Rail Transportation Security, 72130-72180 [E8-27287]
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Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
Transportation Security Administration
49 CFR Parts 1520 and 1580
[Docket No. TSA–2006–26514; Amendment
Nos. 1520–5, 1580–(New)]
RIN 1652–AA51
Rail Transportation Security
Transportation Security
Administration, DHS.
ACTION: Final rule.
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AGENCY:
SUMMARY: The Transportation Security
Administration (TSA) issues this final
rule to enhance the security of our
Nation’s rail transportation system. This
rule establishes 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 codifies the scope of TSA’s
existing inspection program and
requires regulated parties to allow TSA
and Department of Homeland Security
(DHS) officials to enter, inspect, and test
property, facilities, conveyances, and
records relevant to rail security. This
rule also requires that regulated parties
designate rail security coordinators and
report significant security concerns.
This rule further requires that freight
rail carriers and certain facilities
handling specified hazardous materials
be able to report location and shipping
information to TSA upon request and
implement chain of custody
requirements to ensure a positive and
secure exchange of specified hazardous
materials. TSA also clarifies and
amends the sensitive security
information (SSI) protections to cover
certain information associated with rail
transportation.
DATES: This final rule is effective
December 26, 2008.
FOR FURTHER INFORMATION CONTACT: For
questions related to freight rail security:
Scott Gorton, Transportation Sector
Network Management, Freight Rail
Security, TSA–28, Transportation
Security Administration, 601 South
12th Street, Arlington, VA 22202–4220;
telephone (571) 227–1251; facsimile
(571) 227–1923; e-mail
freightrailsecurity@dhs.gov.
For questions related to passenger rail
security: Morvarid Zolghadr, Mass
Transit and Passenger Rail Security,
TSA–28, Transportation Security
Administration, 601 South 12th Street,
Arlington, VA 22202–4220; telephone
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(571) 227–2957; e-mail
passengerrailcomments@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.
For questions related to SSI: Andrew
E. Colsky, Office of the Special
Counselor, SSI Office, TSA–31,
Transportation Security Administration,
601 South 12th Street, Arlington, VA
22202–4220; telephone (571) 227–3513;
facsimile (571) 227–2945; e-mail
SSI@dhs.gov.
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Document
You can get an electronic copy of this
rulemaking document by—
(1) Searching the Department of
Transportation’s electronic Docket
Management System (DMS) Web page at
https://dms.dot.gov/search;
(2) Visiting the Department of
Transportation’s Docket Operations
facility located at 1200 New Jersey
Avenue, SE., West Building, Ground
Floor, Room W12–140, Washington, DC
20590. The facility is open from 9 a.m.
to 5 p.m., Monday through Friday,
excluding legal holidays. The Docket
Operations telephone number is (202)
366–9826;
(3) Accessing the Government
Printing Office’s Web page at https://
www.gpoaccess.gov/fr/; or
(4) 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 one of the individuals
in the FOR FURTHER INFORMATION
CONTACT section. When making such a
request, please identify the docket
number of this rulemaking.
Small Entity Inquiries
The Small Business Regulatory
Enforcement Fairness Act (SBREFA) of
1996 requires TSA to comply with small
entity requests for information and
advice about compliance with statutes
and regulations within TSA’s
jurisdiction. Any small entity that has a
question regarding this document may
contact one of the persons listed in the
FOR FURTHER INFORMATION CONTACT
section. Persons can obtain further
information regarding SBREFA on the
Small Business Administration’s (SBA)
Web page at https://www.sba.gov/advo/
laws/law_lib.html.
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Abbreviations and Terms Used in This
Document
AAR—Association of American Railroads
AEI—Automatic Equipment Identification
ASLRRA—American Short Line & Regional
Railroad Association
Amtrak—National Railroad Passenger
Corporation
CFATS—Chemical Facility Anti-Terrorism
Standards
CVI—Chemical-terrorism Vulnerability
Information
DOD—Department of Defense
DOE—Department of Energy
DOT—Department of Transportation
EPA—Environmental Protection Agency
FIPS201—Federal Information Processing
Standards Publication 201
FRA—Federal Railroad Administration
FRFA—Final Regulatory Flexibility Analysis
FSO—Facility Security Officer
FTA—Federal Transit Administration
FTE—Full Time Equivalent
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
MTSA—Maritime Transportation Security
Act
NAICS—North American Industry
Classification System
NRC—Nuclear Regulatory Commission
OA—State Safety Oversight Agency
PCII—Protected Critical Infrastructure
Information
PHMSA—Pipeline and Hazardous Materials
Safety Administration
PIH—Poisonous by Inhalation or Poison
Inhalation Hazard (materials) (PIH is
another term for TIH)
RSC—Rail Security Coordinator
SBA—Small Business Administration
SD—Security Directive
SGI—Safeguards Information Program
SSI—Sensitive Security Information
STB—Surface Transportation Board
TIH—Toxic Inhalation Hazard (TIH is
another term for PIH)
Outline of Final Rule Preamble
I. Background and Summary of the Final
Rule
A. Summary of the Rule
B. Purpose of the Rule
C. Changes From the NPRM
II. Overlap Between TSA’s Rule and Other
DHS Regulations
III. Rail Security-Sensitive Materials
IV. Public Comments on the NPRM and TSA
Responses on Regulatory Provisions
A. Summary
B. Specification of Hazardous Materials
C. Rail Security Coordinators
D. Inspection Authority
E. Reporting Significant Security Concerns
F. Sensitive Security Information
G. Chain of Custody and Control
H. Location and Shipping Information for
Certain Rail Cars
I. Whistleblower Protection for Employees
J. Preemption
K. Comments on the Regulatory Impact
Assessment
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L. Comments Beyond the Scope of the
Rulemaking
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 Summary of This
Final Rule
A. Summary of This Rule
TSA’s final rule applies 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 24-hour, seven days per week basis to
serve as the 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 inspectors, and DHS
officials working with TSA, to enter and
conduct inspections, copy records,
perform tests, and conduct other
activities necessary to carry out TSA’s
statutory responsibilities.
• Sensitive Security Information
(SSI). This rule clarifies and extends the
protection afforded to SSI in rail
transportation and further identifies
covered persons to include railroad
carriers; certain facilities that ship or
receive specified hazardous materials by
rail; transit systems; and State, local,
and tribal employees, contractors, and
grantees.
The rule also applies 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. Class I freight
railroad carriers must provide the
information to TSA no later than five
minutes (for one car) or 30 minutes (for
two or more cars) after receiving the
request. Other railroad operators and
rail hazardous materials shipper and
receiver facilities must provide the
information for one or more cars within
30 minutes after receiving the request.
• 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.
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As TSA specified in its Notice of
Proposed Rulemaking (NPRM) for this
rulemaking (see 71 FR 76852, December
21, 2006), chain of custody and location
requirements apply to specified
quantities of three categories of
hazardous materials based on the
Department of Transportation’s (DOT’s)
Hazardous Materials Regulations (HMR)
(49 CFR parts 171–180):
(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 (PIH) as
defined in 49 CFR 171.8, including
anhydrous ammonia, 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),
excluding residue quantities of these
materials; 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 part 1580 of Title 49
of the Code of Federal Regulations,
reproduced as Table 1 below, presents
a brief summary of the security
measures required for the different
categories of rail transportation entities
that this final rule governs.
TABLE 1—TSA RAIL SECURITY FINAL RULE SUMMARY
Freight railroad carriers
NOT transporting specified hazardous
materials
Security measure and rule section
Allow TSA to inspect (§ 1580.5) ...............................................
Appoint rail security coordinator (§ 1580.101 freight;
§ 1580.201 passenger) ..........................................................
Report significant security concerns (§ 1580.105 freight;
§ 1580.203 passenger) ..........................................................
Provide location and shipping information for rail cars containing specified hazardous materials if requested
(§ 1580.103) ..........................................................................
Chain of custody and control requirements for transport of
specified hazardous materials that are or may be in an
HTUA (§ 1580.107) ...............................................................
1 Only
Rail operations
at certain facilities that
ship (i.e., offer,
prepare, or
load for transportation) hazardous materials
Rail operations
at certain facilities that receive or unload hazardous materials within an
HTUA
Passenger
railroad carriers and rail
transit systems
Certain other
rail operations
(private, business/office,
circus, tourist,
historic, excursion)
X
X
X
X
X
X
X
X
X
X
X
( 1)
X
X
X
X
X
X
........................
X
X
X
........................
........................
........................
X
X
X
........................
........................
if notified in writing that a security threat exists.
B. Purpose of the Rule
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Freight railroad
carriers transporting specified hazardous
materials
(§ 1580.100(b))
In developing this rule, TSA
identified and addressed 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
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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
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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);
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and the train system in Mumbai
(formerly known as Bombay), India
(2006).
TSA is also considering 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,
it creates security vulnerabilities.
Freight trains transporting hazardous
materials are of even more concern,
because an attack on those trains (e.g.,
through the placement of improvised
explosive devices (IEDs) 1 or other forms
of sabotage) could result in the release
of hazardous materials.
TSA’s NPRM proposed a number of
measures to improve the security of
freight rail and passenger rail, including
rail transit. It also proposed security
requirements for shippers and receivers
of certain hazardous materials. This
final rule adopts most of the provisions
of the NPRM. TSA presented its
rationale for each element of the NPRM
in Section III of the preamble to the
NPRM. 71 FR at 76861–76866. TSA
describes the differences between the
NPRM and this final rule in Section I.C
of this preamble. TSA presents a
summary of the public comments and
responses in Section V of this preamble.
TSA’s final rule adopts a risk-based
approach by focusing on shipments of
certain hazardous materials and
establishing chain of custody and
control procedures and other measures
for rail cars that pose the greatest
security vulnerabilities. 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 highly toxic,
explosive, or radioactive hazardous
materials, which would cause the
greatest loss of life and property and
damage to the national economy.
1 An IED is a device fabricated in an improvised
manner that incorporates explosives or destructive,
lethal, noxious, pyrotechnic, or incendiary
chemicals into its design. It generally includes a
power supply, a switch or timer, and a detonator
or initiator.
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To determine which hazardous
materials to identify in the proposed
regulation, TSA considered the
hazardous materials for which security
plans are required as specified in 49
CFR Part 172, Subpart I. (These
requirements were included in a final
rule adopted by the Pipeline and
Hazardous Materials Safety
Administration (PHMSA) under Docket
Number HM–232.2) From the list of
materials in 49 CFR 172.800(b), TSA
identified three categories 3 of
hazardous materials that pose the
greatest transportation security risk—
materials that are poisonous by
inhalation (PIH),4 explosive, and
radioactive. In the NPRM, TSA
proposed to apply specific requirements
to certain carriers and facilities that
handle these materials. This final rule
focuses on the same materials.
Each of these three categories of
hazardous materials presents serious
security 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.
The consequences of an accidental PIH
release in a rural area were seen in the
January 6, 2005 rail accident in
Graniteville, South Carolina. A Norfolk
Southern Railway Company (NS) freight
train carrying chlorine was improperly
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 single tank car carrying
chlorine. Even in this sparsely
populated area, the collision resulted in
fatal injuries to eight residents and one
railroad employee, injuries to 630
people, and the evacuation of 5,400
local residents. The property damage,
including damages to the rolling stock
and track, exceeded $6.9 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
2 See Section II.B of the preamble to the NPRM
for a detailed discussion of the HM–232 rule. 71 FR
at 76856.
3 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.
4 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. See also 49 CFR
171.8, 173.115, and 173.132.
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terrorists detonated certain explosives 5
at critical points in the transportation
cycle, they could cause significant loss
of life and damage to infrastructure, and
harm the national economy through the
accompanying disruption to commerce.
Likewise, if terrorists perpetrated an
attack against a rail car transporting
certain radioactive materials,6 they
could endanger a significant number of
people as well as disrupt the supply
chain as a result of contamination.
This final rule addresses the aboveidentified threats to rail transportation
in several ways. This rule codifies the
authority for TSA inspections, requires
the designation of a rail security
coordinator (RSC), and requires the
reporting of significant security
concerns by most entities to which the
rule is applicable. These requirements
will improve TSA’s ability to inspect
rail operations and communicate with
railroads and rail facilities. Through
these mechanisms, TSA and DHS will
obtain better information and
monitoring capabilities concerning
potential transportation security
incidents involving rail transportation
and travel. Also, this final rule’s
requirements related to hazardous
materials, such as additional monitoring
and protection of certain rail cars and
increased availability of location and
shipping information for certain rail
cars, will decrease the vulnerabilities of
these hazardous materials shipments to
attack.
TSA has legal authority to impose
these requirements. Under the Aviation
and Transportation Security Act
(ATSA) 7 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.’’ 8 TSA
5 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.
6 See 49 CFR 173, subpart H.
7 Pub. L. 107–71, 115 Stat. 597 (November 19,
2001).
8 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 for 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
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has authorities in addition to those
transferred from DOT.9 TSA is
empowered to develop policies,
strategies, plans, and regulations for
dealing with threats to all modes of
transportation. 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.10 TSA enforces security-related
regulations and requirements,11 ensures
the adequacy of security measures for
the transportation of cargo,12 oversees
the implementation and ensures the
adequacy of security measures at
transportation facilities,13 and carries
out other appropriate duties relating to
transportation security.14 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.15 TSA is
also charged with serving as the primary
liaison for transportation security to the
intelligence and law enforcement
communities.16
TSA’s authority with respect to
transportation security is
comprehensive and supported with
specific powers related to the
development and enforcement of
regulations, security directives (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.
The Federal hazardous materials
transportation law (Federal hazmat law,
49 U.S.C. 5101 et seq.), authorizes the
Secretary of DOT to ‘‘prescribe
regulations for the safe transportation,
including security, of hazardous
material in intrastate, interstate, and
foreign commerce.’’ The Secretary of
DOT has delegated this authority to
PHMSA. Under the mandate in
§ 5103(b), PHMSA promulgated the
HMR (49 CFR parts 171–180), which
govern safety aspects, including
security, of the transportation of
hazardous material the Secretary of DOT
considers appropriate. In accordance
with its security authority, in March
respect to TSA, including that in section 403(2) of
the HSA.
9 49 U.S.C. 114(f).
10 49 U.S.C. 114(f)(1)–(5); (h)(1)–(4).
11 49 U.S.C. 114(f)(7).
12 49 U.S.C. 114(f)(10).
13 49 U.S.C. 114(f)(11).
14 49 U.S.C. 114(f)(15).
15 49 U.S.C. 114(l)(1).
16 49 U.S.C. 114(f)(1) and (5).
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2003, PHMSA adopted new
transportation security requirements for
offerors and transporters of certain
classes and quantities of hazardous
materials and new security training
requirements for hazardous materials
employees. The security regulations
require offerors and carriers to develop
and implement security plans and to
train their employees to recognize and
respond to possible security threats.
On August 9, 2006, DOT/PHMSA and
DHS/TSA signed an annex to the
September 28, 2004, ‘‘Memorandum of
Understanding Between the Department
of Homeland Security and the
Department of Transportation on Roles
and Responsibilities’’ (DHS–DOT
MOU).17 The purpose of the annex is to
delineate clear lines of authority and
responsibility, promote communication
and efficiency, and avoid 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.
Similarly, on September 28, 2006,
DOT’s Federal Railroad Administration
(FRA) and TSA signed an annex to the
DHS–DOT MOU to address each
agency’s roles and responsibilities for
rail transportation security. The FRA–
TSA annex recognizes that TSA is the
lead Federal entity for transportation
security in general and rail security in
particular. Concerning safety, the FRA–
TSA annex recognizes that FRA has
authority over every area of railroad
safety (including security) and that FRA
enforces PHMSA’s HMR. The FRA–TSA
annex includes procedures for
coordinating: (1) Planning, inspection,
training, and enforcement activities; (2)
criticality and vulnerability assessments
and security reviews; (3)
communication with affected
stakeholders; and (4) the use of
personnel and resources. Copies of the
two annexes are available for review in
the public docket for this rulemaking.
Consistent with the principles outlined
in the PHMSA–TSA and FRA–TSA
annexes, PHMSA and FRA collaborated
with TSA to develop this final rule.
17 The annex is entitled ‘‘Annex to the
Memorandum of Understanding Between the
Department of Homeland Security and the
Department of Transportation Concerning
Transportation Security Administration and
Pipeline and Hazardous Materials Safety
Administration Cooperation on Pipeline and
Hazardous Materials Transportation Security.’’
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On April 16, 2008, PHMSA published
an interim final rule in the Federal
Register to revise the current
requirements in the HMR applicable to
the safe and secure transportation of
hazardous materials transported in
commerce by rail. 73 FR 20752.
Specifically, PHMSA adopted the
following:
• Rail carriers transporting certain
explosives, PIH material, and
radioactive materials must compile
information and data on the
commodities transported, including the
transportation routes over which they
transport these commodities.
• Rail carriers transporting the
specified hazardous materials must use
the data they compile on commodities
they transport to analyze the safety and
security risks for the transportation
routes used and all practicable
alternative routes to the one used. Rail
carriers must utilize these analyses to
make transportation decisions that
result in the transportation of these
materials over the safest and most
secure commercially practicable routes
posing the least overall safety and
security risks.
• Rail carriers must specifically
address the security risks associated
with shipments delayed in transit or
temporarily stored in transit as part of
their security plans.
• Rail carriers transporting covered
hazardous materials must notify
consignees if there is a significant
unplanned delay affecting the delivery
of the hazardous material.
• Rail carriers must work with
shippers and consignees to minimize
the time a rail car containing one of the
specified hazardous materials is placed
on track awaiting pick-up or delivery or
transfer from one carrier to another.
• Rail carriers must conduct visual
security inspections at ground level of
rail cars containing hazardous materials
to inspect for signs of tampering or the
introduction of an IED.
C. Changes From the NPRM
This section summarizes the
regulatory text changes that TSA has
made to the NPRM in this final rule. In
addition to the summary contained in
this section, in many cases TSA has
provided a more extensive discussion of
the change, and the reason for the
change, in the response to comments
below. See Section IV ‘‘Public
Comments on the NPRM and TSA
Responses on Regulatory Provisions.’’
Finally, to the extent TSA has made
technical corrections or corrected
typographical errors, we do not
specifically discuss them.
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1. Sensitive Security Information
TSA has revised paragraph (b)(15) of
49 CFR 1520.5 to add rail to the
categories of research and development
information related to transportation
security activities that is protected as
SSI. TSA has revised paragraph (b) of 49
CFR 1520.11 to add State, local, and
tribal government employees,
contractors, and grantees to the list of
persons with a potential need to know
SSI. TSA made this change to be
consistent with DHS policy on
information sharing and allow States,
localities and tribal governments, and
their contractors and grantees, to have
access to SSI if the information is
needed for the performance of official
duties, such as the prevention or
mitigation of security incidents,
contracts, or grants.
2. Rail Security-Sensitive Materials
This final rule defines the term ‘‘rail
security-sensitive materials’’ to mean
one or more of the categories and
quantities of the materials set forth in
the new § 1580.100(b), the
transportation of which requires the
operators to carry out the security
measures in this rule. TSA has
introduced this term to comply with
§§ 1501(13) and 1551 of the
‘‘Implementing the Recommendations of
the 9/11 Commission Act of 2007’’
(9/11 Commission Act).18 Section
1501(13) defines ‘‘security-sensitive
material’’ to mean a material or group of
materials, in a particular quantity and
form that the Secretary of Homeland
Security, in consultation with the
Secretary of Transportation, determines
through rulemaking with opportunity
for public comment, poses a significant
risk to national security while being
transported in commerce. Section 1551
directs the Secretary of Transportation,
in consultation with the Secretary of
Homeland Security, to publish a final
rule based on the PHMSA NPRM
published on December 21, 2006.19 That
section directs the Secretary of
Transportation to ensure that the
PHMSA final rule requires railroad
carriers of ‘‘security-sensitive materials’’
to ‘‘select the safest and most secure
18 Pub.
L. 110–53; 121 Stat. 266; August 3, 2007.
PHMSA NPRM proposed 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 also proposed clarifications of the current
security plan requirements to address en route
storage, delays in transit, delivery notification, and
additional security inspection requirements for
hazardous materials shipments. See 71 FR 76834
(December 21, 2006).
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19 The
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route to be used in transporting’’ those
materials and to select such route based
on the railroad carrier’s analysis of the
safety and security risks on primary and
alternate transportation routes over
which the carrier has authority to
operate.
Through this Rail Transportation
Security rulemaking, TSA has provided
the public with an opportunity to
comment on its identification of
security-sensitive materials in the rail
sector. See Section III of this preamble.
TSA has added the term ‘‘rail securitysensitive material’’ to 49 CFR 1580.3 to
denote that the Secretary of Homeland
Security has determined that the
categories and quantities of hazardous
materials set forth in 49 CFR
1580.100(b) pose a significant risk to
national security while being
transported in commerce by rail due to
the potential use of one or more of these
materials in an act of terrorism. TSA has
therefore concluded that these
categories and quantities of hazardous
materials constitute ‘‘security-sensitive
material’’ for purposes of triggering the
railroad routing requirements in § 1551
of the 9/11 Commission Act.
3. Inspection Authority
In response to commenters who
expressed concerns about verifying the
identity and credentials of TSA
inspectors, TSA has added a new
paragraph (d) to 49 CFR 1580.5. It
provides that TSA inspectors, and DHS
officials working with TSA, will present
their credentials for examination, at the
request of the entity being inspected,
with the understanding that the
credentials may not be reproduced. Any
regulated party wishing to authenticate
the identity of an individual purporting
to represent TSA may contact the
Freedom Center at 703–563–3240 or
1–877–456–8722.20
4. Reporting Significant Security
Concerns
In the NPRM, TSA stated that reports
of potential threats and significant
security concerns to DHS would be
required ‘‘in a manner prescribed by
20 The Freedom Center is a facility dedicated
solely to transportation-security operations. Until
June 21, 2007, the Freedom Center was known as
the Transportation Security Operations Center, or
TSOC. With state-of-the-art equipment and systems,
the Freedom Center integrates all available
capabilities to gather intelligence and conduct
analysis related to transportation security. The
Freedom Center correlates and fuses real-time
intelligence and operational information across all
modes of transportation, and coordinates with all
homeland security agencies and with appropriate
law enforcement agencies and stakeholders to
gather additional information or to assist in the
prevention of, and response to, transportation
security-related incidents.
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TSA.’’ See 49 CFR 1580.105(b) and
1580.203(b). In this final rule, TSA has
revised paragraph (b) of each section to
indicate that the regulated parties must
make the required reports by
telephoning the Freedom Center at
703–563–3240 or 1–877–456–8722.
5. Chain of Custody and Control
Requirements
Some commenters asked TSA to
explain the concept of ‘‘attending a rail
car’’ in the context of complying with
the requirement in paragraphs (c) and
(d) of 49 CFR 1580.107 ‘‘to ensure that
the rail car is not left unattended at any
time during the physical transfer of
custody.’’ One commenter asked if
‘‘maintain[ing] positive control of the
rail car’’ for purposes of 49 CFR
1580.107(f)(1) was merely synonymous
with a prohibition against unattended
pick up and delivery. In response, TSA
has added a new paragraph (k) to 49
CFR 1580.107 to explain the terms
‘‘attended’’ and ‘‘maintains positive
control.’’ As used in § 1580.107, a rail
car is ‘‘attended’’ if an employee or
authorized representative of the freight
railroad carrier: (1) Is physically located
on site in reasonable proximity to the
rail car; (2) is capable of promptly
responding to unauthorized access or
activity at or near the rail car, including
immediately contacting law
enforcement or other authorities, and (3)
immediately responds to any
unauthorized access or activity at or
near the rail car either personally or by
contacting law enforcement or other
authorities. Electronic monitoring is
permitted so long as the responsible
party is located on site and can
accomplish an equivalent level of
surveillance, response, and notification.
Attending a rail car is a component part
of maintaining positive control. As used
in § 1580.107, when the rail hazardous
materials receiver and freight railroad
carrier communicate and cooperate with
each other to ensure the security of the
rail car during the physical transfer of
custody, they are ‘‘maintaining positive
control’’ of the car.
TSA has also included an explanation
in paragraph (k) of the term ‘‘document
the transfer.’’ As used in § 1580.107, a
transfer of physical custody of a rail car
is properly documented, either in
writing or electronically, when the
documentation contains, at a minimum:
(1) The car’s initial (also known as the
reporting mark) and number; (2) the
names or employee numbers of the
individuals who attended the transfer;
(3) the location where the transfer took
place; and (4) the date and time the
transfer was completed.
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6. Location and Shipping Information
for Certain Rail Cars
In the NPRM, TSA proposed a onehour timeframe for freight railroad
carriers, rail hazardous materials
shippers, and rail hazardous materials
receivers to report the location and
shipping information to TSA or other
DHS officials for a specified rail car(s).
However, in recognition of the fact that
such information is critical to
addressing specific security threats or
incidents, TSA sought comment on the
feasibility of a shorter timeframe, such
as five minutes or thirty minutes. Based
upon comments received and TSA’s
understanding of the technological
capabilities of the regulated parties, we
have changed the reporting timeframe in
49 CFR 1580.103 by revising paragraph
(d) and adding a new paragraph (e).
Paragraph (d) requires all Class I freight
railroad carriers subject to § 1580.103 to
provide location and shipping
information to TSA within five minutes
if the request concerns only one car and
within thirty minutes if the request
concerns two or more rail cars.
Paragraph (e) requires all other entities
subject to § 1580.103 to provide the
information to TSA within thirty
minutes, regardless of how many rail
cars the request concerns. TSA has also
added a new paragraph (h) to § 1580.103
to indicate that TSA has adopted the
same definition of ‘‘Class I carrier’’ as
used by the Surface Transportation
Board (STB). See 49 CFR part 1201,
General Instructions 1–1.
The NPRM would have required each
regulated party to develop procedures
for determining location and shipping
information, if requested by TSA, for
covered rail cars under their physical
custody and control, but the NPRM did
not propose to require the regulated
party to provide TSA with a contact
telephone number to use when
requesting this information. TSA has
added a new paragraph (g) to
§ 1580.103, requiring each regulated
party to provide TSA with a telephone
number that is monitored by a live
person on a 24-hours a day, seven days
a week basis. This will assure a prompt
response on those occasions when TSA
needs information.
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7. Harmonization of Federal Regulation
of Nuclear Facilities
TSA recognizes that its statutory
authorities and obligations may extend
to facilities involved in the production
and utilization of nuclear materials or
weapons already subject to safety,
security, and inspection requirements
imposed by the Nuclear Regulatory
Commission (NRC) and the Department
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of Energy (DOE). To ensure that
regulated entities are not subject to
duplicative or conflicting regulatory or
inspection requirements, TSA has
included section 1580.111 of the
regulations, which states that TSA will
coordinate activities under this subpart
with the NRC and DOE with respect to
regulation of rail hazardous materials
shippers and receivers that are also
licensed or regulated by the NRC or
DOE under the Atomic Energy Act of
1954, as amended, to maintain
consistency with the requirements
imposed by the NRC and DOE. TSA will
enter into appropriate agency-to-agency
agreements with the NRC and DOE to
carry out section 1580.111.
II. Overlap Between TSA’s Rule and
Other DHS Regulations
This Rail Transportation Security
final rule affects entities that also may
be subject to the requirements of other
DHS rules—e.g., the DHS Chemical
Facility Anti-Terrorism Standards
(CFATS) regulation 21 and the Coast
Guard’s Maritime Transportation
Security Act (MTSA) 22 regulations.
This section describes the
interrelationships of this rule with the
CFATS and MTSA regulations.
Pursuant to § 550 of the Department of
Homeland Security Appropriations Act
of 2007 (2007 DHS Appropriations Act)
(Pub. L. 109-295), which provides DHS
with the authority to regulate the
security of certain high-risk chemical
facilities in the United States, DHS
issued an interim final rule on Chemical
Facility Anti-Terrorism Standards. See
72 FR 17688 (April 9, 2007). The CFATS
rule establishes risk-based performance
standards for the security of our
Nation’s high-risk chemical facilities. It
requires facilities that possess specified
chemicals at or above specified amounts
to provide information to DHS. From
this information, DHS will initially
determine which facilities are high-risk
and preliminarily place high-risk
chemical facilities 23 in risk-based tiers.
Such facilities must then prepare
Security Vulnerability Assessments,
which identify facility security
vulnerabilities, and develop and
implement Site Security Plans, which
include measures that satisfy the DHSidentified risk-based performance
standards. The CFATS rule contains
21 6
CFR Part 27.
L. 107–295; Nov. 25, 2002, as codified in
46 U.S.C. chapter 701.
23 Pursuant to 6 CFR 27.105, a ‘‘covered facility’’
or ‘‘covered chemical facility’’ is a ‘‘chemical
facility determined by the Assistant Secretary to
present high levels of security risk, or a facility that
the Assistant Secretary has determined is
presumptively high risk under § 27.200.’’
22 Pub.
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72135
associated provisions addressing
inspections and audits, recordkeeping,
and protection of information that
constitutes Chemical-terrorism
Vulnerability Information (CVI).
In the CFATS interim final rule (IFR),
DHS recognized that with respect to
chemical security, certain aspects of
§ 550 and TSA’s authorities are
concurrent and overlapping. In the
preamble to the CFATS IFR, DHS stated
that it does not presently plan to screen
railroad facilities for inclusion in the
§ 550 program (although DHS reserves
the right to reevaluate their possible
coverage at a future date). See 72 FR
17698–17699. Nevertheless, it is
possible that some chemical facilities
will be subject to both CFATS and this
TSA final rule. Specifically, it is
possible that some facilities, which are
rail hazardous materials shippers or
receivers as defined in this final rule,
may be subject to the CFATS screening
requirements and may become covered
facilities (i.e., high-risk facilities) under
the CFATS rule. In such situations, the
facilities will have to comply with the
requirements of both regulatory
programs (including requirements to
provide information under both
programs). TSA and DHS, however, will
work closely together to ensure that the
efforts directed at these facilities are
coordinated and consistent.
MTSA requires the Secretary of
Homeland Security to issue regulations
to strengthen the security of American
ports and waterways and the ships that
use them. This authority, in addition to
other grants of authority, serves as the
basis for a comprehensive maritime
security regime. Under these authorities,
the Coast Guard issued regulations to
ensure the security of vessels, facilities,
and other elements of the maritime
transportation system. Part 105 of Title
33 of the Code of Federal Regulations
imposed requirements on a range of
maritime facilities, including hazardous
material and petroleum facilities and
those fleeting facilities that receive
barges carrying, in bulk, cargoes
regulated by Subchapters D and O of
Chapter I, Title 46, Code of Federal
Regulations or Certain Dangerous
Cargoes.
Pursuant to these maritime security
regulations, the Coast Guard requires
these facilities to perform security
assessments and then, based on these
assessments, develop security plans,
and implement security measures and
procedures in order to reduce the risk
of, and to mitigate the results of, any
security incident that threatens the
facility, its personnel, the public, the
environment, and the economy.
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A few commenters requested that
TSA not apply certain provisions of this
final rule to facilities that comply with
33 CFR part 105 of the MTSA
regulations. Specifically, commenters
requested that TSA exempt these
facilities from the Rail Transportation
Security rule’s requirements for
appointing RSCs, for reporting of
significant security concerns, and for
chain of custody and controls. TSA
addresses those specific comments in
Section V of this preamble. Generally,
however, TSA has decided not to
exempt MTSA-regulated facilities from
these requirements.
Regulating rail security at maritime
facilities is a complex issue, and TSA
recognizes that certain aspects of the
Coast Guard’s maritime security
regulations and TSA’s authorities are
concurrent and overlapping. In some
respects, compliance with the Coast
Guard regulations and with these
regulations can be achieved through the
same operational practices. For
example, the Facility Security Officer
(FSO) can serve as the RSC. Also, the
rail secure area required by this rule can
be the same area as the restricted area
designated in the facility security
assessment required by 33 CFR 105.305,
so long as the regulated party employs
physical security measures to ensure
that no unauthorized person gains
access to the area. However, to the
extent that the two sets of requirements
are different to account for modespecific differences in the security
issues being addressed by the Coast
Guard and TSA, the facility would have
to satisfy both sets of regulatory
requirements. TSA and the Coast Guard
will work closely together to make sure
that the requirements of the two
programs are complementary, not
inconsistent, with each other.
III. Rail Security-Sensitive Material
As discussed in section I.C.3 of this
preamble, § 1501(13) of the 9/11
Commission Act defines the term
‘‘security-sensitive material’’ to mean ‘‘a
material, or a group or class of material,
in a particular amount and form that the
Secretary [of Homeland Security], in
consultation with the Secretary of
Transportation, determines, through a
rulemaking with the opportunity for
public comment, poses a significant risk
to national security while being
transported in commerce due to the
potential use of the material in an act of
terrorism.’’ In making such a
determination, the Secretary of
Homeland Security is directed to
consider at least the following: (1) Class
7 radioactive materials; (2) Division 1.1,
1.2, and 1.3 explosives; (3) materials
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poisonous or toxic by inhalation,
including Division 2.3 gases and
Division 6.1 materials; and (4) a select
agent or toxin regulated by the Centers
for Disease Control and Prevention
(CDC) under 42 CFR part 73.
As discussed in section IV.B of this
preamble, DHS and DOT assessed the
security vulnerabilities associated with
the transportation of different types and
classes of hazardous materials before
proposing to apply enhanced security
requirements for the categories and
quantities of explosive, PIH, and
radioactive materials specified in
proposed § 1580.100(b). TSA sought
comment on whether to apply the
requirements in this final rule to fewer
or additional hazardous materials or to
extend the requirements to include tank
cars containing residue. TSA also
sought comment on whether there are
other hazardous materials that could
cause significant loss of life,
transportation system disruption, or
economic disruption and whether TSA
should apply the requirements in this
final rule to those other materials.
TSA did not propose to include select
agents or toxins regulated by the CDC
under 42 CFR part 73, because railroads
transport few, if any, shipments of these
types of materials. Generally, shipments
of infectious substances, including
select agents and toxins, must be
transported quickly from point of origin
to destination to prevent degradation of
samples that can occur over time and to
ensure swift diagnosis and treatment of
infectious diseases. For these reasons,
highway (for short distances) and air
(for longer distances) are the preferred
modes of transportation for these
materials.
TSA provided notice and invited
public comment in the NPRM on the list
of materials that the Secretary of
Homeland Security is required to
consider under § 1501(13) of the 9/11
Commission Act when defining
‘‘security-sensitive material.’’ The
hazardous materials set forth in
§ 1580.100(b) of this final rule constitute
the Secretary of Homeland Security’s
list of ‘‘security-sensitive materials’’ for
purposes of rail transportation. See
§ 1551 of the 9/11 Commission Act.
Accordingly, the Secretary of Homeland
Security, in consultation with the
Secretary of Transportation, has
satisfied the requirements of § 1551 with
respect to the rail mode of
transportation and has determined that
‘‘rail security-sensitive materials’’ are:
(1) More than 2,268 kg (5,000 lbs) in a
single carload of a Division 1.1, 1.2, or
1.3 explosive; (2) a tank car containing
a material poisonous by inhalation, as
defined in 49 CFR 171.8, including
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anhydrous ammonia but excluding
residue quantities of these materials;
and (3) a highway route-controlled
quantity of a Class 7 (radioactive)
material, as defined in 49 CFR 173.403.
The list of ‘‘rail security-sensitive
materials’’ represents the materials that
TSA has determined are appropriate at
this time for purposes of this final rule
and the PHMSA interim final rule. DHS,
in consultation with DOT, will continue
to evaluate the transportation security
risks posed by all types of hazardous
materials and may regulate the
transportation by rail of other materials
at a later time. TSA notes that although
PHMSA must require railroad carriers
transporting the categories and
quantities of materials identified on the
DHS list of ‘‘rail security-sensitive
materials’’ to comply with the routing
requirements in the PHMSA interim
final rule, DOT is not precluded by
§ 1551 of the 9/11 Commission Act from
regulating the railroad routing of
additional materials or quantities of
materials, such as rail cars transporting
residue amounts of hazardous materials.
IV. Public Comments on the NPRM and
TSA Responses on Regulatory
Provisions
A. Summary
To gain additional commenter input
on the proposed rail security
requirements, TSA held a public
meeting on February 2, 2007 in
Arlington, Virginia. Sixty-one persons
attended the meeting. The oral
presentations given by stakeholders
mirrored their written comments.
Transcripts from the public meeting are
available for review in the public docket
for this rulemaking. The public
comment period for the NPRM closed
on February 20, 2007. TSA received
approximately 73 public comments on
the NPRM. Comments were submitted
by trade associations, individual
companies, labor unions, States and
localities, and private individuals.
Below is a summary of the public
comments and TSA’s responses,
organized as follows: Section A
describes the overall organization of this
section of the preamble, and Section B
includes comments and responses
related to the specification of hazardous
materials. Sections C, D, and E include
comments and responses on issues that
apply to passenger rail (including rail
transit), freight rail, and hazardous
materials facilities that ship or receive
materials by rail. These issues relate to
the appointment of an RSC, TSA’s
inspection authority, and the
requirement to report suspicious
incidents or activities. Section F
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includes comments and responses on
SSI issues. Sections G and H include
comments and responses on issues that
relate to freight railroad carriers and
hazardous materials facilities that ship
or receive materials by rail. Section I
includes comments and responses on
whistleblower protection. Section J
includes comments and responses on
preemption. Section K includes
comments and responses on the
regulatory impact assessment. Section L
concerns comments that are beyond the
scope of this rulemaking.
B. Specification of Hazardous Materials
As explained in the NPRM, TSA,
PHMSA, and FRA have assessed the
security vulnerabilities associated with
the transportation of different types and
classes of hazardous materials. TSA
applied enhanced security requirements
for certain categories and quantities of
hazardous materials (i.e., as specified in
proposed § 1580.100(b)) based upon
specific railroad transportation
scenarios depicting how individuals
could deliberately use hazardous
materials to cause significant casualties
and property damage. 71 FR at 76861.
The materials specified in the NPRM
present a significant rail transportation
security risk and an attractive target for
terrorists because of the potential for
these materials to be used as weapons
of mass effect. The proposed rule
excluded tank cars containing only
residue quantities of the hazardous
material, because TSA concluded that,
from a security perspective, the
consequences of the release of a residue
quantity of a PIH material would be
significantly less than the consequences
involving a loaded tank car. 71 FR at
76861. TSA sought comment on
whether to apply the requirements in
the final rule to fewer or additional
hazardous materials or to extend the
requirements to include tank cars
containing residue quantities. TSA also
sought comment on whether there are
other hazardous materials that could
cause significant loss of life,
transportation system disruption, or
economic disruption and whether TSA
should apply the requirements in the
final rule to those other materials.
Comments: An association
commented that this final rule should
not apply to Division 1.3 explosives,
which consist of materials such as
fireworks, smokeless powder, and
rocket motors. The commenter noted
that while TSA characterizes Division
1.3 explosives as commodities
presenting ‘‘a fire hazard and either a
minor blast hazard or a minor projection
hazard or both, but not a mass explosion
hazard’’ (71 FR at 76861), many
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commodities present a fire hazard that
are not included in the commodities
identified by TSA as warranting special
security protection.
TSA Response: TSA is retaining
Division 1.3 explosives in § 1580.100(b)
of the final rule, because these explosive
materials in the quantities covered in
this rule present a significant security
risk in transportation. Although a
Division 1.3 explosive presents a minor
blast and/or projection hazard, this
material is extremely flammable and
could be used as a weapon of mass
effect. If compromised in transit by
detonation or as a secondary explosion
to an IED, Division 1.3 explosives could
result in substantial damage to people,
public and private property, and rail
infrastructure.
Comments: A labor union
recommended that TSA reduce the
5,000 pound applicability trigger for
explosives in § 1580.100(b) to 100
pounds.
TSA Response: TSA has not adopted
this recommendation. A low threshold
quantity of 100 pounds of explosives,
even if compromised or detonated in
transit, is unlikely to have the potential
to turn the rail shipment into a weapon
of mass effect.
Comments: Several commenters
expressed some concern that the TSA
and PHMSA rail security NPRMs are not
consistent in terms of their application
to shipments of PIH materials. The
PHMSA NPRM applies to bulk
quantities of PIH materials. A ‘‘bulk
quantity’’ as used in the HMR means a
quantity that exceeds 450 L (119
gallons) for liquids, a net mass greater
than 400 kg (882 pounds) for solids, or
a water capacity greater than 454 kg
(1,000 pounds) as a receptacle for gas.
See 49 CFR 171.8. Thus, the provisions
of the PHMSA NPRM would apply to
PIH shipments transported in tank cars,
including residue amounts exceeding
119 gallons, and portable tanks and
other bulk containers. In contrast, the
TSA NPRM would apply to tank cars
containing PIH materials but exclude
residues. Commenters suggested that the
two rules should be applied
consistently. They recommended that
both final rules adopt the TSA tank-car
threshold and exclude residue
shipments, because they represent a low
security threat.
TSA Response: We believe that there
are important distinctions between the
quantities of concern from a security
perspective and the quantities of
concern from a safety perspective. These
distinctions account for the differences
between the two rules. The amount of
residue remaining in a tank car varies,
but in most instances, tank car residues
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72137
will total approximately 1–2 percent of
the original amount of material in the
tank, or 1,800–3,600 pounds. There are
legitimate safety concerns relating to
residue quantities even though the
target attractiveness from a security
standpoint is diminished. PHMSA
explains those safety concerns in its
rule. With respect to security, the
potential consequences of the release of
a residue quantity of al PIH material
would be significantly less than the
consequences of an incident involving a
loaded tank car. Therefore, in this final
rule, TSA is requiring enhanced security
measures for the classes and quantities
of PIH materials as proposed in the
NPRM (i.e., not tank cars containing
residual PIH materials). TSA has
determined that residue quantities of
PIH materials in bulk packaging
shipments do not carry sufficient
amounts of security-sensitive materials
to warrant the enhanced security
measures required by this rulemaking.
Comments: Some commenters were
confused as to whether TSA intended
anhydrous ammonia to be included as a
PIH material for which enhanced
security measures are required.
TSA Response: The answer is yes. To
ensure that this confusion does not
persist, we are specifically adding
anhydrous ammonia as an example in
§ 1580.100(b) of a material covered by
the security requirements in this final
rule. Commenters are correct that, under
the HMR, anhydrous ammonia is
classed as a Division 2.2 compressed gas
for domestic transportation. However,
anhydrous ammonia meets the
definition of a material that is poisonous
by inhalation under 49 CFR 171.8 of the
HMR. That definition includes any
material identified as an inhalation
hazard by a special provision in column
7 of the 49 CFR 172.10 Hazardous
Materials Table. The entry for
anhydrous ammonia in the Hazardous
Materials Table includes Special
Provision 13, which requires the words
‘‘Inhalation Hazard’’ to be entered on
shipping papers and marked on
packages.
Comments: Some commenters
believed that the hazardous materials
listed in 49 CFR 1580.100(b) should
include other flammable gases and
liquids, since those materials could be
weaponized, as well as include other
materials that could cause serious
damage if released into rivers and lakes.
One commenter recommended that TSA
extend the applicability of this final rule
to cover commodities that convert to
poisonous gases when they come into
contact with water, fire, or acids; this
commenter referenced a train
derailment that occurred near Superior,
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1. The RSC Role Must Be Performed by
a Designated Individual
Comments: Several commenters,
representing railroad carriers and
explosives manufacturers, remarked that
many companies already have
emergency response and
communications systems in place, with
some of them following PHMSA’s
emergency response information
requirements.24 Some of these
commenters urged TSA to allow the use
of an emergency contact center number
or a 24-hour corporate security number,
instead of appointing an RSC.25 The
commenters stressed that an emergency
call center could connect the TSA caller
to the appropriate security or response
personnel as needed. Further, other
commenters thought that having TSA
maintain telephone lists of specific
individuals named as RSCs does not
appear to add value to the regulation.
TSA Response: TSA believes that
there is great security value in requiring
the appointment of RSCs and in
requiring regulated entities to provide
contact information for these
individuals. The RSC or alternate must
serve as the security liaison between the
regulated party and TSA. The RSC or
alternate provides a primary single
point of contact at the corporate level
for receiving communications and
inquiries from TSA concerning threat
information or security procedures and
coordinating responses with appropriate
law enforcement and emergency
response agencies. If TSA needs to
convey extremely time-sensitive
security information to a regulated
party, particularly in situations
requiring frequent information updates,
it is important for the sake of continuity
C. Rail Security Coordinators
mstockstill on PROD1PC66 with RULES2
Wisconsin on June 30, 1992 in which 73
persons were injured when the contents
of one rail car reacted with water and
formed a vast vapor cloud.
TSA Response: While TSA agrees that
other types of hazardous materials pose
certain security risks in rail
transportation, the risks are not as great
as those posed by the explosive,
radioactive, and PIH materials specified
in this final rule, and at this time we are
not persuaded that they warrant the
additional precautions required by this
final rule. TSA, in consultation with
PHMSA and FRA, will continue to
evaluate the rail transportation security
risks posed by all types of hazardous
materials and the effectiveness of
existing Federal regulations in
addressing those risks and will consider
specific requirements as necessary.
Comments: One commenter requested
that TSA revise the applicability
language in 49 CFR 1580.100(b)(3) by
replacing the threshold limit of ‘‘a
highway route-controlled quantity of a
Class 7 (radioactive) material’’ with the
NRC’s published list of Import and
Export Threshold Limits for Category 1
and 2 Radioactive Materials. See
Appendix P to 20 CFR part 110.
TSA Response: TSA has retained the
threshold limits for radioactive
materials as proposed in the NPRM.
From a security perspective, it appears
that the consequences from a release of
a radioactive material subject to the
lower threshold limits set forth by the
NRC would be significantly less than
the consequences of an incident using a
highway route-controlled quantity of a
Class 7 radioactive material.
24 PHMSA requires any person offering a
hazardous material for transportation to provide an
emergency response telephone number for use in
the event of an emergency involving the hazardous
material. See 49 CFR 172.604(a). The regulation
requires that the telephone number be monitored at
all times by ‘‘a person who is either knowledgeable
of the hazardous material being shipped and has
comprehensive emergency response and incident
mitigation information for that material, or has
immediate access to a person who possesses such
knowledge and information,’’ but permits the
offeror to meet this requirement by providing the
telephone number of an agency or organization. See
49 CFR 172.604(a) and (b).
25 In 1971, the chemical industry established
CHEMTREC as a public service hotline for fire
fighters, law enforcement, and other emergency
responders to obtain information and assistance for
emergency incidents involving chemicals and
hazardous materials. Additionally, for a fee,
CHEMTREC helps shippers of hazardous materials
comply with the PHMSA regulatory requirement to
provide an emergency telephone number on
shipping documents that can be called in the event
of an emergency involving the hazardous material
that is being shipped. CHEMTREC also provides
emergency responders with the information they
need in the event of an incident.
Section 1580.101 of the NPRM
proposed that freight railroad carriers,
rail hazardous materials shippers, and
rail hazardous materials receivers
within a High Threat Urban Area
(HTUA) appoint an RSC, designated at
the corporate level, to serve as the
primary contact for intelligence
information and security-related
activities and communications with
TSA, and coordinate security practices
and procedures with law enforcement
and emergency response agencies.
Section 1580.201 of the NPRM proposed
that passenger railroad carriers and rail
transit systems appoint RSCs who
would perform the same functions. TSA
received numerous comments on the
RSC provisions of the NPRM. TSA
summarizes those comments and its
responses below.
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that TSA be able to interact with a
specific individual. The RSC must be in
a position to understand security
problems, raise issues with corporate
leadership, and recognize when
emergency response action is
appropriate.
TSA has decided not to allow the use
of emergency call centers or 24-hour
generic contact numbers to substitute
for the requirement to designate named
individuals to serve as RSCs and
alternate RSCs. However, using call
centers, in conjunction with appointed
RSCs, may be an appropriate way to
satisfy the requirements of 49 CFR
1580.101(e)(2) and 1580.201(e)(2). To
meet these requirements, the call center
or emergency hotline would need to be
staffed 24-hours a day, 7 days a week,
and must be able to immediately locate
and communicate with the RSC.
2. Scope of Section 1580.101
Comments: Several commenters
suggested that certain operations do not
need RSCs or that individuals
performing similar functions for other
purposes, such as individuals
responsible for security under DHS’s
CFATS rule, should be able to serve as
RSCs.
Some commenters argued that
proposed § 1580.101 should not apply
to marine terminals because those
facilities are regulated under the Coast
Guard security requirements. They
believed that TSA should exclude ‘‘ondock’’ rail facilities from the
requirement.
Several trade associations stated that
§ 1580.101 should not apply to a rail
hazardous material shipper or receiver
that only ships or receives the specified
hazardous materials on an occasional
basis. One of these commenters noted
that many of its members are relatively
small operations that may ship or
receive tank cars of anhydrous ammonia
only once or twice a year. Another
association recommended exempting
entities that ship or receive less than
three rail cars per month.
Two trade associations objected to
requiring occasional rail hazardous
materials shippers or receivers to have
an RSC available 24-hours a day, 7 days
a week, 365 days a year, even if the
facility has no rail cars in its custody or
in transit. Similarly, several commenters
argued that TSA should not require the
RSC to be available 24-hours a day, 7
days a week for short line railroads that
only operate 40 hours per week or for
railroads that do not transport
hazardous materials.
TSA Response: TSA requires a point
of contact for all carriers, regardless of
whether they transport hazardous
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mstockstill on PROD1PC66 with RULES2
materials, because security concerns
may arise that are unrelated to
hazardous materials. TSA must be able
to communicate as soon as possible
with the RSC for all affected freight
railroad carriers and rail hazardous
materials facilities if TSA needs to
convey extremely time-sensitive threat
information or security procedures or
seek information relating to threats or
potential threats.
TSA has also carefully considered the
comments concerning freight railroad
carriers who rarely transport, and
shippers and receivers who rarely ship
or receive, rail cars containing the
categories and quantities of hazardous
materials covered by part 1580.
However, TSA has decided not to
exempt these entities from the RSC
requirements. With respect to infrequent
shipments of hazardous materials, the
consequences can be significant even if
a railroad carrier only transports a single
carload or a rail hazardous materials
facility only ships or receives a single
carload. The January 6, 2005 rail
accident in Graniteville, South Carolina
resulted in the puncture of a single tank
car of chlorine, but the consequences of
that accident were substantial.
In the case of rail hazardous materials
facilities that are also subject to the
maritime security regime required by
MTSA, the individual who serves as the
FSO may also fulfill the duties of the
RSC, provided that the person
understands the responsibilities of an
RSC as provided in 49 CFR 1580.101.
See 33 CFR parts 101–106. However,
compliance with MTSA does not itself
satisfy the TSA requirement
3. Scope of Section 1580.201
Comments: Some commenters
representing passenger railroads
suggested that proposed § 1580.201
should not apply to tourist, scenic,
historic, and excursion railroad
operations. One commenter
recommended that TSA exempt the
systems unless they operate in an
HTUA, while another commenter
believed that the requirements would
pose an undue burden.
TSA Response: TSA is promulgating
the final RSC requirement as proposed.
TSA only requires a tourist, scenic,
historic, or excursion passenger rail
operation, whether on or off the general
railroad system of transportation, to
designate and use an RSC if TSA
informs it in writing that it must do so
because of a general or specific threat
concerning that operation. An
exemption is not appropriate because
many tourist, scenic, historic, and
excursion operations, though not
necessarily operating in areas of high
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17:35 Nov 25, 2008
Jkt 217001
risk, do carry large numbers of people
and may become potential terrorist
targets.
If the need arises, TSA will inform the
carrier of the need for an RSC. In
determining whether one or more of
these passenger railroad carriers must
designate and use an RSC, TSA will
consider all available information,
including location, populations served,
and any intelligence, law enforcement,
and reported suspicious activity.
4. Responsibilities of the RSC
Comments: A few commenters asked
whether a corporate RSC could serve
multiple regulated facilities or
operations and whether the individual
serving as the RSC may perform other
functions. One State agency commenter
recommended that the primary and
alternate RSCs appointed by passenger
railroad operators or mass transit
operators should be identified within
the existing State Safety Oversight
Agency (OA), formed under 49 CFR part
659.
TSA Response: A single RSC or
alternate may have responsibility for
multiple covered rail facilities that are
owned and operated by one corporation,
provided that the individual has the
information necessary to perform the
RSC’s duties.
This final rule allows different people
to be on call at different times
throughout the day, provided that at
least one RSC or alternate is available to
TSA on a 24-hour, 7 days a week basis.
This final rule allows a passenger rail
operator to select a qualified individual
who also performs job duties for the OA
to serve as the RSC.
5. Rail Security Coordinators Identified
Previously
Comments: One mass transit agency
asked whether a list of security
coordinators previously sent to TSA to
comply with the rail SDs would satisfy
§ 1580.201’s requirement to appoint an
RSC.26
TSA Response: Yes, passenger
railroad carriers and rail transit systems
that have already provided the required
information on their primary and
alternate RSCs to TSA have complied
with the requirements of § 1580.201.
They do not have to take further action
unless any of the contact information
26 On May 24, 2004, TSA issued SD-RAILPAX–
04–01 and SD–RAILPAX–04–02, which require
passenger rail systems to implement certain
security measures to address the terrorist threat and
establish a consistent baseline of protective
measures applicable to all passenger rail operators.
One of the protective measures required each
regulated party to designate a primary and alternate
Security Coordinator and provide these names to
TSA.
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72139
changes. However, all covered parties,
including those passenger railroad
carriers and rail transit systems that
have already provided the required
information, must report all changes to
the names, titles, telephone numbers,
and e-mail addresses of the RSCs and
alternate RSCs to TSA within seven
calendar days.
6. Rail Security Coordinator
Coordination With State and Local
Governments
Comments: Several commenters
representing State and local agencies
stated that contact information for RSCs
should be made available to local
governments where hazardous material
rail cars may be staged. Another
commenter requested that TSA make
RSC information available to local
emergency planning committees and/or
the sheriff’s department at all locations
where the railroad maintains a
switching yard where rail cars
containing hazardous materials subject
to this final rule may be staged for more
than four hours.
TSA Response: When it is necessary
and appropriate, TSA will make RSC
information available to State and local
government agencies for official
business purposes, including emergency
responders.
7. Rail Security Coordinator Training
In the NPRM, TSA noted that the RSC
proposal was crafted as a performance
standard, and TSA anticipated that each
of the regulated parties would provide
its RSC with the information necessary
to perform his or her job duties. 71 FR
at 76863. However, TSA sought
comment on whether to add a training
requirement for RSCs in the final rule or
via another rulemaking, and requested
information on potential training
methods.
Comments: TSA received comments
both supporting and opposing the
inclusion of training standards.
Commenters supporting training
requirements recommended TSA
include standards that were consistent
with those that the Coast Guard requires
for FSOs under 33 CFR 105.205. Other
commenters believed training programs
were necessary to ensure a common
knowledge base across the industry. For
example, The Tri-State Oversight
Committee for Maryland, Virginia, and
the District of Columbia encouraged
TSA to create a national level training
program for RSCs and suggested that
TSA establish a single training academy
where RSCs could network and share
best practices, similar to the Federal
Transit Administration’s (FTA’s)
workshops for State Safety Oversight
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personnel. Other commenters stated that
training was unnecessary, because
railroad personnel already perform
similar functions and have been trained
to perform them.
TSA Response: TSA has determined
not to provide RSC training at this time
or to provide specific training standards.
To comply with the RSC requirement,
the regulated party must ensure that
individuals performing RSC duties are
available to TSA on a 24-hours a day
basis, capable of serving as the primary
point of contact with TSA on security
matters, and able to coordinate security
practices and procedures with
appropriate law enforcement and
emergency response agencies. To meet
the performance standard established
for RSCs, TSA expects entities subject to
this requirement to provide any
necessary training, which may be
specific to each entity.
D. Inspection Authority
TSA received numerous comments on
many aspects of the inspection
provisions of the NPRM. TSA
considered all the comments and has
decided to make only one minor change
to the inspection provisions.
Specifically, TSA has added a new
paragraph (d) to 49 CFR 1580.5 to state
that upon request, TSA inspectors and
DHS officials working with TSA will
present their credentials for
examination, but with the proviso that
the credentials may not be photocopied
or otherwise reproduced (so as to
mitigate the possibility that an
inspector’s credentials will be
duplicated for fraudulent purposes).
TSA added this paragraph in response
to commenter requests for an
authentication process to verify the
identity of an individual purporting to
represent TSA.
mstockstill on PROD1PC66 with RULES2
1. Unannounced Inspections
Comments: Section 1580.5(c) of the
NPRM codified TSA’s authority to
‘‘enter, without advance notice * * *
any area or within any conveyance
* * * in order to inspect or test
compliance, or perform other such
duties as TSA may direct.’’ Many
commenters objected to this provision,
raising the following comments and
concerns:
• Unannounced inspections will
disrupt ongoing business activities.
• TSA should pre-arrange inspections
when practical.
• Employees of railroads and
facilities who find TSA inspectors on
their premises might view them as a
threat and respond by calling law
enforcement or security guards.
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• The presence of TSA inspectors on
rail lines and in operating facilities
would be dangerous to TSA employees,
rail system or facility employees, and
customers. Inspectors should be
escorted, qualified, and/or trained to
ensure safety. Some commenters
recommended specific types of safety
training.
• Railroad operators and facility
owner/operators may incur liability if
TSA inspectors or others are injured.
• TSA inspectors should be required
to obtain facility identification media
and/or TSA should provide a
mechanism through which they can
verify the identity of TSA inspectors.
• The rule language is inconsistent
with Security Directive RAILPAX-04-01.
• TSA should limit the scope of
potential unannounced visits to
hazardous materials shipper, railroad
carrier, and hazardous materials
receiver locations where rail cars
containing PIH, explosive, and
radioactive materials. are handled
TSA Response:
a. Need to Conduct Unannounced
Inspections
TSA has retained the language that it
used in the NPRM with respect to
conducting inspections within any area
or conveyance of a regulated party
without providing advance notice. TSA
anticipates that in most cases it will
notify railroad carriers, rail transit
systems, and rail hazardous materials
facilities of scheduled inspections. This
notice gives the parties to be inspected
the opportunity to gather evidence of
compliance and to arrange to have the
appropriate personnel available to assist
TSA. However, inspections related to a
particular incident, and inspections that
are made without notice, are necessary.
Some inspections can only be effective
if they are unannounced, so as to
determine whether the regulated party
is in compliance when it is unaware
that TSA may be inspecting. TSA must
have the flexibility to respond to
information, operations, and specific
circumstances whenever they exist or
develop. TSA must be able to assess the
security of covered parties during all
times of the day or night and under all
operational situations. Consequently,
TSA may have to conduct inspections in
the evenings, at night, on weekends, or
on holidays. Security concerns are
different at different times of the day
and on different days of the week, and
terrorists may seek to take advantage of
vulnerabilities whenever they occur.
TSA must be able to assess potential
threats and an entity’s security measures
at any time.
The nature of any given TSA
inspection will depend on the specific
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circumstances surrounding a particular
railroad carrier, rail transit system, or
rail hazardous materials shipper or
receiver’s operations at a given point in
time and will be considered in
conjunction with available threat
information. While TSA may choose to
notify regulated entities, local
emergency responders, or other agencies
on a case-by-case basis, TSA is not
including a mandatory requirement to
notify the regulated party.
We note, too, that many of the
locations that TSA may inspect do not
have access controls, such as fences or
gates. Indeed, in some locations, the
general public has easy access to the
property. Unannounced TSA
inspections of these areas will not
require access to controlled areas.
Further, TSA’s inspection may test the
regulated party’s ability to detect and
respond to the presence of unauthorized
individuals.
b. Contacts with Law Enforcement
Officials
In response to the commenters who
believe that unannounced TSA
inspections would create new safety and
security risks for TSA inspectors and to
other individuals on rail property, TSA
recognizes that the presence of a
seemingly unauthorized individual on
the property of a railroad carrier, rail
transit system, or rail hazardous
materials facility may result in law
enforcement officials being contacted. In
the case of announced or planned
inspections, TSA has trained its
inspectors to identify themselves when
they reach the facility to be inspected in
order to avoid unnecessary notification
of local law enforcement officials. In the
case of unannounced inspections where
the inspector has not notified any
representative of the inspected facility,
TSA has trained its inspectors to
provide identification upon demand to
a representative of the facility.
c. Danger
In response to commenter concerns
about their liability in connection with
TSA personnel who may be injured on
rail property while performing
unannounced inspections, we note that
we have trained our inspectors on
specific safety and security protocols to
follow while inspecting the equipment
and facilities of a regulated party. In the
event that a TSA inspector is either
injured or alleged to have caused an
injury while on a regulated party’s
property, we will address the situation
in accordance with applicable laws and
regulations. By way of example, as a
general rule, a TSA employee who
sustains injuries while performing
official duties is compensated by the
Federal Employees Compensation Act
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mstockstill on PROD1PC66 with RULES2
(FECA), 5 U.S.C. 8101–8193.27 Persons
who believe they have a tort claim
against the United States may pursue
their rights under the Federal Torts
Claim Act (FTCA).28 See 26 U.S.C. 2671–
2680.
d. Relationship to Inspection
Authority Pursuant to Security
Directives
The American Public Transportation
Association (APTA) commented that
conducting unannounced inspections is
inconsistent with the requirement in SD
RAILPAX–04–01 that TSA coordinate
inspections with the rail property’s
designated security coordinator. In
response, TSA acknowledges that it is
expanding the requirements in the rail
SDs. In most cases, TSA inspectors will
notify the rail property in advance to
schedule an inspection and, to the
extent practicable, work in close
partnership during the visit with the
RSC designated under § 1580.201 or
other appropriate official(s) designated
by the railroad carrier or rail transit
system. However, TSA must be able to
make unannounced inspections to
check for compliance. To the extent
there is ambiguity as to whether TSA
inspections, evaluations, and tests to
ensure compliance with the rail SDs can
only be performed if they are
announced and coordinated in advance
with the regulated party, TSA notes that
the inspection authority set forth in 49
CFR 1580.5 supersedes the provisions in
TSA’s rail SDs that compliance visits
will be coordinated with the Security
Coordinator.
e. Training of TSA Inspectors
TSA appreciates that inspectors must
be properly trained to avoid danger to
themselves, to workers on the inspected
property, to travelers, and to the
inspected property. TSA intends to use
only properly trained personnel to
conduct inspections. TSA puts its
inspectors through a rigorous training
program, incorporating classroom and
field training, so that inspectors are
knowledgeable on all aspects related to
this regulatory program as well as on
safety issues. TSA inspectors receive
training on specific safety procedures to
use while inspecting the equipment and
27 FECA is a law administered by the Office of
Workers’ Compensation Programs (OWCP) of the
U.S. Department of Labor. It provides compensation
benefits to civilian employees of the United States
for disability due to personal injury sustained while
in the performance of duty or to employmentrelated disease. These benefits include payment of
medical expenses and compensation for wage loss.
FECA also provides for the payment of benefits to
dependents of employees if the injury or disease
causes the employee’s death.
28 The FTCA specifies how the Federal
government can be sued in tort, and for what torts
it can be sued.
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facilities of freight and passenger
railroad carriers, transit system owners
and operators, and rail hazardous
materials facilities, including the
Transportation Safety Institute’s
Transportation of Hazardous Materials
course covering 49 CFR parts 100–185.
Many of TSA’s inspectors have
backgrounds in law enforcement and
physical security and are subject matter
experts in the field of railroad
transportation, including the
transportation of hazardous materials. In
addition, all DHS officials conducting
inspections with TSA will receive
training, including training on
applicable FRA requirements and the
safety procedures to follow while
aboard a conveyance or inside a
terminal or facility. If a rail hazardous
materials facility requests that an
inspector receive facility-specific safety
briefings or training, TSA will work
with the facility to accommodate those
requests, provided that the timing is
acceptable and that additional safety
training is reasonable given the nature
of the expected inspection.
2. Use of Identification Media and
Verification of Identity of TSA
Inspectors
Comments: Section 1580.5(c) provides
that TSA is authorized to ‘‘enter,
without advance notice * * * any area
or within any conveyance without
access media or identification media
* * * in order to inspect or test
compliance, or perform other such
duties as TSA may direct.’’ Many
commenters expressed concerns and
comments about verifying the identity
and credentials of inspectors. For
example, APTA expressed the view that
allowing TSA personnel to conduct
inspections without identification
media issued by the rail property would
create unnecessary delays and
disruption until their identities can be
properly verified. APTA recommended
that TSA inspectors use local
identification media in addition to their
TSA credentials to reduce the
possibility that an individual posing as
a TSA inspector could gain access to a
property and compromise security.
Several commenters asked TSA to
include a clearly stated authentication
process, including a 24/7 telephone
number, in the text of this final rule.
Other commenters recommended that
TSA officials be required to present
government credentials and other
identification (including photo
identification) before being allowed on
site, be badged at the facility to be
inspected, or be escorted by a company
representative.
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72141
One commenter stated that TSA
inspections at NRC-licensed facilities
without presentation of access or
identification media issued or approved
by the NRC licensees would place the
licensees in direct violation of NRC
regulations and security orders
concerning access authorization.
TSA Response: TSA inspectors will
carry Federal government credentials
identifying themselves as having official
authority to inspect. In addition, any
railroad carrier, rail transit system, or
rail hazardous materials facility wishing
to authenticate the identity of an
individual purporting to represent TSA
may contact the Freedom Center at 703–
563–3240 or 1–877–456–8722. In
addition, TSA has provided some
additional regulatory text on the issue of
inspector credentials. Upon the request
of an entity being inspected by TSA
(and, as applicable, DHS officials
working with TSA) the TSA or DHS
official will present their credentials for
examination, provided that the
credentials may not be photocopied or
otherwise reproduced. See 49 CFR
1580.5(d).
TSA notes that Homeland Security
Presidential Directive 12 (HSPD–12)
requires Federal agencies to improve
secure identification processes for
Federal employees and contractors.29
The U.S. Department of Commerce has
published guidance on the standards
and methods by which Agencies could
reach compliance with HSPD–12.30
As the capability becomes available
and implementation of HSPD–12
continues, all Federal employees will
have Federally-issued HSPD-12
compliant cards. TSA will establish
procedures for regulated parties that
elect to electronically validate Federal
officials’ credentials using FIPS 201
real-time credential authentication
capability. In compliance with § 1512 of
the 9/11 Commission Act, TSA is
developing requirements for security
programs in the rail sector. As TSA
develops these requirements, TSA will
consider procedures and protocols
pertaining to verification of Federal
HSPD–12 cards.
TSA has decided that it will not
require an official of the inspected
29 The objectives of HSPD–12 are to ensure that
the credentialing processes are administered by
accredited providers; are based on sound criteria for
verifying an individual’s identity; include a
credential that is resistant to fraud, tampering,
counterfeiting and terrorist exploitation, and can be
authenticated quickly and electronically.
30 On February 25, 2005, the Department of
Commerce issued the Federal Information
Processing Standards Publication 201 (FIPS 201),
Personal Identification Verification of Federal
Employees and Contractors in response to
HSPD–12.
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entity to accompany a TSA inspector
during inspections. Although, in many
cases, such an escort may very well be
helpful, in other cases, it may hinder an
inspection’s timing or scope. TSA’s
inspectors often will request an escort,
but they must be able to perform
unescorted inspections at times to check
compliance. With the exception of NRClicensed facilities (as discussed below),
TSA also is not requiring that inspectors
receive identification media from the
facility to be inspected. These media
will not be necessary once the
inspectors show their TSA or DHS
credentials.
In the case of inspections conducted
at NRC-licensed facilities, TSA
inspectors who have not been granted
unescorted access to the facility in
accordance with NRC regulations will
perform their unannounced inspections
while escorted by an NRC or licensee
employee who has been granted
unescorted access. NRC inspectors
inspecting for compliance with NRC
requirements will notify TSA about any
rail security concerns. As noted earlier,
TSA intends that the specifics of these
arrangements be outlined in an
agreement between TSA and the NRC.
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3. Warrantless Inspections
a. Legal Authority To Conduct
Warrantless Inspections
Comments: One commenter
questioned the legal grounds for the
seizure of copies of documents without
a warrant.
TSA Response: TSA is mandated by
ATSA to develop policies, strategies,
and plans for dealing with threats to all
modes of transportation,31 including
rail, and has authority to conduct
inspections to ensure compliance with
those policies and plans.32 The
inspection authority provision in
§ 1580.5 of this final rule requires that
freight and passenger railroad carriers,
rail transit systems, and rail hazardous
materials facilities allow TSA officials
and DHS officials working with TSA to
enter and be present within any area or
within any conveyance to conduct
inspections, tests, or to perform such
other duties at any time or place to carry
out TSA’s statutory duties.
These inspections may be conducted
without a warrant. By publication of
this final regulation, owners and
operators of rail operations and
hazardous materials facilities are on
notice as to the statutory and regulatory
authority for the inspections. The
regulation also identifies that TSA and
other authorized DHS officials are the
31 49
32 49
U.S.C. 114(f)(3).
U.S.C. 114(f)(9).
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persons authorized to conduct the
inspections. In addition, TSA has
explained that the inspections may
occur at any time, but will occur in a
reasonable manner. Finally, the
regulation identifies the locations
subject to inspection and delineates the
scope of the inspection, in that the
inspection will encompass the property,
facilities, equipment, operations,
conveyances, and records that are
necessary to carry out TSA’s securityrelated responsibilities.
The entities covered by this final rule
are part of a closely regulated industry
due to existing oversight and the
heightened government interests in
regulating these businesses. Most rail
carriers and facilities identified in the
regulation are already subject to
regulation from other Federal entities
such as DOT and EPA. There is also no
doubt that TSA has a substantial interest
in regulating the railroad carriers, rail
transit systems, and rail hazardous
materials facilities covered by this final
rule. The preamble to the NPRM set
forth several examples of the
devastating consequences of an attack
on rail transportation and clearly
explained TSA’s interest in regulating
rail transportation to protect persons
and property. 71 FR at 76854. The
NPRM also described what measures
must be taken by rail interests to detect
and deter these threats.
The warrantless administrative
inspections contemplated by the rule
are also necessary to further the
regulatory scheme. TSA’s rail inspection
program is directed at a mobile industry
that transports persons and potentially
dangerous materials, and if inspection is
to be effective and serve as a credible
deterrent, unannounced inspections are
essential.
b. Criminal Evidence Found During an
Inspection
Comments: A State DOT stated that
TSA may not use its regulatory
oversight powers as a means to gather
and seize criminal evidence against a
rail carrier without a search warrant.
The commenter said while there are
allowable exceptions to warrant
searches (such as the exigent
circumstances surrounding the hot
pursuit of a criminal suspect), none of
those circumstances would typically
exist during an oversight inspection.
TSA Response: TSA is aware of the
legal requirements for conducting a
criminal investigation, including
requirements for obtaining a search
warrant in certain circumstances.
Transportation Security Inspectors
(Surface) are not criminal investigators,
and they will be trained accordingly. As
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appropriate, the inspectors will refer
matters to the appropriate law
enforcement authorities.
4. Enforcement Guidance for Inspectors
Comments: One chemical
manufacturer stated that TSA must
ensure the fairness of guidance
documents that TSA may issue to
inspectors, that TSA must issue any
guidance in accordance with Executive
Order (E.O.) 13422, amending E.O.
12866, which addresses Regulatory
Planning and Review and the Office of
Management & Budget’s (OMB’s)
Bulletin for Agency Good Guidance
Practices, and that TSA should give the
regulated community the opportunity to
submit comments regarding any draft
guidance.
TSA Response: TSA will evaluate any
guidance materials issued to our
inspectors to determine the appropriate
procedure for issuing them.
5. Review Process for Enforcement
Decisions
Comments: National Railroad
Passenger Corporation (Amtrak) asked if
there would be a review process if the
rail carrier does not agree with the
decision of the rail inspector.
TSA Response: If any covered party
disagrees with a rail inspector’s decision
with respect to compliance or possible
corrective action, the party may request
that the decision be reviewed at a higher
level at TSA. The regulated entity may
request that the issue be resolved by
TSA management. Management will
raise unresolved issues to TSA’s Office
of Chief Counsel and senior
management for final resolution.
6. Use of Third-Party Contractors for
Inspections
Comments: One commenter raised a
number of questions about the use of
contractors or officials of other agencies
to conduct inspections under this rule.
TSA Response: TSA does not intend
to employ contractors to carry out TSA’s
inspection responsibilities. DHS
officials may inspect rail operations and
rail hazardous materials facilities in
coordination with TSA.33
33 TSA also works closely with DOT by
consulting and coordinating on security-related
transportation requirements to ensure they are
consistent with the overall security policy goals and
objectives established by DHS so that the regulated
industry is not confronted with inconsistent
security guidance or requirements promulgated by
multiple agencies. While inspectors from both
departments may sometimes perform joint
inspections and share compliance information, each
agency enforces its own regulatory requirements.
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7. Other Comments on TSA Inspection
Authority
Comments: A passenger railroad
operator asked if TSA would provide
any guidelines to rail inspectors
regarding their actions while on a
conveyance. For example, the
commenter asked if the inspectors
would occupy revenue seats of rail cars
and transit vehicles and if they would
be able to use their credentials to travel
to and from their residence or place of
work.
TSA Response: As stated above in the
discussion of inspector training, TSA
intends to use only properly trained
personnel to conduct inspections. TSA
inspectors will display credentials upon
request and occupy revenue seats on
passenger railroad cars and rail transit
system conveyances only while
performing official duties. If a TSA
inspector is commuting to or from his or
her residence or place of work, he or she
will pay the same full fare as a member
of the traveling public. Also, an on-duty
TSA inspector may travel as a paying
passenger when conducting
unannounced inspections to evaluate
the regulated party’s security measures.
Comments: Proposed 49 CFR
1580.5(b)(7) states that TSA’s inspection
authority includes the right to ‘‘carry
out such other duties, and exercise such
other powers, relating to transportation
security as the Assistant Secretary of
Homeland Security for the TSA
considers appropriate, to the extent
authorized by law.’’ One chemical
manufacturer commented that this
proposed language is vague and
undefined, and subjects the regulated
community to unknown inspection
criteria.
TSA Response: TSA has retained the
language that it used in the NPRM. TSA
has the primary Federal role in
enhancing security for all modes of
transportation. Under ATSA, TSA’s
authority with respect to transportation
security is comprehensive and
supported with specific powers related
to the development and enforcement of
security-related regulations, SDs,
security plans, and other requirements,
including ensuring the adequacy of
security measures for the transportation
of cargo 34 and overseeing the
implementation of and ensuring the
adequacy of security measures at
transportation facilities.35 In addition to
its other responsibilities under ATSA,
TSA is charged with carrying out other
appropriate duties relating to
transportation security.36 The regulatory
34 49
U.S.C. 114(f)(10).
U.S.C. 114(f)(11).
36 49 U.S.C. 114(f)(15).
language in 49 CFR 1580.5(b)(7) notifies
the regulated community of TSA’s broad
statutory authority to inspect and
codifies the scope of TSA’s existing
inspection program as it relates to rail
security.
As explained in the NPRM, TSA is
authorized to conduct general security
assessments in addition to inspecting
for compliance with specific
regulations. TSA has specific powers to
assess threats to transportation security;
monitor the state of awareness and
readiness throughout the rail sector;
determine the adequacy of an owner or
operator’s transportation-related
security measures; and identify security
gaps.
Comments: Two associations
expressed concern that the proposed
rule extends beyond just the rail
operations and shipping and receiving
areas of a regulated facility and,
therefore, exceeds TSA’s authority.
These commenters requested that TSA
revise the inspection provision in the
rule to limit its scope to those
operations directly related to or
impacting a facility’s rail operations.
TSA Response: TSA’s authority to
inspect under this rule does not extend
to areas of the facility that are unrelated
to transportation security, which may
include (for example) areas dedicated
exclusively to manufacturing or
engineering. However, TSA notes that
its inspection authority is broad. TSA
has the discretion to inspect those areas
of a rail hazardous materials shipper or
receiver facility that are related to the
security of the transportation system,
such as the rail secure area and control
rooms or offices where security
activities are initiated or monitored.
Under the authority of ATSA, TSA is
directed to ensure the adequacy of
security measures for the transportation
of cargo,37 which includes ensuring the
adequacy of security measures at the
transportation-related areas of rail
hazardous materials shipper and
receiver facilities. The rail cars offered,
prepared, loaded, received, or unloaded
from or at these facilities may travel
anywhere in the general railroad system
of transportation, including in and near
high population areas, critical
infrastructure, and other vital areas.
Sometimes loaded rail cars will remain
for some time at the shipper’s facility
awaiting pickup from the freight
railroad carrier. Whether being loaded at
facilities or awaiting pickup at facilities,
these rail cars could endanger
surrounding areas. Accordingly, TSA’s
broad authority under ATSA includes
authority to inspect those areas of the
35 49
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facilities used for transportation security
activities.
E. Reporting Significant Security
Concerns
1. General Comments
a. Value of Proposed Requirement To
Report Significant Security Concerns
TSA received a number of comments
supporting the proposed requirement to
report significant security concerns.
Two chemical companies and a major
trade association supported the
reporting of significant security
concerns to TSA as proposed in
§ 1580.105. Other commenters
expressed concerns about the
requirements.
Comments: The Chairman and four
members of the U.S. House Committee
on Homeland Security expressed the
view that the proposed reporting
requirements would not improve rail
security. They commented that the
reporting requirements would not make
the industry proactive in deterring
terrorists and that, instead of collecting
data for study after incidents have
occurred, TSA should provide the
industry with mandatory, standardized
security practices and mandated
training programs.
TSA Response: TSA believes that the
requirements to report significant
security concerns have great value in
the overall approach to enhancing rail
security. That approach includes other
mandatory requirements, such as the
chain of custody measures, location and
shipping information, and the
designation of RSCs, that will enhance
security. TSA agrees with the House
Committee members that it is important
to focus on deterring activities that
might compromise transportation
security. TSA believes that reports of
significant security concerns from rail
transit operations, freight and passenger
railroad carriers, and rail hazardous
materials shippers and receivers
enhance security, because they help
TSA to evaluate if there are geographic
or other patterns to the activities that are
reported. If so, TSA may be able to
interrupt similar events at other
locations. In addition, TSA can
determine if it should intensify
inspections that focus on particular
areas or activities.
b. Scope of the Reporting Requirements
Comments: The National Industrial
Transportation League questioned the
extent to which the reporting
requirements would apply to a rail
hazardous material shipper or receiver
with a very large facility. The League
asked if TSA intends to require a
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regulated entity to report any of the
enumerated incidents anywhere in its
facility, even if the incident has no
relationship to or impact on the
facility’s rail operations.
TSA Response: TSA does not expect
shipping or receiving facilities in an
HTUA to report incidents that bear no
relationship to areas of the facility that
are related to the designated rail secure
area, rail shipments, or receipt of the
hazardous materials covered by this
regulation. However, TSA expects that
facility owners will report suspicious
incidents outside the scope of this rule
to other Federal, State, or local
authorities, as appropriate or required
by those other authorities.
2. Time and Method of Reporting
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a. When must reports be made?
Comments: TSA received many
comments about the proposed
requirement to report significant
security concerns ‘‘immediately,’’
particularly in the context of 911
notifications. Commenters asked TSA to
define ‘‘immediately.’’ Several
commenters requested that TSA clarify
that the new reporting requirement does
not take precedence over ‘‘first calls’’ to
local authorities (that is, 911) for events
requiring police, fire, or emergency
medical support. A chemical company
said that, for practical purposes,
‘‘immediate’’ notification of TSA would
follow notification of local first
responders via 911. A trade association
said that the rule should emphasize that
local authorities are to be notified
simultaneously because local authorities
near the plant site are in the best
position to act quickly to mitigate and
reduce the consequences of a real threat.
Similarly, one transit authority said
that the requirement for ‘‘immediate’’
reporting would burden the RSC and
other supervisory security personnel
during the resolution of incidents. At
such a crucial time, the RSC and other
security personnel should focus on safe
and secure resolution of the incident. A
transit authority suggested that TSA
change the reporting timeframe from
‘‘immediately’’ to monthly or bi-weekly
reporting.
Two State DOTs said that the
proposed rule fails to establish a
timeframe for reporting potential threats
and significant security concerns or
specifically identify the role of the State
oversight agency in the reporting
process.
Several commenters offered suggested
definitions of the term ‘‘immediately.’’
A trade association requested that TSA
allow enough time to determine
whether a notification is warranted. The
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association pointed out that the current
DOT/PHMSA regulation (49 CFR
171.15) defines immediate notice to
mean as soon as practical, but no later
than 12 hours, and suggested that TSA
incorporate similar language into the
final rule. Another trade association
noted that PHMSA’s incident reporting
requirements use the phrase ‘‘at the
earliest practicable moment’’ to describe
‘‘immediate’’ and recommended that
TSA use the same terminology. See 49
CFR 171.15 (which requires notice ‘‘as
soon as practical but no later than 12
hours after the occurrence of [the]
incident.’’).
TSA Response: TSA plays a crucial
role in coordinating the Federal
response to threats to transportation
security. The immediate reporting of a
potential threat, a security incident, or
a significant security concern is integral
to TSA’s ability to carry out this
function successfully. Prompt
notification enables TSA to help
coordinate the Federal response,
including actions to be taken at the State
and local levels, and provides TSA with
the situational awareness needed to
make the appropriate assessments on
the National and local levels.
TSA recognizes that, in some cases,
notifying the local first responders to
address a threat or consequences in the
immediate aftermath of an incident
takes precedence over notifying TSA
because of the need to protect lives or
property. In these cases, regulated
entities should notify TSA
simultaneously or as soon as possible
after notifying 911 or other first
responders.
TSA decided not to provide a
definition of ‘‘immediately’’ in this final
rule. TSA considered the DOT/PHMSA
definition but decided that allowing up
to twelve hours to report an incident
may not allow sufficient time for TSA
or other agencies to take necessary
action to address a security concern. As
noted above, TSA recognizes that, in
some cases, reporting to TSA may take
place after the reporting entity alerts law
enforcement and first responders to
ensure public safety and mitigate
damage to property.
b. Content and Method of Reporting
Comments: Many commenters asked
questions with respect to what
information they should include in the
reports and how and to whom they
should report the information. A
technology vendor said that its ‘‘off-theshelf’’ product could be configured with
sensors to detect and report tampering
with rail cars and assist in reporting
significant safety concerns.
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TSA Response: With respect to
content, the reports should include all
the information required in
§ 1580.105(d) and § 1580.203(d).
Passenger railroad carriers and rail
transit systems should refer to
§ 1580.203, and freight railroad carriers
and facilities that ship or receive
hazardous materials covered by the rule
should refer to § 1580.105. With respect
to the method of identifying the
information to report, the rule does not
require the use of specific products or
methodologies. To help identify
significant security concerns in a
manner that meets this rule’s
performance standards, the covered
entities may elect to use any variety of
technological products.
3. Coordination With Other Reporting
Requirements
Comments: TSA received numerous
comments about the interrelationship
between the reporting requirements of
this rule and the reporting that occurs
in response to other regulatory programs
or other procedures. Commenters urged
TSA to increase coordination and
eliminate unnecessary duplication. For
example, one trade association said that
certain facilities are currently reporting
significant security concerns to the FBI,
local authorities, and the Coast Guard.
The association said that TSA should
use these existing reports to gather
information rather than to create an
additional reporting requirement. The
association suggested that if TSA
maintains this reporting requirement in
the final rule, it should only apply to
the certain hazardous materials
determined to pose a higher security
risk (such as PIH, explosives, and
radioactive materials).
Several commenters wrote about the
relationship between the proposed
reporting requirement and FTA’s
reporting requirement in 49 CFR 659.33,
asking TSA to clarify the role of State
oversight agencies in the reporting
process. Some State DOTs said that the
proposed reporting would partially
duplicate the reporting requirements of
the State oversight program, which
would force rail systems to develop
multiple sets of procedures and
processes.
Commenters suggested the following
options for coordinating or merging the
proposed reporting requirement with
similar existing requirements:
• Create a centralized or ‘‘one stop’’
reporting process for stakeholders.
• Avoid any ‘‘excessive’’ duplication
between the safety oversight and rail
security programs.
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• Minimize redundant reporting and
ensure there is coordination of FRA,
NTSB, and TSA reporting requirements.
• Make the proposed reporting
requirement parallel to the existing
requirements (or vice versa).
• Allow the reporting to other
jurisdictional law enforcement agencies
to meet the requirement of reporting to
TSA.
• Allow reporting to the State
oversight agency to fulfill TSA’s
requirement.
• Make the proposed reporting
requirement more consistent with
posting to the public transportation
portion of the Homeland Security
Information Network (HSIN).
• Modify the reporting requirements
for the National Transit Database to
support TSA’s needs.
• Require that covered entities send
reports to the National Response Center
as the primary and sole reporting center
for the purposes of this section and
develop a mechanism for TSA to receive
reports of significant security concerns
from the National Response Center.
• Include language in the final rule to
help regulated entities prioritize all of
the notifications that they are required
to make.
TSA Response: TSA needs
information immediately on potential
threats, suspicious activities, and
security incidents for the purposes of
comprehensive intelligence analysis,
threat assessment, and allocation of
security resources. Covered entities
must report security concerns to the
Freedom Center. The Freedom Center
maintains communications networks
with other Federal operations centers,
such as DOT’s Crisis Management
Center, to convey reported security
concerns to interested entities
throughout the Federal government.
The reports submitted to State
oversight agencies under 49 CFR 659.33
will not satisfy the requirements of this
rule. Reports to the oversight agencies
meet a more general need for situational
awareness, particularly pertaining to
safety conditions. The required
reporting under this final rule and the
reporting under 49 CFR 659.33 do not
overlap extensively. Where they do
overlap, TSA would expect that
passenger railroad carriers and rail
transit systems would follow procedures
for reporting to TSA as well as to the
State agencies.
TSA recognizes that entities regulated
by both the Coast Guard and TSA may
be required to report the same security
concern to the National Response Center
and the Freedom Center. However, in
this final rule, TSA is requiring
reporting to the Freedom Center for all
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rail-related security issues to facilitate
the continued development of a
centralized surface transportation
security operations center and the
development of rail specific
intelligence. Moreover, obtaining
reports indirectly from the National
Response Center, the States, or other
third parties might delay a needed
response or may not contain adequate
information for TSA’s purposes.
4. Reportable Events
Comments: Many commenters said
that TSA’s definition of reportable
events is too broad and should be more
narrowly focused. Several comments
from transit authorities said that the
proposed reporting requirements would
impose a substantial burden on transit
systems and even on TSA itself and that
the scope of the requirement should be
narrowed. They also asserted that the
proposed requirements would result in
an overload of information that would
divert attention from truly significant
threats and dilute the effectiveness of
the reporting system. Other commenters
asked for a more specific description of
‘‘suspicious’’ activities or a list of
examples that would, or would not, be
considered ‘‘suspicious.’’ A commenter
identified ‘‘youth vandalism’’ as an
incident that should not be reportable.
Several commenters offered specific
suggestions for which activities or
incidents should be considered
reportable. Some commenters suggested
that the requirement focus on activities
that pose a security threat to rail cars
carrying covered hazardous materials or
the materials covered by this regulation.
An industry association noted that the
events that must be reported to DOT are
very specific (such as a person being
killed or requiring hospitalization) and
suggested that TSA’s reportable events
be more specific and similar to DOT’s.
One commenter suggested that TSA
only require reporting of certain specific
crimes. Another commenter made
specific suggestions regarding the
categories of events that should be
reported to TSA.
TSA Response: TSA is aware that the
proposed reporting requirements are
broad and, in some respects—such as
the requirement to report ‘‘suspicious’’
activities—are not as specific as the
regulated community would like.
However, TSA has not changed the
reporting requirements in this final rule
for the reasons described below.
The reporting requirements are
intended to mitigate the risk to rail
transportation systems. These
requirements will provide information
to the appropriate authorities, allowing
their timely intervention to an attack or
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its preparation. Detecting activities that
may compromise transportation security
entails piecing together seemingly
unrelated incidents or observations and
conducting analysis in context with
information from other sources.
However, as the threat environment is
dynamic and indicators of incident
planning and preparation can change,
TSA cannot provide a threshold for
reportable events or a specific
definition.
TSA has decided not to accept
commenters’ suggestions to limit the
scope of the reporting requirement.
Limiting the scope to the DOT reporting
requirements, which are intended to
identify safety concerns, would reduce
the data that TSA could use for trend
analysis to anticipate and prevent an
attack. Limiting incident reporting to
only PIH materials, explosives in
Classes 1.1, 1.2, and 1.3, or highway
route-controlled quantities of
radioactive materials would also limit
TSA’s domain awareness.
Comments: A State DOT expressed
the concern that transit agencies may
respond to the proposed requirement by
understating or omitting the annual
crime statistics they provide to the State
DOT to avoid the proposed reporting
requirement. Two State DOTs asked
what would happen to a rail transit
agency that failed to notice or report a
potential threat.
TSA Response: TSA does not believe
that transit agencies or others within the
scope of TSA’s reporting requirements
would fail to report crimes in order to
avoid the reporting requirements of this
final rule. If a covered entity failed to
report a potential threat in accordance
with this rule, TSA would consider
taking enforcement action. TSA would
exercise enforcement discretion and
would consider factors such as the type
of threat and its significance, the
procedures the covered party had in
place to identify and report such threats,
and other factors as appropriate.
5. Training
Comments: Several commenters
requested that TSA develop training
programs to assist employees in
recognizing events that could raise
security concerns and should be
reported. One State DOT commented
that, for the reporting system to work
successfully there needs to be a
comprehensive and ongoing training
program for employees of passenger
railroad carriers and rail transit systems.
The agency requested that TSA provide
a rail-specific training package for
reporting potential threats and
significant rail security concerns.
Similarly, a labor union asserted that
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front-line workers will be in the best
position to identify many of the
potential threats or significant security
concerns listed in the proposed rule.
The union said that reporting will
simply not be as robust or as complete
as envisioned by TSA without
mandatory security training for rail
employees.
A chemical company noted that the
proposed rule makes several references
to IEDs. The company said that if these
devices are a realistic threat to U.S.
facilities, then the regulated community
could benefit from specialized training,
provided by TSA or other government
agencies, on recognizing IEDs.
Some commenters requested that TSA
provide training to RSCs on what
constitutes a reportable event for
purposes of reporting significant
security concerns.
TSA Response: TSA recognizes that
well-trained employees will enhance
security. In the passenger rail/rail transit
context, TSA has undertaken an effort to
elevate the level of training generally,
bring greater consistency, and assist
transit agencies in arranging and
implementing training programs by
developing and disseminating a
voluntary Mass Transit Security
Training Program; this training program
is available on TSA’s Web site.38 The
program identifies specific types of
training at basic and follow-on levels for
particular categories of transit
employees. Basic categories for frontline employees include security
awareness, behavior recognition, and
immediate emergency response. The
training program presents the
information in a readily understandable
matrix, and provides effective guidance
to passenger rail and transit agency
officials on how to build and implement
training programs for employees
working in their systems. The Transit
Security Grant Program, administered
by DHS and TSA to advance security
enhancement efforts in passenger rail
and mass transit systems, affords the
agencies the option of this pre-packaged
training program with grant funding.
Agencies taking advantage of this
program have their grant applications
expedited for review and approval. This
initiative aims to expand significantly
the volume and quality of training for
passenger rail and mass transit
employees. Information on this
initiative is available on TSA’s Web
site.39
38 See https://www.tsa.gov/assets/xls/
FY2007_TSGP_Training_Cost_Matrix.xls.
39 See https://www.tsa.gov/assets/pdf/
TSGP_Training_IB243.pdf.
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At this time, the rule does not
mandate specific training for the
reporting of significant security
concerns. It specifies the type of
incidents that covered entities must
report. TSA will work with covered
parties to comply with this final rule. In
addition, TSA notes that current DOT
regulations will aid in providing an
adequate basis to identify suspicious
incidents. Current DOT regulations
require employers to provide security
awareness training for most hazardous
materials employees. See 49 CFR
172.704. The security awareness
training must provide employees with
an awareness of security risks associated
with hazardous materials transportation
and methods to enhance transportation
security. This training must also include
a component on how to recognize and
respond to possible security threats.
TSA recognizes that not all reporting
will be accomplished by hazardous
materials employees, however, TSA also
recognizes that almost all employers
provide their operational employees
with some security awareness training.
This training will enhance the quality of
the information that covered entities
report to TSA and will improve
reporting levels. Additionally, TSA is
developing a CD that will instruct
workers on the appearance of an IED
and how to locate an IED on a rail car.
The CD will also include a training
module on security awareness. TSA will
provide the CD to covered parties prior
to the effective date of this final rule via
a mass mailing and will also post a
request form on TSA’s Web site.
We note that some commenters made
reference to TSA providing training for
RSCs. This final rule (49 CFR 1580.105
and 1580.203) does not assign the
reporting task to the RSC, and TSA does
not expect all reports of significant
security concerns to come from the RSC.
Reports may be made by individuals
who are not employed at the corporate
level of the regulated party.
6. Sharing of Information Received
Comments: A commenter asked
whether TSA intends to share incident
and trend analysis with anyone. Several
governmental authorities requested that
TSA transmit reports of significant
security concerns to states and
localities, including first responders, in
a timely manner.
TSA Response: TSA may share
reports of security concerns with
Federal, State, or local law enforcement
or other officials, for further analysis or
for action consistent with those
agencies’ authorities.
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7. Other Comments on Reporting
Significant Security Concerns
Comments: One commenter asked
how TSA will respond to and
investigate reportable events.
TSA Response: If a determination is
made that a reported event warrants a
response or further investigation, TSA
will work with the RSC, the local
Transportation Security Inspectors
(Surface), and other Federal, State, and
local authorities, if warranted, to take
appropriate action.
Comment: A commenter asked
whether the information reported would
receive SSI protection.
TSA Response: Under 49 CFR
1520.5(b)(7) (threat information), reports
of significant security concerns would
be considered SSI once TSA receives
them.
F. Sensitive Security Information
1. Extent of Protection of Information as
SSI
Comments: Several commenters
suggested that the final rule should
extend SSI protection to information
that covered entities must submit to
TSA under this rule, including location
and shipping information for certain rail
cars submitted in accordance with
§ 1580.103 and reports of significant
security concerns submitted in
accordance with § 1580.105 or
§ 1580.203.
TSA Response: The location and
shipping information, which carriers are
required to maintain and submit, would
not be considered SSI. However, once
DHS or DOT receives the location and
shipping information from the railroad
carrier and includes it as part of a
broader analysis of the location of rail
cars subject to the location reporting
requirement, the compilation, not the
raw data, will constitute SSI under
revised § 1520.5(b)(12). Such
compilations require greater protection
than the information maintained by the
railroad carrier for its business
purposes, because the release of a
compilation of location and shipping
information to the public would
increase the risk that the compiled
information could be used to identify
vulnerabilities or to plan an attack on
critical rail assets. In the NPRM, TSA
proposed to revise § 1520.5(b)(12),
relating to information concerning
infrastructure assets, to include rail
transportation systems. TSA has
included this provision in the final rule.
Consistent with the provision, TSA
considers lists of critical infrastructure
assets prepared by DHS or DOT,
including lists of rail cars containing
covered materials, to be SSI.
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With respect to reports of significant
security concerns submitted under
§ 1580.105 or § 1580.203, such reports
would constitute SSI under existing
§ 1520.5(b)(7) (threat information) once
the Federal government receives them.
2. Access to Sensitive Security
Information for State Oversight Agency
or Designated Local or Tribal Officials
Comments: Many commenters
expressed concern with the proposed
amendment to 49 CFR part 1520 to
protect information related to rail transit
systems and to require rail transit
systems to restrict the distribution,
disclosure, and availability of SSI. Some
said that the proposed rule needs to
ensure that State oversight agencies
responsible for establishing standards
for rail safety and security programs for
a State’s rail fixed-guideway systems
under 49 CFR part 659 will have access
to SSI. Some were concerned about
limitations on the availability of
information, because they felt that State
and local law enforcement and
emergency response personnel need SSI
for emergency planning. One
commenter requested that TSA specify
the rights of State and local
governments to access SSI.
TSA Response: TSA agrees that State,
local, and tribal governments, including
State oversight agencies, should have
access to SSI generated under this
regulation for which they have a need
to know. SSI may not be publicly
disclosed pursuant to any State, local, or
tribal law. This is consistent with DHS
policy and will allow States, localities,
and tribal employees, contractors, and
grantees to have access to SSI if the
information is needed for the
performance of official duties on behalf
of or in defense of the interests of
Federal, State, local, or tribal
government, or for performance of the
contract or grant. Accordingly, TSA is
adding State, local, and tribal agencies,
which would include State oversight
agencies, to the list of persons with a
‘‘need to know’’ under § 1520.11. This
amendment does not authorize a State,
local, or tribal agency to access SSI as
a general matter. The agency must have
a ‘‘need to know’’ specific pieces of SSI.
SSI may not be publicly disclosed
pursuant to any State, local, or tribal
law.
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3. Security Clearance
Comments: One commenter noted
that most program administrators at the
State oversight agencies do not have
official ‘‘security clearance’’
authorizations and may therefore not
have access to information needed to
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carry out security-related
responsibilities.
TSA Response: TSA has revised
§ 1520.11 to allow access to SSI by State
oversight agency employees with a need
to know without requiring them to have
security clearances. Under the SSI
regulation, the Federal government does
not ordinarily clear covered persons for
receipt of classified national security
information in order to receive access to
SSI. TSA notes that security clearances
would be required for access to
information that is classified pursuant
to Executive Order (E.O.) 13292 of
March 25, 2003 (68 FR 15315. March 28,
2003); however, SSI does not fall within
the scope of the E.O.
4. Inspection Information
Comments: One commenter requested
that TSA protect information gathered
by TSA inspectors as SSI.
TSA Response: This final rule will
protect pertinent inspection-related
security information as SSI under
§ 1520.5(b)(6), as amended by this
rulemaking.
5. Simplified Marking
Comments: Another commenter
suggested that TSA simplify the SSI
marking requirements, so that
documents need not be marked on every
page.
TSA Response: This issue is beyond
the scope of the Rail Transportation
Security NPRM. TSA will consider
revising the marking requirements of the
SSI regulation in a future rulemaking.
6. Broadening the Scope of Sensitive
Security Information
Comments: Many commenters
supported the provisions protecting the
disclosure of SSI in rail transportation.
Others opposed expanding the scope of
SSI, concerned that use of an SSI
designation could withhold too much
information from the public. They
expressed concern that the proposed
rule contained no restrictions on who
may declare information SSI, or what
information may be included in reports
automatically accepted as SSI, and that
there were no time limits on how long
information protected as SSI remains
SSI. These commenters believed that
TSA should amend the SSI regulation to
make it clear that records relating to the
general safety of the rail and transit
networks, as well as the terminals and
other facilities, and records of their
maintenance are not SSI. Other
commenters suggested that TSA balance
any need to protect route information
against the need to disclose to States,
cities, counties, Congress, and the
public general information about the
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72147
quantities and types of materials that are
being shipped through an area. Other
commenters urged that the definition of
SSI be as narrow as possible.
TSA Response: TSA is fully
committed to disclosing information to
the public where appropriate unless
such disclosure is prohibited from
disclosure under law or would
compromise transportation security.
TSA does not intend to protect
information as SSI that would not be
detrimental to transportation security if
publicly disclosed. SSI should not be
released to individuals who do not have
a need to know. Records relating to the
general safety of railroad and transit
systems, as well as related yards,
terminals and other facilities, and
records of their maintenance, are not
SSI unless they overlap with or are
inextricably commingled with security
information that falls within the specific
categories of SSI information in the SSI
regulation. This consists of information
that terrorists or others could use to the
detriment of transportation or national
security. Section 1520.15(b) allows for
the public release of all information that
is not SSI within records that contain
both SSI and non-SSI information.
The SSI regulation defines what is
considered SSI and imposes certain SSI
handling requirements on a ‘‘covered
person’’ with a need to know; only
‘‘covered persons’’ must mark
information as SSI under the regulation.
7. Protection of SSI in Civil Litigation
Comments: Several commenters
suggested that the SSI provisions should
include the protections afforded CVI
under DHS’s CFATS rule, in light of
recent Congressional requirements on
the disclosure or sharing of SSI in civil
litigation and the protection for SSI that
is over three years old.
TSA Response: Last year, DHS issued
the CFATS interim final rule on
chemical facility security. Pursuant to
its statutory mandate, the CFATS rule
includes provisions for protecting CVI.
Most rail SSI would not also qualify as
CVI. Without statutory direction to do
so, TSA is not authorized to expand the
SSI regulation to include the protections
afforded CVI.
The commenter is correct that
Congress recently enacted legislation
regarding SSI in civil litigation, but the
new statute is narrow in scope. Section
525(d) of the 2007 DHS Appropriations
Act grants civil litigants or their counsel
who do not have a need to know under
49 CFR part 1520 access to specific SSI
in Federal civil district court
proceedings if certain requirements are
met. This provision requires the
controlled sharing in civil litigation in
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Federal district courts of relevant SSI for
which a litigant demonstrates a
substantial need after successful
completion of a security threat
assessment, and under a protective
order entered by the court that protects
the SSI from unauthorized or
unnecessary disclosure and specifies the
terms and conditions of access.
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8. Coordination With Other Information
Protection Programs
Comments: Several commenters were
concerned that the recent DHS rule
governing CVI means that regulated
entities may soon manage three
categories of protected homeland
security information: SSI, Protected
Critical Infrastructure Information (PCII)
in 6 CFR part 29, and CVI in 6 CFR part
27. Each has unique elements and
regulatory requirements. Commenters
suggested that TSA consider adopting
regulations that would harmonize and
clarify information protection
procedures for government and the
private sector.
Similarly, the NRC has pointed out
that some information that would be SSI
under this rule would also fall within
the scope of their Safeguards
Information (SGI) program under § 147
of the Atomic Energy Act of 1954, as
amended. SGI must be protected in
accordance with the requirements in 10
CFR part 73.
TSA Response: The requirements of
each of these information-management
programs are specific to each respective
program and relate to particular
statutory and regulatory provisions. It is
beyond the scope of this rulemaking and
of TSA’s authorities to amend the
regulations governing Federal programs
other than SSI or to make changes to the
SSI regulation that exceed the scope of
the Rail Transportation Security NPRM.
With respect to information that is both
SSI and CVI, PCII, or SGI, such
information must be marked and
protected in accordance with all
applicable regulations. TSA will work
closely with DHS and other government
agencies to make sure that the
requirements of the CVI, PCII, SGI, and
SSI programs are complementary, not
inconsistent, with each other.
9. Protection for Personal Information
Comments: One commenter
recommended that TSA extend SSI
protection to the personal information
of rail transportation workers and
employees of rail hazardous materials
shippers and receivers, including RSCs
appointed pursuant to this rule.
TSA Response: TSA will not normally
share the personal information of RSCs
provided to TSA under this rule with
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organizations external to DHS. However,
if appropriate, TSA may share the
information with other Federal, State,
local, or tribal government agencies,
including DOT, in accordance with
applicable requirements, such as the
Privacy Act and the Freedom of
Information Act. To the extent that TSA
shares the information with non-Federal
entities, such as State, local, or tribal
agencies, TSA expects that information
will be safeguarded in accordance with
procedures designed to protect such
information. Accordingly, TSA has
decided that it is not necessary to
expand the protections afforded to
personal information by further
amending the SSI regulation at this
time. TSA notes that lists of individuals
with unescorted access to rail secure
areas, if maintained, will be considered
SSI under § 1520.5(b)(11)(i)(A). This
final rule adopts the proposed
amendment of that provision to include
lists of individuals with unescorted
access to rail secure areas.
10. Expansion of Sensitive Security
Information to Other Modes of
Transportation Besides Rail
Comments: One commenter believed
that the paragraphs in § 1520.5(b)
should include motor carriers, motor
carrier freight terminals, and motor
carrier infrastructure assets.
TSA Response: The changes to the SSI
regulation in this final rule are focused
on rail transportation rather than on
other modes of transportation. Any
changes concerning other modes of
transportation would be outside the
scope of this rulemaking. In the future,
TSA may consider changes in the SSI
regulation relating to motor carriers.
G. Chain of Custody and Control
1. Applicability
Comments: A municipality supported
the chain of custody provision and
recommended that TSA extend it to the
carriage of all hazardous materials.
Another commenter suggested that the
rule is vague and does not address
certain kinds of terrorist attacks (such as
placing an explosive device under rail
tracks or under elevated rail in a major
city) and does not mandate any
protective distances.
TSA Response: TSA is not expanding
the proposed list of hazardous materials
to which the requirements of part 1580
apply. While we recognize that all
substances defined by DOT as
‘‘hazardous materials’’ are ‘‘capable of
posing an unreasonable risk to health,
safety, and property when transported
in commerce’’ (see 49 CFR 171.8), not
all hazardous materials are subject to
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the same potential for terrorists to
exploit them to cause significant loss of
life, transportation system disruption, or
economic disruption. At this time, TSA
has decided not to expand the list of
materials to which this rule applies.
Comments: A commenter asked why
TSA did not propose to apply the chain
of custody requirements to transfers
occurring between train crews
employed by the same carrier.
TSA Response: TSA applied a riskbased approach in crafting the
requirements of this final rule, and the
greatest risk to rail cars today is when
they are standing still unattended in an
HTUA or prior to entering an HTUA.
While TSA acknowledges that there is a
security vulnerability any time a
railroad carrier leaves rail cars (and
sometimes entire trains) unattended,
cars and trains are much more
frequently left unattended when
awaiting interchange to another carrier
or at the point of initial shipment and
delivery. TSA may consider applying
the chain of custody requirements to
intra-carrier transfers in a later
rulemaking.
Comments: Two commenters opposed
the exclusion of facilities owned or
operated by the Federal government
from the definitions for receivers and
shippers, due to possible dangers of
explosives and nuclear materials.
TSA Response: Although facilities
owned or operated by the Federal
government, such as any facility owned
or operated by the Department of
Defense (DOD) or the Department of
Energy, are not subject to the
requirements of this final rule, these
facilities are the responsibility of other
Federal agencies. In general, a Federal
agency that ships or receives the
materials described in § 1580.100 would
be a secure facility operating under
policies or regulations that provide a
level of security comparable to the
requirements of this final rule. For
example, DOD shipments of explosives
are frequently contracted as ‘‘rail
surveillance’’ shipments, meaning that
railroad police or their agents attend,
inspect, and monitor these shipments
while they are in transportation.
Similarly, Federal agents track and
monitor shipments of high-level nuclear
materials while in transportation.
Comments: If operations of two or
more companies are co-located, would
only companies that ship designated
materials be subject to § 1580.107?
TSA Response: If a company is colocated at the same facility as shippers
or receivers covered by the chain of
custody requirements but does not
engage in the transportation by rail of
the materials described in § 1580.100,
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that company does not have to comply
with the chain of custody and control
procedures in § 1580.107.
2. Attendance Requirement
Comments: Several commenters
raised questions about compliance with
the attendance requirement. Some
commenters asked for clarification on
the number of rail cars that one
individual can attend. One commenter
asked if a representative of the first
railroad carrier must fully observe the
transfer of physical custody of the rail
car before turning it over to the second
carrier, or if unmanned secure
enclosures may be used.
TSA Response: Although the
preamble to the NPRM stated that ‘‘not
left unattended’’ meant that the
employee or authorized representative
must have ‘‘an unobstructed view of the
rail car prior to the delivering carrier
leaving the interchange point’’ (71 FR at
76873), TSA has reconsidered this
interpretation. For purposes of
paragraphs (c) and (d) of 49 CFR
1580.107, the requirement ‘‘to ensure
that the rail car is not left unattended at
any time during the physical transfer of
custody’’ means that the regulated party
has an employee or authorized
representative physically located on
site, in reasonable proximity to the rail
car, who can reasonably detect
unauthorized access or unlawful
activity near the rail car and is capable
of promptly responding to such
unauthorized access or unlawful
activity (such as by immediately
contacting law enforcement or other
authorities to investigate), and
immediately responds to unauthorized
access or activity at or near the rail car
either personally or by contacting law
enforcement or other authorities. See 49
CFR 1580.107(k)(1).
In the case of rail cars that have been
decoupled from locomotive power and
are therefore not in a train, reasonable
proximity is best understood to mean
that an employee or designee of the
responsible party has either the rail car
or the area surrounding the rail car,
including paths of access to the rail car,
within his or her field of vision. For rail
cars that are in a train, the concept of
reasonable proximity means that the
train crewmembers are located on or
near the train; although the train
crewmembers may be located at the
front of the train and physically unable
to visually observe every rail car, the
security risk is mitigated by the fact that
the train is subject to unpredictable
movement at any time. Determining
what is a reasonable proximity is not
calculated by measuring a precise
distance or designating a particular
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location, but rather by achieving a
reasonable expectation that any
unlawful interference with the rail car
will be promptly detected. As long as
the individual performing the
monitoring, whether on the ground or
located in an on-site control room
watching via a surveillance system, can
satisfy this performance standard, there
is no limit on the number of cars that
he or she can attend. Accordingly, TSA
does not expect the first railroad carrier
to assign someone to literally observe
each car 100 percent of the time during
the physical transfer of custody.
TSA also does not want an employee
or authorized representative of the
regulated party to place his or her safety
or life in jeopardy. TSA recognizes that
a reasonable response to unauthorized
access or unlawful activity may be to
immediately contact law enforcement
rather than approach an individual
directly.
Comments: A municipality
commented that TSA should provide
clarification on whether rail switching
yards must be converted into secure
areas. As an example, it referenced a
yard where trains are broken up into
cars or blocks of cars and built into new
trains.
TSA Response: Although the
commenter uses the words ‘‘secure
areas’’ in the context of asking whether
rail yards fall under the ‘‘secure
location’’ requirement in the definition
of ‘‘rail secure area,’’ the commenter’s
question appears to concern the carrier
to carrier transfer requirements in 49
CFR 1580.107(c) and (d).40 Under 49
CFR 1580.107, TSA requires attendance
of the rail car during carrier to carrier
physical transfers of custody. The
attendance requirement only applies in
a rail switching yard when one carrier
interchanges a covered rail car with
another carrier in such a yard. TSA
anticipates this happening most often
when cars enter and leave the yard, not
while they are within the yard being
switched. Movements within a yard
(including many classification yards)
that are transfers solely between the
same railroad carrier are not covered by
49 CFR 1580.107.
Comments: An association
representing short line and regional
railroads commented that TSA should
provide clarification on when the
transfer is complete under the chain of
40 As defined in 49 CFR 1580.3, a ‘‘rail secure
area’’ is a secure location designated by a rail
hazardous materials shipper or rail hazardous
materials receiver where security-related pretransportation or transportation functions are
performed or rail cars containing the covered
hazardous materials are prepared, loaded, stored,
and/or unloaded.
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72149
custody and control requirements and
recommended that TSA consider the
transfer complete once the rail car is
uncoupled from the delivering railroad
carrier.
TSA Response: TSA agrees that the
transfer is complete when the car is
uncoupled from the train, and all
documentation requirements are met
either in writing or electronically.
Comments: Some commenters
suggested that TSA amend paragraph
(f)(1) of 49 CFR 1580.107 to prohibit
unattended pick up and delivery rather
than using the term ‘‘positive control.’’
TSA Response: The language in this
final rule remains unchanged from the
NPRM. However, TSA has added a new
paragraph (k)(2) to 49 CFR 1580.107 to
explain the term ‘‘maintains positive
control.’’
By requiring that either the rail
hazardous materials receiver in an
HTUA or railroad carrier ‘‘maintains
positive control’’ of the rail car during
the physical transfer of custody of the
rail car, TSA intends that the receiver
communicate with the railroad carrier
and work in close cooperation to ensure
the security of the rail car during the
transfer process. Since ‘‘attending the
car’’ is only one component of the
overall process of ‘‘controlling the car’’
during the transfer, the regulatory text
requires one or both parties to be
responsible for positive control.
Comments: A railroad carrier
commenter indicated that a rail car is
attended if a train crewmember is
present. Several rail labor unions urged
TSA to specify that a railroad carrier
may not assign a train crewmember for
purposes of compliance with the
attendance requirements because of the
high risk of injury or death in the event
of a terrorist incident. One commenter
stressed that train conductors already
have numerous safety and other
responsibilities, and are not trained as
security personnel. Another commenter
noted that 49 CFR 1580.107 does not
have a training requirement, and
requested that TSA add a provision to
specifically address the skill set and
qualifications necessary for conducting
inspections required under 49 CFR
1580.107(a)(1), (b), (c), and (d).
TSA Response: As noted in the NPRM
(71 FR at 76873), TSA intends that
railroad carriers have maximum
flexibility in adopting and
implementing procedures to meet the
car attendance performance standard.
Accordingly, a railroad carrier’s option
to use any category of individuals,
including train crewmembers, to carry
out the job function of attending rail
cars remains unchanged from the
proposed rule. In crafting its
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procedures, TSA expects a railroad
carrier to consider personal safety and
security issues and competing job
responsibilities of the potential
individuals who will serve as
attendants, as well as compliance with
all other applicable laws, regulations,
and contracts.
TSA is not prescribing a specific
training requirement for attendant
functions in this final rule, nor is it
establishing minimum qualification
standards for the employees who must
attend the rail cars. However, in order
to comply, the railroad carrier must
ensure that persons who carry out this
rule know what they must do. TSA will
soon issue a DVD training video to
freight railroad carriers and rail
hazardous materials facilities on
identifying IEDs and signs of rail car
tampering and on security awareness.
TSA is mindful of employee concerns
about personal safety. We do not expect
that railroad employees will necessarily
confront suspicious persons directly.
For instance, an employee may summon
law enforcement personnel to confront
a suspicious individual or respond to a
report of a possible IED.
Comments: Some commenters were
concerned that the chain of custody
provisions would be burdensome on
small hazardous materials shippers and
receivers in high threat urban areas that
did not operate 24 hours a day, 7 days
a week. Consequently, these facilities
might not have staff to comply with the
chain of custody provisions of this final
rule when a carrier arrived to transfer a
rail car.
TSA Response: TSA recognizes that a
rail hazardous materials receiver located
in an HTUA that is not open for
business 24-hours a day, seven days a
week, may incur some additional cost to
meet the requirements in this final rule.
TSA has accounted for this cost in the
Regulatory Impact Assessment (RIA).
Some regulated parties may satisfy the
attendance requirement by employing
someone only as long as necessary to
transfer the car from the delivering
railroad carrier, to document the
transfer of custody, and to ensure that
it is moved into a rail secure area. Once
the rail car is placed in a rail secure area
at the receiving facility, the rail car no
longer needs to be attended.
3. Electronic Monitoring of Rail Cars
Comments: One group of commenters
asked how technology can be used to
comply with 49 CFR 1580.107. Several
comments supported the use of
technology to satisfy the chain of
custody and control requirements,
noting that electronic devices may offer
better security benefits through their
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enhanced methods to track and control
products while in transit. A trade
association representing chlor-alkali
producers worldwide (as well as
packagers, distributors, users, and
suppliers) asked TSA to clarify that
‘‘positive control’’ can be achieved
through electronic communication.
TSA Response: TSA supports the use
of technology to the extent that covered
entities can use it to achieve the security
standards of 49 CFR 1580.107. TSA
recognizes that as existing and future
technologies become commercially
available, they could provide equal, or
possibly superior, monitoring capability
of rail cars. As noted, the attendance
standard is that of a regulated party’s
reasonable expectation that it has the
ability to detect unlawful interference
with the rail car and properly respond
to a security situation. See 49 CFR
1580.107(k)(1). As part of ‘‘maintaining
positive control’’ of the rail car,
attendance must occur until the
receiving party has accepted physical
custody. In this final rule, covered
entities may use visual monitoring
technology to comply with the
attendance and transfer of physical
custody requirements, but only if the
person attending the car(s) or train is
physically present on-site at the facility
where the attendance is required.41
The technology selected may include,
but is not limited to, intelligent video,
passive intrusion detection, perimeter
alarms, or advanced video surveillance
systems.42 Whatever system or method
is selected, the regulated party is
responsible for ensuring that the process
employed provides an operationally
effective means to meet the regulatory
requirement. Automatic Equipment
Identification (AEI) readers cannot be
used to meet the provisions of 49 CFR
1580.107, because they cannot be used
to monitor or control access to a car.
4. Rail Hazardous Materials Receivers
Comments: Some commenters
requested that TSA assist facilities in
determining whether they are within an
HTUA and therefore subject to certain
chain of custody and control provisions.
TSA Response: Before the effective
date of this final rule, TSA will provide
41 Accordingly, a regulated party that has an onsite employee (or authorized representative) who
can use electronic monitoring to (for example)
promptly notify law enforcement personnel to
investigate the presence of a trespasser near a rail
car would be in full compliance with the
attendance requirement.
42 TSA recognizes that the development of
systems and technologies to enhance the physical
security of assets and infrastructure is an evolving
process. TSA does not wish to preclude the use of
advanced technologies that would provide the
regulated parties with additional options for
meeting the requirements of 49 CFR 1580.107.
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on its website maps of each of the 46
HTUAs that TSA will use to inspect for
compliance with the applicable sections
of this regulation. It is important to note
that TSA will provide these maps for
general guidance purposes only. TSA
encourages any regulated party with
questions concerning the applicability
of this final rule to its operations to
contact TSA directly.
Comments: A trade association
commented that TSA should grant an
exception to the chain of custody and
control provisions for receivers located
in an HTUA that receive less than one
tank car per month.
TSA Response: This final rule does
not contain an automatic exemption
from the chain of custody requirements
for rail hazardous materials receivers
located within an HTUA, regardless of
whether they receive very few cars in a
given timeframe. The security risk
posed by receipt of shipments of
Division 1.1, 1.2, and 1.3 explosives,
non-residue quantities of PIH materials,
and highway route controlled quantities
of radioactive materials is significant
even if a rail hazardous materials
facility only receives a single carload
each month. While it is true that the
security risks for the rail transportation
system as a whole increases as the total
number of shipments increase, it is also
true that there is a risk associated with
each carload received. An exemption
from 49 CFR 1580.107 for the specified
hazardous materials in amounts below a
given threshold is not warranted given
the security risks posed by these
materials. However, any receiver located
in an HTUA may request an
exemption 43 from some or all of the
chain of custody requirements of this
final rule if it believes, based upon the
operational characteristics and
geographical location of its facility, that
the potential security risk of its facility
is insufficient to warrant application of
the chain of custody requirements in 49
CFR 1580.107.
Comments: One commenter asked
TSA to clarify that receivers located
outside an HTUA are not required to
satisfy the chain of custody and control
provisions, including attending the
physical hand-off from a railroad
carrier.
TSA Response: Rail hazardous
materials receivers not located within
an HTUA are not subject to any of the
requirements in this final rule.
Comments: A municipality stated that
it is opposed to allowing shippers to
request an exemption under 49 CFR
1580.107(j) if they determine that a
43 For information on the exemption, see 49 CFR
1580.107(j).
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terrorist attack is unlikely at the area
where they forward or receive
hazardous materials. The commenter
stated that such requests for exemption
are likely to be based on cost
considerations, and not necessarily on
objective and knowing assessments that
an area is less vulnerable to terrorist
activity. In addition, once these
locations become and remain
unguarded, they are likely to attract
persons who could take advantage of the
fact that the area is unsecured.
TSA Response: In the case of shippers
of the covered hazardous materials, TSA
agrees with the commenter. As the first
link in the supply chain, and the first
opportunity for unlawful interference
with a rail car, shippers are not allowed
to request an exemption from this
regulation. However, under 49 CFR
1580.107(j), a rail hazardous materials
receiver located within an HTUA can
receive an exemption from the chain of
custody and control requirements if it
shows TSA that the potential risk from
its activities is insufficient to warrant
compliance. TSA will only grant such
an exemption if, after analyzing the
factors relevant to the potential security
risk, it concludes that doing so is in the
public interest and consistent with
transportation security. The factors
include: (1) The quantities and types of
all hazardous materials that the rail
hazardous materials receiver typically
receives or unloads; (2) the receiver’s
geographical location in relationship to
populated areas, which includes both
daytime office building populations and
populations in residential
neighborhoods; (3) the receiver facility’s
immediate proximity to sensitive
populated areas, such as other
businesses (including other hazardous
materials facilities), residential homes
and apartment buildings, elementary
schools, and hospitals; (4) any
information regarding threats to the
facility; and (5) any other circumstances
relevant to that receiver’s activities that
would demonstrate that these activities
present a low security risk.
5. Document Requirement
Comments: Several commenters
requested that TSA clarify whether
electronic data interchange (EDI) may be
used to satisfy the documentation
requirements of this final rule. One
trade association asked whether an AEI
system with readers at agreed
interchange points would satisfy the
documentation requirements. An
association representing Class I
railroads requested clarification on
whether notification on a ‘‘switch list’’
(date and time of delivery), which is
then entered into the carrier’s electronic
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database, meets the documentation
requirement.44
TSA Response: The requirement to
document the transfer of custody
ensures that all parties involved in the
transfer know who is responsible at any
given time; this allows TSA to verify
that freight railroad carriers and rail
hazardous materials facilities are not
engaged in practices that leave certain
hazardous materials rail cars
unattended, and therefore vulnerable to
someone attaching an IED or otherwise
sabotaging the car. The documentation
requirement also assists in locating rail
cars, especially after delivery to the
receiving facility in an HTUA. This final
rule does not specify that a carrier or
facility must use a particular document
to meet this requirement, but does
prescribe certain mandatory information
that carriers and facilities must include.
In this regard, TSA recognizes the
unique operating practices and
considerations of each regulated party,
and anticipates that each party will
meet the performance standard by
adapting existing documents and/or
technology. Regardless of which method
the regulated party uses to comply, TSA
requires that the documentation must
contain information that uniquely
identifies that the rail car was attended
during the transfer of custody. This
information must include the car’s
initial (reporting mark) and number,
identifying data that allows TSA to
determine who in fact attended the rail
car (such as the names or uniquely
identifying employee numbers of the
train crewmembers or rail hazardous
materials facility employees), location of
the transfer (such as the milepost
number, name of the rail yard, or siding
designation), and the date and time
44 For purposes of accounting and reporting, the
Surface Transportation Board (STB) groups freight
railroad carriers into the following three classes:
Class I: Carriers having annual carrier operating
revenues of $250 million or more after applying the
railroad revenue deflator formula.
Class II: Carriers having annual carrier operating
revenues of less than $250 million but in excess of
$20 million after applying the railroad revenue
deflator formula.
Class III: Carriers having annual carrier operating
revenues of $20 million or less after applying the
railroad revenue deflator formula.
See 49 CFR 1201; General Instructions 1–1. The
railroad revenue deflator formula is based on the
Railroad Freight Price Index developed by the
Bureau of Labor Statistics. The formula is as
follows:
Current Year’s Revenues × (1991 Average Index/
Current Year’s Average Index)
The STB is an economic regulatory agency that
Congress charged with the fundamental missions of
resolving railroad rate and service disputes and
reviewing proposed railroad mergers. See ICC
Termination Act of 1995, Pub. L. 104–88, 109 Stat.
803 (December 31, 1995).
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72151
when the transfer was completed. See
new 49 CFR 1580.107(k)(3).
EDI and switch lists may be used to
satisfy the requirement and serve as a
technical representation of a business
conversation between two regulated
parties if they are adapted to sufficiently
document the transfer of physical
custody from one regulated party to the
other and allow TSA to determine who
participated in the transfer and when
and where the transfer took place. TSA
is retaining in the final rule the language
from the proposed rule requiring that
both participants in the transfer create
documentation. Passive AEI readers do
not meet the documentation
requirements of this final rule because
while the passage of a rail car past an
AEI reader would establish the car’s
geographical location at the time of the
reading, it would not generate the
required documentation.
6. Other Issues Concerning Chain of
Custody and Control
Comments: Several members of
Congress questioned the effectiveness of
the proposed rule given the fact that so
few TSA inspectors are available.
TSA Response: TSA has deployed the
100 inspectors provided for by Congress
in the Department of Homeland Security
Appropriations Act for fiscal year 2005
(Pub. L. 108–90). Assigned to 19 field
offices throughout the United States, the
inspectors cover the key rail and mass
transit facilities in their regions. The
program has focused on nationwide
outreach and liaison activities with the
rail industry and initiatives aimed at
enhancing security in rail and mass
transit systems. Inspections for
compliance with this regulation, such as
the chain of custody and control
provision targeting of high risk
interchanges, will focus our inspection
priorities. Other provisions in this final
rule, such as the appointment of a RSC
and the requirement to provide certain
location and shipping information, may
be primarily monitored by headquarters
staff. TSA is confident that this rule will
be effectively implemented.
Comments: One municipality
believed that re-routing of hazardous
materials was a better strategy.
TSA Response: TSA’s NPRM did not
address this issue. DOT/PHMSA has
addressed routing issues in its rule. As
noted earlier in this preamble, DOT/
PHMSA published an interim final rule
in the Federal Register on April 16,
2008. The PHMSA rule revises the
current requirements in the HMR
applicable to the safe and secure
transportation of hazardous materials
transported in commerce by rail. In
pertinent part, PHMSA is requiring
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freight railroad carriers to compile
annual data on certain shipments of
explosive, toxic inhalation, and
radioactive 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.
Comments: Two commenters
recommended that TSA adopt the DOT
definition of offeror instead of
‘‘shipper’’ and that all requirements
placed on the shipper should be
assigned to the ‘‘offeror.’’ 45
One of the commenters stated that the
definition in the proposed rule of ‘‘rail
hazardous materials shipper’’ is more
restrictive than the DOT definition of
‘‘person who offers’’ or ‘‘offeror’’ in 49
CFR 171.8. The commenter noted that
the proposed rule appears to assume
that all hazardous materials shipment
origination activities occur at the
physical facility where a covered
hazardous material shipment originates,
and indicated that this is not necessarily
the case. The commenter recommended
that TSA revise the proposed rule to
distinguish between requirements
applicable to the originating facility and
requirements applicable to the person or
organization performing the functions of
‘‘offeror,’’ as described in 49 CFR 171.8.
Another commenter stated that since
rail hazardous materials shippers and
receivers are fixed-site facilities, not
persons, they cannot be tasked to
perform ‘‘offeror’’ functions. The
commenter also recommended that TSA
adjust the definition of ‘‘receiver’’ to
make it consistent with 49 CFR 171.8.
TSA Response: TSA is revising the
definitions of ‘‘rail hazardous materials
shipper’’ and ‘‘rail hazardous materials
receiver’’ in 49 CFR 1580.3 to clarify
that this rule applies to the operator of
the fixed-site facility. TSA is retaining
the term ‘‘rail hazardous materials
shipper’’ to establish that responsibility
for compliance with the requirements in
parts 1520 and 1580 rests with the
operator of the fixed-site facility that has
a physical connection to the general
railroad system of transportation and
offers, prepares, or loads any of the
covered hazardous materials for
45 In pertinent part, in 49 CFR 171.8, DOT defines
a ‘‘person who offers’’ or ‘‘offeror’’ as:
(1) Any person who does either or both of the
following:
(i) Performs, or is responsible for performing, any
pre-transportation function required under
[Subchapter C] for transportation of the hazardous
material in commerce.
(ii) Tenders or makes the hazardous material
available to a carrier for transportation in
commerce.
*
*
*
*
*
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transportation by rail. Although the
facility operator may elect to assign
responsibility for performing pretransportation functions to an agent or
contractor, the facility operator remains
responsible under the rule for
compliance with all applicable
provisions of this final rule. In the event
of noncompliance, TSA may hold the
shipper/facility’s operator responsible
for the violation and subject to
enforcement action. Further, TSA notes
that a fixed-site facility operator is a
‘‘person’’ for purposes of being able to
ship/offer or receive hazardous
materials covered by the rule. See 49
CFR 1580.3.
TSA is also retaining the term ‘‘rail
hazardous materials receiver’’ in this
final rule rather than using the DOT
term ‘‘consignee.’’ 46 A fixed-site
receiving facility is not merely a
delivery location, but also the legal
entity responsible for compliance with
this final rule in its role as a receiver or
unloader of the covered hazardous
materials. While DOT regulations no
longer apply after the delivering railroad
carrier departs a rail hazardous
materials receiver facility (see 49 CFR
171.1(c)(3) and 171.8), TSA’s final rule
extends beyond that time and covers the
transportation-related areas of these
facilities that receive or unload covered
rail cars.
Comments: A chemical manufacturer
observed that TSA’s definition of
‘‘offeror’’ includes the words ‘‘Any
person who * * * [t]enders or makes
the hazardous material available * * *’’
(49 CFR 1580.3). That manufacturer
noted that the term ‘‘tenders’’ has a
precise legal meaning, often used in
satisfaction of a debt or obligation. The
commenter recommended that TSA
revise the definition of ‘‘offeror’’ by
replacing the word ‘‘tenders’’ with
‘‘provides.’’
TSA Response: For the sake of
consistency with DOT’s HMR, TSA
based its definition of ‘‘offers’’ or
‘‘offeror’’ (49 CFR 1580.3) on the DOT
definition of ‘‘person who offers’’ or
‘‘offeror’’ (49 CFR 171.8). In pertinent
part, DOT defines a ‘‘person who offers
or offeror’’ as ‘‘any person who * * *
[t]enders or makes the hazardous
material available * * *’’ In the context
of TSA’s definition of ‘‘offers’’ or
‘‘offeror,’’ the legal meaning of
‘‘tenders’’ is clear.
Comments: A chemical manufacturer
commented that TSA should align the
applicability of its rail transportation
46 In 49 CFR 171.8, DOT defines a ‘‘consignee’’ as
‘‘the person or place shown on a shipping
document, package marking, or other media as the
location to which a carrier is directed to transport
a hazardous material.’’
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security rule with DHS’s CFATS
regulation and clearly define
jurisdictions and authority so that
entities covered by both regulations
have a clear understanding of their
obligations under the law.
TSA Response: It is not practicable for
TSA to align the applicability section of
the two rulemakings. Section 1580.107
of the freight rail provisions of TSA’s
regulation focuses on the pickup,
delivery, and interchange of rail cars
containing certain hazardous materials,
whereas DHS’s CFATS rule establishes
requirements for the security of entire
high-risk chemical facilities. Given the
disparity in focus and the differences in
addressing risk between the
transportation and chemical sectors, it is
neither practicable nor necessary to
completely align the applicability
sections of the two rules. Due to the
nature of the supply chain, there is
some inherent overlap between
transportation and chemical facilities.
This is reflected in the TSA regulation.
In order to secure the transportation
system, in § 1580.107 we are regulating
facilities that are connected to the
general railroad system of transportation
and ship, or receive in an HTUA, one
or more of the specified categories and
quantities of the hazardous materials
listed in § 1580.100(b). However, we
believe that the responsibilities of those
facilities that are potentially subject, to
some degree, to both this rule and to
CFATS are sufficiently clear and that
those responsibilities will not conflict
with each other.47
Comments: A commenter expressed
concern that the attendance
requirements of 49 CFR 1580.107 might
lead to non-compliance with the hours
of service laws,48 cause worker fatigue
issues, and have an impact on transit
times and delivery schedules.
TSA Response: TSA recognizes that
the attendance requirement may require
certain operational changes by the
freight railroad carriers required ‘‘to
ensure that the rail car is not left
unattended during the physical transfer
of custody.’’ This final rule allows
freight railroad carriers the maximum
degree of flexibility to adopt and
implement procedures to meet the car
47 Note that the preamble to the CFATS IFR stated
that DHS may re-evaluate the coverage of railroads
under that regulation, and if so would conduct a
new rulemaking for that purpose. See 72 FR 17699
(April 9, 2007).
48 TSA presumes that the commenter is referring
to the Federal hours of service laws (49 U.S.C.
21101–21108), which includes requirements
concerning maximum on-duty and minimum offduty periods for individuals engaged in or
connected with the movement of a train. See 49
U.S.C. 21101 and 21103.
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attendance performance standard. In
this regard, 49 CFR 1580.107 does not
specify a maximum number of rail cars
that a carrier employee or authorized
representative may attend, nor does it
require the attendant to be within a
certain designated distance from the rail
car. TSA expects the affected freight
railroad carriers to adopt and carry out
implementing procedures that meet the
performance standard of this rule
without compromising railroad safety or
violating any other Federal
requirements.
Comments: Several commenters asked
whether the chain of custody provisions
apply to imports and exports from
Mexico and Canada.
TSA Response: The chain of custody
requirements do not apply at any
shipper facilities located outside the
United States, but begin at the first
carrier interchange point inside the
United States that triggers the
provisions of § 1580.107, and apply to
all subsequent covered carrier
interchanges. The requirements also
apply to a rail hazardous materials
receiver located in an HTUA, regardless
of whether the rail car originated at a
domestic or foreign location.
Accordingly, for shipments originating
in Canada or Mexico, there will be no
evidence of a secure shipment from the
initial rail hazardous materials shipper,
and for shipments destined for Canada
or Mexico, there is no requirement for
a secure hand off to the receiver.
Comments: One commenter requested
clarification of responsibilities where a
passenger railroad has contractual
agreements regarding the use of their
respective rail tracks for the
transportation of hazardous materials by
private freight railroad carriers.
TSA Response: The requirements in
§ 1580.107 do not apply to passenger
railroad carriers that lease or have
contractual agreements regarding the
use of their track by freight railroad
carriers to haul hazardous materials.
Only the railroad carrier transporting
the covered hazardous materials, not the
owner of the track, is covered by
§ 1580.107.
Comments: The Small Railroad
Business Owners of America
commented on the potential danger of
grouping hazardous materials rail cars
together in secure areas rather then
leaving them individually on tracks in
various rail yards. The commenter
stated that the best solution is to employ
security systems that are monitored,
such as television cameras and
employees who work in the area who
are told to immediately report any
unauthorized persons.
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TSA Response: TSA recognizes that
rail hazardous materials facilities may
have to comply with 49 CFR 1580.107
by storing covered rail cars in close
proximity to each other. However, this
final rule does not outline any specific
requirements for the storage of covered
cars, other than that the cars must be
kept in a rail secure area with physical
security measures while awaiting
pickup at a rail hazardous material
shipper by a railroad carrier or awaiting
unloading at a rail hazardous materials
receiver in an HTUA. The rule also does
not specify the size of the secure area;
a facility may establish multiple secure
areas. TSA believes that placing covered
cars only in secure areas with physical
security measures in place provides an
added security benefit, since it is easier
for the facility to monitor the cars in
concentrated locations rather than
stored individually on multiple tracks.
H. Location and Shipping Information
for Certain Rail Cars
1. Applicability
Comments: An association suggested
that TSA exempt Class III railroads from
providing routing information for cars
on other carriers’ portions of a rail car
trip (i.e., the time that the rail car
spends in transportation being hauled
by another railroad carrier). The
commenter stated that the shipping
documents that small railroad carriers
receive from connecting carriers
typically do not indicate the routing that
the larger railroads will use. They
asserted that, in practice, this
information is available from Class I
railroad carriers who have multiple
routing options and will know which
route other carriers will use to the final
delivery destination point.
TSA Response: When TSA needs to
know the location of a specific rail car,
the agency may query a number of
carriers about the routing and shipping
information; however, TSA recognizes
that the entity in possession of the rail
car generally has the best available
information. In the context of TSA
requesting the information, since this
final rule only requires railroad carriers
to report information for cars under
their physical custody and control, TSA
will not ask a carrier to submit
information that is beyond its range of
knowledge and that would require it to
make inquiries of other carriers. See 49
CFR 1580.103(b).
Concerning routing information, TSA
understands the differing capabilities
between Class I railroads and short line
and regional railroads, and has taken
this into consideration in this final rule
by allowing freight railroads, other than
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72153
Class I carriers, more time to provide the
required information. See 49 CFR
1580.103(e). TSA understands that
routes sometimes change and expects
that all regulated parties will provide
the best available current routing
information. TSA anticipates that in
cases of heightened threat or during a
security incident, all regulated parties
would go beyond the minimum
regulatory requirements and provide
TSA with as much information as
possible, including available
information on rail cars that a railroad
carrier had on its system before
transferring it to another carrier or to a
rail hazardous materials receiver.
Comments: One association
commented that the only location and
shipping information that rail hazardous
materials shippers and receivers should
have to provide to TSA, when
requested, is the fact that the facility is
in possession of the car.
TSA Response: This final rule
provides that all covered freight railroad
carriers and rail hazardous materials
facilities must develop procedures to
determine the location and shipping
information specified by 49 CFR
1580.103 for rail cars under their
physical custody and control containing
the specified hazardous materials. A rail
hazardous materials facility meets the
requirements of 49 CFR 1580.103 if it
informs TSA that it currently has a
specific car(s) in its possession,
identifies which rail cars contain a
specified hazardous material, and
provides TSA with the name and
address of the facility where the car(s)
or train is located. TSA is aware that
some rail shipper and receiver facilities
are very large, but there may be times
when it is imperative that DHS know an
exact car location inside a facility. In
these cases, DHS and TSA will work
with the affected facility to locate the
precise position of the car to ensure
appropriate intervention.
Comments: One commenter
recommended that TSA extend
applicability of the car location and
shipping information reporting
requirement to covered entities
handling all DOT-classified hazardous
materials.
TSA Response: As discussed in
Section V.G.1 of this preamble, TSA is
not revising the list of hazardous
materials to which the requirements of
49 CFR 1580.103 apply. While TSA
acknowledges that all hazardous
materials present certain security risks
in transportation, we selected the
explosive, PIH, and radioactive
materials as an initial step, because of
the significant risk posed by these
materials. In the case of an emergency
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involving explosives, PIH, or radioactive
materials, such as a specific threat
against a particular train or a general
threat involving the metropolitan area
through which the train is operating, it
may be critical for TSA to have location
and shipping information rapidly to
address threats to persons and property.
2. Timeframe for Reporting Information
Comments: Many commenters
supported the requirement to provide
location and shipping information to
TSA upon request within one hour, as
proposed in the NPRM. TSA also
requested comment on whether TSA
could and should shorten the response
time to five minutes for providing
information on a specific car and 30
minutes for providing information on
more than one car under the regulated
party’s physical custody and control.
Several commenters opposed
shortening the response time. These
commenters varied in their reasons for
opposing the change, including
arguments that it would pose an
unreasonable cost, was too difficult, or
was impossible to implement with
current technology. A few commenters
supported the shortened five minute/30
minute reporting timeframe. One
commenter suggested that commercial
off-the-shelf technology existed that
could meet TSA’s proposed
requirement. Two others suggested that
the threat was severe enough that TSA
must be able to obtain location and
shipping information on cars carrying
security-sensitive materials in the
shortest possible timeframe, regardless
of whether the private sector funds the
technology or the government
establishes a national system.
TSA Response: TSA requires all Class
I freight railroad carriers subject to 49
CFR 1580.103 to provide the location
and shipping information to TSA within
five minutes if the request concerns
only one rail car and within thirty
minutes if the request concerns two or
more rail cars. See 49 CFR 1580.103(d).
All other regulated parties subject to 49
CFR 1580.103 must provide the
information to TSA within thirty
minutes, regardless of how many rail
cars the request concerns. See 49 CFR
1580.103(e). TSA has concluded that
regulated parties can comply with these
timeframes. The technological
capability to locate the rail cars
currently exists. While compliance with
this final rule may require procedural
changes to the carrier or facility’s
operations, it will not entail significant
or costly technological changes.
Freight railroad carriers, both small
and large, maintain systems to track and
locate rail cars for both operational and
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revenue accounting purposes.
Depending on the size and operational
needs of the railroad, the sophistication
of these systems will vary, but all
perform the same basic functions.
Railroad carriers trace the location of
rail cars from the time that they are
accepted for transportation at the point
of origin until they are placed at the
receiver’s designated location. While in
transit between the points of origin and
destination, the progress of a rail car is
tracked using a variety of methods
including AEI, global positioning
systems (GPSs), train dispatching
systems, and train crew reporting.
Railroad carriers then use computerbased systems to capture data on the
location and progress of their rail cars.
Carriers can use these types of systems
to meet the reporting requirements of 49
CFR 1580.103.
TSA notes that railroad carriers
transporting rail cars containing
explosives, radioactive, or PIH materials
have programs or procedures in place to
quickly locate a single tank car on their
property if they are provided with the
car’s reporting marks (initial & number).
For purposes of complying with 49 CFR
1580.103, TSA anticipates that the vast
majority of railroad carriers will
determine the number and types of rail
cars on their property containing PIH or
other specified materials by utilizing car
trace and yard management software
that sorts car contents according to
Standard Commodity Codes (STCC). In
addition, TSA recognizes that railroad
carriers can, and tend to, send car
location messages to a central databank
(Railinc 49), which allows the shipper,
carrier(s), and receiver of the rail car to
track the approximate location and trip
progress of a particular rail car.
In 2006, TSA conducted audits of
freight railroad carriers and their
employees to determine the level of
implementation of certain voluntary
guidance.50 One of these standards
concerned the ability of railroad carrier
employees to locate cars containing PIH
materials in a specific yard. TSA
determined that all of the Class I
railroads and over 80 percent of the
49 Railinc is a leading provider of information
technology and related business services to the
North American railroad industry. The company
hosts a variety of rail industry revenue, equipment,
and operations management applications.
50 On June 23, 2006, DHS and DOT issued 24
recommended security action items for the rail
transportation of materials poisonous by inhalation,
commonly referred to as TIH materials. The security
action items are divided into three categories: (1)
System security; (2) access control; and (3) en-route
security. On November 21, 2006, the two
Departments issued three additional recommended
security action items. The security action items are
available on TSA’s public Web site.
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Short Line and Terminal railroads had
systems in place to locate cars
containing PIH or other specified
materials. In this regard, the majority of
the railroad carriers have developed car
tracing programs that allow them to
identify those trains operating on their
systems that have PIH or other specified
material cars in the train.
As part of the process of analyzing the
security threat to the freight railroad
system, TSA has reviewed the ability of
Class I, II, and III railroad carriers to
respond to car location and shipping
information requests. In all instances,
when asked about rail cars containing
the covered materials that were under
their physical custody and control,
Class I carriers were able to respond in
five minutes or less when the request
concerned one rail car and in 30
minutes or less when the request
involved multiple rail cars. The Class I
carriers used their existing programs
and/or procedures to locate a single rail
car on their property once TSA
provided the car’s reporting mark and
serial number (car initial and number).
These carriers also used car tracing
programs to identify those trains
operating on their systems that had
hazardous material cars in the train.
In the case of Class II and III carriers,
TSA is aware of at least one program
that the industry developed for the
purpose of locating hazardous materials
rail cars being hauled on Short Line and
Terminal railroads. TSA and FRA have
funded a program known as
FreightScope.51 The Federal
government in conjunction with the
American Short Line & Regional
Railroad Association (ASLRRA), has
tested the functional capability of this
program. Representatives of the
ASLRRA, acting as agents for their
member railroads, maintained a means
of accessing the information in the
FreightScope program, as well as a
means of transmitting the information to
the Federal government upon request. In
the tests performed, the ASLRRA
representatives were able to provide the
requested car location and reporting
information in approximately 20
minutes. In one instance, the ASLRRA
representative provided a verbal
accounting of the information in less
than five minutes.
Larger and medium size rail
hazardous materials shippers and rail
51 Railinc, a subsidiary of the AAR, developed
FreightScope from ASLRRA specifications and with
sponsorship and funding from FRA. It provides a
Web-based interactive dashboard of near-real-time
rail shipment location information for North
America. Users can quickly determine the last
reported location of hazardous materials shipments
that are in the control of Short Line railroads.
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hazardous materials receivers of rail
cars covered by this regulation have
existing systems in place to record cars
that enter or leave their facilities by rail.
Railroad carriers notify shippers prior to
dropping off residue cars and picking
up loaded cars, and notify receivers
when delivering a loaded car or picking
up a residue car. Shippers are aware of
the location and status of rail cars
covered by this final rule as the cars
pass through the facility, both while
going through the loading process and
while in temporary storage waiting to be
shipped. Shippers also follow very
specific company and DOT-required
procedures for pre- and post-load
inspections and necessary rail car
maintenance and repair. While there is
a constant movement of rail cars into,
through, and out of a facility between
these processes, plant personnel
monitor the tank cars at each stage of
the process, including loading and
unloading operations and railroad
carrier drop offs and pickups. Large and
medium size receivers in HTUAs also
follow very specific procedures and
processes from the time a covered rail
car enters the facility until the covered
hazardous material is unloaded,
including inspections prior to
unloading. In addition, they perform
pre-release checks before the residue
cars are picked up by the railroad
carrier.
Smaller rail hazardous materials
shippers and smaller rail hazardous
materials receivers in an HTUA have
smaller inventories of rail cars and
consequently a smaller turnover of cars.
TSA anticipates that the facilities will
comply with this final rule by
maintaining a written list of rail cars
with the relevant information, and
perform a visual check for the requested
cars. The location and shipping
information requirement will not result
in operational changes to the systems at
these smaller facilities.
As noted in the preamble to the
NPRM, TSA sought comment on an
alternative to the proposed one-hour
reporting timeframe, because in an
emergency, ‘‘information concerning the
location of certain hazardous materials
* * * [is] critical to decisions
concerning possible rerouting, stopping,
or otherwise protecting shipments and
populations to address specific security
threats or incidents.’’ 71 FR at 65864
and 76871. TSA specifically asked for
comment on how a shorter timeframe
could be accomplished and at what
financial cost. Based upon comments
received and our understanding of the
technological capabilities of freight
railroad carriers and rail hazardous
materials facilities, in this final rule,
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TSA has revised the timeframe for a
regulated party to report location and
shipping information. Each Class I
railroad carrier must provide the
requested information to TSA no later
than five minutes after receiving the
request if the request involves only one
rail car and no later than 30 minutes if
the request concerns two or more rail
cars. All freight railroad carriers not
otherwise identified as Class I carriers
by the STB are permitted up to 30
minutes to provide the requested
information, regardless of the number of
rail cars involved. All rail hazardous
materials shippers and all rail
hazardous materials receivers in an
HTUA are permitted up to 30 minutes
to provide the requested information,
regardless of the number of rail cars
involved.
TSA has also added a new paragraph
(g) to 49 CFR 1580.103, requiring each
regulated party to provide a telephone
number for TSA to use when requesting
location and shipping information. In
contrast to the RSC provision, which
requires the regulated party to designate
a named individual as TSA’s contact
person because of the potential need to
convey extremely time-sensitive threat
information or security procedures at
any time of the day or night, paragraph
(f) merely requires that the designated
telephone number be monitored at all
times by a live person. As long as the
individual who answers TSA’s
telephone call can provide accurate
information within the specified
timeframe, paragraph (f) permits the
regulated party to use a designated third
party or agent to meet this performance
standard, rather than exclusively a
company employee. Since this
provision allows the regulated party
flexibility to determine how best to meet
the reporting requirement, smaller
railroad carriers and rail hazardous
materials facilities that do not operate
around the clock or maintain 24/7
operations centers can comply with
minimal operational changes.
TSA is also deleting the words ‘‘in
writing’’ from paragraph (f)(6) in this
final rule (which was designated as
paragraph (e)(6) in the NPRM), to allow
regulated entities, on a case-by-case
basis, to request an alternate reporting
format and for TSA to immediately
approve that request by telephone,
without the need for a written response.
TSA anticipates that a railroad carrier or
rail hazardous materials facility may use
this provision when they receive a
request for information on only one rail
car and can provide the answer easily
by telephone. However, TSA does not
anticipate approving the use of verbal
communication if the requested
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72155
information concerns numerous rail cars
located at many different locations.
3. Technology for Reporting Information
Comments: Several commenters
stressed that TSA should allow them to
use existing resources to comply with
the location and shipping information
requirement. A commenter indicated
that existing AEI readers and supporting
two-way communications systems are
fully capable of producing the location
and shipping information requested by
TSA. The commenter stated that GPS by
itself does not add substantial benefits
and has significant limitations, such as
requiring a direct line of sight to the
satellite and an independent power
source, which will need replacement.
Additionally, the frequency of
transmission causes immediacy of
location reports to vary.
TSA Response: TSA believes that the
technology currently employed by
freight railroad carriers and rail
hazardous materials facilities is
sufficient to comply with 49 CFR
1580.103. This final rule establishes a
performance standard that requires the
regulated entities to be able to provide
the requested information in the
timeframe specified, without mandating
a particular technology or system
protocol for obtaining it. Accordingly,
while certain larger freight railroad
carriers will meet the requirement by
using AEI tags, smaller carriers that
rarely haul rail cars containing the
specified hazardous materials may elect
to obtain the requested location and
shipping information merely by calling
the train crew on a two-way radio or
cellular telephone. Depending on the
number of rail cars present that contain
one or more of the listed hazardous
materials, rail hazardous materials
facilities may choose to employ a
sophisticated computer program (as
appropriate) or simply assign an
employee to physically count the rail
cars containing the product and gather
the requested information for each rail
car. If the carrier, shipper, or receiver
provides the location and shipping
information to TSA within the specified
timeframe and does so using one of the
approved methods, the carrier or facility
would be in full compliance with this
final rule.
Comments: A few commenters
supported enhancing the current AEI
system with GPS-based tracking and
monitoring systems. These commenters
noted that GPS-based technologies can
provide timely and accurate tracking
information. They suggested that the
current AEI-based system cannot meet
the requirements of this rulemaking or
provide the efficiency benefits. One
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employees will remain subject to
discipline and dismissal for reporting
security concerns. One commenter
provided regulatory language that
would establish an appropriate level of
whistleblower protection for employees
who report security lapses to the
relevant Federal entities. A third labor
union asserted that the final rule must
include mechanisms to ensure that
employees are permitted to participate
fully in reporting security concerns
without harassment by employers. The
union said that TSA inspectors and
other agency officials should have the
ability to talk directly with front-line
workers about security concerns and
any employer harassment they face. In
addition, the union urged TSA to adopt
regulations specifically prohibiting any
type of employee harassment or
intimidation with fines and penalties
sufficient to discourage this conduct.
TSA Response: The topic of
whistleblower protection is outside the
4. TSA’s Use of the Information
scope of the NPRM, and therefore TSA
Comments: Several members of
has not addressed it in this final rule.
Congress requested information on how TSA notes, however, that two
TSA intends to use the information
provisions of the 9/11 Commission Act
gathered pursuant to the location and
provide protections from retaliation for
shipping information provisions of the
public transportation employees and
regulation.
railroad employees who, in good faith,
TSA Response: TSA intends to use the provide information, or otherwise
information obtained under § 1580.103
directly assist an investigation, about
to prevent or mitigate a terrorist attack.
conduct that the employees reasonably
TSA anticipates requesting information
believe is a violation of a Federal law,
in cases of heightened threat or prior to
rule, or regulation related to railroad
or during an attack. In cases where TSA/ safety or security or gross fraud, waste,
DHS has threat information about a
or abuse of Federal grants or other
specific rail car, commodity, or area, or
public funds.52 See §§ 1413 (Public
other relevant fact relating to the
Transportation Employee Protections)
transportation of covered materials
and 1521 (Railroad Employee
being shipped by rail, it is imperative
Protections) of the 9/11 Commission
that TSA be able to focus upon the
Act; see also 49 U.S.C. 20109. Each
affected entity or population as quickly
provision includes protections for
as possible. Currently, the Federal
employees who refuse to violate or help
government does not have in place a
in the violation of any Federal law, rule,
permanent system to locate rail cars or
or regulation relating to safety or
target hazardous materials in
security; file a complaint, or directly
transportation and must partner with
cause to be brought a proceeding related
the private sector. By finalizing this
to the enforcement of certain laws and
provision of the rule and including a
regulations; or furnish information to
new requirement that each covered
DOT, DHS, NTSB, or any Federal, State,
party must supply TSA with a 24-hour
or local regulatory or law enforcement
contact telephone number, TSA/DHS
agency as to the facts relating to any
has a new tool to enable the Federal
accident or incident resulting in injury
government to focus on potential or
or death to an individual or damage to
actual targets and take appropriate
property occurring in connection with
action when time is of the essence.
(as applicable) public transportation or
railroad transportation. The
I. Whistleblower Protection for
whistleblower protections are enforced
Employees
Comments: Two labor unions
52 The investigation stemming from the
requested that the rule include
information must be conducted by: A Federal, State,
whistleblower protection for employees or local regulatory or law enforcement agency; a
Member or committee of Congress or the General
of covered entities who report
Accounting Office; or a person with supervisory
significant security concerns. The
authority over the employee or such other person
commenters indicated that absent such
who has the authority to investigate, discover, or
terminate the misconduct.
whistleblower protection, rail
mstockstill on PROD1PC66 with RULES2
commenter noted that in addition to
location data, GPS-based systems can
provide security information such as a
notification if certain equipment
becomes compromised in transit.
Other commenters opposed the use of
a GPS-based system and supported the
continued use of the current AEI system
to meet the proposed requirements.
TSA Response: TSA appreciates the
comments on AEI systems and GPS
technology. TSA is not mandating any
specific technology to meet the
requirements of this final rule at this
time. In order to better understand the
security costs, benefits, and drawbacks
of GPS, TSA has commissioned a
comparative study between GPS and the
current AEI-based system. Additionally,
the study will provide the Federal
government with an assessment of the
AEI system and additional technologies
that could be used to enhance the
current system’s fidelity.
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through the filing of a complaint with
the Department of Labor. See § 1413(c)
of the 9/11 Commission Act and 49
U.S.C. 20109(c) (as amended by § 1521
of the 9/11 Commission Act).
J. Preemption
Comments: Section 1580.109 of the
NPRM proposed to preempt any State
laws, rules, regulations, orders or
common law requirements covering the
same subject matter as § 1580.107. TSA
sought comment on the scope of the
subject matter that the final rule should
or should not preempt under 49 U.S.C.
20106. Commenters were sharply
divided on the issue of the proposed
rule’s preemptive effect, with industry
commenters in favor of preemption and
State and local governments opposed.
Several chemical manufacturers
expressed support for the proposed
rule’s preemption provision, because it
would implement national uniformity
and increase the effectiveness of
compliance efforts. Several trade
associations urged TSA to expand to
provisions beyond those for chain of
custody and control requirements.
One commenter asserted that TSA’s
statement in the preamble of the NPRM
that it ‘‘does not intend to preempt
inspection activities conducted in
furtherance of State and local laws or
preempt requirements to appoint an
RSC, or report significant security
concerns’’ (71 FR 76875) is inconsistent
with the language in 49 U.S.C. 20106. In
this regard, the commenter stated that
§ 20106 provides that the States cannot
regulate a subject when DOT or DHS has
regulated that subject. The commenter
asserted, therefore, that TSA lacks
discretion to allow States to enforce
their own requirements relating to RSCs
or the reporting of security concerns.
Further, the commenter stated that State
requirements could result in railroads
being subjected to differing
requirements for security coordinators
and a duty to report different types of
occurrences in every State, leading to
compliance difficulties without
enhancing security.
Other industry representatives also
emphasized the importance of uniform
national standards and supported broad
preemption.
State commenters raised objections to
preemption and urged TSA to explain
its plans for coordination and
information sharing with States. A State
requested assurance that a State’s right
to inspect and regulate will not be
abrogated. A municipality, citing 49
U.S.C. 20106, urged TSA to include
language in the final rule text
recognizing the right of a political
subdivision to enact more stringent law
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when ‘‘necessary to eliminate or reduce
an essentially local safety or security
hazard’’ if it ‘‘is not incompatible’’ with
a Federal regulation and ‘‘does not
unreasonably burden interstate
commerce.’’
Another State objected to TSA’s
proposed ‘‘subject matter’’ preemption
of chain of custody and control
requirements, stating that it would
prevent a necessary partnership among
Federal, State, local, and tribal
governments. The commenter preferred
use of the ‘‘substantially the same’’ form
of Federal preemption language
contained in the Federal hazardous
materials transportation laws, which
would preserve State laws that do not
act as an ‘‘obstacle’’ to compliance or
accomplishment of the Federal
requirements. See 49 U.S.C. 5125.
Another commenter urged TSA to adopt
a ‘‘conflict’’ preemption standard in lieu
of its proposed ‘‘field’’ or ‘‘subject
matter’’ standard.
An individual commenter opposed
preemption of State and local
requirements, and gave the example of
cities that want to place restrictions on
where rail cars storing Toxic Inhalation
Hazard (TIH) materials can be located.
The commenter supported State and
local efforts to mandate what the
commenter characterized as the most
basic terrorism prevention measures:
Routing and storing the most dangerous
cargoes away from vulnerable target
areas. Other commenters objected to
preemption, because they believed that
Federal regulations alone cannot
effectively ensure that the public is
protected from dangers associated with
the shipment of potentially hazardous
materials via rail.
TSA Response: TSA has fully
considered the sharply divided
comments on the issue of this final
rule’s preemptive effect. TSA has
decided to retain the same language it
proposed in the NPRM. In addition,
after further consideration of the
governing statutory provision, TSA has
added a sentence to § 1580.109 that
tracks the language of that governing
statutory provision—i.e., 49 U.S.C.
20106. The new sentence conveys
Congress’ intent as to the standard for
preemption in the area of rail security
(and safety).
While in the past TSA’s regulations
have not included regulatory text about
preemptive effect, the absence of such
text does not necessarily indicate that
TSA’s regulations do not have
preemptive effect. TSA has included
such a provision here to make clear its
finding about one aspect of this
rulemaking.
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Congress has clearly legislated the
standard for preemption in rail security
(and safety) legislation. 49 U.S.C. 20106
provides that all regulations prescribed
by the Secretary of Homeland Security
relating to railroad security preempt any
State law, regulation, or order covering
the same subject matter, except a
provision that: (1) is necessary to
eliminate or reduce an essentially local
security hazard, (2) is not incompatible
with a Federal law, regulation, or order,
and (3) does not unreasonably burden
interstate commerce. Unless a state law,
regulation, or order meets all three of
these conditions, § 20106 expresses
Congress’s intent that it will be
preempted. With the exception of a
provision directed at an essentially local
security hazard that is not inconsistent
with a Federal law, regulation, or order,
and that does not unreasonably burden
interstate commerce, § 20106 will
preempt any State or local law or
regulatory agency rule covering the
same subject matter as § 1580.107.53
In the context of railroad safety, the
Supreme Court has consistently
interpreted § 20106 to confer on the
Secretary of Transportation the power to
issue regulations that would preempt
not only State statutes, but common law
as well. See CSX Transp. v. Easterwood,
507 U.S. 658, 664 (1993) (‘‘[L]egal duties
imposed on railroads by the common
law fall within the scope of [the] broad
phrases’’ of § 20106). See also Norfolk
Southern Ry. Co. v. Shanklin, 529 U.S.
344 (2000). The Court has further held
that Federal regulations under the
Federal railroad safety laws will
preempt common law where the
regulations ‘‘substantially subsume’’ the
subject matter of the relevant State law.
Easterwood, 507 U.S. at 664.
As provided in the regulatory text at
§ 1580.109, the preemptive effect of this
rule extends to the rule’s provisions
regarding chain of custody and control,
both within and outside of HTUAs, of
rail cars containing hazardous materials.
TSA finds that, consistent with § 20106,
these provisions preempt State, local,
and tribal requirements covering the
same subject matter, including any such
requirements prescribing or restricting
security measures during the physical
transfer of custody and control of rail
cars containing the categories and
quantities of hazardous materials set
forth in § 1580.100(b), as well as any
requirements that might attempt to
53 Although § 1528 of the 9/11 Commission Act
restructured the preemption provision in 49 U.S.C.
20106, Congress did so for ‘‘for clarification
purposes’’ without intending ‘‘any substantive
change in the meaning of the provision.’’ See
9/11 Commission Act, Conference Report to
accompany H.R. 1, page 351 (July 25, 2007).
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72157
impose a duty on freight railroad
carriers or rail hazardous materials
shippers, or rail hazardous materials
receivers pertaining to the physical
transfer of custody and control chain of
rail cars containing hazardous materials
that is not specifically set forth in
§ 1580.107. For example, TSA’s rule
would preempt any State law or
common law theory of liability that
would require a freight railroad carrier
to hire armed security guards to attend
the rail car during the physical transfer
of custody; a rail hazardous materials
shipper or receiver to use specificallydesignated physical security measures
to ensure that no unauthorized person
gains access to the rail secure area; or
additional physical inspections of the
rail car by the carrier or facility than
that specified in § 1580.107.
It would be impractical and
burdensome to the secure chain of
physical custody and control process to
require regulated parties to develop
multiple sets of procedures to comply
with varying State and local
requirements. TSA is aware that, if this
final rule did not preempt State or local
regulations regarding the chain of
custody requirements in § 1580.107, a
freight railroad carrier or rail hazardous
materials facility may need to comply
with different requirements in different
jurisdictions. Clearly, § 20106 was
intended to prevent this outcome. Any
other result would require a substantial
resource commitment, because it would
require carriers and facilities to instruct
individuals who carry out chain of
custody requirements to do so according
to a multitude of different operating
rules and practices. This, in turn, could
raise significant safety and security
concerns. This also might require
carriers to vary the size and training
qualifications of the train crew based
upon the varying laws in each
jurisdiction. Because rail transportation
of hazardous materials frequently
involves transportation across
jurisdictions and because of the
resources necessary to comply with
potentially varying chain of custody
requirements, TSA believes that
subjecting carriers to additional State
regulations in this area would likely
place an unreasonable burden on
interstate commerce. TSA seeks to avoid
this result. For these reasons, the chain
of custody and control security
measures must be subject to uniform
national standards.
Whether the other provisions of this
final rule preempt any such State, local,
or tribal law, or types of laws, depends
on an analysis of the specific State,
local, or tribal law, or types of law, in
the context of 49 U.S.C. 20106. At this
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time, TSA makes no finding as to
whether those other provisions of this
final rule preempt State, local, or tribal
law.
Finally, TSA is not including
language delegating inspection authority
to the States, as requested by the New
Jersey Office of Homeland Security &
Preparedness. TSA does note, however,
that if, in the course of performing an
inspection, TSA identifies evidence of
noncompliance with a State
requirement, TSA will (as appropriate)
provide the information to the
appropriate State agency for action. In
this regard, TSA would not directly
enforce State security rules and would
initiate a Federal inspection only when
a security nexus exists. If TSA were to
reconsider its position in the future, it
would do so through the issuance of
notice to the public.
mstockstill on PROD1PC66 with RULES2
K. Comments on the Regulatory Impact
Assessment
To evaluate the impact of the
proposed rule, TSA prepared a
Regulatory Impact Assessment (RIA)
and posted it to the public docket in
December of 2006. We received a
number of public comments that
addressed many aspects of the
assessment. The majority of commenters
discussed what they perceive to be
deficiencies or inaccuracies in our
assessment. Several commenters,
including individuals, businesses, and
trade associations, questioned some of
the analytical assumptions used to
estimate the costs of the NPRM. Others
pointed out instances where they
believe that we failed to account for a
compliance cost. TSA considered all
comments on the original RIA and has
summarized and responded to them
below.
1. Whether the Benefits of the Rule
Justify the Costs
Comments: Although we received
multiple comments that supported the
security objectives of the proposed rule,
one commenter, a large Class I railroad,
stated that the costs of the proposed
regulatory action far outweigh the
benefits. In its comprehensive public
comments, the railroad implied that the
costs of the proposed rule—both direct
and indirect—could not be justified by
the increase in security afforded by the
regulation, and that the rule would only
negligibly reduce risk in the rail
transportation mode. The commenter
asserted that it is impossible to
completely secure the U.S. rail network.
The commenter also asserted that the
rule fails to strike the proper balance
between compliance costs (both direct
and indirect) and the probability of the
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occurrence of a transportation security
incident in the rail mode.
The same commenter stated that the
rule would not substantially increase
the level of security in the rail
transportation mode. The railroad noted
that the U.S. rail network is an
inherently open system, making it
difficult to secure. Further, the railroad
stated that while the proposed rule
attempts to address the risk posed by
hazardous materials, the very nature of
the U.S. rail network would prevent a
shipment of hazardous materials from
ever being fully secured. It observed that
the rail system will always be
susceptible to attack and other
incidents.
The commenter stated that the
proposed rule would inflict significant
direct and indirect costs on the rail
transportation mode. In particular, the
railroad singled out the chain of custody
and control requirements as being
potentially costly for freight railroad
operators. The railroad noted that the
requirement would force companies to
make investments in security in lieu of
investments aimed at increasing rail
system capacity, an acute need in light
of the continuing growth in freight rail
shipments. The railroad implied that the
rule, by curtailing the expansion of the
rail network and slowing the movement
of freight, would exact large costs on
railroads, shippers, and ultimately the
U.S. economy.
The commenter stated that TSA did
not adequately estimate the costs in the
RIA and that TSA did not satisfactorily
weigh them against the benefits of the
proposed regulation. The commenter
also criticized TSA for failing to
calculate the probability of the
occurrence of a transportation security
incident in the rail transportation mode,
a step it believes is necessary in
justifying the costs of the proposed rule.
In the commenter’s view, the agency
examined the potential consequences of
a security incident, without
acknowledging the low probability of
such an event. Consequently, the
railroad did not agree with TSA’s
assessment that the costs of the
proposed rule—and in particular that
the financial impact of the chain of
custody and control requirement—could
be justified by security improvements.
TSA Response: TSA recognizes that
the rule will have an economic impact
on railroads, and we appreciate that the
compliance costs of the regulation
represent an investment in security for
many in the industry. As part of the
economic analysis required by E.O.
12866, we have made every attempt to
include all known and quantifiable
costs in the RIA.
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The agency disagrees, however, with
the assertion that the rule will impose
costs on industry disproportionate to its
benefits. Although the agency concurs
with the portrayal of the U.S. rail system
as an open, difficult-to-secure network,
TSA believes that the provisions of the
rule, including those not addressed by
the comment, will improve security in
the rail mode.
First, this final rule will protect the
dissemination of sensitive rail security
information by designating it as SSI.
This provision of this final rule will
impose no costs on covered individuals
and businesses but will provide an
additional measure of protection against
possible threats. Information that could
potentially be detrimental to security if
publicly disclosed will be less likely to
be distributed and misused under the
SSI designation.
Second, this final rule will codify the
authority of TSA, or DHS officials
working with TSA, to enter and inspect
covered entities at any time, including
inspecting and testing property,
facilities, equipment, and operations,
and viewing, inspecting, and copying
records. These inspections will assist
TSA in carrying out its statutory
authority, which includes the
assessment of threats to transportation;
enforcement of security-related
regulations and requirements;
inspection, maintenance, and testing of
security facilities, equipment, and
systems; and ensuring the adequacy of
security measures for the transportation
of freight and cargo. See 49 U.S.C. 114.
Third, this final rule will require
freight and passenger railroad carriers,
rail transit systems, and rail hazardous
materials facilities to designate and use
RSCs. This provision will prove
beneficial, because it will result in more
efficient communication between TSA
and companies operating in the rail
mode, particularly in the event of an
emergency.
Fourth, this final rule will require
freight and passenger railroad carriers,
rail transit systems, and rail hazardous
materials facilities to immediately
report potential threats and significant
security concerns to TSA. This
requirement will help TSA ‘‘connect the
dots,’’ pulling together seemingly
disconnected or disparate reports of
suspicious or unusual activities. These
reports may provide the insight
necessary to prevent a transportation
security incident, if they can be
analyzed quickly in the context of
broader information derived from the
intelligence community.
Fifth, this rulemaking will require
freight railroad carriers transporting
certain categories and quantities of
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hazardous materials, and rail hazardous
materials facilities subject to the rule, to
provide information to TSA on the
location of certain rail cars. This
requirement will increase security by
providing information critical to rerouting or stopping shipments to
address specific security threats or
incidents. This information could
amplify the ability of TSA, law
enforcement, and emergency response
agencies to respond to any potential
threats or attacks involving rail cars
transporting hazardous materials and to
protect the populations that might
otherwise be harmed.
Sixth, this final rule will require
freight railroad carriers and rail
hazardous materials facilities to
eliminate practices that leave certain
hazardous materials unattended before
or during shipment, and after shipment
until unloading of the rail car occurs.
This requirement will apply: (1) To the
rail hazardous materials shipper and
freight railroad carrier until the freight
railroad carrier takes physical custody
of the rail car, (2) when two freight
railroad carriers interchange a rail car
within an HTUA, (3) when two freight
railroad carriers interchange a rail car
that may enter an HTUA after the
interchange, (4) to the freight railroad
carrier delivering a rail car to a rail
hazardous materials receiver within an
HTUA, and (5) to the rail hazardous
materials receiver within an HTUA until
the rail car is unloaded. Although these
requirements will impose costs to
industry, as highlighted by the
commenter, TSA believes these
provisions will significantly increase
security in the rail mode. The agency
believes strongly that the requirement
will appreciably reduce the risk of a rail
car being used in a transportation
security incident inside a major U.S.
metropolitan area.
Finally, while the commenter may
view risk in the rail mode as low, risk
is in fact dynamic, constantly evolving
and shifting over time. Transportation
modes once considered at low risk for
a security incident may experience an
increase in risk due to changes in the
underlying threat, vulnerability, and
consequence calculus—the three factors
of which risk is a function.
For example, risk to the rail mode
may rise due to the threat shifting
behavior on the part of adversaries. Or,
changes in standard industry practices
may increase the vulnerability of the
mode, causing an increase in overall
risk. Conversely, natural developments,
such as population growth in certain
rail-centric locations across the country,
may cause the consequences from a
particular incident in the industry to
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rise, yielding an increase in the risk
profile of the mode. For these reasons,
the agency did not attempt to quantify
benefits or risk reduction to the mode.
TSA’s authority under ATSA with
respect to transportation security is
comprehensive and supported with
specific powers related to the
development and enforcement of
security-related regulations and
requirements. With its broad authority,
the agency may assess a security risk for
any mode of transportation, develop
security measures for dealing with that
risk, and enforce compliance with those
measures. TSA strongly believes that the
benefits enumerated above more than
justify the potential compliance costs of
this final rule. In fact, the agency is
confident that the regulation will
appreciably increase security in the rail
mode.
2. Overestimated Compliance Costs
Comments: One information
technology firm specializing in GPSs
opined that TSA’s estimate in the NPRM
for the economic impact of the rule was
too high. In its comment, the company
estimated that there are approximately
50,000 affected rail tank cars in service,
and that the affected firms could outfit
all of them with GPS technology for less
than $42 million, which represents a
fraction of the economic impact TSA
estimated in the RIA.
TSA Response: The rule does not
require railroads or other covered
entities to purchase and maintain GPS
technologies. To comply with related
provisions of the rulemaking, namely
the location and shipping information
requirement, a firm may choose to
utilize GPS; however, that is the
prerogative of the firm and not
mandated by the regulation. The
location and shipping information
requirement is a performance standard,
and TSA has not dictated the use of any
specific technology to meet this
standard.
Additionally, there are several other
provisions of the rulemaking that the
technology firm failed to account for
when it estimated that the regulation
would cost industry less than $42
million. For example, the company did
not comment on the cost of RSCs, the
reporting of significant security
concerns, or the chain of custody and
control requirements—all major
provision of the rule. For these reasons,
TSA did not adjust its analysis of the
economic impact of the rule based on
the information submitted by the
commenter.
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3. Underestimated Compliance Costs
A number of commenters indicated
that some of the compliance costs
estimated in the RIA for the NPRM were
understated. Many companies,
individuals, and trade associations that
commented on compliance cost
estimates focused on the chain of
custody and control requirement, but
others raised different concerns. TSA
has summarized those comments by
topic and responded to them below.
i. General
Comments: One individual
commenter stated that the cost of this
final rule will be twice as high as TSA
estimated in the RIA. Without providing
any details, this individual opined that
the average annual cost of the rule,
estimated by TSA at $15 million to the
railroad industry and its shippers and
receivers, was simply too low.
TSA Response: Without more detailed
information on why the rule will cost
industry twice the amount estimated by
TSA in the RIA, we did not adjust the
estimates.
ii. Chain of Custody and Control
Comments: Other commenters
asserted that the proposed chain of
custody provision might lead to
economic issues resulting from the
possible disruption of the continuous
supply to chemical companies of raw
materials. The commenters relayed
concerns that certain Class I railroad
carriers have informed some rail
hazardous materials facilities that their
railroads will no longer store chlorine.
Instead, under the new rule, the
commenters stated that receivers will
have to accept product shipments on
delivery.
TSA Response: TSA understands that
the chain of custody and control
requirements of the final rule will likely
change the way that railroad carriers
and rail hazardous materials facilities
interact with each other with respect to
the shipment of certain classes of
hazardous materials. The agency agrees
with the commenters that the changes
spurred by the final rule will have real
economic consequences. However, TSA
disagrees that the chain of custody
provisions will adversely affect the
economy or result in supply chain
disruptions of the hazardous materials
to which this final rule applies.
In attempting to estimate the
economic impact of the chain of custody
and control provision, the agency
assumed that rail hazardous materials
facilities will need to modify their
existing business procedures to ensure
that someone is able to accept a
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hazardous materials shipment covered
by the rule. As stated above, TSA
accounted for the costs of these
economic impacts in the RIA to the best
of its abilities, estimating that the
regulatory provision will not impose an
insignificant cost on all rail hazardous
materials facilities. TSA hopes that
freight railroad carriers, rail hazardous
materials shippers, and rail hazardous
materials receivers will work together to
minimize the costs of this regulation by
working to speed the covered materials
through the supply chain and better
schedule deliveries to receivers. As the
agency could not find any information
to improve its RIA, the cost estimates for
this provision remain unchanged.
Comments: A trade association
representing the explosives industry
stated that the attendance requirement,
also known as the chain of custody and
control provisions of the rule, could be
very costly. The association also noted,
however, that it could not provide any
insight into the scope or level of costs
that regulated parties will likely incur
for this provision of the rule.
TSA Response: TSA acknowledges
that there will be costs for entities in the
railroad industry and others to comply
with the chain of custody and control
requirement. However, without more
detailed information from the
commenter, we decided not to change
the cost estimates for this provision.
Comments: A large, Class I railroad
commented that the RIA for the NPRM
underestimated the direct costs for
railroads and other firms to comply with
the chain of custody and control
requirement of the rulemaking. It stated
that TSA’s methodology for calculating
the compliance costs of this provision
was inadequate.
In particular, the railroad remarked
that one of the key assumptions used in
the calculation—that railroads and other
firms will use a single security guard to
monitor rail cars and interchanges
affected by this requirement—was
flawed. The carrier pointed out that a
single individual supervising multiple
cars in a classification yard, in many
instances, will not be sufficient to
comply with the rule. The company
went on to state that many of its
classification yards are large or
constructed on a curve, making it
difficult for a single person to maintain
supervision of multiple cars if they are
not all located adjacent to each other in
a small area. In many situations, routine
yard activities will also make it difficult
for an individual to monitor affected
cars. This flawed analytical assumption
caused the agency to underestimate the
cost of this requirement of the proposed
rule.
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TSA Response: The carrier presented
several logical points in explaining how
TSA failed to calculate the costs of the
chain of custody provision in an
accurate manner. We agree with some of
the arguments put forth by the railroad,
particularly the observation that a single
individual, in many instances, will be
unable to monitor multiple rail cars in
a large area. TSA acknowledges that
operational realities may make it
difficult for an individual to have an
‘‘unobstructed view of the rail car prior
to the delivering railroad carrier leaving
the interchange point,’’ as we proposed
in the NPRM.
For this reason, TSA has amended the
language of the proposal to allow
railroad carriers more flexibility in
complying with the chain of custody
and control provision. The final rule
will not require affected entities to have
an ‘‘unobstructed view of the rail car’’
when complying with this requirement.
This change should assuage some of the
concerns expressed by the railroad. It
should also make it likelier that railroad
carriers will be able to meet the
requirement using the method described
in the RIA.
TSA would also like to note that the
chain of custody and control
requirement is a performance standard.
Different entities, using whatever means
practicable, may meet the standard
using different methods. So, while TSA
appreciates the input from the particular
railroad, its concerns may not be
reflective of the broader industry.
Moreover, TSA was unable to improve
its estimate with the information given
by the commenter. Furthermore, the
agency could not find any credible data
that would cause it to alter its original
estimate.
Because of the rule change, and
because of the lack of new, detailed
information, we did not adjust our cost
estimate for this provision of the final
rule.
Comments: The same commenter also
stated that TSA ignored the indirect
costs of the chain of custody and control
requirement when it estimated costs for
the original RIA. In detailing the
potentially significant indirect costs of
the requirement, the railroad noted that
the provision may force railroad firms to
make sub-optimal changes to their
operations, resulting in high costs to the
industry.
The commenter claimed that the
chain of custody and control
requirement would slow the movement
of freight on the national rail network.
This would have serious consequences
for railroad companies and their
customers.
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For railroad companies, constraining
commodity flows could increase
operating costs. For example, if the
chain of custody and control
requirement impedes the speed at
which railroad companies currently
deliver covered hazardous materials to
locations in HTUAs, then companies
may be forced to use multiple crews and
multiple shifts for what presently takes
only one crew and one shift. This would
have obvious financial implications.
Likewise, the commenter stated that if
shipments are slowed due to the new
requirement, customers of the rail mode
could also experience adverse effects,
particularly to operations that are
dependent on timely deliveries. In
concluding this portion of its comment,
the railroad stressed that anything it
would have to do above and beyond
current operations that would consume
capacity would cost the company, and
potentially its customers, money.
TSA Response: TSA agrees that the
security improvements required by the
final rule, particularly the chain of
custody and control provision, will have
cost impacts on the rail mode. We
believe, however, that the provisions of
the rule are essential to reducing risk in
the industry and increasing the overall
level of security and that the provisions
need not be obstacles to efficient
operations. TSA agrees that there will be
changes but has considered both
security and impact in finalizing the
requirements.
While the carrier asserted that the rule
may impact the flow of freight
movements over the national rail
network, the carrier failed to provide
TSA with a clear, detailed exposition of
how the rule will increase transit times
of shipments and cause the railroads to
increase staffing levels. As previously
noted, railroads may well find several
ways to comply with this provision. In
fact, TSA contends that some railroads
will be able to comply with the
provision without adversely affecting
rail operations. Without any new,
detailed information, we could not
reliably modify our original costs
estimates for the final rule.
Comments: The same commenter also
asserted that the RIA did not account for
the fact that the number of HTUAs may
expand in the future, which would
increase the cost of complying with the
chain of custody and control
requirement of the rule. Chasing a
potentially moving target, NS pointed
out, would make it hard for firms to
plan their operations and make longterm investments. This uncertainty
would impose additional costs on the
affected firms.
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TSA Response: In estimating costs for
the RIA, TSA did not forecast an
expansion in the number of HTUAs over
time, because TSA has finalized the list
of HTUAs through this rulemaking. If
TSA decides to make any changes to the
list of applicable HTUAs, it will do so
through further rulemaking. Thus,
railroads and other entities affected by
the rule will not need to plan for sudden
changes in the list of HTUAs.
Consequently, we did not adjust the RIA
for potential changes to the number of
HTUAs.
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iii. Opportunity Cost of Foregone
Investments in Rail Capacity
Comments: Maintaining and
expanding railroad infrastructure to
accommodate the continuing growth of
freight shipments requires significant
levels of investment, one commenter
asserted. Money that is spent complying
with Federal rules represents resources
that railroad companies cannot use to
expand rail capacity, something that is
needed to meet the transportation needs
of the nation. The commenter implied
that investments in security
improvements represent opportunity
costs to the rail mode, and that TSA
failed to account for these types of costs
in the RIA.
TSA Response: For any given firm,
part of the cost of every investment
decision is the value of the benefits
forgone from choices not taken. The
issue is no different for investments in
security improvements. To adequately
evaluate the claims included in the
comment, TSA would need data
reflecting current rail capacity relative
to future demand identifying projected
capacity shortfalls. TSA could then
compare the total cost of the chain of
custody and control requirement to the
total cost of industry investments in
capacity. Without such data, which was
not provided by the commenter, TSA
could not credibly change its analysis.
The agency was also unable to obtain
this type of data from a public source.
4. Incidence of Compliance Costs
Comments: One commenter—a large
Class I railroad—expressed concern that
the private sector is expected to
shoulder the costs of the final rule. It
opined that shippers will pay for the
cost of security regulations issued by
TSA absent any government funding.
An individual, echoing the comments
made by the railroad, also predicted that
the railroad companies would pass
along compliance costs to customers in
the form of rate increases.
TSA Response: Nothing in this final
rule would prevent a freight railroad
carrier or a rail hazardous materials
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Jkt 217001
facility or even a rail transit system from
attempting to pass on its costs of
compliance to its customers. That is a
decision for each regulated party to
make, one that falls outside the scope of
the final rule.
Although TSA acknowledges that
some firms might pass on their
compliance costs, we were unable to
conclusively determine if this would be
a direct result of the final rule. Without
further information from industry, TSA
did not attempt to ascertain who would
ultimately pay for the costs of the
regulation other than the parties directly
regulated by the rule.
5. Unintended Economic Consequence
of Regulation
Comments: The cost of complying
with the regulation will ultimately fall
on consumers in the form of shipment
rate increases, one individual stated.
Increased rates for freight shipments
will cause consumers to move
shipments of hazardous materials from
railroads to commercial motor carriers,
making them more susceptible to attacks
at truck stops within HTUAs. The
commenter noted that it is widely
accepted in risk analysis circles that
chemicals are generally safer when
transported by rail than by highway.
TSA Response: While some
consumers may engage in intermodal
substitution, the analysis put forth by
the commenter is incomplete. To fully
evaluate the substitution effect between
rail and trucking services would require
several additional pieces of information:
How will the increase in railroad
operating cost be reflected in the fee
railroads charge to customers? Is there
tank truck capacity to absorb the shifted
volume such that current operating
costs and fees of the trucking industry
would be unaffected? Would delivery by
tank truck rather than rail car require
additional time in transportation? What
additional capital costs would
consumers be required to assume in
order to accommodate a shift from rail
to trucking? What additional costs
would be incurred by consumers as a
result of changes in plant operations to
accommodate a shift from rail to
trucking? How elastic or inelastic is the
demand for rail transport of hazardous
material? Absent these data, TSA
decided it could not credibly change the
cost estimates in the RIA in response to
this comment.
6. Insufficient Calculation of Benefits
Comments: One individual stated that
TSA failed to provide information on
the approximate percentage of total risk
that would be eliminated by the rule. He
also noted that the re-routing of certain
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freight around various metropolitan
areas would likely be more effective in
mitigating risk to the public.
TSA Response: As previously noted,
risk is dynamic—the risk of a
transportation incident occurring in one
mode of transportation may shift over
time. In the rail mode, like all other
modes, factors such as threat,
vulnerability, and consequence are
constantly evolving, making it difficult
to quantitatively measure risk. For this
reason, TSA did not attempt to quantify
benefits or risk reduction to the rail
industry. TSA has concluded, however,
that investment in the security measures
required by this rule remains a prudent
course of action.
While we appreciate the individual’s
comments regarding the re-routing of
certain types of freight around
metropolitan areas, we have not
evaluated that alternative at this time,
although we suspect the costs of such a
requirement could be significant.
Further, it is illustrative that no
railroads suggested this as a viable
alternative to the rule. Moreover, this
issue is outside the scope of this final
rule, but PHMSA addressed it in its
interim final rule published in the
Federal Register on April 16, 2008.54
Comments: Echoing the comment
summarized above, a railroad carrier
remarked that TSA did not weigh the
costs of the regulation against the
probability of a transportation security
incident in the rail mode. The railroad
implied that the agency, while only
examining the potential consequences
of an event, failed to acknowledge the
relatively low probability of an attack on
a rail car, and therefore did not
complete a comprehensive analysis of
the rule.
TSA Response: As stated several
times above, risk is not a static concept.
The ever-shifting, always evolving
nature of risks to the transportation
sector makes it very difficult for TSA to
calculate the probability of an event in
any particular mode. For this reason, we
did not attempt to quantitatively gauge
the level of risk to the rail transportation
industry.
Moreover, TSA does not concede that
the probability of an incident involving
a rail car is relatively low. The
commenter provided no facts or
evidence to support its claim, and the
agency strongly believes that security
improvements in the industry are
merited. Even if the probability of an
incident in the rail mode were low, the
potential consequences of such an
incident could be very significant. If
54 See Section IV.G ‘‘Chain of Custody and
Control.’’
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potential consequences are high, it is
worth taking steps to deter an incident.
7. Impact on Small Entities
Comments: Some commenters
expressed concern that the requirement
for rail hazardous materials facilities to
attend rail car exchanges during a
physical transfer of custody might
impose an economic burden on the
industry. These commenters were
particularly concerned about the
economic effect on small companies
that may not be open for business at the
time of transfer.
TSA Response: TSA recognizes that a
rail hazardous materials receiver located
in an HTUA that is not open for
business 24 hours a day, seven days a
week, may incur some additional cost to
meet the requirements of the final rule.
To the best of its ability, TSA accounted
for this economic impact in the RIA,
estimating that rail hazardous materials
facilities will collectively incur costs of
over $70 million, discounted at 7
percent, over the 10-year period of
analysis. To date, TSA has not received
any information that would allow it to
improve its estimate and therefore has
not changed it for the final rule.
Comments: An industry trade
association representing short line and
regional railroads expressed
reservations about how the chain of
custody and control requirement will
affect small railroad carriers. Explaining
how the rule may fundamentally change
the way small railroads operate, the
trade association asserted that the
requirement may impose a severe
financial impact on the industry.
In its comment, the trade association
stated that small railroad companies,
unlike the large Class I railroads,
generally operate less than 24 hours a
day. In fact, many companies may also
only operate two to three days a week,
meaning that they are not always open
for business when another railroad
drops off a car for interchange.
Furthermore, small railroads find it
difficult to predict when a rail car will
be dropped off for interchange, given
the way many Class I railroads operate
around the clock.
The commenter stated that the
operational realities of the industry will
make it difficult for small railroads to
comply with the chain of custody and
control requirement without making
significant changes to their practices.
The trade association contended that
small railroad carriers will need to
evolve from scheduled, weekday
businesses into firms operating 24 hours
a day, seven days a week, in order to
adequately follow the chain of custody
and control provision, which will
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require firms to document the transfer of
custody of a rail car. With no new
source of revenues to offset the
increased operating costs, the
commenter argued that the effects of
this change will be financially
devastating for small railroads.
TSA Response: TSA appreciates the
special needs of the smaller railroads
represented by the commenter and has
no doubt that the unique characteristics
of the industry pose special issues. The
chain of custody and control
requirement is a paramount feature of
this rule and represents a new business
process for the industry in general. We
realize the provision will impact firms
financially.
We do not agree, however, with some
of the assertions made by a trade
association. First, the rule does not
require small Class II and Class III
railroads to change their hours of
operation. While it is true that the chain
of custody and control requirement will
impact current industry practices, small
railroads are free to meet the
requirement, which is a performance
standard, in almost any way practicable.
Because it is also incumbent upon Class
I railroads to meet the performance
standard, TSA anticipates railroads may
need to increase their level of
coordination with respect to
interchanges of covered hazardous
materials. The agency believes that this
can occur without substantial changes
to small railroads’ hours of operations or
staffing levels.
Furthermore, lacking detailed
information on the types of costs likely
to be incurred by smaller railroads, TSA
could not credibly modify its cost
estimates for this provision of the rule.
In its comment, the trade association
did not specifically lay out how affected
small entities would meet the
requirement, and how the small entities’
actions would impose high financial
costs. The trade association did not
direct TSA to more information that
would allow it to more fully understand
the operational and financial impacts of
the provision.
Despite all the comments on this
provision, TSA strongly believes that
the security benefits of improved chains
of custody and control are critical for
securing the nation’s rail network.
During the public comment period, TSA
did not receive any recommendations
for less-costly alternatives that would
attain the security goal of this provision
of the rule. For this reason, TSA sees no
reason to exclude the chain of custody
provision that TSA proposed in the
NPRM.
Comments: With respect to rail
hazardous materials facilities, an
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individual questioned whether TSA had
any further information on the number
of small facilities likely to incur costs to
secure their property. This individual
noted that, in the RIA provided with the
NPRM, TSA estimated that between two
and 14 small facilities will need to
install security fencing to comply with
the rule.
TSA Response: We have not adjusted
the original estimate of the number of
small facilities likely to incur cost as a
result of the rule. During the comment
period, the agency did not receive any
new information that would cause it to
modify its initial estimate, nor could it
find any new information to belie its
original claim. The estimate, therefore,
of two to 14 small facilities remains the
same for the RIA for the final rule.
8. Impact on International Trade
Comments: Another individual
asserted that the RIA for the NPRM
failed to adequately examine whether
the rule will adversely impact
international trade. Specifically, he
stated that TSA did not sufficiently
analyze whether the rule will interfere
with international boundary crossing
inspection procedures of tank cars.
TSA Response: The chain of custody
requirements do not apply at any
shipper facilities located outside the
United States. Rather, for international
shipments to the United States, the
requirements begin at the first railroad
carrier interchange point and apply to
all subsequent carrier interchanges that
are otherwise subject to this final rule.
The requirements also apply at a rail
hazardous materials receiver located in
an HTUA, regardless of whether the rail
car originated at a foreign or domestic
location. Accordingly, this final rule
does not affect any existing
requirements applicable to inspections
of tank cars entering the United States
from a foreign location.
L. Comments Beyond the Scope of the
Rule
Comments: Two commenters
supported the rerouting of hazardous
materials around cities. The
Government of the District of Columbia
(District) commented on the feasibility
of using technologies that incorporate
chemical sensors and open hatch
detection into GPS tracking systems to
immediately notify local officials and
first responders of potential tank car
leaks, in order to meet the proposed
location and shipping information
requirements in § 1580.103. The District
asserted that because of the unique risks
that the city faces, such security
measures could not substitute for
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Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Rules and Regulations
V. Rulemaking Analyses and Notices
mstockstill on PROD1PC66 with RULES2
Changes to Federal regulations must
undergo several economic analyses.
First, Executive Order 12866 (E.O.
12866), Regulatory Planning and Review
(58 FR 51735, October 4, 1993), directs
each Federal agency to propose or adopt
a regulation only upon a reasoned
determination that the benefits of the
intended regulation justify its costs.
Second, the Regulatory Flexibility Act
of 1980 (5 U.S.C. 601 et seq., as
amended by the Small Business
Regulatory Enforcement Fairness Act of
1996), requires agencies to analyze the
economic impact of regulatory changes
on small entities. Third, the Trade
Agreements Act (19 U.S.C. 2531–2533)
prohibits agencies from setting
standards that create unnecessary
obstacles to the foreign commerce of the
United States. Fourth, the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1531–1538) requires agencies to prepare
a written assessment of the costs,
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benefits, and other effects of proposed
or final rules that include a Federal
mandate likely to result in the
expenditure by State, local, or tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
annually (adjusted for inflation). The
OMB A–4 Accounting Statement is
located in the full Regulatory Impact
Assessment, which is located in the
docket.
In conducting these analyses, TSA
determined:
(1) This rulemaking does not
constitute an economically ’’significant
regulatory action’’ as defined in E.O.
12866.
(2) This rulemaking is unlikely to
have a significant economic impact on
a substantial number of small entities
under § 605(b) of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). To
make this determination, we conducted
a Final Regulatory Flexibility Analysis
(FRFA), which is available below.
(3) This rulemaking does not
constitute a barrier to international
trade.
(4) This rulemaking does not impose
an unfunded mandate on State, local, or
tribal governments, or on the private
sector.
TSA summarizes the E.O 12866
analysis, international trade analysis,
and the unfunded mandates analysis,
though provides the FRFA in its
entirety.
A. Executive Order 12866 Assessment
(Regulatory Planning and Review)
Impact Summary
The rule addresses threats and
vulnerabilities in the rail transportation
sector. This summary provides a
synopsis of the costs and benefits of the
final rule.
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Benefits of the Final Rule
The final rule enhances the security of
rail transportation by: (1) Requiring the
protection of SSI in the rail
transportation sector; (2) clarifying TSA
and DHS authority to conduct
inspections in order to assess and
mitigate threats to security; (3)
providing TSA and DHS with a
regulatory mechanism to locate rail cars
containing certain hazardous materials;
(4) mandating that rail hazardous
materials facilities that ship or receive
these materials conduct routine
inspections of shipments; (5) creating a
secure chain of custody requirement for
the transfer of rail cars containing these
materials; and (6) requiring certain rail
hazardous materials shipper and
receiver facilities to store rail cars
containing these hazardous materials in
areas with physical security controls.
Costs of the Final Rule
The costs of the final rule result
primarily from the requirements for:
(1) Freight railroad carriers and rail
hazardous materials shippers and
receivers to establish secure chains of
custody for hazardous materials covered
by the rule; and (2) railroad carriers, rail
hazardous materials shippers, and rail
hazardous materials receivers to provide
TSA and DHS with various pieces of
information. TSA concluded that the
present value total cost (7 percent
discount rate) of the rule will range from
$152.8 million to $173.9 million. See
Figure 1 for the primary 10-year cost
estimate, which equals $163.3. TSA has
provided a detailed discussion in the
docket of how TSA calculated this
estimate and the range of estimates
discussed above.
E:\FR\FM\26NOR2.SGM
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ER26NO08.000</GPH>
rerouting all hazardous materials
around the District.
TSA Response: The topic of rerouting
of hazardous materials around cities is
outside the scope of the NPRM, and
therefore TSA is not addressing it in this
final rule. However, TSA notes that on
December 21, 2006, PHMSA published
an NPRM in the Federal Register,
proposing to revise the current
requirements in the HMR applicable to
the safe and secure transportation of
hazardous materials transported in
commerce by rail. 71 FR 76852. Section
I.B. ‘‘Purpose of the Rule’’ contains a
discussion of PHMSA’s proposed
requirements. PHMSA published its
interim final rule in the Federal
Register on April 16, 2008.
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Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Rules and Regulations
B. Regulatory Flexibility Act Assessment
In accordance with the Regulatory
Flexibility Act (5 U.S.C. 601–612), TSA
prepared this Final Regulatory
Flexibility Analysis (FRFA) that
examines the impacts of the final rule
on small entities. A small entity may be:
(1) A small business, defined as any
independently owned and operated
business not dominant in its field that
qualifies as a small business per the
Small Business Act; (2) a small not-forprofit organization; or (3) a small
governmental jurisdiction (locality with
fewer than 50,000 people).
This FRFA addresses the following:
1. The objectives of and legal basis for
the final rule;
2. The reason the agency is
considering this action;
3. Significant issues raised during the
public comment period;
4. The number and types of small
entities to which the rule applies;
5. Projected reporting, recordkeeping,
and other compliance requirements of
the final rule, including the classes of
small entities that will be subject to the
requirements and the type of
professional skills necessary for
preparation of the reports and records;
and
6. Flexibility in the final rule.
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Background and Legal Authority
TSA has the responsibility for
enhancing security in all modes of
transportation. Under ATSA, 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.’’ 55 TSA
has authorities in addition to those
transferred from DOT. TSA is
specifically empowered to develop
policies, strategies, plans and
regulations for dealing with threats to
all modes of transportation, including
mass transit.56 As part of its security
mission, TSA is responsible for
assessing intelligence and other
information to identify individuals who
55 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. Under Section 403(2) of the Homeland
Security Act (HSA) of 2002, Pub. L. 107–296, 116
Stat. 2315 (2002), all functions of TSA, including
those of the Secretary of Transportation and the
Undersecretary of Transportation of Security related
to TSA, transferred to the Secretary of Homeland
Security. Pursuant to DHS Delegation Number
7060.2, 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.
56 49 U.S.C. 114(f)(3).
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pose a threat to transportation security
and to coordinate countermeasures with
other Federal agencies to address such
threats.57 TSA also is empowered to
enforce security-related regulations and
requirements,58 ensure the adequacy of
security measures for the transportation
of cargo,59 oversee the implementation,
and ensure the adequacy, of security
measures at transportation facilities,60
and carry out other appropriate duties
relating to transportation security.61
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,62 and may issue
regulations and security directives
without notice or comment or prior
approval of the Secretary of DHS.63 TSA
is also charged with serving as the
primary liaison for transportation
security to the intelligence and law
enforcement communities.64
TSA’s authority with respect to
transportation security is
comprehensive and supported with
specific powers related to the
development and enforcement of
regulations, security directives, 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.
TSA’s legal authority is supported by
National policy. 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.’’ 65 In recognition of the lead
role assigned to DHS for transportation
security, and consistent with the powers
granted to TSA by ATSA, 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.’’ 66 In furtherance of
57 49
U.S.C. 114(f)(1)–(5); (h)(1)–(4).
U.S.C. 114(f)(7).
59 49 U.S.C. 114(f)(10).
60 49 U.S.C. 114(f)(11).
61 49 U.S.C. 114(f)(15).
62 49 U.S.C. 114(l)(1).
63 49 U.S.C. 114(l)(2).
64 49 U.S.C. 114(f)(1) and (5).
65 HSPD–7, Paragraph 1.
66 HSPD–7, Paragraph 15.
58 49
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this coordination process, HSPD–7
provides that DHS and DOT will
‘‘collaborate on all matters relating to
transportation security and
transportation infrastructure
protection.’’ 67 (HSPD–7, Paragraph
22(h).)
In accordance with the September
2004 Memorandum of Understanding
(MOU) between DHS and DOT, the two
departments consult and coordinate on
security-related rail and hazardous
materials transportation issues to ensure
they are consistent with overall DHS
security policy goals and objectives and
the regulated industry is not confronted
with inconsistent security guidance or
requirements promulgated by multiple
agencies.
Statement of Need for the Regulatory
Action
TSA developed the final rule to
mitigate threats and vulnerabilities in
the rail transportation network. In the
United States, the freight rail
transportation system transports
hundreds of millions of dollars worth of
freight and employs hundreds of
thousands of individuals annually.68
Passenger systems, including passenger
railroad carriers as well as rail mass
transit systems, carry millions of people
daily throughout the country.
Rail transportation networks—both
passenger and freight—are vulnerable to
a variety of transportation security
incidents. In the past, terrorists have
targeted passenger and mass transit rail
transportation systems to inflict mass
casualties (e.g., Tokyo 1995; Moscow
2000, 2001, and 2004; Madrid 2004;
London 2005; and Mumbai 2006).
Freight rail systems also represent
potential terrorist targets. Although not
the result of a deliberate attack, the
incident involving a ruptured chlorine
tank car in Graniteville, South Carolina,
killed nine people and injured hundreds
more. These incidents highlight the fact
that hazardous materials in rail
transportation and rail passenger
systems are possible targets of terrorism
intended to inflict hundreds or even
thousands of fatalities, with direct and
indirect costs from transportation
system disruption that could total
billions of dollars.
The final rule attempts to reduce the
probability that such an event will occur
by: (1) Requiring the protection of
sensitive security information in the rail
sector; (2) clarifying TSA’s authority to
67 HSPD–7,
Paragraph 22(h).
Department of Transportation, Research
and Innovative Technology Administration, Bureau
of Transportation Statistics, Pocket Guide to
Transportation 2006 (Washington, D.C.: Bureau of
Transportation Statistics, 2006).
68 U.S.
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Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Rules and Regulations
conduct inspections of rail security
operations; (3) requiring the designation
of an RSC and an alternate; (4) requiring
covered entities to have the ability to
report on rail car locations and shipping
information for cars under their
physical custody and control; (5)
requiring covered entities to report
significant security concerns to TSA;
and (6) requiring covered entities to
establish chain of custody and control
standards for certain hazardous
shipments.
Issues Raised in Public Comments
TSA received public comments on the
Initial Regulatory Flexibility Analysis
that was issued in support of the NPRM
during the public comment period. All
comments are available for the public to
view at the Federal Docket Management
System: https://www.regulations.gov/
search/index.jsp.
As part of this rulemaking effort, TSA
has summarized and responded to all
public comments relating to the Initial
Regulatory Flexibility Analysis issued
with the NPRM. Comment summaries
and responses are located in the
preamble to the final rule, which is also
available at https://www.regulations.gov/
search/index.jsp and in the Federal
Register.
72165
Description and Estimated Number of
Small Entities
The regulated entities are divided into
railroad carriers, transit systems, and
rail hazardous materials facilities. Rail
hazardous materials facilities are
primarily chemical manufacturers,
although some wholesalers may also
ship chemicals. Additionally, some
ammonia producers classify themselves
as support activities for agriculture or
agricultural wholesalers. Figure 1
provides the North American Industry
Classification System (NAICS) codes
and SBA standards for defining small
entities for the sectors expected to be
affected by the rule.
FIGURE 1—FIRM SIZE STANDARDS
Industry
NAICS
Small business standard
Line Haul railroads ............................................
Short line railroads ............................................
Transit Systems .................................................
Petrochemical manufacturing ............................
Alkalis and chlorine manufacturing ...................
All other basic inorganics ..................................
All other basic organics .....................................
Plastic and resin manufacturing ........................
Nitrogen fertilizer manufacturing .......................
Other chemical manufacturing ..........................
Support activities for rail ....................................
Petroleum refineries ..........................................
Pulp and paper mills ..........................................
Support activities for agriculture ........................
Chemical wholesalers ........................................
Agricultural wholesalers .....................................
Electric utilities ...................................................
Water and sewage systems, private .................
Water and sewage systems, public ..................
482111 ..............................................................
482112 ..............................................................
485 ....................................................................
32511 ................................................................
325181 ..............................................................
325188 ..............................................................
325199 ..............................................................
32511 ................................................................
325311 ..............................................................
325 ....................................................................
48821 ................................................................
32411 ................................................................
3221 ..................................................................
1151 ..................................................................
42469 ................................................................
42491 ................................................................
2111 ..................................................................
2213 ..................................................................
92 ......................................................................
1,500 FTEs.
500 FTEs.
$6.5 million.
1,000 FTEs.
1,000 FTEs.
1,000 FTEs.
1,000 FTEs.
750 FTEs.
1,000 FTEs.
500–1,000 FTEs.
$6.5 million.
1,500 FTEs.
750 FTEs.
$6.5 million.
100 FTEs.
100 FTEs.
<4 m megawatt hours/year.
$6.5 million.
<50,000 people serviced.
Source: Small Business Administration.
owned. Based on the Association of
American Railroads (AAR) data on
employment and revenues, TSA
Type
Count
assumed that all railroad carriers, except
the seven Class I railroads, are small
Small Rail Hazardous Materials
entities. This assumption may be
Facilities ....................................
16
conservative, because some private
FIGURE 2—TYPES OF SMALL ENTITIES
Total .......................................
651 companies own a number of local
Type
Count
railroads and may exceed the 500 fulltime equivalent (FTE) size limits. Figure
The number of small railroad carriers
Railroads .......................................
549 potentially affected by the rule is
3 presents the AAR data on the number
Transit, Other ................................
86 difficult to estimate accurately, because
of railroads, average revenues, and
most local railroad carriers are privately average number of FTEs.
Overall, of all the regulated parties,
TSA identified 651 entities that may
meet the SBA definition of a small
entity. These entities reflect the
following makeup:
FIGURE 2—TYPES OF SMALL
ENTITIES—Continued
FIGURE 3—RAILROAD TYPES BY AVERAGE REVENUE AND NUMBER OF EMPLOYEES
mstockstill on PROD1PC66 with RULES2
Type
Number
Class I ..........................................................................................................................
Regional .......................................................................................................................
Local ............................................................................................................................
Switching and Terminal ...............................................................................................
Average freight revenue
Average number of FTEs
$5,590,000,000
45,483,871
3,121,019
3,137,255
21,100
239
17
32
7
31
314
204
Source: American Association of Railroads.
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Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Rules and Regulations
The Bureau of Transportation
Statistics (BTS) lists 152 transit systems
(21 commuter rail systems, 45 rail
transit systems, and 86 other rail transit
systems).69 Of these 86 listed as ‘‘other,’’
the systems include cable car, inclined
plane, monorail, and automated
guideway.70 As shown in Figure 4, only
the systems in the ‘‘other’’ category have
average passenger revenues of less than
$6.5 million, which is the SBA standard
for small transit entities. The other
transit systems not only have average
passenger revenues that exceed the
standard, but are also generally operated
by governmental entities that receive
financial support from the Federal and
State governments. TSA did not identify
any systems that qualified as small. It is
unlikely that local governments that
meet the SBA standard for small
governments (50,000 people served)
operate rail transit systems.
Consequently, TSA has included only
the ‘‘other’’ entities as potentially
affected small entities.
FIGURE 4—TRANSIT SYSTEMS BY AVERAGE REVENUES
Type
Number
Heavy Rail ...................................................................................................................................................
Light Rail ......................................................................................................................................................
Commuter Rail .............................................................................................................................................
Other ............................................................................................................................................................
Average annual
passenger revenue
14
27
21
86
$189,590,000
8,490,000
73,910,000
590,000
Source: BTS.
Of the 241 rail hazardous materials
facilities identified from the Risk
Management Program (RMP) data, there
are 29 facilities that at first review
appeared to be small entities based
upon the facility employee count.
However, within these 29, research on
corporate relationships revealed that, at
most, 16 facilities are potentially small.
As explained in Section 5.6.1 of the
separate full evaluation, only facilities
with less than 21 employees are
expected to incur incremental costs
related to creating secure storage areas,
while all will incur costs for the other
requirements. Based upon this threshold
of 20 or less employees, at most eight
facilities could have costs. Three of
these facilities have revenue data that
suggests a large firm. Additionally,
descriptions of operating locations and
business lines on the World Wide Web
suggest that these three facilities have a
higher number of employees than small
entities and that they are parts of much
larger firms. Although TSA is using
eight as the number of facilities for
purposes of the analysis below, this may
overstate the number of firms.
Figure 5 presents the data distribution
by FTE for hazardous materials facilities
that may be SBA-defined small entities.
Of the total facilities assumed to be
small, 14 have less than 100 employees
while only two have 100 or more.71
Description of Compliance
Requirements
Railroads will have to submit the
name(s) of and engage in training of the
RSC, document chain of custody
transfers, and file incident reports and
car location reports as needed. TSA
assumed that regional and local railroad
carriers handled hazardous materials
shipments in proportion to their
FIGURE 5—AFFECTED SMALL RAIL
percentage of total freight carried.
HAZARDOUS MATERIALS FACILITIES
Again, this assumption may be
conservative because it is likely that
Rail
hazardous Class I carriers move most chemicals.
Number of FTEs
Figure 6 presents the costs for an
materials
facilities
average regional, local, and shortline
and terminal (S&T) rail carrier to
100+ ............................................
2
comply with the requirements.
50–99 ..........................................
3
21–49 ..........................................
10–20 ..........................................
1–9 ..............................................
Potential Small Entities ...............
5
5
1
16
Source: TSA Calculations.
FIGURE 6—AVERAGE COSTS TO RAILROADS BY SIZE
Requirement
Unit cost
Number Activities/year
Regional
Local
S&T
RSC .........................................................................................
Incident Report ........................................................................
Chain of Custody .....................................................................
Location ...................................................................................
$91.00
63.00
4,969,723
91.00
2 .............................................
2 .............................................
Weighted by % of Revenue ...
1 .............................................
$182
126
5,362
91
$182
126
368
91
$182
126
370
91
Total .................................................................................
....................
................................................
5,761
767
769
Source: TSA Calculations.
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As discussed above, only the 86
transit systems in the ‘‘other’’ category
in Figure 4 are expected to be small
69 Bureau of Transportation Statistics, National
Transportation Statistics, Modal Profile Transit
Systems, Updated April 2005. Note, however, that
four of the 152 transit systems listed by BTS are
classified as trolley bus and would not be covered
by this final rule. This is represented in Figure 4,
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which only shows 41 transit systems (14 heavy rail
and 27 light rail).
70 The estimate for ‘‘Other Rail Transit Systems’’
impacted by this final rule shown in Figure 4 is
conservative because it includes conveyances such
as vanpools and aerial tramways, which will not be
affected by this rule.
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71 The number of facilities that actually are part
of firms that meet the small entity definitions may
be lower. TSA excluded only those facilities that
could be clearly identified as belonging to
corporations or municipalities that exceed the SBA
standards.
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entities according to SBA standards.72
These small transit systems will only
incur unit costs for submission of RSC
information and incident reporting.
Both the RSC and incident reporting
costs are expected to be incurred on
average just once per year per small
transit system, resulting in average costs
72167
per system of just $245, as shown in
Figure 7.
FIGURE 7—AVERAGE COSTS FOR SMALL TRANSIT SYSTEMS
Unit cost
Number of activities/
year
Regional
A
B
A×B
Requirement
RSC .......................................................................................................
Incident Report ......................................................................................
$91.00
63.00
2
1
$182
63
Total ................................................................................................
....................................
....................................
245
Source: TSA Calculations.
As explained above, the cost for
hazardous materials facilities includes
the cost of adding fencing, training, and
inspections, plus the types of cost
incurred by railroads. TSA assumed that
each facility will train an average of 10
workers and the number of inspections
per small facility is based on the
assumption that the number of
inspections is proportional to the
quantity of chemical held. The 16 small
rail hazardous materials facilities
represent about 2.7 percent of the
covered hazardous materials affected
chemicals; therefore 2.7 percent of the
inspections were divided among the 16
firms to estimate 191 inspections a year.
Figure 8 presents the average costs for
a hazardous materials facility with 20 or
fewer employees. Because fencing is a
capital cost, Figure 8 and Figure 9 also
present the cost based on amortizing the
fencing cost over 10 years at 7%
discount rate.73
FIGURE 8—AVERAGE COSTS FOR SMALL RAIL HAZARDOUS MATERIALS FACILITIES (<21 EMPLOYEES)
Unit cost
Number
First-year cost
A
B
A×B
Requirement
Annual after
1st year
Secure Storage Area .............................................................................
RSC .......................................................................................................
Training ..................................................................................................
Inspections .............................................................................................
Incident Report ......................................................................................
Chain of Custody ...................................................................................
Location Reporting .................................................................................
$16,150
91
63
11
63
42,481
91
1
1
10
191
1
1
1
$16,150
91
630
2,006
63
42,481
91
$2,299
91
630
2,006
63
42,481
91
Total ................................................................................................
..........................
..........................
61,512
47,661
Source: TSA Calculations.
FIGURE 9—AVERAGE COSTS FOR SMALL RAIL HAZARDOUS MATERIALS FACILITIES (>=21 EMPLOYEES)
Unit cost
Number
First-year cost
A
B
A×B
Requirement
Annual after
1st year
RSC .......................................................................................................
Training ..................................................................................................
Inspections .............................................................................................
Incident Report ......................................................................................
Location Reporting .................................................................................
$91
63
11
63
0
1
10
191
1
0
$91
630
2,006
63
0
$91
630
2,006
63
0
Total ................................................................................................
..........................
..........................
2,790
2,790
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Source: TSA Calculations.
To examine the overall impact on
small firms, a traditional method is to
compare costs as a percentage of
revenue. TSA was unable to find
revenue information on six of the 16
small rail hazardous materials facilities.
One approximation method is to use
known average revenues per employee
as a proxy. For those firms in this group
of small facilities with revenue
information available, the average
revenue per employee is approximately
$685,000. There is, however, one firm
with revenue as low as $50,000 per
72 Again, it is important to note that the estimate
of 86 ‘‘Other Rail Transit Systems’’ impacted by the
rule is in all likelihood conservative.
73 Note that calculations in Figures 8 and 9 may
be off due to rounding.
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employee. This wide range suggests an
alternative value must also be
considered. For the compliance impacts
in Figure 10, TSA used the smallest
revenue per employee number to create
a proxy for the missing revenue values
as the ‘‘Low End’’ estimate. For the
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‘‘Average’’ estimate, TSA substituted the
average $685,000 as the revenue per
employee. For each identified rail
hazardous materials facility that may be
a small entity, a letter identification
label is used to avoid listing specific
business names. For the railroads,
averages appeared to be representative
and only one estimate for each rail or
transit type is presented. Figure 10
presents the average costs as a percent
of average revenues with the missing
data replacement described above. As
can be seen, most instances have a
relatively low cost/revenue relationship.
However, five instances in the ‘‘lowend’’ case and two in the ‘‘average’’ case
could have much higher impact if the
unknown firm revenues are reflected by
the estimation technique.
FIGURE 10—AVERAGE FIRST-YEAR COMPLIANCE COSTS AS A PERCENT OF REVENUE
(A)
ID
(B)
Revenue: low end
estimate
(C)
Revenue: average
estimate
(D)
Cost impact
(E = D/B)
Cost ÷ revenue
(low end)
(percent)
(F = D/C)
Cost ÷ revenue
(average)
(percent)
Rail and Transit
Regional ..............................................................
Local ....................................................................
S & T ...................................................................
Small Transit .......................................................
$45,483,871
3,121,019
3,137,255
590,000
$16,624
1,465
2,411
154
.................................
.................................
.................................
.................................
0.0
0.0
0.1
0.0
20.5
10.3
9.5
0.3
7.2
6.2
0.1
0.3
0.0
0.0
0.0
0.0
0.1
0.0
0.0
0.0
1.5
0.7
0.7
0.3
0.5
6.2
0.1
0.3
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
Small Rail Hazardous Materials Facilities
A ..............................
B ..............................
C ..............................
D ..............................
E ..............................
F ..............................
G .............................
H ..............................
I ...............................
J ..............................
K ..............................
L ..............................
M .............................
N ..............................
O .............................
P ..............................
$300,000
600,000
650,000
24,400,000
850,000
1,000,000
4,600,000
1,100,000
12,000,000
10,000,000
27,000,000
24,400,000
2,500,000
19,600,000
190,000,000
130,000,000
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Flexibility in the Final Rule
Four parts of the final rule provide
small entities with regulatory flexibility,
helping them to minimize their
compliance costs.
First, the final rule will not require
some railroad carriers, including certain
tourist and scenic railroads, to maintain
RSCs unless otherwise notified by TSA.
This should provide some flexibility to
certain smaller railroads not hauling
freight.
Second, the provision that requires
freight railroad carriers and rail
hazardous materials facilities to provide
TSA with the location and shipping
information of certain rail cars has been
modified to allow smaller companies
more flexibility. Upon request by TSA,
each Class I railroad must provide
information to TSA no later than five
minutes if the request concerns only one
rail car and no later than 30 minutes if
the request concerns more than one rail
car. Conversely, the rule will require rail
hazardous materials facilities and
freight railroads other than the Class I
carriers, upon request by TSA, to
provide the agency with location and
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4,108,192
8,216,383
8,901,082
24,400,000
11,639,876
1,000,000
4,600,000
1,100,000
12,000,000
10,000,000
27,000,000
24,400,000
34,234,930
19,600,000
190,000,000
130,000,000
61,512
61,512
61,512
61,512
61,512
61,512
2,790
2,790
2,790
2,790
2,790
2,790
2,790
2,790
2,790
2,790
shipping information of rail cars within
30 minutes, regardless of the number of
rail cars covered by the request.
Moreover, the rule will also allow
carriers to use a designated third party
or agent to provide the car location and
shipping information so long as the
designated third party can provide
accurate information within the
specified timeframe. These policies
should provide smaller railroads and
rail hazardous materials facilities with
some regulatory relief.
Third, with respect to the chain of
custody provision of the final rule, TSA
added a new definition for what
constitutes an ‘‘attended’’ rail car during
an exchange of custody. The new
definition, which TSA created after
receiving many comments from
industry, allows railroad carriers and
rail hazardous materials facilities greater
flexibility by stating that a
representative of a railroad or rail
hazardous materials facility does not
have to maintain a line of sight with all
rail cars during an exchange of custody.
Railroads and rail hazardous materials
facilities will now only need to ensure
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that an employee or representative is in
reasonable proximity to the rail car(s),
monitoring an exchange of custody in a
manner that would allow them to
properly detect unauthorized activity.
This flexibility should allow firms to
comply with the provisions using less
costly methods than would have been
otherwise possible.
Fourth, the final rule will allow rail
hazardous materials facilities that
receive covered shipments located in
HTUAs to request an exemption from
the chain of custody and control section
if they believe, based on operational and
geographic characteristics, that the
potential security threat to the facility
does not warrant the application of the
security measure.
These measures should allow affected
firms—both large and small—some
flexibility in complying with the rule.
Identification of Duplication, Overlap,
and Conflict With Other Rules
This rail transportation security rule
affects entities that are also subject to
the requirements of other DHS rules—
the DHS Chemical Facility AntiTerrorism Standards (CFATS) regulation
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and the Coast Guard’s Maritime
Transportation Security Act (MTSA)
regulations. TSA has provided a more
detailed discussion in Section II of this
preamble.
mstockstill on PROD1PC66 with RULES2
Conclusion
While approximately 70% of the total
affected entities were identified as small
entities, the estimated compliance costs
associated with this rulemaking are low
on a per entity basis except for the
identified five (‘‘low end case’’) and two
(‘‘average case’’) facilities. Rail
hazardous materials facilities are
allowed great flexibility in selecting the
physical security measures needed to
ensure no unauthorized persons gain
access to the rail secure area, and may
select lighting, video surveillance, or
other appropriate methods besides
fencing to meet the performance
standard. Certain rail hazardous
materials facilities may receive an
exemption from some or all of the chain
of custody and control requirements.
TSA notes that these cases with the
significant impact are costed using the
most expensive compliance method
(fencing). These businesses may in fact
have much lower impacts based upon
the performance standard compliance
alternatives or exemption. Based on this
analysis, TSA believes that this FRFA
shows that an estimated impact of the
two cost scenarios with impact of over
6% on either five out of 651 firms (0.8
percent) or 2 out of 651 firms (0.3
percent) is unlikely to constitute a
substantial number under section 605(b)
of the RFA (5 U.S.C. 601 et seq.).
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3501 et seq.) requires
that TSA consider the impact of
paperwork and other information
collection burdens imposed on the
public and, under the provisions of
§ 3507(d), obtain approval from the
Office of Management and Budget
(OMB) for each collection of
information it conducts, sponsors, or
requires through regulations.
This final rule contains new
information collection activities subject
to the PRA. Accordingly, TSA has
submitted the following information
requirements to OMB for its review.
This final rule will require: (1) Freight
and passenger railroad carriers, rail
transit systems, certain rail hazardous
materials shipper and receiver facilities,
tourist, scenic, historic, and excursion
rail operations (whether operating on or
off the general railroad system of
transportation), and private rail car
operations (on or connected to the
general railroad system of
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17:35 Nov 25, 2008
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transportation) to allow TSA and DHS
officials working with TSA to enter and
be present within any area or within any
conveyance to conduct inspections,
tests, or to perform such other duties as
TSA directs, including copying of
records; (2) freight railroad carriers,
certain rail hazardous materials shipper
and receiver facilities, passenger
railroad carriers, and rail mass transit
systems to designate and submit contact
information for an RSC and at least one
alternate RSC to be available to TSA on
a 24-hours, 7 days a week basis to serve
as the primary contact for receipt of
intelligence information and other
security-related activities and
coordinator of security practices and
procedures with appropriate law
enforcement and emergency response
agencies; (3) freight and passenger
railroad carriers, certain rail hazardous
materials shippers and receivers,
passenger railroad carriers, rail mass
transit systems, tourist, scenic, historic,
and excursion rail operations (whether
operating on or off the general railroad
system of transportation), and private
rail car operations (on or connected to
the general railroad system of
transportation) to immediately report
potential threats and significant security
concerns to DHS; and (4) freight railroad
carriers and certain rail hazardous
materials shippers and receivers to
provide for a secure chain of custody
and control of rail cars containing a
specified quantity and type of
hazardous material.
This proposal would support the
information needs of TSA to enhance
security in the following modes of
transportation: freight rail, including
freight railroad carriers, rail hazardous
materials facilities which offer, load,
prepare, receive and/or unload certain
types and quantities of hazardous
materials, and private cars; passenger
rail, including passenger railroad
carriers such as intercity and commuter
passenger rail operations, rail transit
systems, tourist, scenic, historic, and
excursion rail operations (whether
operating on or off the general railroad
system of transportation), and private
rail car operations (on or connected to
the general railroad system of
transportation).
TSA estimates that the final rule will
affect 945 respondents, including freight
railroad carriers, passenger railroad
carriers and rail hazardous materials
facilities. TSA has revised this estimate
slightly from 949 respondents estimated
in the NPRM after further consideration.
These different respondents will have
different reporting responsibilities
under this final rule. TSA will require
all affected entities to submit RSC
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72169
contact information to TSA. The agency
estimates that each of the 945 freight
and passenger railroad carriers, rail
transit systems, and rail hazardous
materials shippers and receivers will
respond once to submit RSC
information to TSA, resulting in 945
responses.
Additionally, all affected entities will
need to report significant security
concerns to TSA. To forecast the
number of responses, TSA adopted
assumptions on the number of incidents
by industry segment (e.g., freight rail,
passenger rail, etc.). First, the agency
estimates that each freight railroad
carrier will respond anywhere from one
to 36 times per year depending on the
amount of PIH materials the carrier
transports. TSA estimates that each
passenger railroad and rail transit entity
will respond between zero and 1,460
times per year. TSA estimates that each
rail hazardous materials shipper and
receiver facility will respond from zero
to two times per year. In total, the
agency expects the affected entities to
send the government information
anywhere from 45,893 to 93,073 times
per year for this requirement, down
from the 49,762–99,862 annually
frequency TSA estimated in the NPRM.
As a primary estimate, TSA estimates
that there will be 69,483 incident
reports per year.
Finally, this final rule will require
affected entities to provide TSA with
information on the location and
shipping information on certain railcars
upon request. TSA estimates that it will
initiate between 105 and 255 requests
per year, with a primary estimate of 150
requests per year.
Thus, the annual frequency of
information requirements is between
46,943 and 94,273. Adding the three
primary estimates yields a total of
70,578 responses per year. (945 + 69,483
+ 150 = 70,578).
TSA estimates that the total annual
hour burden is 288,945 hours. This
figure was derived by adding the annual
burdens for RSC reporting (312) +
location and shipping reporting (150) +
primary significant security concerns
reporting (69,483) + chain of custody
reporting (219,000) = 288,945. After
further consideration, TSA has revised
its annual recordkeeping and reporting
cost burden from the range of
$3,420,655 to $6,576,955 to an
estimated $9,388,567. This figure was
derived by adding the annual costs for
RSC reporting ($28,378) + location and
shipping reporting ($13,650) + primary
significant security concerns reporting
($4,377,429) + chain of custody
reporting ($4,969,110) = $9,388,567.
Larger reporting burdens are anticipated
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for passenger rail systems due to higher
estimates of suspicious incident reports.
TSA received various comments
related to the information collection
generally. One mass transit agency
asked whether a list of security
coordinators previously sent to TSA to
comply with the rail security directives
would satisfy § 1580.201’s requirement
to appoint an RSC. Passenger railroad
carriers and rail transit systems that
have already provided the required
information on their primary and
alternate RSCs to TSA do not have to
take further action unless any of the
contact information changes. However,
all changes to the names, titles,
telephone numbers, and e-mail
addresses of the RSCs and alternate
RSCs must be reported to TSA within
seven calendar days.
TSA received numerous comments
about the interrelationship between the
reporting requirements of this rule and
the reporting that occurs in response to
other regulatory programs or other
procedures. Commenters urged TSA to
increase coordination and eliminate
unnecessary duplication. For example,
one trade association said that certain
facilities are currently reporting
significant security concerns to the FBI,
local authorities, and the Coast Guard.
The association said that TSA should
use these existing reports to gather
information rather than creating an
additional reporting requirement. The
association suggested that if TSA
maintains this reporting requirement in
the final rule, it should only apply to
the certain hazardous materials
determined to pose a higher security
risk (such as materials poisonous by
inhalation, explosives, and radioactive
materials).
Several commenters wrote about the
relationship between the proposed
reporting requirement and the reporting
requirement in 49 CFR 659.33, asking
TSA to clarify the role of State oversight
agencies in the reporting process. Some
State DOTs said that the proposed
reporting would partially duplicate the
reporting requirements of the State
oversight program, which would force
rail systems to develop multiple sets of
procedures and processes.
Commenters suggested the following
options for coordinating or merging the
proposed reporting requirement with
similar existing requirements:
• Create a centralized or ‘‘one stop’’
reporting process for stakeholders.
• Avoid any ‘‘excessive’’ duplication
between the safety oversight and rail
security programs.
• Minimize redundant reporting and
ensure there is coordination of FRA,
National Transportation Safety Board
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17:35 Nov 25, 2008
Jkt 217001
(NTSB), and TSA reporting
requirements.
• Parallel the proposed reporting
requirement with existing requirements
(or vice versa).
• Allow reporting to other
jurisdictional law enforcement agencies
to meet the requirement of reporting to
TSA.
• Allow reporting to the State
oversight agency to fulfill TSA’s
requirement.
• Make the proposed reporting
requirement more consistent with
posting to the public transportation
portion of the Homeland Security
Information Network.
• Modify the reporting requirements
for the National Transit Database to
support TSA’s needs.
• Require that covered entities send
reports to the National Response Center
as the primary and sole reporting center
for the purposes of this section and
develop a mechanism for TSA to receive
reports of significant security concerns
from the National Response Center.
A trade association asserted that many
jurisdictions and authorities also want
immediate reports. The association
suggested that TSA consider adding
language that helps regulated entities
prioritize all of the notifications that
they are required to make.
In response to these comments, TSA
has determined that it needs
information immediately on potential
threats, suspicious activities, and
security incidents for the purposes of
comprehensive intelligence analysis,
threat assessment, and allocation of
security resources. Reporting of security
concerns must be made to the Freedom
Center, which maintains
communications networks with other
Federal operations centers, such as
DOT’s Crisis Management Center, to
convey reported security concerns to
interested entities throughout the
Federal government.
Reports submitted to State oversight
agencies under 49 CFR 659.33 will not
satisfy the requirements of this final
rule. Reports to the oversight agencies
meet a more general need for situational
awareness, particularly pertaining to
safety conditions. There is not extensive
overlap between the required reporting
under this final rule and the reporting
under 49 CFR 659.33. Where there is
overlap, TSA would expect that rail
transit systems would follow procedures
for reporting to TSA as well as to the
State agencies.
Reporting requirements to the
National Response Center are not coextensive with the reporting
requirements of this rule, which is
broader in scope. For example, this rule
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would require reporting of such things
as threat information and the discovery
of suspicious items. Covered entities
need not report these to the National
Response Center, but are useful pieces
of information to TSA as indicators of
potential terrorist activities. Therefore,
TSA cannot rely on obtaining reports
from the National Response Center.
Moreover, obtaining reports indirectly
from the National Response Center, the
States, or other third parties might delay
a needed response or may not contain
adequate information for TSA’s
purposes.
The Chairman and four members of
the U.S. House Committee on Homeland
Security expressed the view that the
proposed reporting requirements would
not improve rail security. They
commented that the reporting
requirements would not make the
industry proactive in deterring terrorists
and that, instead of collecting data for
study after incidents have occurred,
TSA should provide the industry with
mandatory, standardized security
practices and mandated training
programs. TSA believes that the
requirements to report significant
security concerns have great value in
the overall approach to enhancing rail
security, and disagrees with the
commenters’ view that the reporting
requirements do not advance that
objective. When TSA analyzes reports of
significant security concerns from
passenger rail carriers (including rail
transit systems), freight railroad carriers,
and rail hazardous materials shippers
and receivers, TSA will be able to
determine if there are geographic or
other patterns to the reported activities.
These analyses may enable TSA to
prevent or interrupt terrorist planning or
attack. In addition, these analyses assist
TSA in determining whether
inspections should be targeted at
particular areas or activities. Finally,
TSA can use the reported incidents to
determine whether to encourage or
require particular security measures
either immediately or in the future.
Many commenters said that TSA’s
definition of reportable events is too
broad and should be more narrowly
focused. Several comments from transit
authorities said that the proposed
reporting requirements would impose a
substantial burden on transit systems
and even on TSA itself. They also
asserted that the proposed requirements
would result in an overload of
information that would divert attention
from truly significant threats and dilute
the effectiveness of the reporting
system. Other commenters asked for a
more specific description of
‘‘suspicious’’ activities or a list of
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examples that would, or would not, be
considered ‘‘suspicious.’’ A commenter
identified ‘‘youth vandalism’’ as an
incident that should not be reportable.
Several commenters offered specific
suggestions for which activities or
incidents should be considered
reportable. Some commenters suggested
that the requirement focus only on
activities that pose a security threat to
rail cars carrying the hazardous
materials specifically covered by the
regulation.
An industry association noted that the
events that must be reported to DOT are
very specific (such as a person being
killed or requiring hospitalization) and
suggested that TSA’s reportable events
be more specific and similar to DOT’s.
One commenter suggested that TSA
only require the reporting of certain
specific crimes. Another commenter
made specific suggestions regarding the
categories of events that should be
reported to TSA.
In response to these comments, TSA
is aware that the proposed reporting
requirements are broad and, in some
respects—such as the requirement to
report ‘‘suspicious’’ activities—are not
as specific as the regulated community
would like. However, TSA has not
changed the reporting requirements in
the final rule for several reasons. The
reporting requirements are intended to
reduce risk to the rail transportation
systems by providing TSA with
information to intervene on a timely
basis to thwart a threat or further attack.
Detecting activities that may
compromise transportation security
entails piecing together seemingly
unrelated incidents or observations and
conducting analysis in context with
information from other sources. As the
threat environment is dynamic and
indications of planning and preparation
for an incident that may compromise
transportation security are subject to
change, a threshold for reportable events
or a specific definition cannot be
provided.
TSA has decided not to accept
commenters’ suggestions to limit the
scope of the reporting requirement.
Limiting the scope to the DOT reporting
requirements, which are intended to
identify safety concerns, would reduce
the data that TSA could use for trend
analysis to anticipate and prevent an
attack. Limiting incident reporting to
only those materials that are determined
to be sensitive security materials also
would limit TSA’s domain awareness
and intelligence gathering.
As provided by the PRA, as amended,
an agency may not conduct or sponsor,
and a person is not required to respond
to, a collection of information unless it
VerDate Aug<31>2005
17:35 Nov 25, 2008
Jkt 217001
displays a currently valid OMB control
number. Under the PRA, TSA is not
authorized to impose a penalty on
persons for violating information
collection requirements that do not
display a current OMB control number.
TSA will publish the OMB control
number for this information collection
in the Federal Register after OMB
approves it.
D. International Trade Impact
Assessment
The Trade Agreement Act of 1979
prohibits Federal agencies from
establishing any standards or engaging
in related activities that create
unnecessary obstacles to the foreign
commerce of the United States.
Legitimate domestic objectives, such as
safety, are not considered unnecessary
obstacles. The statute also requires
consideration of international standards
and, where appropriate, that they be the
basis for U.S. standards. TSA has
assessed the potential effect of this
rulemaking and has determined that it
will have only a domestic impact and
therefore no effect on any tradesensitive activity.
E. Unfunded Mandates Reform Act
Analysis
The Unfunded Mandates Reform Act
of 1995 is intended, among other things,
to curb the practice of imposing
unfunded Federal mandates on State,
local, and tribal governments. Title II of
the Act requires each Federal agency to
prepare a written statement assessing
the effects of any Federal mandate in a
proposed or final agency rule that may
result in a $100 million or more
expenditure (adjusted annually for
inflation) in any one year by State, local,
and tribal governments, in the aggregate,
or by the private sector; such a mandate
is deemed to be a ‘‘significant regulatory
action.’’ This rulemaking does not
contain such a mandate. The
requirements of Title II of the Act,
therefore, do not apply, and TSA has
not prepared a statement under the Act.
F. Executive Order 13132, Federalism
TSA has analyzed this final rule
under the principles and criteria of E.O.
13132, entitled ‘‘Federalism,’’ issued
August 4, 1999. Executive Order 13132
requires TSA to develop an accountable
process to ensure ‘‘meaningful and
timely input by State and local officials
in the development of regulatory
policies that have federalism
implications.’’ According to the
E.O.,‘‘[p]olicies that have federalism
implications’’ include regulations that
have ‘‘substantial direct effect on the
States, on the relationship between the
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72171
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government.’’
In this final rule, TSA is preempting
certain State, local, and tribal
requirements, including any such
requirements prescribing or restricting
security measures during the physical
transfer of custody and control of a rail
car containing hazardous materials. This
is consistent with applicable statutes
and with sound policy. Congress has
enacted comprehensive Federal railroad
laws (49 U.S.C. 20101 et seq.), which
mandate that ‘‘[l]aws, regulations and
orders related to railroad safety and
laws, regulations, and orders related to
railroad security [] be nationally
uniform to the extent practicable.’’ See
49 U.S.C. 20106. To achieve national
uniformity, the Federal railroad laws
‘‘expressly preempt[] state authority to
adopt safety rules, save for two
exceptions.’’ See Union Pacific Railroad
Co. v. California Public Utilities
Comm’n, 346 F.3d 851, 858 (9th Cir.
2003); see also 49 U.S.C. 20106. A state
may enact or continue in force a law
related to railroad safety or security
‘‘until the Secretary of Transportation
(with respect to railroad safety matters),
or the Secretary of Homeland Security
(with respect to railroad security
matters), prescribes a regulation or
issues an order covering the subject
matter of the State requirement.’’ 49
U.S.C. 20106. ‘‘Even after such a federal
regulation issues, a State may adopt a
more stringent law when ‘necessary to
eliminate or reduce an essentially local
safety or security hazard’ if it ‘is not
incompatible’ with the federal
regulation and ‘does not unreasonably
burden interstate commerce.’ ’’ CSX
Transportation, Inc. v. Williams, 406
F.3d at 670–71; 49 U.S.C. 20106.
A primary security concern related to
the rail transportation of hazardous
materials is the prevention of a
catastrophic release or explosion in
proximity to densely populated areas,
including urban areas and events or
venues with large numbers of people in
attendance. Also of major concern is the
release or explosion of a rail car in
proximity to iconic buildings,
landmarks, or environmentally
significant areas. These are national
concerns that require a uniform national
regulatory approach that does not
require regulated parties to implement
different measures in different
jurisdictions across the nation. TSA is
therefore proposing a nationallyuniform regulatory provision requiring
chain of custody procedures. This
would avoid the burden on interstate
commerce that would result if multiple
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States, localities, and tribes established
their own chain of custody
requirements.
Although § 1580.107 preempts State
and local requirements addressing the
same matters, TSA does not believe that
the custody and control requirements of
this rulemaking will have an immediate
substantial direct effect on the States,
the relationship between the national
government and the States, or the
distribution of power and
responsibilities among the various
levels of government. The final rule will
not require any actions by States,
localities, or tribes. In addition, only
one State has enacted a measure
addressing chain of custody and control
requirements for the rail transportation
of hazardous materials.74 Thus, the final
rule does not have sufficient federalism
implications to warrant the preparation
of a Federalism Assessment.
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G. Environmental Analysis
TSA reviewed this action under DHS
Management Directive 5100.1,
Environmental Planning Program
(effective April 19, 2006), which guides
TSA compliance with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f). We
determined that this final rule is
categorically excluded under number
A3(a) (administrative and regulatory
activities involving the promulgation of
rules and the development of policies),
number A4 (information gathering and
data analysis), number A7(d)
(conducting audits, surveys and data
collection of a minimally intrusive
nature, to include vulnerability, risk and
structural integrity assessments of
infrastructures), number B3 (proposed
activities and operations to be
conducted in existing structures that are
compatible with ongoing functions), and
number B11 (routine monitoring and
surveillance activities that support
homeland security, such as patrols,
investigations and intelligence
gathering).
H. Energy Impact Analysis
TSA has assessed the energy impact
of the final rule in accordance with the
Energy Policy and Conservation Act
(EPCA), Public Law 94–163, as amended
(42 U.S.C. 6362). We have determined
that this rulemaking is not a major
regulatory action under the provisions
of the EPCA. We also have analyzed this
final rule under E.O. 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use,’’ 66 FR 28355 (May
74 California adopted the ‘‘Local Community Rail
Security Act of 2006’’ on October 1, 2006.
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17:35 Nov 25, 2008
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18, 2001). We have determined that it is
not a ‘‘significant energy action’’ under
that order. While it is a ‘‘significant
regulatory action’’ under E.O. 12866, it
is not likely to have a significant
adverse effect on the supply,
distribution, or use of energy. The
Administrator of the Office of
Information and Regulatory Affairs has
not designated it as a significant energy
action. Therefore, a Statement of Energy
Effects is not required for this rule
under E.O. 13211.
List of Subjects
49 CFR Part 1520
Air carriers, Aircraft, Airports,
Maritime carriers, Rail hazardous
materials receivers, Rail hazardous
materials shippers, Rail transit systems,
Railroad carriers, Railroad safety,
Railroads, Reporting and recordkeeping
requirements, Security measures,
Vessels.
49 CFR Part 1580
Hazardous materials transportation,
Mass transportation, Rail hazardous
materials receivers, Rail hazardous
materials shippers, Rail transit systems,
Railroad carriers, Railroad safety,
Railroads, Reporting and recordkeeping
requirements, Security measures.
The Final Rule
For the reasons set forth in the
preamble, the Transportation Security
Administration amends Chapter XII, of
Title 49, Code of Federal Regulations, as
follows:
■
PART 1520—PROTECTION OF
SENSITIVE SECURITY INFORMATION
1. The authority citation for part 1520
continues to read as follows:
■
Authority: 46 U.S.C. 70102–70106, 70117;
49 U.S.C. 114, 40113, 44901–44907, 44913–
44914, 44916–44918, 44935–44936, 44942,
46105.
2. In § 1520.3, add definitions of ‘‘Rail
facility,’’ ‘‘Rail hazardous materials
receiver,’’ ‘‘Rail hazardous materials
shipper,’’ ‘‘Rail secure area,’’ ‘‘Rail
transit facility,’’ ‘‘Rail transit system,’’
‘‘Railroad,’’ and ‘‘Railroad carrier’’ in
alphabetical order, and revise the
definition of ‘‘Vulnerability assessment’’
to read as follows:
■
§ 1520.3
Terms used in this part.
*
*
*
*
*
Rail facility means ‘‘rail facility’’ as
defined in 49 CFR 1580.3.
Rail hazardous materials receiver
means ‘‘rail hazardous materials
receiver’’ as defined in 49 CFR 1580.3.
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Rail hazardous materials shipper
means ‘‘rail hazardous materials
shipper’’ as defined in 49 CFR 1580.3.
Rail secure area means ‘‘rail secure
area’’ as defined in 49 CFR 1580.3.
Rail transit facility means ‘‘rail transit
facility’’ as defined in 49 CFR 1580.3.
Rail transit system or Rail Fixed
Guideway System means ‘‘rail transit
system’’ or ‘‘Rail Fixed Guideway
System’’ as defined in 49 CFR 1580.3.
Railroad means ‘‘railroad’’ as defined
in 49 U.S.C. 20102(1).
Railroad carrier means ‘‘railroad
carrier’’ as defined in 49 U.S.C.
20102(2).
*
*
*
*
*
Vulnerability assessment means any
review, audit, or other examination of
the security of a transportation
infrastructure asset; airport; maritime
facility, port area, or vessel; aircraft;
railroad; railroad carrier, rail facility;
train; rail hazardous materials shipper
or receiver facility; rail transit system;
rail transit facility; commercial motor
vehicle; or pipeline; or a transportationrelated automated system or network to
determine its vulnerability to unlawful
interference, whether during the
conception, planning, design,
construction, operation, or
decommissioning phase. A vulnerability
assessment may include proposed,
recommended, or directed actions or
countermeasures to address security
concerns.
*
*
*
*
*
■ 3. In § 1520.5, revise paragraphs
(b)(6)(i), (b)(8) introductory text, (b)(10),
(b)(11)(i)(A), (b)(12) introductory text,
and (b)(15) to read as follows:
§ 1520.5
Sensitive security information.
*
*
*
*
*
(b) * * *
(6) Security inspection or investigative
information. (i) Details of any security
inspection or investigation of an alleged
violation of aviation, maritime, or rail
transportation security requirements of
Federal law that could reveal a security
vulnerability, including the identity of
the Federal special agent or other
Federal employee who conducted the
inspection or audit.
*
*
*
*
*
(8) Security measures. Specific details
of aviation, maritime, or rail
transportation security measures, both
operational and technical, whether
applied directly by the Federal
government or another person,
including—
*
*
*
*
*
(10) Security training materials.
Records created or obtained for the
purpose of training persons employed
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by, contracted with, or acting for the
Federal government or another person
to carry out aviation, maritime, or rail
transportation security measures
required or recommended by DHS or
DOT.
(11) * * *
(i) * * *
(A) Having unescorted access to a
secure area of an airport, a rail secure
area, or a secure or restricted area of a
maritime facility, port area, or vessel;
*
*
*
*
*
(12) Critical aviation, maritime, or rail
infrastructure asset information. Any
list identifying systems or assets,
whether physical or virtual, so vital to
the aviation, maritime, or rail
transportation system (including rail
hazardous materials shippers and rail
hazardous materials receivers) that the
incapacity or destruction of such assets
would have a debilitating impact on
transportation security, if the list is—
*
*
*
*
*
(15) Research and development.
Information obtained or developed in
the conduct of research related to
aviation, maritime, or rail transportation
security activities, where such research
is approved, accepted, funded,
recommended, or directed by DHS or
DOT, including research results.
*
*
*
*
*
■ 4. In § 1520.7, add new paragraph (n)
to read as follows:
§ 1520.7
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*
*
*
*
*
(n) Each railroad carrier, rail
hazardous materials shipper, rail
hazardous materials receiver, and rail
transit system subject to the
requirements of part 1580 of this
chapter.
■ 5. In § 1520.11, revise paragraph (b) to
read as follows:
*
*
*
*
*
(b) Federal, State, local, or tribal
government employees, contractors, and
grantees. (1) A Federal, State, local, or
tribal government employee has a need
to know SSI if access to the information
is necessary for performance of the
employee’s official duties, on behalf or
in defense of the interests of the Federal,
State, local, or tribal government.
(2) A person acting in the
performance of a contract with or grant
from a Federal, State, local, or tribal
government agency has a need to know
SSI if access to the information is
necessary to performance of the contract
or grant.
*
*
*
*
*
■ 6. Add part 1580 to read as follows:
17:35 Nov 25, 2008
Subpart A—General
Sec.
1580.1 Scope.
1580.3 Terms used in this part.
1580.5 Inspection authority.
Subpart B—Freight Rail Including Freight
Railroad Carriers, Rail Hazardous Materials
Shippers, Rail Hazardous Materials
Receivers, and Private Cars
1580.100 Applicability.
1580.101 Rail security coordinator.
1580.103 Location and shipping
information for certain rail cars.
1580.105 Reporting significant security
concerns.
1580.107 Chain of custody and control
requirements.
1580.109 Preemptive effect.
1580.111 Harmonization of federal
regulation of nuclear facilities.
Subpart C—Passenger Rail Including
Passenger Railroad Carriers, Rail Transit
Systems, Tourist, Scenic, Historic and
Excursion Operators, and Private Cars
1580.200 Applicability.
1580.201 Rail security coordinator.
1580.203 Reporting significant security
concerns.
Appendix A to Part 1580—High Threat
Urban Areas.
Appendix B to Part 1580—Summary of the
Applicability of Part 1580.
Authority: 49 U.S.C. 114.
Subpart A—General
§ 1580.1
Covered persons.
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PART 1580—RAIL TRANSPORTATION
SECURITY
Jkt 217001
Scope.
(a) Except as provided in paragraph
(b) of this section, this part includes
requirements for the following persons.
Appendix B of this part summarizes the
general requirements for each person,
and the specific sections in this part
provide detailed requirements.
(1) Each freight railroad carrier that
operates rolling equipment on track that
is part of the general railroad system of
transportation;
(2) Each rail hazardous materials
shipper that offers, prepares, or loads for
transportation in commerce by rail one
or more of the categories and quantities
of rail security-sensitive materials set
forth in § 1580.100(b) of this part;
(3) Each rail hazardous materials
receiver, located within a High Threat
Urban Area (HTUA) that receives in
commerce by rail or unloads one or
more of the categories and quantities of
rail security-sensitive materials set forth
in § 1580.100(b) of this part;
(4) Each passenger railroad carrier,
including each carrier operating light
rail or heavy rail transit service on track
that is part of the general railroad
system of transportation, each carrier
operating or providing intercity
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passenger train service or commuter or
other short-haul railroad passenger
service in a metropolitan or suburban
area (as described by 49 U.S.C. 20102),
and each public authority operating
passenger train service;
(5) Each passenger or freight railroad
carrier hosting an operation described in
paragraph (a)(4) of this section;
(6) Each tourist, scenic, historic, and
excursion rail operator, whether
operating on or off the general railroad
system of transportation;
(7) Each operator of private cars,
including business/office cars and
circus trains, on or connected to the
general railroad system of
transportation; and
(8) Each operator of a rail transit
system that is not operating on track
that is part of the general railroad
system of transportation, including
heavy rail transit, light rail transit,
automated guideway, cable car, inclined
plane, funicular, and monorail systems.
(b) This part does not apply to a
freight railroad carrier that operates
rolling equipment only on track inside
an installation that is not part of the
general railroad system of
transportation.
§ 1580.3
Terms used in this part.
For purposes of this part:
Commuter passenger train service
means ‘‘train, commuter’’ as defined in
49 CFR 238.5, and includes a railroad
operation that ordinarily uses diesel or
electric powered locomotives and
railroad passenger cars to serve an urban
area, its suburbs, and more distant
outlying communities in the greater
metropolitan area. A commuter
operation is part of the general railroad
system of transportation regardless of
whether it is physically connected to
other railroads.
General railroad system of
transportation means the network of
standard gage track over which goods
may be transported throughout the
Nation and passengers may travel
between cities and within metropolitan
and suburban areas. See 49 CFR part
209, Appendix A.
Hazardous material means
‘‘hazardous material’’ as defined in 49
CFR 171.8.
Heavy rail transit means service
provided by self-propelled electric
railcars, typically drawing power from a
third rail, operating in separate rightsof-way in multiple cars; also referred to
as subways, metros, or regional rail.
High Threat Urban Area (HTUA)
means an area comprising one or more
cities and surrounding areas including a
10-mile buffer zone, as listed in
Appendix A to this part.
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Improvised explosive device means a
device fabricated in an improvised
manner that incorporates explosives or
destructive, lethal, noxious,
pyrotechnic, or incendiary chemicals in
its design, and generally includes a
power supply, a switch or timer, and a
detonator or initiator.
Intercity passenger train service
means both ‘‘train, long-distance
intercity passenger’’ and ‘‘train, shortdistance intercity passenger’’ as defined
in 49 CFR 238.5.
Light rail transit means service
provided by self-propelled electric
railcars, typically drawing power from
an overhead wire, operating in either
exclusive or non-exclusive rights-of-way
in single or multiple cars and with
shorter distance trips and frequent
stops; also referred to as streetcars,
trolleys, and trams.
Offers or offeror means:
(1) Any person who does either or
both of the following:
(i) Performs, or is responsible for
performing, any pre-transportation
function for transportation of the
hazardous material in commerce.
(ii) Tenders or makes the hazardous
material available to a carrier for
transportation in commerce.
(2) A carrier is not an offeror when it
performs a function required as a
condition of acceptance of a hazardous
material for transportation in commerce
(such as reviewing shipping papers,
examining packages to ensure that they
are in conformance with the HMR, or
preparing shipping documentation for
its own use) or when it transfers a
hazardous material to another carrier for
continued transportation in commerce
without performing a pre-transportation
function. See 49 CFR 171.8.
Passenger car means rail rolling
equipment intended to provide
transportation for members of the
general public and includes a selfpropelled car designed to carry
passengers, baggage, mail, or express.
This term includes a passenger coach,
cab car, and a Multiple Unit (MU)
locomotive. In the context of articulated
equipment, ‘‘passenger car’’ means that
segment of the rail rolling equipment
located between two trucks. This term
does not include a private car. See 49
CFR 238.5.
Passenger train means a train that
transports or is available to transport
members of the general public. See 49
CFR 238.5.
Private car means rail rolling
equipment that is used only for
excursion, recreational, or private
transportation purposes. A private car is
not a passenger car. See 49 CFR 238.5.
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Rail facility means a location at which
rail cargo or infrastructure assets are
stored, cargo is transferred between
conveyances and/or modes of
transportation, where transportation
command and control operations are
performed, or maintenance operations
are performed. The term also includes,
but is not limited to, passenger stations
and terminals, rail yards, crew
management centers, dispatching
centers, transportation terminals and
stations, fueling centers, and
telecommunication centers.
Rail hazardous materials receiver
means any operator of a fixed-site
facility that has a physical connection to
the general railroad system of
transportation and receives or unloads
from transportation in commerce by rail
one or more of the categories and
quantities of rail security-sensitive
materials set forth in § 1580.100(b) of
this part, but does not include the
operator of a facility owned or operated
by a department, agency, or
instrumentality of the Federal
government.
Rail hazardous materials shipper
means the operator of any fixed-site
facility that has a physical connection to
the general railroad system of
transportation and offers, prepares, or
loads for transportation by rail one or
more of the categories and quantities of
rail security-sensitive materials set forth
in § 1580.100(b) of this part, but does
not include the operator of a facility
owned or operated by a department,
agency, or instrumentality of the Federal
government.
Rail secure area means a secure
location(s) identified by a rail hazardous
materials shipper or rail hazardous
materials receiver where securityrelated pre-transportation or
transportation functions are performed
or rail cars containing the categories and
quantities of rail security-sensitive
materials are prepared, loaded, stored,
and/or unloaded.
Rail security-sensitive material means
one or more of the categories and
quantities of hazardous materials set
forth in § 1580.100(b) of this part.
Rail transit facility means rail transit
stations, terminals, and locations at
which rail transit infrastructure assets
are stored, command and control
operations are performed, or
maintenance is performed. The term
also includes rail yards, crew
management centers, dispatching
centers, transportation terminals and
stations, fueling centers, and
telecommunication centers.
Rail transit system or ‘‘Rail Fixed
Guideway System’’ means any light,
heavy, or rapid rail system, monorail,
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inclined plane, funicular, cable car,
trolley, or automated guideway that
traditionally does not operate on track
that is part of the general railroad
system of transportation.
Railroad means any form of
nonhighway ground transportation that
runs on rails or electromagnetic
guideways, including: Commuter or
other short-haul railroad passenger
service in a metropolitan or suburban
area and commuter railroad service that
was operated by the Consolidated Rail
Corporation on January 1, 1979; and
high speed ground transportation
systems that connect metropolitan areas,
without regard to whether those systems
use new technologies not associated
with traditional railroads; but does not
include rapid transit operations in an
urban area that are not connected to the
general railroad system of
transportation. The term includes rail
transit service operating on track that is
part of the general railroad system of
transportation but does not include
rapid transit operations in an urban area
that are not connected to the general
railroad system of transportation. See 49
U.S.C. 20102(1).
Railroad carrier means a person
providing railroad transportation. See
49 U.S.C. 20102(2).
Residue means the hazardous material
remaining in a packaging, including a
tank car, after its contents have been
unloaded to the maximum extent
practicable and before the packaging is
either refilled or cleaned of hazardous
material and purged to remove any
hazardous vapors. See 49 CFR 171.8.
Tourist, scenic, historic, or excursion
operation means a railroad operation
that carries passengers, often using
antiquated equipment, with the
conveyance of the passengers to a
particular destination not being the
principal purpose. Train movements of
new passenger equipment for
demonstration purposes are not tourist,
scenic, historic, or excursion operations.
See 49 CFR 238.5.
Transit means mass transportation by
a conveyance that provides regular and
continuing general or special
transportation to the public, but does
not include school bus, charter, or
sightseeing transportation. See 49 U.S.C
5302(a). Transit may occur on or off the
general railroad system of
transportation. For purposes of this part,
the term ‘‘transit’’ excludes buses and
commuter passenger train service.
Transportation or transport means the
movement of property including
loading, unloading, and storage.
Transportation or transport also
includes the movement of people,
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boarding, and disembarking incident to
that movement.
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§ 1580.5
Inspection authority.
(a) This section applies to the
following:
(1) Each freight railroad carrier that
operates rolling equipment on track that
is part of the general railroad system of
transportation.
(2) Each rail hazardous materials
shipper.
(3) Each rail hazardous materials
receiver located within an HTUA.
(4) Each passenger railroad carrier,
including each carrier operating light
rail or heavy rail transit service on track
that is part of the general railroad
system of transportation, each carrier
operating or providing intercity
passenger train service or commuter or
other short-haul railroad passenger
service in a metropolitan or suburban
area (as described by 49 U.S.C. 20102),
and each public authority operating
passenger train service.
(5) Each passenger or freight railroad
carrier hosting an operation described in
paragraph (a)(4) of this section.
(6) Each tourist, scenic, historic, and
excursion rail operator, whether
operating on or off the general railroad
system of transportation.
(7) Each operator of private cars,
including business/office cars and
circus trains, on or connected to the
general railroad system of
transportation.
(8) Each operator of a rail transit
system that is not operating on track
that is part of the general railroad
system of transportation, including
heavy rail transit, light rail transit,
automated guideway, cable car, inclined
plane, funicular, and monorail systems.
(b) The persons described in
paragraph (a) of this section must allow
TSA and other authorized DHS officials,
at any time and in a reasonable manner,
without advance notice, to enter,
inspect, and test property, facilities,
equipment, and operations; and to view,
inspect, and copy records, as necessary
to carry out TSA’s security-related
statutory or regulatory authorities,
including its authority to—
(1) Assess threats to transportation;
(2) Enforce security-related
regulations, directives, and
requirements;
(3) Inspect, maintain, and test the
security of facilities, equipment, and
systems;
(4) Ensure the adequacy of security
measures for the transportation of
passengers and freight, including
hazardous materials;
(5) Oversee the implementation, and
ensure the adequacy, of security
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17:35 Nov 25, 2008
Jkt 217001
measures at rail yards, stations,
terminals, transportation-related areas of
rail hazardous materials shipper and
receiver facilities, crew management
centers, dispatch centers,
telecommunication centers, and other
transportation facilities and
infrastructure;
(6) Review security plans; and
(7) Carry out such other duties, and
exercise such other powers, relating to
transportation security, as the Assistant
Secretary of Homeland Security for the
TSA considers appropriate, to the extent
authorized by law.
(c) TSA and DHS officials working
with TSA, may enter, without advance
notice, and be present within any area
or within any conveyance without
access media or identification media
issued or approved by a railroad carrier,
rail transit system owner or operator,
rail hazardous materials shipper, or rail
hazardous materials receiver in order to
inspect or test compliance, or perform
other such duties as TSA may direct.
(d) TSA inspectors and DHS officials
working with TSA will, on request,
present their credentials for
examination, but the credentials may
not be photocopied or otherwise
reproduced.
Subpart B—Freight Rail Including
Freight Railroad Carriers, Rail
Hazardous Materials Shippers, Rail
Hazardous Materials Receivers, and
Private Cars
§ 1580.100
Applicability.
(a) Applicability. The requirements of
this subpart apply to:
(1) Each freight railroad carrier that
operates rolling equipment on track that
is part of the general railroad system of
transportation.
(2) Each rail hazardous materials
shipper.
(3) Each rail hazardous materials
receiver located with an HTUA.
(4) Each freight railroad carrier
hosting a passenger operation described
in § 1580.1(d) of this part.
(5) Each operator of private cars,
including business/office cars and
circus trains, on or connected to the
general railroad system of
transportation.
(b) Rail security-sensitive materials.
The requirements of this subpart apply
to:
(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 anhydrous
ammonia, Division 2.3 gases poisonous
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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), excluding
residue quantities of these materials;
and
(3) A rail car containing a highway
route-controlled quantity of a Class 7
(radioactive) material, as defined in 49
CFR 173.403.
§ 1580.101
Rail security coordinator.
(a) Applicability. This section applies
to:
(1) Each freight railroad carrier that
operates rolling equipment on track that
is part of the general railroad system of
transportation.
(2) Each rail hazardous materials
shipper.
(3) Each rail hazardous materials
receiver located with an HTUA.
(4) Each freight railroad carrier
hosting the passenger operations
described in § 1580.1(d) of this part.
(5) Each operator of private cars,
including business/office cars and
circus trains, on or connected to the
general railroad system of
transportation, when notified by TSA in
writing, that a threat exists concerning
that operation.
(b) Each person described in
paragraph (a) of this section must
designate and use a primary and at least
one alternate Rail Security Coordinator
(RSC).
(c) The RSC and alternate(s) must be
appointed at the corporate level.
(d) Each freight railroad carrier, rail
hazardous materials shipper, and rail
hazardous materials receiver required to
have an RSC must provide to TSA the
names, title, phone number(s), and email address(es) of the RSCs and
alternate RSCs, and must notify TSA
within 7 calendar days when any of this
information changes.
(e) Each freight railroad carrier, rail
hazardous materials shipper, and rail
hazardous materials receiver required to
have an RSC must ensure that at least
one RSC:
(1) Serves as the primary contact for
intelligence information and securityrelated activities and communications
with TSA. Any individual designated as
an RSC may perform other duties in
addition to those described in this
section;
(2) Is available to TSA on a 24-hours
a day, 7 days a week basis; and
(3) Coordinates security practices and
procedures with appropriate law
enforcement and emergency response
agencies.
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§ 1580.103 Location and shipping
information for certain rail cars.
(a) Applicability. This section applies
to:
(1) Each freight railroad carrier
transporting one or more of the
categories and quantities of rail securitysensitive materials.
(2) Each rail hazardous materials
shipper.
(3) Each rail hazardous materials
receiver located with an HTUA.
(b) General requirement. Each person
described in paragraph (a) of this
section must have procedures in place
to determine the location and shipping
information for each rail car under its
physical custody and control that
contains one or more of the categories
and quantities of rail security-sensitive
materials.
(c) Required information. The location
and shipping information required in
paragraph (b) of this section must
include the following:
(1) The rail car’s current location by
city, county, and state, including, for
freight railroad carriers, the railroad
milepost, track designation, and the
time that the rail car’s location was
determined.
(2) The rail car’s routing, if a freight
railroad carrier.
(3) A list of the total number of rail
cars containing the materials listed in
§ 1580.100(b) of this part, broken down
by:
(i) The shipping name prescribed for
the material in column 2 of the table in
49 CFR 172.101;
(ii) The hazard class or division
number prescribed for the material in
column 3 of the table in 49 CFR
172.101; and
(iii) The identification number
prescribed for the material in column 4
of the table in 49 CFR 172.101.
(4) Each rail car’s initial and number.
(5) Whether the rail car is in a train,
rail yard, siding, rail spur, or rail
hazardous materials shipper or receiver
facility, including the name of the rail
yard or siding designation.
(d) Timing-class I freight railroad
carriers. Upon request by TSA, each
Class I freight railroad carrier described
in paragraph (a) of this section must
provide the location and shipping
information to TSA no later than:
(1) Five minutes if the request
concerns only one rail car; and
(2) Thirty minutes if the request
concerns two or more rail cars.
(e) Timing-other than class I freight
railroad carriers. Upon request by TSA,
all persons described in paragraph (a) of
this section, other than Class I freight
railroad carriers, must provide the
location and shipping information to
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17:35 Nov 25, 2008
Jkt 217001
TSA no later than 30 minutes,
regardless of the number of cars covered
by the request.
(f) Method. All persons described in
paragraph (a) of this section must
provide the requested location and
shipping information to TSA by one of
the following methods:
(1) Electronic data transmission in
spreadsheet format.
(2) Electronic data transmission in
Hyper Text Markup Language (HTML)
format.
(3) Electronic data transmission in
Extensible Markup Language (XML).
(4) Facsimile transmission of a hard
copy spreadsheet in tabular format.
(5) Posting the information to a secure
website address approved by TSA.
(6) Another format approved by TSA.
(g) Telephone number. Each person
described in paragraph (a) of this
section must provide a telephone
number for use by TSA to request the
information required in paragraph (a)(4)
of this section.
(1) The telephone number must be
monitored at all times.
(2) A telephone number that requires
a call back (such as an answering
service, answering machine, or beeper
device) does not meet the requirements
of paragraph (f) of this section.
(h) Definition. As used in this section,
Class I has the meaning assigned by
regulations of the Surface
Transportation Board (STB) (49 CFR
part 1201; General Instructions 1–1).
§ 1580.105
concerns.
Reporting significant security
(a) Applicability. This section applies
to:
(1) Each freight railroad carrier that
operates rolling equipment on track that
is part of the general railroad system of
transportation.
(2) Each rail hazardous materials
shipper.
(3) Each rail hazardous materials
receiver located with an HTUA.
(4) Each freight railroad carrier
hosting a passenger operation described
in § 1580.1(d) of this part.
(5) Each operator of private cars,
including business/office cars and
circus, on or connected to the general
railroad system of transportation.
(b) Each person described in
paragraph (a) of this section must
immediately report potential threats and
significant security concerns to DHS by
telephoning the Freedom Center at 703–
563–3240 or 1–877–456–8722.
(c) Potential threats or significant
security concerns encompass incidents,
suspicious activities, and threat
information including, but not limited
to, the following:
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Fmt 4701
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(1) Interference with the train crew.
(2) Bomb threats, specific and nonspecific.
(3) Reports or discovery of suspicious
items that result in the disruption of
railroad operations.
(4) Suspicious activity occurring
onboard a train or inside the facility of
a freight railroad carrier, rail hazardous
materials shipper, or rail hazardous
materials receiver that results in a
disruption of operations.
(5) Suspicious activity observed at or
around rail cars, facilities, or
infrastructure used in the operation of
the railroad, rail hazardous materials
shipper, or rail hazardous materials
receiver.
(6) Discharge, discovery, or seizure of
a firearm or other deadly weapon on a
train, in a station, terminal, facility, or
storage yard, or other location used in
the operation of the railroad, rail
hazardous materials shipper, or rail
hazardous materials receiver.
(7) Indications of tampering with rail
cars.
(8) Information relating to the possible
surveillance of a train or facility, storage
yard, or other location used in the
operation of the railroad, rail hazardous
materials shipper, or rail hazardous
materials receiver.
(9) Correspondence received by the
freight railroad carrier, rail hazardous
materials shipper, or rail hazardous
materials receiver indicating a potential
threat. Other incidents involving
breaches of the security of the freight
railroad carrier, rail hazardous materials
shipper, or rail hazardous materials
receiver’s operations or facilities.
(d) Information reported should
include, as available and applicable:
(1) The name of the reporting freight
railroad carrier, rail hazardous materials
shipper, or rail hazardous materials
receiver and contact information,
including a telephone number or e-mail
address.
(2) The affected train, station,
terminal, rail hazardous materials
facility, or other rail facility or
infrastructure.
(3) Identifying information on the
affected train, train line, and route.
(4) Origination and termination
locations for the affected train,
including departure and destination city
and the rail line and route, as
applicable.
(5) Current location of the affected
train.
(6) Description of the threat, incident,
or activity.
(7) The names and other available
biographical data of individuals
involved in the threat, incident, or
activity.
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(8) The source of any threat
information.
mstockstill on PROD1PC66 with RULES2
§ 1580.107 Chain of custody and control
requirements.
(a) Within or outside of an HTUA, rail
hazardous materials shipper
transferring to carrier. Except as
provided in paragraph (e) of this
section, at each location within or
outside of an HTUA, a rail hazardous
materials shipper transferring custody of
a rail car containing one or more of the
categories and quantities of rail securitysensitive materials to a freight railroad
carrier must:
(1) Physically inspect the rail car
before loading for signs of tampering,
including closures and seals; other signs
that the security of the car may have
been compromised; suspicious items or
items that do not belong, including the
presence of an improvised explosive
device.
(2) Keep the rail car in a rail secure
area from the time the security
inspection required by paragraph (a)(1)
of this section or by 49 CFR 173.31(d),
whichever occurs first, until the freight
railroad carrier takes physical custody
of the rail car.
(3) Document the transfer of custody
to the railroad carrier in writing or
electronically.
(b) Within or outside of an HTUA,
carrier receiving from a rail hazardous
materials shipper. At each location
within or outside of an HTUA where a
freight railroad carrier receives from a
rail hazardous materials shipper
custody of a rail car containing one or
more of the categories and quantities of
rail security-sensitive materials, the
freight railroad carrier must document
the transfer in writing or electronically
and perform the required security
inspection in accordance with 49 CFR
174.9.
(c) Within an HTUA, carrier
transferring to carrier. Within an HTUA,
whenever a freight railroad carrier
transfers a rail car containing one or
more of the categories and quantities of
rail security-sensitive materials to
another freight railroad carrier, each
freight railroad carrier must adopt and
carry out procedures to ensure that the
rail car is not left unattended at any
time during the physical transfer of
custody. These procedures must include
the receiving freight railroad carrier
performing the required security
inspection in accordance with 49 CFR
174.9. Both the transferring and the
receiving railroad carrier must
document the transfer of custody in
writing or electronically.
(d) Outside of an HTUA, carrier
transferring to carrier. Outside an
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17:35 Nov 25, 2008
Jkt 217001
HTUA, whenever a freight railroad
carrier transfers a rail car containing one
or more of the categories and quantities
of rail security-sensitive materials to
another freight railroad carrier, and the
rail car containing this hazardous
material may subsequently enter an
HTUA, each freight railroad carrier must
adopt and carry out procedures to
ensure that the rail car is not left
unattended at any time during the
physical transfer of custody. These
procedures must include the receiving
railroad carrier performing the required
security inspection in accordance with
49 CFR 174.9. Both the transferring and
the receiving railroad carrier must
document the transfer of custody in
writing or electronically.
(e) Within an HTUA, carrier
transferring to rail hazardous materials
receiver. A freight railroad carrier
delivering a rail car containing one or
more of the categories and quantities of
rail security-sensitive materials to a rail
hazardous materials receiver located
within an HTUA must not leave the rail
car unattended in a non-secure area
until the rail hazardous materials
receiver accepts custody of the rail car.
Both the railroad carrier and the rail
hazardous materials receiver must
document the transfer of custody in
writing or electronically.
(f) Within an HTUA, rail hazardous
materials receiver receiving from carrier.
Except as provided in paragraph (j) of
this section, a rail hazardous materials
receiver located within an HTUA that
receives a rail car containing one or
more of the categories and quantities of
rail security-sensitive materials from a
freight railroad carrier must:
(1) Ensure that the rail hazardous
materials receiver or railroad carrier
maintains positive control of the rail car
during the physical transfer of custody
of the rail car.
(2) Keep the rail car in a rail secure
area until the car is unloaded.
(3) Document the transfer of custody
from the railroad carrier in writing or
electronically.
(g) Within or outside of an HTUA, rail
hazardous materials receiver rejecting
car. This section does not apply to a rail
hazardous materials receiver that does
not routinely offer, prepare, or load for
transportation by rail one or more of the
categories and quantities of rail securitysensitive materials. If such a receiver
rejects and returns a rail car containing
one or more of the categories and
quantities of rail security-sensitive
materials to the originating offeror or
shipper, the requirements of this section
do not apply to the receiver. The
requirements of this section do apply to
PO 00000
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Fmt 4701
Sfmt 4700
72177
any railroad carrier to which the
receiver transfers custody of the rail car.
(h) Document retention. Covered
entities must maintain the documents
required under this section for at least
60 calendar days and make them
available to TSA upon request.
(i) Rail secure area. The rail
hazardous materials shipper and the rail
hazardous materials receiver must use
physical security measures to ensure
that no unauthorized person gains
access to the rail secure area.
(j) Exemption for rail hazardous
materials receivers. A rail hazardous
materials receiver located within an
HTUA may request from TSA an
exemption from some or all of the
requirements of this section if the
receiver demonstrates that the potential
risk from its activities is insufficient to
warrant compliance with this section.
TSA will consider all relevant
circumstances, including—
(1) The amounts and types of all
hazardous materials received.
(2) The geography of the area
surrounding the receiver’s facility.
(3) Proximity to entities that may be
attractive targets, including other
businesses, housing, schools, and
hospitals.
(4) Any information regarding threats
to the facility.
(5) Other circumstances that indicate
the potential risk of the receiver’s
facility does not warrant compliance
with this section.
(k) Terms used in this section. (1) As
used in this section, a rail car is
attended if an employee or authorized
representative:
(i) Is physically located on site in
reasonable proximity to the rail car;
(ii) Is capable of promptly responding
to unauthorized access or activity at or
near the rail car, including immediately
contacting law enforcement or other
authorities; and
(iii) Immediately responds to any
unauthorized access or activity at or
near the rail car either personally or by
contacting law enforcement or other
authorities.
(2) As used in this section, maintains
positive control means that the rail
hazardous materials receiver and the
railroad carrier communicate and
cooperate with each other to provide for
the security of the rail car during the
physical transfer of custody. Attending
the rail car is a component part of
maintaining positive control.
(3) As used in this section, document
the transfer means documentation
uniquely identifying that the rail car
was attended during the transfer of
custody, including:
(i) Car initial and number.
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(ii) Identification of individuals who
attended the transfer (names or uniquely
identifying employee number).
(iii) Location of transfer.
(iv) Date and time the transfer was
completed.
§ 1580.109
Preemptive effect.
Under 49 U.S.C. 20106, issuance of
the regulations in this part preempts any
State law, regulation, or order covering
the same subject matter, except an
additional or more stringent law,
regulation, or order that is necessary to
eliminate or reduce an essentially local
security hazard; that is not incompatible
with a law, regulation, or order of the
United States Government; and that
does not unreasonably burden interstate
commerce. For example, under 49
U.S.C. 20106, issuance of § 1580.107 of
this subpart preempts any State or tribal
law, rule, regulation, order or common
law requirement covering the same
subject matter.
§ 1580.111 Harmonization of federal
regulation of nuclear facilities.
TSA will coordinate activities under
this subpart with the Nuclear Regulatory
Commission (NRC) and the Department
of Energy (DOE) with respect to
regulation of rail hazardous materials
shippers and receivers that are also
licensed or regulated by the NRC or
DOE under the Atomic Energy Act of
1954, as amended, to maintain
consistency with the requirements
imposed by the NRC and DOE.
Subpart C—Passenger Rail Including
Passenger Railroad Carriers, Rail
Transit Systems, Tourist, Scenic,
Historic and Excursion Operators, and
Private Cars
mstockstill on PROD1PC66 with RULES2
§ 1580.200
Applicability.
This subpart includes requirements
for:
(a) Each passenger railroad carrier,
including each carrier operating light
rail or heavy rail transit service on track
that is part of the general railroad
system of transportation, each carrier
operating or providing intercity
passenger train service or commuter or
other short-haul railroad passenger
service in a metropolitan or suburban
area (as described by 49 U.S.C. 20102),
and each public authority operating
passenger train service.
(b) Each passenger railroad carrier
hosting an operation described in
paragraph (a) of this section.
(c) Each tourist, scenic, historic, and
excursion rail operator, whether
operating on or off the general railroad
system of transportation.
(d) Each operator of private cars,
including business/office cars and
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17:35 Nov 25, 2008
Jkt 217001
circus trains, on or connected to the
general railroad system of
transportation.
(e) Each operator of a rail transit
system that is not operating on track
that is part of the general railroad
system of transportation, including
heavy rail transit, light rail transit,
automated guideway, cable car, inclined
plane, funicular, and monorail systems.
with TSA. Any individual designated as
an RSC may perform other duties in
addition to those described in this
section.
(2) Is available to TSA on a 24-hours
a day, 7 days a week basis.
(3) Coordinate security practices and
procedures with appropriate law
enforcement and emergency response
agencies.
§ 1580.201
§ 1580.203
concerns.
Rail security coordinator.
(a) Applicability. This section applies
to:
(1) Each passenger railroad carrier,
including each carrier operating light
rail or heavy rail transit service on track
that is part of the general railroad
system of transportation, each carrier
operating or providing intercity
passenger train service or commuter or
other short-haul railroad passenger
service in a metropolitan or suburban
area (as described by 49 U.S.C. 20102),
and each public authority operating
passenger train service.
(2) Each passenger railroad carrier
hosting an operation described in
paragraph (a)(1) of this section.
(3) Each operator of a rail transit
system that is not operating on track
that is part of the general railroad
system of transportation, including
heavy rail transit, light rail transit,
automated guideway, cable car, inclined
plane, funicular, and monorail systems.
(4) Each operator of private cars,
including business/office cars and
circus trains, on or connected to the
general railroad system of
transportation, when notified by TSA,
in writing, that a security threat exists
concerning that operation.
(5) Each tourist, scenic, historic, or
excursion operations, whether on or off
the general railroad system of
transportation, when notified by TSA,
in writing, that a security threat exists
concerning that operation.
(b) Each person described in
paragraph (a) of this section must
designate and use a primary and at least
one alternate RSC.
(c) The RSC and alternate(s) must be
appointed at the corporate level.
(d) Each passenger railroad carrier
and rail transit system required to have
an RSC must provide to TSA the names,
titles, phone number(s), and e-mail
address(es) of the RSCs, and alternate
RSCs, and must notify TSA within 7
calendar days when any of this
information changes.
(e) Each passenger railroad carrier and
rail transit system required to have an
RSC must ensure that at least one RSC:
(1) Serves as the primary contact for
intelligence information and securityrelated activities and communications
PO 00000
Frm 00050
Fmt 4701
Sfmt 4700
Reporting significant security
(a) Applicability. This section applies
to:
(1) Each passenger railroad carrier,
including each carrier operating light
rail or heavy rail transit service on track
that is part of the general railroad
system of transportation, each carrier
operating or providing intercity
passenger train service or commuter or
other short-haul railroad passenger
service in a metropolitan or suburban
area (as described by 49 U.S.C. 20102),
and each public authority operating
passenger train service.
(2) Each passenger railroad carrier
hosting an operation described in
paragraph (a)(1) of this section.
(3) Each tourist, scenic, historic, and
excursion rail operator, whether
operating on or off the general railroad
system of transportation.
(4) Each operator of private cars,
including business/office cars and
circus trains, on or connected to the
general railroad system of
transportation.
(5) Each operator of a rail transit
system that is not operating on track
that is part of the general railroad
system of transportation, including
heavy rail transit, light rail transit,
automated guideway, cable car, inclined
plane, funicular, and monorail systems.
(b) Each person described in
paragraph (a) of this section must
immediately report potential threats or
significant security concerns to DHS by
telephoning the Freedom Center at 703–
563–3240 or 1–877–456–8722.
(c) Potential threats or significant
security concerns encompass incidents,
suspicious activities, and threat
information including, but not limited
to, the following:
(1) Interference with the train or
transit vehicle crew.
(2) Bomb threats, specific and nonspecific.
(3) Reports or discovery of suspicious
items that result in the disruption of rail
operations.
(4) Suspicious activity occurring
onboard a train or transit vehicle or
inside the facility of a passenger railroad
carrier or rail transit system that results
in a disruption of rail operations.
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(5) Suspicious activity observed at or
around rail cars or transit vehicles,
facilities, or infrastructure used in the
operation of the passenger railroad
carrier or rail transit system.
(6) Discharge, discovery, or seizure of
a firearm or other deadly weapon on a
train or transit vehicle or in a station,
terminal, facility, or storage yard, or
other location used in the operation of
the passenger railroad carrier or rail
transit system.
(7) Indications of tampering with
passenger rail cars or rail transit
vehicles.
(8) Information relating to the possible
surveillance of a passenger train or rail
transit vehicle or facility, storage yard,
or other location used in the operation
of the passenger railroad carrier or rail
transit system.
(9) Correspondence received by the
passenger railroad carrier or rail transit
system indicating a potential threat to
rail transportation.
(10) Other incidents involving
breaches of the security of the passenger
railroad carrier or the rail transit system
operations or facilities.
(d) Information reported should
include, as available and applicable:
(1) The name of the passenger railroad
carrier or rail transit system and contact
information, including a telephone
number or e-mail address.
(2) The affected station, terminal, or
other facility.
72179
(3) Identifying information on the
affected passenger train or rail transit
vehicle including number, train or
transit line, and route, as applicable.
(4) Origination and termination
locations for the affected passenger train
or rail transit vehicle, including
departure and destination city and the
rail or transit line and route.
(5) Current location of the affected
passenger train or rail transit vehicle.
(6) Description of the threat, incident,
or activity.
(7) The names and other available
biographical data of individuals
involved in the threat, incident, or
activity.
(8) The source of any threat
information.
APPENDIX A TO PART 1580—HIGH THREAT URBAN AREAS (HTUAS)
Previously designated
urban areas included
State
Candidate urban area
Geographic area captured in the data count
AZ ...
Phoenix Area * ..........
CA ...
Anaheim/Santa Ana
Area.
Bay Area ...................
Chandler, Gilbert, Glendale, Mesa, Peoria, Phoenix, Scottsdale, Tempe, and a 10-mile
buffer extending from the border of the combined area.
Anaheim, Costa Mesa, Garden Grove, Fullerton, Huntington Beach, Irvine, Orange,
Santa Ana, and a 10-mile buffer extending from the border of the combined area.
Berkeley, Daly City, Fremont, Hayward, Oakland, Palo Alto, Richmond, San Francisco,
San Jose, Santa Clara, Sunnyvale, Vallejo, and a 10-mile buffer extending from the
border of the combined area.
Burbank, Glendale, Inglewood, Long Beach, Los Angeles, Pasadena, Santa Monica,
Santa Clarita, Torrance, Simi Valley, Thousand Oaks, and a 10-mile buffer extending
from the border of the combined area.
Elk Grove, Sacramento, and a 10-mile buffer extending from the border of the combined area.
Chula Vista, Escondido, and San Diego, and a 10-mile buffer extending from the border
of the combined area.
Arvada, Aurora, Denver, Lakewood, Westminster, Thornton, and a 10-mile buffer extending from the border of the combined area.
National Capital Region and a 10-mile buffer extending from the border of the combined
area.
Fort Lauderdale, Hollywood, Miami Gardens, Miramar, Pembroke Pines, and a 10-mile
buffer extending from the border of the combined area.
Jacksonville and a 10-mile buffer extending from the city border ......................................
Hialeah, Miami, and a 10-mile buffer extending from the border of the combined area ...
Orlando and a 10-mile buffer extending from the city border ............................................
Clearwater, St. Petersburg, Tampa, and a 10-mile buffer extending from the border of
the combined area.
Atlanta and a 10-mile buffer extending from the city border ..............................................
Honolulu and a 10-mile buffer extending from the city border ...........................................
Chicago and a 10-mile buffer extending from the city border ............................................
Indianapolis and a 10-mile buffer extending from the city border ......................................
Louisville and a 10-mile buffer extending from the city border ..........................................
Baton Rouge and a 10-mile buffer extending from the city border ....................................
New Orleans and a 10-mile buffer extending from the city border ....................................
Boston, Cambridge, and a 10-mile buffer extending from the border of the combined
area.
Baltimore and a 10-mile buffer extending from the city border ..........................................
Detroit, Sterling Heights, Warren, and a 10-mile buffer extending from the border of the
combined area.
Minneapolis, St. Paul, and a 10-mile buffer extending from the border of the combined
entity.
Independence, Kansas City (MO), Kansas City (KS), Olathe, Overland Park, and a 10mile buffer extending from the border of the combined area.
St. Louis and a 10-mile buffer extending from the city border ...........................................
Charlotte and a 10-mile buffer extending from the city border ...........................................
Omaha and a 10-mile buffer extending from the city border .............................................
Elizabeth, Jersey City, Newark, and a 10-mile buffer extending from the border of the
combined area.
Las Vegas, North Las Vegas, and a 10-mile buffer extending from the border of the
combined entity.
Buffalo and a 10-mile buffer extending from the city border ..............................................
Los Angeles/Long
Beach Area.
Sacramento Area * ....
San Diego Area * ......
CO ..
Denver Area ..............
DC ...
National Capital Region.
Fort Lauderdale Area
FL ....
Jacksonville Area ......
Miami Area ................
Orlando Area ............
Tampa Area * ............
MA ..
Atlanta Area ..............
Honolulu Area ...........
Chicago Area ............
Indianapolis Area ......
Louisville Area * ........
Baton Rouge Area * ..
New Orleans Area ....
Boston Area ..............
MD ..
MI ....
Baltimore Area ..........
Detroit Area ...............
MN ..
Twin Cities Area .......
MO ..
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GA ...
HI ....
IL .....
IN ....
KY ...
LA ...
Kansas City Area ......
NC ...
NE ...
NJ ...
NV ...
St. Louis Area ...........
Charlotte Area ...........
Omaha Area * ...........
Jersey City/Newark
Area.
Las Vegas Area * ......
NY ...
Buffalo Area * ............
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E:\FR\FM\26NOR2.SGM
26NOR2
Phoenix, AZ.
Anaheim, CA; Santa
Ana, CA.
San Francisco, CA;
San Jose, CA;
Oakland, CA.
Los Angeles, CA;
Long Beach, CA.
Sacramento, CA.
San Diego, CA.
Denver, CO.
National Capital Region, DC.
N/A.
Jacksonville, FL.
Miami, FL.
Orlando, FL.
Tampa, FL.
Atlanta, GA.
Honolulu, HI.
Chicago, IL.
Indianapolis, IN.
Louisville, KY.
Baton Rouge, LA.
New Orleans, LA.
Boston, MA.
Baltimore, MD.
Detroit, MI.
Minneapolis, MN; St.
Paul, MN.
Kansas City, MO.
St. Louis, MO.
Charlotte, NC.
Omaha, NE.
Jersey City, NJ; Newark, NJ.
Las Vegas, NV.
Buffalo, NY.
72180
Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Rules and Regulations
APPENDIX A TO PART 1580—HIGH THREAT URBAN AREAS (HTUAS)—Continued
State
Previously designated
urban areas included
Geographic area captured in the data count
New York City Area ..
OH ..
Candidate urban area
New York City, Yonkers, and a 10-mile buffer extending from the border of the combined area.
Cincinnati and a 10-mile buffer extending from the city border .........................................
Cleveland and a 10-mile buffer extending from the city border .........................................
Columbus and a 10-mile buffer extending from the city border .........................................
Oregon, Toledo, and a 10-mile buffer extending from the border of the combined area ..
Norman, Oklahoma and a 10-mile buffer extending from the border of the combined
area.
Portland, Vancouver, and a 10-mile buffer extending from the border of the combined
area.
Philadelphia and a 10-mile buffer extending from the city border ......................................
Pittsburgh and a 10-mile buffer extending from the city border .........................................
Memphis and a 10-mile buffer extending from the city border ...........................................
Arlington, Carrollton, Dallas, Fort Worth, Garland, Grand Prairie, Irving, Mesquite,
Plano, and a 10-mile buffer extending from the border of the combined area.
OK ...
Cincinnati Area .........
Cleveland Area .........
Columbus Area .........
Toledo Area * ............
Oklahoma City Area *
OR ..
Portland Area ............
PA ...
Philadelphia Area ......
Pittsburgh Area .........
Memphis Area ...........
Dallas/Fort Worth/Arlington Area.
TN ...
TX ...
Houston Area ............
WA ..
WI ...
San Antonio Area .....
Seattle Area ..............
Milwaukee Area ........
Houston, Pasadena, and a 10-mile buffer extending from the border of the combined
entity.
San Antonio and a 10-mile buffer extending from the city border .....................................
Seattle, Bellevue, and a 10-mile buffer extending from the border of the combined area
Milwaukee and a 10-mile buffer extending from the city border ........................................
New York, NY.
Cincinnati, OH.
Cleveland, OH.
Columbus, OH.
Toledo, OH.
Oklahoma City, OK.
Portland, OR.
Philadelphia, PA.
Pittsburgh, PA.
Memphis, TN.
Dallas, TX; Fort
Worth, TX; Arlington, TX.
Houston, TX.
San Antonio, TX.
Seattle, WA.
Milwaukee, WI.
* FY05 Urban Areas eligible for sustainment funding through the FY06 Urban Areas Security Initiative (UASI) program; any Urban Area not
identified as eligible through the risk analysis process for two consecutive years will not be eligible for continued funding under the UASI
program.
APPENDIX B TO PART 1580—SUMMARY OF THE APPLICABILITY OF PART 1580
[This is a summary—see body of text for complete requirements]
Freight
railroad carriers NOT
transporting
specified hazardous
materials
Security measure and rule section
Allow TSA to inspect (§ 1580.5) ...............................................
Appoint rail security coordinator (§ 1580.101 freight;
§ 1580.201 passenger) ..........................................................
Report significant security concerns (§ 1580.105 freight;
§ 1580.203 passenger) ..........................................................
Provide location and shipping information for rail cars containing specified hazardous materials if requested
(§ 1580.103) ..........................................................................
Chain of custody and control requirements for transport of
specified hazardous materials that are or may be in HTUA
(§ 1580.107) ..........................................................................
1 Only
Freight railroad
carriers
transporting
specified hazardous
materials
(§ 1580.100(b))
Rail operations
at certain
facilities that
ship (i.e., offer,
prepare, or
load for
transportation)
hazardous
materials
Rail operations
at certain
facilities that
receive or
unload
hazardous
materials
within
an HTUA
Passenger
railroad
carriers and
rail transit
systems
Certain other
rail operations
(private,
business/office, circus,
tourist,
historic,
excursion)
X
X
X
X
X
X
X
X
X
X
X
( 1)
X
X
X
X
X
X
........................
X
X
X
........................
........................
........................
X
X
X
........................
........................
if notified in writing that a security threat exists.
Issued in Arlington, Virginia, on November
11, 2008.
Kip Hawley,
Assistant Secretary.
[FR Doc. E8–27287 Filed 11–25–08; 8:45 am]
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]]>Agencies
[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Rules and Regulations]
[Pages 72130-72180]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-27287]
[[Page 72129]]
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Part II
Department of Homeland Security
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Transportation Security Administration
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49 CFR Parts 1520 and 1580
Rail Transportation Security; Final Rule
Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 /
Rules and Regulations
[[Page 72130]]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Parts 1520 and 1580
[Docket No. TSA-2006-26514; Amendment Nos. 1520-5, 1580-(New)]
RIN 1652-AA51
Rail Transportation Security
AGENCY: Transportation Security Administration, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Transportation Security Administration (TSA) issues this
final rule to enhance the security of our Nation's rail transportation
system. This rule establishes 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 codifies the scope of TSA's existing
inspection program and requires regulated parties to allow TSA and
Department of Homeland Security (DHS) officials to enter, inspect, and
test property, facilities, conveyances, and records relevant to rail
security. This rule also requires that regulated parties designate rail
security coordinators and report significant security concerns.
This rule further requires that freight rail carriers and certain
facilities handling specified hazardous materials be able to report
location and shipping information to TSA upon request and implement
chain of custody requirements to ensure a positive and secure exchange
of specified hazardous materials. TSA also clarifies and amends the
sensitive security information (SSI) protections to cover certain
information associated with rail transportation.
DATES: This final rule is effective December 26, 2008.
FOR FURTHER INFORMATION CONTACT: For questions related to freight rail
security: Scott Gorton, Transportation Sector Network Management,
Freight Rail Security, TSA-28, Transportation Security Administration,
601 South 12th Street, Arlington, VA 22202-4220; telephone (571) 227-
1251; facsimile (571) 227-1923; e-mail freightrailsecurity@dhs.gov.
For questions related to passenger rail security: Morvarid
Zolghadr, Mass Transit and Passenger Rail Security, TSA-28,
Transportation Security Administration, 601 South 12th Street,
Arlington, VA 22202-4220; telephone (571) 227-2957; e-mail
passengerrailcomments@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.
For questions related to SSI: Andrew E. Colsky, Office of the
Special Counselor, SSI Office, TSA-31, Transportation Security
Administration, 601 South 12th Street, Arlington, VA 22202-4220;
telephone (571) 227-3513; facsimile (571) 227-2945; e-mail SSI@dhs.gov.
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Document
You can get an electronic copy of this rulemaking document by--
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page at https://dms.dot.gov/search;
(2) Visiting the Department of Transportation's Docket Operations
facility located at 1200 New Jersey Avenue, SE., West Building, Ground
Floor, Room W12-140, Washington, DC 20590. The facility is open from 9
a.m. to 5 p.m., Monday through Friday, excluding legal holidays. The
Docket Operations telephone number is (202) 366-9826;
(3) Accessing the Government Printing Office's Web page at https://
www.gpoaccess.gov/fr/; or
(4) 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 one of the
individuals in the FOR FURTHER INFORMATION CONTACT section. When making
such a request, please identify the docket number of this rulemaking.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires TSA to comply with small entity requests for information
and advice about compliance with statutes and regulations within TSA's
jurisdiction. Any small entity that has a question regarding this
document may contact one of the persons listed in the FOR FURTHER
INFORMATION CONTACT section. Persons can obtain further information
regarding SBREFA on the Small Business Administration's (SBA) Web page
at https://www.sba.gov/advo/laws/law_lib.html.
Abbreviations and Terms Used in This Document
AAR--Association of American Railroads
AEI--Automatic Equipment Identification
ASLRRA--American Short Line & Regional Railroad Association
Amtrak--National Railroad Passenger Corporation
CFATS--Chemical Facility Anti-Terrorism Standards
CVI--Chemical-terrorism Vulnerability Information
DOD--Department of Defense
DOE--Department of Energy
DOT--Department of Transportation
EPA--Environmental Protection Agency
FIPS201--Federal Information Processing Standards Publication 201
FRA--Federal Railroad Administration
FRFA--Final Regulatory Flexibility Analysis
FSO--Facility Security Officer
FTA--Federal Transit Administration
FTE--Full Time Equivalent
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
MTSA--Maritime Transportation Security Act
NAICS--North American Industry Classification System
NRC--Nuclear Regulatory Commission
OA--State Safety Oversight Agency
PCII--Protected Critical Infrastructure Information
PHMSA--Pipeline and Hazardous Materials Safety Administration
PIH--Poisonous by Inhalation or Poison Inhalation Hazard (materials)
(PIH is another term for TIH)
RSC--Rail Security Coordinator
SBA--Small Business Administration
SD--Security Directive
SGI--Safeguards Information Program
SSI--Sensitive Security Information
STB--Surface Transportation Board
TIH--Toxic Inhalation Hazard (TIH is another term for PIH)
Outline of Final Rule Preamble
I. Background and Summary of the Final Rule
A. Summary of the Rule
B. Purpose of the Rule
C. Changes From the NPRM
II. Overlap Between TSA's Rule and Other DHS Regulations
III. Rail Security-Sensitive Materials
IV. Public Comments on the NPRM and TSA Responses on Regulatory
Provisions
A. Summary
B. Specification of Hazardous Materials
C. Rail Security Coordinators
D. Inspection Authority
E. Reporting Significant Security Concerns
F. Sensitive Security Information
G. Chain of Custody and Control
H. Location and Shipping Information for Certain Rail Cars
I. Whistleblower Protection for Employees
J. Preemption
K. Comments on the Regulatory Impact Assessment
[[Page 72131]]
L. Comments Beyond the Scope of the Rulemaking
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 Summary of This Final Rule
A. Summary of This Rule
TSA's final rule applies 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 24-hour, seven days per week basis to serve as
the 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
inspectors, and DHS officials working with TSA, to enter and conduct
inspections, copy records, perform tests, and conduct other activities
necessary to carry out TSA's statutory responsibilities.
Sensitive Security Information (SSI). This rule clarifies
and extends the protection afforded to SSI in rail transportation and
further identifies covered persons to include railroad carriers;
certain facilities that ship or receive specified hazardous materials
by rail; transit systems; and State, local, and tribal employees,
contractors, and grantees.
The rule also applies 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. Class I freight
railroad carriers must provide the information to TSA no later than
five minutes (for one car) or 30 minutes (for two or more cars) after
receiving the request. Other railroad operators and rail hazardous
materials shipper and receiver facilities must provide the information
for one or more cars within 30 minutes after receiving the request.
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.
As TSA specified in its Notice of Proposed Rulemaking (NPRM) for
this rulemaking (see 71 FR 76852, December 21, 2006), chain of custody
and location requirements apply to specified quantities of three
categories of hazardous materials based on the Department of
Transportation's (DOT's) Hazardous Materials Regulations (HMR) (49 CFR
parts 171-180):
(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 (PIH)
as defined in 49 CFR 171.8, including anhydrous ammonia, 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), excluding residue quantities of
these materials; 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 part 1580 of Title 49 of the Code of Federal
Regulations, reproduced as Table 1 below, presents a brief summary of
the security measures required for the different categories of rail
transportation entities that this final rule governs.
Table 1--TSA Rail Security Final Rule Summary
--------------------------------------------------------------------------------------------------------------------------------------------------------
Freight Rail operations
Freight railroad at certain Rail operations Certain other
railroad carriers facilities that at certain Passenger rail operations
carriers NOT transporting ship (i.e., facilities that railroad (private,
Security measure and rule section transporting specified offer, prepare, receive or carriers and business/
specified hazardous or load for unload rail transit office, circus,
hazardous materials (Sec. transportation) hazardous systems tourist,
materials 1580.100(b)) hazardous materials historic,
materials within an HTUA excursion)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Allow TSA to inspect (Sec. 1580.5).............. X X X X X X
Appoint rail security coordinator (Sec. 1580.101 X X X X X (\1\)
freight; Sec. 1580.201 passenger)..............
Report significant security concerns (Sec. X X X X X X
1580.105 freight; Sec. 1580.203 passenger).....
Provide location and shipping information for rail ............... X X X ............... ...............
cars containing specified hazardous materials if
requested (Sec. 1580.103)......................
Chain of custody and control requirements for ............... X X X ............... ...............
transport of specified hazardous materials that
are or may be in an HTUA (Sec. 1580.107).......
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Only if notified in writing that a security threat exists.
B. Purpose of the Rule
In developing this rule, TSA identified and addressed 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);
[[Page 72132]]
and the train system in Mumbai (formerly known as Bombay), India
(2006).
TSA is also considering 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,
it creates security vulnerabilities. Freight trains transporting
hazardous materials are of even more concern, because an attack on
those trains (e.g., through the placement of improvised explosive
devices (IEDs) \1\ or other forms of sabotage) could result in the
release of hazardous materials.
---------------------------------------------------------------------------
\1\ An IED is a device fabricated in an improvised manner that
incorporates explosives or destructive, lethal, noxious,
pyrotechnic, or incendiary chemicals into its design. It generally
includes a power supply, a switch or timer, and a detonator or
initiator.
---------------------------------------------------------------------------
TSA's NPRM proposed a number of measures to improve the security of
freight rail and passenger rail, including rail transit. It also
proposed security requirements for shippers and receivers of certain
hazardous materials. This final rule adopts most of the provisions of
the NPRM. TSA presented its rationale for each element of the NPRM in
Section III of the preamble to the NPRM. 71 FR at 76861-76866. TSA
describes the differences between the NPRM and this final rule in
Section I.C of this preamble. TSA presents a summary of the public
comments and responses in Section V of this preamble.
TSA's final rule adopts a risk-based approach by focusing on
shipments of certain hazardous materials and establishing chain of
custody and control procedures and other measures for rail cars that
pose the greatest security vulnerabilities. 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 highly toxic, explosive, or radioactive hazardous
materials, which would cause the greatest loss of life and property and
damage to the national economy.
To determine which hazardous materials to identify in the proposed
regulation, TSA considered the hazardous materials for which security
plans are required as specified in 49 CFR Part 172, Subpart I. (These
requirements were included in a final rule adopted by the Pipeline and
Hazardous Materials Safety Administration (PHMSA) under Docket Number
HM-232.\2\) From the list of materials in 49 CFR 172.800(b), TSA
identified three categories \3\ of hazardous materials that pose the
greatest transportation security risk--materials that are poisonous by
inhalation (PIH),\4\ explosive, and radioactive. In the NPRM, TSA
proposed to apply specific requirements to certain carriers and
facilities that handle these materials. This final rule focuses on the
same materials.
---------------------------------------------------------------------------
\2\ See Section II.B of the preamble to the NPRM for a detailed
discussion of the HM-232 rule. 71 FR at 76856.
\3\ 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.
\4\ 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. See also 49
CFR 171.8, 173.115, and 173.132.
---------------------------------------------------------------------------
Each of these three categories of hazardous materials presents
serious security 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. The consequences
of an accidental PIH release in a rural area were seen in the January
6, 2005 rail accident in Graniteville, South Carolina. A Norfolk
Southern Railway Company (NS) freight train carrying chlorine was
improperly 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 single tank car carrying
chlorine. Even in this sparsely populated area, the collision resulted
in fatal injuries to eight residents and one railroad employee,
injuries to 630 people, and the evacuation of 5,400 local residents.
The property damage, including damages to the rolling stock and track,
exceeded $6.9 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 \5\ at critical points in the transportation cycle,
they could cause significant loss of life and damage to infrastructure,
and harm the national economy through the accompanying disruption to
commerce. Likewise, if terrorists perpetrated an attack against a rail
car transporting certain radioactive materials,\6\ they could endanger
a significant number of people as well as disrupt the supply chain as a
result of contamination.
---------------------------------------------------------------------------
\5\ 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.
\6\ See 49 CFR 173, subpart H.
---------------------------------------------------------------------------
This final rule addresses the above-identified threats to rail
transportation in several ways. This rule codifies the authority for
TSA inspections, requires the designation of a rail security
coordinator (RSC), and requires the reporting of significant security
concerns by most entities to which the rule is applicable. These
requirements will improve TSA's ability to inspect rail operations and
communicate with railroads and rail facilities. Through these
mechanisms, TSA and DHS will obtain better information and monitoring
capabilities concerning potential transportation security incidents
involving rail transportation and travel. Also, this final rule's
requirements related to hazardous materials, such as additional
monitoring and protection of certain rail cars and increased
availability of location and shipping information for certain rail
cars, will decrease the vulnerabilities of these hazardous materials
shipments to attack.
TSA has legal authority to impose these requirements. Under the
Aviation and Transportation Security Act (ATSA) \7\ 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.'' \8\ TSA
[[Page 72133]]
has authorities in addition to those transferred from DOT.\9\ TSA is
empowered to develop policies, strategies, plans, and regulations for
dealing with threats to all modes of transportation. 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.\10\ TSA enforces security-
related regulations and requirements,\11\ ensures the adequacy of
security measures for the transportation of cargo,\12\ oversees the
implementation and ensures the adequacy of security measures at
transportation facilities,\13\ and carries out other appropriate duties
relating to transportation security.\14\ 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.\15\ TSA is also charged with serving as the primary liaison
for transportation security to the intelligence and law enforcement
communities.\16\
---------------------------------------------------------------------------
\7\ Pub. L. 107-71, 115 Stat. 597 (November 19, 2001).
\8\ 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 for
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.
\9\ 49 U.S.C. 114(f).
\10\ 49 U.S.C. 114(f)(1)-(5); (h)(1)-(4).
\11\ 49 U.S.C. 114(f)(7).
\12\ 49 U.S.C. 114(f)(10).
\13\ 49 U.S.C. 114(f)(11).
\14\ 49 U.S.C. 114(f)(15).
\15\ 49 U.S.C. 114(l)(1).
\16\ 49 U.S.C. 114(f)(1) and (5).
---------------------------------------------------------------------------
TSA's authority with respect to transportation security is
comprehensive and supported with specific powers related to the
development and enforcement of regulations, security directives (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.
The Federal hazardous materials transportation law (Federal hazmat
law, 49 U.S.C. 5101 et seq.), authorizes the Secretary of DOT to
``prescribe regulations for the safe transportation, including
security, of hazardous material in intrastate, interstate, and foreign
commerce.'' The Secretary of DOT has delegated this authority to PHMSA.
Under the mandate in Sec. 5103(b), PHMSA promulgated the HMR (49 CFR
parts 171-180), which govern safety aspects, including security, of the
transportation of hazardous material the Secretary of DOT considers
appropriate. In accordance with its security authority, in March 2003,
PHMSA adopted new transportation security requirements for offerors and
transporters of certain classes and quantities of hazardous materials
and new security training requirements for hazardous materials
employees. The security regulations require offerors and carriers to
develop and implement security plans and to train their employees to
recognize and respond to possible security threats.
On August 9, 2006, DOT/PHMSA and DHS/TSA signed an annex to the
September 28, 2004, ``Memorandum of Understanding Between the
Department of Homeland Security and the Department of Transportation on
Roles and Responsibilities'' (DHS-DOT MOU).\17\ The purpose of the
annex is to delineate clear lines of authority and responsibility,
promote communication and efficiency, and avoid 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.
---------------------------------------------------------------------------
\17\ The annex is entitled ``Annex to the Memorandum of
Understanding Between the Department of Homeland Security and the
Department of Transportation Concerning Transportation Security
Administration and Pipeline and Hazardous Materials Safety
Administration Cooperation on Pipeline and Hazardous Materials
Transportation Security.''
---------------------------------------------------------------------------
Similarly, on September 28, 2006, DOT's Federal Railroad
Administration (FRA) and TSA signed an annex to the DHS-DOT MOU to
address each agency's roles and responsibilities for rail
transportation security. The FRA-TSA annex recognizes that TSA is the
lead Federal entity for transportation security in general and rail
security in particular. Concerning safety, the FRA-TSA annex recognizes
that FRA has authority over every area of railroad safety (including
security) and that FRA enforces PHMSA's HMR. The FRA-TSA annex includes
procedures for coordinating: (1) Planning, inspection, training, and
enforcement activities; (2) criticality and vulnerability assessments
and security reviews; (3) communication with affected stakeholders; and
(4) the use of personnel and resources. Copies of the two annexes are
available for review in the public docket for this rulemaking.
Consistent with the principles outlined in the PHMSA-TSA and FRA-TSA
annexes, PHMSA and FRA collaborated with TSA to develop this final
rule.
On April 16, 2008, PHMSA published an interim final rule in the
Federal Register to revise the current requirements in the HMR
applicable to the safe and secure transportation of hazardous materials
transported in commerce by rail. 73 FR 20752. Specifically, PHMSA
adopted the following:
Rail carriers transporting certain explosives, PIH
material, and radioactive materials must compile information and data
on the commodities transported, including the transportation routes
over which they transport these commodities.
Rail carriers transporting the specified hazardous
materials must use the data they compile on commodities they transport
to analyze the safety and security risks for the transportation routes
used and all practicable alternative routes to the one used. Rail
carriers must utilize these analyses to make transportation decisions
that result in the transportation of these materials over the safest
and most secure commercially practicable routes posing the least
overall safety and security risks.
Rail carriers must specifically address the security risks
associated with shipments delayed in transit or temporarily stored in
transit as part of their security plans.
Rail carriers transporting covered hazardous materials
must notify consignees if there is a significant unplanned delay
affecting the delivery of the hazardous material.
Rail carriers must work with shippers and consignees to
minimize the time a rail car containing one of the specified hazardous
materials is placed on track awaiting pick-up or delivery or transfer
from one carrier to another.
Rail carriers must conduct visual security inspections at
ground level of rail cars containing hazardous materials to inspect for
signs of tampering or the introduction of an IED.
C. Changes From the NPRM
This section summarizes the regulatory text changes that TSA has
made to the NPRM in this final rule. In addition to the summary
contained in this section, in many cases TSA has provided a more
extensive discussion of the change, and the reason for the change, in
the response to comments below. See Section IV ``Public Comments on the
NPRM and TSA Responses on Regulatory Provisions.'' Finally, to the
extent TSA has made technical corrections or corrected typographical
errors, we do not specifically discuss them.
[[Page 72134]]
1. Sensitive Security Information
TSA has revised paragraph (b)(15) of 49 CFR 1520.5 to add rail to
the categories of research and development information related to
transportation security activities that is protected as SSI. TSA has
revised paragraph (b) of 49 CFR 1520.11 to add State, local, and tribal
government employees, contractors, and grantees to the list of persons
with a potential need to know SSI. TSA made this change to be
consistent with DHS policy on information sharing and allow States,
localities and tribal governments, and their contractors and grantees,
to have access to SSI if the information is needed for the performance
of official duties, such as the prevention or mitigation of security
incidents, contracts, or grants.
2. Rail Security-Sensitive Materials
This final rule defines the term ``rail security-sensitive
materials'' to mean one or more of the categories and quantities of the
materials set forth in the new Sec. 1580.100(b), the transportation of
which requires the operators to carry out the security measures in this
rule. TSA has introduced this term to comply with Sec. Sec. 1501(13)
and 1551 of the ``Implementing the Recommendations of the 9/11
Commission Act of 2007'' (9/11 Commission Act).\18\ Section 1501(13)
defines ``security-sensitive material'' to mean a material or group of
materials, in a particular quantity and form that the Secretary of
Homeland Security, in consultation with the Secretary of
Transportation, determines through rulemaking with opportunity for
public comment, poses a significant risk to national security while
being transported in commerce. Section 1551 directs the Secretary of
Transportation, in consultation with the Secretary of Homeland
Security, to publish a final rule based on the PHMSA NPRM published on
December 21, 2006.\19\ That section directs the Secretary of
Transportation to ensure that the PHMSA final rule requires railroad
carriers of ``security-sensitive materials'' to ``select the safest and
most secure route to be used in transporting'' those materials and to
select such route based on the railroad carrier's analysis of the
safety and security risks on primary and alternate transportation
routes over which the carrier has authority to operate.
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\18\ Pub. L. 110-53; 121 Stat. 266; August 3, 2007.
\19\ The PHMSA NPRM proposed 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 also proposed clarifications of the current
security plan requirements to address en route storage, delays in
transit, delivery notification, and additional security inspection
requirements for hazardous materials shipments. See 71 FR 76834
(December 21, 2006).
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Through this Rail Transportation Security rulemaking, TSA has
provided the public with an opportunity to comment on its
identification of security-sensitive materials in the rail sector. See
Section III of this preamble. TSA has added the term ``rail security-
sensitive material'' to 49 CFR 1580.3 to denote that the Secretary of
Homeland Security has determined that the categories and quantities of
hazardous materials set forth in 49 CFR 1580.100(b) pose a significant
risk to national security while being transported in commerce by rail
due to the potential use of one or more of these materials in an act of
terrorism. TSA has therefore concluded that these categories and
quantities of hazardous materials constitute ``security-sensitive
material'' for purposes of triggering the railroad routing requirements
in Sec. 1551 of the 9/11 Commission Act.
3. Inspection Authority
In response to commenters who expressed concerns about verifying
the identity and credentials of TSA inspectors, TSA has added a new
paragraph (d) to 49 CFR 1580.5. It provides that TSA inspectors, and
DHS officials working with TSA, will present their credentials for
examination, at the request of the entity being inspected, with the
understanding that the credentials may not be reproduced. Any regulated
party wishing to authenticate the identity of an individual purporting
to represent TSA may contact the Freedom Center at 703-563-3240 or 1-
877-456-8722.\20\
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\20\ The Freedom Center is a facility dedicated solely to
transportation-security operations. Until June 21, 2007, the Freedom
Center was known as the Transportation Security Operations Center,
or TSOC. With state-of-the-art equipment and systems, the Freedom
Center integrates all available capabilities to gather intelligence
and conduct analysis related to transportation security. The Freedom
Center correlates and fuses real-time intelligence and operational
information across all modes of transportation, and coordinates with
all homeland security agencies and with appropriate law enforcement
agencies and stakeholders to gather additional information or to
assist in the prevention of, and response to, transportation
security-related incidents.
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4. Reporting Significant Security Concerns
In the NPRM, TSA stated that reports of potential threats and
significant security concerns to DHS would be required ``in a manner
prescribed by TSA.'' See 49 CFR 1580.105(b) and 1580.203(b). In this
final rule, TSA has revised paragraph (b) of each section to indicate
that the regulated parties must make the required reports by
telephoning the Freedom Center at 703-563-3240 or 1-877-456-8722.
5. Chain of Custody and Control Requirements
Some commenters asked TSA to explain the concept of ``attending a
rail car'' in the context of complying with the requirement in
paragraphs (c) and (d) of 49 CFR 1580.107 ``to ensure that the rail car
is not left unattended at any time during the physical transfer of
custody.'' One commenter asked if ``maintain[ing] positive control of
the rail car'' for purposes of 49 CFR 1580.107(f)(1) was merely
synonymous with a prohibition against unattended pick up and delivery.
In response, TSA has added a new paragraph (k) to 49 CFR 1580.107 to
explain the terms ``attended'' and ``maintains positive control.'' As
used in Sec. 1580.107, a rail car is ``attended'' if an employee or
authorized representative of the freight railroad carrier: (1) Is
physically located on site in reasonable proximity to the rail car; (2)
is capable of promptly responding to unauthorized access or activity at
or near the rail car, including immediately contacting law enforcement
or other authorities, and (3) immediately responds to any unauthorized
access or activity at or near the rail car either personally or by
contacting law enforcement or other authorities. Electronic monitoring
is permitted so long as the responsible party is located on site and
can accomplish an equivalent level of surveillance, response, and
notification. Attending a rail car is a component part of maintaining
positive control. As used in Sec. 1580.107, when the rail hazardous
materials receiver and freight railroad carrier communicate and
cooperate with each other to ensure the security of the rail car during
the physical transfer of custody, they are ``maintaining positive
control'' of the car.
TSA has also included an explanation in paragraph (k) of the term
``document the transfer.'' As used in Sec. 1580.107, a transfer of
physical custody of a rail car is properly documented, either in
writing or electronically, when the documentation contains, at a
minimum: (1) The car's initial (also known as the reporting mark) and
number; (2) the names or employee numbers of the individuals who
attended the transfer; (3) the location where the transfer took place;
and (4) the date and time the transfer was completed.
[[Page 72135]]
6. Location and Shipping Information for Certain Rail Cars
In the NPRM, TSA proposed a one-hour timeframe for freight railroad
carriers, rail hazardous materials shippers, and rail hazardous
materials receivers to report the location and shipping information to
TSA or other DHS officials for a specified rail car(s). However, in
recognition of the fact that such information is critical to addressing
specific security threats or incidents, TSA sought comment on the
feasibility of a shorter timeframe, such as five minutes or thirty
minutes. Based upon comments received and TSA's understanding of the
technological capabilities of the regulated parties, we have changed
the reporting timeframe in 49 CFR 1580.103 by revising paragraph (d)
and adding a new paragraph (e). Paragraph (d) requires all Class I
freight railroad carriers subject to Sec. 1580.103 to provide location
and shipping information to TSA within five minutes if the request
concerns only one car and within thirty minutes if the request concerns
two or more rail cars. Paragraph (e) requires all other entities
subject to Sec. 1580.103 to provide the information to TSA within
thirty minutes, regardless of how many rail cars the request concerns.
TSA has also added a new paragraph (h) to Sec. 1580.103 to indicate
that TSA has adopted the same definition of ``Class I carrier'' as used
by the Surface Transportation Board (STB). See 49 CFR part 1201,
General Instructions 1-1.
The NPRM would have required each regulated party to develop
procedures for determining location and shipping information, if
requested by TSA, for covered rail cars under their physical custody
and control, but the NPRM did not propose to require the regulated
party to provide TSA with a contact telephone number to use when
requesting this information. TSA has added a new paragraph (g) to Sec.
1580.103, requiring each regulated party to provide TSA with a
telephone number that is monitored by a live person on a 24-hours a
day, seven days a week basis. This will assure a prompt response on
those occasions when TSA needs information.
7. Harmonization of Federal Regulation of Nuclear Facilities
TSA recognizes that its statutory authorities and obligations may
extend to facilities involved in the production and utilization of
nuclear materials or weapons already subject to safety, security, and
inspection requirements imposed by the Nuclear Regulatory Commission
(NRC) and the Department of Energy (DOE). To ensure that regulated
entities are not subject to duplicative or conflicting regulatory or
inspection requirements, TSA has included section 1580.111 of the
regulations, which states that TSA will coordinate activities under
this subpart with the NRC and DOE with respect to regulation of rail
hazardous materials shippers and receivers that are also licensed or
regulated by the NRC or DOE under the Atomic Energy Act of 1954, as
amended, to maintain consistency with the requirements imposed by the
NRC and DOE. TSA will enter into appropriate agency-to-agency
agreements with the NRC and DOE to carry out section 1580.111.
II. Overlap Between TSA's Rule and Other DHS Regulations
This Rail Transportation Security final rule affects entities that
also may be subject to the requirements of other DHS rules--e.g., the
DHS Chemical Facility Anti-Terrorism Standards (CFATS) regulation \21\
and the Coast Guard's Maritime Transportation Security Act (MTSA) \22\
regulations. This section describes the interrelationships of this rule
with the CFATS and MTSA regulations.
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\21\ 6 CFR Part 27.
\22\ Pub. L. 107-295; Nov. 25, 2002, as codified in 46 U.S.C.
chapter 701.
---------------------------------------------------------------------------
Pursuant to Sec. 550 of the Department of Homeland Security
Appropriations Act of 2007 (2007 DHS Appropriations Act) (Pub. L. 109-
295), which provides DHS with the authority to regulate the security of
certain high-risk chemical facilities in the United States, DHS issued
an interim final rule on Chemical Facility Anti-Terrorism Standards.
See 72 FR 17688 (April 9, 2007). The CFATS rule establishes risk-based
performance standards for the security of our Nation's high-risk
chemical facilities. It requires facilities that possess specified
chemicals at or above specified amounts to provide information to DHS.
From this information, DHS will initially determine which facilities
are high-risk and preliminarily place high-risk chemical facilities
\23\ in risk-based tiers. Such facilities must then prepare Security
Vulnerability Assessments, which identify facility security
vulnerabilities, and develop and implement Site Security Plans, which
include measures that satisfy the DHS-identified risk-based performance
standards. The CFATS rule contains associated provisions addressing
inspections and audits, recordkeeping, and protection of information
that constitutes Chemical-terrorism Vulnerability Information (CVI).
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\23\ Pursuant to 6 CFR 27.105, a ``covered facility'' or
``covered chemical facility'' is a ``chemical facility determined by
the Assistant Secretary to present high levels of security risk, or
a facility that the Assistant Secretary has determined is
presumptively high risk under Sec. 27.200.''
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In the CFATS interim final rule (IFR), DHS recognized that with
respect to chemical security, certain aspects of Sec. 550 and TSA's
authorities are concurrent and overlapping. In the preamble to the
CFATS IFR, DHS stated that it does not presently plan to screen
railroad facilities for inclusion in the Sec. 550 program (although
DHS reserves the right to reevaluate their possible coverage at a
future date). See 72 FR 17698-17699. Nevertheless, it is possible that
some chemical facilities will be subject to both CFATS and this TSA
final rule. Specifically, it is possible that some facilities, which
are rail hazardous materials shippers or receivers as defined in this
final rule, may be subject to the CFATS screening requirements and may
become covered facilities (i.e., high-risk facilities) under the CFATS
rule. In such situations, the facilities will have to comply with the
requirements of both regulatory programs (including requirements to
provide information under both programs). TSA and DHS, however, will
work closely together to ensure that the efforts directed at these
facilities are coordinated and consistent.
MTSA requires the Secretary of Homeland Security to issue
regulations to strengthen the security of American ports and waterways
and the ships that use them. This authority, in addition to other
grants of authority, serves as the basis for a comprehensive maritime
security regime. Under these authorities, the Coast Guard issued
regulations to ensure the security of vessels, facilities, and other
elements of the maritime transportation system. Part 105 of Title 33 of
the Code of Federal Regulations imposed requirements on a range of
maritime facilities, including hazardous material and petroleum
facilities and those fleeting facilities that receive barges carrying,
in bulk, cargoes regulated by Subchapters D and O of Chapter I, Title
46, Code of Federal Regulations or Certain Dangerous Cargoes.
Pursuant to these maritime security regulations, the Coast Guard
requires these facilities to perform security assessments and then,
based on these assessments, develop security plans, and implement
security measures and procedures in order to reduce the risk of, and to
mitigate the results of, any security incident that threatens the
facility, its personnel, the public, the environment, and the economy.
[[Page 72136]]
A few commenters requested that TSA not apply certain provisions of
this final rule to facilities that comply with 33 CFR part 105 of the
MTSA regulations. Specifically, commenters requested that TSA exempt
these facilities from the Rail Transportation Security rule's
requirements for appointing RSCs, for reporting of significant security
concerns, and for chain of custody and controls. TSA addresses those
specific comments in Section V of this preamble. Generally, however,
TSA has decided not to exempt MTSA-regulated facilities from these
requirements.
Regulating rail security at maritime facilities is a complex issue,
and TSA recognizes that certain aspects of the Coast Guard's maritime
security regulations and TSA's authorities are concurrent and
overlapping. In some respects, compliance with the Coast Guard
regulations and with these regulations can be achieved through the same
operational practices. For example, the Facility Security Officer (FSO)
can serve as the RSC. Also, the rail secure area required by this rule
can be the same area as the restricted area designated in the facility
security assessment required by 33 CFR 105.305, so long as the
regulated party employs physical security measures to ensure that no
unauthorized person gains access to the area. However, to the extent
that the two sets of requirements are different to account for mode-
specific differences in the security issues being addressed by the
Coast Guard and TSA, the facility would have to satisfy both sets of
regulatory requirements. TSA and the Coast Guard will work closely
together to make sure that the requirements of the two programs are
complementary, not inconsistent, with each other.
III. Rail Security-Sensitive Material
As discussed in section I.C.3 of this preamble, Sec. 1501(13) of
the 9/11 Commission Act defines the term ``security-sensitive
material'' to mean ``a material, or a group or class of material, in a
particular amount and form that the Secretary [of Homeland Security],
in consultation with the Secretary of Transportation, determines,
through a rulemaking with the opportunity for public comment, poses a
significant risk to national security while being transported in
commerce due to the potential use of the material in an act of
terrorism.'' In making such a determination, the Secretary of Homeland
Security is directed to consider at least the following: (1) Class 7
radioactive materials; (2) Division 1.1, 1.2, and 1.3 explosives; (3)
materials poisonous or toxic by inhalation, including Division 2.3
gases and Division 6.1 materials; and (4) a select agent or toxin
regulated by the Centers for Disease Control and Prevention (CDC) under
42 CFR part 73.
As discussed in section IV.B of this preamble, DHS and DOT assessed
the security vulnerabilities associated with the transportation of
different types and classes of hazardous materials before proposing to
apply enhanced security requirements for the categories and quantities
of explosive, PIH, and radioactive materials specified in proposed
Sec. 1580.100(b). TSA sought comment on whether to apply the
requirements in this final rule to fewer or additional hazardous
materials or to extend the requirements to include tank cars containing
residue. TSA also sought comment on whether there are other hazardous
materials that could cause significant loss of life, transportation
system disruption, or economic disruption and whether TSA should apply
the requirements in this final rule to those other materials.
TSA did not propose to include select agents or toxins regulated by
the CDC under 42 CFR part 73, because railroads transport few, if any,
shipments of these types of materials. Generally, shipments of
infectious substances, including select agents and toxins, must be
transported quickly from point of origin to destination to prevent
degradation of samples that can occur over time and to ensure swift
diagnosis and treatment of infectious diseases. For these reasons,
highway (for short distances) and air (for longer distances) are the
preferred modes of transportation for these materials.
TSA provided notice and invited public comment in the NPRM on the
list of materials that the Secretary of Homeland Security is required
to consider under Sec. 1501(13) of the 9/11 Commission Act when
defining ``security-sensitive material.'' The hazardous materials set
forth in Sec. 1580.100(b) of this final rule constitute the Secretary
of Homeland Security's list of ``security-sensitive materials'' for
purposes of rail transportation. See Sec. 1551 of the 9/11 Commission
Act. Accordingly, the Secretary of Homeland Security, in consultation
with the Secretary of Transportation, has satisfied the requirements of
Sec. 1551 with respect to the rail mode of transportation and has
determined that ``rail security-sensitive materials'' are: (1) More
than 2,268 kg (5,000 lbs) in a single carload of a Division 1.1, 1.2,
or 1.3 explosive; (2) a tank car containing a material poisonous by
inhalation, as defined in 49 CFR 171.8, including anhydrous ammonia but
excluding residue quantities of these materials; and (3) a highway
route-controlled quantity of a Class 7 (radioactive) material, as
defined in 49 CFR 173.403.
The list of ``rail security-sensitive materials'' represents the
materials that TSA has determined are appropriate at this time for
purposes of this final rule and the PHMSA interim final rule. DHS, in
consultation with DOT, will continue to evaluate the transportation
security risks posed by all types of hazardous materials and may
regulate the transportation by rail of other materials at a later time.
TSA notes that although PHMSA must require railroad carriers
transporting the categories and quantities of materials identified on
the DHS list of ``rail security-sensitive materials'' to comply with
the routing requirements in the PHMSA interim final rule, DOT is not
precluded by Sec. 1551 of the 9/11 Commission Act from regulating the
railroad routing of additional materials or quantities of materials,
such as rail cars transporting residue amounts of hazardous materials.
IV. Public Comments on the NPRM and TSA Responses on Regulatory
Provisions
A. Summary
To gain additional commenter input on the proposed rail security
requirements, TSA held a public meeting on February 2, 2007 in
Arlington, Virginia. Sixty-one persons attended the meeting. The oral
presentations given by stakeholders mirrored their written comments.
Transcripts from the public meeting are available for review in the
public docket for this rulemaking. The public comment period for the
NPRM closed on February 20, 2007. TSA received approximately 73 public
comments on the NPRM. Comments were submitted by trade associations,
individual companies, labor unions, States and localities, and private
individuals.
Below is a summary of the public comments and TSA's responses,
organized as follows: Section A describes the overall organization of
this section of the preamble, and Section B includes comments and
responses related to the specification of hazardous materials. Sections
C, D, and E include comments and responses on issues that apply to
passenger rail (including rail transit), freight rail, and hazardous
materials facilities that ship or receive materials by rail. These
issues relate to the appointment of an RSC, TSA's inspection authority,
and the requirement to report suspicious incidents or activities.
Section F
[[Page 72137]]
includes comments and responses on SSI issues. Sections G and H include
comments and responses on issues that relate to freight railroad
carriers and hazardous materials facilities that ship or receive
materials by rail. Section I includes comments and responses on
whistleblower protection. Section J includes comments and responses on
preemption. Section K includes comments and responses on the regulatory
impact assessment. Section L concerns comments that are beyond the
scope of this rulemaking.
B. Specification of Hazardous Materials
As explained in the NPRM, TSA, PHMSA, and FRA have assessed the
security vulnerabilities associated with the transportation of
different types and classes of hazardous materials. TSA applied
enhanced security requirements for certain categories and quantities of
hazardous materials (i.e., as specified in proposed Sec. 1580.100(b))
based upon specific railroad transportation scenarios depicting how
individuals could deliberately use hazardous materials to cause
significant casualties and property damage. 71 FR at 76861. The
materials specified in the NPRM present a significant rail
transportation security risk and an attractive target for terrorists
because of the potential for these materials to be used as weapons of
mass effect. The proposed rule excluded tank cars containing only
residue quantities of the hazardous material, because TSA concluded
that, from a security perspective, the consequences of the release of a
residue quantity of a PIH material would be significantly less than the
consequences involving a loaded tank car. 71 FR at 76861. TSA sought
comment on whether to apply the requirements in the final rule to fewer
or additional hazardous materials or to extend the requirements to
include tank cars containing residue quantities. TSA also sought
comment on whether there are other hazardous materials that could cause
significant loss of life, transportation system disruption, or economic
disruption and whether TSA should apply the requirements in the final
rule to those other materials.
Comments: An association commented that this final rule should not
apply to Division 1.3 explosives, which consist of materials such as
fireworks, smokeless powder, and rocket motors. The commenter noted
that while TSA characterizes Division 1.3 explosives as commodities
presenting ``a fire hazard and either a minor blast hazard or a minor
projection hazard or both, but not a mass explosion hazard'' (71 FR at
76861), many commodities present a fire hazard that are not included in
the commodities identified by TSA as warranting special security
protection.
TSA Response: TSA is retaining Division 1.3 explosives in Sec.
1580.100(b) of the final rule, because these explosive materials in the
quantities covered in this rule present a significant security risk in
transportation. Although a Division 1.3 explosive presents a minor
blast and/or projection hazard, this material is extremely flammable
and could be used as a weapon of mass effect. If compromised in transit
by detonation or as a secondary explosion to an IED, Division 1.3
explosives could result in substantial damage to people, public and
private property, and rail infrastructure.
Comments: A labor union recommended that TSA reduce the 5,000 pound
applicability trigger for explosives in Sec. 1580.100(b) to 100
pounds.
TSA Response: TSA has not adopted this recommendation. A low
threshold quantity of 100 pounds of explosives, even if compromised or
detonated in transit, is unlikely to have the potential to turn the
rail shipment into a weapon of mass effect.
Comments: Several commenters expressed some concern that the TSA
and PHMSA rail security NPRMs are not consistent in terms of their
application to shipments of PIH materials. The PHMSA NPRM applies to
bulk quantities of PIH materials. A ``bulk quantity'' as used in the
HMR means a quantity that exceeds 450 L (119 gallons) for liquids, a
net mass greater than 400 kg (882 pounds) for solids, or a water
capacity greater than 454 kg (1,000 pounds) as a receptacle for gas.
See 49 CFR 171.8. Thus, the provisions of the PHMSA NPRM would apply to
PIH shipments transported in tank cars, including residue amounts
exceeding 119 gallons, and portable tanks and other bulk containers. In
contrast, the TSA NPRM would apply to tank cars containing PIH
materials but exclude residues. Commenters suggested that the two rules
should be applied consistently. They recommended that both final rules
adopt the TSA tank-car threshold and exclude residue shipments, because
they represent a low security threat.
TSA Response: We believe that there are important distinctions
between the quantities of concern from a security perspective and the
quantities of concern from a safety perspective. These distinctions
account for the differences between the two rules. The amount of
residue remaining in a tank car varies, but in most instances, tank car
residues will total approximately 1-2 percent of the original amount of
material in the tank, or 1,800-3,600 pounds. There are legitimate
safety concerns relating to residue quantities even though the target
attractiveness from a security standpoint is diminished. PHMSA explains
those safety concerns in its rule. With respect to security, the
potential consequences of the release of a residue quantity of al PIH
material would be significantly less than the consequences of an
incident involving a loaded tank car. Therefore, in this final rule,
TSA is requiring enhanced security measures for the classes and
quantities of PIH materials as proposed in the NPRM (i.e., not tank
cars containing residual PIH materials). TSA has determined that
residue quantities of PIH materials in bulk packaging shipments do not
carry sufficient amounts of security-sensitive materials to warrant the
enhanced security measures required by this rulemaking.
Comments: Some commenters were confused as to whether TSA intended
anhydrous ammonia to be included as a PIH material for which enhanced
security measures are required.
TSA Response: The answer is yes. To ensure that this confusion does
not persist, we are specifically adding anhydrous ammonia as an example
in Sec. 1580.100(b) of a material covered by the security requirements
in this final rule. Commenters are correct that, under the HMR,
anhydrous ammonia is classed as a Division 2.2 compressed gas for
domestic transportation. However, anhydrous ammonia meets the
definition of a material that is poisonous by inhalation under 49 CFR
171.8 of the HMR. That definition includes any material identified as
an inhalation hazard by a special provision in column 7 of the 49 CFR
172.10 Hazardous Materials Table. The entry for anhydrous ammonia in
the Hazardous Materials Table includes Special Provision 13, which
requires the words ``Inhalation Hazard'' to be entered on shipping
papers and marked on packages.
Comments: Some commenters believed that the hazardous materials
listed in 49 CFR 1580.100(b) should include other flammable gases and
liquids, since those materials could be weaponized, as well as include
other materials that could cause serious damage if released into rivers
and lakes. One commenter recommended that TSA extend the applicability
of this final rule to cover commodities that convert to poisonous gases
when they come into contact with water, fire, or acids; this commenter
referenced a train derailment that occurred near Superior,
[[Page 72138]]
Wisconsin on June 30, 1992 in which 73 persons were injured when the
contents of one rail car reacted with water and formed a vast vapor
cloud.
TSA Response: While TSA agrees that other types of hazardous
materials pose certain security risks in rail transportation, the risks
are not as great as those posed by the explosive, radioactive, and PIH
materials specified in this final rule, and at this time we are not
persuaded that they warrant the additional precautions required by this
final rule. TSA, in consultation with PHMSA and FRA, will continue to
evaluate the rail transportation security risks posed by all types of
hazardous materials and the effectiveness of existing Federal
regulations in addressing those risks and will consider specific
requirements as necessary.
Comments: One commenter requested that TSA revise the applicability
language in 49 CFR 1580.100(b)(3) by replacing the threshold limit of
``a highway route-controlled quantity of a Class 7 (radioactive)
material'' with the NRC's published list of Import and Export Threshold
Limits for Category 1 and 2 Radioactive Materials. See Appendix P to 20
CFR part 110.
TSA Response: TSA has retained the threshold limits for radioactive
materials as proposed in the NPRM. From a security perspective, it
appears that the consequences from
