The second rule, issued by the TSA, supplements PHMSA’s route analysis regulation. The TSA rule focuses on ensuring a secure, documented chain of custody for rail tank cars carrying certain explosive, radioactive, or PIH payloads and further requires that carriers provide the TSA with information about cars’ locations when that information is requested. The rule applies primarily to hazmat cars that may pass through HTUAs, while selected elements apply to other rail sectors such as mass transit carriers.
Security coordinators. The TSA rule, which went into effect December 26, requires that all railroads—with minor exceptions such as recreational or small scenic railroads—designate a rail security coordinator (RSC) and ensure that the RSC, or an alternate, is available to the TSA 24 hours a day, seven days a week.
Like many elements of the rule, the RSC requirement is performance-based, which means that it does not mandate exactly how operators satisfy it. In other words, the TSA does not require that railroads hire someone new to exclusively handle the RSC responsibility. It suggests, however, that larger operations probably should designate one official as a full-time RSC. Smaller rail carriers could assign the responsibility to an existing employee.
Reporting. The TSA rule requires that all railroads immediately report any suspicious activity directly to the agency. In its final rule, TSA clarifies that railroads should, in cases of suspected criminal activity or emergencies, call local public safety agencies first and then TSA. According to the rule, some activities, such as youth vandalism, don’t merit reporting. TSA’s goal is to collect all possible suspicious activity information for analysis to detect potential threats.
Surprise inspections. The rule subjects nearly all commercial and passenger rail operations in the country to unannounced TSA inspections. The provision drew a sharp response from nearly all operators who commented during the rulemaking process.
Operators, primarily in the chemical-manufacturing and mass-transit sectors, warned of potential safety risks if inspectors venture into facilities without safety training. Chemical manufacturer Dow Chemical Co. warned that unannounced inspections may “significantly disrupt ongoing business activities.”
In their comments to TSA, more than one municipal transit authority suggested that unexpected inspections may create unintended, dangerous security situations; for example, terrorists might take advantage of the unscheduled nature of inspections and show up themselves in the guise of unannounced inspectors. TSA, however, held firm on the provision, stating that site management can call TSA directly to confirm the legitimacy of the inspection.
Tracking. TSA originally proposed requiring that operators in possession of covered hazmat tank cars provide the agency with a car’s location information within one hour of a request. Some commentators, such as The Fertilizer Institute (TFI), which represents manufacturers of anhydrous ammonia, argued that TSA should accept location information generated by the existing sectorwide Automatic Equipment Identification (AEI) system. AEI relies on a network of readers placed at intervals along the nation’s Class I railroad tracks. The sensors detect passive RFID tags on passing rail cars and report the information to operators and, in some cases, into shared fleet monitoring systems like Railinc, which is owned by the American Association of Railroads (AAR).
That system does not report real-time information. But TFI President Ford B. West in his comment letter wrote, “Railcar locations 6-8 hours old are more than adequate.”
The regulation states that Class I railroads must respond to TSA within five minutes of a request and within 30 minutes for location requests about multiple cars. Smaller class II and III railroads have 30 minutes for all requests.
But the rule does not mean that a carrier must provide the car’s location at the time it responded to the request, according to agency spokesperson Greg Soule. He says that regulators are not placing the bar that high, instead requiring that operators provide “the last reported location of the rail cars using their existing car management systems.”
The agency leaves it to carriers to meet the tracking requirement with whatever technology they find appropriate. Thus, carriers may rely on GPS-based tracking, AEI, or even location information provided via radio or mobile phone by an engineer in a train’s locomotive.
Real-time GPS tracking technology is currently fielded on many hazmat rail tank cars, but it is put there by chemical manufacturers rather than the railroad operators. While railroads own many of the boxcars and flatcars in their trains, hazmat tank cars are typically the property of manufacturers due to the required specialization of the cars and the risks inherent in shipping hazmats.
The wireless, solar-powered GPS units that major chemical companies have installed on their tank cars offer sensors that allow operators to monitor the status of their shipments, including temperature, pressure, hatches, impacts, and leakage (see “Tracking Dangerous Cargo,” Security Management, December 2007).
The units can typically determine location with both GPS and terrestrial cellular signals, and they can transmit location information both via satellite and cellular. While GPS and satellite service can cover cellular “dead zones” in remote areas, satellite communication requires an unobstructed line of sight to the satellite, so the units are more likely to rely on terrestrial cellular signals in dense urban areas.
Chain of custody. Among the most challenging elements of the new rule is the requirement that operators maintain a secure, documented chain of custody for covered hazmat cars.
While rail car transfers by major carriers are often conducted remotely, if not automated, the rule requires that all car custody transfers are attended by at least one person and are formally documented either electronically or in writing. Time, place, entities, and persons attending must be recorded.
The rule’s physical security requirements apply when railroads pick up tank cars from shippers, which are usually the chemicals’ manufacturers. In addition to the ground-level IED inspection required under the PHMSA rule, the railroad carrier must conduct a broader inspection for any suspicious items or signs of tampering such as with closures and seals.
After the inspection and until the car departs that location—a period during which many hazmat laden cars were historically left on tracks outside a shipper’s fence line—cars must be stored in a “rail secure area,” which, according to TSA, could include fencing, lighting, or sensors “observed by an employee or authorized representative.”
When the cars arrive in an HTUA and stop, whether for transfer or delivery, the railroad carrier “must not leave the rail car unattended in a non-secure area until the…receiver accepts custody of the car.”
In their public comments, multiple stakeholders asked TSA to better define the term “attended.” In the final rule, TSA writes that a car is attended if a person “is physically located on site in reasonable proximity to the rail car…is capable of promptly responding to unauthorized access or activity at or near the rail car, including immediately contacting law enforcement or other authorities.”
When Security Management asked TSA to define “reasonable proximity” and “promptly,” the agency declined to elaborate. The rule does state that “electronic monitoring is permitted so long as the responsible party is located on the site and can accomplish an equivalent level of surveillance, response, and notification.”
The exact interpretations of those words will be defined over time by regulatory enforcement and perhaps in court. Fines for noncompliance with TSA’s rule, like FRA’s, can reach $10,000 a day.