Rail Transportation Security – Reporting Railcar Locations

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 requiring facilities to be able to report locations of hazmat railcars. 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
Rail Transportation Security – Inspection Authority

Railroads, hazmat receiving facilities located in high threat urban areas (HTUA) and all hazmat shippers must be prepared to report to TSA the location and status of covered railcars in their physical possession when requested by TSA. While railroads have different time standards depending on the size of the railroad, all covered chemical facilities must be able to report this information within 30 minutes of it being requested {§ 1580.103}.

Provide TSA with 24-hour Contact Number 

To allow TSA to initiate the request for information, every covered facility is required to provide TSA with a contact telephone number that is manned 24-hours a day {§1580.103(g)}. This is a separate requirement from the RSC contact information (though the RSC might serve this purpose if they have timely access to the required information). There must be a live person answering the phone, no answering machines or beepers.

The person answering the phone must be able to act on the information request. Answering services that just notify someone to contact TSA will not fulfill the requirement {§1580.103(g)(2)}. The preamble notes that as long as “the individual who answers TSA's telephone call can provide accurate information within the specified timeframe, paragraph (f) {there is an apparent typo in the Federal Register, this should read ‘(g)’} permits the regulated party to use a designated third party or agent to meet this performance standard” (page 72155).

Information Required

Section 1580.103(c) lists the information that must be provided to TSA. The information includes:

Facility Location (City, county and state) Whether it is a shipper or receiver facility Each rail car’s initial and number A list of the total number of railcars containing covered materials broken down by proper shipping name, hazard class and UN number

Since ‘residue quantities’ of PIH materials are excluded from the covered material definition {§ 1580.100(b)(2)}, emptied railcars do not need to be reported. For shipping facilities, once any amount of the covered material has been loaded onto an empty or ‘residue’ car, it would be reportable.

Method of Transmitting Information

Section 1580.103(f) lists a number of different methods that may be used to transmit the information back to TSA. These include:

Electronic transmission in spread sheet, HTML or XML format Fax of a hard copy spread sheet Posting to a secure website approved by TSA

There is a listing for “Another format approved by TSA” {§ 1580.103(f)(6)}. The preamble makes it clear that “TSA anticipates that a railroad carrier or rail hazardous materials facility may use this provision when they receive a request for information on only one rail car and can provide the answer easily by telephone” (page 72155). In other words, for a report on one or two railcars, TSA is willing to take the information verbally over the phone.

There is an interesting omission in this section. The description of the fax format reads “a hard copy spreadsheet in tabular format” (emphasis added) {§ 1580.103(f)(4)}. None of the descriptions of electronic formats includes the phrase ‘in tabular format’. The requirement for tabular format cannot even be assumed to be required because the electronic format descriptions come before the fax description. This is an extremely odd omission.

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.