TSA/PHMSA Issue Final Rules to Amend Security Requirements for Rail Transport of Certain Hazmats

The final rules apply to the following categories and quantities of specified hazardous materials¹ (hazmats):

(1) more than 2,268 kg (5,000 lbs) in a single rail car of a Division 1.1, 1.2, or 1.3 (explosive) material;

(2) a bulk quantity (tank car) of a poisonous by inhalation (PIH) material²; or

(3) a rail car containing a highway route-controlled quantity of a Class 7 (radioactive) material.

TSA Final Rule General Requirements for Rail Carriers, Etc.

TSA's final rule applies the following general requirements to all freight and passenger railroad carriers, certain facilities that ship or receive the specified hazmats by rail, and rail transit systems (covered entities).

Designation of a 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 the primary contact for receipt of intelligence information and other security-related activities.

Extended sensitive SSI. TSA clarifies and extends the protection afforded to sensitive security information (SSI) in rail transportation and further identifies covered persons to include railroad carriers; certain facilities that ship or receive specified hazardous materials by rail; transit systems; and State, local, and tribal employees, contractors, and grantees.

Immediate reporting of threats, etc. Covered entities must immediately report incidents, potential threats, and significant security concerns to TSA.

Allowed entrance of TSA/DHS officials, etc. Covered entities must allow TSA and Department of Homeland Security officials working with TSA to enter and conduct inspections, tests, etc. to carry out TSA's statutory responsibilities.

TSA Additional Requirements for Shippers, Etc. of Certain Hazmats by Rail

TSA's final rule also applies additional requirements to freight railroad carriers and certain facilities that ship or receive the specified hazmats by rail (subject entities), including the following:

Inspection of rail cars before loading. Subject entities must physically inspect the rail car before loading for signs of tampering, including closures and seals; other signs that the security of the car may have been compromised; suspicious items or items that do not belong, including the presence of an improvised explosive device.

Location and shipping info. Subject entities must provide TSA, upon request, with the location and shipping information of rail cars within their physical custody or control that contain a specified category and quantity of hazmat. Class I freight railroad carriers must provide the information to TSA no later than five minutes (for one car) or 30 minutes (for two or more cars) after receiving the request. Other railroad operators and rail hazmat shipper and receiver facilities must provide the information for one or more cars within 30 minutes after receiving the request.

Chain of custody and control. Subject entities are required to provide for a secure chain of custody and control of rail cars containing a specified quantity and type of hazmat.

(See TSA final rule for complete regulations and regulatory text changes from the proposed rule. See ITT's Online Archives or 01/09/07, 07010935, for BP summary of TSA's proposed rule.)

PHMSA Final Rule Requirements for Rail Carriers

PHMSA's final rule adopts its interim final rule (with some regulatory text changes) to implement the following revisions to the Hazardous Materials Regulations at 49 CFR Parts 172 and 174 (partial list):

Consignee notification of delays. Rail carriers transporting the subject hazmats must notify consignees of any significant unplanned delays affecting delivery.

Compilation of data. Rail carriers transporting the subject hazmats must compile information and data on the commodities transported, including the routes over which these commodities are transported³.

Application of data to route choice. Rail carriers transporting the subject hazmats must use the data they compile and relevant information from state, local, and tribal officials, as appropriate, regarding security risks to high-consequence targets along or in proximity to a route to analyze the safety and security risks for each route used and practicable alternative routes to the route used. Using these analyses, rail carriers must select the safest and most secure practicable route for the specified hazmats.

Specified security risks for delayed shipments in transit. In developing security plans (as required under Subpart I of 49 CFR Part 172), rail carriers must specifically address the security risks associated with shipments delayed in transit or temporarily stored in transit.

Visual inspections. Rail carriers must conduct security visual inspections at ground level of rail cars containing hazmats to check for signs of tampering or the introduction of an improvised explosive device (IED).

(See PHMSA final rule for complete regulations and regulatory text changes since the interim final rule. See ITT's Online Archives or 04/23/08 news, 08042320, for BP summary of PHMSA's interim final rule.)

¹TSA's regulations also refer to these hazmats as "rail security-sensitive materials."

²TSA's regulations state that PIH materials include anhydrous ammonia, Division 2.3 gases poisonous by inhalation, and certain Division 6.1 liquids assigned to hazard zone A or hazard zone B, excluding residue quantities of these materials. PHMSA's requirements for data collection, route analyses, and route selection include residue shipments in a bulk packaging.

³Beginning January 1, 2009, rail carriers must compile information on the commodities they transport and the routes they use for the six-month period from July 1, 2008 to December 31, 2008. Rail carriers must complete their data collection by March 1, 2009.

By September 1, 2009, rail carriers must complete the safety and security analyses of routes currently utilized and available alternatives, and select the safest, most secure routes for transporting the specified explosive, PIH, and radioactive materials. Beginning January 1, 2010, and for subsequent years, rail carriers must compile information on the commodities they transport and the routes used for the previous calendar year and complete route assessments and selections by the end of the calendar year.

TSA final rule (D/N TSA-2006-26514, FR Pub 11/26/08) available at http://edocket.access.gpo.gov/2008/pdf/E8-27287.pdf

PHMSA final rule (D/N PHMSA-RSPA-2004-18730, FR Pub 11/26/08) available at http://edocket.access.gpo.gov/2008/pdf/E8-27826.pdf

DHS fact sheet (dated 11/13/08) available at http://www.dhs.gov/xnews/releases/pr_1226590692881.shtm