On December 21, 2006, the Transportation Security Administration (TSA), a component of the Department of Homeland Security (DHS), published a Notice of Proposed Rulemaking that imposes sweeping regulations to protect the nation’s rail transportation infrastructure from terrorist attack. Parties wishing to comment on the proposed regulations must do so by February 20, 2007.
TSA’s efforts represent only one part of new homeland security regulations: the Department of Transportation (DOT) intends to revise regulations for the railway transport of hazardous material while DHS must promulgate anti-terrorism standards for chemical facilities. DOT and DHS published notices in the Federal Register on December 21, 2006 and December 28, 2006, respectively. The DOT and DHS proposed regulations will be the subject of forthcoming Alston & Bird advisories.
Recognizing the threat of terrorism to the nation’s rail infrastructure, TSA intends to strengthen rail security with a series of new legal requirements. TSA believes that these requirements are consistent with the government’s risk-management approach to homeland security.
- Broad Scope and Applicability. Virtually all freight carriers, rail transit systems and passenger carriers – to include tourist, scenic, historic and excursion carriers –
are covered by the proposed regulations.
- Special Attention for Hazardous Material. Rail carriers that transport specified categories and quantities of hazardous material will be required to implement security measures beyond what is proposed for non-hazardous material carriers. Interpreting its authority to extend beyond carriers to facilities, TSA also intends to strengthen the security of the hazardous material supply chain. As such, the proposed regulations cover certain facilities that send or receive hazardous material by rail. The hazardous materials affected by the proposed rule include certain explosives, inhalation poisons and liquids, and radiological substances.
- Specific Security Measures. Rail carriers and covered facilities must implement specific security measures to reduce their vulnerability to terrorist attack.
- Sensitive Security Iinformation Ddesignation. TSA proposes to expand the scope of Sensitive Security Information (SSI) to include all segments of the rail transportation infrastructure. The SSI designation protects homeland security information from unauthorized government disclosure.
Reason for the Proposed Regulations
Rail carriers and related facilities have been frequent targets of terrorism. Despite attacks overseas and publicized concern, terrorists have not struck rail carriers or related facilities in the United States. The continued threat has prompted government officials to bolster security through enhanced public-private partnerships and regulation. However, the government believes more regulation is needed to improve security in light of the ongoing terrorist threat, especially among higher-consequence targets such as crowded passenger systems or hazardous material shipments.
Analysis of Specific Security Measures
The proposed regulations require rail carriers and certain covered facilities to implement specific security measures and procedures. These include:
- TSA Security Iinspections. TSA proposes to require all rail carriers and certain covered facilities to submit to TSA security inspections without advance notice. Among other things, TSA will inspect to ensure compliance with the regulations, identify security deficiencies, assess threats and evaluate countermeasures.
- Designation of Rail Security Coordinators (RSCs). TSA proposes to require most rail carriers and certain covered facilities to designate a primary and alternate RSC(s). The RSCs will serve as TSA’s principal point-of-contact with the rail carrier or covered facility regarding security matters. For example, if TSA received threat information affecting a specific rail carrier, TSA would communicate that information to the carrier, as appropriate, via the RSCs. The RSCs must be selected among senior managers whose responsibilities include safety or security and must be available 24 hours a day, 7 days a week.
- Reporting Significant Security Concerns. TSA proposes to require all rail carriers and certain covered facilities to report significant security concerns immediately to TSA.
The government defines significant security concerns to include a broad array of information ranging from surveillance of rail facilities to the seizure of a firearm aboard a train. TSA hopes that this information – when analyzed in conjunction with other intelligence sources and reporting – will help “connect the dots” and identify possible terrorist activities.
- Location and Shipping Iinformation for Hazardous Material. TSA proposes to require rail carriers that transport specified categories and quantities of hazardous material – as well as certain covered facilities that ship or receive such material by rail – to report the material’s physical location and other data to TSA within one hour, if requested. TSA believes that such information will enable it to make better security decisions. During periods of heightened alert, for example, TSA may use such information to make routing decisions that direct hazardous material away from high-risk locations. The proposed regulations do not specify how to obtain real-time geographic information, though TSA does seek commentary on the feasibility of Global Positioning System (GPS) technologies for this purpose.
- Chain of Custody and Control for Hazardous Material. TSA proposes to require rail carriers that transport specified categories and quantities of hazardous material and certain covered facilities to implement chain of custody and control procedures. TSA seeks to reduce the possibility that terrorists will exploit hazardous material during transport, transfer or storage, particularly within the nation’s 46 High Threat Urban Areas (HTUAs). Custody and control procedures will vary, but include inspection, secure storage and recordkeeping.
For specific security measures that must be implemented among rail carriers and certain covered facilities see: