Monday, December 1, 2008

Rail Transportation Security – Inspection Authority

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 with the provisions allowing TSA inspectors to enter facilities for purposes of inspection. Earlier blogs in this series were: Rail Transportation Security – RSC Requirement Rail Transportation Security – Reporting Security Concerns Rail Transportation Security – Rail Car Chain of Custody Inspection Authority Section 1580.5 provides TSA inspectors with inspection authority to perform inspections in support of this regulation. Specifically § 1580.5(b) requires that covered persons:

“…must allow TSA and other authorized DHS officials, at any time and in a reasonable manner, without advance notice, to enter, inspect, and test property, facilities, equipment, and operations; and to view, inspect, and copy records, as necessary to carry out TSA’s security-related statutory or regulatory authorities”.

Chemical facilities that ship covered hazardous materials and chemical facilities located in High Threat Urban Areas (HTUA) that receive the same covered materials are specifically covered under this provision. Section 1580.5(b)(5) includes the description of “transportation-related areas of rail hazardous materials shipper and receiver facilities” in the list of areas that TSA will be inspecting to oversee “the implementation, and ensure the adequacy, of security measures” required under this rule. TSA received a large number of comments about this section of the rule. Most commenters were concerned about the safety and security of unannounced inspections after hours. Concerns were expressed about the ability of inspected parties to confirm the identity and authority of inspectors. The only change made in response to these comments was that TSA included language {§ 1580.5(d)} requiring TSA and other authorized DHS personnel to present identification when requested. TSA Will Typically Provide Notice In the preamble discussion TSA acknowledged that most inspections would be conducted with advance notice. They note that this “notice gives the parties to be inspected the opportunity to gather evidence of compliance and to arrange to have the appropriate personnel available to assist TSA” (page 44). Unannounced Inspections Required Even given the fact that most inspections will include prior notification, TSA maintains that it needs to be able to respond to “to information, operations, and specific circumstances whenever they exist or develop” (page 44). This requires that inspections will be conducted at any time of the day or night and there might not be time available to provide advanced notice. There are also security provisions that can only be properly evaluated on a no-notice basis. For example this would be the only way for TSA to “test the regulated party’s ability to detect and respond to the presence of unauthorized individuals” (page 46). No announced inspection would allow for adequately determining this information. Identification of Inspectors Until an electronically verifiable Federal Identification card becomes available, TSA and DHS inspection personnel will use their agency identification cards to identify themselves. Since TSA will not make copies of those cards available in advance (to avoid potentially compromising that identification), facility personnel will likely not be familiar with that identification. TSA has provided a phone number where the identity of any TSA or associated DHS inspectors can be verified. Facility personnel can call the Freedom Center (703-563-3240 or 1-877-456-8722) at any time to verify the inspector’s identity. That phone number is not in the regulation, but it is listed in the preamble (page 50). Inspector Safety Many commenters questioned the safety of inspectors wandering unescorted around rail facilities or hazmat chemical facilities. TSA notes that during many of the inspections that they will be conducting they expect to request that escorts be provided, “but they must be able to perform unescorted inspections at times to check compliance” (page 51). With this in mind TSA has taken measures to ensure the safety of their personnel. TSA ensures that their inspectors “receive training on specific safety procedures to use while inspecting the equipment and facilities of freight and passenger railroad carriers, transit system owners and operators, and rail hazardous materials facilities” (page 48). This includes attending the Transportation Safety Institute’s Transportation of Hazardous Materials course covering 49 CFR parts 100-185. TSA realizes that this training might not cover all hazmat shipping and receiving facilities given the widely varied nature of operations occurring there. In the preamble (page 48) TSA notes that:

“If a rail hazardous materials facility requests that an inspector receive facility-specific safety briefings or training, TSA will work with the facility to accommodate those requests, provided that the timing is acceptable and that additional safety training is reasonable given the nature of the expected inspection.”

Nothing in the discussion explains how TSA expects to handle these types of safety considerations when conducting unannounced inspections, especially penetration type inspections. Covered facilities with special safety considerations around rail loading/unloading equipment need to contact TSA and express their concerns well in advance. TSA has no desire to put their personnel at risk.

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