Monday, December 22, 2008

More Details on TSA Rule Extension

Last Friday I provided a brief note in this blog (see: “Extension for a Section of Rail Security Rule ”) that TSA had extended the effective date on a portion of the Railroad Transportation Security Rule while leaving the December 26th effective date in effect for the remainder of the rule. The effective date for 49 CFR § 1580.107 has been extended to April 1st, 2009. Here is a little more detail on what that extension means. Section 1580.107 The only section of the rule (§ 1580.107) that is affected by this extension is section dealing with the chain of custody and control of covered rail cars (See: “Rail Transportation Security – Rail Car Chain of Custody”). This is the section of the rule that outlines how the exchange of covered rail cars between shippers and carriers, between carriers, and between carriers and receivers who are located in HTUAs will be executed and documented. This section also establishes the general requirements for hazmat shippers to keep a rail car in a ‘rail secure area’ {§ 1580.107(i)} from the time the security inspection is completed until the railroad takes custody of the rail car{§ 1580.107(a)(2)}. The same general requirement for a ‘rail secure area’ is provided in this section covering hazmat receivers that are located in an HTUA to keep a covered railcar in such an area from the time it is received from a rail carrier until the time unloading is complete {§ 1580.107(f)(2)}. This section does include the requirement for hazmat shippers to conduct a security inspection for signs of tampering, other signs of compromised security, or the presence of suspicious items (to include IEDS) before loading a rail car{§ 1580.107(a)(1)}. This requirement may not be substantially affected by this extension because a similar requirement already exists for all hazmat rail cars, not just the rail cars covered under this rule (§ 174.9). Reason for Extension According to the notice in the Federal Register
“On December 11, 2008, the Association of American Railroads and its member freight railroads requested that TSA delay the effective date of this provision. They presented information indicating that the initial 30-day period for compliance did not afford sufficient time for railroad carriers to implement procedures and train their workforce to meet the new regulatory requirement.”
TSA acknowledged that there might be difficulties in developing and implementing procedures to comply with this section of the rule. It is interesting that no hazmat shipper or receiver petitioned for delays of implementing this section because of the inherent difficulties in implementing the ‘rail secure area’ provisions of this section. I would bet that this is because most of these facilities are going to suggest that their entire facility is a ‘secure area’ so they do not need special provisions for a ‘rail secure area’. It will be interesting to see how TSA deals with such a claim. Areas Not Covered by the Extension The ARA did not request, nor did TSA approve an extension of the effective date of the remainder of the rule. This means that the following provisions still go into effect the day after Christmas:
Inspection Authority (see: “Rail Transportation Security – Inspection Authority”) Rail Security Coordinator (see: “Rail Transportation Security – RSC Requirement”) Location Reporting for Covered Rail Cars (see: “Rail Transportation Security – Reporting Railcar Locations”) Reporting Significant Security Concerns (see: “Rail Transportation Security – Reporting Security Concerns”)
All of these provisions are going to require development of internal procedures and training of personnel. There have been no indications on where the TSA enforcement effort will focus first. If I were in charge of the TSA inspection effort, I would start hot and heavy on January 5th showing up at the front gates of hazmat facilities, both shippers and receivers, checking for procedures allowing TSA inspectors to enter the facility. They would also check for RSC information, rail car location point of contact and procedures. They would also review facility procedures for reporting significant security concerns.

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