Tuesday, February 3, 2009

Pending Rule – Security Training of Employees

Last week I wrote about three pending TSA rules that were listed on the Office of Management and Budget web site under the Fall 2008 Regulatory Agenda. Today I will take a closer look at what the rule on security training of employees could look like. This will be based on the material provided on the OMB web site and the referenced sections of the Implementing Recommendations of the 9/11 Commission Act of 2007 (PL 110-53). How the Obama Administration will actually implement the 9/11 Commission requirements remains to be seen. Section 1517 of the 9/11 Commission Act directs the Secretary of DHS to “develop and issue regulations for a training program to prepare railroad frontline employees for potential security threats and conditions” {§ 1517(a)}. The Secretary is also required to “issue guidance and best practices for a railroad shipper employee security program” {§ 1517(g)}. The requirements of this section are detailed and comprehensive. And we are now a year past the date specified (February 3, 2008) for the implementation of this rule. Consultation Requirements Section 1517(b) requires that the Secretary consults with a wide variety of people and organizations in the development of the proposed regulations. While a specific consultive framework is not specified, it does not seem likely that Congress intended for the standard regulatory comment procedure to adequately fulfill this requirement. Along with the typical subject matter experts, this section requires that the consultation includes railroad carriers and shippers, as well as the labor organizations representing railroad workers. Mandatory Training Elements Section 1517(c) specifies eleven different elements that must be addressed in the training program in addition to the catch all other “security training activities that the Secretary considers appropriate”. These range from the use of personal protective equipment to live “situational training exercises regarding various threat conditions, including tunnel evacuation procedures”. Program Requirements Section 1517(d) provides direction for additional program requirements. It includes the requirement that railroads submit their training plans to TSA for approval. It also requires all ‘frontline employees’ to be trained within one year and new hires to be trained within sixty days of being hired. Additionally the rules require the Secretary to periodically update the training requirements and re-issue the regulations. The Way Forward Bits and pieces of the training requirements found in this section have been included in other regulations recently published by TSA. Unfortunately, the combined total of those requirements still fall way short of the program required in this law. Writing the regulations should not be difficult or time consuming. What could take a significant amount of time is bringing the disparate consultees together and developing a coherent program that will satisfy the requirements of this legislation.

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