Thursday, November 20, 2008

Rail Transportation Security – Rail Car Chain of Custody

This is another in a series of blogs that will look at the requirements of the recently released final rule on Rail Transportation Security. While the main focus of this regulation is directed at railroads, there are significant provisions (49 CFR part 1580, Subpart B) that will apply to a wide variety of chemical facilities that use railroad to ship or receive ‘specified quantities and types of hazardous materials’ {§1580.100(b)}. This blog deals the provisions requiring covered chemical facilities to report significant security concerns to TSA. Earlier blogs in this series were: Rail Transportation Security – RSC Requirement Rail Transportation Security – Reporting Security Concerns This final rule requires that receivers of specified hazmat that are located in an HTUA and all hazmat shippers of the same materials (regardless of their location) perform certain security related duties. These duties include producing and maintaining documentation of the transfer of responsibility of the rail cars to or from the rail carrier. Hazmat Shipper Responsibilities Section 1580.107(a) requires that shippers of designated hazmat must, for each hazmat rail car:
· Physically inspect the rail car before loading · Keep the rail car in a rail secure area · Document the transfer to the rail carrier
The purpose of the physical inspection is to detect evidence of tampering or “other signs that the security of the car may have been compromised” {§ 1580.107(a)(1)}. Additionally, the inspection is looking for suspicious or out-of-place items, including IEDs. According to the preamble to this final rule (page 84) TSA is in the process of completing a DVD that may be used to train people in “identifying IEDs and signs of rail car tampering”. HTUA Hazmat Receiver Responsibilities Section 1580.107(f) requires that within HTUAs receivers of specified hazmat must, for each hazmat rail car
· Ensure that positive control of the hazmat rail is maintained during the transfer · Keep the rail car in a rail secure area until it is unloaded · Document the transfer from the rail carrier
The requirement to ensure ‘positive control’ is placed on both the facility and the delivering rail carrier. The preamble states that “TSA intends that the receiver communicate with the railroad carrier and work in close cooperation to ensure the security of the rail car during the transfer process” (page 83). Rail Secure Area TSA does not provide a great deal of guidance on ‘Rail Secure Areas’. Section 1580.107(i) simply states that “The rail hazardous materials shipper and the rail hazardous materials receiver must use physical security measures to ensure that no unauthorized person gains access to the rail secure area.” Even as an operational definition or performance measure this is an inadequate definition. I know of no security professional that would claim that any physical security measure or combination of measures can ‘ensure that no unauthorized person gains access’ to a secure area. It will be extremely interesting to see how TSA enforces this requirement. Document Hazmat Rail Car Transfer Each time a rail car containing a specified hazmat moves from control of one entity to another (shipper to carrier, carrier to carrier, or carrier to receiver in HTUA) both parties to the transfer will independently document {§ 1580.107(k)(3)} the transfer, either electronically or in writing. That documentation will include:
· Car initial and number. · Identification of individuals who attended the transfer · Location of transfer. · Date and time the transfer was completed.
Regulatory Exemptions Unlike the CFATS regulations there are no statutory exemptions to this rule. There are provisions in the rule {§ 1580.107(j)} for receivers within a HTUA to request an exemption from TSA from the change of custody requirements of this rule “if the receiver demonstrates that the potential risk from its activities is insufficient to warrant compliance”. The discussion in the preamble (pages 87-8) makes it clear that infrequent shipments are not an adequate justification for an exemption, explaining that the hazards associated with the specified “materials is significant even if a rail hazardous materials facility only receives a single carload each month”.

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