TSA Publishes Rail Security 30-day ICR Extension Notice

Today the Transportation Security Administration published a 30-day information collection request extension notice in the Federal Register (87 FR 28029-28030) for “Rail Transportation Security” (OMB ID# 1652-0051). The 60-day ICR notice was published on December 23, 2021. There are no substantive changes from the previously approved version.

This ICR was first approved back in 2009 and covers the following information collections:

• Chain of Custody Documentation,

• Location and Shipping Information Reporting,

• Railroad Security Coordinator Information, and

• Significant Security Concerns Reporting

NOTE: The links above are to the collection descriptions provided in the 60-day ICR notice. Those descriptions are not usually included in the 30-day ICR notice.

There is one minor oddity about this notice. It reports that the annual burden for the ICR is 112,600 hours, but the 60-day notice (and the currently approved ICR) reported a burden estimate of 112,764 hours. This could be a typo or a very minor correction in calculations. I’ll be able to tell better when the supporting document is posted to the OMB’s website, probably later this week.

The TSA is soliciting comments on this ICR. Comments should be submitted through the OMB’s website by June 9^th, 2022.

FRA Announces Final Rule for Securement of Unattended Equipment

Yesterday the DOT’s Federal Railroad Administration announced that it had submitted their final rule for the securement of unattended equipment to the Federal Register for publication. The announcement also included a link to download a copy [.PDF download] of the rule submitted to the FR. This rule will supersede and modify the provisions of FRA Emergency Order #28 issued after the Lac-Megantic Railroad disaster.

I will not be doing a detailed review of this rule today since the copy available is not the ‘official’ copy of the rule. This means that I cannot provide links to specific portions of the rule in my discussion nor will I be able to give specific dates for the bills effective and compliance dates. It is not currently scheduled to be published in tomorrow’s FR, so I expect that it will be published sometime next week.

The notice of proposed rulemaking was published for this rule in September of last year. Nine public comments were submitted in response to the NPMR.

NOTE: This final rule was not submitted to OMB for review, neither was the NPRM.

Railroad Security

Thanks to an article at ProgressiveRailroading.com I read a recent report by the Teamsters Union that looks at railroad security from an interesting perspective, that of the people that drive the trains and maintain the railroad tracks. While these people are certainly not security experts, their responses to the two different surveys included in this report provide an interesting look at indicators of how extensively the railroads are implementing their security measures.

Now anyone with a basic knowledge of statistics knows that there are limitations on the conclusions that can be drawn about the security program of any specific railroad from the surveys that were the basis for this report. A real assessment of their security would have to be conducted by an unaffiliated outside agency with standardized sets of measurements against established security standards. Unfortunately, there are no such assessments being made, so survey results like those included in this report are all that we have to go on.

The report acknowledges that the railroad industry has taken significant efforts to improve their security since the last survey that the Teamsters undertook in 2005. The report notes that the industry has “expanded security patrols, security training, electronic surveillance, access controls and operates a 24/7 Operations Center” (pg 4). Whether or not these efforts have been effective in reducing the possibility of a successful terrorist attack on railroads is the important question that this report attempts to answer.

Question Wording 

One of the key requirements for a ‘good’ survey is that the questions have to be clear in their intent. A vague question can draw responses that point to different meanings to different responders. Some of the questions in this survey were very vague. For example they asked members of the Brotherhood of Locomotive Engineers and Trainmen (BLET) (pg 10):

“Was the rail yard access secure today?” “Was the equipment access secure today?”

Without a common definition of ‘secure’ the response to these questions could mean a wide variety of things to different people. Even when taking that into consideration the responses to those questions point to a wide spread dissatisfaction with the effectiveness of security measures; the overwhelming response (92% and 86% respectively) is that these areas were not adequately secured.

Question Order 

Even the order that questions are asked can have an important affect on how one can interpret the responses. The two different surveys used similar questions in differing orders to look at the presence of security officers. The BLET survey asked (pg 13):

“Was there a visible rail police presence in the yard today?” “Was today a heightened terrorist alert day?”

The BMWED (Brotherhood of Maintenance of Way Employees Division) survey asked (pg 14):

“Was today a heightened terrorist alert day?” “If yes, were there additional security personnel on duty in the yard or on locomotive?”

The response to the BLET survey tells us something about general rail police security presence (93% said ‘no’) while the BMWED responses only tells us about that security presence on days when there was a heightened alert level (98% said no). The reduction in sample size for the second question is not addressed.

BTW: There was an interesting bit of information about the effectiveness of terror threat level communication produced in the responses to the ‘heightened terrorist alert’ questions; a large number of responders did not know if there was a heightened threat level (58% and 47% respectively) on the day they answered the survey questions.

Employee Observations 

There were a large number of sanitized comments from individual employees included in the report. The report writers are to be commended for their well documented editing to remove information that would allow someone to identify specific locations where security issues were identified. This serves to both protect the facilities and to prevent identification of personnel making negative comments about their employers.

While adding color commentary to the discussion, these comments were entirely one-sided (critical of security) and did not significantly add to the discussion of the overall security of the industry. These apocryphal reports could be significant to local facilities, but I would expect that the Teamsters’ leadership would be less than willing to share that level of information, fearing potential retaliation on the individuals making the comments.

Deserves Consideration 

This report is an important, if somewhat flawed, look at railroad security issues. The report certainly indicates that there are a wide variety of problems with the security at railroad facilities across the country. The problems identified deserve consideration by congressional committees responsible for both homeland security and transportation safety.

CSX RSSM Security Efforts

Two weeks ago I did a posting on a letter that CSX was sending to its customers about their implementation of the recently finalized Rail Security Rule. At the same time that I posted that blog I sent an email to the address provided in the letter asking for some additional information about their efforts. Yesterday I received a very polite and informative reply from Mike Lunsford, Director - Chemical Safety CSXT, addressing some of the issues that were briefly mentioned in their letter. CSXT Progress He reported that during January they are planning on doing field evaluations of each of the more than sixty interchanges that they share with other rail lines. They need to determine which interchanges are going to be ‘attended’ when a Rail Security Sensitive Material shipment arrives to be transferred to that line. They also need to work out the exchange procedures with the other rail line to ensure that those procedures comply with the new § 1580.107. He specifically notes in his email that: “Should any issues be discovered during those evaluations that may impact CSXT shippers or receivers, the company will communicate its findings with the specific companies impacted.” He also points out something that should be obvious to anyone that has implemented government regulations in a complex operational environment; it is not possible to have a single policy or procedure cover every situation. He does state that: “CSXT personnel are currently working to find a solution for each unique situation.” Hazmat Routing vs Rail Security I made the point in my earlier blog that a railroad could use internal rules like those issued by the CSX letter to avoid re-routing RSSM shipments around urban areas; not out of any desire to route through that area, but rather to avoid the loss of revenue associated with turning the shipment over to another rail carrier. There is nothing in Mike Lunsford’s email indicating that CSX intends to do this, but it is certainly a reasonable (from a profit motive perspective) action for a railroad to take. This exemplifies an additional problem that regulators will have in trying to get railroads to use interchange agreements to route RSSM shipments around High Threat Urban Areas (HTUAs). Railroad may legitimately use the § 1580.107 procedures to avoid re-routing these types of shipments. It is a clear example of a regulatory requirement of one agency having a negative affect on a regulatory requirement of another agency. It is true that PHMSA and TSA have different regulatory responsibility. The problem in this case is that there is significant overlap between the requirements of safety and security. The hazmat rail routing rule (PHMSA) was written primarily as a safety regulation with security effects. The railroad security rules (TSA) have safety implications. While there is a memorandum of understanding (MOU) between these two agencies, there is obviously a lack of coordination of efforts. Until such time as these two agencies actually coordinate their respective programs we can expect to see similar conflicts between safety and security regulations.