[Federal Register Volume 71, Number 245 (Thursday, December 21, 2006)]
[Proposed Rules]
[Pages 76852-76888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21512]



[[Page 76851]]

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Part V





Department of Homeland Security





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Transportation Security Administration



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49 CFR Parts 1520 and 1580



Rail Transportation Security; Proposed Rule

  Federal Register / Vol. 71, No. 245 / Thursday, December 21, 2006 / 
Proposed Rules  

[[Page 76852]]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Parts 1520 and 1580

[Docket No. TSA-2006-26514]
RIN 1652-AA51


Rail Transportation Security

AGENCY: Transportation Security Administration, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposal would enhance the security of our Nation's rail 
transportation system. The Transportation Security Administration (TSA) 
proposes security requirements for freight railroad carriers; 
intercity, commuter, and short-haul passenger train service providers; 
rail transit systems; and rail operations at certain, fixed-site 
facilities that ship or receive specified hazardous materials by rail. 
This rule proposes to codify the scope of TSA's existing inspection 
program and to require regulated parties to allow TSA and Department of 
Homeland Security (DHS) officials to enter, inspect, and test property, 
facilities, and records relevant to rail security. This rule also 
proposes that regulated parties designate rail security coordinators 
and report significant security concerns to DHS.
    TSA further proposes that freight rail carriers and certain 
facilities handling hazardous materials be equipped to report location 
and shipping information to TSA upon request and to implement chain of 
custody requirements to ensure a positive and secure exchange of 
specified hazardous materials. TSA also proposes to clarify and extend 
the sensitive security information (SSI) protections to cover certain 
information associated with rail transportation.
    This proposal would allow TSA to enhance rail security by 
coordinating its activities with other Federal agencies, which would 
also avoid duplicative inspections and minimize the compliance burden 
on the regulated parties. This proposed rule is intended to augment 
existing rail transportation laws and regulations that the Department 
of Transportation (DOT) administers. In today's edition of the Federal 
Register, the Pipeline and Hazardous Materials Safety Administration 
(PHMSA) is publishing an NPRM proposing to revise the current 
requirements in the Hazardous Materials Regulations applicable to the 
safe and secure transportation of hazardous materials transported in 
commerce by rail.

DATES: Submit comments by February 20, 2007.

ADDRESSES: You may submit comments, identified by the TSA docket number 
to this rulemaking, using any one of the following methods:
    Comments Filed Electronically: You may submit comments through the 
docket Web site at http://dms.dot.gov. You may also submit comments 
through the Federal eRulemaking portal at http://www.regulations.gov.
    Comments Submitted by Mail, Fax, or In Person: Address or deliver 
your written, signed comments to the Docket Management System, U.S. 
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., 
Washington, DC 20590-0001; Fax: 202-493-2251.
    See SUPPLEMENTARY INFORMATION for format and other information 
about comment submissions.

FOR FURTHER INFORMATION CONTACT: For questions related to rail 
security: Lisa Pena, Transportation Sector Network Management, Freight 
Rail Security, TSA-28, Transportation Security Administration, 601 
South 12th Street, Arlington, VA 22202-4220; telephone (571) 227-4414; 
facsimile (571) 227-1923; e-mail [email protected].
    For legal questions: David H. Kasminoff, Office of Chief Counsel, 
TSA-2, Transportation Security Administration, 601 South 12th Street, 
Arlington, VA 22202-4220; telephone (571) 227-3583; facsimile (571) 
227-1378; e-mail [email protected].

SUPPLEMENTARY INFORMATION: 

Comments Invited

    TSA invites interested persons to participate in this rulemaking by 
submitting written comments, data, or views. We also invite comments 
relating to the economic, environmental, energy, or federalism impacts 
that might result from this rulemaking action. See ADDRESSES above for 
information on where to submit comments.
    With each comment, please include your name and address, identify 
the docket number at the beginning of your comments, and give the 
reason for each comment. The most helpful comments reference a specific 
portion of the rulemaking, explain the reason for any recommended 
change, and include supporting data. You may submit comments and 
material electronically, in person, by mail, or fax as provided under 
ADDRESSES, but please submit your comments and material by only one 
means. If you submit comments by mail or delivery, submit them in two 
copies, in an unbound format, no larger than 8.5 by 11 inches, suitable 
for copying and electronic filing.
    If you want TSA to acknowledge receipt of comments submitted by 
mail, include with your comments a self-addressed, stamped postcard on 
which the docket number appears. We will stamp the date on the postcard 
and mail it to you.
    TSA will file in the public docket all comments received by TSA, 
except for comments containing confidential information and sensitive 
security information (SSI) \1\. TSA will consider all comments received 
on or before the closing date for comments and will consider comments 
filed late to the extent practicable. The docket is available for 
public inspection before and after the comment closing date.
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    \1\ Sensitive Security Information (SSI) is information obtained 
or developed in the conduct of security activities, the disclosure 
of which would constitute an unwarranted invasion of privacy, reveal 
trade secrets or privileged or confidential information, or be 
detrimental to the security of transportation. The protection of SSI 
is governed by 49 CFR part 1520.
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Handling of Confidential or Proprietary Information and Sensitive 
Security Information (SSI) Submitted in Public Comments

    Do not submit comments that include trade secrets, confidential 
commercial or financial information, or SSI to the public regulatory 
docket. Please submit such comments separately from other comments on 
the rulemaking. Comments containing this type of information should be 
appropriately marked as containing such information and submitted by 
mail to the address listed in FOR FURTHER INFORMATION CONTACT section.
    Upon receipt of such comments, TSA will not place the comments in 
the public docket and will handle them in accordance with applicable 
safeguards and restrictions on access. TSA will hold them in a separate 
file to which the public does not have access, and place a note in the 
public docket that TSA has received such materials from the commenter. 
If TSA receives a request to examine or copy this information, TSA will 
treat it as any other request under the Freedom of Information Act 
(FOIA) (5 U.S.C. 552) and DHS' FOIA regulation found in 6 CFR part 5.

Reviewing Comments in the Docket

    Please be aware that anyone is able to search the electronic form 
of all comments received into any of our dockets by the name of the 
individual submitting the comment (or signing the comment, if submitted 
on behalf of an association, business, labor union, etc.).

[[Page 76853]]

You may review the applicable Privacy Act Statement published in the 
Federal Register on April 11, 2000 (65 FR 19477), or you may visit 
http://dms.dot.gov. See also TSA's Systems of Records Notice 006, 68 FR 
49503 (August 18, 2003).
    You may review the comments in the public docket by visiting the 
Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays. The Dockets Office is located on the plaza level of 
the Nassif Building, at the Department of Transportation address 
previously provided under ADDRESSES. Also, you may review public 
dockets on the Internet at http://dms.dot.gov.

Availability of Rulemaking Document

    You can get an electronic copy using the Internet by (1) Searching 
the Department of Transportation's electronic Docket Management System 
(DMS) web page (http://dms.dot.gov/search);
    (2) Accessing the Government Printing Office's web page at http://www.gpoaccess.gov/fr/index.html; or
    (3) Visiting TSA's Security Regulations web page at http://www.tsa.gov and accessing the link for ``Research Center'' at the top 
of the page.
    In addition, copies are available by writing or calling the 
individual in the FOR FURTHER INFORMATION CONTACT section. Be sure to 
identify the docket number of this rulemaking.

Abbreviations and Terms Used in This Document

AEI--Automatic Equipment Identification
Amtrak--National Railroad Passenger Corporation
CBP--Bureau of Customs and Border Protection
FRA--Federal Railroad Administration
FTA--Federal Transit Administration
GPS--Global Positioning System
HMR--Hazardous Materials Regulations
HSPD--Homeland Security Presidential Directive
HTUA--High Threat Urban Area
IED--Improvised Explosive Device
MOU--Memorandum of Understanding
OA--State Safety Oversight Agency
PHMSA--Pipeline and Hazardous Materials Safety Administration
PIH--Material Poisonous by Inhalation (PIH is another term for TIH)
RFID--Radio Frequency Identification
RSC--Rail Security Coordinator
SAFETEA-LU--Safe, Accountable, Flexible, Efficient Transportation 
Equity Act--A Legacy for Users
SD--Security Directive
SSI--Sensitive Security Information
STB--Surface Transportation Board
TIH--Toxic Inhalation Hazard (TIH is another term for PIH)
UASI--Urban Areas Security Initiative

Outline of Proposed Rulemaking

I. Background and Purpose
    A. Summary of Proposed Requirements
    B. Basis for the Proposed Rule
II. Statutory and Regulatory Authorities
    A. TSA Authorities to Regulate Rail Security
    B. Department of Transportation Regulation of Rail Security
III. TSA's Proposed Rail Security Requirements
    A. Comparison of TSA's Proposed Rule with the DOT Regulatory 
Scheme
    B. Scope and Applicability
    1. Freight Railroad Carriers
    2. Rail Operations at Certain Fixed-Site Facilities
    3. Passenger Rail (including Rail Transit Systems)
    4. Other Rail Operations
    5. Specified Hazardous Materials
    6. High Threat Urban Areas
    C. Requirements
    1. Sensitive Security Information
    2. TSA Inspections
    3. Designation of Rail Security Coordinators
    4. Location and Shipping Information for Certain Rail Cars
    5. Reporting Significant Security Concerns
    a. Passenger Railroad Carriers and Rail Transit Systems
    b. Freight Rail Including Rail Hazardous Materials Shippers and 
Rail Hazardous Materials Receivers
    6. Chain of Custody and Control
IV. Section-by-Section Analysis of Proposed Rule
V. Rulemaking Analyses and Notices
    A. Executive Order 12866 Assessment (Regulatory Planning and 
Review)
    B. Regulatory Flexibility Act Assessment
    C. Paperwork Reduction Act
    D. International Trade Impact Assessment
    E. Unfunded Mandates Reform Act Analyses
    F. Executive Order 13132 (Federalism)
    G. Environmental Analysis
    H. Energy Impact Analysis

I. Background and Purpose

A. Summary of Proposed Requirements

    TSA proposes security regulations that would cover a broad spectrum 
of the rail transportation sector, including freight railroad carriers, 
passenger railroad carriers, rail transit systems, and rail operations 
at certain facilities that ship or receive specified categories and 
quantities of hazardous materials. TSA proposes these regulations to 
enhance the security of rail transportation and to address potential 
security threats to rail transportation. TSA intends for these proposed 
regulations to build upon existing Department of Transportation (DOT) 
procedures and requirements.
    TSA's proposal is also intended to augment a DOT proposal to revise 
the current requirements in the Hazardous Materials Regulations 
applicable to the safe and secure transportation of hazardous materials 
transported in commerce by rail. In this regard, in today's edition of 
the Federal Register, PHMSA is publishing an NPRM proposing to require 
railroad carriers to compile annual data on specified shipments of 
hazardous materials, use the data to analyze safety and security risks 
along rail transportation routes where those materials are transported, 
assess alternative routing options, and make routing decisions based on 
those assessments. PHMSA's proposal would also clarify its current 
security plan requirements to address en route storage, delays in 
transit, delivery notification, and impose additional security 
inspection requirements for hazardous materials shipments.
    TSA's rule proposes to apply several general requirements to all 
freight and passenger railroad carriers, certain facilities that ship 
or receive specified hazardous materials by rail, and rail transit 
systems:
     Rail Security Coordinator. Covered entities must designate 
a rail security coordinator (RSC) and at least one alternate RSC to be 
available to TSA on a twenty-four hour, seven day per week basis to 
serve as primary contact for receipt of intelligence information and 
other security-related activities.
     Reporting. Covered entities must immediately report 
incidents, potential threats, and significant security concerns to TSA.
     TSA Inspection. Covered entities must allow TSA and DHS 
officials working with TSA to enter and conduct inspections, tests, and 
such other duties to carry out TSA's statutory responsibilities. This 
may include copying of records.
     Sensitive Security Information. This rule clarifies and 
extends the protection afforded to sensitive security information (SSI) 
in rail transportation and further identifies covered persons to 
include railroad carriers, certain rail operations at facilities, and 
rail transit systems.
    The rule also proposes to apply additional requirements to freight 
railroad carriers and certain facilities that ship or receive specified 
hazardous materials by rail:
     Location and Shipping Information. Covered entities must 
provide to TSA, upon request, the location and shipping information of 
rail cars within their physical custody or control that contain a 
specified category and quantity of hazardous material. The information 
must be provided to TSA no later than one hour after receiving the 
request.

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     Chain of Custody and Control. Covered entities must 
provide for a secure chain of custody and control of rail cars 
containing a specified quantity and type of hazardous material.
    TSA proposes three categories and quantities of specified hazardous 
materials to which the proposed requirements in this NPRM would apply. 
The definitions are taken from DOT's Hazardous Materials Regulations 
(49 CFR Parts 171-180), as follows:
    (1) A rail car containing more than 2,268 kg (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 a material poisonous by inhalation as 
defined in 49 CFR 171.8, including Division 2.3 gases poisonous by 
inhalation, as set forth in 49 CFR 173.115 (c) and Division 6.1 liquids 
meeting the defining criteria in 49 CFR 173.132(a)(1)(iii) and assigned 
to hazard zone A or hazard zone B in accordance with 49 CFR 173.133(a), 
other than residue; and
    (3) A rail car containing a highway route-controlled quantity of a 
Class 7 (radioactive) material, as defined in 49 CFR 173.403.
    Appendix B to proposed part 1580, reproduced as Table 1 below, 
presents a brief summary of the proposed security measures required for 
the different categories of rail transportation entities that this rule 
would govern.

                                                        Table 1.--TSA Rail Security NPRM Summary
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                                                                           Rail operations
                                             Freight          Freight         at certain    Rail operations
                                             railroad         railroad     facilities that     at certain       Passenger         Certain other rail
                                           carriers NOT       carriers       ship (i.e.,    facilities that      railroad        operations (private,
   Proposed security measure and rule      transporting     transporting   offer, prepare,     receive or      carriers and    business/office, circus,
                section                     specified        specified       or load for         unload        rail transit       tourist, historic,
                                            hazardous        hazardous     transportation)     hazardous         systems              excursion)
                                            materials        materials        hazardous        materials
                                                           (1580.100(b))      materials       within HTUA
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Allow TSA to inspect (1580.5)..........               X                X                X                X                X                X
Appoint rail security coordinator                     X                X                X                X                X   Only if notified in
 (1580.101 freight; 1580.201 passenger).                                                                                       writing that security
                                                                                                                               threat exists
Report significant security concerns                  X                X                X                X                X                X
 (1580.105 freight; 1580.203 passenger).
Provide location and shipping            ...............               X                X                X   ...............  ..........................
 information for rail cars containing
 specified hazardous materials if
 requested (1580.103).
Chain of custody and control             ...............               X                X                X
 requirements for transport of
 specified hazardous materials that are
 or may be in HTUA (1580.107).
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B. Basis for the Proposed Rule

    In developing this rule, TSA sought to identify and address threats 
to rail transportation. With respect to passenger rail, TSA recognizes 
that passenger railroad carriers, commuter operations, and subway 
systems are high consequence targets in terms of potential loss of life 
and economic disruption. They carry large numbers of people in a 
confined environment, offer the opportunity for specific populations to 
be targeted at particular destinations, and often have stations located 
below or adjacent to high profile government buildings, major office 
complexes, and iconic structures. Terrorist bombings since 1995 
highlight the need for improved government access to, and monitoring 
of, transportation of passengers by rail. Terrorists have attacked the 
Tokyo subway system (1995); areas in and around the Moscow subway 
system (2000, 2001, and 2004); Madrid commuter trains (2004); the 
London Underground system (2005); and the train system in Mumbai 
(formerly known as Bombay), India (2006).
    TSA also considered the threats that face freight rail 
transportation. Due to the open infrastructure of the rail 
transportation system, freight trains can be particularly vulnerable to 
attack. Currently, rail carriers and shippers lack positive chain of 
custody and control procedures for rail cars as they move through the 
transportation system (e.g., as entities load the rail cars at 
originating facilities, as carriers transport the cars over the tracks, 
and as entities unload the cars at receiving facilities). This can 
present a significant vulnerability. Whenever entities stop rail cars 
in transit and interchange them without appropriate security measures, 
their practices can create security vulnerabilities. Freight trains 
transporting hazardous materials are of even more concern, because an 
attack on those trains (e.g., through the use of improvised explosive 
devices (IEDs) \2\) could result in the release of hazardous materials.
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    \2\ An IED is a device fabricated in an improvised manner that 
incorporates in its design explosives or destructive, lethal, 
noxious, pyrotechnic, or incendiary chemicals. It generally includes 
a power supply, a switch or timer, and a detonator or initiator.
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    TSA is taking a risk-based approach by focusing on shipments of 
certain hazardous materials at this time. Thus, this rulemaking is 
focused on establishing chain of custody and control procedures for 
rail cars that pose the greatest security vulnerability. While an IED 
attached to any rail car (such as a car transporting coal or household 
appliances) would obviously cause major damage to that car, and its 
contents upon detonation, the more likely scenario is that terrorists 
would target a rail car containing certain hazardous materials in order 
to inflict the most damage in terms of loss of life and property, and 
economic effect.
    To determine which hazardous materials to identify in this proposed 
regulation, TSA looked to the hazardous materials that the Pipeline and 
Hazardous Materials Safety Administration (PHMSA) identified in

[[Page 76855]]

its HM-232 rule.\3\ From the list in HM-232, TSA identified three 
categories \4\ of hazardous materials that pose the greatest risk: 
materials that are poisonous by inhalation (PIH),\5\ explosive, and 
radioactive. In this proposed rule, TSA applies specific requirements 
to certain carriers and facilities that deal with these materials.
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    \3\ See Section II.B. of this preamble for a detailed discussion 
of the HM-232 rule.
    \4\ TSA also identified specified quantities of those hazardous 
materials. See Section I.B. of this preamble or 49 CFR 1580.100(b) 
for a list of the quantities.
    \5\ PIH materials are gases or liquids that are known or 
presumed on the basis of tests to be so toxic to humans as to pose a 
hazard to health during transportation. See 69 FR 50988. 49 CFR 
171.8, 173.115, and 173.132.
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    PHMSA considers the phrases ``material poisonous by inhalation,'' 
``poisonous inhalation hazard,'' and ``toxic inhalation hazard'' to be 
synonymous and interchangeable. However, PHMSA referred to such 
material in the HM-232 rule text exclusively by the term ``material 
poisonous by inhalation.'' See 49 CFR 172.800(a)(3). In this NPRM, TSA 
uses a subset of the HM-232 list as the criterion for portions of this 
rule, and so this rule uses the term PIH (and also ``material poisonous 
by inhalation'') to maintain consistency with the PHMSA HM-232 rule.
    Each of these three hazardous materials presents serious risks. The 
release of PIH materials in a densely populated urban area would have 
catastrophic consequences. Such a release would endanger significant 
numbers of people. An example of this was seen in the January 6, 2005, 
rail accident in Graniteville, South Carolina. A Norfolk Southern 
Railway Company freight train carrying chlorine was unexpectedly 
diverted from the main track onto a rail spur. The train struck a 
standing train on the rail spur, derailing three locomotives and 
sixteen rail cars and rupturing a tank car carrying chlorine. Even in 
this sparsely populated area, the collision resulted in fatal injuries 
to eight citizens and one railroad employee, injuries to 630 people, 
and the evacuation of 5,400 local residents. Damages to equipment and 
track totaled more than $2.3 million. While the accident was not the 
result of a terrorist attack, it nonetheless illustrates the danger of 
transporting PIH materials and the damage that can result from a 
release.
    Although the number of rail shipments carrying explosives and 
radioactive materials is relatively low, a release of these materials 
could cause serious and devastating harm. If terrorists detonated 
certain explosives \6\ at critical points in the transportation cycle, 
they could cause significant loss of life, damage to infrastructure, 
and harm to the national economy. If terrorists perpetrated an attack 
against a rail car transporting certain radioactive materials,\7\ they 
could endanger a significant number of people as well as disrupt the 
supply chain as a result of contamination.
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    \6\ Explosives in Class 1 are divided into six divisions. 
However, as discussed in section III.A. of this preamble, TSA 
proposes to apply subpart B to part 1580 only to rail cars 
containing more than 2,268 kg (5,000 lbs) of a Division 1.1, 1.2, or 
1.3 explosive material.
    \7\ See 49 CFR 173, subpart H.
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    The proposed rule will address the above-identified threats to rail 
transportation. The provisions in this proposed rule, including those 
allowing for TSA inspections and those requiring the designation of 
Rail Security Coordinators and the reporting of suspicious incidents, 
will improve TSA's ability to inspect rail operations and communicate 
with railroads and rail facilities. This will provide TSA and DHS with 
better information and monitoring capabilities concerning potential 
transportation security incidents involving rail travel. Also, the 
requirements related to hazardous materials, such as additional 
monitoring and protection of certain rail cars and increased 
availability of location and tracking information for certain rail 
cars, will decrease the vulnerabilities of these hazardous materials 
shipments to attack. Through these measures, TSA will significantly 
increase its domain awareness regarding rail security. TSA will 
continue to work with all involved entities to improve rail security.

II. Statutory and Regulatory Authorities

A. TSA Authorities To Regulate Rail Security

    TSA has the primary federal role in enhancing security for all 
modes of transportation. Under the Aviation and Transportation Security 
Act (ATSA) \8\ and delegated authority from the Secretary of Homeland 
Security, TSA has broad responsibility and authority for ``security in 
all modes of transportation * * * including security responsibilities * 
* * over modes of transportation that are exercised by the Department 
of Transportation.'' \9\
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    \8\ Pub. L. 107-71, 115 Stat. 597 (November 19, 2001).
    \9\ See 49 U.S.C. 114(d). The TSA Assistant Secretary's current 
authorities under ATSA have been delegated to him by the Secretary 
of Homeland Security. Section 403(2) of the Homeland Security Act 
(HSA) of 2002, Pub. L. 107-296, 116 Stat. 2315 (2002), transferred 
all functions of TSA, including those of the Secretary of 
Transportation and the Under Secretary of Transportation of Security 
related to TSA, to the Secretary of Homeland Security. Pursuant to 
DHS Delegation Number 7060.2, the Secretary delegated to the 
Assistant Secretary (then referred to as the Administrator of TSA), 
subject to the Secretary's guidance and control, the authority 
vested in the Secretary with respect to TSA, including that in 
section 403(2) of the HSA.
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    TSA has additional authorities as well. TSA is specifically 
empowered to develop policies, strategies, and plans for dealing with 
threats to transportation.\10\ As part of its security mission, TSA is 
responsible for assessing intelligence and other information to 
identify individuals who pose a threat to transportation security and 
to coordinate countermeasures with other Federal agencies to address 
such threats.\11\ TSA enforces security-related regulations and 
requirements,\12\ ensures the adequacy of security measures for the 
transportation of cargo,\13\ oversees the implementation and ensures 
the adequacy of security measures at transportation facilities,\14\ and 
carries out other appropriate duties relating to transportation 
security.\15\ TSA has broad regulatory authority to achieve ATSA's 
objectives, and may issue, rescind, and revise such regulations as are 
necessary to carry out TSA functions.\16\ TSA is also charged with 
serving as the primary liaison for transportation security to the 
intelligence and law enforcement communities.\17\
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    \10\ 49 U.S.C. 114(f)(3).
    \11\ 49 U.S.C. 114(f)(1)-(5); (h)(1)-(4).
    \12\ 49 U.S.C. 114(f)(7).
    \13\ 49 U.S.C. 114(f)(10).
    \14\ 49 U.S.C. 114(f)(11).
    \15\ 49 U.S.C. 114(f)(15).
    \16\ 49 U.S.C. 114(l)(1).
    \17\ 49 U.S.C. 114(f)(1) and (5).
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    TSA's authority with respect to transportation security is 
comprehensive and supported with specific powers related to the 
development and enforcement of regulations, SDs, security plans, and 
other requirements. Accordingly, under this authority, TSA may assess a 
security risk for any mode of transportation, develop security measures 
for dealing with that risk, and enforce compliance with those measures.
    On December 17, 2003, the President issued Homeland Security 
Presidential Directive 7 (HSPD-7, Critical Infrastructure 
Identification, Prioritization, and Protection), which ``establishes a 
national policy for Federal departments and agencies to identify and 
prioritize United States critical infrastructure and key resources and 
to protect them from terrorist attacks.'' \18\ In recognition of the 
lead

[[Page 76856]]

role that DHS has for transportation security, and consistent with the 
powers that ATSA grants to TSA, the directive provides that the roles 
and responsibilities of the Secretary of DHS include coordinating 
protection activities for ``transportation systems, including mass 
transit, aviation, maritime, ground/surface, and rail and pipeline 
systems.'' \19\ In furtherance of this coordination process, HSPD-7 
provides that DHS and DOT will ``collaborate on all matters relating to 
transportation security and transportation infrastructure protection.'' 
\20\
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    \18\ HSPD-7, Paragraph 1.
    \19\ HSPD-7, Paragraph 15.
    \20\ HSPD-7, Paragraph 22(h).
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    To ensure that this collaboration occurs, DHS and DOT entered into 
a Memorandum of Understanding (MOU) on September 28, 2004. In 
accordance with the September 2004 MOU, both Departments share 
responsibility for rail and hazardous materials transportation 
security. The two Departments consult and coordinate on security-
related rail and hazardous materials transportation requirements to 
ensure consistency with overall security policy goals and objectives 
and to ensure that the Federal agencies do not confront the regulated 
industry with inconsistent security guidance or requirements. The close 
coordination that has led to these proposed regulations is consistent 
with the MOU.
    On August 9, 2006, PHMSA and TSA signed an annex to the September 
28, 2004 DOT-DHS Memorandum of Understanding (MOU) on Roles and 
Responsibilities. The purpose of the annex is to delineate clear lines 
of authority and responsibility and promote communication, efficiency, 
and non-duplication of effort through cooperation and collaboration in 
the area of hazardous materials transportation security based on 
existing legal authorities and core competencies. The annex 
acknowledges that DHS has lead authority and primary responsibility for 
security activities in all modes of transportation, and notes that TSA 
is the lead Federal entity for transportation security, including 
hazardous materials security. Similarly, on September 28, 2006, FRA and 
TSA signed an annex to address each agency's roles and responsibilities 
for rail transportation security. The FRA-TSA annex recognizes that TSA 
acts as the lead Federal entity for transportation security generally 
and rail security in particular. The annex also recognizes that FRA has 
authority over every area of railroad safety (including security), and 
that FRA enforces PHMSA's hazardous material regulations. The FRA-TSA 
annex includes procedures for coordinating (1) planning, inspection, 
training, and enforcement activities; (2) criticality and vulnerability 
assessments and security reviews; (3) communicating with affected 
stakeholders; and (4) use of personnel and resources.
    TSA's proposed requirements are designed to strengthen the existing 
regulatory scheme. TSA developed these proposed regulations, which are 
consistent with DOT's regulations, through close coordination with DOT. 
The discussion below explains the current and proposed DOT requirements 
and how TSA's proposed rule would fit into the regulatory framework DOT 
has established.

B. Department of Transportation Regulation of Rail Security

    DOT regulates and oversees rail security through three of its modal 
administrations: The Pipeline and Hazardous Materials Safety 
Administration (PHMSA), the Federal Railroad Administration (FRA), and 
the Federal Transit Administration (FTA).
    The Federal hazardous materials transportation law (Federal hazmat 
law),\21\ authorizes the Secretary of Transportation to establish 
regulations for the safe transportation, including security, of 
hazardous materials in intrastate, interstate, and foreign 
commerce.\22\ The Secretary of Transportation has delegated this 
authority to PHMSA.\23\ See 49 CFR 1.53; see 49 CFR parts 171-180. 
PHMSA has issued several rulemakings addressing rail security under 
this authority.
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    \21\ 49 U.S.C. 5101 et seq., as amended by sec. 1711 of the 
Homeland Security Act of 2002, (Pub. L. 107-296, Nov. 25, 2002) and 
Title VII of the Safe, Accountable, Flexible and Efficient 
Transportation Equity Act: Legacy for Users (SAFETEA-LU) (Pub. L. 
109-59, Aug. 10, 2005).
    \22\ A hazardous material is defined as a substance or material, 
or a group or class of material, (including an explosive; 
radioactive material; infectious substance; flammable or combustible 
liquid, solid, or gas; toxic, oxidizing, or corrosive material; and 
compressed gas) when transported in a particular amount or form that 
the Secretary of Transportation determines may pose an unreasonable 
risk to health and safety or property. See 49 U.S.C. 5102(2) and 
5103(a).
    \23\ PHMSA is the Federal agency charged with protecting the 
Nation from the risks to life, health, property, and the environment 
inherent in the commercial transportation of hazardous materials by 
all modes of transportation, including pipelines.
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    On March 25, 2003, PHMSA published a final rule, referred to as HM-
232, which requires covered persons to develop and implement security 
plans. Covered persons include those who offer certain hazardous 
materials for transportation in commerce and those who transport 
certain hazardous materials in commerce.\24\ The HM-232 final rule 
requires persons who offer for transportation or transport the 
following hazardous materials to develop and implement security plans: 
(1) A highway route-controlled quantity of a Class 7 (radioactive) 
material; (2) more than 25 kg (55 lbs) of a Division 1.1, 1.2, or 1.3 
(explosive) material; (3) more than 1 L (1.06 qt) per package of a 
material poisonous by inhalation in hazard zone A; (4) a shipment in a 
bulk packaging with a capacity equal to or greater than 13,248 L (3,500 
gal) for liquids or gases or greater than 13.24 cubic meters (468 cubic 
feet) for solids; (5) infectious substances listed as select agents by 
the Centers for Disease Control and Prevention (CDC) in 42 CFR part 73; 
and (6) a shipment that requires placarding.\25\ In effect, then, the 
HM-232 final rule applies the security plan requirement to a shipper or 
carrier of a hazardous material in an amount that requires placarding 
and to select agents. HM-232 requires covered persons to perform an 
assessment of the transportation security risks associated with the 
materials they handle and to implement methods for addressing those 
risks. At a minimum, the security plan must address personnel security, 
prevention of unauthorized access, en route security, and training of 
employees.
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    \24\ 68 FR 14510. See 49 CFR 172.800, 172.802, and 172.804. 
PHMSA amended HM-232 with HM-240 (DOT Docket No. PHMSA-2005-22208, 
70 FR 73156 (December 5, 2005)). HM-240 revised terminology, 
definitions, and requirements for consistency with the Hazardous 
Materials Safety and Security Reauthorization Act of 2005, Title VII 
of Pub. L. 109-59, 119 Stat. 1144 (August 10, 2005).
    \25\ Under the Hazardous Materials Regulations, placards are 
required for hazardous materials that pose significant 
transportation risks. Placards use colors, symbols, numbers and 
text. This is part of DOT's system of hazard communication. The 
system notifies emergency responders and those who must handle the 
packages in the course of their employment how to handle the items 
in transportation and in the event of an accident.
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    Other PHMSA regulations seek to reduce the risks to safety and 
security of leaving loaded rail cars unattended for long periods of 
time. Pursuant to 49 CFR 174.14 and 174.16, a carrier must forward each 
shipment of hazardous materials ``promptly and within 48 hours 
(Saturday, Sundays, and holidays excluded)'' after the carrier accepts 
the shipment at the originating point or the carrier receives the 
shipment at any yard, transfer station, or interchange point. Where 
there is only biweekly or weekly service, the carrier must forward a 
shipment of hazardous materials in the first available train. 
Additionally, carriers are prohibited from holding, subject to 
forwarding orders, tank cars

[[Page 76857]]

loaded with Division 2.1 (flammable gas), Division 2.3 (poisonous gas) 
or Class 3 (flammable liquid) materials.
    PHMSA, in consultation with the Federal Railroad Administration 
(FRA) and TSA, has recently proposed to revise the current requirements 
in the hazardous materials regulations (HMR) applicable to the safe and 
secure transportation of hazardous materials transported in commerce by 
freight rail (Route Analysis NPRM). Among other things, PHMSA is 
proposing to require freight railroad carriers to compile annual data 
on specified shipments of hazardous materials; use the data to analyze 
safety and security risks along rail transportation routes where those 
materials are transported; assess alternative routing options; and make 
routing decisions based on those assessments.
    FRA, the agency within DOT responsible for railroad safety, 
administers the Federal railroad safety laws, which provide FRA with 
authority over ``every area of railroad safety.'' \26\ 49 U.S.C. 
20103(a). The agency has issued a wide range of safety regulations. In 
addition, FRA enforces PHMSA's hazardous materials regulations, 
including the HM-232 provisions requiring security plans. See 49 CFR 
1.49.
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    \26\ The term ``Federal railroad safety laws'' means the 
provisions of law generally at 49 U.S.C. subtitle V, part A or 49 
U.S.C. chapter 51 or 57 and the rules, regulations, orders, and 
standards issued under any of those provisions. See Pub. L. 103-272 
(1994).
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    The FTA provides financial assistance to support a variety of 
locally planned, constructed, and operated public transportation 
systems throughout the United States. Under 49 CFR part 659, FTA 
manages State Safety Oversight for Rail Fixed Guideway Systems.\27\ The 
regulation requires states to oversee the safety and security of rail 
fixed guideway systems \28\ through designated Oversight Agencies 
(OAs).\29\ The OAs must require the transit agencies to develop and 
implement written system safety program plans and system security plans 
\30\ and to conduct annual reviews of their plans.\31\ Additionally, 
the OAs must require transit agencies to develop and document a process 
for the performance of on-going internal safety and security reviews in 
their system safety program plans.\32\ Finally, the OA must require 
each rail transit system under its responsibility to notify the OA 
within two hours of an accident or other incident meeting specified 
parameters, including loss of life, injuries requiring immediate 
medical attention, property damage to rail transit vehicles or 
facilities of $25,000 or more, evacuation due to life safety, collision 
at a grade crossing, a main line derailment, or a collision between 
rail transit vehicles.\33\
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    \27\ In 1991, Congress required, for the first time, that FTA 
establish a program providing for the State-conducted oversight of 
the safety and security of rail systems not regulated by FRA. See 
Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 
102-240, Sec. 3029, 49 U.S.C. 5330. FTA published its final rule 
adopting a new part 659, Rail Fixed Guideway Systems; State Safety 
Oversight, on December 27, 1995 (60 FR 67034); the final rule went 
into effect on January 1996. FTA published a revision of the final 
rule on April 29, 2005 (70 FR 22562) to add clarifying sections, 
further specify what the State must require to monitor safety and 
security on non-FRA rail systems, and incorporate into the body of 
the regulation material previously incorporated by reference.
    \28\ FTA defines a rail fixed guideway system in 49 CFR 659.5 to 
mean any light, heavy, rapid rail system, monorail, inclined plane, 
funicular, trolley, or automated guideway that: (1) Is not regulated 
by FRA; and (2) Is included in FTA's calculation of fixed guideway 
route miles or receives funding under FTA's formula program for 
urbanized areas (49 U.S.C. 5336); or (3) Has submitted documentation 
to FTA indicating its intent to be included in FTA's calculation of 
fixed guideway route miles to receive funding under FTA's formula 
program for urbanized areas (49 U.S.C. 5336).
    \29\ See 49 CFR 659.1.
    \30\ See 49 CFR 659.17 and 659.21. For a list of the required 
elements for each plan, see 49 CFR 659.19 and 659.23.
    \31\ See 49 CFR 659.25.
    \32\ See 49 CFR 659.27.
    \33\ See 49 CFR 659.33.
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III. TSA's Proposed Rail Security Requirements

    TSA has designed this rule so that it would build on DOT's existing 
regulatory scheme. This rule would augment existing and proposed PHMSA 
requirements, address security vulnerabilities in the freight rail 
regulatory scheme, and complement the DOT regulatory scheme regarding 
passenger rail and mass transit.

A. Comparison of TSA's Proposed Rule With the DOT Regulatory Scheme

    First, TSA's NPRM would expand the scope of pre-shipment 
inspections of rail cars containing hazardous materials. Existing PHMSA 
regulations require freight railroad carriers to perform a safety 
inspection at the ground level of each rail car containing hazardous 
materials.\34\ The proposed PHMSA Route Analysis rule would require 
carriers to also inspect for signs of tampering with rail cars 
(including closures and seals) during the pre-shipment inspection 
(e.g., look for IEDs, suspicious items, or any other items that do not 
belong).\35\
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    \34\ Pursuant to 49 CFR 174.9, a carrier must inspect at ground 
level for required markings, labels, placards, securement of 
closures, and leakage. A ``ground level'' inspection is an 
inspection performed with the railroad employee inspecting the rail 
car while standing level with the car, without the employee climbing 
on top of the car.
    \35\ PHMSA intends for these requirements to address those 
situations where unauthorized individuals attempt to cause a 
security incident by tampering with rail cars (e.g., introducing an 
IED to a car to detonate an explosion or to cause a hazardous 
materials release).
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    TSA's NPRM would expand these inspections even further. Existing 
and proposed DOT regulations include pre-shipment inspections for 
railroad carriers; however, they do not require security-specific 
inspections for rail hazardous materials shippers. TSA's proposal would 
require certain rail hazardous materials shippers to physically inspect 
a rail car from a security perspective (including closures and seals) 
before transferring custody of a rail car to a freight railroad 
carrier. Shippers would have to inspect for signs of tampering; for any 
other signs that the security of the car may have been compromised; and 
for suspicious items that do not belong, including the presence of an 
IED.
    Second, TSA's NPRM would address other security vulnerabilities 
that currently exist in the freight rail regulatory scheme. Current 
regulations do not include chain of custody requirements and, 
therefore, current regulations do not address security vulnerabilities 
for hazmat cars in transit or at interchanges. To address this issue, 
TSA proposes chain of custody requirements, including requirements for 
monitored and protected transfer locations, and documented transfers. 
In addition, current regulations do not contain requirements for rail 
car location reporting and, therefore, do not address the Federal 
Government's need for prompt, critical information if it becomes 
necessary to reroute, stop, or otherwise protect shipments and 
populations to address specific security threats or incidents. To 
address this issue, TSA proposes rail car location and information 
reporting requirements.
    Third, this NPRM would complement the existing DOT regulatory 
scheme for passenger and rail mass transit. This NPRM would enhance 
oversight of rail fixed guideway systems. FTA's regulations, at 49 CFR 
part 659, direct rail transit agencies and OAs to conduct security 
reviews. FTA does not oversee these reviews. This proposed rule would 
augment these requirements. TSA inspectors would provide the FTA and 
responsible State agencies with a field presence, which has not existed 
previously, to monitor and assess

[[Page 76858]]

compliance with security requirements.\36\
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    \36\ Moreover, since TSA's inspection authority over rail 
transit systems is not limited to rail fixed guideway systems 
receiving or seeking to receive funds under FTA's formula program 
for urbanized areas and is therefore broader than the scope of 
coverage of FTA's regulation (49 CFR part 659), TSA may be able to 
share information on assessments of the security of rail transit 
systems not currently subject to OA security reviews.
---------------------------------------------------------------------------

    TSA's NPRM would also complement the existing DOT regulatory scheme 
for passenger and rail mass transit by allowing TSA inspections, 
requiring the designation and use of RSCs, and requiring the reporting 
of threats and significant security concerns. TSA's proposed 
requirements would enhance the agency's ability to maximize its domain 
awareness and recognize possible national trends involving security 
issues. As a complement to FRA's exercise of its safety authority over 
covered passenger rail operations involving ``every area of railroad 
safety'' (see 49 U.S.C. 20103(a)), and FTA's oversight of rail fixed 
guideway systems (see 49 U.S.C. 5330 and 49 CFR part 659), TSA would 
assess threats to security, monitor the state of awareness and 
readiness throughout the passenger rail and rail mass transit sectors, 
determine the adequacy of an owner or operator's security measures, and 
identify security gaps.

B. Scope and Applicability

    Consistent with ATSA's broad authorities and with the fact that 
terrorists may target any part of the rail transportation system, this 
NPRM would impose requirements on all types of rail operations, 
including freight railroad carriers; intercity, commuter, and short-
haul railroad passenger train service; and rail transit systems. The 
rule would also apply to rail hazardous materials shippers that offer, 
prepare, or load for transportation in commerce by rail one or more of 
the specified categories and quantities of hazardous materials. Also, 
the rule would apply to rail hazardous materials receivers that receive 
or unload the specified hazardous materials by rail in a High Threat 
Urban Area (HTUA).\37\ In addition, the rule would cover the operation 
of private rail cars that are on or connected to the general railroad 
system of transportation and tourist, scenic, historic, and excursion 
operations, whether on or off the general railroad system of 
transportation.
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    \37\ The applicability of certain provisions of this proposed 
rule depends on which hazardous materials are involved and whether 
the materials are located in HTUAs. For a discussion of these 
issues, see sections III.A.5. and III.A.6. of the preamble.
---------------------------------------------------------------------------

    With respect to freight railroad carriers and rail hazardous 
materials facilities, an important issue relating to the scope of the 
rule is which activities are transportation-related and, therefore, 
within TSA's jurisdiction. This section of the preamble discusses the 
scope of the applicability of the proposed rule to freight railroad 
operators, rail hazardous materials shippers, rail hazardous materials 
receivers, and passenger railroad carriers. It also identifies 
activities that are transportation-related and, therefore, within the 
scope of the proposed rule. TSA defines the term ``transportation,'' as 
related to security purposes, more broadly than PHMSA defines the term, 
as related to safety purposes.
1. Freight Railroad Carriers
    This NPRM proposes requirements that apply to all freight railroad 
carriers, except for those carriers whose entire operations are 
confined to an industrial installation. The proposed rule would not 
apply to, for example, a plant railroad carrier in a steel mill that 
serves only the needs of the plant itself and does not go beyond the 
plant's boundaries. Of course, even where a railroad carrier operates 
outside the general system of transportation, other railroad carriers 
that are part of that general system may enter the first railroad 
carrier's property. For example, a major railroad carrier may enter a 
chemical or auto plant via an industrial lead to pick up or set out 
rail cars. In such cases, the railroad carrier that is part of the 
general system would remain part of the general system while inside the 
installation, and TSA's proposed regulations would continue to cover 
all of its activities. Moreover, although TSA would not directly 
regulate the transportation operations of the railroad carrier located 
inside the installation that take place solely for the carrier's own 
corporate purpose, TSA would assert its security authority over all 
security matters involving that point of connection, to the extent the 
general system railroad carrier is engaging in transportation 
activities with the installation railroad carrier at a point of 
connection to the general system.
    The applicability of the proposed freight railroad carrier 
requirements vary depending on whether the carrier transports specified 
categories and quantities of hazardous materials and whether these 
materials are or may be located in HTUAs. The regulation would, 
however, require all freight railroad carriers (regardless of whether 
they transport any hazardous materials), as well as freight railroad 
carriers hosting passenger operations,\38\ to allow TSA inspections, 
have an RSC, and report significant security concerns.
---------------------------------------------------------------------------

    \38\ The term ``hosting'' refers to the situation where a 
passenger operation receives trackage rights to operate over track 
that another freight or passenger railroad carrier owns or operates.
---------------------------------------------------------------------------

    TSA's statutory authority over the security of freight rail 
transportation is co-extensive with FRA's authority over freight 
railroad safety; accordingly, TSA is proposing to make subject to this 
rule all freight railroad carriers that are subject to the jurisdiction 
of FRA. With respect to freight railroads, FRA's statutory jurisdiction 
extends to all entities that can be construed as railroads by virtue of 
their providing non-highway ground transportation over rails or 
electromagnetic guideways, and will extend to future railroads using 
other technologies not yet in use. See 49 U.S.C. 20102. Moreover, by 
delegation from the Secretary of Transportation, FRA has authority to 
enforce the Federal hazmat laws, especially with regard to rail 
transportation of hazardous materials, and has both regulatory and 
enforcement authority under the Federal railroad safety laws. See 49 
CFR 1.49.\39\
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    \39\ See 49 CFR part 209, Appendix A for FRA's detailed 
jurisdiction policy statement.
---------------------------------------------------------------------------

2. Rail Operations at Certain Fixed-Site Facilities
    The requirements of this NPRM will apply to rail hazardous 
materials shippers and receivers. Specifically, TSA proposes that 
shippers and receivers be subject to TSA inspection, have RSCs, report 
significant security concerns, provide location and shipping 
information for specified hazardous materials, and provide a secure 
chain of custody and control for specified hazardous materials. For 
purposes of this NPRM, TSA uses the following definitions: Rail 
hazardous materials shippers are facilities that are connected to the 
general railroad system of transportation and offer, prepare, or load 
for transportation by rail one or more of the specified categories and 
quantities of the hazardous materials listed in Sec.  1580.100(b) of 
the NPRM. Rail hazardous materials receivers are facilities that are 
connected to the general railroad system of transportation and that 
receive or unload from transportation by rail one or more of the 
specified categories and quantities of the hazardous materials listed 
in Sec.  1580.100(b) of the NPRM. Both definitions exclude facilities 
that the Federal government operates.
    TSA's statutory authority under ATSA extends to rail hazardous 
materials shippers and receivers. In addition to the authorities 
described in

[[Page 76859]]

Section II.A. of this preamble, TSA carries out such other duties and 
exercises such other powers relating to transportation security, as the 
Assistant Secretary considers appropriate, to the extent authorized by 
law.\40\ More specifically, TSA is empowered to ensure the adequacy of 
security measures for the transportation of cargo.\41\ ATSA does not 
limit TSA's authority to protecting the security of cargo only while it 
is on a particular conveyance, but rather extends it to the entire 
transportation system, including facilities.
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    \40\ 49 U.S.C. 114(f)(15).
    \41\ 49 U.S.C. 114(f)(10).
---------------------------------------------------------------------------

    This proposed rule covers only those hazardous materials facilities 
that: (1) Are connected to the general rail system of transportation, 
and (2) offer, prepare, load, receive, and/or unload for or from 
transportation by rail, specified hazardous materials. Hazardous 
materials shippers load rail cars that freight railroad carriers pick 
up for transport. The rail cars may travel anywhere in the general 
transportation system, including in and near high population areas, 
critical infrastructure, and other critical areas. Sometimes loaded 
rail cars will remain for some time at the shipper's facility awaiting 
pickup from the carrier. Whether being loaded at facilities or awaiting 
pickup at facilities, these rail cars could endanger surrounding areas. 
Under ATSA, TSA has authority to ensure the adequacy of security 
measures at the transportation-related areas of these facilities. This 
includes authority to inspect those areas used for transportation 
security activities. This would include, for example, control rooms or 
offices where security activities are initiated or monitored.
    TSA used a risk-based approach in determining the rail hazardous 
materials facilities to which this rulemaking would apply. The highest 
risk exists from the rail transport of the specified hazardous 
materials when those rail cars are in or near an HTUA. TSA decided to 
use the HTUA listing to define those areas for which this rulemaking 
would provide additional security measures. A rail car departing any 
rail hazardous materials facility could enter an HTUA. TSA notes that, 
as to rail hazardous materials facilities receiving or unloading 
hazardous materials, the highest risk is at those facilities that are 
located within an HTUA. Therefore, TSA proposes that the regulation 
cover all rail hazardous materials facilities that receive or unload, 
within an HTUA, one or more of the specified hazardous materials.\42\
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    \42\ Note that PHMSA's regulations do not apply after the 
delivering carrier departs the facility. See 49 CFR 171.1(c)(3) and 
171.8 TSA's proposal to cover the transportation-related areas of 
the rail hazardous materials facilities that receive or unload the 
subject rail cars in the HTUA would extend beyond that time.
---------------------------------------------------------------------------

3. Passenger Rail (including Rail Transit Systems)
    TSA's authority is not limited to FRA's jurisdiction over passenger 
rail and, therefore, includes rail transit systems. TSA's authority is 
also not circumscribed by FTA's jurisdiction. Therefore, the proposed 
rule would apply to all passenger railroad carriers within FRA's 
statutory jurisdiction (including tourist, scenic, historic, and 
excursion operations), and all rail transit systems (including light 
rail, heavy rail, rapid transit, monorail, inclined planes, funiculars, 
cable cars, trolleys, and automated guideways) within FTA's statutory 
jurisdiction, and other passenger rail systems.
    TSA proposes to apply this rule to all railroad carriers that 
operate passenger train service, provide commuter or other short-haul 
passenger train service in a metropolitan or suburban area, or host the 
operations of such passenger train service. Under the provisions of the 
proposed rule, TSA would regulate as a passenger railroad carrier any 
public authority that indirectly provided passenger train service by 
contracting out the actual operation to another railroad carrier or 
independent contractor. Although the public authority would ultimately 
be responsible for designating and using an RSC, allowing TSA to 
conduct inspections or tests, and reporting significant security 
concerns, the railroad carrier or other independent contractor that 
operates the authority's passenger rail service would be required to 
fulfill all applicable responsibilities with respect to rail 
transportation security planning, including implementation.
    The proposed rule would cover freight railroad carriers that host 
the operations of passenger train service over its lines, but that 
neither provide nor operate passenger train service itself. The 
proposal would also cover passenger railroad carriers that, in addition 
to operating or providing their own passenger train service, host the 
operations of other passenger railroad operations. TSA recognizes that 
under the proposed rule, the host freight and passenger railroad 
carriers would already be subject to the provisions of the rule (e.g., 
subject to TSA inspection, required to have rail security coordinators, 
and required to report significant security concerns) independent of 
their additional role as hosts to passenger train service. 
Nevertheless, based upon the unique operational relationship between 
the host railroad carrier and the passenger operation, as well as the 
specific nature of a particular security situation, one of the railroad 
carriers may be better suited to assume primary compliance 
responsibility under the proposed rule. TSA expects that a railroad 
carrier that operates passenger train service over the line of a host 
railroad carrier would review all of the RSC and security concern 
reporting requirements of the host railroad carrier and that both the 
host carrier and the passenger operation would coordinate their 
respective roles in fulfilling these requirements. Accordingly, if 
there were a significant security concern involving a hosted passenger 
operation, TSA would accept one jointly-submitted report from both 
carriers, rather than separate reports from each carrier.
    TSA recognizes that host railroad carriers already bear certain 
significant safety and security responsibilities. For example, pursuant 
to FRA emergency preparedness regulations, host railroad carriers must 
have procedures for making emergency responder notifications, be 
capable of rendering assistance to the involved passenger railroad 
carriers during emergency situations, and address any physical and 
operating characteristics of their rail lines that may affect the 
safety of these railroad operations (such as evacuating passengers from 
a train stalled in a tunnel or on an elevated structure). See 49 CFR 
part 239.
    TSA's proposal to cover rail transit systems would build upon DOT's 
existing regulatory scheme. A rail transit system is generally subject 
to the jurisdiction of FTA, FRA, or both; the determining factor for 
jurisdiction is whether the transit system is connected to the general 
railroad system of transportation. For rail transit systems that are 
not connected to the general system, the applicable DOT requirements 
include FTA's State Safety Oversight for Rail Fixed Guideway Systems 
regulations.\43\ For transit systems that are connected to the general 
railroad system, FRA may exercise jurisdiction (see 49 CFR part 209, 
Appendix A for a detailed

[[Page 76860]]

discussion).\44\ For those rapid transit systems that are connected to 
the general system in such a way to warrant exercise of FRA's 
jurisdiction, only those portions of the rapid transit system that are 
connected to the general system will generally be subject to FRA's 
rules. For those rapid transit systems that are not sufficiently 
connected to the general railroad system to warrant FRA's exercise of 
jurisdiction, FTA's rules will apply.
---------------------------------------------------------------------------

    \43\ See discussion in Section III.C. of this preamble.
    \44\ FTA's rules on rail fixed guideway systems do not apply to 
any rapid transit systems or portions thereof subject to FRA's 
rules.
---------------------------------------------------------------------------

    TSA's authority over rail transit systems is not limited to rail 
fixed guideway systems receiving or seeking to receive funds under 
FTA's grant program, and is therefore broader than the scope of 
coverage of FTA's regulation (49 CFR part 659). Accordingly, TSA's 
authority extends to all rail transit systems regardless of whether the 
system is subject to regulation by FTA, FRA, or neither agency.
4. Other Rail Operations
    Some of the requirements in this NPRM would apply to tourist, 
scenic, historic, and excursion passenger rail systems. Specifically, 
these types of operations would be subject to inspection by TSA and DHS 
officials and would be required to report significant security 
concerns. See proposed 49 CFR 1580.5 and 1580.203. In addition, these 
operations would be subject to the NPRM's requirement to designate and 
use an RSC if TSA notifies the operation in writing that a security 
threat exists concerning that operation. See proposed 49 CFR 1580.201. 
TSA is including this requirement, because tourist, scenic, historic, 
and excursion operations are potential terrorist targets, and so there 
may be some situations where TSA wishes to inspect these operations to 
assess their security.
    With two exceptions, FRA exercises jurisdiction over tourist, 
scenic, and excursion railroad operations whether or not they are 
conducted on the general railroad system. The exceptions are: (1) 
Operations of less than 24-inch gage, which, historically, have never 
been considered railroads under the Federal railroad safety laws; and 
(2) operations that are off the general railroad system of 
transportation and ``insular.'' \45\ See Appendix A to 49 CFR part 209. 
A tourist operation is not part of the general system when the 
operation is conducted on track used exclusively for tourist operation 
purposes. If a tourist operation conducted off the general system is 
insular, FRA does not exercise jurisdiction over it, and none of FRA's 
rules apply. If a tourist operation conducted off the general system is 
not insular, FRA exercises jurisdiction over the operation, and some of 
FRA's rules (i.e., those that specifically apply beyond the general 
system to such operations) will apply.\46\
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    \45\ Insularity is an issue only with regard to tourist 
operations over trackage outside of the general system used 
exclusively for such operations. FRA considers a tourist operation 
to be insular if its operations are limited to a separate enclave in 
such a way that there is no reasonable expectation that the safety 
of any member of the public except a business guest, a licensee of 
the tourist operation or an affiliated entity, or a trespasser would 
be affected by the operations. A tourist operation will not be 
considered insular if one or more of the following exists on its 
line: (1) A public highway-rail crossing that is in use; (2) An at-
grade rail crossing that is in use; (3) A bridge over a public road 
or waters used for commercial navigation; or (4) A common corridor 
with a railroad, i.e., its operations are within 30 feet of those of 
any railroad.
    \46\ For example, FRA's rules on accident reporting, steam 
locomotives, and grade crossing signals apply to these non-insular 
tourist operations (see 49 CFR 225.3, 230.2 and 234.3), as do all of 
FRA's procedural rules (49 CFR parts 209, 211, and 216) and the 
Federal railroad safety statutes themselves.
---------------------------------------------------------------------------

    TSA also proposes that the operators of private cars, including 
business or office cars and circus trains that are on or connected to 
the general railroad system of transportation, allow TSA to inspect and 
be required to report significant security concerns. TSA believes that 
a private car operation that hauls passengers should perform a basic 
level of security preparedness planning consistent with the planning of 
other passenger train operations. TSA recognizes the fact that private 
rail cars do not haul as many passengers as these other operations and, 
therefore, these rail cars constitute a less attractive target for 
terrorists. Moreover, TSA recognizes that host railroads, such as 
National Railroad Passenger Corporation (Amtrak) and commuter 
railroads, often haul private cars, and these hosts would already be 
required to have RSCs, who can serve as a point of contact with TSA 
while the host is hauling the private cars.
    Finally, TSA seeks comment on whether there are financial, 
operational, or other factors that are unique to the operation of 
tourist, scenic, historic, and excursion passenger rail systems or the 
operation of private rail cars and if so, what those factors are.
5. Specified Hazardous Materials
    Certain provisions of this proposed rulemaking (i.e., the ones 
allowing TSA inspections, requiring the designation of RSCs, and 
requiring reporting of significant security concerns) apply to freight 
railroad carriers regardless of whether they transport hazardous 
materials. However, some provisions of the NPRM (i.e., the ones 
requiring entities to provide location and shipping information and to 
provide a secure chain of custody and control) apply only to the rail 
hazardous materials shippers and receivers and freight railroad 
carriers that handle specified categories and quantities of hazardous 
materials. Generally, the specified chemicals are those that are 
``poisonous by inhalation,'' certain explosives, and radioactive 
materials. Proposed section 1580.100(b), lists these materials and 
applicable quantities:
    (1) A rail car containing more than 2,268 kg (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 a material poisonous by inhalation as 
defined in 49 CFR 171.8, including Division 2.3 gases poisonous by 
inhalation, as set forth in 49 CFR 173.115(c) and Division 6.1 liquids 
meeting the defining criteria in 49 CFR 173.132(a)(1)(iii) and assigned 
to hazard zone A or hazard zone B in accordance with 49 CFR 173.133(a), 
other than residue; and
    (3) A rail car containing a highway route-controlled quantity of a 
Class 7 (radioactive) material, as defined in 49 CFR 173.403.
    DOT's Hazardous Materials Regulations define the term ``material 
poisonous by inhalation'' in 49 CFR 171.8. Materials poisonous by 
inhalation, also called poison inhalation hazard (PIH) materials, are 
gases or volatile liquids that are toxic to humans when inhaled. 
Specific classification criteria for PIH gases are in 49 CFR 173.115(c) 
and 173.116(a); classification criteria for PIH liquids are in 49 CFR 
173.132(a)(1)(iii) and 173.133(a).
    PHMSA defines ``radioactive material'' to mean a material 
containing radionuclides where both the activity concentration and the 
total activity in the consignment exceed the values specified in the 
table in 49 CFR 173.436 or values derived according to the instructions 
in 49 CFR 173.433. See 49 CFR 173.403. A highway route controlled 
quantity refers to a quantity in a single package that exceeds one of 
the following amounts: 3,000 times the A1 value of the radionuclides, 
as specified in 49 CFR 173.435 for special form Class 7 (radioactive) 
material; 3,000 times the A2 value of the radionuclides, as specified 
in 49 CFR 173.435 for normal form Class 7 (radioactive) material; or 
1,000 TBq (27,000 Ci), whichever is least.
    Under the HMR, an ``explosive'' refers to ``any substance or 
article, including a device, which is designed to function by

[[Page 76861]]

explosion (i.e., an extremely rapid release of gas and heat) or which, 
by chemical reaction within itself, is able to function in a similar 
manner even if not designed to function by explosion, unless the 
substance or article is otherwise classed under the [HMR].'' See 49 CFR 
173.50. The term includes a pyrotechnic substance or article, unless 
the substance or article is otherwise classed under the HMR. Explosives 
in Class 1 are divided into six divisions. However, based upon the 
relative explosive hazards of the explosives in these divisions, TSA 
proposes to apply subpart B of part 1580 to explosives in rail cars 
containing more than 2,268 kg (5,000 lbs) only in Divisions 1.1., 1.2, 
and 1.3. Division 1.1 consists of explosives that have a mass explosion 
hazard. A mass explosion is one which affects almost the entire load 
instantaneously. Division 1.2 consists of explosives that have a 
projection hazard but not a mass explosion hazard. Division 1.3 
consists of explosives that have a fire hazard and either a minor blast 
hazard or a minor projection hazard or both, but not a mass explosion 
hazard. See 49 CFR 173.50.
    TSA, PHMSA, and FRA have assessed the security vulnerabilities 
associated with the transportation of different types and classes of 
hazardous materials. In this NPRM, TSA has applied enhanced security 
requirements to the specified hazardous materials based on specific 
transportation scenarios. These scenarios depict how individuals could 
deliberately use hazardous materials to cause significant casualties 
and property damage. The materials and the quantities specified in 
proposed Sec.  1580.100(b) present a significant rail transportation 
security risk and an attractive target for terrorists because of the 
potential for them to use these materials as weapons of mass effect. 
TSA continues to evaluate the security risks associated with the 
transportation of hazardous materials and may propose additional 
regulations including regulations pertaining to other materials or 
quantities of materials in the future.
    The proposed rule excludes tank cars containing only residual 
amounts of the hazardous material. From a security perspective, it 
appears that the consequences of the release of residual PIH materials 
would be significantly less than the consequences of an incident 
involving a loaded tank car. TSA seeks comment on whether it should 
apply the requirements in this NPRM to fewer or additional hazardous 
materials or should extend the requirements to include tank cars 
containing residue. TSA also seeks comment on whether there are other 
hazardous materials that could cause significant loss of life, 
transportation system disruption, or economic disruption and whether 
TSA should apply the requirements of this NPRM to those other 
materials. TSA will continue to evaluate whether it should expand or 
reduce the list of hazardous materials and whether it should make tank 
cars containing residue subject to the rule.
6. High Threat Urban Areas (HTUAs)
    The proposed requirements for reporting shipping and location 
information and for providing a secure chain of custody are applicable 
to the transportation of specified hazardous material that is or may be 
in an HTUA. TSA is using the term HTUA and its definition to describe 
and delineate those geographic areas that warrant special consideration 
with respect to transportation security. In this NPRM, TSA derived its 
lists of HTUAs from the Urban Areas Security Initiative (UASI) program. 
TSA includes a list of HTUA in Appendix A to this NPRM. As well, the 
list is available on the DHS Web site: http://www.dhs.gov/dhspublic//interweb/assetlibrary/FY06_UASI_Eligibility_List.pdf.
    First implemented in 2003, UASI is a risk-based methodology that is 
consistent with DHS's national risk management efforts for homeland 
security. DHS identified UASI areas as HTUAs if they had populations 
greater than 100,000 and had reported threat data during the past 
fiscal year. Currently, DHS has identified 46 HTUAs based on risk 
assessments considering three variables: (1) Threat, or the likelihood 
of a type of attack that might be attempted; (2) vulnerability, or the 
likelihood that an attacker would succeed; and (3) consequence, or the 
impact of an attack occurring. Each HTUA consists of a city limit or 
combined adjacent city limits, plus a 10-mile buffer zone extending 
from the city border(s). Appendix A to this proposed rule contains the 
46 Urban Areas that were eligible to apply for the FY 2006 UASI 
Program. TSA proposes to use the FY 2006 list of Urban Areas for this 
rule. TSA has evaluated the security issues for rail transportation of 
specific hazardous material and believes that the results of the FY 
2006 UASI risk model are an appropriate methodology for this 
rulemaking. As proposed, if DHS makes any changes in subsequent years 
to the FY 2006 list, those changes will not affect the TSA list in 
Appendix A unless TSA subsequently amends the list.
    DHS evaluated these HTUAs for two separate, but complementary, 
types of risk: asset-based risk and geographically-based risk. 
Considered together, these two calculations provide an estimate of 
total terrorism risk. This is accomplished using a common risk model 
that is internally consistent across all homeland security grant 
allocations. Under this model, asset-based risk is a function of the 
combined risks of terrorism to potential targets within a geographic 
area. In comparison, geographically-based risk is derived from certain 
prevailing attributes or characteristics intrinsic to a geographical 
area, such as a border, that may contribute to its risk of terrorism.
    In May 2005, DHS held a meeting with stakeholders to solicit input 
and feedback on the risk formula. Attendees included key 
representatives from 12 States and urban areas, as well as 
representatives from national and international associations of police, 
emergency managers, city chiefs, and fire chiefs. The current risk 
model reflects the recommendations of the stakeholders who attended the 
May 2005 meeting. Additional information about the risk methodology is 
available at the following Web site: http://www.ojp.usdoj.gov/odp/docs/FY_2006_UASI_Program_Explanation_Paper_011805.doc.
    TSA is currently conducting vulnerability assessments of the 
transportation of PIH materials through the UASI HTUAs. Through these 
assessments, TSA has identified operational practices and conditions 
that may compromise transportation security. TSA has addressed some of 
the major practices and conditions in this rulemaking, including the 
lack of positive and secure exchange of custody and control of rail 
cars containing hazardous materials and the lack of secure storage of 
these materials at transportation facilities.
    TSA is soliciting comment on the adoption of the DHS HTUAs for this 
proposed rule, and seeks comment on appropriate criteria to use to 
determine those areas where freight railroad carriers and rail 
hazardous materials shippers and receivers should be subject to 
additional security requirements. If TSA decides in the final rule to 
use HTUAs as the basis for imposing additional security requirements, 
TSA will continue studying the patterns of rail transportation across 
the nation and may revise the list of HTUAs established by DHS for FY 
2006, as appropriate.

C. Requirements

1. Sensitive Security Information (SSI)
    Section 114(s) of title 49 of the United States Code requires TSA 
to promulgate

[[Page 76862]]

regulations governing the protection of sensitive security information 
(SSI). SSI includes information that would be detrimental to 
transportation security if publicly disclosed. TSA's SSI regulation, 49 
CFR part 1520, establishes certain requirements for the recognition, 
identification, handling, and dissemination of SSI, including 
restrictions on disclosure and civil penalties for violations of those 
restrictions.
    Although 49 CFR part 1520 primarily covers aviation and maritime 
security-related information, vulnerability assessments and threat 
information related to all modes of transportation are considered SSI 
under 49 CFR 1520.5(b)(5) and 1520.5(b)(7) and must be protected and 
handled in accordance with 49 CFR part 1520. However, because certain 
other information created in connection with this proposed rule would 
be detrimental to transportation security if publicly disclosed, TSA is 
proposing to amend 49 CFR part 1520 to more directly protect 
information related to the rail sector. This rulemaking would add 
railroad carriers, rail hazardous materials shippers, rail hazardous 
materials receivers, and rail transit systems as covered persons under 
part 1520 and explicitly require them to restrict the distribution, 
disclosure, and availability of SSI to persons with a need to know, and 
refer all requests for SSI by other persons to TSA or the applicable 
component or agency within DOT or DHS.
    The NPRM would amend part 1520 to clarify that any review, audit, 
or other examination of the security of a railroad, railroad carrier, 
rail facility, rail hazardous materials shipper, rail hazardous 
materials receiver, rail transit system, or rail transit facility that 
is directed, created, held, funded, or approved by DOT or DHS, or that 
will be provided to DOT or DHS in support of a Federal security 
program, is SSI. The NPRM would also amend part 1520 to cover certain 
details of security inspections or investigations involving rail 
transportation security; specific details of rail transportation 
security measures; security training materials for persons carrying out 
rail transportation security measures required or recommended by DHS or 
DOT; lists of identifying information of personnel having unescorted 
access to a rail secure area; and lists identifying critical rail 
infrastructure assets. TSA seeks comment on whether it should protect 
as SSI under part 1520 any other information that may be created under 
this rule.
2. TSA Inspections
    TSA is proposing that all entities covered by this proposed 
regulation allow TSA to inspect their facilities without advance 
notice. TSA will conduct inspections in a reasonable manner consistent 
with TSA guidance for its inspectors. In enacting ATSA, Congress 
recognized the importance of security for all forms of transportation 
and related infrastructure and, in establishing TSA, conferred upon it 
responsibility for security in all modes of transportation. The United 
States rail network is a vital link in the Nation's transportation 
system and is critical to the economy, national defense, and public 
health. Amtrak, the Alaska Railroad Corporation, commuter railroads, 
and rail transit systems provide passenger rail service to millions of 
passengers yearly. Approximately 40 percent of all intercity freight 
goes by rail, including 64 percent of the coal that electric utilities 
use to produce power.
    Maintaining a safe and secure rail transportation system is 
essential. TSA must be able to inspect at any time in order to carry 
out its security-related statutory and regulatory authorities, 
including the following authorities in 49 U.S.C. 114(f):
    (2) assess threats to transportation;
    (7) enforce security-related regulations and requirements;
    (9) inspect, maintain, and test security facilities, equipment, and 
systems;
    (10) ensure the adequacy of security measures for the 
transportation of cargo;
    (11) oversee the implementation, and ensure the adequacy, of 
security measures at airports and other transportation facilities; and
    (15) carry out such other duties, and exercise such other powers, 
relating to transportation security as the Assistant Secretary 
considers appropriate, to the extent authorized by law.
    As noted above, under this proposal, TSA's inspection authority 
also covers rail hazardous materials facilities that offer, prepare, or 
load for transportation by rail certain specified categories and 
quantities of hazardous materials, as well as facilities that receive 
or unload these materials from transportation by rail in a HTUA. In 
this regard, TSA's authority over transportation security explicitly 
covers the transportation of cargo.\47\ The law does not limit TSA to 
protecting the security of cargo only while it is on a particular 
vehicle of transportation, but extends to the entire transportation 
system. The statute references TSA's responsibility to protect security 
facilities and transportation facilities.\48\ Thus, to the extent that 
a hazardous materials site covered by the applicability section of this 
proposed regulation has specific facilities for transportation, such as 
loading areas, TSA's authority to inspect these facilities is explicit.
---------------------------------------------------------------------------

    \47\ 49 U.S.C. 114(f)(10) empowers the Assistant Secretary of 
Homeland Security for TSA to ``ensure the adequacy of security 
measures for the transportation of cargo.''
    \48\ 49 U.S.C. 114(f)(9) and 114(f)(11).
---------------------------------------------------------------------------

    More importantly, because the transportation system may be 
compromised by the introduction of an IED or other destructive 
instrument, the authority for transportation security necessarily 
includes authority to inspect, as necessary, the facilities that offer, 
prepare, load, receive, or unload certain hazardous materials that 
travel in rail transportation, if that packaging might be vulnerable to 
compromise. Limiting TSA's authority to inspect the security of cargo 
only after it is being transported would negate TSA's ability to 
protect the transportation system effectively. Accordingly, TSA's 
authority extends to rail hazardous materials facility points of entry 
of cargo going into the transportation system.
3. Designation of Rail Security Coordinators (RSCs)
    Except as noted below, in Sec. Sec.  1580.101 and 1580.201, TSA is 
proposing to require each railroad carrier, rail hazardous materials 
shipper, rail hazardous materials receiver, and rail transit system 
covered within the scope of part 1580 (see proposed Sec.  1580.1), at 
the corporate level, to designate and use an RSC to serve as the point 
of contact with TSA on security matters and communications with TSA 
concerning the railroad carrier, rail hazardous materials shipper, rail 
hazardous materials receiver, or rail transit system's security 
initiatives. The RSC and any alternate RSC(s) should be officials with 
overall responsibility, management, and/or oversight of security 
operations and/or police operations. The RSC may therefore have 
responsibility for several rail hazardous materials facilities covered 
by the proposed rule which are owned and operated by one corporation. 
TSA would require either the RSC, or an alternate RSC, to be available 
to TSA on a 24 hour a day basis. In addition, TSA would require the 
RSC, or an alternate RSC, to provide current contact information to TSA 
and to coordinate security practices and procedures with appropriate 
law enforcement and emergency response agencies. As part of TSA's 
coordinated approach to rail security, TSA would provide the names

[[Page 76863]]

and contact information of the RSCs to DOT and its modal 
administrations for use in their investigative, inspection, and 
compliance activities.
    When appropriate to carry out a regulatory requirement, including 
the provisions of an SD, the RSC would also be responsible for working 
with other entities to coordinate implementation of security measures. 
Those other entities involved in the security of the rail operation 
might include freight railroad carriers hosting passenger operations, 
owners of rail stations used by passenger operations, law enforcement 
agencies, and emergency response agencies. TSA understands that many 
railroads operate through a very large number of local and State 
jurisdictions, and it would be impracticable for the railroad to meet 
with every one. This NPRM would not require the RSC to do so. TSA 
expects that the railroad would reach out to those most likely to need 
to respond to a security incident.
    At a minimum, TSA anticipates that the railroad carriers, rail 
hazardous materials shippers, rail hazardous materials receivers, and 
rail transit systems would be able to quickly and accurately assess a 
security situation and then notify the appropriate law enforcement and 
emergency response agencies. In addition, TSA expects that the 
coordination effort would include the following elements: the offering 
of information to the appropriate agencies (as applicable) on the 
locations of railroad carrier facilities, rail hazardous materials 
shipper and receiver facilities, and rail transit facilities; access to 
railroad carrier, rail hazardous materials shipper, rail hazardous 
materials receiver, and rail transit agency equipment; and 
communications interface. Where a railroad carrier, rail hazardous 
materials shipper, rail hazardous materials receiver, or rail transit 
system requested TSA's assistance or notified TSA that its RSC was 
having difficulty coordinating security practices or procedures, TSA 
would intervene, as appropriate, to assist.
    To the maximum extent feasible, TSA anticipates that railroad 
carriers, rail hazardous materials shippers, rail hazardous materials 
receivers, and rail transit systems would not need to establish a new 
company or corporate division or infrastructure to carry out the 
responsibilities of the RSC and would not need to hire new employees to 
serve exclusively as RSCs. Rather, TSA expects that the proposal would 
result in only an incremental increase in the job duties of existing 
employees who have related functions. Moreover, in many instances, the 
related job functions involve compliance with existing Federal 
requirements.
    TSA anticipates that certain rail hazardous materials shippers and 
receivers, particularly the smaller ones, would employ the services of 
the individual who serves as the manager of safety, health, and 
environment. This individual traditionally oversees regulatory 
compliance with the requirements of Federal agencies such as the 
Occupational Safety and Health Administration and the Environmental 
Protection Agency. Other rail hazardous materials shippers and 
receivers, particularly the larger companies, may employ an individual 
to serve exclusively in the role of the RSC. In the case of rail 
hazardous materials facilities that are also subject to the maritime 
security regime required by the Maritime Transportation Security Act of 
2002, as codified in 46 U.S.C. Chapter 701, the individual who serves 
as the Federal Maritime Security Coordinator or the Facility Security 
Officer may also fulfill the duties of the RSC. See 33 CFR parts 101-
106.
    TSA anticipates that Class I and larger Class II railroad carriers 
\49\ would likely employ the services of the chief of the railroad 
police. Smaller railroad carriers would likely select the operating 
officer responsible for safety compliance and liaison with FRA. In this 
regard, FRA requires freight and passenger railroad carriers to 
telephonically report to the National Response Center certain types of 
accidents/incidents, such as the death of a rail passenger or railroad 
carrier employee, a train accident that results in serious injury to 
two or more train crewmembers or passengers requiring their admission 
to a hospital, or a train accident resulting in a preliminary damage 
estimate of $150,000 to railroad and non-railroad property. \See\ 49 
CFR 225.9. PHMSA regulations require immediate reports by the person in 
physical possession of the hazardous materials to the National Response 
Center of certain types of hazardous materials incidents, such as the 
death or serious injury of a person as a direct result of a hazardous 
material or fire, breakage, spillage, or suspected radioactive 
contamination occurring that involves a radioactive material. See 49 
CFR 171.15. In addition, under 49 CFR 659.33, a rail transit agency 
must notify the OA within two hours of certain incidents involving a 
rail transit vehicle or occurring on rail transit property.
---------------------------------------------------------------------------

    \49\ For purposes of accounting and reporting, the Surface 
Transportation Board (STB) groups freight railroad carriers into the 
following three classes:
    Class I: Carriers having annual carrier operating revenues of 
$250 million or more after applying the railroad revenue deflator 
formula.
    Class II: Carriers having annual carrier operating revenues of 
less than $250 million but in excess of $250 million after applying 
the railroad revenue of deflator formula.
    Class III: Carriers having annual carrier operating revenues of 
$250 million or less after applying the railroad revenue deflator 
formula.
    See 49 CFR 1201, Subpart A. The railroad revenue deflator 
formula is based on the Railroad Freight Price Index developed by 
the Bureau of Labor Statistics. The formula is as follows:
    Current Year's Revenues x (1991 Average Index/Current Year's 
Average Index).
    The STB is an economic regulatory agency that Congress charged 
with the fundamental missions of resolving railroad rate and service 
disputes and reviewing proposed railroad mergers. See ICC 
Termination Act of 1995, Pub. L. 104-88, 109 Stat. 803 (December 31, 
1995).
---------------------------------------------------------------------------

    TSA has crafted this RSC proposal as a performance standard, and 
TSA expects that each railroad carrier, rail hazardous materials 
shipper, rail hazardous materials receiver, and rail transit system 
will provide its RSC with the information necessary to perform its job 
duties. The proposal does not include a training requirement. However, 
TSA seeks comment on whether the final rule or another rulemaking 
should include such a requirement. In this regard, TSA seeks comment on 
what training methods railroad carriers, rail hazardous materials 
facilities, and rail transit facilities could use to meet this 
requirement. For example, should TSA require specific training as it 
does in aviation for aircraft operator Ground Security Coordinators? 
See 49 CFR 1544.233. Should TSA require training once or mandate it on 
a recurrent basis? Should TSA develop specific guidance or a curriculum 
for such a training program?
    Under the proposed rule, the requirement to designate and use an 
RSC does not apply to the operation of private rail cars, including 
business/office cars and circus trains, or to tourist, scenic, 
historic, or excursion operations, whether on or off the general 
railroad system of transportation, unless TSA notifies the owner or 
operator in writing that a security threat exists concerning that 
operation. Such notifications, and lists of specific private rail car 
owners and operators that TSA has required to appoint an RSC, would be 
protected as SSI threat information under Sec.  1520.5(b)(7).
    In reaching the decision to exclude the above types of operations, 
TSA considered their relative security risk, which TSA treated as a 
function of three variables: threat, or the likelihood of a type of 
attack that might be attempted; vulnerability, or the likelihood that 
an attacker would succeed; and consequence, or the impact of an attack 
occurring. While TSA believes that a

[[Page 76864]]

private car operation should be held to the same basic level of 
security preparedness planning as other passenger train operations, TSA 
intends to take into account the financial burden that TSA would impose 
if it required private car owners and operators to conform to the 
requirements of proposed Sec. Sec.  1580.101 and 1580.201. Moreover, 
TSA recognizes that host railroads such as Amtrak and commuter 
railroads often haul private cars, and these hosts often impose their 
own security requirements on the operation of the private cars. 
Pursuant to proposed Sec.  1580.201, TSA would already require host 
railroads to have an RSC to serve as the primary contact for 
intelligence information and security-related activities and 
communications with TSA; the private car passengers would benefit from 
this requirement even if private rail car owners and operators did not 
designate their own RSCs. In addition, in the case of non-revenue 
passengers, including employees and guests of railroad carriers who 
travel in business and office cars and passengers traveling on circus 
trains, the railroad carriers would provide for their safety and 
security in accordance with existing operating procedures and protocols 
relating to normal freight train operations.
    With respect to tourist, scenic, historic, and excursion 
operations, TSA analyzed the security risk and also considered the 
financial, operational, and other factors unique to such railroad 
carriers. At this time, TSA concludes that these operations do not need 
to appoint RSCs, unless TSA notifies them to do so.
4. Location and Shipping Information for Certain Rail Cars
    This rule proposes that freight railroad carriers transporting the 
specified categories and quantities of hazardous materials and certain 
rail hazardous materials shippers and receivers must provide 
information to TSA, upon request, on the location of rail cars. This 
requirement grew out of an August 16, 2004 notice and request for 
comments that PHMSA and TSA issued. The notice, entitled ``Hazardous 
Materials: Enhancing Rail Transportation Security for Toxic Inhalation 
Hazard Material,'' addressed the need for enhanced security 
requirements for the rail transportation of hazardous materials posing 
a PIH hazard. See 69 FR 50988. The purpose of the location reporting 
requirement is not to track a rail tank car to ascertain if it is off 
course, but rather to determine how close it may be to a target city or 
other potential target. Based upon the intelligence information 
received, TSA may wish to know, for example, how many rail tank cars 
carrying a particular TIH material are headed toward, or currently 
located within 10 miles of, a specified potential target.
    The August 2004 Notice indicated that DOT and DHS were considering 
whether they should require communication or tracking requirements, 
such as satellite tracking of rail cars and real-time monitoring of 
tank car or track conditions for rail shipments of PIH materials. In 
addition, the Notice suggested that DOT and DHS were considering 
reporting requirements in the event that PIH shipments are not 
delivered within specified time periods.
    Currently, there are no regulations that include communication, 
location, or tracking requirements for hazardous materials shipments by 
rail. While offerors and transporters of PIH materials may elect to 
implement communication, location, or tracking measures as part of the 
security plans they develop in accordance with subpart I of part 172 of 
the HMR, such measures are not mandatory.
    Some commenters to the August 2004 Notice questioned whether the 
tracking of rail shipments of PIH materials has a security benefit. 
They suggested that the probability that a rail car will be moved off 
the rail network is extremely remote and, further, that tracking rail 
cars to determine if they are off course has no value from a security 
perspective. Although some commenters expressed concerns about the 
reliability of tracking systems and the ease with which some systems 
could be compromised, several commenters suggested that since the 
railroad industry already has the capability to track rail cars, the 
existing system should be supplemented, not replaced, and any mandated 
tracking requirements should provide for flexibility in choosing 
different technologies.
    DHS believes that information concerning the location of certain 
hazardous materials should be readily available to industry and the 
Federal Government, particularly during elevated threat situations. 
Such information would be critical to decisions concerning possible 
rerouting, stopping, or otherwise protecting shipments and populations 
to address specific security threats or incidents. Freight railroad 
carriers currently have the capability to locate a rail car's last 
reported location using the Automatic Equipment Identification (AEI) 
tag and reader system,\50\ as well as current location using two-way 
radio or cellular telephone. Rail hazardous materials facilities 
already maintain sufficient information concerning the contents and 
location of hazardous materials under their physical custody and 
control, whether for proprietary reasons or to comply with DOT 
hazardous materials regulations, and can provide the information to the 
Federal Government in an expeditious manner.
---------------------------------------------------------------------------

    \50\ AEI tags are discussed in the Section-by Section Analysis 
of proposed 49 CFR 1580.103.
---------------------------------------------------------------------------

    Based upon TSA's consideration of the security vulnerabilities 
associated with the transportation of different types and classes of 
hazardous materials, the proposed rule would add location and shipping 
information requirements, focusing upon the three types and quantities 
of hazardous materials that TSA has concluded pose a significant 
transportation security risk.
    This rule would require covered freight railroad carriers, rail 
hazardous materials shippers, and rail hazardous materials receivers to 
report the location and shipping information of these rail cars when 
TSA requests such information.\51\ Certain PIH location and shipping 
information is already protected as SSI under a 49 CFR 1520.5(b)(16) 
determination by TSA. TSA will evaluate the location and shipping 
information provided under this rule on a case-by-case basis, and may 
determine that such information is SSI under 49 CFR 1520.5(b)(16). TSA 
is seeking comment on whether TSA should amend Sec.  1520.5(b) to 
routinely cover such information as SSI. Data elements to be included 
in these rail car reports include the rail car's identification, 
lading, location, and transportation status. As noted above, TSA 
anticipates that this information is readily available from existing 
car location management and waybill databases.
---------------------------------------------------------------------------

    \51\ TSA's proposed requirement that carriers, shippers, and 
receivers submit car location and shipping information to TSA for 
rail security purposes would be in addition to any Bureau of Customs 
and Border Protection (CBP) information submission requirements.
---------------------------------------------------------------------------

    The proposed rule would establish a performance standard that 
requires the regulated entity to be able to provide the requested 
information in the timeframe specified, without mandating a particular 
technology or system protocol for obtaining it. Accordingly, as 
discussed further in the Section-by-Section Analysis for Sec.  1580.103 
below, while certain larger freight railroad carriers would choose to 
meet the requirement by using AEI Tags, smaller carriers that rarely 
haul rail cars

[[Page 76865]]

containing the specified hazardous materials may elect to obtain the 
requested location and shipping information merely by calling the train 
crew on a two-way radio or cellular telephone. Rail hazardous materials 
facilities, depending on the number of rail cars currently containing 
one or more of the listed hazardous materials, may employ a 
sophisticated computer program (as appropriate) or simply assign an 
employee to physically count the rail cars containing the product and 
gather the requested information for each rail car. If the carrier, 
shipper, or receiver provides the location and shipping information to 
TSA within one hour of receiving the request and does so using one of 
the five approved methods, the carrier or facility would be in full 
compliance with the proposed regulation.
    TSA recognizes that the ability of the freight railroad industry to 
track billions of dollars of equipment and cargo is crucial for good 
customer service and efficient rail operations, and seeks comment from 
rail tank car manufacturers, rail tank car owners, freight railroad 
carriers, and the insurance industry on the feasibility and potential 
future uses of Global Positioning Systems \52\ (GPS) to track rail 
cars. TSA requests information on the anticipated economic impact on 
rail car owners and freight railroad carriers in terms of the costs of 
manufacture, installation, maintenance, and service of GPS tracking 
systems and devices. In addition, TSA seeks information on the 
anticipated security benefits that would result from equipping rail 
tank cars with technologies that incorporate chemical sensors and open 
hatch detection into GPS-based location and messaging systems to 
immediately notify concerned parties of potential leaks or unauthorized 
access of the rail car. TSA also requests comment on the business use 
considerations, including the anticipated benefits for fleet 
management, protection of business proprietary data, and whether 
freight railroad carriers using GPS tracking systems would likely 
receive insurance premium reductions.
---------------------------------------------------------------------------

    \52\ A Global Positioning System is a satellite-based system 
that can pinpoint any position on earth--any time and in any 
weather--and then use receivers to process the satellite signals to 
determine a location.
---------------------------------------------------------------------------

5. Reporting Significant Security Concerns
    The threats to transportation security present a new paradigm for 
intelligence collection, analysis, and application. For most of its 
history, the United States has focused its intelligence resources on 
the military and political establishments of foreign states. In the 
aftermath of the September 11, 2001 attacks, the focus areas for 
intelligence collection activities have expanded markedly.
    Detecting terrorist activities entails piecing together seemingly 
unrelated or minor observations, encounters, and incidents and 
analyzing information from other sources to identify indications of 
planning and preparation for an attack. The terrorist threat and the 
rail mode's vulnerability have unfortunately been well demonstrated by 
multiple attacks throughout the world. In this environment, reports 
from railroad carriers, rail hazardous materials shippers and 
receivers, and rail transit systems are essential to the detection of 
indications of terrorist planning and preparation activities. Seemingly 
disconnected or disparate reports of suspicious or unusual activities, 
if timely and effectively analyzed in the context of broader 
information derived from the intelligence community, may provide the 
insight necessary to prevent a terrorist attack.
    Essential to achieving this objective is the enhancement and 
expansion of the means to detect indicators of terrorist surveillance, 
planning, and preparation activities and to identify suspicious persons 
at and near rail cars, stations, terminals, facilities, and other 
infrastructure. A critical component of this effort is timely reporting 
of incidents and other matters of security concern.
    TSA would require all entities covered by this NPRM to report 
significant security concerns to TSA. Significant security concerns 
encompass incidents, suspicious activities, and threat information 
including, but not limited to the following incidents: interference 
with the train crew; bomb threats--both specific and non-specific; 
reports or discovery of suspicious items which result in the disruption 
of operations; suspicious activity occurring onboard a train that 
results in a disruption of operations; discharge, discovery, or seizure 
of a firearm or other deadly weapon on a train or in a station or 
terminal; information relating to the possible surveillance of a train 
or rail facility; correspondence received by the railroad carrier or 
rail transit system operator indicating a potential threat to rail 
transportation; disruption of train operations, including derailments 
and accidents, the cause of which appears suspicious or the result of 
suspected criminal activity; and any major breaches of security at a 
rail facility. These requirements will ensure that systems are put in 
place that will increase domain awareness and allow TSA to be aware of 
possible national trends. These requirements would not supersede 
existing requirements to report incidents to State or local first 
responders or other authorities.

    a. Passenger Railroad Carriers and Rail Transit Systems. To 
inform and enable detailed, cross-functional analysis of developing 
threats, proposed Sec.  1580.203 would require the passenger 
railroad carrier and rail transit system to immediately report 
potential threats and significant security concerns to TSA. TSA 
recognizes that rail transit agencies operate under an existing 
regulatory requirement to report certain types of incidents to State 
OAs. Pursuant to 49 CFR 659.33, the rail transit agency must notify 
the OA within two hours of an incident involving a rail transit 
vehicle or occurring on rail transit property where, among other 
parameters, a fatality results, injuries require medical attention 
for two or more persons away from the scene, or property damage 
equals or exceeds $25,000. These matters may also prompt the 
reporting requirement under this proposed rule.

    Any limited overlap of information that this reporting requirement 
would create would be neither an unnecessary duplication of effort nor 
a burdensome requirement. Proposed Sec.  1580.203 covers a much broader 
scope of security concerns than the existing reporting requirements at 
49 CFR 659.33 or pursuant to FTA grant programs. The distinction 
reflects the different focus of TSA and the State OAs. State OAs seek 
to track and record significant incidents, whether malicious or 
accidental, that result in loss of life, multiple significant injuries, 
or substantial property damage. The purpose is to create a historical 
record for later assessment of whether corrective action should be 
taken. TSA seeks to obtain a stream of information for analysis 
purposes. With broader collection of information, the Transportation 
Security Intelligence Service and DHS Office of Intelligence and 
Analysis will be better able to identify trends or patterns that may 
indicate terrorist planning and preparation activities. The proposed 
requirement for the reporting of potential threats and significant 
security concerns would provide essential material for this vital 
effort.
    Additionally, rail transit agencies may have reporting requirements 
deriving from grant programs that FTA administers. These programs may 
require rail transit agencies to provide accounting and statistical 
reports on a variety of matters to the National Transit Database on a 
specified basis, such as monthly. Again, any partial overlap of 
information covered in the two reporting requirements would not result 
in an unnecessary duplication of effort

[[Page 76866]]

or a burdensome requirement. Through the National Transit Database, FTA 
seeks to maintain a comprehensive profile of public transportation 
systems in the United States. FTA gathers information on the full 
spectrum of activities involved in transit operations, including 
accounting matters, passenger volume, distances covered, safety 
records, and criminal activity. Proposed Sec.  1580.203 would require a 
much more focused report intended to generate an information stream 
essential to identify trends or patterns that may indicate terrorist 
activity including surveillance, planning, and preparation. The 
resulting data, analyzed in the context of transportation and homeland 
security intelligence products and of material generated by the broader 
intelligence community, would provide the foundation for focused 
detection, deterrence, and prevention activities.
    Proposed Sec.  1580.203 would apply to tourist, scenic, historic, 
and excursion operations as well as other passenger rail operations. In 
deciding whether to apply this provision to these passenger railroad 
operators, TSA considered the protocols, such as immediately reporting 
a concern or incident to appropriate law enforcement authorities, that 
any prudent owner or operator of a tourist, scenic, historic, or 
excursion railroad should follow if faced with a security threat or 
concern. The proposed reporting requirement merely adds DHS as an 
additional recipient of this information. TSA seeks comments from these 
passenger railroad carriers and their associations to determine if 
there are financial, operational, or other factors that may be unique 
to such passenger railroad operations that justify modifying or 
eliminating the proposed reporting requirement applicable to these 
operations.

    b. Freight Rail Including Rail Hazardous Materials Shippers and 
Rail Hazardous Materials Receivers. Proposed Sec.  1580.105 would 
require freight railroad carriers and covered rail hazardous 
materials shippers and receivers to immediately report potential 
threats and significant security concerns to TSA. In the face of 
unpredictable and rapidly changing threats to rail carriers and 
facilities, detection, prevention, and deterrence depend upon strong 
intelligence focused on the terrorist as well as the means for 
carrying out the threat.

    Proposed Sec.  1580.105 covers a much broader scope of security 
concerns than other existing reporting requirements, such as the FRA 
requirement in 49 CFR 225.9 that railroad carriers report certain types 
of accidents/incidents telephonically to the National Response 
Center.\53\ The distinction reflects the different focus of TSA and 
FRA. FRA seeks to track and record significant incidents, whether 
malicious or accidental, that result in loss of life, multiple 
significant injuries, or substantial property damage. The purpose is to 
create a historical record for later assessment of whether corrective 
action should be taken. In contrast, TSA seeks to obtain a stream of 
information that it can analyze to identify trends or patterns that may 
indicate terrorist planning and preparation activities. The broader 
collection of information will better enable the Transportation 
Security Intelligence Service and DHS Office of Intelligence and 
Analysis to identify trends or patterns that may indicate terrorist 
planning and preparation activities. The proposed requirement for 
immediate reporting of potential threats and significant security 
concerns would provide essential material for this vital effort.
---------------------------------------------------------------------------

    \53\ The FRA reporting requirement set forth in 49 CFR 225.9 is 
discussed in greater detail in section III.B. above. As also noted 
in section III.B., PHMSA requires immediate reports to the National 
Response Center of certain types of hazardous materials incidents. 
See 49 CFR 171.15.
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6. Chain of Custody and Control
    This NPRM proposes that certain freight railroad carriers, rail 
hazardous materials shippers, and rail hazardous materials receivers 
eliminate practices that leave hazardous materials unattended, thereby 
creating the potential for significant transportation security 
incidents. TSA's analysis indicates that there is a security 
vulnerability to HTUAs from freight railroad carriers leaving 
unattended rail cars, and in some cases entire trains, carrying one or 
more of the specified hazardous materials, for eventual pickup by 
another railroad carrier or by the consignee rail hazardous materials 
receiver. There is also a security vulnerability when rail hazardous 
materials shippers load rail cars with hazardous materials and leave 
the cars unattended, for pickup by the railroad carrier. Often these 
cars are left unattended in a non-secure area and thus may be 
vulnerable to tampering. These situations create opportunities for 
individuals to compromise the security of rail cars transporting PIH, 
explosive, or radioactive material, such as through the introduction of 
an IED.
    As discussed above, the highest risk occurs when a rail car is in 
or near an area of high population density. In applying a risk-based 
approach, TSA is proposing that the chain of custody requirements apply 
to railroad carriers when they conduct a transfer within an HTUA, or 
when they conduct a transfer with rail cars that may subsequently enter 
an HTUA. Finally, railroad carriers would apply these measures when 
delivering a car to a rail hazardous materials receiver within an HTUA. 
In this way, the rail car would be protected during transportation from 
someone attaching an IED or otherwise compromising the car when it 
could be used to endanger the HTUA.
    TSA is applying its risk-based approach for rail hazardous 
materials shippers and receivers as well. Rail hazardous materials 
facilities that offer, prepare, or load the specified hazardous 
materials typically receive residue cars from railroad carriers. TSA is 
not proposing to apply the enhanced custody and control procedures to 
residue cars at this time, although TSA is requesting comment on 
whether the rule should do so. See section III.A. of this preamble. The 
proposed rule would require hazardous materials shippers to apply the 
enhanced custody and control procedures starting at the time they load 
the car. At this point, the facility can be reasonably assured that the 
car has not been compromised. After this point, the facility would have 
to protect the car from unauthorized access and apply the other 
measures in proposed Sec.  1580.107, to provide assurance that the car 
will not present a risk when it is transported. These provisions would 
apply to rail hazardous materials shippers that offer, prepare, or load 
the specified hazardous materials, regardless of whether the facility 
is in an HTUA. Once the car leaves the facility, it would be difficult 
or impossible to determine whether the car would pass through an HTUA 
before reaching its destination, and so all of these cars must be 
protected.
    TSA would require rail hazardous materials facilities within HTUAs 
that receive or unload cars with the specified hazardous materials to 
apply the enhanced chain of custody and control measures from the time 
they accept the car from the railroad carrier until the time they 
unload the car. This continues the protection of HTUAs from rail cars 
containing the specified hazardous materials.
    The requirements of proposed Sec.  1580.107 are further described 
in the Section-by-Section Analysis, below.

[[Page 76867]]

IV. Section-By-Section Analysis of Proposed Rule

Part 1520--Protection of Sensitive Security Information

Section 1520.3 Terms Used in This Part
    This rule proposes to amend 49 CFR 1520.3 by adding a number of new 
definitions. TSA is adding these definitions to the SSI regulation to 
clarify terms that appear in proposed part 1580. This includes ``rail 
hazardous materials shipper,'' ``rail hazardous materials receiver,'' 
``rail facility,'' ``rail secure area,'' ``rail transit facility,'' 
``rail transit system or rail fixed guideway system,'' ``railroad,'' 
and ``railroad carrier.'' In addition to explaining the meaning of 
these terms by referencing proposed 49 CFR 1580.3 and the United States 
Code (USC) (as applicable), the definitions make clear that they apply 
in the context of rail transportation.
    The rule would also clarify the scope of the definition of 
``vulnerability assessment'' to specifically include rail security 
assessments. The proposed revision would expressly include the 
examination of a railroad, railroad carrier, rail facility, rail 
hazardous materials facility, rail transit system, or rail transit 
facility.
    TSA would add these six additional categories of rail security 
entities and facilities to the definition of ``vulnerability 
assessment'' to clarify that all types of rail-related vulnerability 
assessments constitute SSI. TSA seeks comment on whether this proposal 
is appropriate in its coverage of which vulnerability assessments 
warrant SSI treatment. TSA may revise this definition based upon 
comments received.
Section 1520.5 Sensitive Security Information
    TSA proposes to modify the language in 49 CFR 1520.5(b)(6)(i) 
related to inspections and investigations of alleged regulatory 
violations. The proposal would expand the current provision so that it 
applies in the context of all forms of rail transportation, including 
freight and passenger railroad carriers, rail hazardous materials 
shippers, rail hazardous materials receivers, and rail transit systems.
    Section 1520.5(b)(8) of the current SSI regulation defines details 
of aviation or maritime security measures as SSI, whether applied 
directly by the Federal government or another person. The proposed 
revision to 49 CFR 1520.5(b)(8) would expand this provision to cover 
specific details of transportation security measures applied in rail 
transportation, whether applied directly by the Federal Government or 
another person.
    Section 1520.5(b)(10) of the current SSI regulation states that 
training materials created or obtained to train persons who carry out 
aviation or maritime security measures required or recommended by DHS 
or DOT are SSI. The proposed revision to 49 CFR 1520.5(b)(10) would 
expand this provision to cover training materials for persons who carry 
out rail transportation security measures. These types of materials 
contain descriptions of security measures or countermeasures that a 
terrorist or other criminal could use to determine how to defeat 
security procedures.
    Section 1520.5(b)(11) of the current SSI regulation is intended to 
safeguard lists of information about the identities of individuals who 
hold certain positions with aviation or maritime security 
responsibilities. The proposed revision to 49 CFR 1520.5(b)(11)(i)(A) 
would expand this provision to safeguard lists of information about the 
identities of individuals having unescorted access to a rail secure 
area at a rail hazardous materials shipper or receiver. Terrorists or 
other criminals might attempt to target these types of individuals in 
order to obtain unauthorized access to a rail secure area. Accordingly, 
lists of information that identify these individuals as having 
unescorted access to a rail secure area must be protected as SSI.
    Section 1520.5(b)(12) of the current SSI regulation designates as 
SSI certain lists of critical aviation or maritime infrastructure 
assets prepared by Federal, State, or local government agencies. 
Specifically, the current provision covers any list identifying 
systems, facilities, or other assets, whether physical or virtual, so 
vital to the transportation system that the incapacity or destruction 
of such assets would have a debilitating impact on transportation 
security. The proposed revision to 49 CFR 1520.5(b)(12) would expand 
this provision to safeguard lists of critical infrastructure assets 
information concerning the rail transportation system, including rail 
hazardous materials shipper and receiver facilities. The expanded 
definition, however, would continue to cover this information as SSI 
only if the list is either prepared by DHS or DOT or is prepared by a 
State or local government agency and is submitted to DHS or DOT.
Section 1520.7 Covered Persons
    Persons covered under 49 CFR 1520.7 of the current SSI regulation 
include: airport operators; aircraft operators; foreign air carriers; 
indirect air carriers; persons who received SSI as part of a legal 
enforcement action; persons for whom a vulnerability assessment had 
been directed, created, held, funded, or approved by DHS or DOT; and 
persons employed by, contracted to, or acting for any of the persons 
listed above.
    The proposed revision to 49 CFR 1520.7 would expand the coverage of 
the SSI regulation by adding a new paragraph (n) to address railroad 
carriers, rail hazardous materials shippers, rail hazardous materials 
receivers, and rail transit systems subject to the requirements of 
proposed part 1580. In this regard, TSA notes that the scope of 
proposed part 1580 addresses: (1) Freight and other non-passenger 
railroad carriers operating rolling equipment; (2) rail hazardous 
materials shippers (as that term is defined in proposed 49 CFR 1580.3); 
(3) rail hazardous materials receivers (as that term is defined in 
proposed 49 CFR 1580.3); (4) railroad carriers that operate or provide 
intercity passenger train service or commuter or other short-haul 
railroad passenger service in a metropolitan or suburban area (as 
described by 49 U.S.C. 20102), including public authorities operating 
passenger train service; (5) passenger or freight railroad carriers 
hosting the operation of passenger train service; (6) tourist, scenic, 
historic, and excursion rail operators, whether operating on or off the 
general railroad system of transportation; (7) private cars, including 
business/office cars and circus trains, on or connected to the general 
railroad system of transportation; and (8) rail transit systems, 
including heavy rail transit, light rail transit, automated guideway, 
cable car, inclined plane, funicular, and monorail systems. However, 
these entities and rail operations would have access to SSI only to the 
extent that they have a ``need to know'' the information under Sec.  
1520.11.

Part 1580--Rail Transportation Security

Subpart A--General

Section 1580.1 Scope
    TSA proposes that parts of this rule apply to all types of rail 
operations, including freight railroad carriers; intercity, commuter, 
and short-haul railroad passenger train service; and rail mass transit 
systems. Further, in addition to applying to all freight railroad 
carriers, the proposal also includes additional requirements for 
railroad carriers that transport hazardous materials. The NPRM would 
also apply to rail operations at certain

[[Page 76868]]

fixed-site transportation facilities, including (1) rail hazardous 
materials shippers that offer, prepare, or load for transportation in 
commerce by rail one or more of the specified hazardous materials and 
(2) rail hazardous materials receivers located within an HTUA that 
receives or unloads from transportation in commerce by rail one or more 
of the specified hazardous materials. The NPRM also covers the 
operation of private rail cars on or connected to the general railroad 
system of transportation and tourist, scenic, historic, and excursion 
operations, whether on or off the general railroad system of 
transportation.
Section 1580.3 Terms Used In This Part
    This section contains a set of definitions to introduce the 
regulations. TSA intends these definitions to clarify the meaning of 
important terms as they are used in the proposed rule. Some of the 
definitions involve new or fundamental concepts, which require further 
discussion.
    The term ``general railroad system of transportation'' is derived 
from FRA's ``Statement of Agency Policy Concerning Enforcement of the 
Federal Railroad Safety Laws,'' which appears in Appendix A to 49 CFR 
part 209, as in effect on October 1, 2005. FRA uses the term to 
describe the network of standard gage track over which goods may be 
transported throughout the nation and passengers may travel between 
cities and within metropolitan and suburban areas.
    The term ``heavy rail transit'' means service provided by self-
propelled electric railcars, typically drawing power from a third rail, 
operating in separate rights-of-way in multiple cars; also referred to 
as subways, metros, or regional rail. The term ``light rail transit'' 
means service provided by self-propelled electric railcars, typically 
drawing power from an overhead wire, operating in either exclusive or 
non-exclusive rights-of-way in single or multiple cars and with shorter 
distance trips and frequent stops; also referred to as streetcars, 
trolleys, and trams. ``Rail transit system'' or ``Rail Fixed Guideway 
System'' means any light, heavy, or rapid rail system, monorail, 
inclined plane, funicular, trolley, or automated guideway. Two examples 
of a ``rail fixed guideway system,'' consistent with FTA's use of the 
term in 49 CFR part 659, are heavy rail transit and light rail transit. 
However, TSA is using the term more broadly than FTA uses it in part 
659. Specifically, TSA's authority over ``rail fixed guideway 
systems,'' or rail transit systems, is not linked to whether the system 
is regulated by FRA and is not limited to systems that receive or seek 
to receive funds under FTA's grant program. Accordingly, as the terms 
``heavy rail transit'' and ``light rail transit'' are used in proposed 
part 1580, TSA's authority extends to all rail transit systems 
regardless of whether the system is subject to regulation by FTA or FRA 
or neither agency.
    The term ``rail hazardous materials receiver'' means any facility 
that has a physical connection to the general railroad system of 
transportation and receives in transportation by rail or unloads from 
transportation by rail one or more of the categories and quantities of 
hazardous materials set forth in 49 CFR 1580.100(b), but does not 
include a facility owned or operated by a department, agency, or 
instrumentality of the Federal Government. For a facility to fall 
within the definition of a ``rail hazardous materials receiver,'' there 
must be a physical connection to the general railroad system of 
transportation, such as track used by a railroad carrier to enter the 
facility to drop off rail cars.
    The term ``rail hazardous materials shipper'' means any facility 
that has a physical connection to the general railroad system of 
transportation and offers, prepares, or loads for transportation by 
rail one or more of the categories and quantities of hazardous 
materials set forth in 49 CFR 1580.100(b), but does not include a 
facility owned or operated by a department, agency, or instrumentality 
of the Federal Government. The term includes companies that load or 
otherwise prepare tank cars for rail transportation in commerce. For a 
facility to fall within the definition of a ``rail hazardous materials 
shipper,'' there must be a physical connection to the general railroad 
system of transportation, such as track used by a railroad carrier to 
enter the facility to pick up rail cars. A facility is not a ``rail 
hazardous materials shipper'' if it only unloads or receives one or 
more of the categories and quantities of hazardous materials set forth 
in 49 CFR 1580.100(b).
    The term ``rail secure area'' means a secure location(s) identified 
by an owner or operator of a rail hazardous materials shipper or rail 
hazardous materials receiver where security-related pre-transportation 
or transportation functions are performed or rail cars containing the 
categories and quantities of hazardous materials set forth in 49 CFR 
1580.100(b) are prepared, loaded, stored, and/or unloaded. The 
standards for a secure area are the same for all rail hazardous 
materials shippers and receivers regardless of whether the facility is 
offering or receiving the hazardous material. Secure areas must have 
physical security measures in place, which could include fencing, 
lighting, or monitoring by a signaling system (such as a video system, 
sensing equipment, or mechanical equipment). If the owner or operator 
employs a signaling system, an employee or authorized representative of 
the owner or operator must be located either in the immediate area of 
the rail car or at a remote location within the facility (such as a 
control room) in order to observe the system.
    The terms ``transportation or transport'' mean, in the context of 
freight rail, the movement of property, including loading, unloading, 
and storage. In the context of passenger rail, the terms mean the 
movement of people, boarding, and disembarking incident to that 
movement. As noted earlier, TSA has broad authority under ATSA to 
regulate the security of all modes of transportation, including rail 
transportation. In this regard, TSA's statutory authority is not 
limited by PHMSA's determination as to which functions are pre-
transportation or transportation functions for purposes of the 
applicability of the hazardous materials laws and regulations (see 49 
CFR 171.8). Under its broad authority, when TSA develops policies, 
strategies, and plans to address threats to transportation, it must 
consider the security of the entire transportation system. Because of 
the vulnerability of the transportation system to the introduction of 
an IED or other destructive instrument, TSA's security authority 
extends beyond freight railroad carriers (regardless of whether they 
transport hazardous materials) and also includes rail hazardous 
materials shippers before they offer the rail cars--while the rail cars 
are being stored incidental to movement and during preparation and 
loading--and rail hazardous materials facilities after delivery, during 
unloading, and while the rail cars are being stored. In addition, TSA's 
security authority over passenger railroad carriers and rail transit 
systems is no less extensive than FRA's statutory authority over 
railroad safety matters or FTA's authority over State-conducted 
oversight of the safety and security of rail fixed guideway systems.
Section 1580.5 Inspection Authority
    Pursuant to 49 U.S.C. 114, TSA has authority to inspect for 
compliance with applicable statutory and regulatory requirements. This 
proposed rule

[[Page 76869]]

notifies the public of TSA's broad statutory authority to inspect and 
codifies the scope of TSA's existing inspection program as it relates 
to rail security.
    Sections 1580.5(a) and (b) state that railroad carriers, covered 
rail hazardous materials shippers or receivers, and transit systems 
must allow TSA and DHS officials working with TSA (such as 
representatives from DHS's Office of Infrastructure Protection) to make 
inspections or tests at any time or place to carry out its statutory or 
regulatory authorities. Proposed 49 CFR 1580.5(b) would require the 
carrier, shipper, receiver, or transit system to allow any authorized 
TSA and DHS officials to enter and be present within any area or 
conveyance without access media or identification media issued or 
approved by a railroad carrier, rail hazardous materials shipper, rail 
hazardous materials receiver, or transit system owner or operator, in 
order to inspect or test compliance, or perform other such duties as 
TSA may direct. This section would also set forth affirmative duties on 
railroad carriers, rail hazardous materials shippers, rail hazardous 
materials receivers, and transit system owners and operators to 
cooperate with and allow the inspections and tests and the copying of 
records, irrespective of the media on which they are stored. As to the 
location of the inspections, TSA must be able to inspect at every 
location where TSA is carrying out activities under ATSA.
    In addition to inspecting for compliance with specific regulations, 
TSA can conduct general security assessments. TSA's authority with 
respect to transportation security is comprehensive and supported with 
specific powers to assess threats to transportation security; monitor 
the state of awareness and readiness throughout the rail sector; 
determine the adequacy of an owner or operator's transportation-related 
security measures; and identify security gaps. TSA, for example, could 
inspect and evaluate for emerging or potential security threats based 
on intelligence indicators to determine whether the owner or operator's 
strategies and security measures are likely to deter these threats. If 
TSA identifies security deficiencies, TSA could initiate appropriate 
action to enhance rail security such as counseling the railroad 
carrier, rail hazardous materials shipper, rail hazardous materials 
receiver, or rail transit system owner or operator; coordinating with 
other Federal, State, or local agencies to correct the deficiency; or 
conducting rulemakings to require enhanced security measures.
    If TSA, in the course of an inspection identifies evidence of non-
compliance with a DOT regulation, TSA would provide the information to 
the appropriate DOT modal administration for action.\54\ In this 
regard, TSA would not directly enforce DOT security rules and would not 
initiate safety inspections.
---------------------------------------------------------------------------

    \54\ Since FRA enforces the Federal hazardous materials 
transportation law as it pertains to the shipment or transportation 
of hazardous materials by rail (49 U.S.C. 5101 et seq., as amended 
by section 1711 of the Homeland Security Act of 2002, (Pub. L. 107-
296, Nov. 25, 2002) and Title VII of the 2005 Safe, Accountable, 
Flexible and Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU), (Pub. L. 109-59, Aug. 10, 2005)), if TSA determined 
that a railroad carrier or rail hazardous materials shipper had 
failed to develop and implement a security plan required by 49 CFR 
172.800, TSA would inform FRA of the non-compliance.
---------------------------------------------------------------------------

    An inherent part of TSA and DHS officials' performing security 
assessments and inspecting for regulatory (including SD) compliance is 
obtaining copies of records. It is necessary, so that TSA can preserve 
the records for further review and, on occasion, use the records as 
evidence. TSA does not anticipate encountering difficulty on this 
issue, but is including explicit language in the proposed rule, 
clarifying that TSA has the authority to obtain and review copies of 
records, in order to avoid any confusion or misunderstanding.
    TSA is aware that it must conduct its inspection activity in a 
reasonable manner, considering all of the relevant circumstances 
surrounding the rail operation. However, covered entities must provide 
TSA with access to inspect at any time, without notice, because 
unexpected urgent situations may arise. To the extent practicable, TSA 
will make arrangements for records reviews ahead of time and will 
schedule the inspections for normal business hours, to ensure that 
appropriate owner/operator personnel are available to assist and that 
the inspection does not interfere or cause undue disruption. 
Nevertheless, TSA will have to conduct some inspections and tests 
unannounced, to determine whether the owner or operator is in 
compliance when it does not know that TSA may be inspecting. Further, 
in the case of passenger rail (for example), TSA may sometimes inspect 
and test during peak traffic periods to ensure that owners and 
operators are in compliance with the security requirements, even during 
the busiest times. These peak periods would be those times when the 
largest portion of the traveling public is being protected by the 
security measures. Finally, specific threats, heightened periods of 
alert, or other emergency situations may necessitate that TSA engage in 
inspection and test activities outside of normal business operating 
hours.
    Proposed 49 CFR 1580.5(b) refers to copying of records, not just 
documents. Records may be kept in a number of formats, such as paper, 
microfilm, and electronic. All of these formats fall within the scope 
of proposed Sec.  1580.5(b).
    Regarding TSA and DHS officials working with TSA, TSA intends to 
use properly trained personnel to conduct inspections. These 
individuals would receive training on safety procedures to follow while 
aboard a conveyance or inside a terminal or facility, in addition to 
training on technical security requirements. Individuals performing 
these inspections would carry Federal government credentials 
identifying themselves as having official authority to inspect, and any 
covered entity wishing to authenticate the identity of an individual 
purporting to represent TSA would be able to contact appropriate TSA 
officials at TSA's headquarters and field locations. TSA maintains an 
operations center that stakeholders may contact on a 24 hour a day 7 
days a week basis if they have concerns.
    Proposed 49 CFR 1580.5(c) requires persons regulated under this 
rule to allow TSA representatives, and DHS officials working with TSA, 
the flexibility to gain access to any conveyance, facility, terminal, 
or infrastructure asset without holding access or identification media 
issued by the owner or operator, when the officials need to conduct a 
security assessment, compliance inspection, or test. The act of 
obtaining such media would provide personnel at the inspection or test 
location with an opportunity to identify and recognize TSA and DHS 
officials, thereby reducing or negating the value of the visit. As 
noted above, at times, TSA/DHS may find it necessary to make 
unannounced, anonymous visits to an area or conveyance, but would do so 
under very controlled conditions using personnel who are trained both 
in security and in railroad, hazardous materials facility, and transit 
workplace safety protocols.

Subpart B-Freight Rail Including Freight Railroad Carriers, Rail 
Hazardous Materials Shippers, Rail Hazardous Materials Receivers, and 
Private Cars

Section 1580.100 Applicability
    TSA proposes to apply this subpart to all freight railroad carriers 
and to apply additional requirements to railroad

[[Page 76870]]

carriers that transport specified hazardous materials. The subpart 
would also apply to rail hazardous materials facilities that offer, 
prepare, or load for transportation in commerce by rail one or more of 
the enumerated categories and quantities of hazardous materials 
specified in 49 CFR 1580.100(b) and certain rail hazardous materials 
facilities located within an HTUA that receive in transportation by 
rail or unload from transportation by rail one or more of the 
enumerated categories and quantities of hazardous materials specified 
in 49 CFR 1580.100(b). In addition, this subpart would also cover the 
operation of private rail cars on or connected to the general railroad 
system of transportation.
Section 1580.101 Rail Security Coordinator
    It is important that TSA have a point of contact with the operator 
for the exchange of vital security information. The proposed rule 
requires that each covered freight railroad carrier, rail hazardous 
materials shipper, and rail hazardous materials receiver have one RSC 
and one or more alternate RSCs. This would allow different people to be 
on call at different times, but would necessitate that at least one 
individual be available to TSA on a 24 hour a day 7 day a week basis. 
TSA anticipates that the freight railroad carriers generally will 
designate at the corporate level a lead RSC for the entire railroad 
operation and select other individuals who will assist in carrying out 
the job duties. In the case of rail hazardous materials shippers and 
receivers, TSA recognizes that the large companies may have many 
facilities that would be subject to this rule and would expect that the 
companies would designate one RSC at the corporate level and would 
choose other corporate employees to help implement the requirements of 
this rule at the covered facilities.
    The proposal would permit an individual serving as an RSC to 
perform other duties in addition to those that TSA requires. That 
individual need not serve full-time as the RSC. TSA anticipates that 
this will particularly be the case for smaller freight railroads or 
rail hazardous materials facilities. Regardless of who is serving as 
the RSC on a given day, however, the carrier or facility would remain 
responsible if any official to whom the RSC security functions are 
delegated fails to perform them properly.
Section 1580.103 Location and Shipping Information for Certain Rail 
Cars
    TSA proposes to require the following entities to provide TSA, upon 
request, with the location and other shipping information of rail cars 
containing the hazardous materials specified in 49 CFR 1580.100(b): (1) 
Freight railroad carriers transporting the specified hazardous 
materials; (2) rail hazardous materials shippers offering, preparing, 
or loading for transportation in commerce by rail the specified 
hazardous materials; and (3) rail hazardous materials facilities 
receiving in commerce by rail or unloading from transportation by rail 
the specified hazardous materials. As discussed below, TSA believes 
that carriers, shippers, and receivers have the capability of using 
existing systems and technologies to report on the locations and 
shipping information of certain high profile hazardous materials. TSA 
anticipates that reporting requests will be rare and often coincide 
with elevated threat situations or in response to a security incident.
    Paragraph (b) states that each affected freight railroad carrier, 
rail hazardous materials shipper, and rail hazardous materials receiver 
must develop procedures to determine the location and shipping 
information required under paragraph (c) of this section for rail cars 
under their physical custody and control containing the specified 
hazardous materials. The procedures must enable the carrier or facility 
to provide the information to TSA within one hour of receiving the 
request. Because TSA's proposal is a performance-based system, TSA does 
not require carriers or facilities to use any specific technology to 
acquire the location of rail cars. However, TSA anticipates that 
covered entities will meet the standard by using existing technology, 
including radio frequency identification (RFID) tags,\55\ network 
computer systems, and telecommunication systems such as cellular 
telephones. TSA also expects that certain freight rail carriers and 
rail hazardous materials facilities will adapt procedures currently 
used to comply with shipping paper retention requirements under DOT's 
hazardous materials regulations.\56\
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    \55\ RFID tags are small electronic devices designed to contain 
information that can be retrieved at a distance using a specialized 
reader. They are known in the industry as AEI tags.
    \56\ In pertinent part, the Federal hazmat law and regulations 
require rail shippers of hazardous materials to retain a copy of the 
shipping paper for a period of 2 years after the shipping paper is 
provided to a freight rail carrier and carriers to retain a copy of 
a shipping paper for a period of 1 year after the date the shipping 
paper is received from the shipper. See 49 U.S.C. 5110; 49 CFR 
172.201(e) and 174.24.
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    With respect to freight railroad carriers to which this rule would 
apply, TSA notes that the industry may provide the Federal Government 
with the required location and shipping information using AEI tags.\57\ 
The railroad industry uses a rail car and locomotive tracking system 
that employs AEI tags on most freight cars and locomotives in the 
United States and Canada. Freight railroad carriers use AEI information 
for confirming train consists and are beginning to use the AEI 
information to identify specific rail cars that have been flagged by 
wayside equipment defect detectors. AEI tagging is the current industry 
standard for rail cars.
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    \57\ An AEI tag system uses a series of track side readers that 
record the movement of rail cars as they pass by the reader. The 
readers then upload the car information to the railroad carrier's 
central data processing center, and the railroad carrier transmits 
this information to an industry-sponsored central databank. This 
central databank in turn supplies the car location information to 
other railroad carriers, rail car owners, and rail hazardous 
materials facilities.
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    Tracking and other types of communications systems enable freight 
railroad carriers to monitor a shipment while en route to its 
destination and to identify various service irregularities. Some types 
of tracking systems employ GPS or GPS-type positioning information and 
coded or text messaging transmitted over a terrestrial communications 
system. The railroad industry and FRA are cooperating on the 
development of Positive Train Control (PTC) systems. PTC systems 
include digital data link communications networks, positioning systems, 
on-board computers with digitized maps and in-cab displays, throttle-
brake interfaces on locomotives, wayside interface units, and control 
center computers and displays. PTC systems can track the precise 
location of all trains and the individual cars that make up the train 
and will be capable of remote intervention with train operations. DHS 
is currently evaluating the feasibility, costs, and benefits of 
proposals to develop certain communication and tracking capabilities 
for rail hazardous materials shipments. As discussed in section 
III.C.4. above, TSA is seeking comments on the feasibility of the 
freight rail industry using GPS tracking systems to determine the 
location of rail tank cars, including information on the anticipated 
costs and benefits of employing GPS technology for this purpose.

[[Page 76871]]

    Under paragraph (b), TSA would limit the potential scope of the 
requested location and shipping information to rail cars ``within the 
physical custody and control'' of the freight railroad carrier, rail 
hazardous materials shipper, or rail hazardous materials receiver; 
actual ownership of the rail car or the track on which the rail car is 
located is not relevant to determining which entity must provide the 
information to TSA. Accordingly, TSA would ask freight railroad 
carriers to provide information only for cars that have been accepted 
for, or are already in transportation; the term ``accepted'' means that 
the carrier has physically taken possession of a hazardous material for 
purposes of transporting it. TSA would ask rail hazardous materials 
facilities to report on rail cars physically located on their property 
that a railroad carrier has not offered or accepted for transportation.
    Paragraph (c) of this section enumerates the minimum amount of 
information that the freight railroad carrier, the rail hazardous 
materials shipper, and the rail hazardous materials receiver must be 
able to provide to TSA upon request. This information consists of the 
rail car's location, railroad milepost, and track designation (such as 
main track, secondary track, or division and subdivision); the time the 
freight railroad carrier, rail hazardous materials shipper, or rail 
hazardous materials receiver determined the rail car's location; the 
rail car's routing; a list of the total number of rail cars containing 
the designated hazardous material, broken down by proper shipping name, 
hazard class or division number, and identification number; each rail 
car's initial and number; and transportation status.
    In the case of freight railroad carriers, TSA would ordinarily 
request the rail car's location broken down by city, county, and State 
as well as the railroad carrier's designated milepost location. By 
contrast, in the case of hazardous material facilities, since TSA would 
already have the facility's address, TSA would likely focus its request 
on discerning the total number of rail cars located at that facility 
and the types of hazardous materials contained in those rail cars. When 
TSA requests a freight railroad carrier to provide a rail car's routing 
information, TSA intends to ask for information on the entire route, 
including point of origination, destination, and interchange points 
with other freight railroad carriers.
    For each rail car containing one or more of the hazardous materials 
listed in proposed 49 CFR 1580.100(b), TSA would require the car report 
to contain the proper shipping name, hazard class or division, and UN 
identification number assigned to the material in accordance with the 
Hazardous Materials Table in 49 CFR 172.101 (DOT's HMRs), as well as 
the rail car's unique identifying initial and number. ``Transportation 
status'' refers to whether the car is being prepared for 
transportation, in transportation, or out of transportation. By 
reviewing this location and shipping information and available 
intelligence information, TSA will be able to determine whether it 
needs to implement or order additional security measures to address a 
particular threat or threat assessment.
    The proposed rule provides freight railroad carriers, rail 
hazardous materials shippers, or rail hazardous materials receivers 
with a maximum of one hour to report the location and shipping 
information for the specified rail car(s) to TSA or DHS officials. TSA 
recognizes that the potential magnitude of the information request, as 
well as unique operational considerations of the railroad carrier, rail 
hazardous materials shipper, or rail hazardous materials receiver, may 
justify additional time to respond. Accordingly, this proposal permits 
the carrier, shipper, or receiver to seek additional time to respond to 
a specific request. TSA/DHS will evaluate each request on a case-by-
case basis.
    While the proposed rule text provides a one-hour timeframe, TSA 
also requests comment on an alternative time proposal. Instead of a 
maximum of one hour, the alternative proposal would set the maximum 
time period for providing information at five (5) minutes or thirty 
(30) minutes, depending on the nature of the request. Freight railroad 
carriers, rail hazardous materials shippers, and rail hazardous 
materials receivers would have a maximum of five (5) minutes from the 
time of a TSA request to provide the location and shipping information 
for a specific rail car containing the specified categories and 
quantities of hazardous materials. Freight railroad carriers, rail 
hazardous materials shippers, and rail hazardous materials receivers 
would have a maximum of thirty (30) minutes from the time of a TSA 
request to provide the location and shipping information for all rail 
cars under its physical custody and control that contain one or more of 
the specified categories and quantities of hazardous materials.
    We note that in an emergency, such as a specific threat against a 
particular train or a general threat involving the metropolitan area 
through which the train is operating, it may be critical for TSA to 
have this information very quickly to address threats to persons and 
property. The more quickly we can receive this information, the more 
quickly we can direct that protective measure be implemented. We 
believe that existing and emerging technology can be used to achieve 
these timeframes. We request comments on how these shorter timeframes 
could be achieved, including the cost of compliance, and we are 
considering adopting these shorter time frames in the final rule.
    The proposal also requires that freight railroad carriers, rail 
hazardous materials shippers, and rail hazardous materials receivers 
submit the data in a specific format but allows a choice of five 
different reporting options (unless another reporting method is 
approved in writing by TSA). TSA proposes to establish the one hour 
reporting timeframe and permit only a limited number of commonly used 
information reporting formats based upon the importance of timely 
information that TSA can quickly understand under exigent 
circumstances. However, TSA remains open to the possibility of being 
less prescriptive in the final rule. TSA seeks comment on what 
reporting timeframe would be reasonable. TSA also seeks comment on what 
reporting formats would allow carriers, shippers, and receivers to 
provide the information to the Federal Government in a user friendly, 
efficient, and cost effective manner yet consistent with the security 
need to receive and analyze the information quickly and accurately.
Section 1580.105 Reporting Significant Security Concerns
    This rule proposes to require freight railroad carriers, rail 
hazardous materials shippers that offer, prepare, or load for 
transportation in commerce by rail one or more of the categories and 
quantities of hazardous materials set forth in proposed 49 CFR 
1580.100(b), and rail hazardous materials receivers that receive in 
commerce by rail or unload one or more of the categories and quantities 
of hazardous materials set forth in proposed 49 CFR 1580.100(b) to 
immediately report potential threats or significant security concerns 
encompassing incidents, suspicious activities, and threat information. 
Incidents, activities, and information include, but are not limited to:
    (1) Interference with the engineer, conductor, or other crewmember 
of a freight railroad train, such as an attempt to gain entry to the 
locomotive cab.
    (2) Bomb threats, whether specific as to target, location, and 
timing, or non-specific.
    (3) Reports or discovery of suspicious items that result in the 
disruption of rail

[[Page 76872]]

operations, such as evacuation of a conveyance or facility or the 
temporary halting of rail service due to the discovery of a large 
package inside a freight train locomotive. This disruption could also 
occur at a rail hazardous materials facility, which discovers a 
suspicious item within a rail secure area and delays the departure of a 
freight railroad carrier. Any individual may make the report or 
discovery; it need not come from an employee or authorized 
representative of the freight railroad carrier or rail hazardous 
materials facility.
    (4) Suspicious activity occurring onboard a freight train or inside 
the facility of a freight railroad carrier, rail hazardous materials 
shipper, or rail hazardous materials receiver that results in a 
disruption of rail or facility operations, such as evacuation of a 
conveyance or facility or the temporary halting of rail service due to 
the discovery of a suspected IED. Again, this disruption could also 
occur at a rail hazardous materials facility that discovers a 
suspicious individual trespassing within a rail secure area and delays 
the departure of a freight railroad carrier.
    (5) Suspicious activity observed at or around freight rail cars, 
facilities, or infrastructure used in the operation of the freight 
railroad, rail hazardous materials shipper, or rail hazardous materials 
receiver, whether observed by employees or authorized representatives 
of the railroad carrier, rail hazardous materials shipper, or rail 
hazardous materials receiver, or other individuals.
    (6) Discharge, discovery, or seizure of a firearm or other deadly 
weapon on a freight train, in a station, terminal, storage facility or 
yard, rail secure area, or other location used in the operation of the 
freight railroad, rail hazardous materials shipper, or rail hazardous 
materials receiver, regardless of whether an individual legally 
possesses the firearm or deadly weapon.
    (7) Indications of tampering with freight rail cars, whether 
located inside or outside the confines of a rail hazardous materials 
facility including signs that the security of the car may have been 
compromised or that an IED may be present.
    (8) Information relating to the possible surveillance of a freight 
railroad train or facility, storage yard, rail hazardous materials 
shipper or receiver facility, or other location used in the operation 
of the freight railroad carrier, rail hazardous materials shipper, or 
rail hazardous materials receiver, regardless of whether the source of 
the information is an employee or authorized representative of the 
freight railroad carrier, rail hazardous materials shipper, or rail 
hazardous materials receiver, or other individual.
    (9) Correspondence received by the freight railroad carrier, rail 
hazardous materials shipper, or rail hazardous materials receiver 
indicating a potential threat to freight rail transportation or the 
rail hazardous materials facility.
    (10) Other incidents involving breaches of the security of the 
freight railroad carrier or rail hazardous materials shipper or 
receiver's operations or facilities that could reasonably represent 
potential threats or significant security concerns.
    The proposal would require freight railroad carriers and covered 
rail hazardous materials shippers and receivers to report the above 
types of concerns and threats to DHS/TSA in a manner that TSA 
prescribes. TSA seeks comment on the available methods of transmitting 
this information to TSA (such as electronically, telephonically), 
including anticipated costs of compliance. With respect to each concern 
or threat, the freight railroad carrier or covered rail hazardous 
materials shipper or receiver would have to report the following 
information, to the extent it was available and applicable, to DHS/TSA:
    (1) Name of the reporting entity and contact information for 
communication by telephone and e-mail.
    (2) The affected freight train, station, terminal, rail hazardous 
materials facility, or other rail facility or infrastructure.
    (3) Identifying information on the affected freight train, 
including train line and route.
    (4) The origination and route termination locations for the 
affected freight train.
    (5) Current location of the affected freight train, with as much 
specificity as circumstances and available information permits.
    (6) Description of the threat, incident, or activity affecting the 
freight train or rail facility or rail hazardous materials shipper or 
receiver.
    (7) Names and other available biographical data of individuals 
purported to be involved in the threat, incident, or activity.
    (8) Source of the threat information.
    Possible sources of the information might include: a Federal (with 
the exception of DHS/TSA), State, or local government agency; a foreign 
government, to the extent there is no legal prohibition on the 
reporting of such information; an employee or authorized representative 
of the freight railroad carrier, rail hazardous materials shipper; or 
rail hazardous materials receiver; another freight railroad carrier, 
rail hazardous materials shipper or receiver, passenger railroad 
carrier, or rail transit system; or a private individual.
Section 1580.107 Chain of Custody and Control Requirements
    In this section, TSA proposes to require a secure chain of physical 
custody for rail cars containing one or more of the categories and 
quantities of hazardous materials set forth in proposed 49 CFR 
1580.100(b). This section would impose analogous requirements on 
freight railroad carriers, rail hazardous materials shippers, and rail 
hazardous materials receivers.
    In paragraph (a), TSA proposes that a rail hazardous materials 
shipper, regardless of whether it is physically located within an HTUA 
listed in Appendix A to part 1580, must satisfy the following 
requirements before it can transfer physical custody of a rail car 
containing the specified hazardous materials to a freight railroad 
carrier. First, the rail hazardous materials shipper must perform a 
physical security inspection of the rail car to ensure that no one has 
tampered with it or other compromised its security, including 
inspecting for IEDs and other items that do not belong. Second, the 
rail hazardous materials shipper must store or keep the rail car in an 
area with physical security measures in place during pre-transportation 
functions, including loading and temporary storage, until the freight 
railroad carrier assumes physical custody of the car. The physical 
security measures include such things as fencing, lighting, or video 
surveillance. Third, the rail hazardous materials shipper must document 
the transfer of custody to the freight railroad carrier, either in 
writing or electronically.
    In paragraph (b), TSA proposes that a freight railroad carrier, 
regardless of whether the carrier is physically accepting the rail car 
at a rail hazardous materials shipper facility located outside or 
within an HTUA, must satisfy two requirements. First, the carrier must 
document the transfer of custody, either in writing or electronically. 
Second, the carrier must perform the security inspection that DOT is 
proposing to require under a new paragraph to 49 CFR 174.9.
    In paragraph (c), TSA proposes requirements for certain rail car 
transfers occurring within an HTUA listed in Appendix A to part 1580. 
Specifically, TSA would require each delivering freight railroad 
carrier transferring physical custody of rail cars carrying one or more 
of the materials

[[Page 76873]]

listed in proposed 49 CFR 1580.100(b) to a receiving freight railroad 
carrier to ensure that the receiving carrier takes physical possession 
of the rail car before the delivering carrier leaves the interchange 
point. Both the delivering and receiving freight railroad carriers 
would be responsible for compliance under this paragraph for adopting 
and implementing procedures to ensure that the rail car is attended at 
all times during the physical transfer of custody. The procedures would 
include performance of the security inspection that DOT is proposing to 
require in 49 CFR 174.9. In addition, both freight railroad carriers 
must document the transfer of custody, either in writing or 
electronically. Paragraph (d) would apply the same requirements of 
paragraph (c) whenever a freight railroad carrier transfers or receives 
a rail car containing one or more of these materials if the rail car 
may subsequently enter an HTUA.
    For purposes of paragraphs (c) and (d), the requirement ``to ensure 
that the rail car is not left unattended at any time during the 
physical transfer of custody'' means that the delivering and receiving 
freight railroad carriers would ensure that an employee or authorized 
representative of either of the railroad carriers attend to that rail 
car by being physically present and having an unobstructed view of the 
rail car prior to the delivering railroad carrier leaving the 
interchange point. While TSA expects that the attending employee would 
be the train conductor or a security guard, TSA is not specifying that 
any particular category of individuals needs to perform this job 
function and is not specifying that a freight carrier would have to use 
a hazmat employee (as the term is used in 49 CFR 171.8) to perform this 
job function. Moreover, to allow freight railroad carriers a maximum 
degree of flexibility in adopting and implementing procedures to meet 
the car attendance performance standard, this section does not specify 
a maximum number of rail cars permitted per attending employee (or 
authorized representative) or define how close that individual must be 
to the rail car while attending it. However, for purposes of compliance 
with this section, the freight railroad carriers must work together to 
implement procedures to ensure that individuals attend the rail car 
until the physical transfer of custody is complete. The requirement 
that an employee or authorized representative attend rail cars would be 
met where personnel are provided by or on behalf of a department, 
agency, or instrumentality of the Federal Government to monitor or 
provide security for the rail car.
    Paragraphs (c) and (d) would also require the receiving freight 
railroad carrier to perform a security inspection, which, as noted 
above, DOT is proposing in its NPRM. DOT's HMR currently require 
freight railroad carriers to conduct a safety inspection of each car 
containing hazardous materials at ground level. See 49 CFR 174.9. 
However, safety-related inspections do not specifically address the 
possibility that a terrorist could introduce a foreign object on the 
tank car or the rail car chassis, the most pernicious being an IED. In 
the rulemaking that PHMSA is developing concurrent to TSA's NPRM, PHMSA 
is proposing to increase the scope of the safety inspection to include 
a security inspection component for all rail cars carrying placarded 
loads of hazardous materials. The primary focus of the enhanced 
inspection would be to recognize an IED.
    To guard against the possibility that an unauthorized individual 
could tamper with rail cars containing hazardous materials to 
precipitate an incident during transportation, such as detonation or 
release using an IED, PHMSA is proposing to require that freight 
railroad carriers' pre-trip inspections of placarded rail cars include 
an inspection for signs of tampering with the rail car, including its 
seals and closures, and any item that does not belong, suspicious 
items, or IEDs. TSA will provide guidance to freight railroad carriers 
to train their employees on identifying IEDs and signs of tampering. 
Where a freight railroad carrier finds a foreign object or indication 
of tampering, the freight railroad carrier would be required to take 
appropriate actions to ensure that the security of the rail car and its 
contents have not been compromised before accepting the rail car for 
further movement. If PHSMA's NPRM proposal to add a security inspection 
requirement to 49 CFR 174.9 is in effect as a regulation at the time 
TSA's NPRM becomes a final rule, paragraphs (c) and (d) of this section 
would require the freight railroad carrier's rail car attendance 
procedures to provide for a security inspection, in accordance with 
DOT's HMR.
    In paragraph (d), TSA requires the delivering and receiving freight 
railroad carriers involved in an interchange outside an HTUA of a rail 
car containing one or more of the quantities and categories of hazard 
materials set forth in 49 CFR 1580.100(b) to adopt and implement 
procedures to ensure that the rail car is attended during the physical 
transfer of custody for rail cars if the rail car ``may subsequently 
enter an HTUA.'' The reason TSA is applying the chain of custody 
requirements to these interchanges outside the HTUA is to address the 
possibility that a terrorist would choose an unpopulated or isolated 
location on a railroad line to compromise the security of an unattended 
rail car, such as by attaching an IED to it. The rail car could then 
travel into an HTUA and a terrorist could detonate it, thereby using 
the car as a weapon of mass effect to cause significant casualties and 
property damage.
    TSA intends that freight railroad carriers make the determination 
as to whether paragraph (d) is applicable based upon the route 
information reasonably available to them at the time the delivering 
railroad carrier transfers the rail car to the receiving railroad 
carrier. In this regard, TSA recognizes that, after a rail car has been 
interchanged, a change in route may become necessary resulting from a 
cause unknown and unforeseeable to either freight railroad carrier at 
the time of the interchange, such as a rockslide that blocks trackage 
located outside the HTUA. Accordingly, since the randomness and 
unpredictability of such a unique event occurring makes it unlikely 
that the rail car could be exploited by a terrorist, TSA would allow 
the unattended rail car to enter an HTUA without penalty to either 
freight railroad carrier. Of course, if the freight railroad carriers 
know in advance before the interchange that, for whatever reason, the 
rail car must be re-routed through an HTUA, this limited exception to 
the chain of custody requirements in paragraph (d) of this section 
would be inapplicable.
    TSA is not proposing that carriers or facilities submit the 
transfer of custody documentation to TSA. TSA would only want the 
document if it requests it. Each freight railroad carrier, rail 
hazardous materials shipper, and rail hazardous materials receiver 
required to create this documentation must maintain a copy of the 
specified information or an electronic image thereof, and must make the 
record available, upon request, to TSA. TSA proposes in paragraph (h) 
of this section that the documentation be maintained for at least 60 
calendar days.
    TSA also is seeking comment on an alternative to the chain of 
custody requirements in proposed in paragraphs (c) and (d) for 
transfers between railroad carriers that occur outside of an HTUA. This 
alternative would not require freight railroad carriers to attend rail 
cars while the rail cars are being transferred. Under this alternative, 
TSA would only permit such unattended

[[Page 76874]]

transfers to occur if they take place in a low risk location, such as 
at an appropriate distance away from such locations as schools, 
hospitals, and nursing homes. The receiving railroad carrier would be 
required to conduct a security inspection of the rail car as provided 
in proposed paragraph (d) of this NPRM. In addition, both the 
transferring and the receiving railroad carrier would be required to 
document the physical transfer of custody as in proposed (c) and (d). 
TSA seeks comment on whether the potential security threat from this 
alternative warrants the inclusion of requirements to attend the car as 
now is in proposed paragraphs (c) and (d). TSA also invites comments on 
the appropriate criteria that TSA should use to define the term ``low 
risk location,'' including comments on appropriate geographical 
distances and/or boundaries to define these locations.
    In paragraph (e), TSA is proposing that freight railroad carriers 
delivering rail cars containing one or more of the quantities and 
categories of hazardous materials set forth in 49 CFR 1580.100(b) to a 
rail hazardous materials receiver located within an HTUA must ensure 
that an employee or authorized representative of the receiver is 
physically present to accept receipt of the car, unless the car is 
delivered to a secure area of the facility. Alternatively, the freight 
railroad carrier may use its own employees or authorized 
representatives to attend the rail car until the rail hazardous 
materials receiver accepts physical custody and control of the car. The 
freight railroad carrier must not depart the rail hazardous materials 
receiver until it has released the car to a hazardous materials 
facility employee or authorized representative or has secured the car 
in a secure area.
    The standards for a rail secure area are the same for rail 
hazardous materials facilities regardless of whether the rail hazardous 
materials facility is receiving or offering the hazardous material. A 
``rail secure area'' is defined in proposed 49 CFR 1580.3 as the 
portion of the ``rail hazardous materials facility where security-
related pre-transportation or transportation functions are performed or 
rail cars containing the categories and quantities of hazardous 
materials set forth in proposed 49 CFR 1580.100(b) are prepared, 
loaded, stored, and/or unloaded.'' As stated in proposed paragraph (i) 
of this section, secure areas must have physical security measures in 
place to prevent unauthorized access to rail cars that contain the 
specified categories and quantities of hazardous materials. These 
measures could include fencing, lighting, or monitoring by a signaling 
system (such as a video system, sensing equipment, or mechanical 
equipment) that is observed by an employee or authorized representative 
of the rail hazardous materials shipper or receiver who is located 
either in the immediate area of the rail car or at a remote location 
within the facility such as a control room.
    Paragraph (f) applies only to rail hazardous materials facilities 
located within an HTUA that receive from a freight railroad carrier or 
unload rail cars containing one or more of the quantities and 
categories of hazard materials set forth in proposed 49 CFR 
1580.100(b). Consistent with the requirements placed upon freight 
railroad carriers by paragraph (e), the rail hazardous materials 
receiver must maintain positive control of the rail car during the 
physical transfer of custody, which involves not leaving the car 
unattended and placing the car in a secure area. The requirements for 
rail hazardous materials facilities that, in addition to receiving or 
unloading one or more of the hazardous materials referenced in 
paragraph (f), also offer, prepare, or load these materials for 
transportation by freight railroad carriers are set forth in paragraph 
(a) of this section. In accordance with paragraph (f), during unloading 
and temporary placement of the rail car, a rail hazardous materials 
receiver located within an HTUA must keep the rail car in a secure area 
with physical security measures in place, such as fencing, lighting, or 
video surveillance.
    Paragraph (g) provides an exception to the security requirements 
contained in paragraph (a) for rail hazardous materials receivers 
located an HTUA, that in the normal course of their business do not 
offer, prepare, or load rail cars containing the categories and 
quantities of hazardous material set forth in proposed 49 CFR 
1580.100(b) for transportation by rail. Rail hazardous materials 
facilities located outside an HTUA that routinely receive shipments of 
the specified categories and quantities of hazardous material, that 
receive and subsequently reject and return a rail car containing the 
hazardous material to the originating offeror or shipper are not, by 
virtue of rejecting and returning a shipment, required to meet the 
security requirements of paragraph (a). TSA is providing this 
exception, because the randomness and unpredictability of such an event 
makes it unlikely that a terrorist could exploit the rail car and use 
it as a weapon of mass effect. However, the freight railroad carrier 
receiving the rejected rail car would still be subject to the 
requirements of this section.
    Paragraph (j) allows any rail hazardous materials receiver located 
within an HTUA to apply for a waiver from some or all of the chain of 
custody requirements if the receiver believes, based upon the 
operational characteristics and geographical location of its facility, 
that the potential security threat of its facility is insufficient to 
warrant application of the chain of custody requirements in paragraph 
(f). In considering whether to grant a waiver, TSA would analyze 
factors that relate to the potential security threat. The factors 
include: (1) The quantities and types of all hazardous materials that 
the rail hazardous materials receiver typically receives or unloads; 
(2) the receiver's geographical location in relationship to populated 
areas, which includes both daytime office building populations and 
populations in residential neighborhoods; (3) the receiver facility's 
immediate proximity to entities that may be attractive targets, such as 
other businesses (including other hazardous materials facilities), 
residential homes and apartment buildings, elementary schools, 
hospitals, nursing homes, assisted living facilities, and sports 
stadiums; (4) any information regarding threats to the facility; and 
(5) any other circumstances unique to that receiver's activities that 
would demonstrate that these activities present a low security risk. 
For instance, if a requester were to present an analysis showing that, 
due to the topography of the area, a release of the hazardous material 
would be unlikely to cause a significant danger to persons in the area, 
TSA would consider that information as a factor in considering whether 
to grant or deny the waiver. After reviewing a rail hazardous materials 
receiver's application for a waiver, and consulting as necessary and 
appropriate with other Federal, State, and local governmental agencies, 
TSA would send a written decision to the receiver.
Section 1580.109 Preemptive Effect
    Section 20106 of title 49 of the U.S.C. provides that all 
regulations prescribed by the Secretary of Homeland Security related to 
railroad security matters preempt any State law, regulation, or order 
covering the same subject matter. A State may, however, adopt or 
continue an additional or more stringent regulation when that provision 
is: (1) Necessary to eliminate or reduce an essentially local security 
hazard; (2) not incompatible with a Federal law, regulation, or order; 
and (3) does not

[[Page 76875]]

unreasonably burden interstate commerce. Id.
    Proposed Sec.  1580.109 informs the public of the preemptive effect 
of proposed 49 CFR 1580.107 regarding chain of custody and control 
requirements for rail cars containing the categories and quantities of 
hazardous materials set forth in proposed 49 CFR 1580.100(b). In the 
past, TSA has not included regulatory text about preemptive effect in 
its regulations. The absence of such a provision in a Federal 
regulation does not necessarily indicate that TSA does not intend to 
preempt State or local regulations. However, TSA has included such a 
provision in this proposed rule, so that its position regarding 
preemptive effect is clear.
    Consistent with 49 U.S.C. 20106, TSA proposes to preempt any State 
or local laws regarding security measures during the physical transfer 
of custody and control of a rail car containing hazardous materials. We 
believe that such security measures must be subject to uniform national 
standards. This preemption would apply to all ``hazardous materials'' 
as defined in 49 CFR 171.8. It would be impractical and burdensome to 
the secure chain of physical custody and control process to require the 
regulated parties to develop multiple sets of procedures to comply with 
varying State and local requirements. TSA is aware that, if this final 
rule did not preempt State or local regulations regarding the chain of 
custody requirements in proposed Sec.  1580.107, a freight railroad 
carrier, rail hazardous materials shipper, or rail hazardous materials 
receiver may need to comply with different requirements in different 
jurisdictions. This could require a substantial resource commitment, 
because it could necessitate instructing the individuals involved in 
carrying out chain of custody requirements in accordance with a 
multitude of different operating rules and practices, which could raise 
significant safety and security concerns. Carriers could also be 
required to vary the size and training qualifications of the train crew 
based upon the varying laws in each jurisdiction. Because rail 
transportation of hazardous materials frequently involves 
transportation across jurisdictions and because of the resources 
necessary to comply with potential and varying chain of custody 
requirements, TSA believes that subjecting carriers to additional state 
regulations in this area would likely place an unreasonable burden on 
interstate commerce. TSA seeks to avoid this result.
    Although national uniformity, to the extent practicable, of laws, 
regulations, and orders related to rail security is vitally important, 
TSA recognizes a need for emergency preparedness at the State and local 
level. Accordingly, TSA does not intend to preempt inspection 
activities conducted in furtherance of State and local laws or preempt 
requirements to appointment a RSC, or report significant security 
concerns.
    As noted above, TSA does not intend to preempt the States from 
requiring freight railroad carriers, rail hazardous materials shippers, 
and rail hazardous materials receivers to designate a point of contact 
who the State could reach immediately concerning security or other 
emergency matters. In this regard, TSA does not intend to prevent the 
States from requiring the regulated parties to designate an individual 
as a point of contact in addition to the person(s) they select to serve 
as the corporate level RSC under proposed 49 CFR 1580.101. Since TSA 
recognizes the important security role of local law enforcement 
agencies, TSA also does not intend to preempt the States from requiring 
freight railroad carriers, rail hazardous materials shippers, and rail 
hazardous materials receivers to report potential threats and 
significant security concerns to the States in addition to these 
entities complying with TSA's reporting requirements. If an emergency 
situation develops, TSA expects that the first priority of the freight 
railroad carriers, rail hazardous materials shippers, and rail 
hazardous materials receivers would be to call 911 and follow the 
directions of the police and other first responders to the scene.
    TSA seeks comment on the scope of the subject matter that this 
proposed rule would or would not preempt under 49 U.S.C. 20106.

Subpart C--Passenger Rail Including Passenger Railroad Carriers, Rail 
Transit Systems, Tourist, Scenic, Historic, and Excursion Operators, 
and Private Cars

Section 1580.200 Applicability
    TSA proposes that this subpart apply to all types of passenger rail 
operations, including intercity, commuter, and short-haul railroad 
passenger train service, and rail mass transit systems. The subpart 
would also cover the operation of private rail cars on or connected to 
the general railroad system of transportation, and tourist, scenic, 
historic, and excursion operations, whether on or off the general 
railroad system of transportation.
Section 1580.201 Rail Security Coordinator
    The proposed rule requires that each passenger railroad carrier and 
each rail transit system covered within the scope of part 1580 must 
have one or more RSCs. Owners and operators of private rail cars, 
including business/office cars, circus trains, tourist, scenic, 
historic, or excursion operations would only be required to designate 
an RSC if TSA specifically notified them in writing that a security 
threat exists concerning that operation.
    As discussed in section III.B. above, the proposed rule would allow 
different people to be on call at different times, but would 
necessitate that at least one individual be available to TSA on a 24 
hours, 7 days a week basis. TSA anticipates that the passenger railroad 
carriers and rail transit systems will generally designate a lead RSC 
at the corporate level for the entire rail operation and also select 
other individuals to assist in carrying out the job duties.
    The proposal would also permit an individual serving as an RSC to 
perform other duties in addition to those that TSA requires; that 
individual need not serve full-time as the RSC. Particularly in the 
case of smaller passenger railroad or rail transit system operations, 
TSA anticipates that serving as the RSC will not be an individual's 
permanent full-time job. Regardless of who is serving in the role of 
the RSC on a given day, the passenger railroad carrier or rail transit 
system would remain responsible if any official to whom the RSC 
security functions are delegated fails to perform them properly.
    The proposal applicable to passenger railroads and rail transit 
systems described in Sec.  1580.201 would subsume the existing 
requirement in TSA's rail SDs that passenger rail operators designate 
and use a primary and alternate Security Coordinator and provide 
current name and contact information to TSA via email. However, this 
proposal would not change the requirements in the rail SDs that the 
Security Coordinator:
     Review with sufficient frequency, as practicable and 
appropriate, all security-related functions to ensure they are 
effective and consistent with all applicable rail passenger security 
measures, including the SDs.
     Upon learning of any instance of non-compliance with TSA-
required security measures, immediately initiate corrective action.

[[Page 76876]]

Section 1580.203 Reporting Significant Security Concerns
    Passenger railroad carriers and rail transit systems would be 
required to immediately report potential threats or significant 
security concerns encompassing incidents, suspicious activities, and 
threat information including, but not limited to:
    (1) Interference with the crew of the passenger train or rail 
transit vehicle, such as by attempting to gain entry to the locomotive 
cab or crew compartment.
    (2) Bomb threats, whether specific as to target, location, and 
timing, or non-specific.
    (3) Reports or discovery of suspicious items that result in the 
disruption of passenger rail operations, such as evacuation of a 
conveyance or facility or the temporary halting of rail service.
    (4) Suspicious activity occurring onboard a passenger train or rail 
transit vehicle or inside the facility of a passenger railroad carrier 
or rail transit system that results in a disruption of rail operations, 
such as evacuation of a conveyance or facility or the temporary halting 
of rail service due to the discovery of a suspected IED.
    (5) Suspicious activity observed at or around passenger rail cars 
or rail transit vehicles, facilities, or infrastructure used in the 
operation of the passenger railroad or rail transit system, whether 
observed by employees or authorized representatives of the railroad 
carrier or rail transit system or other individuals.
    (6) Discharge, discovery, or seizure of a firearm or other deadly 
weapon on a passenger train or rail transit vehicle or in a station, 
terminal, storage facility or yard, or other location used in the 
operation of the passenger railroad or rail transit system, regardless 
of whether an individual legally possesses the firearm or deadly 
weapon.
    (7) Indications of tampering with passenger rail cars or rail 
transit vehicles, including signs that the security of the car or 
vehicle may have been compromised or an IED may be present.
    (8) Information relating to the possible surveillance of a 
passenger train or rail transit vehicle or facility, storage yard, or 
other location used in the operation of the passenger railroad carrier 
or rail transit system, regardless of whether the source of the 
information is an employee or authorized representative of the 
passenger railroad carrier or rail transit system or other individual.
    (9) Correspondence received by the passenger railroad carrier or 
rail transit system indicating a potential threat to passenger or 
freight rail transportation.
    (10) Other incidents involving breaches of the security of the 
passenger railroad carrier or the rail transit system operations or 
facilities that could reasonably represent potential threats or 
significant security concerns.
    The proposal would require passenger railroad carriers and rail 
transit systems to report the above types of concerns and threats to 
DHS/TSA in a manner that TSA prescribes. The final rule will provide 
details of the reporting process. With respect to each concern or 
threat, the passenger railroad carrier or rail transit system would 
have to report the following information, to the extent it was 
available and applicable, to DHS/TSA:
    (1) Name of the reporting entity and contact information for 
communication by telephone and e-mail.
    (2) Affected station, terminal, or other facility.
    (3) Identifying information on the affected passenger train or rail 
transit vehicle, including the train number, train line, and route.
    (4) The origination and route termination locations for the 
affected passenger train or rail transit vehicle.
    (5) Current location of the affected passenger train or rail 
transit vehicle, with as much specificity as circumstances and 
available information permits.
    (6) Description of the threat, incident, or activity affecting the 
passenger train or rail transit vehicle or facility.
    (7) Names and other available biographical data of individuals 
purported to be involved in the threat, incident or activity.
    (8) Source of the threat information.
    Possible sources of the information might include: a Federal (with 
the exception of DHS/TSA), State, or local government agency; a foreign 
government, to the extent there is no legal prohibition on the 
reporting of such information; an employee or authorized representative 
of the passenger railroad carrier or rail transit system; another 
passenger railroad carrier or rail transit system or freight railroad 
carrier; or a private individual.
    The requirements of the proposed rule do not supersede FTA's State 
Safety Oversight rules found at 49 CFR part 659. Some duplication of 
reporting may occur, as entities may have to report incidents to an OA 
under 49 CFR 659.33 and DHS under 49 CFR 1580.203 of the proposed rule. 
A suspected terrorist incident resulting in loss of life, injuries 
requiring medical attention, extensive property damage, and/or 
evacuation of rail transit system facilities would be subject to the 
proposed rule and to FTA's State Safety Oversight requirements for 
accident reporting. Significantly though, the purposes of the reports 
differ dramatically. TSA needs information immediately on potential 
threat, suspicious activities, and security incidents for the purposes 
of comprehensive intelligence analysis, threat assessment, and 
allocation of security resources. The report to the OAs meets a more 
general need for situational awareness, particularly pertaining to 
safety conditions. In any event, the required reporting under the 
proposed rule and the reporting under 49 CFR 659.33 do not overlap 
extensively. Additionally, it is not unusual in the transportation 
sector generally and the passenger rail and rail transit mode in 
particular for carriers and systems to report matters to Federal and 
State regulatory entities. However, TSA invites comments on the matter.

V. Rulemaking Analyses and Notices

    Proposed changes to Federal regulations must undergo several 
economic analyses. First, Executive Order 12866 (E.O. 12866), 
Regulatory Planning and Review (58 FR 51735, October 4, 1993), directs 
each Federal agency to propose or adopt a regulation only upon a 
reasoned determination that the benefits of the intended regulation 
justify its costs. Second, the Regulatory Flexibility Act of 1980 (5 
U.S.C. 601 et seq., as amended by the Small Business Regulatory 
Enforcement Fairness Act (SBREFA) of 1996) requires agencies to analyze 
the economic impact of regulatory changes on small entities. Third, the 
Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from 
setting standards that create unnecessary obstacles to the foreign 
commerce of the United States. Fourth, the Unfunded Mandates Reform Act 
of 1995 (2 U.S.C. 1531-1538) requires agencies to prepare a written 
assessment of the costs, benefits, and other effects of proposed or 
final rules that include a Federal mandate likely to result in the 
expenditure by State, local, or tribal governments, in the aggregate, 
or by the private sector, of $100 million or more annually (adjusted 
for inflation). The OMB A-4 Accounting Statement is located in the full 
regulatory evaluation.
    In conducting these analyses, TSA determined:
    (1) This rulemaking would not constitute an economically 
``significant regulatory action'' as defined in the Executive Order.
    (2) This rulemaking would have a yet to be determined impact on 
small businesses. We have conducted an Initial Regulatory Flexibility 
Analysis (IRFA) for comment.

[[Page 76877]]

    (3) This rulemaking would not constitute a barrier to international 
trade.
    (4) This rulemaking would not impose an unfunded mandate on state, 
local, or tribal governments, or on the private sector.
    These analyses, available in the public docket, are summarized 
below. The reader is cautioned that we did not attempt to replicate 
precisely the regulatory language in this discussion of the proposed 
rule; the regulatory text, not the text of this evaluation, is legally 
binding. We invite comments on all aspects of the economic analysis. We 
will attempt to evaluate all regulatory evaluation comments submitted 
by the public; however, those comments with specific data sources or 
detailed information will be more useful in improving the impact 
analysis. If possible, evaluation comments should be clearly identified 
with the evaluation issue or section. Including page numbers or figure 
references with your comments will expedite the process and ensure the 
issue is addressed by the most appropriate agency experts.

A. Executive Order 12866 Assessment (Regulatory Planning and Review)

Impact Summary
    The proposed rule would address threats and vulnerabilities in the 
rail transportation sector. This summary provides a synopsis of the 
costs and benefits of the proposed rule.
Benefits of the Proposed Rule
    The proposed rule would enhance the security of rail transportation 
by: (1) Giving TSA and DHS the authority to conduct inspections in 
order to assess and mitigate threats to security; (2) providing TSA and 
DHS with a regulatory mechanism to locate rail cars containing certain 
hazardous materials; (3) mandating that rail hazardous materials 
facilities that ship or receive these materials conduct routine 
inspections of shipments; (4) creating a secure chain of custody 
requirement for the transfer of rail cars containing these materials; 
and (5) requiring certain rail hazardous materials shipper and receiver 
facilities to store rail cars containing these hazardous materials in 
areas with physical security controls.
Costs of the Proposed Rule
    The costs of the proposed rule would result primarily from the 
requirements for: (1) Rail carriers and rail hazardous materials 
shippers and receivers to establish secure chains of custody for 
hazardous materials covered by the NPRM; and (2) railroad carriers, 
rail hazardous materials shippers, and rail hazardous materials 
receivers to provide TSA and DHS with various pieces of information. 
TSA concluded that the total cost of the proposed rule, discounted at 7 
percent, would range from $152.8 million to $173.9 million. See Figure 
1 for the primary 10 year cost estimate, which equals $163.3 when 
discounted at 7 percent. A detailed discussion of how TSA calculated 
this estimate and the range of estimates discussed above is available 
on the docket. The agency seeks comments on all cost estimates.
[GRAPHIC] [TIFF OMITTED] TP21DE06.036

Figure 1: Total Cost of the Proposed Rule, Discounted 7 PercentB. 
Regulatory Flexibility Act Assessment

    The Regulatory Flexibility Act (RFA) of 1980 requires that agencies 
perform a review to determine whether a proposed or final rule will 
have a significant economic impact on a substantial number of small 
entities. If the determination is that it will, the agency must prepare 
a regulatory flexibility analysis as described in the RFA. For purposes 
of the RFA, small entities include small businesses, not-for-profit 
organizations, and small governmental jurisdictions. Individuals and 
States are not included in the definition of a small entity.
    This proposed rule would have a yet to be determined impact on 
small entities, as defined by the RFA. TSA, therefore, has prepared an 
Initial Regulatory Flexibility Analysis, which is available on the 
docket. TSA requests comments on this analysis.

C. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) 
requires that TSA consider the impact of paperwork and other 
information collection burdens imposed on the public and, under the 
provisions of PRA section 3507(d), obtain approval from the Office of 
Management and Budget (OMB) for each collection of information it 
conducts, sponsors, or requires through regulations.
    This proposed rule contains new information collection activities 
subject to the PRA. Accordingly, TSA has submitted the following 
information requirements to OMB for its review.
    Title: Rail Transportation Security.
    Summary: This proposal would require: (1) Freight and passenger 
railroad carriers, rail transit systems, certain rail hazardous 
materials shipper and receiver facilities, tourist, scenic, historic, 
and excursion rail operations (whether operating on or off the general 
railroad system of transportation), and

[[Page 76878]]

private rail car operations (on or connected to the general railroad 
system of transportation) to allow TSA and DHS officials working with 
TSA to enter and be present within any area or within any conveyance to 
conduct inspections, tests, or to perform such other duties as TSA 
directs, including copying of records; (2) freight railroad carriers, 
certain rail hazardous materials shipper and receiver facilities, 
passenger railroad carriers, and rail mass transit systems to designate 
a rail security coordinator and at least one alternate rail security 
coordinator to be available to TSA on a 24 hours, 7 days a week basis 
to serve as primary contact for receipt of intelligence information and 
other security-related activities; (3) freight and passenger railroad 
carriers, certain rail hazardous materials shippers and receivers, 
passenger railroad carriers, rail mass transit systems, tourist, 
scenic, historic, and excursion rail operations (whether operating on 
or off the general railroad system of transportation), and private rail 
car operations (on or connected to the general railroad system of 
transportation) to immediately report potential threats and significant 
security concerns to DHS; (4) freight railroad carriers and certain 
rail hazardous materials shippers and receivers to provide for a secure 
chain of custody and control of rail cars containing a specified 
quantity and type of hazardous material; and (5) SSI protection to be 
extended to certain rail security information, with corresponding 
responsibilities of rail entities as covered persons under the SSI 
regulation.
    Use of: This proposal would support the information needs of TSA to 
enhance security in the following modes of transportation: freight 
rail, including freight railroad carriers, rail hazardous materials 
facilities which offer, load, prepare, receive and/or unload certain 
types and quantities of hazardous materials, and private cars; 
passenger rail, including passenger railroad carriers such as intercity 
and commuter passenger rail operations, rail transit systems, tourist, 
scenic, historic, and excursion rail operations (whether operating on 
or off the general railroad system of transportation), and private rail 
car operations (on or connected to the general railroad system of 
transportation).
    Respondents (including number of): The likely respondents to this 
proposed information requirement are an estimated 1,791 freight and 
passenger railroad carriers, rail transit systems, and rail hazardous 
materials shippers and receivers.
    Frequency: TSA estimates each of the 949 freight and passenger 
railroad carrier, rail transit systems, and rail hazardous materials 
shippers and receivers will respond once to submit RSC information to 
TSA. Additionally, TSA estimates that each freight railroad carrier 
will respond anywhere from 1 to 36 times per year depending on the 
amount of PIH materials the carrier transports. This includes all 
requirements on freight railroad carriers in this proposal. TSA 
estimates that each passenger rail and rail transit entity will respond 
between 0 and 1,460 times per year. TSA estimates that each rail 
hazardous materials shipper and receiver facility will respond from 0 
to 2 times per year. Thus, the annual frequency of information 
requirements is between 49,762 to 99,862.
    Annual Burden Estimate: This proposal would result in an annual 
recordkeeping and reporting burden in the range of $3,420,655 to 
$6,576,955. Larger reporting burdens are anticipated for passenger rail 
systems due to higher estimates of suspicious incident reports.
    TSA is soliciting comments to--
    (1) Evaluate whether the proposed information requirement is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including using appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology.
    Individuals and organizations may submit comments on the 
information collection requirements by February 20, 2007. Direct the 
comments to the address listed in the ADDRESSES section of this 
document, and fax a copy of them to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Attention: DHS-TSA 
Desk Officer, at (202) 395-5806. A comment to OMB is most effective if 
OMB receives it within 30 days of publication. TSA will publish the OMB 
control number for this information collection in the Federal Register 
after OMB approves it.
    As protection provided by the PRA, as amended, an agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

D. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
establishing any standards or engaging in related activities that 
create unnecessary obstacles to the foreign commerce of the United 
States. Legitimate domestic objectives, such as safety, are not 
considered unnecessary obstacles. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards. TSA has assessed the potential 
effect of this rulemaking and has determined that it will have only a 
domestic impact and therefore no effect on any trade-sensitive 
activity.

E. Unfunded Mandates Reform Act Analysis

    The Unfunded Mandates Reform Act of 1995 is intended, among other 
things, to curb the practice of imposing unfunded Federal mandates on 
State, local, and tribal governments. Title II of the Act requires each 
Federal agency to prepare a written statement assessing the effects of 
any Federal mandate in a proposed or final agency rule that may result 
in a $100 million or more expenditure (adjusted annually for inflation) 
in any one year by State, local, and tribal governments, in the 
aggregate, or by the private sector; such a mandate is deemed to be a 
``significant regulatory action.''
    This rulemaking does not contain such a mandate. The requirements 
of Title II of the Act, therefore, do not apply and TSA has not 
prepared a statement under the Act.

F. Executive Order 13132, Federalism

    TSA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, entitled ``Federalism,'' issued 
August 4, 1999. Executive Order 13132 requires TSA to develop an 
accountable process to ensure ``meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    TSA proposes that this rule would preempt certain State, local, and 
tribal requirements, including any such requirements prescribing or 
restricting

[[Page 76879]]

security measures during the physical transfer of custody and control 
of a rail car containing hazardous materials. This is consistent with 
applicable statutes and with sound policy. Congress has enacted 
comprehensive Federal railroad laws (49 U.S.C. 20101 et. seq.), which 
mandate that ``[l]aws, regulations and orders related to railroad 
safety and laws, regulations, and orders related to railroad security 
[] be nationally uniform to the extent practicable.'' See 49 U.S.C. 
20106. To achieve national uniformity, the Federal railroad laws 
``expressly preempt[] state authority to adopt safety rules, save for 
two exceptions.'' See Union Pacific Railroad Co. v. California Public 
Utilities Comm'n, 346 F.3d 851, 858 (9th Cir. 2003); see also 49 U.S.C. 
20106. A state may enact or continue in force a law related to railroad 
safety or security ``until the Secretary of Transportation (with 
respect to railroad safety matters), or the Secretary of Homeland 
Security (with respect to railroad security matters), prescribes a 
regulation or issues an order covering the subject matter of the State 
requirement.'' 49 U.S.C. 20106. ``Even after such a federal regulation 
issues, a State may adopt a more stringent law when `necessary to 
eliminate or reduce an essentially local safety or security hazard' if 
it `is not incompatible' with the federal regulation and `does not 
unreasonably burden interstate commerce.' '' CSX Transportation, Inc. 
v. Williams, 406 F.3d at 670-71; 49 U.S.C. 20106.
    A primary security concern related to the rail transportation of 
hazardous materials is the prevention of a catastrophic release or 
explosion in proximity to densely populated areas, including urban 
areas and events or venues with large numbers of people in attendance. 
Also of major concern is the release or explosion of a rail car in 
proximity to iconic buildings, landmarks, or environmentally 
significant areas. These are national concerns that require a uniform 
national regulatory approach that does not require regulated parties to 
implement different measures in different jurisdictions across the 
nation. TSA is therefore proposing a nationally-uniform regulatory 
provision requiring chain of custody procedures. This would avoid the 
burden on interstate commerce that would result if multiple States and 
localities established their own chain of custody requirements.
    Although proposed Sec.  1580.107 would preempt State and local 
requirements addressing the same matters, TSA does not believe that the 
proposed custody and control requirements of this rulemaking would have 
an immediate substantial direct effect on the States, the relationship 
between the national government and the States, or the distribution of 
power and responsibilities among the various levels of government. The 
rule would not require any actions by States or localities. In 
addition, only one state has enacted a measure addressing chain of 
custody and control requirements for the rail transportation of 
hazardous materials.\58\ Thus, it appears that the proposed rule would 
not have sufficient federalism implications to warrant the preparation 
of a Federalism Assessment at this time. TSA invites comments from 
States and localities on whether promulgation of a final rule with the 
preemptive effects provided in proposed Sec.  1580.109 would have 
substantial direct effects on States and localities. Additionally, TSA 
plans to consult with the States and/or their representatives during 
the public comment period concerning this proposed rule.
---------------------------------------------------------------------------

    \58\ California adopted the ``Local Community Rail Security Act 
of 2006'' on October 1, 2006.
---------------------------------------------------------------------------

G. Environmental Analysis

    TSA has reviewed this action under Department of Homeland Security 
(DHS) Management Directive 5100.1, Environmental Planning Program 
(effective April 19, 2006), which guides TSA compliance with the 
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-
4370f). We have determined that this proposal is covered by the 
following categorical exclusions (CATEX) listed in the DHS regulation, 
to wit: Number A3(a) (administrative and regulatory activities 
involving the promulgation of rules and the development of policies); 
paragraph A4 (information gathering and data analysis); paragraph A7(d) 
(conducting audits, surveys and data collection of a minimally 
intrusive nature, to include vulnerability, risk and structural 
integrity assessments of infrastructures); paragraph B3 (proposed 
activities and operations to be conducted in existing structures that 
are compatible with ongoing functions); and paragraph B11 (routine 
monitoring and surveillance activities that support homeland security, 
such as patrols, investigations and intelligence gathering).
    Additionally, we have determined that this proposal meets the three 
conditions required for a CATEX to apply, as described in paragraph 3.2 
(Conditions and Extraordinary Circumstances). The rule establishes new 
security requirements for rail transportation, to include: Requiring 
freight and passenger railroad carriers, rail transit systems, certain 
rail hazardous materials shipper and receiver facilities, tourist, 
scenic, historic, and excursion rail operations (whether operating on 
or off the general railroad system of transportation), and private rail 
car operations (on or connected to the general railroad system of 
transportation) to give TSA officials and DHS officials working with 
TSA access to carry out security-related duties; requiring freight and 
passenger railroad carriers, certain rail hazardous materials shipper 
and receiver facilities, and rail transit systems to appoint and use 
rail security coordinators as TSA points of contact; requiring freight 
railroad carriers and certain rail hazardous materials shipper and 
receiver facilities to track and report the location of specified rail 
cars upon request; requiring improved security measures to protect 
certain railroad shipments; and extending the protection of the SSI 
program to rail transportation information.

H. Energy Impact Analysis

    The energy impact of the notice has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA), Pub. L. 94-163, as 
amended (42 U.S.C. 6362). We have determined that this rulemaking is 
not a major regulatory action under the provisions of the EPCA. We also 
have analyzed this proposed rule under E.O. 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use,'' 66 FR 28355 (May 18, 2001). We have determined that it is not a 
``significant energy action'' under that order. While it is a 
``significant regulatory action'' under E.O. 12866, it is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, a Statement of Energy Effects is not required for 
this rule under E.O. 13211.

List of Subjects

49 CFR Part 1520

    Air carriers, Aircraft, Airports, Maritime carriers, Rail hazardous 
materials receivers, Rail hazardous materials shippers, Rail transit 
systems, Railroad carriers, Railroad safety, Railroads, Reporting and 
recordkeeping requirements, Security measures, Vessels.

49 CFR Part 1580

    Hazardous materials transportation, Mass transportation, Rail 
hazardous materials receivers, Rail hazardous

[[Page 76880]]

materials shippers, Rail transit systems, Railroad carriers, Railroad 
safety, Railroads, Reporting and recordkeeping requirements, Security 
measures.

The Proposed Rule

    For the reasons set forth in the preamble, the Transportation 
Security Administration proposes to amend Chapter XII, of Title 49, 
Code of Federal Regulations, as follows:

Title 49--Transportation

Chapter XII--Transportation Security Administration, Department of 
Homeland Security

PART 1520--PROTECTION OF SENSITIVE SECURITY INFORMATION

    1. The authority citation for part 1520 continues to read as 
follows:

    Authority: 46 U.S.C. 70102-70106, 70117; 49 U.S.C. 114, 40113, 
44901-44907, 44913-44914, 44916-44918, 44935-44936, 44942, 46105.

    2. In Sec.  1520.3, add definitions of ``Rail hazardous materials 
receiver,'' ``Rail hazardous materials shipper,'' ``Rail facility,'' 
``Rail secure area,'' ``Rail transit facility,'' ``Rail transit 
system,'' ``Railroad,'' and ``Railroad carrier,'' amend the definition 
of ``Vulnerability assessment'' to read as follows, and insert in 
alphabetical order:


Sec.  1520.3  Terms used in this part.

* * * * *
    Rail facility means ``rail facility'' as defined in 49 CFR 1580.
    Rail hazardous materials receiver means ``rail hazardous materials 
receiver'' as defined in 49 CFR 1580.3.
    Rail hazardous materials shipper means ``rail hazardous materials 
shipper'' as defined in 49 CFR 1580.3.
    Rail secure area means ``rail secure area'' as defined in 49 CFR 
1580.3.
    Rail transit facility means ``rail transit facility'' as defined in 
49 CFR 1580.3.
    Rail transit system or Rail Fixed Guideway System means ``rail 
transit system'' or ``Rail Fixed Guideway System'' as defined in 49 CFR 
1580.3.
    Railroad means ``railroad'' as defined in 49 U.S.C. 20102(1).
    Railroad carrier means ``railroad carrier'' as defined in 49 U.S.C. 
20102(2).
    Vulnerability assessment means any review, audit, or other 
examination of the security of a transportation infrastructure asset; 
airport; maritime facility; port area; vessel; aircraft; railroad; 
railroad carrier, rail facility; train; rail hazardous materials 
shipper or receiver facility; rail transit system; rail transit 
facility; commercial motor vehicle; or pipeline; or a transportation-
related automated system or network, whether during the conception, 
planning, design, construction, operation, or decommissioning phase. A 
vulnerability assessment may include proposed, recommended, or directed 
actions or countermeasures to address security concerns.
* * * * *
    3. In Sec.  1520.5(b), revise paragraphs (b)(6)(i), (8) 
introductory text, (10), (11)(i)(A), and (12) introductory text to read 
as follows:


Sec.  1520.5  Sensitive security information.

* * * * *
    (b) * * *
    (6) * * *
    (i) Details of any security inspection or investigation of an 
alleged violation of aviation, maritime, or rail transportation 
security requirements of Federal law that could reveal a security 
vulnerability, including the identity of the Federal special agent or 
other Federal employee who conducted the inspection or audit.
* * * * *
    (8) Security measures. Specific details of aviation, maritime, or 
rail transportation security measures, both operational and technical, 
whether applied directly by the Federal Government or another person, 
including--
* * * * *
    (10) Security training materials. Records created or obtained for 
the purpose of training persons employed by, contracted with, or acting 
for the Federal Government or another person to carry out aviation, 
maritime, or rail transportation security measures required or 
recommended by DHS or DOT.
    (11) * * *
    (i) * * *
    (A) Having unescorted access to a secure area of an airport, a rail 
secure area, or a secure or restricted area of a maritime facility, 
port area, or vessel;
    (12) Critical aviation, maritime, or rail infrastructure asset 
information. Any list identifying systems or assets, whether physical 
or virtual, so vital to the aviation, maritime, or rail transportation 
system (including rail hazardous materials shippers and rail hazardous 
materials receivers) that the incapacity or destruction of such assets 
would have a debilitating impact on transportation security, if the 
list is--
* * * * *
    4. In Sec.  1520.7, add new paragraph (n) to read as follows:


Sec.  1520.7  Covered persons.

* * * * *
    (n) Each railroad carrier, rail hazardous materials shipper, rail 
hazardous materials receiver, and rail transit system subject to the 
requirements of part 1580 of this chapter.
    5. Add part 1580 to read as follows:

PART 1580--RAIL TRANSPORTATION SECURITY

Subpart A--General
Sec.
1580.1 Scope.
1580.3 Terms used in this part.
1580.5 Inspection authority.
Subpart B--Freight Rail Including Freight Railroad Carriers, Rail 
Hazardous Materials Shippers, Rail Hazardous Materials Receivers, and 
Private Cars
1580.100 Applicability.
1580.101 Rail security coordinator.
1580.103 Location and shipping information for certain rail cars.
1580.105 Reporting significant security concerns.
1580.107 Chain of custody and control requirements.
1580.109 Preemptive effect.
Subpart C--Passenger Rail Including Passenger Railroad Carriers, Rail 
Transit Systems, Tourist, Scenic, Historic and Excursion Operators, and 
Private Cars
1580.200 Applicability.
1580.201 Rail security coordinator.
1580.203 Reporting significant security concerns.

Appendix A to Part 1580--High Threat Urban Areas

Appendix B to Part 1580--Summary of the Applicability of Part 1580

    Authority: 49 U.S.C. 114.

Subpart A--General


Sec.  1580.1  Scope.

    Except as provided in paragraph (i) of this section, this part 
includes requirements for the following persons. Appendix B of this 
part summarizes the general requirements for each person, and the 
specific sections in this part provide detailed requirements.
    (a) Each freight railroad carrier that operates rolling equipment 
on track that is part of the general railroad system of transportation.
    (b) Each rail hazardous materials shipper that offers, prepares, or 
loads for transportation in commerce by rail one or more of the 
categories and quantities of hazardous materials set forth in Sec.  
1580.100(b) of this part.
    (c) Each rail hazardous materials receiver, located within a High 
Threat Urban Area that receives in commerce by rail or unloads one or 
more of the categories and quantities of hazardous materials set forth 
in Sec.  1580.100(b) of this part.

[[Page 76881]]

    (d) Each passenger railroad carrier, including a carrier operating 
light rail or heavy rail transit service on track that is part of the 
general railroad system of transportation, each carrier operating or 
providing intercity passenger train service or commuter or other short-
haul railroad passenger service in a metropolitan or suburban area (as 
described by 49 U.S.C. 20102), and each public authority operating 
passenger train service.
    (e) Each passenger or freight railroad carrier hosting an operation 
described in paragraph (d) of this section.
    (f) Each tourist, scenic, historic, and excursion rail operator, 
whether operating on or off the general railroad system of 
transportation.
    (g) Operation of private cars, including business/office cars and 
circus trains, on or connected to the general railroad system of 
transportation.
    (h) Each rail transit systems, including heavy rail transit, light 
rail transit, automated guideway, cable car, inclined plane, funicular, 
and monorail systems.
    (i) This part does not apply to a freight railroad carrier that 
operates rolling equipment only on track inside an installation which 
is not part of the general railroad system of transportation.


Sec.  1580.3  Terms used in this part.

    For purposes of this part:
    Commuter passenger train service means ``train, commuter'' as 
defined in 49 CFR 238.5, and includes a railroad operation that 
ordinarily uses diesel or electric powered locomotives and railroad 
passenger cars to serve an urban area, its suburbs, and more distant 
outlying communities in the greater metropolitan area.
    General railroad system of transportation means the network of 
standard gage track over which goods may be transported throughout the 
Nation and passengers may travel between cities and within metropolitan 
and suburban areas. (49 CFR part 209, Appendix A).
    Hazardous material means ``hazardous material'' as defined in 49 
CFR 171.8.
    Heavy rail transit means service provided by self-propelled 
electric railcars, typically drawing power from a third rail, operating 
in separate rights-of-way in multiple cars; also referred to as 
subways, metros, or regional rail.
    High Threat Urban Area (HTUA) means an area comprising one or more 
cities and surrounding areas including a 10 mile buffer zone, as listed 
in Appendix A of this part.
    Improvised explosive device means a device fabricated in an 
improvised manner that incorporates explosives or destructive, lethal, 
noxious, pyrotechnic, or incendiary chemicals in its design, and 
generally includes a power supply, a switch or timer, and a detonator 
or initiator.
    Intercity passenger train service means both ``train, long-distance 
intercity passenger'' and ``train, short-distance intercity passenger'' 
as defined in 49 CFR 238.5.
    Light rail transit means service provided by self-propelled 
electric railcars, typically drawing power from an overhead wire, 
operating in either exclusive or non-exclusive rights-of-way in single 
or multiple cars and with shorter distance trips and frequent stops; 
also referred to as streetcars, trolleys, and trams.
    Offers or offeror means:
    (1) Any person who does either or both of the following:
    (i) Performs, or is responsible for performing, any pre-
transportation function for transportation of the hazardous material in 
commerce.
    (ii) Tenders or makes the hazardous material available to a carrier 
for transportation in commerce.
    (2) A carrier is not an offeror when it performs a function 
required as a condition of acceptance of a hazardous material for 
transportation in commerce (such as reviewing shipping papers, 
examining packages to ensure that they are in conformance with the 
hazardous materials regulations, or preparing shipping documentation 
for its own use) or when it transfers a hazardous material to another 
carrier for continued transportation in commerce without performing a 
pre-transportation function. (49 CFR 171.8)
    Passenger car means rail rolling equipment intended to provide 
transportation for members of the general public and includes a self-
propelled car designed to carry passengers, baggage, mail, or express. 
This term includes a passenger coach, cab car, and a Multiple Unit (MU) 
locomotive. In the context of articulated equipment, ``passenger car'' 
means that segment of the rail rolling equipment located between two 
trucks. This term does not include a private car. (49 CFR 238.5)
    Passenger train means a train that transports or is available to 
transport members of the general public. (49 CFR 238.5)
    Private car means rail rolling equipment that is used only for 
excursion, recreational, or private transportation purposes. A private 
car is not a passenger car. (49 CFR 238.5)
    Rail facility means a location at which rail cargo or 
infrastructure assets are stored, cargo is transferred between 
conveyances and/or modes of transportation, where transportation 
command and control operations are performed, or maintenance operations 
are performed. The term also includes, but is not limited to, passenger 
stations and terminals, rail yards, crew management centers, 
dispatching centers, transportation terminals and stations, fueling 
centers, and telecommunication centers.
    Rail hazardous materials receiver means any fixed-site facility 
that has a physical connection to the general railroad system of 
transportation and receives or unloads from transportation in commerce 
by rail one or more of the categories and quantities of hazardous 
materials set forth in Sec.  1580.100(b) of this part, but does not 
include a facility owned or operated by a department, agency, or 
instrumentality of the Federal Government.
    Rail hazardous materials shipper means any fixed-site facility that 
has a physical connection to the general railroad system of 
transportation and offers, prepares, or loads for transportation by 
rail one or more of the categories and quantities of hazardous 
materials set forth in Sec.  1580.100(b) of this part, but does not 
include a facility owned or operated by a department, agency, or 
instrumentality of the Federal Government.
    Rail secure area means a secure location(s) identified by a rail 
hazardous materials shipper or rail hazardous materials receiver where 
security-related pre-transportation or transportation functions are 
performed or rail cars containing the categories and quantities of 
hazardous materials set forth in Sec.  1580.100(b) are prepared, 
loaded, stored, and/or unloaded.
    Rail transit facility means rail transit stations, terminals, and 
locations at which rail transit infrastructure assets are stored, 
command and control operations are performed, or maintenance is 
performed. The term also includes rail yards, crew management centers, 
dispatching centers, transportation terminals and stations, fueling 
centers, and telecommunication centers.
    Rail transit system or ``Rail Fixed Guideway System'' means any 
light, heavy, or rapid rail system, monorail, inclined plane, 
funicular, cable car, trolley, or automated guideway.
    Railroad means any form of nonhighway ground transportation that 
runs on rails or electromagnetic guideways, including: Commuter or 
other short-haul railroad passenger

[[Page 76882]]

service in a metropolitan or suburban area and commuter railroad 
service that was operated by the Consolidated Rail Corporation on 
January 1, 1979; and high speed ground transportation systems that 
connect metropolitan areas, without regard to whether those systems use 
new technologies not associated with traditional railroads; but does 
not include rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation. (49 U.S.C. 
20102(1))
    Railroad carrier means a person providing railroad transportation. 
(49 U.S.C. 20102(2))
    Residue means the hazardous material remaining in a packaging, 
including a tank car, after its contents have been unloaded to the 
maximum extent practicable and before the packaging is either refilled 
or cleaned of hazardous material and purged to remove any hazardous 
vapors. (49 CFR 171.8)
    Tourist, scenic, historic, or excursion operation means a railroad 
operation that carries passengers, often using antiquated equipment, 
with the conveyance of the passengers to a particular destination not 
being the principal purpose. Train movements of new passenger equipment 
for demonstration purposes are not tourist, scenic, historic, or 
excursion operations. (49 CFR 238.5)
    Transportation or transport means the movement of property 
including loading, unloading, and storage. Transportation or transport 
also includes the movement of people, boarding, and disembarking 
incident to that movement.


Sec.  1580.5  Inspection authority.

    (a) This section applies to the following:
    (1) Each freight railroad carrier that operates rolling equipment 
on track that is part of the general railroad system of transportation.
    (2) Each rail hazardous materials shipper as defined in Sec.  
1580.3.
    (3) Each rail hazardous materials receiver located within an HTUA.
    (4) Each passenger railroad carrier, including a carrier operating 
light rail or heavy rail transit service on track that is part of the 
general railroad system of transportation, each carrier operating or 
providing intercity passenger train service or commuter or other short-
haul railroad passenger service in a metropolitan or suburban area (as 
described by 49 U.S.C. 20102), and each public authority operating 
passenger train service.
    (5) Each passenger or freight railroad carrier hosting an operation 
described in paragraph (a)(4) of this section.
    (6) Each tourist, scenic, historic, and excursion rail operator, 
whether operating on or off the general railroad system of 
transportation.
    (7) Operation of private cars, including business/office cars and 
circus trains, on or connected to the general railroad system of 
transportation.
    (8) Each rail transit system.
    (b) The persons described in paragraph (a) of this section 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, operations, and to view, inspect, and 
copy records, as necessary to carry out TSA's security-related 
statutory or regulatory authorities, including its authority to--
    (1) Assess threats to transportation;
    (2) Enforce security-related regulations, directives, and 
requirements;
    (3) Inspect, maintain, and test security facilities, equipment, and 
systems;
    (4) Ensure the adequacy of security measures for the transportation 
of passengers and freight, including hazardous materials;
    (5) Oversee the implementation, and ensure the adequacy, of 
security measures at rail yards, stations, terminals, transportation-
related areas of rail hazardous materials shipper and receiver 
facilities, crew management centers, dispatch centers, 
telecommunication centers, and other transportation facilities and 
infrastructure;
    (6) Review security plans; and
    (7) Carry out such other duties, and exercise such other powers, 
relating to transportation security as the Assistant Secretary of 
Homeland Security for the TSA considers appropriate, to the extent 
authorized by law.
    (c) TSA and DHS officials working with TSA, may enter, without 
advance notice, and be present within any area or within any conveyance 
without access media or identification media issued or approved by a 
railroad carrier, transit system owner or operator, rail hazardous 
materials shipper, or rail hazardous materials receiver in order to 
inspect or test compliance, or perform other such duties as TSA may 
direct.

Subpart B--Freight Rail Including Freight Railroad Carriers, Rail 
Hazardous Materials Shippers, Rail Hazardous Materials Receivers, 
and Private Cars


Sec.  1580.100  Applicability.

    (a) Applicability. The requirements of this subpart apply to:
    (1) Each freight railroad carrier that operates rolling equipment 
on track that is part of the general railroad system of transportation.
    (2) Each rail hazardous materials shipper as defined in section 
1580.3.
    (3) Each rail hazardous materials receiver located with an HTUA.
    (4) Each freight railroad carrier hosting a passenger operation 
described in Sec.  1580.1(d) of this part.
    (5) Operation of private cars, including business/office cars and 
circus trains, on or connected to the general railroad system of 
transportation.
    (b) Hazardous materials. The requirements of this subpart apply to:
    (1) A rail car containing more than 2,268 kg (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 a material poisonous by inhalation as 
defined in 49 CFR 171.8, including Division 2.3 gases poisonous by 
inhalation, as set forth in 49 CFR 173.115(c) and Division 6.1 liquids 
meeting the defining criteria in 49 CFR 173.132(a)(1)(iii) and assigned 
to hazard zone A or hazard zone B in accordance with 49 CFR 173.133(a), 
other than residue; and
    (3) A rail car containing a highway route-controlled quantity of a 
Class 7 (radioactive) material, as defined in 49 CFR 173.403.


Sec.  1580.101  Rail security coordinator.

    (a) Applicability. This section applies to:
    (1) Each freight railroad carrier that operates rolling equipment 
on track that is part of the general railroad system of transportation.
    (2) Each rail hazardous materials shipper as defined in Sec.  
1580.3.
    (3) Each rail hazardous materials receiver located with an HTUA.
    (4) Each freight railroad carrier hosting the passenger operations 
described in Sec.  1580.1(d) of this part.
    (5) Each private rail car operation, including business/office cars 
and circus trains, on or connected to the general railroad system of 
transportation, when notified by TSA, in writing, that a threat exists 
concerning that operation.
    (b) Each person described in paragraph (a) of this section must 
designate and use a primary and at least one alternate Rail Security 
Coordinator (RSC).
    (c) The RSC and alternate(s) must be appointed at the corporate 
level.
    (d) Each freight railroad carrier, rail hazardous materials 
shipper, and rail hazardous materials receiver required to have an RSC 
must provide to TSA the

[[Page 76883]]

names, title, phone number(s), and e-mail address(es) of the RSCs and 
alternate RSCs, and must notify TSA within 7 calendar days when any of 
this information changes.
    (e) Each freight railroad carrier, rail hazardous materials 
shipper, and rail hazardous materials receiver required to have an RSC 
must ensure that at least one RSC:
    (1) Serves as the primary contact for intelligence information and 
security-related activities and communications with TSA. Any individual 
designated as an RSC may perform other duties in addition to those 
described in this section.
    (2) Is available to TSA on a 24 hour a day 7 days a week basis.
    (3) Coordinates security practices and procedures with appropriate 
law enforcement and emergency response agencies.


Sec.  1580.103  Location and shipping information for certain rail 
cars.

    (a) Applicability. This section applies to:
    (1) Each freight railroad carrier transporting one or more of the 
categories and quantities of hazardous materials set forth in Sec.  
1580.100(b) of this part.
    (2) Each rail hazardous materials shipper as defined in Sec.  
1580.3.
    (3) Each rail hazardous materials receiver located with an HTUA.
    (b) Each person described in paragraph (a) of this section must 
have procedures in place to determine the location and shipping 
information for each rail car under its physical custody and control 
that contains one or more of the categories and quantities of hazardous 
materials set forth in Sec.  1580.100(b) of this part.
    (c) The location and shipping information required in paragraph (b) 
of this section must include the following:
    (1) The rail car's current location by city, county, and state, 
including, for freight railroad carriers, the railroad milepost, track 
designation, and the time that the rail car's location was determined.
    (2) The rail car's routing, if a freight railroad carrier.
    (3) A list of the total number of rail cars containing the 
materials listed in Sec.  1580.100(b) of this part, broken down by:
    (i) The shipping name prescribed for the material in column 2 of 
the table in 49 CFR 172.101;
    (ii) The hazard class or division number prescribed for the 
material in column 3 of the table in 49 CFR 172.101; and
    (iii) The identification number prescribed for the material in 
column 4 of the table in 49 CFR 172.101.
    (4) Each rail car's initial and number.
    (5) Whether the rail car is in a train, rail yard, siding, rail 
spur, or rail hazardous materials shipper or receiver facility, 
including the name of the rail yard or siding designation.
    (d) Upon request by TSA, each railroad carrier, each rail hazardous 
materials shipper, and each rail hazardous materials receiver must 
provide the location and shipping information to TSA no later than 1 
hour after receiving the request, unless otherwise approved by TSA.
    (e) The freight railroad carrier, rail hazardous materials shipper, 
and rail hazardous materials receiver must provide the requested 
location and shipping information to TSA by one of the following 
methods:
    (1) Electronic data transmission in spreadsheet format.
    (2) Electronic data transmission in Hyper Text Markup Language 
(HTML) format.
    (3) Electronic data transmission in Extensible Markup Language 
(XML).
    (4) Facsimile transmission of a hard copy spreadsheet in tabular 
format.
    (5) Posting the information to a secure Web site address approved 
by TSA.
    (6) Another format approved in writing by TSA.


Sec.  1580.105  Reporting significant security concerns.

    (a) Applicability. This section applies to:
    (1) Each freight railroad carrier that operates rolling equipment 
on track that is part of the general railroad system of transportation.
    (2) Each rail hazardous materials shipper as defined in Sec.  
1580.3.
    (3) Each rail hazardous materials receiver located with an HTUA.
    (4) Each freight railroad carrier hosting a passenger operation 
described in Sec.  1580.1(d) of this part.
    (5) Operation of private cars, including business/office cars and 
circus, on or connected to the general railroad system of 
transportation trains.
    (b) Each person described in paragraph (a) of this section must 
immediately report potential threats and significant security concerns 
to DHS in a manner prescribed by TSA.
    (c) Potential threats or significant security concerns encompass 
incidents, suspicious activities, and threat information including, but 
not limited to, the following:
    (1) Interference with the train crew.
    (2) Bomb threats, specific and non-specific.
    (3) Reports or discovery of suspicious items that result in the 
disruption of railroad operations.
    (4) Suspicious activity occurring onboard a train or inside the 
facility of a freight railroad carrier, rail hazardous materials 
shipper, or rail hazardous materials 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, 
rail hazardous materials shipper, or rail hazardous materials receiver.
    (6) Discharge, discovery, or seizure of a firearm or other deadly 
weapon on a train, in a station, terminal, facility, or storage yard, 
or other location used in the operation of the railroad, rail hazardous 
materials shipper, or rail hazardous materials receiver.
    (7) Indications of tampering with rail cars.
    (8) Information relating to the possible surveillance of a train or 
facility, storage yard, or other location used in the operation of the 
railroad, rail hazardous materials shipper, or rail hazardous materials 
receiver.
    (9) Correspondence received by the freight railroad carrier, rail 
hazardous materials shipper, or rail hazardous materials receiver 
indicating a potential threat.
    (10) Other incidents involving breaches of the security of the 
freight railroad carrier's, rail hazardous materials shipper's, or rail 
hazardous materials receiver's operations or facilities.
    (d) Information reported should include, as available and 
applicable:
    (1) The name of the reporting freight railroad carrier, rail 
hazardous materials shipper, or rail hazardous materials receiver and 
contact information, including a telephone number or e-mail address.
    (2) The affected train, station, terminal, rail hazardous materials 
facility, or other rail facility or infrastructure.
    (3) Identifying information on the affected train, train line, and 
route.
    (4) Origination and termination locations for the affected train, 
including departure and destination city and the rail line and route, 
as applicable.
    (5) Current location of the affected train.
    (6) Description of the threat, incident, or activity.
    (7) The names and other available biographical data of individuals 
involved in the threat, incident, or activity.
    (8) The source of any threat information.

[[Page 76884]]

Sec.  1580.107  Chain of custody and control requirements.

    (a) Within or outside of an HTUA, rail hazardous materials shipper 
transferring to carrier. Except as provided in paragraph (e) of this 
section, at each location within or outside of an HTUA, a rail 
hazardous materials shipper transferring custody of a rail car 
containing one or more of the categories and quantities of hazardous 
materials set forth in Sec.  1580.100(b) to a freight railroad carrier 
must:
    (1) 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.
    (2) Keep the rail car in a rail secure area from the time the 
security inspection required by paragraph (a)(1) of this section or by 
49 CFR 173.31(d), whichever occurs first, until the freight railroad 
carrier takes physical custody of the rail car.
    (3) Document the transfer of custody to the railroad carrier in 
writing or electronically.
    (b) Within or outside of an HTUA, carrier receiving from a rail 
hazardous materials shipper. At each location within or outside of an 
HTUA where a freight railroad carrier receives from a rail hazardous 
materials shipper custody of a rail car containing one or more of the 
categories and quantities of hazardous materials set forth in Sec.  
1580.100(b), the freight railroad carrier must document the transfer in 
writing or electronically and perform the required security inspection 
in accordance with 49 CFR 174.9.
    (c) Within an HTUA, carrier transferring to carrier. Within an 
HTUA, whenever a rail car containing one or more of the categories and 
quantities of hazardous materials set forth in Sec.  1580.100(b) is 
transferred from one freight railroad carrier to another, each freight 
railroad carrier must adopt and carry out procedures to ensure that the 
rail car is not left unattended at any time during the physical 
transfer of custody. These procedures must include the receiving 
freight railroad carrier performing the required security inspection in 
accordance with 49 CFR 174.9. Both the transferring and the receiving 
railroad carrier must document the transfer in writing or 
electronically.
    (d) Outside of an HTUA, carrier transferring to carrier. Outside an 
HTUA, whenever a rail car containing one or more of the categories and 
quantities of hazardous materials set forth in Sec.  1580.100(b) is 
transferred from one freight railroad carrier to another, and the rail 
car containing this hazardous material may subsequently enter an HTUA, 
each freight railroad carrier must adopt and carry out procedures to 
ensure that the rail car is not left unattended at any time during the 
physical transfer of custody. These procedures must include the 
receiving railroad carrier performing the required security inspection 
in accordance with 49 CFR 174.9. Both the transferring and the 
receiving railroad carrier must document the transfer of custody in 
writing or electronically.
    (e) Within an HTUA, carrier transferring to rail hazardous 
materials receiver. A freight railroad carrier delivering a rail car 
containing one or more of the categories and quantities of hazardous 
materials set forth in Sec.  1580.100(b) to a rail hazardous materials 
receiver located within an HTUA must not leave the rail car unattended 
in a non-secure area until the rail hazardous materials receiver 
accepts custody of the rail car. Both the railroad carrier and the rail 
hazardous materials receiver must document the transfer of custody in 
writing or electronically.
    (f) Within an HTUA, rail hazardous materials receiver receiving 
from carrier. Except as provided in paragraph (j) of this section, a 
rail hazardous materials receiver located within an HTUA that receives 
a rail car containing one or more of the categories and quantities of 
hazardous materials set forth in Sec.  1580.100(b) from a freight 
railroad carrier must:
    (1) Ensure that the rail hazardous materials receiver or railroad 
carrier maintains positive control of the rail car during the physical 
transfer of custody of the rail car.
    (2) Keep the rail car in a rail secure area until the car is 
unloaded.
    (3) Document the transfer of custody from the railroad carrier in 
writing or electronically.
    (g) Within or outside of an HTUA, rail hazardous materials receiver 
rejecting car. This section does not apply to a rail hazardous 
materials receiver that does not routinely offer, prepare, or load for 
transportation by rail one or more of the categories and quantities of 
hazardous materials set forth in Sec.  1580.100(b). If such a receiver 
rejects and returns a rail car containing one or more of the categories 
and quantities of hazardous materials set forth in Sec.  1580.100(b) to 
the originating offeror or shipper, the requirements of this section do 
not apply to the receiver. The requirements of this section do apply to 
any railroad carrier to which the receiver transfers custody of the 
rail car.
    (h) Document retention. The documents required under this section 
must be maintained for at least 60 calendar days and made available to 
TSA upon request.
    (i) Rail secure area. The rail hazardous materials shipper and the 
rail hazardous materials receiver must use physical security measures 
to ensure that no unauthorized person gains access to the rail secure 
area.
    (j) Waivers for rail hazardous materials receivers. A rail 
hazardous materials receiver located within an HTUA may request from 
TSA a waiver from some or all of the requirements of this section if 
the receiver demonstrates that the potential threat from its activities 
is insufficient to warrant compliance with this section. TSA will 
consider all relevant circumstances, including--
    (1) The amounts and types of all hazardous materials received.
    (2) The geography of the area surrounding the receiver's facility.
    (3) Proximity to entities that may be attractive targets, including 
other businesses, housing, schools, and hospitals.
    (4) Any information regarding threats to the facility.
    (5) Other circumstances that indicate the potential threat of the 
receiver's facility does not warrant compliance with this section.


Sec.  1580.109  Preemptive effect.

    Under 49 U.S.C 20106, issuance of Sec.  1580.107 of this subpart 
preempts any State law, rule, regulation, order or common law 
requirement covering the same subject matter.

Subpart C--Passenger Rail Including Passenger Railroad Carriers, 
Rail Transit Systems, Tourist, Scenic, Historic and Excursion 
Operators, and Private Cars


Sec.  1580.200  Applicability.

    This subpart includes requirements for:
    (a) Each passenger railroad carrier, including a carrier operating 
light rail or heavy rail transit service on track that is part of the 
general railroad system of transportation, each carrier operating or 
providing intercity passenger train service or commuter or other short-
haul railroad passenger service in a metropolitan or suburban area (as 
described by 49 U.S.C. 20102), and each public authority operating 
passenger train service.
    (b) Each passenger railroad carrier hosting an operation described 
in paragraph (a) of this section.

[[Page 76885]]

    (c) Each tourist, scenic, historic, and excursion rail operator, 
whether operating on or off the general railroad system of 
transportation.
    (d) Operation of private cars, including business/office cars and 
circus trains, on or connected to the general railroad system of 
transportation.
    (e) Each rail transit system.


Sec.  1580.201  Rail security coordinator.

    (a) Applicability. This section applies to:
    (1) Each passenger railroad carrier, including a carrier operating 
light rail or heavy rail transit service on track that is part of the 
general railroad system of transportation, each carrier operating or 
providing intercity passenger train service or commuter or other short-
haul railroad passenger service in a metropolitan or suburban area (as 
described by 49 U.S.C. 20102), and each public authority operating 
passenger train service.
    (2) Each passenger railroad carrier hosting an operation described 
in paragraph (a)(1) of this section.
    (3) Each rail transit system.
    (4) Each private rail car operation, including business/office cars 
and circus trains, on or connected to the general railroad system of 
transportation, when notified by TSA, in writing, that a security 
threat exists concerning that operation.
    (5) Each tourist, scenic, historic, or excursion operations, 
whether on or off the general railroad system of transportation, when 
notified by TSA, in writing, that a security threat exists concerning 
that operation.
    (b) Each person described in paragraph (a) of this section must 
designate and use a primary and at least one alternate Rail Security 
Coordinator (RSC).
    (c) The RSC and alternate(s) must be appointed at the corporate 
level.
    (d) Each passenger railroad carrier and rail transit system 
required to have an RSC must provide to TSA the names, titles, phone 
number(s), and e-mail address(es) of the RSCs, and alternate RSCs, and 
must notify TSA within 7 calendar days when any of this information 
changes.
    (e) Each passenger railroad carrier and rail transit system 
required to have an RSC must ensure that at least one RSC:
    (1) Serves as the primary contact for intelligence information and 
security-related activities and communications with TSA. Any individual 
designated as an RSC may perform other duties in addition to those 
described in this section.
    (2) Is available to TSA on a 24 hours a day 7 days a week basis.
    (3) Coordinate security practices and procedures with appropriate 
law enforcement and emergency response agencies.


Sec.  1580.203  Reporting significant security concerns.

    (a) Applicability. This section applies to:
    (1) Each passenger railroad carrier, including a carrier operating 
light rail or heavy rail transit service on track that is part of the 
general railroad system of transportation, each carrier operating or 
providing intercity passenger train service or commuter or other short-
haul railroad passenger service in a metropolitan or suburban area (as 
described by 49 U.S.C. 20102), and each public authority operating 
passenger train service.
    (2) Each passenger railroad carrier hosting an operation described 
in paragraph (a)(1) of this section.
    (3) Each tourist, scenic, historic, and excursion rail operator, 
whether operating on or off the general railroad system of 
transportation.
    (4) Operation of private cars, including business/office cars and 
circus trains, on or connected to the general railroad system of 
transportation.
    (5) Each rail transit system.
    (b) Each person described in paragraph (a) of this section must 
immediately report potential threats or significant security concerns 
to DHS in a manner prescribed by TSA.
    (c) Potential threats or significant security concerns encompass 
incidents, suspicious activities, and threat information including, but 
not limited to, the following:
    (1) Interference with the train or transit vehicle crew.
    (2) Bomb threats, specific and non-specific.
    (3) Reports or discovery of suspicious items that result in the 
disruption of rail operations.
    (4) Suspicious activity occurring onboard a train or transit 
vehicle or inside the facility of a passenger railroad carrier or rail 
transit system that results in a disruption of rail operations.
    (5) Suspicious activity observed at or around rail cars or transit 
vehicles, facilities, or infrastructure used in the operation of the 
passenger railroad carrier or rail transit system.
    (6) Discharge, discovery, or seizure of a firearm or other deadly 
weapon on a train or transit vehicle or in a station, terminal, 
facility, or storage yard, or other location used in the operation of 
the passenger railroad carrier or rail transit system.
    (7) Indications of tampering with passenger rail cars or rail 
transit vehicles.
    (8) Information relating to the possible surveillance of a 
passenger train or rail transit vehicle or facility, storage yard, or 
other location used in the operation of the passenger railroad carrier 
or rail transit system.
    (9) Correspondence received by the passenger railroad carrier or 
rail transit system indicating a potential threat to rail 
transportation.
    (10) Other incidents involving breaches of the security of the 
passenger railroad carrier or the rail transit system operations or 
facilities.
    (d) Information reported should include, as available and 
applicable:
    (1) The name of the passenger railroad carrier or rail transit 
system and contact information, including a telephone number or e-mail 
address.
    (2) The affected station, terminal, or other facility.
    (3) Identifying information on the affected passenger train or rail 
transit vehicle including number, train or transit line, and route, as 
applicable.
    (4) Origination and termination locations for the affected 
passenger train or rail transit vehicle, including departure and 
destination city and the rail or transit line and route.
    (5) Current location of the affected passenger train or rail 
transit vehicle.
    (6) Description of the threat, incident, or activity.
    (7) The names and other available biographical data of individuals 
involved in the threat, incident, or activity.
    (8) The source of any threat information.

[[Page 76886]]



                            Appendix A to Part 1580--High Threat Urban Areas (HTUAs)
----------------------------------------------------------------------------------------------------------------
                                                                                                 Previously
               State                 Candidate urban area  Geographic area captured in the    designated urban
                                                                      data count               areas included
----------------------------------------------------------------------------------------------------------------
AZ................................  Phoenix Area*........  Chandler, Gilbert, Glendale,     Phoenix, AZ.
                                                            Mesa, Peoria, Phoenix,
                                                            Scottsdale, Tempe, and a 10-
                                                            mile buffer extending from the
                                                            border of the combined area.
CA................................  Anaheim/Santa Ana      Anaheim, Costa Mesa, Garden      Anaheim, CA; Santa
                                     Area.                  Grove, Fullerton, Huntington     Ana, CA.
                                                            Beach, Irvine, Orange, Santa
                                                            Ana, and a 10-mile buffer
                                                            extending from the border of
                                                            the combined area.
                                    Bay Area.............  Berkeley, Daly City, Fremont,    San Francisco, CA;
                                                            Hayward, Oakland, Palo Alto,     San Jose, CA;
                                                            Richmond, San Francisco, San     Oakland, CA.
                                                            Jose, Santa Clara, Sunnyvale,
                                                            Vallejo, and a 10-mile buffer
                                                            extending from the border of
                                                            the combined area.
                                    Los Angeles/Long       Burbank, Glendale, Inglewood,    Los Angeles, CA;
                                     Beach Area.            Long Beach, Los Angeles,         Long Beach, CA.
                                                            Pasadena, Santa Monica, Santa
                                                            Clarita, Torrance, Simi
                                                            Valley, Thousand Oaks, and a
                                                            10-mile buffer extending from
                                                            the border of the combined
                                                            area.
                                    Sacramento Area*.....  Elk Grove, Sacramento, and a 10- Sacramento, CA.
                                                            mile buffer extending from the
                                                            border of the combined area.
                                    San Diego Area*......  Chula Vista, Escondido, and San  San Diego, CA.
                                                            Diego, and a 10-mile buffer
                                                            extending from the border of
                                                            the combined area.
CO................................  Denver Area..........  Arvada, Aurora, Denver,          Denver, CO.
                                                            Lakewood, Westminster,
                                                            Thornton, and a 10-mile buffer
                                                            extending from the border of
                                                            the combined area.
DC................................  National Capital       National Capital Region and a    National Capital
                                     Region.                10-mile buffer extending from    Region, DC.
                                                            the border of the combined
                                                            area.
FL................................  Fort Lauderdale Area.  Fort Lauderdale, Hollywood,      N/A.
                                                            Miami Gardens, Miramar,
                                                            Pembroke Pines, and a 10-mile
                                                            buffer extending from the
                                                            border of the combined area.
                                    Jacksonville Area....  Jacksonville and a 10-mile       Jacksonville, FL.
                                                            buffer extending from the city
                                                            border.
                                    Miami Area...........  Hialeah, Miami, and a 10-mile    Miami, FL.
                                                            buffer extending from the
                                                            border of the combined area.
                                    Orlando Area.........  Orlando and a 10-mile buffer     Orlando, FL.
                                                            extending from the city border.
                                    Tampa Area*..........  Clearwater, St. Petersburg,      Tampa, FL.
                                                            Tampa, and a 10-mile buffer
                                                            extending from the border of
                                                            the combined area.
GA................................  Atlanta Area.........  Atlanta and a 10-mile buffer     Atlanta, GA.
                                                            extending from the city border.
HI................................  Honolulu Area........  Honolulu and a 10-mile buffer    Honolulu, HI.
                                                            extending from the city border.
IL................................  Chicago Area.........  Chicago and a 10-mile buffer     Chicago, IL.
                                                            extending from the city border.
IN................................  Indianapolis Area....  Indianapolis and a 10-mile       Indianapolis, IN.
                                                            buffer extending from the city
                                                            border.
KY................................  Louisville Area*.....  Louisville and a 10-mile buffer  Louisville, KY.
                                                            extending from the city border.
LA................................  Baton Rouge Area*....  Baton Rouge and a 10-mile        Baton Rouge, LA.
                                                            buffer extending from the city
                                                            border.
                                    New Orleans Area.....  New Orleans and a 10-mile        New Orleans, LA.
                                                            buffer extending from the city
                                                            border.
MA................................  Boston Area..........  Boston, Cambridge, and a 10-     Boston, MA.
                                                            mile buffer extending from the
                                                            border of the combined area.
MD................................  Baltimore Area.......  Baltimore and a 10-mile buffer   Baltimore, MD.
                                                            extending from the city border.
MI................................  Detroit Area.........  Detroit, Sterling Heights,       Detroit, MI.
                                                            Warren, and a 10-mile buffer
                                                            extending from the border of
                                                            the combined area.
MN................................  Twin Cities Area.....  Minneapolis, St. Paul, and a 10- Minneapolis, MN; St.
                                                            mile buffer extending from the   Paul, MN.
                                                            border of the combined entity.
MO................................  Kansas City Area.....  Independence, Kansas City (MO),  Kansas City, MO.
                                                            Kansas City (KS), Olathe,
                                                            Overland Park, and a 10-mile
                                                            buffer extending from the
                                                            border of the combined area.
                                    St. Louis Area.......  St. Louis and a 10-mile buffer   St. Louis, MO.
                                                            extending from the city border.
NC................................  Charlotte Area.......  Charlotte and a 10-mile buffer   Charlotte, NC.
                                                            extending from the city border.
NE................................  Omaha Area*..........  Omaha and a 10-mile buffer       Omaha, NE.
                                                            extending from the city border.
NJ................................  Jersey City/Newark     Elizabeth, Jersey City, Newark,  Jersey City, NJ;
                                     Area.                  and a 10-mile buffer extending   Newark, NJ.
                                                            from the border of the
                                                            combined area.
NV................................  Las Vegas Area*......  Las Vegas, North Las Vegas, and  Las Vegas, NV.
                                                            a 10-mile buffer extending
                                                            from the border of the
                                                            combined entity.

[[Page 76887]]

 
NY................................  Buffalo Area*........  Buffalo and a 10-mile buffer     Buffalo, NY.
                                                            extending from the city border.
                                    New York City Area...  New York City, Yonkers, and a    New York, NY.
                                                            10-mile buffer extending from
                                                            the border of the combined
                                                            area.
OH................................  Cincinnati Area......  Cincinnati and a 10-mile buffer  Cincinnati, OH.
                                                            extending from the city border.
                                    Cleveland Area.......  Cleveland and a 10-mile buffer   Cleveland, OH.
                                                            extending from the city border.
                                    Columbus Area........  Columbus and a 10-mile buffer    Columbus, OH.
                                                            extending from the city border.
                                    Toledo Area*.........  Oregon, Toledo, and a 10-mile    Toledo, OH.
                                                            buffer extending from the
                                                            border of the combined area.
OK................................  Oklahoma City Area*..  Norman, Oklahoma and a 10-mile   Oklahoma City, OK.
                                                            buffer extending from the
                                                            border of the combined area.
OR................................  Portland Area........  Portland, Vancouver, and a 10-   Portland, OR.
                                                            mile buffer extending from the
                                                            border of the combined area.
PA................................  Philadelphia Area....  Philadelphia and a 10-mile       Philadelphia, PA.
                                                            buffer extending from the city
                                                            border.
                                    Pittsburgh Area......  Pittsburgh and a 10-mile buffer  Pittsburgh, PA.
                                                            extending from the city border.
TN................................  Memphis Area.........  Memphis and a 10-mile buffer     Memphis, TN.
                                                            extending from the city border.
TX................................  Dallas/Fort Worth/     Arlington, Carrollton, Dallas,   Dallas, TX; Fort
                                     Arlington Area.        Fort Worth, Garland, Grand       Worth, TX;
                                                            Prairie, Irving, Mesquite,       Arlington, TX.
                                                            Plano, and a 10-mile buffer
                                                            extending from the border of
                                                            the combined area.
                                    Houston Area.........  Houston, Pasadena, and a 10-     Houston, TX.
                                                            mile buffer extending from the
                                                            border of the combined entity.
                                    San Antonio Area.....  San Antonio and a 10-mile        San Antonio, TX.
                                                            buffer extending from the city
                                                            border.
WA................................  Seattle Area.........  Seattle, Bellevue, and a 10-     Seattle, WA.
                                                            mile buffer extending from the
                                                            border of the combined area.
WI................................  Milwaukee Area.......  Milwaukee and a 10-mile buffer   Milwaukee, WI.
                                                            extending from the city border.
----------------------------------------------------------------------------------------------------------------
*FY05 Urban Areas eligible for sustainment funding through the FY06 UASI program; any Urban Area not identified
  as eligible through the risk analysis process for two consecutive years will not be eligible for continued
  funding under the UASI program.


                                           Appendix B to Part 1580--Summary of the Applicability of Part 1580
                                             [This is a summary--see body of text for complete requirements]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Rail operations
                                             Freight          Freight         at certain    Rail operations
                                             railroad         railroad     facilities that     at certain       Passenger         Certain other rail
                                           carriers NOT       carriers       ship (i.e.,    facilities that      railroad        operations (private,
   Proposed security measure and rule      transporting     transporting   offer, prepare,     receive or      carriers and    business/office, circus,
                section                     specified        specified       or load for         unload        rail transit       tourist, historic,
                                            hazardous        hazardous     transportation)     hazardous         systems              excursion)
                                            materials        materials        hazardous        materials
                                                           (1580.100(b))      materials       within HTUA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Allow TSA to inspect (1580.5)..........               X                X                X                X                X                X
Appoint rail security coordinator                     X                X                X                X                X   Only if notified in
 (1580.101 freight; 1580.201 passenger).                                                                                       writing that security
                                                                                                                               threat exists.
Report significant security concerns                  X                X                X                X                X                X
 (1580.105 freight; 1580.203 passenger).
Provide location and shipping                                          X                X                X
 information for rail cars containing
 specified hazardous materials if
 requested (1580.103)
Chain of custody and control                                           X                X                X
 requirements for transport of
 specified hazardous materials that are
 or may be in HTUA (1580.107)
--------------------------------------------------------------------------------------------------------------------------------------------------------



[[Page 76888]]

    Issued in Arlington, Virginia, on December 7, 2006.
Kip Hawley,
Assistant Secretary.
[FR Doc. E6-21512 Filed 12-20-06; 8:45 am]
BILLING CODE 9110-05-P