# Rail Transportation Security > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AE6-21512 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** December 21, 2006 - **Citation:** 71 FR 76852 ## Text DEPARTMENT OF HOMELAND SECURITY Transportation Security Administration 49 CFR Parts 1520 and 1580 [Docket No. TSA-2006-26514] RIN 1652-AA51 Rail Transportation Security AGENCY: Transportation Security Administration, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: This proposal would enhance the security of our Nation's rail transportation system. The Transportation Security Administration (TSA) proposes security requirements for freight railroad carriers; intercity, commuter, and short-haul passenger train service providers; rail transit systems; and rail operations at certain, fixed-site facilities that ship or receive specified hazardous materials by rail. This rule proposes to codify the scope of TSA's existing inspection program and to require regulated parties to allow TSA and Department of Homeland Security (DHS) officials to enter, inspect, and test property, facilities, and records relevant to rail security. This rule also proposes that regulated parties designate rail security coordinators and report significant security concerns to DHS. TSA further proposes that freight rail carriers and certain facilities handling hazardous materials be equipped to report location and shipping information to TSA upon request and to implement chain of custody requirements to ensure a positive and secure exchange of specified hazardous materials. TSA also proposes to clarify and extend the sensitive security information (SSI) protections to cover certain information associated with rail transportation. This proposal would allow TSA to enhance rail security by coordinating its activities with other Federal agencies, which would also avoid duplicative inspections and minimize the compliance burden on the regulated parties. This proposed rule is intended to augment existing rail transportation laws and regulations that the Department of Transportation (DOT) administers. In today's edition of the Federal Register , the Pipeline and Hazardous Materials Safety Administration (PHMSA) is publishing an NPRM proposing to revise the current requirements in the Hazardous Materials Regulations applicable to the safe and secure transportation of hazardous materials transported in commerce by rail. DATES: Submit comments by February 20, 2007. ADDRESSES: You may submit comments, identified by the TSA docket number to this rulemaking, using any one of the following methods: Comments Filed Electronically: You may submit comments through the docket Web site at http://dms.dot.gov. You may also submit comments through the Federal eRulemaking portal at http://www.regulations.gov. Comments Submitted by Mail, Fax, or In Person: Address or deliver your written, signed comments to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001; Fax: 202-493-2251. See SUPPLEMENTARY INFORMATION for format and other information about comment submissions. FOR FURTHER INFORMATION CONTACT: For questions related to rail security: Lisa Pena, Transportation Sector Network Management, Freight Rail Security, TSA-28, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220; telephone (571) 227-4414; facsimile (571) 227-1923; e-mail lisa.pena@dhs.gov. For legal questions: David H. Kasminoff, Office of Chief Counsel, TSA-2, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220; telephone (571) 227-3583; facsimile (571) 227-1378; e-mail david.kasminoff@dhs.gov. SUPPLEMENTARY INFORMATION: Comments Invited TSA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from this rulemaking action. See ADDRESSES above for information on where to submit comments. With each comment, please include your name and address, identify the docket number at the beginning of your comments, and give the reason for each comment. The most helpful comments reference a specific portion of the rulemaking, explain the reason for any recommended change, and include supporting data. You may submit comments and material electronically, in person, by mail, or fax as provided under ADDRESSES , but please submit your comments and material by only one means. If you submit comments by mail or delivery, submit them in two copies, in an unbound format, no larger than 8.5 by 11 inches, suitable for copying and electronic filing. If you want TSA to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you. TSA will file in the public docket all comments received by TSA, except for comments containing confidential information and sensitive security information (SSI) 1 . TSA will consider all comments received on or before the closing date for comments and will consider comments filed late to the extent practicable. The docket is available for public inspection before and after the comment closing date. 1 Sensitive Security Information (SSI) is information obtained or developed in the conduct of security activities, the disclosure of which would constitute an unwarranted invasion of privacy, reveal trade secrets or privileged or confidential information, or be detrimental to the security of transportation. The protection of SSI is governed by 49 CFR part 1520. Handling of Confidential or Proprietary Information and Sensitive Security Information (SSI) Submitted in Public Comments Do not submit comments that include trade secrets, confidential commercial or financial information, or SSI to the public regulatory docket. Please submit such comments separately from other comments on the rulemaking. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address listed in FOR FURTHER INFORMATION CONTACT section. Upon receipt of such comments, TSA will not place the comments in the public docket and will handle them in accordance with applicable safeguards and restrictions on access. TSA will hold them in a separate file to which the public does not have access, and place a note in the public docket that TSA has received such materials from the commenter. If TSA receives a request to examine or copy this information, TSA will treat it as any other request under the Freedom of Information Act (FOIA) (5 U.S.C. 552) and DHS' FOIA regulation found in 6 CFR part 5. Reviewing Comments in the Docket Please be aware that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the applicable Privacy Act Statement published in the Federal Register on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov. See also TSA's Systems of Records Notice 006, 68 FR 49503 (August 18, 2003). You may review the comments in the public docket by visiting the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Dockets Office is located on the plaza level of the Nassif Building, at the Department of Transportation address previously provided under ADDRESSES . Also, you may review public dockets on the Internet at http://dms.dot.gov. Availability of Rulemaking Document You can get an electronic copy using the Internet by (1) Searching the Department of Transportation's electronic Docket Management System (DMS) web page ( http://dms.dot.gov/search ); (2) Accessing the Government Printing Office's web page at http://www.gpoaccess.gov/fr/index.html ; or (3) Visiting TSA's Security Regulations web page at http://www.tsa.gov and accessing the link for “Research Center” at the top of the page. In addition, copies are available by writing or calling the individual in the FOR FURTHER INFORMATION CONTACT section. Be sure to identify the docket number of this rulemaking. Abbreviations and Terms Used in This Document AEI—Automatic Equipment Identification Amtrak—National Railroad Passenger Corporation CBP—Bureau of Customs and Border Protection FRA—Federal Railroad Administration FTA—Federal Transit Administration GPS—Global Positioning System HMR—Hazardous Materials Regulations HSPD—Homeland Security Presidential Directive HTUA—High Threat Urban Area IED—Improvised Explosive Device MOU—Memorandum of Understanding OA—State Safety Oversight Agency PHMSA—Pipeline and Hazardous Materials Safety Administration PIH—Material Poisonous by Inhalation (PIH is another term for TIH) RFID—Radio Frequency Identification RSC—Rail Security Coordinator SAFETEA-LU—Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users SD—Security Directive SSI—Sensitive Security Information STB—Surface Transportation Board TIH—Toxic Inhalation Hazard (TIH is another term for PIH) UASI—Urban Areas Security Initiative Outline of Proposed Rulemaking I. Background and Purpose A. Summary of Proposed Requirements B. Basis for the Proposed Rule II. Statutory and Regulatory Authorities A. TSA Authorities to Regulate Rail Security B. Department of Transportation Regulation of Rail Security III. TSA's Proposed Rail Security Requirements A. Comparison of TSA's Proposed Rule with the DOT Regulatory Scheme B. Scope and Applicability 1. Freight Railroad Carriers 2. Rail Operations at Certain Fixed-Site Facilities 3. Passenger Rail (including Rail Transit Systems) 4. Other Rail Operations 5. Specified Hazardous Materials 6. High Threat Urban Areas C. Requirements 1. Sensitive Security Information 2. TSA Inspections 3. Designation of Rail Security Coordinators 4. Location and Shipping Information for Certain Rail Cars 5. Reporting Significant Security Concerns a. Passenger Railroad Carriers and Rail Transit Systems b. Freight Rail Including Rail Hazardous Materials Shippers and Rail Hazardous Materials Receivers 6. Chain of Custody and Control IV. Section-by-Section Analysis of Proposed Rule V. Rulemaking Analyses and Notices A. Executive Order 12866 Assessment (Regulatory Planning and Review) B. Regulatory Flexibility Act Assessment C. Paperwork Reduction Act D. International Trade Impact Assessment E. Unfunded Mandates Reform Act Analyses F. Executive Order 13132 (Federalism) G. Environmental Analysis H. Energy Impact Analysis I. Background and Purpose A. Summary of Proposed Requirements TSA proposes security regulations that would cover a broad spectrum of the rail transportation sector, including freight railroad carriers, passenger railroad carriers, rail transit systems, and rail operations at certain facilities that ship or receive specified categories and quantities of hazardous materials. TSA proposes these regulations to enhance the security of rail transportation and to address potential security threats to rail transportation. TSA intends for these proposed regulations to build upon existing Department of Transportation (DOT) procedures and requirements. TSA's proposal is also intended to augment a DOT proposal to revise the current requirements in the Hazardous Materials Regulations applicable to the safe and secure transportation of hazardous materials transported in commerce by rail. In this regard, in today's edition of the Federal Register , PHMSA is publishing an NPRM proposing to require railroad carriers to compile annual data on specified shipments of hazardous materials, use the data to analyze safety and security risks along rail transportation routes where those materials are transported, assess alternative routing options, and make routing decisions based on those assessments. PHMSA's proposal would also clarify its current security plan requirements to address en route storage, delays in transit, delivery notification, and impose additional security inspection requirements for hazardous materials shipments. TSA's rule proposes to apply several general requirements to all freight and passenger railroad carriers, certain facilities that ship or receive specified hazardous materials by rail, and rail transit systems: • Rail Security Coordinator. Covered entities must designate a rail security coordinator (RSC) and at least one alternate RSC to be available to TSA on a twenty-four hour, seven day per week basis to serve as primary contact for receipt of intelligence information and other security-related activities. • Reporting. Covered entities must immediately report incidents, potential threats, and significant security concerns to TSA. • TSA Inspection. Covered entities must allow TSA and DHS officials working with TSA to enter and conduct inspections, tests, and such other duties to carry out TSA's statutory responsibilities. This may include copying of records. • Sensitive Security Information. This rule clarifies and extends the protection afforded to sensitive security information (SSI) in rail transportation and further identifies covered persons to include railroad carriers, certain rail operations at facilities, and rail transit systems. The rule also proposes to apply additional requirements to freight railroad carriers and certain facilities that ship or receive specified hazardous materials by rail: • Location and Shipping Information. Covered entities must provide to TSA, upon request, the location and shipping information of rail cars within their physical custody or control that contain a specified category and quantity of hazardous material. The information must be provided to TSA no later than one hour after receiving the request. • Chain of Custody and Control. Covered entities must provide for a secure chain of custody and control of rail cars containing a specified quantity and type of hazardous material. TSA proposes three categories and quantities of specified hazardous materials to which the proposed requirements in this NPRM would apply. The definitions are taken from DOT's Hazardous Materials Regulations (49 CFR Parts 171-180), as follows: (1) A rail car containing more than 2,268 kg (5,000 lbs) of a Division 1.1, 1.2, or 1.3 (explosive) material, as defined in 49 CFR 173.50; (2) A tank car containing a material poisonous by inhalation as defined in 49 CFR 171.8, including Division 2.3 gases poisonous by inhalation, as set forth in 49 CFR 173.115 (c) and Division 6.1 liquids meeting the defining criteria in 49 CFR 173.132(a)(1)(iii) and assigned to hazard zone A or hazard zone B in accordance with 49 CFR 173.133(a), other than residue; and (3) A rail car containing a highway route-controlled quantity of a Class 7 (radioactive) material, as defined in 49 CFR 173.403. Appendix B to proposed part 1580, reproduced as Table 1 below, presents a brief summary of the proposed security measures required for the different categories of rail transportation entities that this rule would govern. Table 1.—TSA Rail Security NPRM Summary Proposed security measure and rule section Freight railroad carriers NOT transporting specified hazardous materials 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 HTUA Passenger railroad carriers and rail transit systems Certain other rail operations (private, business/office, circus, tourist, historic, excursion) Allow TSA to inspect (1580.5) X X X X X X Appoint rail security coordinator (1580.101 freight; 1580.201 passenger) X X X X X Only if notified in writing that security threat exists Report significant security concerns (1580.105 freight; 1580.203 passenger) X X X X X X Provide location and shipping information for rail cars containing specified hazardous materials if requested (1580.103) X X X Chain of custody and control requirements for transport of specified hazardous materials that are or may be in HTUA (1580.107) X X X B. Basis for the Proposed Rule In developing this rule, TSA sought to identify and address threats to rail transportation. With respect to passenger rail, TSA recognizes that passenger railroad carriers, commuter operations, and subway systems are high consequence targets in terms of potential loss of life and economic disruption. They carry large numbers of people in a confined environment, offer the opportunity for specific populations to be targeted at particular destinations, and often have stations located below or adjacent to high profile government buildings, major office complexes, and iconic structures. Terrorist bombings since 1995 highlight the need for improved government access to, and monitoring of, transportation of passengers by rail. Terrorists have attacked the Tokyo subway system (1995); areas in and around the Moscow subway system (2000, 2001, and 2004); Madrid commuter trains (2004); the London Underground system (2005); and the train system in Mumbai (formerly known as Bombay), India (2006). TSA also considered the threats that face freight rail transportation. Due to the open infrastructure of the rail transportation system, freight trains can be particularly vulnerable to attack. Currently, rail carriers and shippers lack positive chain of custody and control procedures for rail cars as they move through the transportation system (e.g., as entities load the rail cars at originating facilities, as carriers transport the cars over the tracks, and as entities unload the cars at receiving facilities). This can present a significant vulnerability. Whenever entities stop rail cars in transit and interchange them without appropriate security measures, their practices can create security vulnerabilities. Freight trains transporting hazardous materials are of even more concern, because an attack on those trains (e.g., through the use of improvised explosive devices (IEDs) 2 ) could result in the release of hazardous materials. 2 An IED is a device fabricated in an improvised manner that incorporates in its design explosives or destructive, lethal, noxious, pyrotechnic, or incendiary chemicals. It generally includes a power supply, a switch or timer, and a detonator or initiator. TSA is taking a risk-based approach by focusing on shipments of certain hazardous materials at this time. Thus, this rulemaking is focused on establishing chain of custody and control procedures for rail cars that pose the greatest security vulnerability. While an IED attached to any rail car (such as a car transporting coal or household appliances) would obviously cause major damage to that car, and its contents upon detonation, the more likely scenario is that terrorists would target a rail car containing certain hazardous materials in order to inflict the most damage in terms of loss of life and property, and economic effect. To determine which hazardous materials to identify in this proposed regulation, TSA looked to the hazardous materials that the Pipeline and Hazardous Materials Safety Administration (PHMSA) identified in its HM-232 rule. 3 From the list in HM-232, TSA identified three categories 4 of hazardous materials that pose the greatest risk: materials that are poisonous by inhalation (PIH), 5 explosive, and radioactive. In this proposed rule, TSA applies specific requirements to certain carriers and facilities that deal with these materials. 3 See Section II.B. of this preamble for a detailed discussion of the HM-232 rule. 4 TSA also identified specified quantities of those hazardous materials. See Section I.B. of this preamble or 49 CFR 1580.100(b) for a list of the quantities. 5 PIH materials are gases or liquids that are known or presumed on the basis of tests to be so toxic to humans as to pose a hazard to health during transportation. See 69 FR 50988. 49 CFR 171.8, 173.115, and 173.132. PHMSA considers the phrases “material poisonous by inhalation,” “poisonous inhalation hazard,” and “toxic inhalation hazard” to be synonymous and interchangeable. However, PHMSA referred to such material in the HM-232 rule text exclusively by the term “material poisonous by inhalation.” See 49 CFR 172.800(a)(3). In this NPRM, TSA uses a subset of the HM-232 list as the criterion for portions of this rule, and so this rule uses the term PIH (and also “material poisonous by inhalation”) to maintain consistency with the PHMSA HM-232 rule. Each of these three hazardous materials presents serious risks. The release of PIH materials in a densely populated urban area would have catastrophic consequences. Such a release would endanger significant numbers of people. An example of this was seen in the January 6, 2005, rail accident in Graniteville, South Carolina. A Norfolk Southern Railway Company freight train carrying chlorine was unexpectedly diverted from the main track onto a rail spur. The train struck a standing train on the rail spur, derailing three locomotives and sixteen rail cars and rupturing a tank car carrying chlorine. Even in this sparsely populated area, the collision resulted in fatal injuries to eight citizens and one railroad employee, injuries to 630 people, and the evacuation of 5,400 local residents. Damages to equipment and track totaled more than $2.3 million. While the accident was not the result of a terrorist attack, it nonetheless illustrates the danger of transporting PIH materials and the damage that can result from a release. Although the number of rail shipments carrying explosives and radioactive materials is relatively low, a release of these materials could cause serious and devastating harm. If terrorists detonated certain explosives 6 at critical points in the transportation cycle, they could cause significant loss of life, damage to infrastructure, and harm to the national economy. If terrorists perpetrated an attack against a rail car transporting certain radioactive materials, 7 they could endanger a significant number of people as well as disrupt the supply chain as a result of contamination. 6 Explosives in Class 1 are divided into six divisions. However, as discussed in section III.A. of this preamble, TSA proposes to apply subpart B to part 1580 only to rail cars containing more than 2,268 kg (5,000 lbs) of a Division 1.1, 1.2, or 1.3 explosive material. 7 See 49 CFR 173, subpart H. The proposed rule will address the above-identified threats to rail transportation. The provisions in this proposed rule, including those allowing for TSA inspections and those requiring the designation of Rail Security Coordinators and the reporting of suspicious incidents, will improve TSA's ability to inspect rail operations and communicate with railroads and rail facilities. This will provide TSA and DHS with better information and monitoring capabilities concerning potential transportation security incidents involving rail travel. Also, the requirements related to hazardous materials, such as additional monitoring and protection of certain rail cars and increased availability of location and tracking information for certain rail cars, will decrease the vulnerabilities of these hazardous materials shipments to attack. Through these measures, TSA will significantly increase its domain awareness regarding rail security. TSA will continue to work with all involved entities to improve rail security. II. Statutory and Regulatory Authorities A. TSA Authorities To Regulate Rail Security TSA has the primary federal role in enhancing security for all modes of transportation. Under the Aviation and Transportation Security Act (ATSA) 8 and delegated authority from the Secretary of Homeland Security, TSA has broad responsibility and authority for “security in all modes of transportation * * * including security responsibilities * * * over modes of transportation that are exercised by the Department of Transportation.” 9 8 Pub. L. 107-71, 115 Stat. 597 (November 19, 2001). 9 See 49 U.S.C. 114(d). The TSA Assistant Secretary's current authorities under ATSA have been delegated to him by the Secretary of Homeland Security. Section 403(2) of the Homeland Security Act (HSA) of 2002, Pub. L. 107-296, 116 Stat. 2315 (2002), transferred all functions of TSA, including those of the Secretary of Transportation and the Under Secretary of Transportation of Security related to TSA, to the Secretary of Homeland Security. Pursuant to DHS Delegation Number 7060.2, the Secretary delegated to the Assistant Secretary (then referred to as the Administrator of TSA), subject to the Secretary's guidance and control, the authority vested in the Secretary with respect to TSA, including that in section 403(2) of the HSA. TSA has additional authorities as well. TSA is specifically empowered to develop policies, strategies, and plans for dealing with threats to transportation. 10 As part of its security mission, TSA is responsible for assessing intelligence and other information to identify individuals who pose a threat to transportation security and to coordinate countermeasures with other Federal agencies to address such threats. 11 TSA enforces security-related regulations and requirements, 12 ensures the adequacy of security measures for the transportation of cargo, 13 oversees the implementation and ensures the adequacy of security measures at transportation facilities, 14 and carries out other appropriate duties relating to transportation security. 15 TSA has broad regulatory authority to achieve ATSA's objectives, and may issue, rescind, and revise such regulations as are necessary to carry out TSA functions. 16 TSA is also charged with serving as the primary liaison for transportation security to the intelligence and law enforcement communities. 17 10 49 U.S.C. 114(f)(3). 11 49 U.S.C. 114(f)(1)-(5); (h)(1)-(4). 12 49 U.S.C. 114(f)(7). 13 49 U.S.C. 114(f)(10). 14 49 U.S.C. 114(f)(11). 15 49 U.S.C. 114(f)(15). 16 49 U.S.C. 114(l)(1). 17 49 U.S.C. 114(f)(1) and (5). TSA's authority with respect to transportation security is comprehensive and supported with specific powers related to the development and enforcement of regulations, SDs, security plans, and other requirements. Accordingly, under this authority, TSA may assess a security risk for any mode of transportation, develop security measures for dealing with that risk, and enforce compliance with those measures. On December 17, 2003, the President issued Homeland Security Presidential Directive 7 (HSPD-7, Critical Infrastructure Identification, Prioritization, and Protection), which “establishes a national policy for Federal departments and agencies to identify and prioritize United States critical infrastructure and key resources and to protect them from terrorist attacks.” 18 In recognition of the lead role that DHS has for transportation security, and consistent with the powers that ATSA grants to TSA, the directive provides that the roles and responsibilities of the Secretary of DHS include coordinating protection activities for “transportation systems, including mass transit, aviation, maritime, ground/surface, and rail and pipeline systems.” 19 In furtherance of this coordination process, HSPD-7 provides that DHS and DOT will “collaborate on all matters relating to transportation security and transportation infrastructure protection.” 20 18 HSPD-7, Paragraph 1. 19 HSPD-7, Paragraph 15. 20 HSPD-7, Paragraph 22(h). To ensure that this collaboration occurs, DHS and DOT entered into a Memorandum of Understanding (MOU) on September 28, 2004. In accordance with the September 2004 MOU, both Departments share responsibility for rail and hazardous materials transportation security. The two Departments consult and coordinate on security-related rail and hazardous materials transportation requirements to ensure consistency with overall security policy goals and objectives and to ensure that the Federal agencies do not confront the regulated industry with inconsistent security guidance or requirements. The close coordination that has led to these proposed regulations is consistent with the MOU. On August 9, 2006, PHMSA and TSA signed an annex to the September 28, 2004 DOT-DHS Memorandum of Understanding (MOU) on Roles and Responsibilities. The purpose of the annex is to delineate clear lines of authority and responsibility and promote communication, efficiency, and non-duplication of effort through cooperation and collaboration in the area of hazardous materials transportation security based on existing legal authorities and core competencies. The annex acknowledges that DHS has lead authority and primary responsibility for security activities in all modes of transportation, and notes that TSA is the lead Federal entity for transportation security, including hazardous materials security. Similarly, on September 28, 2006, FRA and TSA signed an annex to address each agency's roles and responsibilities for rail transportation security. The FRA-TSA annex recognizes that TSA acts as the lead Federal entity for transportation security generally and rail security in particular. The annex also recognizes that FRA has authority over every area of railroad safety (including security), and that FRA enforces PHMSA's hazardous material regulations. The FRA-TSA annex includes procedures for coordinating (1) planning, inspection, training, and enforcement activities; (2) criticality and vulnerability assessments and security reviews; (3) communicating with affected stakeholders; and (4) use of personnel and resources. TSA's proposed requirements are designed to strengthen the existing regulatory scheme. TSA developed these proposed regulations, which are consistent with DOT's regulations, through close coordination with DOT. The discussion below explains the current and proposed DOT requirements and how TSA's proposed rule would fit into the regulatory framework DOT has established. B. Department of Transportation Regulation of Rail Security DOT regulates and oversees rail security through three of its modal administrations: The Pipeline and Hazardous Materials Safety Administration (PHMSA), the Federal Railroad Administration (FRA), and the Federal Transit Administration (FTA). The Federal hazardous materials transportation law (Federal hazmat law), 21 authorizes the Secretary of Transportation to establish regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. 22 The Secretary of Transportation has delegated this authority to PHMSA. 23 See 49 CFR 1.53; see 49 CFR parts 171-180. PHMSA has issued several rulemakings addressing rail security under this authority. 21 49 U.S.C. 5101 et seq., as amended by sec. 1711 of the Homeland Security Act of 2002, (Pub. L. 107-296, Nov. 25, 2002) and Title VII of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, Aug. 10, 2005). 22 A hazardous material is defined as a substance or material, or a group or class of material, (including an explosive; radioactive material; infectious substance; flammable or combustible liquid, solid, or gas; toxic, oxidizing, or corrosive material; and compressed gas) when transported in a particular amount or form that the Secretary of Transportation determines may pose an unreasonable risk to health and safety or property. See 49 U.S.C. 5102(2) and 5103(a). 23 PHMSA is the Federal agency charged with protecting the Nation from the risks to life, health, property, and the environment inherent in the commercial transportation of hazardous materials by all modes of transportation, including pipelines. On March 25, 2003, PHMSA published a final rule, referred to as HM-232, which requires covered persons to develop and implement security plans. Covered persons include those who offer certain hazardous materials for transportation in commerce and those who transport certain hazardous materials in commerce. 24 The HM-232 final rule requires persons who offer for transportation or transport the following hazardous materials to develop and implement security plans: (1) A highway route-controlled quantity of a Class 7 (radioactive) material; (2) more than 25 kg (55 lbs) of a Division 1.1, 1.2, or 1.3 (explosive) material; (3) more than 1 L (1.06 qt) per package of a material poisonous by inhalation in hazard zone A; (4) a shipment in a bulk packaging with a capacity equal to or greater than 13,248 L (3,500 gal) for liquids or gases or greater than 13.24 cubic meters (468 cubic feet) for solids; (5) infectious substances listed as select agents by the Centers for Disease Control and Prevention (CDC) in 42 CFR part 73; and (6) a shipment that requires placarding. 25 In effect, then, the HM-232 final rule applies the security plan requirement to a shipper or carrier of a hazardous material in an amount that requires placarding and to select agents. HM-232 requires covered persons to perform an assessment of the transportation security risks associated with the materials they handle and to implement methods for addressing those risks. At a minimum, the security plan must address personnel security, prevention of unauthorized access, en route security, and training of employees. 24 68 FR 14510. See 49 CFR 172.800, 172.802, and 172.804. PHMSA amended HM-232 with HM-240 (DOT Docket No. PHMSA-2005-22208, 70 FR 73156 (December 5, 2005)). HM-240 revised terminology, definitions, and requirements for consistency with the Hazardous Materials Safety and Security Reauthorization Act of 2005, Title VII of Pub. L. 109-59, 119 Stat. 1144 (August 10, 2005). 25 Under the Hazardous Materials Regulations, placards are required for hazardous materials that pose significant transportation risks. Placards use colors, symbols, numbers and text. This is part of DOT's system of hazard communication. The system notifies emergency responders and those who must handle the packages in the course of their employment how to handle the items in transportation and in the event of an accident. Other PHMSA regulations seek to reduce the risks to safety and security of leaving loaded rail cars unattended for long periods of time. Pursuant to 49 CFR 174.14 and 174.16, a carrier must forward each shipment of hazardous materials “promptly and within 48 hours (Saturday, Sundays, and holidays excluded)” after the carrier accepts the shipment at the originating point or the carrier receives the shipment at any yard, transfer station, or interchange point. Where there is only biweekly or weekly service, the carrier must forward a shipment of hazardous materials in the first available train. Additionally, carriers are prohibited from holding, subject to forwarding orders, tank cars loaded with Division 2.1 (flammable gas), Division 2.3 (poisonous gas) or Class 3 (flammable liquid) materials. PHMSA, in consultation with the Federal Railroad Administration (FRA) and TSA, has recently proposed to revise the current requirements in the hazardous materials regulations (HMR) applicable to the safe and secure transportation of hazardous materials transported in commerce by freight rail (Route Analysis NPRM). Among other things, PHMSA is proposing to require freight railroad carriers to compile annual data on specified shipments of hazardous materials; use the data to analyze safety and security risks along rail transportation routes where those materials are transported; assess alternative routing options; and make routing decisions based on those assessments. FRA, the agency within DOT responsible for railroad safety, administers the Federal railroad safety laws, which provide FRA with authority over “every area of railroad safety.” 26 49 U.S.C. 20103(a). The agency has issued a wide range of safety regulations. In addition, FRA enforces PHMSA's hazardous materials regulations, including the HM-232 provisions requiring security plans. See 49 CFR 1.49. 26 The term “Federal railroad safety laws” means the provisions of law generally at 49 U.S.C. subtitle V, part A or 49 U.S.C. chapter 51 or 57 and the rules, regulations, orders, and standards issued under any of those provisions. See Pub. L. 103-272 (1994). The FTA provides financial assistance to support a variety of locally planned, constructed, and operated public transportation systems throughout the United States. Under 49 CFR part 659, FTA manages State Safety Oversight for Rail Fixed Guideway Systems. 27 The regulation requires states to oversee the safety and security of rail fixed guideway systems 28 through designated Oversight Agencies (OAs). 29 The OAs must require the transit agencies to develop and implement written system safety program plans and system security plans 30 and to conduct annual reviews of their plans. 31 Additionally, the OAs must require transit agencies to develop and document a process for the performance of on-going internal safety and security reviews in their system safety program plans. 32 Finally, the OA must require each rail transit system under its responsibility to notify the OA within two hours of an accident or other incident meeting specified parameters, including loss of life, injuries requiring immediate medical attention, property damage to rail transit vehicles or facilities of $25,000 or more, evacuation due to life safety, collision at a grade crossing, a main line derailment, or a collision between rail transit vehicles. 33 27 In 1991, Congress required, for the first time, that FTA establish a program providing for the State-conducted oversight of the safety and security of rail systems not regulated by FRA. See Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 102-240, Sec. 3029, 49 U.S.C. 5330. FTA published its final rule adopting a new part 659, Rail Fixed Guideway Systems; State Safety Oversight, on December 27, 1995 (60 FR 67034); the final rule went into effect on January 1996. FTA published a revision of the final rule on April 29, 2005 (70 FR 22562) to add clarifying sections, further specify what the State must require to monitor safety and security on non-FRA rail systems, and incorporate into the body of the regulation material previously incorporated by reference. 28 FTA defines a rail fixed guideway system in 49 CFR 659.5 to mean any light, heavy, rapid rail system, monorail, inclined plane, funicular, trolley, or automated guideway that: (1) Is not regulated by FRA; and (2) Is included in FTA's calculation of fixed guideway route miles or receives funding under FTA's formula program for urbanized areas (49 U.S.C. 5336); or (3) Has submitted documentation to FTA indicating its intent to be included in FTA's calculation of fixed guideway route miles to receive funding under FTA's formula program for urbanized areas (49 U.S.C. 5336). 29 See 49 CFR 659.1. 30 See 49 CFR 659.17 and 659.21. For a list of the required elements for each plan, see 49 CFR 659.19 and 659.23. 31 See 49 CFR 659.25. 32 See 49 CFR 659.27. 33 See 49 CFR 659.33. III. TSA's Proposed Rail Security Requirements TSA has designed this rule so that it would build on DOT's existing regulatory scheme. This rule would augment existing and proposed PHMSA requirements, address security vulnerabilities in the freight rail regulatory scheme, and complement the DOT regulatory scheme regarding passenger rail and mass transit. A. Comparison of TSA's Proposed Rule With the DOT Regulatory Scheme First, TSA's NPRM would expand the scope of pre-shipment inspections of rail cars containing hazardous materials. Existing PHMSA regulations require freight railroad carriers to perform a safety inspection at the ground level of each rail car containing hazardous materials. 34 The proposed PHMSA Route Analysis rule would require carriers to also inspect for signs of tampering with rail cars (including closures and seals) during the pre-shipment inspection ( e.g., look for IEDs, suspicious items, or any other items that do not belong). 35 34 Pursuant to 49 CFR 174.9, a carrier must inspect at ground level for required markings, labels, placards, securement of closures, and leakage. A “ground level” inspection is an inspection performed with the railroad employee inspecting the rail car while standing level with the car, without the employee climbing on top of the car. 35 PHMSA intends for these requirements to address those situations where unauthorized individuals attempt to cause a security incident by tampering with rail cars ( e.g., introducing an IED to a car to detonate an explosion or to cause a hazardous materials release). TSA's NPRM would expand these inspections even further. Existing and proposed DOT regulations include pre-shipment inspections for railroad carriers; however, they do not require security-specific inspections for rail hazardous materials shippers. TSA's proposal would require certain rail hazardous materials shippers to physically inspect a rail car from a security perspective (including closures and seals) before transferring custody of a rail car to a freight railroad carrier. Shippers would have to inspect for signs of tampering; for any other signs that the security of the car may have been compromised; and for suspicious items that do not belong, including the presence of an IED. Second, TSA's NPRM would address other security vulnerabilities that currently exist in the freight rail regulatory scheme. Current regulations do not include chain of custody requirements and, therefore, current regulations do not address security vulnerabilities for hazmat cars in transit or at interchanges. To address this issue, TSA proposes chain of custody requirements, including requirements for monitored and protected transfer locations, and documented transfers. In addition, current regulations do not contain requirements for rail car location reporting and, therefore, do not address the Federal Government's need for prompt, critical information if it becomes necessary to reroute, stop, or otherwise protect shipments and populations to address specific security threats or incidents. To address this issue, TSA proposes rail car location and information reporting requirements. Third, this NPRM would complement the existing DOT regulatory scheme for passenger and rail mass transit. This NPRM would enhance oversight of rail fixed guideway systems. FTA's regulations, at 49 CFR part 659, direct rail transit agencies and OAs to conduct security reviews. FTA does not oversee these reviews. This proposed rule would augment these requirements. TSA inspectors would provide the FTA and responsible State agencies with a field presence, which has not existed previously, to monitor and assess compliance with security requirements. 36 36 Moreover, since TSA's inspection authority over rail transit systems is not limited to rail fixed guideway systems receiving or seeking to receive funds under FTA's formula program for urbanized areas and is therefore broader than the scope of coverage of FTA's regulation (49 CFR part 659), TSA may be able to share information on assessments of the security of rail transit systems not currently subject to OA security reviews. TSA's NPRM would also complement the existing DOT regulatory scheme for passenger and rail mass transit by allowing TSA inspections, requiring the designation and use of RSCs, and requiring the reporting of threats and significant security concerns. TSA's proposed requirements would enhance the agency's ability to maximize its domain awareness and recognize possible national trends involving security issues. As a complement to FRA's exercise of its safety authority over covered passenger rail operations involving “every area of railroad safety” ( see 49 U.S.C. 20103(a)), and FTA's oversight of rail fixed guideway systems ( see 49 U.S.C. 5330 and 49 CFR part 659), TSA would assess threats to security, monitor the state of awareness and readiness throughout the passenger rail and rail mass transit sectors, determine the adequacy of an owner or operator's security measures, and identify security gaps. B. Scope and Applicability Consistent with ATSA's broad authorities and with the fact that terrorists may target any part of the rail transportation system, this NPRM would impose requirements on all types of rail operations, including freight railroad carriers; intercity, commuter, and short-haul railroad passenger train service; and rail transit systems. The rule would also apply to rail hazardous materials shippers that offer, prepare, or load for transportation in commerce by rail one or more of the specified categories and quantities of hazardous materials. Also, the rule would apply to rail hazardous materials receivers that receive or unload the specified hazardous materials by rail in a High Threat Urban Area (HTUA). 37 In addition, the rule would cover the operation of private rail cars that are on or connected to the general railroad system of transportation and tourist, scenic, historic, and excursion operations, whether on or off the general railroad system of transportation. 37 The applicability of certain provisions of this proposed rule depends on which hazardous materials are involved and whether the materials are located in HTUAs. For a discussion of these issues, see sections III.A.5. and III.A.6. of the preamble. With respect to freight railroad carriers and rail hazardous materials facilities, an important issue relating to the scope of the rule is which activities are transportation-related and, therefore, within TSA's jurisdiction. This section of the preamble discusses the scope of the applicability of the proposed rule to freight railroad operators, rail hazardous materials shippers, rail hazardous materials receivers, and passenger railroad carriers. It also identifies activities that are transportation-related and, therefore, within the scope of the proposed rule. TSA defines the term “transportation,” as related to security purposes, more broadly than PHMSA defines the term, as related to safety purposes. 1. Freight Railroad Carriers This NPRM proposes requirements that apply to all freight railroad carriers, except for those carriers whose entire operations are confined to an industrial installation. The proposed rule would not apply to, for example, a plant railroad carrier in a steel mill that serves only the needs of the plant itself and does not go beyond the plant's boundaries. Of course, even where a railroad carrier operates outside the general system of transportation, other railroad carriers that are part of that general system may enter the first railroad carrier's property. For example, a major railroad carrier may enter a chemical or auto plant via an industrial lead to pick up or set out rail cars. In such cases, the railroad carrier that is part of the general system would remain part of the general system while inside the installation, and TSA's proposed regulations would continue to cover all of its activities. Moreover, although TSA would not directly regulate the transportation operations of the railroad carrier located inside the installation that take place solely for the carrier's own corporate purpose, TSA would assert its security authority over all security matters involving that point of connection, to the extent the general system railroad carrier is engaging in transportation activities with the installation railroad carrier at a point of connection to the general system. The applicability of the proposed freight railroad carrier requirements vary depending on whether the carrier transports specified categories and quantities of hazardous materials and whether these materials are or may be located in HTUAs. The regulation would, however, require all freight railroad carriers (regardless of whether they transport any hazardous materials), as well as freight railroad carriers hosting passenger operations, 38 to allow TSA inspections, have an RSC, and report significant security concerns. 38 The term “hosting” refers to the situation where a passenger operation receives trackage rights to operate over track that another freight or passenger railroad carrier owns or operates. TSA's statutory authority over the security of freight rail transportation is co-extensive with FRA's authority over freight railroad safety; accordingly, TSA is proposing to make subject to this rule all freight railroad carriers that are subject to the jurisdiction of FRA. With respect to freight railroads, FRA's statutory jurisdiction extends to all entities that can be construed as railroads by virtue of their providing non-highway ground transportation over rails or electromagnetic guideways, and will extend to future railroads using other technologies not yet in use. See 49 U.S.C. 20102. Moreover, by delegation from the Secretary of Transportation, FRA has authority to enforce the Federal hazmat laws, especially with regard to rail transportation of hazardous materials, and has both regulatory and enforcement authority under the Federal railroad safety laws. See 49 CFR 1.49. 39 39 See 49 CFR part 209, Appendix A for FRA's detailed jurisdiction policy statement. 2. Rail Operations at Certain Fixed-Site Facilities The requirements of this NPRM will apply to rail hazardous materials shippers and receivers. Specifically, TSA proposes that shippers and receivers be subject to TSA inspection, have RSCs, report significant security concerns, provide location and shipping information for specified hazardous materials, and provide a secure chain of custody and control for specified hazardous materials. For purposes of this NPRM, TSA uses the following definitions: Rail hazardous materials shippers are facilities that are connected to the general railroad system of transportation and offer, prepare, or load for transportation by rail one or more of the specified categories and quantities of the hazardous materials listed in § 1580.100(b) of the NPRM. Rail hazardous materials receivers are facilities that are connected to the general railroad system of transportation and that receive or unload from transportation by rail one or more of the specified categories and quantities of the hazardous materials listed in § 1580.100(b) of the NPRM. Both definitions exclude facilities that the Federal government operates. TSA's statutory authority under ATSA extends to rail hazardous materials shippers and receivers. In addition to the authorities described in Section II.A. of this preamble, TSA carries out such other duties and exercises such other powers relating to transportation security, as the Assistant Secretary considers appropriate, to the extent authorized by law. 40 More specifically, TSA is empowered to ensure the adequacy of security measures for the transportation of cargo. 41 ATSA does not limit TSA's authority to protecting the security of cargo only while it is on a particular conveyance, but rather extends it to the entire transportation system, including facilities. 40 49 U.S.C. 114(f)(15). 41 49 U.S.C. 114(f)(10). This proposed rule covers only those hazardous materials facilities that: (1) Are connected to the general rail system of transportation, and (2) offer, prepare, load, receive, and/or unload for or from transportation by rail, specified hazardous materials. Hazardous materials shippers load rail cars that freight railroad carriers pick up for transport. The rail cars may travel anywhere in the general transportation system, including in and near high population areas, critical infrastructure, and other critical areas. Sometimes loaded rail cars will remain for some time at the shipper's facility awaiting pickup from the carrier. Whether being loaded at facilities or awaiting pickup at facilities, these rail cars could endanger surrounding areas. Under ATSA, TSA has authority to ensure the adequacy of security measures at the transportation-related areas of these facilities. This includes authority to inspect those areas used for transportation security activities. This would include, for example, control rooms or offices where security activities are initiated or monitored. TSA used a risk-based approach in determining the rail hazardous materials facilities to which this rulemaking would apply. The highest risk exists from the rail transport of the specified hazardous materials when those rail cars are in or near an HTUA. TSA decided to use the HTUA listing to define those areas for which this rulemaking would provide additional security measures. A rail car departing any rail hazardous materials facility could enter an HTUA. TSA notes that, as to rail hazardous materials facilities receiving or unloading hazardous materials, the highest risk is at those facilities that are located within an HTUA. Therefore, TSA proposes that the regulation cover all rail hazardous materials facilities that receive or unload, within an HTUA, one or more of the specified hazardous materials. 42 42 Note that PHMSA's regulations do not apply after the delivering carrier departs the facility. See 49 CFR 171.1(c)(3) and 171.8 TSA's proposal to cover the transportation-related areas of the rail hazardous materials facilities that receive or unload the subject rail cars in the HTUA would extend beyond that time. 3. Passenger Rail (including Rail Transit Systems) TSA's authority is not limited to FRA's jurisdiction over passenger rail and, therefore, includes rail transit systems. TSA's authority is also not circumscribed by FTA's jurisdiction. Therefore, the proposed rule would apply to all passenger railroad carriers within FRA's statutory jurisdiction (including tourist, scenic, historic, and excursion operations), and all rail transit systems (including light rail, heavy rail, rapid transit, monorail, inclined planes, funiculars, cable cars, trolleys, and automated guideways) within FTA's statutory jurisdiction, and other passenger rail systems. TSA proposes to apply this rule to all railroad carriers that operate passenger train service, provide commuter or other short-haul passenger train service in a metropolitan or suburban area, or host the operations of such passenger train service. Under the provisions of the proposed rule, TSA would regulate as a passenger railroad carrier any public authority that indirectly provided passenger train service by contracting out the actual operation to another railroad carrier or independent contractor. Although the public authority would ultimately be responsible for designating and using an RSC, allowing TSA to conduct inspections or tests, and reporting significant security concerns, the railroad carrier or other independent contractor that operates the authority's passenger rail service would be required to fulfill all applicable responsibilities with respect to rail transportation security planning, including implementation. The proposed rule would cover freight railroad carriers that host the operations of passenger train service over its lines, but that neither provide nor operate passenger train service itself. The proposal would also cover passenger railroad carriers that, in addition to operating or providing their own passenger train service, host the operations of other passenger railroad operations. TSA recognizes that under the proposed rule, the host freight and passenger railroad carriers would already be subject to the provisions of the rule ( e.g., subject to TSA inspection, required to have rail security coordinators, and required to report significant security concerns) independent of their additional role as hosts to passenger train service. Nevertheless, based upon the unique operational relationship between the host railroad carrier and the passenger operation, as well as the specific nature of a particular security situation, one of the railroad carriers may be better suited to assume primary compliance responsibility under the proposed rule. TSA expects that a railroad carrier that operates passenger train service over the line of a host railroad carrier would review all of the RSC and security concern reporting requirements of the host railroad carrier and that both the host carrier and the passenger operation would coordinate their respective roles in fulfilling these requirements. Accordingly, if there were a significant security concern involving a hosted passenger operation, TSA would accept one jointly-submitted report from both carriers, rather than separate reports from each carrier. TSA recognizes that host railroad carriers already bear certain significant safety and security responsibilities. For example, pursuant to FRA emergency preparedness regulations, host railroad carriers must have procedures for making emergency responder notifications, be capable of rendering assistance to the involved passenger railroad carriers during emergency situations, and address any physical and operating characteristics of their rail lines that may affect the safety of these railroad operations (such as evacuating passengers from a train stalled in a tunnel or on an elevated structure). See 49 CFR part 239. TSA's proposal to cover rail transit systems would build upon DOT's existing regulatory scheme. A rail transit system is generally subject to the jurisdiction of FTA, FRA, or both; the determining factor for jurisdiction is whether the transit system is connected to the general railroad system of transportation. For rail transit systems that are not connected to the general system, the applicable DOT requirements include FTA's State Safety Oversight for Rail Fixed Guideway Systems regulations. 43 For transit systems that are connected to the general railroad system, FRA may exercise jurisdiction ( see 49 CFR part 209, Appendix A for a detailed discussion). 44 For those rapid transit systems that are connected to the general system in such a way to warrant exercise of FRA's jurisdiction, only those portions of the rapid transit system that are connected to the general system will generally be subject to FRA's rules. For those rapid transit systems that are not sufficiently connected to the general railroad system to warrant FRA's exercise of jurisdiction, FTA's rules will apply. 43 See discussion in Section III.C. of this preamble. 44 FTA's rules on rail fixed guideway systems do not apply to any rapid transit systems or portions thereof subject to FRA's rules. TSA's authority over rail transit systems is not limited to rail fixed guideway systems receiving or seeking to receive funds under FTA's grant program, and is therefore broader than the scope of coverage of FTA's regulation (49 CFR part 659). Accordingly, TSA's authority extends to all rail transit systems regardless of whether the system is subject to regulation by FTA, FRA, or neither agency. 4. Other Rail Operations Some of the requirements in this NPRM would apply to tourist, scenic, historic, and excursion passenger rail systems. Specifically, these types of operations would be subject to inspection by TSA and DHS officials and would be required to report significant security concerns. See proposed 49 CFR 1580.5 and 1580.203. In addition, these operations would be subject to the NPRM's requirement to designate and use an RSC if TSA notifies the operation in writing that a security threat exists concerning that operation. See proposed 49 CFR 1580.201. TSA is including this requirement, because tourist, scenic, historic, and excursion operations are potential terrorist targets, and so there may be some situations where TSA wishes to inspect these operations to assess their security. With two exceptions, FRA exercises jurisdiction over tourist, scenic, and excursion railroad operations whether or not they are conducted on the general railroad system. The exceptions are: (1) Operations of less than 24-inch gage, which, historically, have never been considered railroads under the Federal railroad safety laws; and (2) operations that are off the general railroad system of transportation and “insular.” 45 See Appendix A to 49 CFR part 209. A tourist operation is not part of the general system when the operation is conducted on track used exclusively for tourist operation purposes. If a tourist operation conducted off the general system is insular, FRA does not exercise jurisdiction over it, and none of FRA's rules apply. If a tourist operation conducted off the general system is not insular, FRA exercises jurisdiction over the operation, and some of FRA's rules ( i.e. , those that specifically apply beyond the general system to such operations) will apply. 46 45 Insularity is an issue only with regard to tourist operations over trackage outside of the general system used exclusively for such operations. FRA considers a tourist operation to be insular if its operations are limited to a separate enclave in such a way that there is no reasonable expectation that the safety of any member of the public except a business guest, a licensee of the tourist operation or an affiliated entity, or a trespasser would be affected by the operations. A tourist operation will not be considered insular if one or more of the following exists on its line: (1) A public highway-rail crossing that is in use; (2) An at-grade rail crossing that is in use; (3) A bridge over a public road or waters used for commercial navigation; or (4) A common corridor with a railroad, i.e., its operations are within 30 feet of those of any railroad. 46 For example, FRA's rules on accident reporting, steam locomotives, and grade crossing signals apply to these non-insular tourist operations ( see 49 CFR 225.3, 230.2 and 234.3), as do all of FRA's procedural rules (49 CFR parts 209, 211, and 216) and the Federal railroad safety statutes themselves. TSA also proposes that the operators of private cars, including business or office cars and circus trains that are on or connected to the general railroad system of transportation, allow TSA to inspect and be required to report significant security concerns. TSA believes that a private car operation that hauls passengers should perform a basic level of security preparedness planning consistent with the planning of other passenger train operations. TSA recognizes the fact that private rail cars do not haul as many passengers as these other operations and, therefore, these rail cars constitute a less attractive target for terrorists. Moreover, TSA recognizes that host railroads, such as National Railroad Passenger Corporation (Amtrak) and commuter railroads, often haul private cars, and these hosts would already be required to have RSCs, who can serve as a point of contact with TSA while the host is hauling the private cars. Finally, TSA seeks comment on whether there are financial, operational, or other factors that are unique to the operation of tourist, scenic, historic, and excursion passenger rail systems or the operation of private rail cars and if so, what those factors are. 5. Specified Hazardous Materials Certain provisions of this proposed rulemaking ( i.e. , the ones allowing TSA inspections, requiring the designation of RSCs, and requiring reporting of significant security concerns) apply to freight railroad carriers regardless of whether they transport hazardous materials. However, some provisions of the NPRM (i.e., the ones requiring entities to provide location and shipping information and to provide a secure chain of custody and control) apply only to the rail hazardous materials shippers and receivers and freight railroad carriers that handle specified categories and quantities of hazardous materials. Generally, the specified chemicals are those that are “poisonous by inhalation,” certain explosives, and radioactive materials. Proposed section 1580.100(b), lists these materials and applicable quantities: (1) A rail car containing more than 2,268 kg (5,000 lbs) of a Division 1.1, 1.2, or 1.3 (explosive) material, as defined in 49 CFR 173.50. (2) A tank car containing a material poisonous by inhalation as defined in 49 CFR 171.8, including Division 2.3 gases poisonous by inhalation, as set forth in 49 CFR 173.115(c) and Division 6.1 liquids meeting the defining criteria in 49 CFR 173.132(a)(1)(iii) and assigned to hazard zone A or hazard zone B in accordance with 49 CFR 173.133(a), other than residue; and (3) A rail car containing a highway route-controlled quantity of a Class 7 (radioactive) material, as defined in 49 CFR 173.403. DOT's Hazardous Materials Regulations define the term “material poisonous by inhalation” in 49 CFR 171.8. Materials poisonous by inhalation, also called poison inhalation hazard (PIH) materials, are gases or volatile liquids that are toxic to humans when inhaled. Specific classification criteria for PIH gases are in 49 CFR 173.115(c) and 173.116(a); classification criteria for PIH liquids are in 49 CFR 173.132(a)(1)(iii) and 173.133(a). PHMSA defines “radioactive material” to mean a material containing radionuclides where both the activity concentration and the total activity in the consignment exceed the values specified in the table in 49 CFR 173.436 or values derived according to the instructions in 49 CFR 173.433. See 49 CFR 173.403. A highway route controlled quantity refers to a quantity in a single package that exceeds one of the following amounts: 3,000 times the A1 value of the radionuclides, as specified in 49 CFR 173.435 for special form Class 7 (radioactive) material; 3,000 times the A2 value of the radionuclides, as specified in 49 CFR 173.435 for normal form Class 7 (radioactive) material; or 1,000 TBq (27,000 Ci), whichever is least. Under the HMR, an “explosive” refers to “any substance or article, including a device, which is designed to function by explosion ( i.e. , an extremely rapid release of gas and heat) or which, by chemical reaction within itself, is able to function in a similar manner even if not designed to function by explosion, unless the substance or article is otherwise classed under the [HMR].” See 49 CFR 173.50. The term includes a pyrotechnic substance or article, unless the substance or article is otherwise classed under the HMR. Explosives in Class 1 are divided into six divisions. However, based upon the relative explosive hazards of the explosives in these divisions, TSA proposes to apply subpart B of part 1580 to explosives in rail cars containing more than 2,268 kg (5,000 lbs) only in Divisions 1.1., 1.2, and 1.3. Division 1.1 consists of explosives that have a mass explosion hazard. A mass explosion is one which affects almost the entire load instantaneously. Division 1.2 consists of explosives that have a projection hazard but not a mass explosion hazard. Division 1.3 consists of explosives that have a fire hazard and either a minor blast hazard or a minor projection hazard or both, but not a mass explosion hazard. See 49 CFR 173.50. TSA, PHMSA, and FRA have assessed the security vulnerabilities associated with the transportation of different types and classes of hazardous materials. In this NPRM, TSA has applied enhanced security requirements to the specified hazardous materials based on specific transportation scenarios. These scenarios depict how individuals could deliberately use hazardous materials to cause significant casualties and property damage. The materials and the quantities specified in proposed § 1580.100(b) present a significant rail transportation security risk and an attractive target for terrorists because of the potential for them to use these materials as weapons of mass effect. TSA continues to evaluate the security risks associated with the transportation of hazardous materials and may propose additional regulations including regulations pertaining to other materials or quantities of materials in the future. The proposed rule excludes tank cars containing only residual amounts of the hazardous material. From a security perspective, it appears that the consequences of the release of residual PIH materials would be significantly less than the consequences of an incident involving a loaded tank car. TSA seeks comment on whether it should apply the requirements in this NPRM to fewer or additional hazardous materials or should extend the requirements to include tank cars containing residue. TSA also seeks 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 of this NPRM to those other materials. TSA will continue to evaluate whether it should expand or reduce the list of hazardous materials and whether it should make tank cars containing residue subject to the rule. 6. High Threat Urban Areas (HTUAs) The proposed requirements for reporting shipping and location information and for providing a secure chain of custody are applicable to the transportation of specified hazardous material that is or may be in an HTUA. TSA is using the term HTUA and its definition to describe and delineate those geographic areas that warrant special consideration with respect to transportation security. In this NPRM, TSA derived its lists of HTUAs from the Urban Areas Security Initiative (UASI) program. TSA includes a list of HTUA in Appendix A to this NPRM. As well, the list is available on the DHS Web site: http://www.dhs.gov/dhspublic//interweb/assetlibrary/FY06_UASI_Eligibility_List.pdf. First implemented in 2003, UASI is a risk-based methodology that is consistent with DHS's national risk management efforts for homeland security. DHS identified UASI areas as HTUAs if they had populations greater than 100,000 and had reported threat data during the past fiscal year. Currently, DHS has identified 46 HTUAs based on risk assessments considering three variables: (1) Threat, or the likelihood of a type of attack that might be attempted; (2) vulnerability, or the likelihood that an attacker would succeed; and (3) consequence, or the impact of an attack occurring. Each HTUA consists of a city limit or combined adjacent city limits, plus a 10-mile buffer zone extending from the city border(s). Appendix A to this proposed rule contains the 46 Urban Areas that were eligible to apply for the FY 2006 UASI Program. TSA proposes to use the FY 2006 list of Urban Areas for this rule. TSA has evaluated the security issues for rail transportation of specific hazardous material and believes that the results of the FY 2006 UASI risk model are an appropriate methodology for this rulemaking. As proposed, if DHS makes any changes in subsequent years to the FY 2006 list, those changes will not affect the TSA list in Appendix A unless TSA subsequently amends the list. DHS evaluated these HTUAs for two separate, but complementary, types of risk: asset-based risk and geographically-based risk. Considered together, these two calculations provide an estimate of total terrorism risk. This is accomplished using a common risk model that is internally consistent across all homeland security grant allocations. Under this model, asset-based risk is a function of the combined risks of terrorism to potential targets within a geographic area. In comparison, geographically-based risk is derived from certain prevailing attributes or characteristics intrinsic to a geographical area, such as a border, that may contribute to its risk of terrorism. In May 2005, DHS held a meeting with stakeholders to solicit input and feedback on the risk formula. Attendees included key representatives from 12 States and urban areas, as well as representatives from national and international associations of police, emergency managers, city chiefs, and fire chiefs. The current risk model reflects the recommendations of the stakeholders who attended the May 2005 meeting. Additional information about the risk methodology is available at the following Web site: http://www.ojp.usdoj.gov/odp/docs/FY_2006_UASI_Program_Explanation_Paper_011805.doc. TSA is currently conducting vulnerability assessments of the transportation of PIH materials through the UASI HTUAs. Through these assessments, TSA has identified operational practices and conditions that may compromise transportation security. TSA has addressed some of the major practices and conditions in this rulemaking, including the lack of positive and secure exchange of custody and control of rail cars containing hazardous materials and the lack of secure storage of these materials at transportation facilities. TSA is soliciting comment on the adoption of the DHS HTUAs for this proposed rule, and seeks comment on appropriate criteria to use to determine those areas where freight railroad carriers and rail hazardous materials shippers and receivers should be subject to additional security requirements. If TSA decides in the final rule to use HTUAs as the basis for imposing additional security requirements, TSA will continue studying the patterns of rail transportation across the nation and may revise the list of HTUAs established by DHS for FY 2006, as appropriate. C. Requirements 1. Sensitive Security Information (SSI) Section 114(s) of title 49 of the United States Code requires TSA to promulgate regulations governing the protection of sensitive security information (SSI). SSI includes information that would be detrimental to transportation security if publicly disclosed. TSA's SSI regulation, 49 CFR part 1520, establishes certain requirements for the recognition, identification, handling, and dissemination of SSI, including restrictions on disclosure and civil penalties for violations of those restrictions. Although 49 CFR part 1520 primarily covers aviation and maritime security-related information, vulnerability assessments and threat information related to all modes of transportation are considered SSI under 49 CFR 1520.5(b)(5) and 1520.5(b)(7) and must be protected and handled in accordance with 49 CFR part 1520. However, because certain other information created in connection with this proposed rule would be detrimental to transportation security if publicly disclosed, TSA is proposing to amend 49 CFR part 1520 to more directly protect information related to the rail sector. This rulemaking would add railroad carriers, rail hazardous materials shippers, rail hazardous materials receivers, and rail transit systems as covered persons under part 1520 and explicitly require them to restrict the distribution, disclosure, and availability of SSI to persons with a need to know, and refer all requests for SSI by other persons to TSA or the applicable component or agency within DOT or DHS. The NPRM would amend part 1520 to clarify that any review, audit, or other examination of the security of a railroad, railroad carrier, rail facility, rail hazardous materials shipper, rail hazardous materials receiver, rail transit system, or rail transit facility that is directed, created, held, funded, or approved by DOT or DHS, or that will be provided to DOT or DHS in support of a Federal security program, is SSI. The NPRM would also amend part 1520 to cover certain details of security inspections or investigations involving rail transportation security; specific details of rail transportation security measures; security training materials for persons carrying out rail transportation security measures required or recommended by DHS or DOT; lists of identifying information of personnel having unescorted access to a rail secure area; and lists identifying critical rail infrastructure assets. TSA seeks comment on whether it should protect as SSI under part 1520 any other information that may be created under this rule. 2. TSA Inspections TSA is proposing that all entities covered by this proposed regulation allow TSA to inspect their facilities without advance notice. TSA will conduct inspections in a reasonable manner consistent with TSA guidance for its inspectors. In enacting ATSA, Congress recognized the importance of security for all forms of transportation and related infrastructure and, in establishing TSA, conferred upon it responsibility for security in all modes of transportation. The United States rail network is a vital link in the Nation's transportation system and is critical to the economy, national defense, and public health. Amtrak, the Alaska Railroad Corporation, commuter railroads, and rail transit systems provide passenger rail service to millions of passengers yearly. Approximately 40 percent of all intercity freight goes by rail, including 64 percent of the coal that electric utilities use to produce power. Maintaining a safe and secure rail transportation system is essential. TSA must be able to inspect at any time in order to carry out its security-related statutory and regulatory authorities, including the following authorities in 49 U.S.C. 114(f): (2) assess threats to transportation; (7) enforce security-related regulations and requirements; (9) inspect, maintain, and test security facilities, equipment, and systems; (10) ensure the adequacy of security measures for the transportation of cargo; (11) oversee the implementation, and ensure the adequacy, of security measures at airports and other transportation facilities; and (15) carry out such other duties, and exercise such other powers, relating to transportation security as the Assistant Secretary considers appropriate, to the extent authorized by law. As noted above, under this proposal, TSA's inspection authority also covers rail hazardous materials facilities that offer, prepare, or load for transportation by rail certain specified categories and quantities of hazardous materials, as well as facilities that receive or unload these materials from transportation by rail in a HTUA. In this regard, TSA's authority over transportation security explicitly covers the transportation of cargo. 47 The law does not limit TSA to protecting the security of cargo only while it is on a particular vehicle of transportation, but extends to the entire transportation system. The statute references TSA's responsibility to protect security facilities and transportation facilities. 48 Thus, to the extent that a hazardous materials site covered by the applicability section of this proposed regulation has specific facilities for transportation, such as loading areas, TSA's authority to inspect these facilities is explicit. 47 49 U.S.C. 114(f)(10) empowers the Assistant Secretary of Homeland Security for TSA to “ensure the adequacy of security measures for the transportation of cargo.” 48 49 U.S.C. 114(f)(9) and 114(f)(11). More importantly, because the transportation system may be compromised by the introduction of an IED or other destructive instrument, the authority for transportation security necessarily includes authority to inspect, as necessary, the facilities that offer, prepare, load, receive, or unload certain hazardous materials that travel in rail transportation, if that packaging might be vulnerable to compromise. Limiting TSA's authority to inspect the security of cargo only after it is being transported would negate TSA's ability to protect the transportation system effectively. Accordingly, TSA's authority extends to rail hazardous materials facility points of entry of cargo going into the transportation system. 3. Designation of Rail Security Coordinators (RSCs) Except as noted below, in §§ 1580.101 and 1580.201, TSA is proposing to require each railroad carrier, rail hazardous materials shipper, rail hazardous materials receiver, and rail transit system covered within the scope of part 1580 ( see proposed § 1580.1), at the corporate level, to designate and use an RSC to serve as the point of contact with TSA on security matters and communications with TSA concerning the railroad carrier, rail hazardous materials shipper, rail hazardous materials receiver, or rail transit system's security initiatives. The RSC and any alternate RSC(s) should be officials with overall responsibility, management, and/or oversight of security operations and/or police operations. The RSC may therefore have responsibility for several rail hazardous materials facilities covered by the proposed rule which are owned and operated by one corporation. TSA would require either the RSC, or an alternate RSC, to be available to TSA on a 24 hour a day basis. In addition, TSA would require the RSC, or an alternate RSC, to provide current contact information to TSA and to coordinate security practices and procedures with appropriate law enforcement and emergency response agencies. As part of TSA's coordinated approach to rail security, TSA would provide the names and contact information of the RSCs to DOT and its modal administrations for use in their investigative, inspection, and compliance activities. When appropriate to carry out a regulatory requirement, including the provisions of an SD, the RSC would also be responsible for working with other entities to coordinate implementation of security measures. Those other entities involved in the security of the rail operation might include freight railroad carriers hosting passenger operations, owners of rail stations used by passenger operations, law enforcement agencies, and emergency response agencies. TSA understands that many railroads operate through a very large number of local and State jurisdictions, and it would be impracticable for the railroad to meet with every one. This NPRM would not require the RSC to do so. TSA expects that the railroad would reach out to those most likely to need to respond to a security incident. At a minimum, TSA anticipates that the railroad carriers, rail hazardous materials shippers, rail hazardous materials receivers, and rail transit systems would be able to quickly and accurately assess a security situation and then notify the appropriate law enforcement and emergency response agencies. In addition, TSA expects that the coordination effort would include the following elements: the offering of information to the appropriate agencies (as applicable) on the locations of railroad carrier facilities, rail hazardous materials shipper and receiver facilities, and rail transit facilities; access to railroad carrier, rail hazardous materials shipper, rail hazardous materials receiver, and rail transit agency equipment; and communications interface. Where a railroad carrier, rail hazardous materials shipper, rail hazardous materials receiver, or rail transit system requested TSA's assistance or notified TSA that its RSC was having difficulty coordinating security practices or procedures, TSA would intervene, as appropriate, to assist. To the maximum extent feasible, TSA anticipates that railroad carriers, rail hazardous materials shippers, rail hazardous materials receivers, and rail transit systems would not need to establish a new company or corporate division or infrastructure to carry out the responsibilities of the RSC and would not need to hire new employees to serve exclusively as RSCs. Rather, TSA expects that the proposal would result in only an incremental increase in the job duties of existing employees who have related functions. Moreover, in many instances, the related job functions involve compliance with existing Federal requirements. TSA anticipates that certain rail hazardous materials shippers and receivers, particularly the smaller ones, would employ the services of the individual who serves as the manager of safety, health, and environment. This individual traditionally oversees regulatory compliance with the requirements of Federal agencies such as the Occupational Safety and Health Administration and the Environmental Protection Agency. Other rail hazardous materials shippers and receivers, particularly the larger companies, may employ an individual to serve exclusively in the role of the RSC. In the case of rail hazardous materials facilities that are also subject to the maritime security regime required by the Maritime Transportation Security Act of 2002, as codified in 46 U.S.C. Chapter 701, the individual who serves as the Federal Maritime Security Coordinator or the Facility Security Officer may also fulfill the duties of the RSC. See 33 CFR parts 101-106. TSA anticipates that Class I and larger Class II railroad carriers 49 would likely employ the services of the chief of the railroad police. Smaller railroad carriers would likely select the operating officer responsible for safety compliance and liaison with FRA. In this regard, FRA requires freight and passenger railroad carriers to telephonically report to the National Response Center certain types of accidents/incidents, such as the death of a rail passenger or railroad carrier employee, a train accident that results in serious injury to two or more train crewmembers or passengers requiring their admission to a hospital, or a train accident resulting in a preliminary damage estimate of $150,000 to railroad and non-railroad property. See 49 CFR 225.9. PHMSA regulations require immediate reports by the person in physical possession of the hazardous materials to the National Response Center of certain types of hazardous materials incidents, such as the death or serious injury of a person as a direct result of a hazardous material or fire, breakage, spillage, or suspected radioactive contamination occurring that involves a radioactive material. See 49 CFR 171.15. In addition, under 49 CFR 659.33, a rail transit agency must notify the OA within two hours of certain incidents involving a rail transit vehicle or occurring on rail transit property. 49 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 $250 million after applying the railroad revenue of deflator formula. Class III: Carriers having annual carrier operating revenues of $250 million or less after applying the railroad revenue deflator formula. See 49 CFR 1201, Subpart A. 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 x (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). TSA has crafted this RSC proposal as a performance standard, and TSA expects that each railroad carrier, rail hazardous materials shipper, rail hazardous materials receiver, and rail transit system will provide its RSC with the information necessary to perform its job duties. The proposal does not include a training requirement. However, TSA seeks comment on whether the final rule or another rulemaking should include such a requirement. In this regard, TSA seeks comment on what training methods railroad carriers, rail hazardous materials facilities, and rail transit facilities could use to meet this requirement. For example, should TSA require specific training as it does in aviation for aircraft operator Ground Security Coordinators? See 49 CFR 1544.233. Should TSA require training once or mandate it on a recurrent basis? Should TSA develop specific guidance or a curriculum for such a training program? Under the proposed rule, the requirement to designate and use an RSC does not apply to the operation of private rail cars, including business/office cars and circus trains, or to tourist, scenic, historic, or excursion operations, whether on or off the general railroad system of transportation, unless TSA notifies the owner or operator in writing that a security threat exists concerning that operation. Such notifications, and lists of specific private rail car owners and operators that TSA has required to appoint an RSC, would be protected as SSI threat information under § 1520.5(b)(7). In reaching the decision to exclude the above types of operations, TSA considered their relative security risk, which TSA treated as a function of three variables: threat, or the likelihood of a type of attack that might be attempted; vulnerability, or the likelihood that an attacker would succeed; and consequence, or the impact of an attack occurring. While TSA believes that a private car operation should be held to the same basic level of security preparedness planning as other passenger train operations, TSA intends to take into account the financial burden that TSA would impose if it required private car owners and operators to conform to the requirements of proposed §§ 1580.101 and 1580.201. Moreover, TSA recognizes that host railroads such as Amtrak and commuter railroads often haul private cars, and these hosts often impose their own security requirements on the operation of the private cars. Pursuant to proposed § 1580.201, TSA would already require host railroads to have an RSC to serve as the primary contact for intelligence information and security-related activities and communications with TSA; the private car passengers would benefit from this requirement even if private rail car owners and operators did not designate their own RSCs. In addition, in the case of non-revenue passengers, including employees and guests of railroad carriers who travel in business and office cars and passengers traveling on circus trains, the railroad carriers would provide for their safety and security in accordance with existing operating procedures and protocols relating to normal freight train operations. With respect to tourist, scenic, historic, and excursion operations, TSA analyzed the security risk and also considered the financial, operational, and other factors unique to such railroad carriers. At this time, TSA concludes that these operations do not need to appoint RSCs, unless TSA notifies them to do so. 4. Location and Shipping Information for Certain Rail Cars This rule proposes that freight railroad carriers transporting the specified categories and quantities of hazardous materials and certain rail hazardous materials shippers and receivers must provide information to TSA, upon request, on the location of rail cars. This requirement grew out of an August 16, 2004 notice and request for comments that PHMSA and TSA issued. The notice, entitled “Hazardous Materials: Enhancing Rail Transportation Security for Toxic Inhalation Hazard Material,” addressed the need for enhanced security requirements for the rail transportation of hazardous materials posing a PIH hazard. See 69 FR 50988. The purpose of the location reporting requirement is not to track a rail tank car to ascertain if it is off course, but rather to determine how close it may be to a target city or other potential target. Based upon the intelligence information received, TSA may wish to know, for example, how many rail tank cars carrying a particular TIH material are headed toward, or currently located within 10 miles of, a specified potential target. The August 2004 Notice indicated that DOT and DHS were considering whether they should require communication or tracking requirements, such as satellite tracking of rail cars and real-time monitoring of tank car or track conditions for rail shipments of PIH materials. In addition, the Notice suggested that DOT and DHS were considering reporting requirements in the event that PIH shipments are not delivered within specified time periods. Currently, there are no regulations that include communication, location, or tracking requirements for hazardous materials shipments by rail. While offerors and transporters of PIH materials may elect to implement communication, location, or tracking measures as part of the security plans they develop in accordance with subpart I of part 172 of the HMR, such measures are not mandatory. Some commenters to the August 2004 Notice questioned whether the tracking of rail shipments of PIH materials has a security benefit. They suggested that the probability that a rail car will be moved off the rail network is extremely remote and, further, that tracking rail cars to determine if they are off course has no value from a security perspective. Although some commenters expressed concerns about the reliability of tracking systems and the ease with which some systems could be compromised, several commenters suggested that since the railroad industry already has the capability to track rail cars, the existing system should be supplemented, not replaced, and any mandated tracking requirements should provide for flexibility in choosing different technologies. DHS believes that information concerning the location of certain hazardous materials should be readily available to industry and the Federal Government, particularly during elevated threat situations. Such information would be critical to decisions concerning possible rerouting, stopping, or otherwise protecting shipments and populations to address specific security threats or incidents. Freight railroad carriers currently have the capability to locate a rail car's last reported location using the Automatic Equipment Identification (AEI) tag and reader system, 50 as well as current location using two-way radio or cellular telephone. Rail hazardous materials facilities already maintain sufficient information concerning the contents and location of hazardous materials under their physical custody and control, whether for proprietary reasons or to comply with DOT hazardous materials regulations, and can provide the information to the Federal Government in an expeditious manner. 50 AEI tags are discussed in the Section-by Section Analysis of proposed 49 CFR 1580.103. Based upon TSA's consideration of the security vulnerabilities associated with the transportation of different types and classes of hazardous materials, the proposed rule would add location and shipping information requirements, focusing upon the three types and quantities of hazardous materials that TSA has concluded pose a significant transportation security risk. This rule would require covered freight railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers to report the location and shipping information of these rail cars when TSA requests such information. 51 Certain PIH location and shipping information is already protected as SSI under a 49 CFR 1520.5(b)(16) determination by TSA. TSA will evaluate the location and shipping information provided under this rule on a case-by-case basis, and may determine that such information is SSI under 49 CFR 1520.5(b)(16). TSA is seeking comment on whether TSA should amend § 1520.5(b) to routinely cover such information as SSI. Data elements to be included in these rail car reports include the rail car's identification, lading, location, and transportation status. As noted above, TSA anticipates that this information is readily available from existing car location management and waybill databases. 51 TSA's proposed requirement that carriers, shippers, and receivers submit car location and shipping information to TSA for rail security purposes would be in addition to any Bureau of Customs and Border Protection (CBP) information submission requirements. The proposed rule would establish a performance standard that requires the regulated entity to be able to provide the requested information in the timeframe specified, without mandating a particular technology or system protocol for obtaining it. Accordingly, as discussed further in the Section-by-Section Analysis for § 1580.103 below, while certain larger freight railroad carriers would choose to 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. Rail hazardous materials facilities, depending on the number of rail cars currently containing one or more of the listed hazardous materials, may 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 one hour of receiving the request and does so using one of the five approved methods, the carrier or facility would be in full compliance with the proposed regulation. TSA recognizes that the ability of the freight railroad industry to track billions of dollars of equipment and cargo is crucial for good customer service and efficient rail operations, and seeks comment from rail tank car manufacturers, rail tank car owners, freight railroad carriers, and the insurance industry on the feasibility and potential future uses of Global Positioning Systems 52 (GPS) to track rail cars. TSA requests information on the anticipated economic impact on rail car owners and freight railroad carriers in terms of the costs of manufacture, installation, maintenance, and service of GPS tracking systems and devices. In addition, TSA seeks information on the anticipated security benefits that would result from equipping rail tank cars with technologies that incorporate chemical sensors and open hatch detection into GPS-based location and messaging systems to immediately notify concerned parties of potential leaks or unauthorized access of the rail car. TSA also requests comment on the business use considerations, including the anticipated benefits for fleet management, protection of business proprietary data, and whether freight railroad carriers using GPS tracking systems would likely receive insurance premium reductions. 52 A Global Positioning System is a satellite-based system that can pinpoint any position on earth—any time and in any weather—and then use receivers to process the satellite signals to determine a location. 5. Reporting Significant Security Concerns The threats to transportation security present a new paradigm for intelligence collection, analysis, and application. For most of its history, the United States has focused its intelligence resources on the military and political establishments of foreign states. In the aftermath of the September 11, 2001 attacks, the focus areas for intelligence collection activities have expanded markedly. Detecting terrorist activities entails piecing together seemingly unrelated or minor observations, encounters, and incidents and analyzing information from other sources to identify indications of planning and preparation for an attack. The terrorist threat and the rail mode's vulnerability have unfortunately been well demonstrated by multiple attacks throughout the world. In this environment, reports from railroad carriers, rail hazardous materials shippers and receivers, and rail transit systems are essential to the detection of indications of terrorist planning and preparation activities. Seemingly disconnected or disparate reports of suspicious or unusual activities, if timely and effectively analyzed in the context of broader information derived from the intelligence community, may provide the insight necessary to prevent a terrorist attack. Essential to achieving this objective is the enhancement and expansion of the means to detect indicators of terrorist surveillance, planning, and preparation activities and to identify suspicious persons at and near rail cars, stations, terminals, facilities, and other infrastructure. A critical component of this effort is timely reporting of incidents and other matters of security concern. TSA would require all entities covered by this NPRM to report significant security concerns to TSA. Significant security concerns encompass incidents, suspicious activities, and threat information including, but not limited to the following incidents: interference with the train crew; bomb threats—both specific and non-specific; reports or discovery of suspicious items which result in the disruption of operations; suspicious activity occurring onboard a train that results in a disruption of operations; discharge, discovery, or seizure of a firearm or other deadly weapon on a train or in a station or terminal; information relating to the possible surveillance of a train or rail facility; correspondence received by the railroad carrier or rail transit system operator indicating a potential threat to rail transportation; disruption of train operations, including derailments and accidents, the cause of which appears suspicious or the result of suspected criminal activity; and any major breaches of security at a rail facility. These requirements will ensure that systems are put in place that will increase domain awareness and allow TSA to be aware of possible national trends. These requirements would not supersede existing requirements to report incidents to State or local first responders or other authorities. a. Passenger Railroad Carriers and Rail Transit Systems. To inform and enable detailed, cross-functional analysis of developing threats, proposed § 1580.203 would require the passenger railroad carrier and rail transit system to immediately report potential threats and significant security concerns to TSA. TSA recognizes that rail transit agencies operate under an existing regulatory requirement to report certain types of incidents to State OAs. Pursuant to 49 CFR 659.33, the rail transit agency must notify the OA within two hours of an incident involving a rail transit vehicle or occurring on rail transit property where, among other parameters, a fatality results, injuries require medical attention for two or more persons away from the scene, or property damage equals or exceeds $25,000. These matters may also prompt the reporting requirement under this proposed rule. Any limited overlap of information that this reporting requirement would create would be neither an unnecessary duplication of effort nor a burdensome requirement. Proposed § 1580.203 covers a much broader scope of security concerns than the existing reporting requirements at 49 CFR 659.33 or pursuant to FTA grant programs. The distinction reflects the different focus of TSA and the State OAs. State OAs seek to track and record significant incidents, whether malicious or accidental, that result in loss of life, multiple significant injuries, or substantial property damage. The purpose is to create a historical record for later assessment of whether corrective action should be taken. TSA seeks to obtain a stream of information for analysis purposes. With broader collection of information, the Transportation Security Intelligence Service and DHS Office of Intelligence and Analysis will be better able to identify trends or patterns that may indicate terrorist planning and preparation activities. The proposed requirement for the reporting of potential threats and significant security concerns would provide essential material for this vital effort. Additionally, rail transit agencies may have reporting requirements deriving from grant programs that FTA administers. These programs may require rail transit agencies to provide accounting and statistical reports on a variety of matters to the National Transit Database on a specified basis, such as monthly. Again, any partial overlap of information covered in the two reporting requirements would not result in an unnecessary duplication of effort or a burdensome requirement. Through the National Transit Database, FTA seeks to maintain a comprehensive profile of public transportation systems in the United States. FTA gathers information on the full spectrum of activities involved in transit operations, including accounting matters, passenger volume, distances covered, safety records, and criminal activity. Proposed § 1580.203 would require a much more focused report intended to generate an information stream essential to identify trends or patterns that may indicate terrorist activity including surveillance, planning, and preparation. The resulting data, analyzed in the context of transportation and homeland security intelligence products and of material generated by the broader intelligence community, would provide the foundation for focused detection, deterrence, and prevention activities. Proposed § 1580.203 would apply to tourist, scenic, historic, and excursion operations as well as other passenger rail operations. In deciding whether to apply this provision to these passenger railroad operators, TSA considered the protocols, such as immediately reporting a concern or incident to appropriate law enforcement authorities, that any prudent owner or operator of a tourist, scenic, historic, or excursion railroad should follow if faced with a security threat or concern. The proposed reporting requirement merely adds DHS as an additional recipient of this information. TSA seeks comments from these passenger railroad carriers and their associations to determine if there are financial, operational, or other factors that may be unique to such passenger railroad operations that justify modifying or eliminating the proposed reporting requirement applicable to these operations. b. Freight Rail Including Rail Hazardous Materials Shippers and Rail Hazardous Materials Receivers. Proposed § 1580.105 would require freight railroad carriers and covered rail hazardous materials shippers and receivers to immediately report potential threats and significant security concerns to TSA. In the face of unpredictable and rapidly changing threats to rail carriers and facilities, detection, prevention, and deterrence depend upon strong intelligence focused on the terrorist as well as the means for carrying out the threat. Proposed § 1580.105 covers a much broader scope of security concerns than other existing reporting requirements, such as the FRA requirement in 49 CFR 225.9 that railroad carriers report certain types of accidents/incidents telephonically to the National Response Center. 53 The distinction reflects the different focus of TSA and FRA. FRA seeks to track and record significant incidents, whether malicious or accidental, that result in loss of life, multiple significant injuries, or substantial property damage. The purpose is to create a historical record for later assessment of whether corrective action should be taken. In contrast, TSA seeks to obtain a stream of information that it can analyze to identify trends or patterns that may indicate terrorist planning and preparation activities. The broader collection of information will better enable the Transportation Security Intelligence Service and DHS Office of Intelligence and Analysis to identify trends or patterns that may indicate terrorist planning and preparation activities. The proposed requirement for immediate reporting of potential threats and significant security concerns would provide essential material for this vital effort. 53 The FRA reporting requirement set forth in 49 CFR 225.9 is discussed in greater detail in section III.B. above. As also noted in section III.B., PHMSA requires immediate reports to the National Response Center of certain types of hazardous materials incidents. See 49 CFR 171.15. 6. Chain of Custody and Control This NPRM proposes that certain freight railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers eliminate practices that leave hazardous materials unattended, thereby creating the potential for significant transportation security incidents. TSA's analysis indicates that there is a security vulnerability to HTUAs from freight railroad carriers leaving unattended rail cars, and in some cases entire trains, carrying one or more of the specified hazardous materials, for eventual pickup by another railroad carrier or by the consignee rail hazardous materials receiver. There is also a security vulnerability when rail hazardous materials shippers load rail cars with hazardous materials and leave the cars unattended, for pickup by the railroad carrier. Often these cars are left unattended in a non-secure area and thus may be vulnerable to tampering. These situations create opportunities for individuals to compromise the security of rail cars transporting PIH, explosive, or radioactive material, such as through the introduction of an IED. As discussed above, the highest risk occurs when a rail car is in or near an area of high population density. In applying a risk-based approach, TSA is proposing that the chain of custody requirements apply to railroad carriers when they conduct a transfer within an HTUA, or when they conduct a transfer with rail cars that may subsequently enter an HTUA. Finally, railroad carriers would apply these measures when delivering a car to a rail hazardous materials receiver within an HTUA. In this way, the rail car would be protected during transportation from someone attaching an IED or otherwise compromising the car when it could be used to endanger the HTUA. TSA is applying its risk-based approach for rail hazardous materials shippers and receivers as well. Rail hazardous materials facilities that offer, prepare, or load the specified hazardous materials typically receive residue cars from railroad carriers. TSA is not proposing to apply the enhanced custody and control procedures to residue cars at this time, although TSA is requesting comment on whether the rule should do so. See section III.A. of this preamble. The proposed rule would require hazardous materials shippers to apply the enhanced custody and control procedures starting at the time they load the car. At this point, the facility can be reasonably assured that the car has not been compromised. After this point, the facility would have to protect the car from unauthorized access and apply the other measures in proposed § 1580.107, to provide assurance that the car will not present a risk when it is transported. These provisions would apply to rail hazardous materials shippers that offer, prepare, or load the specified hazardous materials, regardless of whether the facility is in an HTUA. Once the car leaves the facility, it would be difficult or impossible to determine whether the car would pass through an HTUA before reaching its destination, and so all of these cars must be protected. TSA would require rail hazardous materials facilities within HTUAs that receive or unload cars with the specified hazardous materials to apply the enhanced chain of custody and control measures from the time they accept the car from the railroad carrier until the time they unload the car. This continues the protection of HTUAs from rail cars containing the specified hazardous materials. The requirements of proposed § 1580.107 are further described in the Section-by-Section Analysis, below. IV. Section-By-Section Analysis of Proposed Rule Part 1520—Protection of Sensitive Security Information Section 1520.3 Terms Used in This Part This rule proposes to amend 49 CFR 1520.3 by adding a number of new definitions. TSA is adding these definitions to the SSI regulation to clarify terms that appear in proposed part 1580. This includes “rail hazardous materials shipper,” “rail hazardous materials receiver,” “rail facility,” “rail secure area,” “rail transit facility,” “rail transit system or rail fixed guideway system,” “railroad,” and “railroad carrier.” In addition to explaining the meaning of these terms by referencing proposed 49 CFR 1580.3 and the United States Code (USC) (as applicable), the definitions make clear that they apply in the context of rail transportation. The rule would also clarify the scope of the definition of “vulnerability assessment” to specifically include rail security assessments. The proposed revision would expressly include the examination of a railroad, railroad carrier, rail facility, rail hazardous materials facility, rail transit system, or rail transit facility. TSA would add these six additional categories of rail security entities and facilities to the definition of “vulnerability assessment” to clarify that all types of rail-related vulnerability assessments constitute SSI. TSA seeks comment on whether this proposal is appropriate in its coverage of which vulnerability assessments warrant SSI treatment. TSA may revise this definition based upon comments received. Section 1520.5 Sensitive Security Information TSA proposes to modify the language in 49 CFR 1520.5(b)(6)(i) related to inspections and investigations of alleged regulatory violations. The proposal would expand the current provision so that it applies in the context of all forms of rail transportation, including freight and passenger railroad carriers, rail hazardous materials shippers, rail hazardous materials receivers, and rail transit systems. Section 1520.5(b)(8) of the current SSI regulation defines details of aviation or maritime security measures as SSI, whether applied directly by the Federal government or another person. The proposed revision to 49 CFR 1520.5(b)(8) would expand this provision to cover specific details of transportation security measures applied in rail transportation, whether applied directly by the Federal Government or another person. Section 1520.5(b)(10) of the current SSI regulation states that training materials created or obtained to train persons who carry out aviation or maritime security measures required or recommended by DHS or DOT are SSI. The proposed revision to 49 CFR 1520.5(b)(10) would expand this provision to cover training materials for persons who carry out rail transportation security measures. These types of materials contain descriptions of security measures or countermeasures that a terrorist or other criminal could use to determine how to defeat security procedures. Section 1520.5(b)(11) of the current SSI regulation is intended to safeguard lists of information about the identities of individuals who hold certain positions with aviation or maritime security responsibilities. The proposed revision to 49 CFR 1520.5(b)(11)(i)(A) would expand this provision to safeguard lists of information about the identities of individuals having unescorted access to a rail secure area at a rail hazardous materials shipper or receiver. Terrorists or other criminals might attempt to target these types of individuals in order to obtain unauthorized access to a rail secure area. Accordingly, lists of information that identify these individuals as having unescorted access to a rail secure area must be protected as SSI. Section 1520.5(b)(12) of the current SSI regulation designates as SSI certain lists of critical aviation or maritime infrastructure assets prepared by Federal, State, or local government agencies. Specifically, the current provision covers any list identifying systems, facilities, or other assets, whether physical or virtual, so vital to the transportation system that the incapacity or destruction of such assets would have a debilitating impact on transportation security. The proposed revision to 49 CFR 1520.5(b)(12) would expand this provision to safeguard lists of critical infrastructure assets information concerning the rail transportation system, including rail hazardous materials shipper and receiver facilities. The expanded definition, however, would continue to cover this information as SSI only if the list is either prepared by DHS or DOT or is prepared by a State or local government agency and is submitted to DHS or DOT. Section 1520.7 Covered Persons Persons covered under 49 CFR 1520.7 of the current SSI regulation include: airport operators; aircraft operators; foreign air carriers; indirect air carriers; persons who received SSI as part of a legal enforcement action; persons for whom a vulnerability assessment had been directed, created, held, funded, or approved by DHS or DOT; and persons employed by, contracted to, or acting for any of the persons listed above. The proposed revision to 49 CFR 1520.7 would expand the coverage of the SSI regulation by adding a new paragraph (n) to address railroad carriers, rail hazardous materials shippers, rail hazardous materials receivers, and rail transit systems subject to the requirements of proposed part 1580. In this regard, TSA notes that the scope of proposed part 1580 addresses: (1) Freight and other non-passenger railroad carriers operating rolling equipment; (2) rail hazardous materials shippers (as that term is defined in proposed 49 CFR 1580.3); (3) rail hazardous materials receivers (as that term is defined in proposed 49 CFR 1580.3); (4) railroad carriers that operate or provide 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), including public authorities operating passenger train service; (5) passenger or freight railroad carriers hosting the operation of passenger train service; (6) tourist, scenic, historic, and excursion rail operators, whether operating on or off the general railroad system of transportation; (7) private cars, including business/office cars and circus trains, on or connected to the general railroad system of transportation; and (8) rail transit systems, including heavy rail transit, light rail transit, automated guideway, cable car, inclined plane, funicular, and monorail systems. However, these entities and rail operations would have access to SSI only to the extent that they have a “need to know” the information under § 1520.11. Part 1580—Rail Transportation Security Subpart A—General Section 1580.1 Scope TSA proposes that parts of this rule apply to all types of rail operations, including freight railroad carriers; intercity, commuter, and short-haul railroad passenger train service; and rail mass transit systems. Further, in addition to applying to all freight railroad carriers, the proposal also includes additional requirements for railroad carriers that transport hazardous materials. The NPRM would also apply to rail operations at certain fixed-site transportation facilities, including (1) rail hazardous materials shippers that offer, prepare, or load for transportation in commerce by rail one or more of the specified hazardous materials and (2) rail hazardous materials receivers located within an HTUA that receives or unloads from transportation in commerce by rail one or more of the specified hazardous materials. The NPRM also covers the operation of private rail cars on or connected to the general railroad system of transportation and tourist, scenic, historic, and excursion operations, whether on or off the general railroad system of transportation. Section 1580.3 Terms Used In This Part This section contains a set of definitions to introduce the regulations. TSA intends these definitions to clarify the meaning of important terms as they are used in the proposed rule. Some of the definitions involve new or fundamental concepts, which require further discussion. The term “general railroad system of transportation” is derived from FRA's “Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws,” whi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE6-21512. Public record. Not legal advice.