BACKGROUND INFORMATION

The ATSA gave TSA authority to assess threats to transportation, ensure the adequacy of security measures for cargo transportation, and ensure security in all transportation modes, including those exercised by DOT. Under this authority, TSA published the Rail Transportation Security Final Rule (TSA Rail Security Rule) on November 26, 2008, at 49 CFR § 1520 and § 1580. The TSA Rail Security Rule imposes a number of security-related requirements on chemical facilities that ship or receive certain chemicals in rail cars. These requirements would be in addition to any mandates imposed on facilities pursuant to the Chemical Facility Anti-Terrorism Standards (CFATS) or the Maritime Transportation Security Act (MTSA).

The TSA Rail Security Rule, codified at 49 CFR Part 1580, requires shippers, receivers, and carriers of hazardous materials to:

1. Implement chain of custody requirements for all cars carrying hazardous materials;
2. Create a Rail Security Coordinator (RSC) position to serve as a 24/7 TSA point of contact;
3. Be equipped to report the position of hazardous materials at all times; and
4. Report significant security concerns to TSA.

The TSA Rail Security Rule also requires covered entities to permit TSA officials, at any time and in a reasonable manner, to enter, inspect, and view security records to ensure compliance with applicable provisions. Further, every transfer of custody of rail security-sensitive material (RSSM) must be documented in writing. RSSMs include three categories of hazardous materials, based on DOT's Hazardous Materials Regulations (HMR), codified at 49 CFR 171-180:

1. A rail car with more than 2,268kg (5,000 lbs) of a Division 1.1, 1.2, or 1.3 (explosive) material, as defined in 49 CFR 173.50;
2. A tank car containing any poisonous by inhalation (PIH) material as defined in 49 CFR 171.8; and
3. A rail car with a highway route-controlled quantity of a Class 7 (radioactive) material, as defined in 49 CFR 173.403.

The TSA Rail Security Rule does not apply to tank cars containing only residual amounts of PIH materials.

Any chemical facility that ships rail car quantities of these materials must comply with the provisions of the TSA Rail Security Rule, as must any chemical facility located in any of the 46 High-Threat Urban Areas (HTUAs) that receives rail car quantities of these materials. Receivers and shippers are specifically defined under the TSA Rail Security Rule. A “rail hazardous materials receiver” is an operator of a facility connected to the general rail network that receives or unloads any RSSM. Similarly, a “rail hazardous materials shipper” is any operator connected to the general rail network that “offers, prepares, or loads for transportation by rail” any RSSM.

The TSA Rail Security Rule became effective on December 26, 2008, except for the chain of custody and control requirements, for which the compliance deadline was delayed until April 1, 2009.

Chain of Custody Requirements

Rail hazardous materials shippers have new chain of custody and control obligations, regardless of whether they ship from within a HTUA. All rail hazmat shippers preparing RSSM rail cars for shipment must physically “inspect the rail car before loading for signs of tampering, including closures and seals; other signs that the security of the car may have been compromised; suspicious items or items that do not belong, including the presence of an improvised explosive device.” From the time of that inspection until the freight rail carrier takes physical custody of the rail car, the car must be kept in a “rail secure area.” The transfer of custody must be documented in writing or electronically.

Rail hazardous materials receivers located in a HTUA share responsibility with the delivering freight rail carrier to maintain “positive control” of incoming rail cars during the physical custody transfer of those rail cars. The transfer of custody must be documented in writing or electronically, and the hazmat receiver must keep the rail car in a “rail secure area” until the car is unloaded. Any receiver located in a HTUA may request an exemption if it believes the potential security risk posed by its facility is insufficient to warrant application of the chain of custody provisions.

Rail Security Coordinator (RSC)

Each covered facility is required to designate one primary and at least one alternate Rail Security Coordinator (RSC) at the corporate level. At least one RSC must be available to TSA twenty-four (24) hours a day, seven (7) days a week. The RSC will serve as the “primary contact for intelligence information and security related activities and communications with TSA.” Additionally, the RSC will coordinate “security practices and procedures with appropriate law enforcement and emergency response agencies.”

Rail Security Sensitive Materials Location Requirements

Each covered facility must have procedures in place to identify the location of any rail car containing RSSM “under its physical custody and control.” The facility must be able to report the location and contents of such rail cars to TSA within thirty (30) minutes of being requested to do so by TSA. To expedite these information requests, each covered facility must provide TSA with a phone number that is monitored twenty-four (24) hours a day. A telephone number to an answering service, beeper, or answering machine is not adequate for the purposes of this requirement.

Site Security Reporting

Each covered facility is required to “immediately report potential threats and significant security concerns to DHS by telephoning the Freedom Center at 703-563-3240 or 1-877-456-8722. ” There are ten (10) categories of reportable information:

1. Interference with the train crew;
2. Bomb threats, both specific and non-specific;
3. Reports or discovery of suspicious items that result in the disruption of railroad operations;
4. Suspicious activity occurring on board a train or inside the facility of a freight railroad carrier or a rail hazmat shipper or receiver that results in a disruption of operations;
5. Suspicious activity observed at or around rail cars, facilities, or infrastructure used in the operation of the railroad or rail hazmat shipper or receiver;
6. Discharge, discovery, or seizure of a firearm or other deadly weapon on a train, in a station, terminal, facility, storage yard, or other location used in the operation of the railroad or rail hazmat shipper or receiver;
7. Indications of tampering with rail cars;
8. Information relating to the possible surveillance of a train, facility, storage yard, or other location used in the operation of the railroad or rail hazmat shipper or receiver;
9. Correspondence received by the freight railroad carrier or rail hazmat shipper or receiver indicating a potential threat; and
10. Other incidents involving breaches of security of the freight railroad carrier's or rail hazmat shipper or receiver's operations or facilities.

Sensitive Security Information (SSI)

The TSA Rail Security Rule also added rail security information as a class of information that is considered Sensitive Security Information (SSI).