Congress has moved forward with reauthorization of the National Defense Authorization Act (NDAA), with the House voting to include language known as the Transit Infrastructure Vehicle Security Act (TIVSA). This language blocks certain foreign powers from access to federal taxpayer dollars in public infrastructure bidding contracts.
At issue is the ambitious communist Chinese government, which advances its state-owned rolling stock corporations across the globe. Concerns over economic disruption and national security vulnerability resulted in robust debate and multiple versions of the NDAA, ultimately requiring reconciling in conference committee. As the bill advances toward becoming law, now going before the Senate, the focus on public transit infrastructure has been maintained.
Read our coverage of China and the TIVSA language in our latest policy brief. And blog coverage recapping it. See the current language below.
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The TIVSA language is included in the National Defense Authorization Act for Fiscal Year 2020 as follows:
SEC. 896. REQUIREMENTS RELATING TO CERTAIN RAIL ROLLING STOCK PROCUREMENTS AND OPERATIONS.
Limitation On Certain Rail Rolling Stock Procurements.—Section 5323 of title 49, United States Code, is amended by adding at the end the following:
“(u) Limitation On Certain Rail Rolling Stock Procurements.—
“(1) IN GENERAL.—Except as provided in paragraph (5), financial assistance made available under this chapter shall not be used in awarding a contract or subcontract to an entity on or after the date of enactment of this subsection for the procurement of rail rolling stock for use in public transportation if the manufacturer of the rail rolling stock—
“(A) is incorporated in or has manufacturing facilities in the United States; and
“(B) is owned or controlled by, is a subsidiary of, or is otherwise related legally or financially to a corporation based in a country that—
“(i) is identified as a nonmarket economy country (as defined in section 771(18) of the Tariff Act of 1930 (19 U.S.C. 1677(18))) as of the date of enactment of this subsection;
“(ii) was identified by the United States Trade Representative in the most recent report required by section 182 of the Trade Act of 1974 (19 U.S.C. 2242) as a priority foreign country under subsection (a)(2) of that section; and
“(iii) is subject to monitoring by the Trade Representative under section 306 of the Trade Act of 1974 (19 U.S.C. 2416).
“(2) EXCEPTION.—For purposes of paragraph (1), the term ‘otherwise related legally or financially’ does not include a minority relationship or investment.
“(3) INTERNATIONAL AGREEMENTS.—This subsection shall be applied in a manner consistent with the obligations of the United States under international agreements.
“(4) CERTIFICATION FOR RAIL ROLLING STOCK.—
“(A) IN GENERAL.—Except as provided in paragraph (5), as a condition of financial assistance made available in a fiscal year under section 5337, a recipient that operates rail fixed guideway service shall certify in that fiscal year that the recipient will not award any contract or subcontract for the procurement of rail rolling stock for use in public transportation with a rail rolling stock manufacturer described in paragraph (1).
“(B) SEPARATE CERTIFICATION.—The certification required under this paragraph shall be in addition to any certification the Secretary establishes to ensure compliance with the requirements of paragraph (1).
“(5) EXCEPTION.—This subsection, including the certification requirement under paragraph (4), shall not apply to the award of a contract or subcontract made by a public transportation agency with a rail rolling stock manufacturer described in paragraph (1) if the manufacturer and the public transportation agency have a contract for rail rolling stock that was executed before the date of enactment of this subsection.”.
Cybersecurity Certification For Rail Rolling Stock And Operations.—Section 5323 of title 49, United States Code, as amended by subsection (a), is amended by adding at the end the following:
“(v) Cybersecurity Certification For Rail Rolling Stock And Operations.—
“(1) CERTIFICATION.—As a condition of financial assistance made available under this chapter, a recipient that operates a rail fixed guideway public transportation system shall certify that the recipient has established a process to develop, maintain, and execute a written plan for identifying and reducing cybersecurity risks.
“(2) COMPLIANCE.—For the process required under paragraph (1), a recipient of assistance under this chapter shall—
“(A) utilize the approach described by the voluntary standards and best practices developed under section 2(c)(15) of the National Institute of Standards and Technology Act (15 U.S.C. 272(c)(15)), as applicable;
“(B) identify hardware and software that the recipient determines should undergo third-party testing and analysis to mitigate cybersecurity risks, such as hardware or software for rail rolling stock under proposed procurements; and
“(C) utilize the approach described in any voluntary standards and best practices for rail fixed guideway public transportation systems developed under the authority of the Secretary of Homeland Security, as applicable.
“(3) LIMITATIONS ON STATUTORY CONSTRUCTION.—Nothing in this subsection shall be construed to interfere with the authority of—
“(A) the Secretary of Homeland Security to publish or ensure compliance with requirements or standards concerning cybersecurity for rail fixed guideway public transportation systems; or
“(B) the Secretary of Transportation under section 5329 to address cybersecurity issues as those issues relate to the safety of rail fixed guideway public transportation systems.”.
Written by Benjamin R. Dierker, Director of Public Policy
The Alliance for Innovation and Infrastructure (Aii) is an independent, national research and educational organization. An innovative think tank, Aii explores the intersection of economics, law, and public policy in the areas of climate, damage prevention, energy, infrastructure, innovation, technology, and transportation.