Sunday, June 16, 2013

TSA Requests Information for Surface Transportation Security Training

On Friday the Transportation Security Administration (TSA) published a notice in the Federal Register (78 FR 35945-35950) requesting comments and data concerning “employee security training programs and planned security training exercises currently provided by owner/operators of freight railroads, passenger railroads, public transportation systems (excluding ferries), and over-the-road buses”.

Training Security Program Requirements

TSA has yet to comply with the three security training related requirements of the “Implementing Recommendations of the 9/11 Commission Act of 2007” (9/11 Act; PL 110-53). These requirements are found in:

• Section 1408 – Public transportation;
• Section 1517 – Freight and passenger railroads; and
• Section 1534 – Over-the-road busses.

While there are slightly different specific requirements spelled out in each of these sections there are some commonalities in the training programs that TSA has been directed to regulate. Paragraph (a) of each section mandated a time frame for TSA to prepare an NPRM and Final Rule; each of those time frames passed over five years ago. Paragraph (b) requires TSA to consult with all of the affected parties in developing the training program requirements that would be incorporated into the final rule(s). Paragraph (c) provides sector specific training requirements that are to be included. Paragraph (d) requires covered entities to develop an organizational training program within 90 days and to submit it to TSA for approval. After TSA has completed their review of the submitted program (60-day time limit for the approval process) the organizations will have one year to complete their initial training of all affected personnel. Paragraph (3) requires that the training programs will be included in the f the National Training Program established under section 648 of the Post Katrina Emergency Management Reform Act {Public Law 109–295; 6 USC 748(a)}.

No Trucking Security Training Required

There is a glaring apparent omission in the requirements spelled out above. An entire sector of the surface transportation industry is missing from the requirements of the 9/11 Act, the freight trucking industry. The reason for this is that the Pipeline and Hazardous Material Administration (PHMSA) had already established security training requirements for that industry before the 9/11 Act was passed. PHMSA and the trucking industry were able to convince Congress that the existing program should exempt them from being regulated by TSA.

The transportation security training requirements for the trucking industry are outline in 49 CFR §172.704, the same section that mandates safety training for all hazmat employees. Two separate types of security training are required; security awareness training {§172.704(a)(4)} and in-depth security training {§172.704(a)(5)}. The security awareness training roughly correlates to the training required by the 9/11 Act for the other surface transportation sectors.

The general security awareness training is required to address:

• Awareness of security risks associated with hazardous materials transportation;
• Methods designed to enhance transportation security; and
• How to recognize and respond to possible security threats.

All hazmat employees in the trucking industry (and shippers of hazardous materials) are required to undergo the general security awareness training described above. All personnel who have duties specified in the hazmat security plans required by 49 CFR §172.800 must undergo in-depth security training addressing those duties. That training will include:

• A review of the security plan and its implementation;
• Company security objectives;
• Organizational security structure;
• Specific security procedures;
• Specific security duties and responsibilities for each employee; and
• Specific actions to be taken by each employee in the event of a security breach.

The security training requirements specified by the 9/11 Act do not require any in-depth training similar to that required for the trucking industry by PHMSA. While there are requirements for the other transportation sectors to develop and receive approval of their security plans, the security training necessary to support those plans was not included in the 9/11 Act requirements.

TSA Soliciting Information

Friday’s notice is soliciting input from the organizations identified in the appropriate sections of the 9/11 Act described above as part of the mandated consultation of that act. TSA is requesting information and cost data in the following areas:

Comments and information/data responses may be submitted via the Federal eRulemaking Portal (; Docket # TSA-2013-0005). There is a short 30-day time period for the responses to be filed; filings must be made by July 15th, 2013. Given the lengthy delays that have occurred in the development of the mandated rules, it really makes no sense for TSA to require such a short response period. I am sure that there will be calls from Congress and the regulated communities to extend this comment period.

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