Public Law 110-432/Division A/Title III

TITLE III--FEDERAL RAILROAD ADMINISTRATION

SEC. 301. HUMAN CAPITAL INCREASES.

(a) In General- The Secretary shall increase the number of Federal Railroad Administration employees by--

(1) 50 employees in fiscal year 2009;

(2) 50 employees in fiscal year 2010;

(3) 50 employees in fiscal year 2011;

(4) 25 employees in fiscal year 2012; and

(5) 25 employees in fiscal year 2013.

(b) Functions- In increasing the number of employees pursuant to subsection (a), the Secretary shall focus on hiring employees--

(1) specifically trained to conduct on-site railroad and highway-rail grade crossing accident investigations;

(2) to implement the Railroad Safety Strategy;

(3) to administer and implement section 20156 of title 49, United States Code, relating to the Railroad Safety Risk Reduction Program;

(4) to conduct routine inspections and audits of railroad and hazardous materials facilities and records for compliance with railroad safety laws and regulations;

(5) to inspect railroad bridges, tunnels, and related infrastructure, and to review or analyze railroad bridge, tunnel, and related infrastructure inspection reports;

(6) to prevent or respond to natural or manmade emergency situations or events involving rail infrastructure or employees;

(7) to implement section 20157 of title 49, United States Code, relating to positive train control systems;

(8) to implement section 20164 of title 49, United States Code, relating to the development and use of rail safety technology; and

(9) to support the Federal Railroad Administration's safety mission.

SEC. 302. CIVIL PENALTY INCREASES.

(a) General Violations of Chapter 201- Section 21301(a)(2) is amended--

(1) by striking `$10,000.' and inserting `$25,000.'; and

(2) by striking `$20,000.' and inserting `$100,000.'.

(b) Accident and Incident Violations of Chapter 201; Violations of Chapters 203 Through 209- Section 21302(a)(2) is amended--

(1) by striking `$10,000.' and inserting `$25,000.'; and

(2) by striking `$20,000.' and inserting `$100,000.'.

(c) Violations of Chapter 211- Section 21303(a)(2) is amended--

(1) by striking `$10,000.' and inserting `$25,000.'; and

(2) by striking `$20,000.' and inserting `$100,000.'.

SEC. 303. ENFORCEMENT REPORT.

(a) In General- Subchapter I of chapter 201, as amended by section 109 of this division, is amended by adding at the end the following:

`Sec. 20120. Enforcement report

`(a) In General- Beginning not later than December 31, 2009, the Secretary of Transportation shall make available to the public and publish on its public website an annual report that--

`(1) provides a summary of railroad safety and hazardous materials compliance inspections and audits that Federal or State inspectors conducted in the prior fiscal year organized by type of alleged violation, including track, motive power and equipment, signal, grade crossing, operating practices, accident and incidence reporting, and hazardous materials;

`(2) provides a summary of all enforcement actions taken by the Secretary or the Federal Railroad Administration during the prior fiscal year, including--

`(A) the number of civil penalties assessed;

`(B) the initial amount of civil penalties assessed;

`(C) the number of civil penalty cases settled;

`(D) the final amount of civil penalties assessed;

`(E) the difference between the initial and final amounts of civil penalties assessed;

`(F) the number of administrative hearings requested and completed related to hazardous materials transportation law violations or enforcement actions against individuals;

`(G) the number of cases referred to the Attorney General for civil or criminal prosecution;

`(H) the number and subject matter of all compliance orders, emergency orders, or precursor agreements;

`(3) analyzes the effect of the number of inspections conducted and enforcement actions taken on the number and rate of reported accidents and incidents and railroad safety;

`(4) provide the information required by paragraphs (2) and (3)--

`(A) for each Class I railroad individually; and

`(B) in the aggregate for--

`(i) Class II railroads;

`(ii) Class III railroads;

`(iii) hazardous materials shippers; and

`(iv) individuals;

`(5) identifies the number of locomotive engineer certification denial or revocation cases appealed to and the average length of time it took to be decided by--

`(A) the Locomotive Engineer Review Board;

`(B) an Administrative Hearing Officer or Administrative Law Judge; or

`(C) the Administrator of the Federal Railroad Administration;

`(6) provides an explanation regarding any changes in the Secretary's or the Federal Railroad Administration's enforcement programs or policies that may substantially affect the information reported; and

`(7) includes any additional information that the Secretary determines is useful to improve the transparency of its enforcement program.'.

(b) Conforming Amendment- The chapter analysis for chapter 201, as amended by section 109 of this division, is amended by inserting after the item relating to section 20119 the following:

`20120. Enforcement report.'.

SEC. 304. EXPANSION OF EMERGENCY ORDER AUTHORITY.

Section 20104(a)(1) is amended by striking `death or personal injury' and inserting `death, personal injury, or significant harm to the environment'.

SEC. 305. PROHIBITION OF INDIVIDUALS FROM PERFORMING SAFETY-SENSITIVE FUNCTIONS FOR A VIOLATION OF HAZARDOUS MATERIALS TRANSPORTATION LAW.

Section 20111(c) is amended to read as follows:

`(c) Orders Prohibiting Individuals From Performing Safety-Sensitive Functions-

`(1) If an individual's violation of this part, chapter 51 of this title, or a regulation prescribed, or an order issued, by the Secretary under this part or chapter 51 of this title is shown to make that individual unfit for the performance of safety-sensitive functions, the Secretary, after providing notice and an opportunity for a hearing, may issue an order prohibiting the individual from performing safety-sensitive functions in the railroad industry for a specified period of time or until specified conditions are met.

`(2) This subsection does not affect the Secretary's authority under section 20104 of this title to act on an emergency basis.'.

SEC. 306. RAILROAD RADIO MONITORING AUTHORITY.

Section 20107 is amended by inserting at the end the following:

`(c) Railroad Radio Communications.—

`(1) IN GENERAL.— To carry out the Secretary's responsibilities under this part and under chapter 51, the Secretary may authorize officers, employees, or agents of the Secretary to conduct, with or without making their presence known, the following activities in circumstances the Secretary finds to be reasonable:

`(A) Intercepting a radio communication, with or without the consent of the sender or other receivers of the communication, but only where such communication is broadcast or transmitted over a radio frequency which is--

`(i) authorized for use by one or more railroad carriers by the Federal Communications Commission; and

`(ii) primarily used by such railroad carriers for communications in connection with railroad operations.

`(B) Communicating the existence, contents, substance, purport, effect, or meaning of the communication, subject to the restrictions in paragraph (3).

`(C) Receiving or assisting in receiving the communication (or any information therein contained).

`(D) Disclosing the contents, substance, purport, effect, or meaning of the communication (or any part thereof of such communication) or using the communication (or any information contained therein), subject to the restrictions in paragraph (3), after having received the communication or acquired knowledge of the contents, substance, purport, effect, or meaning of the communication (or any part thereof).

`(E) Recording the communication by any means, including writing and tape recording.

`(2) ACCIDENT AND INCIDENT PREVENTION AND INVESTIGATION.— The Secretary, and officers, employees, and agents of the Department of Transportation authorized by the Secretary, may engage in the activities authorized by paragraph (1) for the purpose of accident and incident prevention and investigation.

`(3) USE OF INFORMATION.— (A) Information obtained through activities authorized by paragraphs (1) and (2) shall not be admitted into evidence in any administrative or judicial proceeding except—

`(i) in a prosecution of a felony under Federal or State criminal law; or

`(ii) to impeach evidence offered by a party other than the Federal Government regarding the existence, electronic characteristics, content, substance, purport, effect, meaning, or timing of, or identity of parties to, a communication intercepted pursuant to paragraphs (1) and (2) in proceedings pursuant to section 5122, 5123, 20702(b), 20111, 20112, 20113, or 20114 of this title.

`(B) If information obtained through activities set forth in paragraphs (1) and (2) is admitted into evidence for impeachment purposes in accordance with subparagraph (A), the court, administrative law judge, or other officer before whom the proceeding is conducted may make such protective orders regarding the confidentiality or use of the information as may be appropriate in the circumstances to protect privacy and administer justice.

`(C) No evidence shall be excluded in an administrative or judicial proceeding solely because the government would not have learned of the existence of or obtained such evidence but for the interception of information that is not admissible in such proceeding under subparagraph (A).

`(D) Information obtained through activities set forth in paragraphs (1) and (2) shall not be subject to publication or disclosure, or search or review in connection therewith, under section 552 of title 5.

`(E) Nothing in this subsection shall be construed to impair or otherwise affect the authority of the United States to intercept a communication, and collect, retain, analyze, use, and disseminate the information obtained thereby, under a provision of law other than this subsection.

`(4) APPLICATION WITH OTHER LAW.— Section 705 of the Communications Act of 1934 (47 U.S.C. 605) and chapter 119 of title 18 shall not apply to conduct authorized by and pursuant to this subsection.'.

SEC. 307. UPDATE OF FEDERAL RAILROAD ADMINISTRATION'S WEBSITE.

(a) In General- The Secretary shall update the Federal Railroad Administration's public website to better facilitate the ability of the public, including those individuals who are not regular users of the public website, to find current information regarding the Federal Railroad Administration's activities.

(b) Public Reporting of Violations- On the Federal Railroad Administration's public website's home page, the Secretary shall provide a mechanism for the public to submit written reports of potential violations of Federal railroad safety and hazardous materials transportation laws, regulations, and orders to the Federal Railroad Administration.

SEC. 308. EMERGENCY WAIVERS.

Section 20103 is amended--

(1) by striking `Waivers- ' in subsection (d) and inserting `Nonemergency Waivers- ';

(2) by striking subsection (e) and inserting the following:

`(e) Hearings- The Secretary shall conduct a hearing as provided by section 553 of title 5 when prescribing a regulation or issuing an order under this part, including a regulation or order establishing, amending, or providing a waiver, described in subsection (d), of compliance with a railroad safety regulation prescribed or order issued under this part. An opportunity for an oral presentation shall be provided.'; and

(3) by adding at the end thereof the following:

`(g) Emergency Waivers-

`(1) IN GENERAL- The Secretary may waive compliance with any part of a regulation prescribed or order issued under this part without prior notice and comment if the Secretary determines that--

`(A) it is in the public interest to grant the waiver;

`(B) the waiver is not inconsistent with railroad safety; and

`(C) the waiver is necessary to address an actual or impending emergency situation or emergency event.

`(2) PERIOD OF WAIVER- A waiver under this subsection may be issued for a period of not more than 60 days and may be renewed upon application to the Secretary only after notice and an opportunity for a hearing on the waiver. The Secretary shall immediately revoke the waiver if continuation of the waiver would not be consistent with the goals and objectives of this part.

`(3) STATEMENT OF REASONS- The Secretary shall state in the decision issued under this subsection the reasons for granting the waiver.

`(4) CONSULTATION- In granting a waiver under this subsection, the Secretary shall consult and coordinate with other Federal agencies, as appropriate, for matters that may impact such agencies.

`(5) EMERGENCY SITUATION; EMERGENCY EVENT- In this subsection, the terms `emergency situation' and `emergency event' mean a natural or manmade disaster, such as a hurricane, flood, earthquake, mudslide, forest fire, snowstorm, terrorist act, biological outbreak, release of a dangerous radiological, chemical, explosive, or biological material, or a war-related activity, that poses a risk of death, serious illness, severe injury, or substantial property damage. The disaster may be local, regional, or national in scope.'.

SEC. 309. ENFORCEMENT BY THE ATTORNEY GENERAL.

Section 20112(a) is amended--

(1) by inserting `this part, except for section 20109 of this title, or' in paragraph (1) after `enforce,';

(2) by striking `21301' in paragraph (2) and inserting `21301, 21302, or 21303';

(3) by striking `subpena' in paragraph (3) and inserting `subpoena, request for admissions, request for production of documents or other tangible things, or request for testimony by deposition'; and

(4) by striking `chapter.' in paragraph (3) and inserting `part.'.

SEC. 310. CRIMINAL PENALTIES.

Section 21311(b) is amended to read as follows:

`(b) Accident and Incident Reports- A railroad carrier not filing a report in violation of section 20901 of this title shall be fined not more than $2,500. A separate violation occurs for each day the violation continues.'.