographic location, 
and would encourage non-Federal financial participation. With 
respect to grants for passenger rail security, the Under 
Secretary would be required, in making grants, to also take 
into account passenger volume and whether a station is used by 
commuter rail passengers as well as intercity rail passengers.
  Grants to Amtrak would be made through DOT and would be 
contingent upon Amtrak having a systemwide security plan 
approved by DHS. Amtrak would be required, for each project 
funded, to have in place a project management plan addressing 
the budget, construction schedule, change order procedures, and 
other matters the Secretary of Transportation deems 
appropriate.
  The section would authorize $350 million for the grant 
program for FY 2005, of which a maximum of $65 million would be 
available for Amtrak, and a maximum of $100 million would be 
available for grants related to the transportation of hazardous 
materials by rail. The funds would remain available until 
expended.

Sec. 12. Oversight and grant procedures

  The section would allow the Secretary of Transportation to 
use up to 0.5 percent of amounts made available to Amtrak under 
the Act for capital projects to enter into contracts for the 
review of the projects and to oversee project construction. The 
Secretary could also use these funds to make contracts for 
safety, procurement, management, and financial compliance 
reviews and audits.
  The Under Secretary for Border and Transportation Security 
would be directed to establish procedures and schedules for the 
awarding of grants under the Act. The procedures would include 
the execution of a grant agreement with the recipient and 
require that applicants have a security plan in place. A final 
rule establishing procedures would have to be issued within 90 
days following enactment.

Sec. 13. Rail security research and development

  This section would direct the Under Secretary for Border and 
Transportation Security, in conjunction with the Secretary of 
Transportation, to carry out a research and development program 
for the purpose of improving freight and intercity passenger 
rail security. The legislation would authorize appropriations 
of $50 million in each of FYs 2005 and 2006, such sums to 
remain available until expended. The program could include 
projects to reduce the vulnerability of passenger trains, 
stations, and equipment to explosives and biological and 
chemical substances; to test new freight technologies for 
sealing rail cars, automatically inspecting cars, and 
communications-based train controls; to support enhanced 
security for the transportation of hazardous materials by rail; 
to test new emergency response techniques; and other projects 
recommended in the report required by section 2.
  The section also would require that the Under Secretary 
coordinate this program with other R&D; programs at DHS and DOT, 
and carry out any research through a reimbursable agreement 
with DOT if DOT is already sponsoring an R&D; project in a 
similar area, or has a unique facility or capability that would 
be useful in carrying out the project. The section also would 
direct the Under Secretary to adopt procedures, including 
audits, to ensure that grants are expended in accordance with 
the purposes of the Act and the priorities established by the 
Under Secretary.

Sec. 14. Welded rail and tank car safety improvement

  Within 90 days following enactment, FRA would have to require 
each railroad using continuous welded rail (CWR) to include in 
its safety program procedures to improve the identification of 
cracks in rail joint bars. Further, FRA track inspectors would 
be required to obtain copies of the most recent CWR programs of 
each railroad, and FRA would be required to periodically review 
CWRjoint bar inspection data from the railroads. FRA track 
inspectors, when appropriate, could require railroads to increase the 
frequency or improve the methods of inspecting rail joint bars.
  The section also would require FRA, within 1 year following 
enactment, to validate its predictive model for quantifying the 
relevant dynamic forces acting on railroad tank cars under 
accident conditions and, within 18 months following enactment 
of this Act, to initiate a rulemaking to develop appropriate 
standards for pressurized tank cars. Finally, within 2 years 
following enactment of this Act, FRA would be required to 
complete an analysis to determine the impact resistance of 
steel used in pressurized tank cars built before 1989 and 
submit a report to the Senate Committee on Commerce, Science, 
and Transportation and the House of Representatives Committee 
on Transportation and Infrastructure.

Sec. 15. Northern border rail passenger report

  The section would require the Under Secretary for Border and 
Transportation Security, within 180 days following enactment, 
to review the current programs for preclearing airline 
passengers and freight rail cargo between the United States and 
Canada, the status of progress in finalizing a bilateral 
protocol with Canada to provide for preclearance of passengers 
traveling between the United States and Canada, and the 
legislative or other barriers within the United States to 
providing pre-screened passenger lists for rail passengers 
traveling between the 2 countries. The Under Secretary would be 
required to submit a report to the Senate Committee on 
Commerce, Science, and Transportation and the House of 
Representatives Committee on Transportation and Infrastructure, 
with a draft of any changes in existing Federal law necessary 
to provide for pre-screening of passengers.

Sec. 16. Report regarding impact on security of train travel in 
        communities without grade separation

  The section would require the Secretary of DHS, in 
consultation with State and local officials, to conduct a study 
of the impact of blocked highway-railroad grade crossings on 
the ability of emergency responders to perform safety and 
security duties in the event of a terrorist attack. A report 
and recommendations would be due to the Senate Committee on 
Commerce, Science, and Transportation and the House of 
Representatives Committee on Transportation and Infrastructure 
within 1 year following enactment.

Sec. 17. Whistleblower protection program

  Section 17 would establish a new section in title 49 to 
prohibit railroads from discharging or otherwise discriminating 
against an employee for bringing to the railroad's attention a 
perceived threat to security, or for testifying before Congress 
or at any Federal or State proceeding on a perceived threat to 
security. A dispute, grievance, or claim arising under the 
section would be subject to resolution under section 3 of the 
Railway Labor Act. A proceeding by the National Railroad 
Adjustment Board, a division of the Board, or another board of 
adjustment established under section 3 to resolve a dispute, 
grievance, or claim would have to be resolved within 180 days 
after the dispute is filed. If the violation does not involve 
an action involving pay, and no other remedy is available, 
damages of not more than $20,000 could be awarded.
  The section also provides that the burdens of proof 
applicable to such violations would be those set forth in 
section 42121(b)(2)(B) of title 49. A railroad employee could 
not seek protection under this section and any other provision 
of law for the same alleged unlawful act.
  The provision would prohibit the Secretary of Transportation 
from disclosing the name of an employee who has provided 
information about a violation of the protections unless the 
employee consents. If the matter has been referred to the 
Attorney General for enforcement, the Secretary would be 
required to disclose the name of the employee.

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill, 
as reported, are shown as follows (existing law proposed to be 
omitted is enclosed in black brackets, new material is printed 
in italic, existing law in which no change is proposed is shown 
in roman):

                      TITLE 49, UNITED STATES CODE

                       SUBTITLE V. RAIL PROGRAMS

                             PART A. SAFETY

                          CHAPTER 201. GENERAL

                         SUBCHAPTER I. GENERAL

                             * * * * * * *

Sec. 20116. Whistleblower protection for rail security matters

  (a) Discrimination Against Employee.--No rail carrier engaged 
interstate or foreign commerce may discharge a railroad 
employee or otherwise discriminate against a railroad employee 
because the employee (or any person acting pursuant to a 
request of the employee)--
          (1) provided, caused to be provided, or is about to 
        provide or cause to be provided, to the employer or the 
        Federal Government information relating to a perceived 
        threat to security; or
          (2) provided, caused to be provided, or is about to 
        provide or cause to be provided, testimony before 
        Congress or at any Federal or State proceeding 
        regarding a perceived threat to security; or
          (3) refused to violate or assist in the violation of 
        any law, rule or regulation related to rail security.
  (b) Dispute Resolution.--A dispute, grievance, or claim 
arising under this section is subject to resolution under 
section 3 of the Railway Labor Act (45 U.S.C. 153). In a 
proceeding by the National Railroad Adjustment Board, a 
division or delegate of the Board, or another board of 
adjustment established under section 3 to resolve the dispute, 
grievance, or claim the proceeding shall be expeditedand the 
dispute, grievance, or claim shall be resolved not later than 180 days 
after it is filed. If the violation is a form of discrimination that 
does not involve discharge, suspension, or another action affecting 
pay, and no other remedy is available under this subsection, the Board, 
division, delegate, or other board of adjustment may award the employee 
reasonable damages, including punitive damages, of not more than 
$20,000.
  (c) Procedural Requirements.--Except as provided in 
subsection (b), the procedure set forth in section 
42121(b)(2)(B) of this title, including the burdens of proof, 
applies to any complaint brought under this section.
  (d) Election of Remedies.--An employee of a railroad carrier 
may not seek protection under both this section and another 
provision of law for the same allegedly unlawful act of the 
carrier.
  (e) Disclosure of Identity.--
          (1) Except as provided in paragraph (2) of this 
        subsection, or with the written consent of the 
        employee, the Secretary of Transportation may not 
        disclose the name of an employee of a railroad carrier 
        who has provided information about an alleged violation 
        of this section.
          (2) The Secretary shall disclose to the Attorney 
        General the name of an employee described in paragraph 
        (1) of this subsection if the matter is referred to the 
        Attorney General for enforcement.

                             * * * * * * *

                    PART C. PASSENGER TRANSPORTATION

                          CHAPTER 243. AMTRAK

                             * * * * * * *

Sec. 24316. Plans to address needs of families of passengers involved 
                    in rail passenger accidents

  (a) Submission of Plan.--Not later than 6 months after the 
date of the enactment of the Rail Security Act of 2004, Amtrak 
shall submit to the Chairman of the National Transportation 
Safety Board and the Secretary of Transportation a plan for 
addressing the needs of the families of passengers involved in 
any rail passenger accident involving an Amtrak intercity train 
and resulting in a loss of life.
  (b) Contents of Plans.--The plan to be submitted by Amtrak 
under subsection (a) shall include, at a minimum, the 
following:
          (1) A process by which Amtrak will maintain and 
        provide to the National Transportation Safety Board and 
        the Secretary of Transportation, immediately upon 
        request, a list (which is based on the best available 
        information at the time of the request) of the names of 
        the passengers aboard the train (whether or not such 
        names have been verified), and will periodically update 
        the list. The plan shall include a procedure, with 
        respect to unreserved trains and passengers not holding 
        reservations on other trains, for Amtrak to use 
        reasonable efforts to ascertain the number and names of 
        passengers aboard a train involved in an accident.
          (2) A plan for creating and publicizing a reliable, 
        toll-free telephone number within 4 hours after such an 
        accident occurs, and for providing staff, to handle 
        calls from the families of the passengers.
          (3) A process for notifying the families of the 
        passengers, before providing any public notice of the 
        names of the passengers, by suitably trained 
        individuals.
          (4) A process for providing the notice described in 
        paragraph (2) to the family of a passenger as soon as 
        Amtrak has verified that the passenger was aboard the 
        train (whether or not the names of all of the 
        passengers have been verified).
          (5) A process by which the family of each passenger 
        will be consulted about the disposition of all remains 
        and personal effects of the passenger within Amtrak's 
        control; that any possession of the passenger within 
        Amtrak's control will be returned to the family unless 
        the possession is needed for the accident investigation 
        or any criminal investigation; and that any unclaimed 
        possession of a passenger within Amtrak's control will 
        be retained by the rail passenger carrier for at least 
        18 months.
          (6) A process by which the treatment of the families 
        of nonrevenue passengers will be the same as the 
        treatment of the families of revenue passengers.
          (7) An assurance that Amtrak will provide adequate 
        training to its employees and agents to meet the needs 
        of survivors and family members following an accident.
  (c) Use of Information.--The National Transportation Safety 
Board, the Secretary of Transportation, and Amtrak may not 
release to any person information on a list obtained under 
subsection (b)(1) but may provide information on the list about 
a passenger to the family of the passenger to the extent that 
the Board or Amtrak considers appropriate.
  (d) Limitation on Liability.--Amtrak shall not be liable for 
damages in any action brought in a Federal or State court 
arising out of the performance of Amtrak in preparing or 
providing a passenger list, or in providing information 
concerning a train reservation, pursuant to a plan submitted by 
Amtrak under subsection (b), unless such liability was caused 
by Amtrak's conduct.
  (e) Limitation on Statutory Construction.--Nothing in this 
section may be construed as limiting the actions that Amtrak 
may take, or the obligations that Amtrak may have, in providing 
assistance to the families of passengers involved in a rail 
passenger accident.
  (f) Authorization of Appropriations.--There are authorized to 
be appropriated to the Secretary of Transportation for the use 
of Amtrak $500,000 for fiscal year 2005 to carry out this 
section. Amounts appropriated pursuant to this subsection shall 
remain available until expended.''.

                        SUBTITLE V-RAIL PROGRAMS

                         PART E. MISCELLANEOUS

                      CHAPTER 281. LAW ENFORCEMENT

Sec. 28101. Rail police officers

  Under regulations prescribed by the Secretary of 
Transportation, a rail police officer who is employed by a rail 
carrier and certified or commissioned as a police officer under 
the laws of a State may enforce the laws of any jurisdiction in 
which [the rail carrier] any rail carrier owns property, to the 
extent of the authority of a police officer certified or 
commissioned under the laws of that jurisdiction, to protect--
          (1) employees, passengers, or patrons of [the rail 
        carrier] any rail carrier;
          (2) property, equipment, and facilities owned, 
        leased, operated, or maintained by [the rail carrier] 
        any rail carrier;
          (3) property moving in interstate or foreign commerce 
        in the possession of [the rail carrier] any rail 
        carrier; and
          (4) personnel, equipment, and material moving by rail 
        that are vital to the national defense.