Rail Transportation Security, 76852-76888 [E6-21512]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Transportation Security Administration

[Federal Register Volume 71, Number 245 (Thursday, December 21, 2006)]
[Proposed Rules]
[Pages 76852-76888]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-21512]



[[Page 76851]]

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Part V





Department of Homeland Security





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Transportation Security Administration



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49 CFR Parts 1520 and 1580



Rail Transportation Security; Proposed Rule

Federal Register / Vol. 71, No. 245 / Thursday, December 21, 2006 / 
Proposed Rules

[[Page 76852]]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Parts 1520 and 1580

[Docket No. TSA-2006-26514]
RIN 1652-AA51


Rail Transportation Security

AGENCY: Transportation Security Administration, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposal would enhance the security of our Nation's rail 
transportation system. The Transportation Security Administration (TSA) 
proposes security requirements for freight railroad carriers; 
intercity, commuter, and short-haul passenger train service providers; 
rail transit systems; and rail operations at certain, fixed-site 
facilities that ship or receive specified hazardous materials by rail. 
This rule proposes to codify the scope of TSA's existing inspection 
program and to require regulated parties to allow TSA and Department of 
Homeland Security (DHS) officials to enter, inspect, and test property, 
facilities, and records relevant to rail security. This rule also 
proposes that regulated parties designate rail security coordinators 
and report significant security concerns to DHS.
    TSA further proposes that freight rail carriers and certain 
facilities handling hazardous materials be equipped to report location 
and shipping information to TSA upon request and to implement chain of 
custody requirements to ensure a positive and secure exchange of 
specified hazardous materials. TSA also proposes to clarify and extend 
the sensitive security information (SSI) protections to cover certain 
information associated with rail transportation.
    This proposal would allow TSA to enhance rail security by 
coordinating its activities with other Federal agencies, which would 
also avoid duplicative inspections and minimize the compliance burden 
on the regulated parties. This proposed rule is intended to augment 
existing rail transportation laws and regulations that the Department 
of Transportation (DOT) administers. In today's edition of the Federal 
Register, the Pipeline and Hazardous Materials Safety Administration 
(PHMSA) is publishing an NPRM proposing to revise the current 
requirements in the Hazardous Materials Regulations applicable to the 
safe and secure transportation of hazardous materials transported in 
commerce by rail.

DATES: Submit comments by February 20, 2007.

ADDRESSES: You may submit comments, identified by the TSA docket number 
to this rulemaking, using any one of the following methods:
    Comments Filed Electronically: You may submit comments through the 
docket Web site at https://dms.dot.gov. You may also submit comments 
through the Federal eRulemaking portal at https://www.regulations.gov.
    Comments Submitted by Mail, Fax, or In Person: Address or deliver 
your written, signed comments to the Docket Management System, U.S. 
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., 
Washington, DC 20590-0001; Fax: 202-493-2251.
    See SUPPLEMENTARY INFORMATION for format and other information 
about comment submissions.

FOR FURTHER INFORMATION CONTACT: For questions related to rail 
security: Lisa Pena, Transportation Sector Network Management, Freight 
Rail Security, TSA-28, Transportation Security Administration, 601 
South 12th Street, Arlington, VA 22202-4220; telephone (571) 227-4414; 
facsimile (571) 227-1923; e-mail lisa.pena@dhs.gov.
    For legal questions: David H. Kasminoff, Office of Chief Counsel, 
TSA-2, Transportation Security Administration, 601 South 12th Street, 
Arlington, VA 22202-4220; telephone (571) 227-3583; facsimile (571) 
227-1378; e-mail david.kasminoff@dhs.gov.

SUPPLEMENTARY INFORMATION: 

Comments Invited

    TSA invites interested persons to participate in this rulemaking by 
submitting written comments, data, or views. We also invite comments 
relating to the economic, environmental, energy, or federalism impacts 
that might result from this rulemaking action. See ADDRESSES above for 
information on where to submit comments.
    With each comment, please include your name and address, identify 
the docket number at the beginning of your comments, and give the 
reason for each comment. The most helpful comments reference a specific 
portion of the rulemaking, explain the reason for any recommended 
change, and include supporting data. You may submit comments and 
material electronically, in person, by mail, or fax as provided under 
ADDRESSES, but please submit your comments and material by only one 
means. If you submit comments by mail or delivery, submit them in two 
copies, in an unbound format, no larger than 8.5 by 11 inches, suitable 
for copying and electronic filing.
    If you want TSA to acknowledge receipt of comments submitted by 
mail, include with your comments a self-addressed, stamped postcard on 
which the docket number appears. We will stamp the date on the postcard 
and mail it to you.
    TSA will file in the public docket all comments received by TSA, 
except for comments containing confidential information and sensitive 
security information (SSI) \1\. TSA will consider all comments received 
on or before the closing date for comments and will consider comments 
filed late to the extent practicable. The docket is available for 
public inspection before and after the comment closing date.
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    \1\ Sensitive Security Information (SSI) is information obtained 
or developed in the conduct of security activities, the disclosure 
of which would constitute an unwarranted invasion of privacy, reveal 
trade secrets or privileged or confidential information, or be 
detrimental to the security of transportation. The protection of SSI 
is governed by 49 CFR part 1520.
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Handling of Confidential or Proprietary Information and Sensitive 
Security Information (SSI) Submitted in Public Comments

    Do not submit comments that include trade secrets, confidential 
commercial or financial information, or SSI to the public regulatory 
docket. Please submit such comments separately from other comments on 
the rulemaking. Comments containing this type of information should be 
appropriately marked as containing such information and submitted by 
mail to the address listed in FOR FURTHER INFORMATION CONTACT section.
    Upon receipt of such comments, TSA will not place the comments in 
the public docket and will handle them in accordance with applicable 
safeguards and restrictions on access. TSA will hold them in a separate 
file to which the public does not have access, and place a note in the 
public docket that TSA has received such materials from the commenter. 
If TSA receives a request to examine or copy this information, TSA will 
treat it as any other request under the Freedom of Information Act 
(FOIA) (5 U.S.C. 552) and DHS' FOIA regulation found in 6 CFR part 5.

Reviewing Comments in the Docket

    Please be aware that anyone is able to search the electronic form 
of all comments received into any of our dockets by the name of the 
individual submitting the comment (or signing the comment, if submitted 
on behalf of an association, business, labor union, etc.).

[[Page 76853]]

You may review the applicable Privacy Act Statement published in the 
Federal Register on April 11, 2000 (65 FR 19477), or you may visit 
https://dms.dot.gov. See also TSA's Systems of Records Notice 006, 68 FR 
49503 (August 18, 2003).
    You may review the comments in the public docket by visiting the 
Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays. The Dockets Office is located on the plaza level of 
the Nassif Building, at the Department of Transportation address 
previously provided under ADDRESSES. Also, you may review public 
dockets on the Internet at https://dms.dot.gov.

Availability of Rulemaking Document

    You can get an electronic copy using the Internet by (1) Searching 
the Department of Transportation's electronic Docket Management System 
(DMS) web page (https://dms.dot.gov/search);
    (2) Accessing the Government Printing Office's web page at https://
www.gpoaccess.gov/fr/; or
    (3) Visiting TSA's Security Regulations web page at https://
www.tsa.gov and accessing the link for ``Research Center'' at the top 
of the page.
    In addition, copies are available by writing or calling the 
individual in the FOR FURTHER INFORMATION CONTACT section. Be sure to 
identify the docket number of this rulemaking.

Abbreviations and Terms Used in This Document

AEI--Automatic Equipment Identification
Amtrak--National Railroad Passenger Corporation
CBP--Bureau of Customs and Border Protection
FRA--Federal Railroad Administration
FTA--Federal Transit Administration
GPS--Global Positioning System
HMR--Hazardous Materials Regulations
HSPD--Homeland Security Presidential Directive
HTUA--High Threat Urban Area
IED--Improvised Explosive Device
MOU--Memorandum of Understanding
OA--State Safety Oversight Agency
PHMSA--Pipeline and Hazardous Materials Safety Administration
PIH--Material Poisonous by Inhalation (PIH is another term for TIH)
RFID--Radio Frequency Identification
RSC--Rail Security Coordinator
SAFETEA-LU--Safe, Accountable, Flexible, Efficient Transportation 
Equity Act--A Legacy for Users
SD--Security Directive
SSI--Sensitive Security Information
STB--Surface Transportation Board
TIH--Toxic Inhalation Hazard (TIH is another term for PIH)
UASI--Urban Areas Security Initiative

Outline of Proposed Rulemaking

I. Background and Purpose
    A. Summary of Proposed Requirements
    B. Basis for the Proposed Rule
II. Statutory and Regulatory Authorities
    A. TSA Authorities to Regulate Rail Security
    B. Department of Transportation Regulation of Rail Security
III. TSA's Proposed Rail Security Requirements
    A. Comparison of TSA's Proposed Rule with the DOT Regulatory 
Scheme
    B. Scope and Applicability
    1. Freight Railroad Carriers
    2. Rail Operations at Certain Fixed-Site Facilities
    3. Passenger Rail (including Rail Transit Systems)
    4. Other Rail Operations
    5. Specified Hazardous Materials
    6. High Threat Urban Areas
    C. Requirements
    1. Sensitive Security Information
    2. TSA Inspections
    3. Designation of Rail Security Coordinators
    4. Location and Shipping Information for Certain Rail Cars
    5. Reporting Significant Security Concerns
    a. Passenger Railroad Carriers and Rail Transit Systems
    b. Freight Rail Including Rail Hazardous Materials Shippers and 
Rail Hazardous Materials Receivers
    6. Chain of Custody and Control
IV. Section-by-Section Analysis of Proposed Rule
V. Rulemaking Analyses and Notices
    A. Executive Order 12866 Assessment (Regulatory Planning and 
Review)
    B. Regulatory Flexibility Act Assessment
    C. Paperwork Reduction Act
    D. International Trade Impact Assessment
    E. Unfunded Mandates Reform Act Analyses
    F. Executive Order 13132 (Federalism)
    G. Environmental Analysis
    H. Energy Impact Analysis

I. Background and Purpose

A. Summary of Proposed Requirements

    TSA proposes security regulations that would cover a broad spectrum 
of the rail transportation sector, including freight railroad carriers, 
passenger railroad carriers, rail transit systems, and rail operations 
at certain facilities that ship or receive specified categories and 
quantities of hazardous materials. TSA proposes these regulations to 
enhance the security of rail transportation and to address potential 
security threats to rail transportation. TSA intends for these proposed 
regulations to build upon existing Department of Transportation (DOT) 
procedures and requirements.
    TSA's proposal is also intended to augment a DOT proposal to revise 
the current requirements in the Hazardous Materials Regulations 
applicable to the safe and secure transportation of hazardous materials 
transported in commerce by rail. In this regard, in today's edition of 
the Federal Register, PHMSA is publishing an NPRM proposing to require 
railroad carriers to compile annual data on specified shipments of 
hazardous materials, use the data to analyze safety and security risks 
along rail transportation routes where those materials are transported, 
assess alternative routing options, and make routing decisions based on 
those assessments. PHMSA's proposal would also clarify its current 
security plan requirements to address en route storage, delays in 
transit, delivery notification, and impose additional security 
inspection requirements for hazardous materials shipments.
    TSA's rule proposes to apply several general requirements to all 
freight and passenger railroad carriers, certain facilities that ship 
or receive specified hazardous materials by rail, and rail transit 
systems:
     Rail Security Coordinator. Covered entities must designate 
a rail security coordinator (RSC) and at least one alternate RSC to be 
available to TSA on a twenty-four hour, seven day per week basis to 
serve as primary contact for receipt of intelligence information and 
other security-related activities.
     Reporting. Covered entities must immediately report 
incidents, potential threats, and significant security concerns to TSA.
     TSA Inspection. Covered entities must allow TSA and DHS 
officials working with TSA to enter and conduct inspections, tests, and 
such other duties to carry out TSA's statutory responsibilities. This 
may include copying of records.
     Sensitive Security Information. This rule clarifies and 
extends the protection afforded to sensitive security information (SSI) 
in rail transportation and further identifies covered persons to 
include railroad carriers, certain rail operations at facilities, and 
rail transit systems.
    The rule also proposes to apply additional requirements to freight 
railroad carriers and certain facilities that ship or receive specified 
hazardous materials by rail:
     Location and Shipping Information. Covered entities must 
provide to TSA, upon request, the location and shipping information of 
rail cars within their physical custody or control that contain a 
specified category and quantity of hazardous material. The information 
must be provided to TSA no later than one hour after receiving the 
request.

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     Chain of Custody and Control. Covered entities must 
provide for a secure chain of custody and control of rail cars 
containing a specified quantity and type of hazardous material.
    TSA proposes three categories and quantities of specified hazardous 
materials to which the proposed requirements in this NPRM would apply. 
The definitions are taken from DOT's Hazardous Materials Regulations 
(49 CFR Parts 171-180), as follows:
    (1) A rail car containing more than 2,268 kg (5,000 lbs) of a 
Division 1.1, 1.2, or 1.3 (explosive) material, as defined in 49 CFR 
173.50;
    (2) A tank car containing a material poisonous by inhalation as 
defined in 49 CFR 171.8, including Division 2.3 gases poisonous by 
inhalation, as set forth in 49 CFR 173.115 (c) and Division 6.1 liquids 
meeting the defining criteria in 49 CFR 173.132(a)(1)(iii) and assigned 
to hazard zone A or hazard zone B in accordance with 49 CFR 173.133(a), 
other than residue; and
    (3) A rail car containing a highway route-controlled quantity of a 
Class 7 (radioactive) material, as defined in 49 CFR 173.403.
    Appendix B to proposed part 1580, reproduced as Table 1 below, 
presents a brief summary of the proposed security measures required for 
the different categories of rail transportation entities that this rule 
would govern.

                                                        Table 1.--TSA Rail Security NPRM Summary
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                                                                           Rail operations
                                             Freight          Freight         at certain    Rail operations
                                             railroad         railroad     facilities that     at certain       Passenger         Certain other rail
                                           carriers NOT       carriers       ship (i.e.,    facilities that      railroad        operations (private,
   Proposed security measure and rule      transporting     transporting   offer, prepare,     receive or      carriers and    business/office, circus,
                section                     specified        specified       or load for         unload        rail transit       tourist, historic,
                                            hazardous        hazardous     transportation)     hazardous         systems              excursion)
                                            materials        materials        hazardous        materials
                                                           (1580.100(b))      materials       within HTUA
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Allow TSA to inspect (1580.5)..........               X                X                X                X                X                X
Appoint rail security coordinator                     X                X                X                X                X   Only if notified in
 (1580.101 freight; 1580.201 passenger).                                                                                       writing that security
                                                                                                                               threat exists
Report significant security concerns                  X                X                X                X                X                X
 (1580.105 freight; 1580.203 passenger).
Provide location and shipping            ...............               X                X                X   ...............  ..........................
 information for rail cars containing
 specified hazardous materials if
 requested (1580.103).
Chain of custody and control             ...............               X                X                X
 requirements for transport of
 specified hazardous materials that are
 or may be in HTUA (1580.107).
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B. Basis for the Proposed Rule

    In developing this rule, TSA sought to identify and address threats 
to rail transportation. With respect to passenger rail, TSA recognizes 
that passenger railroad carriers, commuter operations, and subway 
systems are high consequence targets in terms of potential loss of life 
and economic disruption. They carry large numbers of people in a 
confined environment, offer the opportunity for specific populations to 
be targeted at particular destinations, and often have stations located 
below or adjacent to high profile government buildings, major office 
complexes, and iconic structures. Terrorist bombings since 1995 
highlight the need for improved government access to, and monitoring 
of, transportation of passengers by rail. Terrorists have attacked the 
Tokyo subway system (1995); areas in and around the Moscow subway 
system (2000, 2001, and 2004); Madrid commuter trains (2004); the 
London Underground system (2005); and the train system in Mumbai 
(formerly known as Bombay), India (2006).
    TSA also considered the threats that face freight rail 
transportation. Due to the open infrastructure of the rail 
transportation system, freight trains can be particularly vulnerable to 
attack. Currently, rail carriers and shippers lack positive chain of 
custody and control procedures for rail cars as they move through the 
transportation system (e.g., as entities load the rail cars at 
originating facilities, as carriers transport the cars over the tracks, 
and as entities unload the cars at receiving facilities). This can 
present a significant vulnerability. Whenever entities stop rail cars 
in transit and interchange them without appropriate security measures, 
their practices can create security vulnerabilities. Freight trains 
transporting hazardous materials are of even more concern, because an 
attack on those trains (e.g., through the use of improvised explosive 
devices (IEDs) \2\) could result in the release of hazardous materials.
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    \2\ An IED is a device fabricated in an improvised manner that 
incorporates in its design explosives or destructive, lethal, 
noxious, pyrotechnic, or incendiary chemicals. It generally includes 
a power supply, a switch or timer, and a detonator or initiator.
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    TSA is taking a risk-based approach by focusing on shipments of 
certain hazardous materials at this time. Thus, this rulemaking is 
focused on establishing chain of custody and control procedures for 
rail cars that pose the greatest security vulnerability. While an IED 
attached to any rail car (such as a car transporting coal or household 
appliances) would obviously cause major damage to that car, and its 
contents upon detonation, the more likely scenario is that terrorists 
would target a rail car containing certain hazardous materials in order 
to inflict the most damage in terms of loss of life and property, and 
economic effect.
    To determine which hazardous materials to identify in this proposed 
regulation, TSA looked to the hazardous materials that the Pipeline and 
Hazardous Materials Safety Administration (PHMSA) identified in

[[Page 76855]]

its HM-232 rule.\3\ From the list in HM-232, TSA identified three 
categories \4\ of hazardous materials that pose the greatest risk: 
materials that are poisonous by inhalation (PIH),\5\ explosive, and 
radioactive. In this proposed rule, TSA applies specific requirements 
to certain carriers and facilities that deal with these materials.
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    \3\ See Section II.B. of this preamble for a detailed discussion 
of the HM-232 rule.
    \4\ TSA also identified specified quantities of those hazardous 
materials. See Section I.B. of this preamble or 49 CFR 1580.100(b) 
for a list of the quantities.
    \5\ PIH materials are gases or liquids that are known or 
presumed on the basis of tests to be so toxic to humans as to pose a 
hazard to health during transportation. See 69 FR 50988. 49 CFR 
171.8, 173.115, and 173.132.
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    PHMSA considers the phrases ``material poisonous by inhalation,'' 
``poisonous inhalation hazard,'' and ``toxic inhalation hazard'' to be 
synonymous and interchangeable. However, PHMSA referred to such 
material in the HM-232 rule text exclusively by the term ``material 
poisonous by inhalation.'' See 49 CFR 172.800(a)(3). In this NPRM, TSA 
uses a subset of the HM-232 list as the criterion for portions of this 
rule, and so this rule uses the term PIH (and also ``material poisonous 
by inhalation'') to maintain consistency with the PHMSA HM-232 rule.
    Each of these three hazardous materials presents serious risks. The 
release of PIH materials in a densely populated urban area would have 
catastrophic consequences. Such a release would endanger significant 
numbers of people. An example of this was seen in the January 6, 2005, 
rail accident in Graniteville, South Carolina. A Norfolk Southern 
Railway Company freight train carrying chlorine was unexpectedly 
diverted from the main track onto a rail spur. The train struck a 
standing train on the rail spur, derailing three locomotives and 
sixteen rail cars and rupturing a tank car carrying chlorine. Even in 
this sparsely populated area, the collision resulted in fatal injuries 
to eight citizens and one railroad employee, injuries to 630 people, 
and the evacuation of 5,400 local residents. Damages to equipment and 
track totaled more than $2.3 million. While the accident was not the 
result of a terrorist attack, it nonetheless illustrates the danger of 
transporting PIH materials and the damage that can result from a 
release.
    Although the number of rail shipments carrying explosives and 
radioactive materials is relatively low, a release of these materials 
could cause serious and devastating harm. If terrorists detonated 
certain explosives \6\ at critical points in the transportation cycle, 
they could cause significant loss of life, damage to infrastructure, 
and harm to the national economy. If terrorists perpetrated an attack 
against a rail car transporting certain radioactive materials,\7\ they 
could endanger a significant number of people as well as disrupt the 
supply chain as a result of contamination.
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    \6\ Explosives in Class 1 are divided into six divisions. 
However, as discussed in section III.A. of this preamble, TSA 
proposes to apply subpart B to part 1580 only to rail cars 
containing more than 2,268 kg (5,000 lbs) of a Division 1.1, 1.2, or 
1.3 explosive material.
    \7\ See 49 CFR 173, subpart H.
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    The proposed rule will address the above-identified threats to rail 
transportation. The provisions in this proposed rule, including those 
allowing for TSA inspections and those requiring the designation of 
Rail Security Coordinators and the reporting of suspicious incidents, 
will improve TSA's ability to inspect rail operations and communicate 
with railroads and rail facilities. This will provide TSA and DHS with 
better information and monitoring capabilities concerning potential 
transportation security incidents involving rail travel. Also, the 
requirements related to hazardous materials, such as additional 
monitoring and protection of certain rail cars and increased 
availability of location and tracking information for certain rail 
cars, will decrease the vulnerabilities of these hazardous materials 
shipments to attack. Through these measures, TSA will significantly 
increase its domain awareness regarding rail security. TSA will 
continue to work with all involved entities to improve rail security.

II. Statutory and Regulatory Authorities

A. TSA Authorities To Regulate Rail Security

    TSA has the primary federal role in enhancing security for all 
modes of transportation. Under the Aviation and Transportation Security 
Act (ATSA) \8\ and delegated authority from the Secretary of Homeland 
Security, TSA has broad responsibility and authority for ``security in 
all modes of transportation * * * including security responsibilities * 
* * over modes of transportation that are exercised by the Department 
of Transportation.'' \9\
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    \8\ Pub. L. 107-71, 115 Stat. 597 (November 19, 2001).
    \9\ See 49 U.S.C. 114(d). The TSA Assistant Secretary's current 
authorities under ATSA have been delegated to him by the Secretary 
of Homeland Security. Section 403(2) of the Homeland Security Act 
(HSA) of 2002, Pub. L. 107-296, 116 Stat. 2315 (2002), transferred 
all functions of TSA, including those of the Secretary of 
Transportation and the Under Secretary of Transportation of Security 
related to TSA, to the Secretary of Homeland Security. Pursuant to 
DHS Delegation Number 7060.2, the Secretary delegated to the 
Assistant Secretary (then referred to as the Administrator of TSA), 
subject to the Secretary's guidance and control, the authority 
vested in the Secretary with respect to TSA, including that in 
section 403(2) of the HSA.
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    TSA has additional authorities as well. TSA is specifically 
empowered to develop policies, strategies, and plans for dealing with 
threats to transportation.\10\ As part of its security mission, TSA is 
responsible for assessing intelligence and other information to 
identify individuals who pose a threat to transportation security and 
to coordinate countermeasures with other Federal agencies to address 
such threats.\11\ TSA enforces security-related regulations and 
requirements,\12\ ensures the adequacy of security measures for the 
transportation of cargo,\13\ oversees the implementation and ensures 
the adequacy of security measures at transportation facilities,\14\ and 
carries out other appropriate duties relating to transportation 
security.\15\ TSA has broad regulatory authority to achieve ATSA's 
objectives, and may issue, rescind, and revise such regulations as are 
necessary to carry out TSA functions.\16\ TSA is also charged with 
serving as the primary liaison for transportation security to the 
intelligence and law enforcement communities.\17\
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    \10\ 49 U.S.C. 114(f)(3).
    \11\ 49 U.S.C. 114(f)(1)-(5); (h)(1)-(4).
    \12\ 49 U.S.C. 114(f)(7).
    \13\ 49 U.S.C. 114(f)(10).
    \14\ 49 U.S.C. 114(f)(11).
    \15\ 49 U.S.C. 114(f)(15).
    \16\ 49 U.S.C. 114(l)(1).
    \17\ 49 U.S.C. 114(f)(1) and (5).
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    TSA's authority with respect to transportation security is 
comprehensive and supported with specific powers related to the 
development and enforcement of regulations, SDs, security plans, and 
other requirements. Accordingly, under this authority, TSA may assess a 
security risk for any mode of transportation, develop security measures 
for dealing with that risk, and enforce compliance with those measures.
    On December 17, 2003, the President issued Homeland Security 
Presidential Directive 7 (HSPD-7, Critical Infrastructure 
Identification, Prioritization, and Protection), which ``establishes a 
national policy for Federal departments and agencies to identify and 
prioritize United States critical infrastructure and key resources and 
to protect them from terrorist attacks.'' \18\ In recognition of the 
lead

[[Page 76856]]

role that DHS has for transportation security, and consistent with the 
powers that ATSA grants to TSA, the directive provides that the roles 
and responsibilities of the Secretary of DHS include coordinating 
protection activities for ``transportation systems, including mass 
transit, aviation, maritime, ground/surface, and rail and pipeline 
systems.'' \19\ In furtherance of this coordination process, HSPD-7 
provides that DHS and DOT will ``collaborate on all matters relating to 
transportation security and transportation infrastructure protection.'' 
\20\
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    \18\ HSPD-7, Paragraph 1.
    \19\ HSPD-7, Paragraph 15.
    \20\ HSPD-7, Paragraph 22(h).
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    To ensure that this collaboration occurs, DHS and DOT entered into 
a Memorandum of Understanding (MOU) on September 28, 2004. In 
accordance with the September 2004 MOU, both Departments share 
responsibility for rail and hazardous materials transportation 
security. The two Departments consult and coordinate on security-
related rail and hazardous materials transportation requirements to 
ensure consistency with overall security policy goals and objectives 
and to ensure that the Federal agencies do not confront the regulated 
industry with inconsistent security guidance or requirements. The close 
coordination that has led to these proposed regulations is consistent 
with the MOU.
    On August 9, 2006, PHMSA and TSA signed an annex to the September 
28, 2004 DOT-DHS Memorandum of Understanding (MOU) on Roles and 
Responsibilities. The purpose of the annex is to delineate clear lines 
of authority and responsibility and promote communication, efficiency, 
and non-duplication of effort through cooperation and collaboration in 
the area of hazardous materials transportation security based on 
existing legal authorities and core competencies. The annex 
acknowledges that DHS has lead authority and primary responsibility for 
security activities in all modes of transportation, and notes that TSA 
is the lead Federal entity for transportation security, including 
hazardous materials security. Similarly, on September 28, 2006, FRA and 
TSA signed an annex to address each agency's roles and responsibilities 
for rail transportation security. The FRA-TSA annex recognizes that TSA 
acts as the lead Federal entity for transportation security generally 
and rail security in particular. The annex also recognizes that FRA has 
authority over every area of railroad safety (including security), and 
that FRA enforces PHMSA's hazardous material regulations. The FRA-TSA 
annex includes procedures for coordinating (1) planning, inspection, 
training, and enforcement activities; (2) criticality and vulnerability 
assessments and security reviews; (3) communicating with affected 
stakeholders; and (4) use of personnel and resources.
    TSA's proposed requirements are designed to strengthen the existing 
regulatory scheme. TSA developed these proposed regulations, which are 
consistent with DOT's regulations, through close coordination with DOT. 
The discussion below explains the current and proposed DOT requirements 
and how TSA's proposed rule would fit into the regulatory framework DOT 
has established.

B. Department of Transportation Regulation of Rail Security

    DOT regulates and oversees rail security through three of its modal 
administrations: The Pipeline and Hazardous Materials Safety 
Administration (PHMSA), the Federal Railroad Administration (FRA), and 
the Federal Transit Administration (FTA).
    The Federal hazardous materials transportation law (Federal hazmat 
law),\21\ authorizes the Secretary of Transportation to establish 
regulations for the safe transportation, including security, of 
hazardous materials in intrastate, interstate, and foreign 
commerce.\22\ The Secretary of Transportation has delegated this 
authority to PHMSA.\23\ See 49 CFR 1.53; see 49 CFR parts 171-180. 
PHMSA has issued several rulemakings addressing rail security under 
this authority.
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    \21\ 49 U.S.C. 5101 et seq., as amended by sec. 1711 of the 
Homeland Security Act of 2002, (Pub. L. 107-296, Nov. 25, 2002) and 
Title VII of the Safe, Accountable, Flexible and Efficient 
Transportation Equity Act: Legacy for Users (SAFETEA-LU) (Pub. L. 
109-59, Aug. 10, 2005).
    \22\ A hazardous material is defined as a substance or material, 
or a group or class of material, (including an explosive; 
radioactive material; infectious substance; flammable or combustible 
liquid, solid, or gas; toxic, oxidizing, or corrosive material; and 
compressed gas) when transported in a particular amount or form that 
the Secretary of Transportation determines may pose an unreasonable 
risk to health and safety or property. See 49 U.S.C. 5102(2) and 
5103(a).
    \23\ PHMSA is the Federal agency charged with protecting the 
Nation from the risks to life, health, property, and the environment 
inherent in the commercial transportation of hazardous materials by 
all modes of transportation, including pipelines.
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    On March 25, 2003, PHMSA published a final rule, referred to as HM-
232, which requires covered persons to develop and implement security 
plans. Covered persons include those who offer certain hazardous 
materials for transportation in commerce and those who transport 
certain hazardous materials in commerce.\24\ The HM-232 final rule 
requires persons who offer for transportation or transport the 
following hazardous materials to develop and implement security plans: 
(1) A highway route-controlled quantity of a Class 7 (radioactive) 
material; (2) more than 25 kg (55 lbs) of a Division 1.1, 1.2, or 1.3 
(explosive) material; (3) more than 1 L (1.06 qt) per package of a 
material poisonous by inhalation in hazard zone A; (4) a shipment in a 
bulk packaging with a capacity equal to or greater than 13,248 L (3,500 
gal) for liquids or gases or greater than 13.24 cubic meters (468 cubic 
feet) for solids; (5) infectious substances listed as select agents by 
the Centers for Disease Control and Prevention (CDC) in 42 CFR part 73; 
and (6) a shipment that requires placarding.\25\ In effect, then, the 
HM-232 final rule applies the security plan requirement to a shipper or 
carrier of a hazardous material in an amount that requires placarding 
and to select agents. HM-232 requires covered persons to perform an 
assessment of the transportation security risks associated with the 
materials they handle and to implement methods for addressing those 
risks. At a minimum, the security plan must address personnel security, 
prevention of unauthorized access, en route security, and training of 
employees.
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    \24\ 68 FR 14510. See 49 CFR 172.800, 172.802, and 172.804. 
PHMSA amended HM-232 with HM-240 (DOT Docket No. PHMSA-2005-22208, 
70 FR 73156 (December 5, 2005)). HM-240 revised terminology, 
definitions, and requirements for consistency with the Hazardous 
Materials Safety and Security Reauthorization Act of 2005, Title VII 
of Pub. L. 109-59, 119 Stat. 1144 (August 10, 2005).
    \25\ Under the Hazardous Materials Regulations, placards are 
required for hazardous materials that pose significant 
transportation risks. Placards use colors, symbols, numbers and 
text. This is part of DOT's system of hazard communication. The 
system notifies emergency responders and those who must handle the 
packages in the course of their employment how to handle the items 
in transportation and in the event of an accident.
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    Other PHMSA regulations seek to reduce the risks to safety and 
security of leaving loaded rail cars unattended for long periods of 
time. Pursuant to 49 CFR 174.14 and 174.16, a carrier must forward each 
shipment of hazardous materials ``promptly and within 48 hours 
(Saturday, Sundays, and holidays excluded)'' after the carrier accepts 
the shipment at the originating point or the carrier receives the 
shipment at any yard, transfer station, or interchange point. Where 
there is only biweekly or weekly service, the carrier must forward a 
shipment of hazardous materials in the first available train. 
Additionally, carriers are prohibited from holding, subject to 
forwarding orders, tank cars

[[Page 76857]]

loaded with Division 2.1 (flammable gas), Division 2.3 (poisonous gas) 
or Class 3 (flammable liquid) materials.
    PHMSA, in consultation with the Federal Railroad Administration 
(FRA) and TSA, has recently proposed to revise the current requirements 
in the hazardous materials regulations (HMR) applicable to the safe and 
secure transportation of hazardous materials transported in commerce by 
freight rail (Route Analysis NPRM). Among other things, PHMSA is 
proposing to require freight railroad carriers to compile annual data 
on specified shipments of hazardous materials; use the data to analyze 
safety and security risks along rail transportation routes where those 
materials are transported; assess alternative routing options; and make 
routing decisions based on those assessments.
    FRA, the agency within DOT responsible for railroad safety, 
administers the Federal railroad safety laws, which provide FRA with 
authority over ``every area of railroad safety.'' \26\ 49 U.S.C. 
20103(a). The agency has issued a wide range of safety regulations. In 
addition, FRA enforces PHMSA's hazardous materials regulations, 
including the HM-232 provisions requiring security plans. See 49 CFR 
1.49.
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    \26\ The term ``Federal railroad safety laws'' means the 
provisions of law generally at 49 U.S.C. subtitle V, part A or 49 
U.S.C. chapter 51 or 57 and the rules, regulations, orders, and 
standards issued under any of those provisions. See Pub. L. 103-272 
(1994).
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    The FTA provides financial assistance to support a variety of 
locally planned, constructed, and operated public transportation 
systems throughout the United States. Under 49 CFR part 659, FTA 
manages State Safety Oversight for Rail Fixed Guideway Systems.\27\ The 
regulation requires states to oversee the safety and security of rail 
fixed guideway systems \28\ through designated Oversight Agencies 
(OAs).\29\ The OAs must require the transit agencies to develop and 
implement written system safety program plans and system security plans 
\30\ and to conduct annual reviews of their plans.\31\ Additionally, 
the OAs must require transit agencies to develop and document a process 
for the performance of on-going internal safety and security reviews in 
their system safety program plans.\32\ Finally, the OA must require 
each rail transit system under its responsibility to notify the OA 
within two hours of an accident or other incident meeting specified 
parameters, including loss of life, injuries requiring immediate 
medical attention, property damage to rail transit vehicles or 
facilities of $25,000 or more, evacuation due to life safety, collision 
at a grade crossing, a main line derailment, or a collision between 
rail transit vehicles.\33\
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    \27\ In 1991, Congress required, for the first time, that FTA 
establish a program providing for the State-conducted oversight of 
the safety and security of rail systems not regulated by FRA. See 
Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 
102-240, Sec. 3029, 49 U.S.C. 5330. FTA published its final rule 
adopting a new part 659, Rail Fixed Guideway Systems; State Safety 
Oversight, on December 27, 1995 (60 FR 67034); the final rule went 
into effect on January 1996. FTA published a revision of the final 
rule on April 29, 2005 (70 FR 22562) to add clarifying sections, 
further specify what the State must require to monitor safety and 
security on non-FRA rail systems, and incorporate into the body of 
the regulation material previously incorporated by reference.
    \28\ FTA defines a rail fixed guideway system in 49 CFR 659.5 to 
mean any light, heavy, rapid rail system, monorail, inclined plane, 
funicular, trolley, or automated guideway that: (1) Is not regulated 
by FRA; and (2) Is included in FTA's calculation of fixed guideway 
route miles or receives funding under FTA's formula program for 
urbanized areas (49 U.S.C. 5336); or (3) Has submitted documentation 
to FTA indicating its intent to be included in FTA's calculation of 
fixed guideway route miles to receive funding under FTA's formula 
program for urbanized areas (49 U.S.C. 5336).
    \29\ See 49 CFR 659.1.
    \30\ See 49 CFR 659.17 and 659.21. For a list of the required 
elements for each plan, see 49 CFR 659.19 and 659.23.
    \31\ See 49 CFR 659.25.
    \32\ See 49 CFR 659.27.
    \33\ See 49 CFR 659.33.
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III. TSA's Proposed Rail Security Requirements

    TSA has designed this rule so that it would build on DOT's existing 
regulatory scheme. This rule would augment existing and proposed PHMSA 
requirements, address security vulnerabilities in the freight rail 
regulatory scheme, and complement the DOT regulatory scheme regarding 
passenger rail and mass transit.

A. Comparison of TSA's Proposed Rule With the DOT Regulatory Scheme

    First, TSA's NPRM would expand the scope of pre-shipment 
inspections of rail cars containing hazardous materials. Existing PHMSA 
regulations require freight railroad carriers to perform a safety 
inspection at the ground level of each rail car containing hazardous 
materials.\34\ The proposed PHMSA Route Analysis rule would require 
carriers to also inspect for signs of tampering with rail cars 
(including closures and seals) during the pre-shipment inspection 
(e.g., look for IEDs, suspicious items, or any other items that do not 
belong).\35\
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    \34\ Pursuant to 49 CFR 174.9, a carrier must inspect at ground 
level for required markings, labels, placards, securement of 
closures, and leakage. A ``ground level'' inspection is an 
inspection performed with the railroad employee inspecting the rail 
car while standing level with the car, without the employee climbing 
on top of the car.
    \35\ PHMSA intends for these requirements to address those 
situations where unauthorized individuals attempt to cause a 
security incident by tampering with rail cars (e.g., introducing an 
IED to a car to detonate an explosion or to cause a hazardous 
materials release).
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    TSA's NPRM would expand these inspections even further. Existing 
and proposed DOT regulations include pre-shipment inspections for 
railroad carriers; however, they do not require security-specific 
inspections for rail hazardous materials shippers. TSA's proposal would 
require certain rail hazardous materials shippers to physically inspect 
a rail car from a security perspective (including closures and seals) 
before transferring custody of a rail car to a freight railroad 
carrier. Shippers would have to inspect for signs of tampering; for any 
other signs that the security of the car may have been compromised; and 
for suspicious items that do not belong, including the presence of an 
IED.
    Second, TSA's NPRM would address other security vulnerabilities 
that currently exist in the freight rail regulatory scheme. Current 
regulations do not include chain of custody requirements and, 
therefore, current regulations do not address security vulnerabilities 
for hazmat cars in transit or at interchanges. To address this issue, 
TSA proposes chain of custody requirements, including requirements for 
monitored and protected transfer locations, and documented transfers. 
In addition, current regulations do not contain requirements for rail 
car location reporting and, therefore, do not address the Federal 
Government's need for prompt, critical information if it becomes 
necessary to reroute, stop, or otherwise protect shipments and 
populations to address specific security threats or incidents. To 
address this issue, TSA proposes rail car location and information 
reporting requirements.
    Third, this NPRM would complement the existing DOT regulatory 
scheme for passenger and rail mass transit. This NPRM would enhance 
oversight of rail fixed guideway systems. FTA's regulations, at 49 CFR 
part 659, direct rail transit agencies and OAs to conduct security 
reviews. FTA does not oversee these reviews. This proposed rule would 
augment these requirements. TSA inspectors would provide the FTA and 
responsible State agencies with a field presence, which has not existed 
previously, to monitor and assess

[[Page 76858]]

compliance with security requirements.\36\
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    \36\ Moreover, since TSA's inspection authority over rail 
transit systems is not limited to rail fixed guideway systems 
receiving or seeking to receive funds under FTA's formula program 
for urbanized areas and is therefore broader than the scope of 
coverage of FTA's regulation (49 CFR part 659), TSA may be able to 
share information on assessments of the security of rail transit 
systems not currently subject to OA security reviews.
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    TSA's NPRM would also complement the existing DOT regulatory scheme 
for passenger and rail mass transit by allowing TSA inspections, 
requiring the designation and use of RSCs, and requiring the reporting 
of threats and significant security concerns. TSA's proposed 
requirements would enhance the agency's ability to maximize its domain 
awareness and recognize possible national trends involving security 
issues. As a complement to FRA's exercise of its safety authority over 
covered passenger rail operations involving ``every area of railroad 
safety'' (see 49 U.S.C. 20103(a)), and FTA's oversight of rail fixed 
guideway systems (see 49 U.S.C. 5330 and 49 CFR part 659), TSA would 
assess threats to security, monitor the state of awareness and 
readiness throughout the passenger rail and rail mass transit sectors, 
determine the adequacy of an owner or operator's security measures, and 
identify security gaps.

B. Scope and Applicability

    Consistent with ATSA's broad authorities and with the fact that 
terrorists may target any part of the rail transportation system, this 
NPRM would impose requirements on all types of rail operations, 
including freight railroad carriers; intercity, commuter, and short-
haul railroad passenger train service; and rail transit systems. The 
rule would also apply to rail hazardous materials shippers that offer, 
prepare, or load for transportation in commerce by rail one or more of 
the specified categories and quantities of hazardous materials. Also, 
the rule would apply to rail hazardous materials receivers that receive 
or unload the specified hazardous materials by rail in a High Threat 
Urban Area (HTUA).\37\ In addition, the rule would cover the operation 
of private rail cars that are on or connected to the general railroad 
system of transportation and tourist, scenic, historic, and excursion 
operations, whether on or off the general railroad system of 
transportation.
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    \37\ The applicability of certain provisions of this proposed 
rule depends on which hazardous materials are involved and whether 
the materials are located in HTUAs. For a discussion of these 
issues, see sections III.A.5. and III.A.6. of the preamble.
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    With respect to freight railroad carriers and rail hazardous 
materials facilities, an important issue relating to the scope of the 
rule is which activities are transportation-related and, therefore, 
within TSA's jurisdiction. This section of the preamble discusses the 
scope of the applicability of the proposed rule to freight railroad 
operators, rail hazardous materials shippers, rail hazardous materials 
receivers, and passenger railroad carriers. It also identifies 
activities that are transportation-related and, therefore, within the 
scope of the proposed rule. TSA defines the term ``transportation,'' as 
related to security purposes, more broadly than PHMSA defines the term, 
as related to safety purposes.
1. Freight Railroad Carriers
    This NPRM proposes requirements that apply to all freight railroad 
carriers, except for those carriers whose entire operations are 
confined to an industrial installation. The proposed rule would not 
apply to, for example, a plant railroad carrier in a steel mill that 
serves only the needs of the plant itself and does not go beyond the 
plant's boundaries. Of course, even where a railroad carrier operates 
outside the general system of transportation, other railroad carriers 
that are part of that general system may enter the first railroad 
carrier's property. For example, a major railroad carrier may enter a 
chemical or auto plant via an industrial lead to pick up or set out 
rail cars. In such cases, the railroad carrier that is part of the 
general system would remain part of the general system while inside the 
installation, and TSA's proposed regulations would continue to cover 
all of its activities. Moreover, although TSA would not directly 
regulate the transportation operations of the railroad carrier located 
inside the installation that take place solely for the carrier's own 
corporate purpose, TSA would assert its security authority over all 
security matters involving that point of connection, to the extent the 
general system railroad carrier is engaging in transportation 
activities with the installation railroad carrier at a point of 
connection to the general system.
    The applicability of the proposed freight railroad carrier 
requirements vary depending on whether the carrier transports specified 
categories and quantities of hazardous materials and whether these 
materials are or may be located in HTUAs. The regulation would, 
however, require all freight railroad carriers (regardless of whether 
they transport any hazardous materials), as well as freight railroad 
carriers hosting passenger operations,\38\ to allow TSA inspections, 
have an RSC, and report significant security concerns.
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    \38\ The term ``hosting'' refers to the situation where a 
passenger operation receives trackage rights to operate over track 
that another freight or passenger railroad carrier owns or operates.
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    TSA's statutory authority over the security of freight rail 
transportation is co-extensive with FRA's authority over freight 
railroad safety; accordingly, TSA is proposing to make subject to this 
rule all freight railroad carriers that are subject to the jurisdiction 
of FRA. With respect to freight railroads, FRA's statutory jurisdiction 
extends to all entities that can be construed as railroads by virtue of 
their providing non-highway ground transportation over rails or 
electromagnetic guideways, and will extend to future railroads using 
other technologies not yet in use. See 49 U.S.C. 20102. Moreover, by 
delegation from the Secretary of Transportation, FRA has authority to 
enforce the Federal hazmat laws, especially with regard to rail 
transportation of hazardous materials, and has both regulatory and 
enforcement authority under the Federal railroad safety laws. See 49 
CFR 1.49.\39\
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    \39\ See 49 CFR part 209, Appendix A for FRA's detailed 
jurisdiction policy statement.
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2. Rail Operations at Certain Fixed-Site Facilities
    The requirements of this NPRM will apply to rail hazardous 
materials shippers and receivers. Specifically, TSA proposes that 
shippers and receivers be subject to TSA inspection, have RSCs, report 
significant security concerns, provide location and shipping 
information for specified hazardous materials, and provide a secure 
chain of custody and control for specified hazardous materials. For 
purposes of this NPRM, TSA uses the following definitions: Rail 
hazardous materials shippers are facilities that are connected to the 
general railroad system of transportation and offer, prepare, or load 
for transportation by rail one or more of the specified categories and 
quantities of the hazardous materials listed in Sec.  1580.100(b) of 
the NPRM. Rail hazardous materials receivers are facilities that are 
connected to the general railroad system of transportation and that 
receive or unload from transportation by rail one or more of the 
specified categories and quantities of the hazardous materials listed 
in Sec.  1580.100(b) of the NPRM. Both definitions exclude facilities 
that the Federal government operates.
    TSA's statutory authority under ATSA extends to rail hazardous 
materials shippers and receivers. In addition to the authorities 
described in

[[Page 76859]]

Section II.A. of this preamble, TSA carries out such other duties and 
exercises such other powers relating to transportation security, as the 
Assistant Secretary considers appropriate, to the extent authorized by 
law.\40\ More specifically, TSA is empowered to ensure the adequacy of 
security measures for the transportation of cargo.\41\ ATSA does not 
limit TSA's authority to protecting the security of cargo only while it 
is on a particular conveyance, but rather extends it to the entire 
transportation system, including facilities.
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    \40\ 49 U.S.C. 114(f)(15).
    \41\ 49 U.S.C. 114(f)(10).
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    This proposed rule covers only those hazardous materials facilities 
that: (1) Are connected to the general rail system of transportation, 
and (2) offer, prepare, load, receive, and/or unload for or from 
transportation by rail, specified hazardous materials. Hazardous 
materials shippers load rail cars that freight railroad carriers pick 
up for transport. The rail cars may travel anywhere in the general 
transportation system, including in and near high population areas, 
critical infrastructure, and other critical areas. Sometimes loaded 
rail cars will remain for some time at the shipper's facility awaiting 
pickup from the carrier. Whether being loaded at facilities or awaiting 
pickup at facilities, these rail cars could endanger surrounding areas. 
Under ATSA, TSA has authority to ensure the adequacy of security 
measures at the transportation-related areas of these facilities. This 
includes authority to inspect those areas used for transportation 
security activities. This would include, for example, control rooms or 
offices where security activities are initiated or monitored.
    TSA used a risk-based approach in determining the rail hazardous 
materials facilities to which this rulemaking would apply. The highest 
risk exists from the rail transport of the specified hazardous 
materials when those rail cars are in or near an HTUA. TSA decided to 
use the HTUA listing to define those areas for which this rulemaking 
would provide additional security measures. A rail car departing any 
rail hazardous materials facility could enter an HTUA. TSA notes that, 
as to rail hazardous materials facilities receiving or unloading 
hazardous materials, the highest risk is at those facilities that are 
located within an HTUA. Therefore, TSA proposes that the regulation 
cover all rail hazardous materials facilities that receive or unload, 
within an HTUA, one or more of the specified hazardous materials.\42\
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    \42\ Note that PHMSA's regulations do not apply after the 
delivering carrier departs the facility. See 49 CFR 171.1(c)(3) and 
171.8 TSA's proposal to cover the transportation-related areas of 
the rail hazardous materials facilities that receive or unload the 
subject rail cars in the HTUA would extend beyond that time.
---------------------------------------------------------------------------

3. Passenger Rail (including Rail Transit Systems)
    TSA's authority is not limited to FRA's jurisdiction over passenger 
rail and, therefore, includes rail transit systems. TSA's authority is 
also not circumscribed by FTA's jurisdiction. Therefore, the proposed 
rule would apply to all passenger railroad carriers within FRA's 
statutory jurisdiction (including tourist, scenic, historic, and 
excursion operations), and all rail transit systems (including light 
rail, heavy rail, rapid transit, monorail, inclined planes, funiculars, 
cable cars, trolleys, and automated guideways) within FTA's statutory 
jurisdiction, and other passenger rail systems.
    TSA proposes to apply this rule to all railroad carriers that 
operate passenger train service, provide commuter or other short-haul 
passenger train service in a metropolitan or suburban area, or host the 
operations of such passenger train service. Under the provisions of the 
proposed rule, TSA would regulate as a passenger railroad carrier any 
public authority that indirectly provided passenger train service by 
contracting out the actual operation to another railroad carrier or 
independent contractor. Although the public authority would ultimately 
be responsible for designating and using an RSC, allowing TSA to 
conduct inspections or tests, and reporting significant security 
concerns, the railroad carrier or other independent contractor that 
operates the authority's passenger rail service would be required to 
fulfill all applicable responsibilities with respect to rail 
transportation security planning, including implementation.
    The proposed rule would cover freight railroad carriers that host 
the operations of passenger train service over its lines, but that 
neither provide nor operate passenger train service itself. The 
proposal would also cover passenger railroad carriers that, in addition 
to operating or providing their own passenger train service, host the 
operations of other passenger railroad operations. TSA recognizes that 
under the proposed rule, the host freight and passenger railroad 
carriers would already be subject to the provisions of the rule (e.g., 
subject to TSA inspection, required to have rail security coordinators, 
and required to report significant security concerns) independent of 
their additional role as hosts to passenger train service. 
Nevertheless, based upon the unique operational relationship between 
the host railroad carrier and the passenger operation, as well as the 
specific nature of a particular security situation, one of the railroad 
carriers may be better suited to assume primary compliance 
responsibility under the proposed rule. TSA expects that a railroad 
carrier that operates passenger train service over the line of a host 
railroad carrier would review all of the RSC and security concern 
reporting requirements of the host railroad carrier and that both the 
host carrier and the passenger operation would coordinate their 
respective roles in fulfilling these requirements. Accordingly, if 
there were a significant security concern involving a hosted passenger 
operation, TSA would accept one jointly-submitted report from both 
carriers, rather than separate reports from each carrier.
    TSA recognizes that host railroad carriers already bear certain 
significant safety and security responsibilities. For example, pursuant 
to FRA emergency preparedness regulations, host railroad carriers must 
have procedures for making emergency responder notifications, be 
capable of rendering assistance to the involved passenger railroad 
carriers during emergency situations, and address any physical and 
operating characteristics of their rail lines that may affect the 
safety of these railroad operations (such as evacuating passengers from 
a train stalled in a tunnel or on an elevated structure). See 49 CFR 
part 239.
    TSA's proposal to cover rail transit systems would build upon DOT's 
existing regulatory scheme. A rail transit system is generally subject 
to the jurisdiction of FTA, FRA, or both; the determining factor for 
jurisdiction is whether the transit system is connected to the general 
railroad system of transportation. For rail transit systems that are 
not connected to the general system, the applicable DOT requirements 
include FTA's State Safety Oversight for Rail Fixed Guideway Systems 
regulations.\43\ For transit systems that are connected to the general 
railroad system, FRA may exercise jurisdiction (see 49 CFR part 209, 
Appendix A for a detailed

[[