The rule also applies additional requirements to freight railroad carriers and certain facilities that ship or receive specified hazardous materials by rail:

As TSA specified in its Notice of Proposed Rulemaking (NPRM) for this rulemaking (see 71 FR 76852, December 21, 2006), chain of custody and location requirements apply to specified quantities of three categories of hazardous materials based on the Department of Transportation's (DOT's) Hazardous Materials Regulations (HMR) (49 CFR parts 171180):
(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 (PIH) as defined in 49 CFR 171.8, including anhydrous ammonia, 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), excluding residue quantities of these materials; and
(3) A rail car containing a highway routecontrolled quantity of a Class 7 (radioactive) material, as defined in 49 CFR 173.403.

Appendix B to part 1580 of Title 49 of the Code of Federal Regulations, reproduced as Table 1 below, presents a brief summary of the security measures required for the different categories of rail transportation entities that this final rule governs.
Table 1TSA Rail Security Final Rule Summary Freight Rail operations Freight railroad at certain Rail operations Certain other railroad carriers facilities that at certain Passenger rail operations carriers NOT transporting ship (i.e., facilities that railroad (private, Security measure and rule section transporting specified offer, prepare, receive or carriers and business/ specified hazardous or load for unload rail transit office, circus, hazardous materials (Sec. transportation) hazardous systems tourist, materials 1580.100(b)) hazardous materials historic, materials within an HTUA excursion) Allow TSA to inspect (Sec. 1580.5).............. X X X X X X Appoint rail security coordinator (Sec. 1580.101 X X X X X (\1\) freight; Sec. 1580.201 passenger)..............
Report significant security concerns (Sec. X X X X X X 1580.105 freight; Sec. 1580.203 passenger).....
Provide location and shipping information for rail ............... X X X ............... ............... cars containing specified hazardous materials if
requested (Sec. 1580.103)......................
Chain of custody and control requirements for ............... X X X ............... ............... transport of specified hazardous materials that
are or may be in an HTUA (Sec. 1580.107).......
\1\ Only if notified in writing that a security threat exists. B. Purpose of the Rule

In developing this rule, TSA identified and addressed 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);
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and the train system in Mumbai (formerly known as Bombay), India (2006).

TSA is also considering 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, it creates security vulnerabilities. Freight trains transporting hazardous materials are of even more concern, because an attack on those trains (e.g., through the placement of improvised explosive devices (IEDs) \1\ or other forms of sabotage) could result in the release of hazardous materials.
\1\ An IED is a device fabricated in an improvised manner that incorporates explosives or destructive, lethal, noxious,
pyrotechnic, or incendiary chemicals into its design. It generally includes a power supply, a switch or timer, and a detonator or initiator.

TSA's NPRM proposed a number of measures to improve the security of freight rail and passenger rail, including rail transit. It also proposed security requirements for shippers and receivers of certain hazardous materials. This final rule adopts most of the provisions of the NPRM. TSA presented its rationale for each element of the NPRM in Section III of the preamble to the NPRM. 71 FR at 7686176866. TSA describes the differences between the NPRM and this final rule in Section I.C of this preamble. TSA presents a summary of the public comments and responses in Section V of this preamble.

TSA's final rule adopts a riskbased approach by focusing on shipments of certain hazardous materials and establishing chain of custody and control procedures and other measures for rail cars that pose the greatest security vulnerabilities. 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 highly toxic, explosive, or radioactive hazardous materials, which would cause the greatest loss of life and property and damage to the national economy.

To determine which hazardous materials to identify in the proposed regulation, TSA considered the hazardous materials for which security plans are required as specified in 49 CFR Part 172, Subpart I. (These requirements were included in a final rule adopted by the Pipeline and Hazardous Materials Safety Administration (PHMSA) under Docket Number HM232.\2\) From the list of materials in 49 CFR 172.800(b), TSA identified three categories \3\ of hazardous materials that pose the greatest transportation security riskmaterials that are poisonous by inhalation (PIH),\4\ explosive, and radioactive. In the NPRM, TSA proposed to apply specific requirements to certain carriers and facilities that handle these materials. This final rule focuses on the same materials.
\2\ See Section II.B of the preamble to the NPRM for a detailed discussion of the HM232 rule. 71 FR at 76856.
\3\ 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.
\4\ 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. See also 49 CFR 171.8, 173.115, and 173.132.

Each of these three categories of hazardous materials presents serious security 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. The consequences of an accidental PIH release in a rural area were seen in the January 6, 2005 rail accident in Graniteville, South Carolina. A Norfolk Southern Railway Company (NS) freight train carrying chlorine was improperly 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 single tank car carrying chlorine. Even in this sparsely populated area, the collision resulted in fatal injuries to eight residents and one railroad employee, injuries to 630 people, and the evacuation of 5,400 local residents. The property damage, including damages to the rolling stock and track, exceeded $6.9 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 \5\ at critical points in the transportation cycle, they could cause significant loss of life and damage to infrastructure, and harm the national economy through the accompanying disruption to commerce. Likewise, if terrorists perpetrated an attack against a rail car transporting certain radioactive materials,\6\ they could endanger a significant number of people as well as disrupt the supply chain as a result of contamination.
\5\ 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.

\6\ See 49 CFR 173, subpart H.

This final rule addresses the aboveidentified threats to rail transportation in several ways. This rule codifies the authority for TSA inspections, requires the designation of a rail security coordinator (RSC), and requires the reporting of significant security concerns by most entities to which the rule is applicable. These requirements will improve TSA's ability to inspect rail operations and communicate with railroads and rail facilities. Through these mechanisms, TSA and DHS will obtain better information and monitoring capabilities concerning potential transportation security incidents involving rail transportation and travel. Also, this final rule's requirements related to hazardous materials, such as additional monitoring and protection of certain rail cars and increased availability of location and shipping information for certain rail cars, will decrease the vulnerabilities of these hazardous materials shipments to attack.

TSA has legal authority to impose these requirements. Under the Aviation and Transportation Security Act (ATSA) \7\ 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.'' \8\ TSA
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has authorities in addition to those transferred from DOT.\9\ TSA is empowered to develop policies, strategies, plans, and regulations for dealing with threats to all modes of transportation. 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.\10\ TSA enforces security related regulations and requirements,\11\ ensures the adequacy of security measures for the transportation of cargo,\12\ oversees the implementation and ensures the adequacy of security measures at transportation facilities,\13\ and carries out other appropriate duties relating to transportation security.\14\ 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.\15\ TSA is also charged with serving as the primary liaison for transportation security to the intelligence and law enforcement communities.\16\
\7\ Pub. L. 10771, 115 Stat. 597 (November 19, 2001).
\8\ 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. 107296, 116 Stat. 2315 (2002), transferred all functions of TSA, including those of the Secretary of
Transportation and the Under Secretary of Transportation for 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.
\9\ 49 U.S.C. 114(f).
\10\ 49 U.S.C. 114(f)(1)(5); (h)(1)(4).
\11\ 49 U.S.C. 114(f)(7).
\12\ 49 U.S.C. 114(f)(10).
\13\ 49 U.S.C. 114(f)(11).
\14\ 49 U.S.C. 114(f)(15).
\15\ 49 U.S.C. 114(l)(1).

\16\ 49 U.S.C. 114(f)(1) and (5).

TSA's authority with respect to transportation security is comprehensive and supported with specific powers related to the development and enforcement of regulations, security directives (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.

The Federal hazardous materials transportation law (Federal hazmat law, 49 U.S.C. 5101 et seq.), authorizes the Secretary of DOT to ``prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.'' The Secretary of DOT has delegated this authority to PHMSA. Under the mandate in Sec. 5103(b), PHMSA promulgated the HMR (49 CFR parts 171180), which govern safety aspects, including security, of the transportation of hazardous material the Secretary of DOT considers appropriate. In accordance with its security authority, in March 2003, PHMSA adopted new transportation security requirements for offerors and transporters of certain classes and quantities of hazardous materials and new security training requirements for hazardous materials employees. The security regulations require offerors and carriers to develop and implement security plans and to train their employees to recognize and respond to possible security threats.

On August 9, 2006, DOT/PHMSA and DHS/TSA signed an annex to the September 28, 2004, ``Memorandum of Understanding Between the Department of Homeland Security and the Department of Transportation on Roles and Responsibilities'' (DHSDOT MOU).\17\ The purpose of the annex is to delineate clear lines of authority and responsibility, promote communication and efficiency, and avoid 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.
\17\ The annex is entitled ``Annex to the Memorandum of Understanding Between the Department of Homeland Security and the Department of Transportation Concerning Transportation Security Administration and Pipeline and Hazardous Materials Safety Administration Cooperation on Pipeline and Hazardous Materials Transportation Security.''

Similarly, on September 28, 2006, DOT's Federal Railroad Administration (FRA) and TSA signed an annex to the DHSDOT MOU to address each agency's roles and responsibilities for rail
transportation security. The FRATSA annex recognizes that TSA is the lead Federal entity for transportation security in general and rail security in particular. Concerning safety, the FRATSA annex recognizes that FRA has authority over every area of railroad safety (including security) and that FRA enforces PHMSA's HMR. The FRATSA annex includes procedures for coordinating: (1) Planning, inspection, training, and enforcement activities; (2) criticality and vulnerability assessments and security reviews; (3) communication with affected stakeholders; and (4) the use of personnel and resources. Copies of the two annexes are available for review in the public docket for this rulemaking. Consistent with the principles outlined in the PHMSATSA and FRATSA annexes, PHMSA and FRA collaborated with TSA to develop this final rule.

On April 16, 2008, PHMSA published an interim final rule in the Federal Register to revise the current requirements in the HMR applicable to the safe and secure transportation of hazardous materials transported in commerce by rail. 73 FR 20752. Specifically, PHMSA adopted the following:

C. Changes From the NPRM

This section summarizes the regulatory text changes that TSA has made to the NPRM in this final rule. In addition to the summary contained in this section, in many cases TSA has provided a more extensive discussion of the change, and the reason for the change, in the response to comments below. See Section IV ``Public Comments on the NPRM and TSA Responses on Regulatory Provisions.'' Finally, to the extent TSA has made technical corrections or corrected typographical errors, we do not specifically discuss them.
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1. Sensitive Security Information

TSA has revised paragraph (b)(15) of 49 CFR 1520.5 to add rail to the categories of research and development information related to transportation security activities that is protected as SSI. TSA has revised paragraph (b) of 49 CFR 1520.11 to add State, local, and tribal government employees, contractors, and grantees to the list of persons with a potential need to know SSI. TSA made this change to be consistent with DHS policy on information sharing and allow States, localities and tribal governments, and their contractors and grantees, to have access to SSI if the information is needed for the performance of official duties, such as the prevention or mitigation of security incidents, contracts, or grants.

2. Rail SecuritySensitive Materials

This final rule defines the term ``rail securitysensitive materials'' to mean one or more of the categories and quantities of the materials set forth in the new Sec. 1580.100(b), the transportation of which requires the operators to carry out the security measures in this rule. TSA has introduced this term to comply with Sec. Sec. 1501(13) and 1551 of the ``Implementing the Recommendations of the 9/11 Commission Act of 2007'' (9/11 Commission Act).\18\ Section 1501(13) defines ``securitysensitive material'' to mean a material or group of materials, in a particular quantity and form that the Secretary of Homeland Security, in consultation with the Secretary of
Transportation, determines through rulemaking with opportunity for public comment, poses a significant risk to national security while being transported in commerce. Section 1551 directs the Secretary of Transportation, in consultation with the Secretary of Homeland Security, to publish a final rule based on the PHMSA NPRM published on December 21, 2006.\19\ That section directs the Secretary of Transportation to ensure that the PHMSA final rule requires railroad carriers of ``securitysensitive materials'' to ``select the safest and most secure route to be used in transporting'' those materials and to select such route based on the railroad carrier's analysis of the safety and security risks on primary and alternate transportation routes over which the carrier has authority to operate.
\18\ Pub. L. 11053; 121 Stat. 266; August 3, 2007.
\19\ The PHMSA NPRM proposed 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 also proposed clarifications of the current security plan requirements to address en route storage, delays in transit, delivery notification, and additional security inspection requirements for hazardous materials shipments. See 71 FR 76834 (December 21, 2006).

Through this Rail Transportation Security rulemaking, TSA has provided the public with an opportunity to comment on its
identification of securitysensitive materials in the rail sector. See Section III of this preamble. TSA has added the term ``rail security sensitive material'' to 49 CFR 1580.3 to denote that the Secretary of Homeland Security has determined that the categories and quantities of hazardous materials set forth in 49 CFR 1580.100(b) pose a significant risk to national security while being transported in commerce by rail due to the potential use of one or more of these materials in an act of terrorism. TSA has therefore concluded that these categories and quantities of hazardous materials constitute ``securitysensitive material'' for purposes of triggering the railroad routing requirements in Sec. 1551 of the 9/11 Commission Act.

3. Inspection Authority

In response to commenters who expressed concerns about verifying the identity and credentials of TSA inspectors, TSA has added a new paragraph (d) to 49 CFR 1580.5. It provides that TSA inspectors, and DHS officials working with TSA, will present their credentials for examination, at the request of the entity being inspected, with the understanding that the credentials may not be reproduced. Any regulated party wishing to authenticate the identity of an individual purporting to represent TSA may contact the Freedom Center at 7035633240 or 1 8774568722.\20\
\20\ The Freedom Center is a facility dedicated solely to transportationsecurity operations. Until June 21, 2007, the Freedom Center was known as the Transportation Security Operations Center, or TSOC. With stateoftheart equipment and systems, the Freedom Center integrates all available capabilities to gather intelligence and conduct analysis related to transportation security. The Freedom Center correlates and fuses realtime intelligence and operational information across all modes of transportation, and coordinates with all homeland security agencies and with appropriate law enforcement agencies and stakeholders to gather additional information or to assist in the prevention of, and response to, transportation securityrelated incidents.

4. Reporting Significant Security Concerns

In the NPRM, TSA stated that reports of potential threats and significant security concerns to DHS would be required ``in a manner prescribed by TSA.'' See 49 CFR 1580.105(b) and 1580.203(b). In this final rule, TSA has revised paragraph (b) of each section to indicate that the regulated parties must make the required reports by telephoning the Freedom Center at 7035633240 or 18774568722. 5. Chain of Custody and Control Requirements

Some commenters asked TSA to explain the concept of ``attending a rail car'' in the context of complying with the requirement in paragraphs (c) and (d) of 49 CFR 1580.107 ``to ensure that the rail car is not left unattended at any time during the physical transfer of custody.'' One commenter asked if ``maintain[ing] positive control of the rail car'' for purposes of 49 CFR 1580.107(f)(1) was merely synonymous with a prohibition against unattended pick up and delivery. In response, TSA has added a new paragraph (k) to 49 CFR 1580.107 to explain the terms ``attended'' and ``maintains positive control.'' As used in Sec. 1580.107, a rail car is ``attended'' if an employee or authorized representative of the freight railroad carrier: (1) Is physically located on site in reasonable proximity to the rail car; (2) is capable of promptly responding to unauthorized access or activity at or near the rail car, including immediately contacting law enforcement or other authorities, and (3) immediately responds to any unauthorized access or activity at or near the rail car either personally or by contacting law enforcement or other authorities. Electronic monitoring is permitted so long as the responsible party is located on site and can accomplish an equivalent level of surveillance, response, and notification. Attending a rail car is a component part of maintaining positive control. As used in Sec. 1580.107, when the rail hazardous materials receiver and freight railroad carrier communicate and cooperate with each other to ensure the security of the rail car during the physical transfer of custody, they are ``maintaining positive control'' of the car.

TSA has also included an explanation in paragraph (k) of the term ``document the transfer.'' As used in Sec. 1580.107, a transfer of physical custody of a rail car is properly documented, either in writing or electronically, when the documentation contains, at a minimum: (1) The car's initial (also known as the reporting mark) and number; (2) the names or employee numbers of the individuals who attended the transfer; (3) the location where the transfer took place; and (4) the date and time the transfer was completed.
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6. Location and Shipping Information for Certain Rail Cars

In the NPRM, TSA proposed a onehour timeframe for freight railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers to report the location and shipping information to TSA or other DHS officials for a specified rail car(s). However, in recognition of the fact that such information is critical to addressing specific security threats or incidents, TSA sought comment on the feasibility of a shorter timeframe, such as five minutes or thirty minutes. Based upon comments received and TSA's understanding of the technological capabilities of the regulated parties, we have changed the reporting timeframe in 49 CFR 1580.103 by revising paragraph (d) and adding a new paragraph (e). Paragraph (d) requires all Class I freight railroad carriers subject to Sec. 1580.103 to provide location and shipping information to TSA within five minutes if the request concerns only one car and within thirty minutes if the request concerns two or more rail cars. Paragraph (e) requires all other entities subject to Sec. 1580.103 to provide the information to TSA within thirty minutes, regardless of how many rail cars the request concerns. TSA has also added a new paragraph (h) to Sec. 1580.103 to indicate that TSA has adopted the same definition of ``Class I carrier'' as used by the Surface Transportation Board (STB). See 49 CFR part 1201, General Instructions 11.

The NPRM would have required each regulated party to develop procedures for determining location and shipping information, if requested by TSA, for covered rail cars under their physical custody and control, but the NPRM did not propose to require the regulated party to provide TSA with a contact telephone number to use when requesting this information. TSA has added a new paragraph (g) to Sec. 1580.103, requiring each regulated party to provide TSA with a telephone number that is monitored by a live person on a 24hours a day, seven days a week basis. This will assure a prompt response on those occasions when TSA needs information.
7. Harmonization of Federal Regulation of Nuclear Facilities

TSA recognizes that its statutory authorities and obligations may extend to facilities involved in the production and utilization of nuclear materials or weapons already subject to safety, security, and inspection requirements imposed by the Nuclear Regulatory Commission (NRC) and the Department of Energy (DOE). To ensure that regulated entities are not subject to duplicative or conflicting regulatory or inspection requirements, TSA has included section 1580.111 of the regulations, which states that TSA will coordinate activities under this subpart with the NRC and DOE with respect to regulation of rail hazardous materials shippers and receivers that are also licensed or regulated by the NRC or DOE under the Atomic Energy Act of 1954, as amended, to maintain consistency with the requirements imposed by the NRC and DOE. TSA will enter into appropriate agencytoagency agreements with the NRC and DOE to carry out section 1580.111. II. Overlap Between TSA's Rule and Other DHS Regulations

This Rail Transportation Security final rule affects entities that also may be subject to the requirements of other DHS rulese.g., the DHS Chemical Facility AntiTerrorism Standards (CFATS) regulation \21\ and the Coast Guard's Maritime Transportation Security Act (MTSA) \22\ regulations. This section describes the interrelationships of this rule with the CFATS and MTSA regulations.
\21\ 6 CFR Part 27.
\22\ Pub. L. 107295; Nov. 25, 2002, as codified in 46 U.S.C. chapter 701.

Pursuant to Sec. 550 of the Department of Homeland Security Appropriations Act of 2007 (2007 DHS Appropriations Act) (Pub. L. 109 295), which provides DHS with the authority to regulate the security of certain highrisk chemical facilities in the United States, DHS issued an interim final rule on Chemical Facility AntiTerrorism Standards. See 72 FR 17688 (April 9, 2007). The CFATS rule establishes riskbased performance standards for the security of our Nation's highrisk chemical facilities. It requires facilities that possess specified chemicals at or above specified amounts to provide information to DHS. From this information, DHS will initially determine which facilities are highrisk and preliminarily place highrisk chemical facilities \23\ in riskbased tiers. Such facilities must then prepare Security Vulnerability Assessments, which identify facility security vulnerabilities, and develop and implement Site Security Plans, which include measures that satisfy the DHSidentified riskbased performance standards. The CFATS rule contains associated provisions addressing inspections and audits, recordkeeping, and protection of information that constitutes Chemicalterrorism Vulnerability Information (CVI). \23\ Pursuant to 6 CFR 27.105, a ``covered facility'' or ``covered chemical facility'' is a ``chemical facility determined by the Assistant Secretary to present high levels of security risk, or a facility that the Assistant Secretary has determined is

presumptively high risk under Sec. 27.200.''

In the CFATS interim final rule (IFR), DHS recognized that with respect to chemical security, certain aspects of Sec. 550 and TSA's authorities are concurrent and overlapping. In the preamble to the CFATS IFR, DHS stated that it does not presently plan to screen railroad facilities for inclusion in the Sec. 550 program (although DHS reserves the right to reevaluate their possible coverage at a future date). See 72 FR 1769817699. Nevertheless, it is possible that some chemical facilities will be subject to both CFATS and this TSA final rule. Specifically, it is possible that some facilities, which are rail hazardous materials shippers or receivers as defined in this final rule, may be subject to the CFATS screening requirements and may become covered facilities (i.e., highrisk facilities) under the CFATS rule. In such situations, the facilities will have to comply with the requirements of both regulatory programs (including requirements to provide information under both programs). TSA and DHS, however, will work closely together to ensure that the efforts directed at these facilities are coordinated and consistent.

MTSA requires the Secretary of Homeland Security to issue regulations to strengthen the security of American ports and waterways and the ships that use them. This authority, in addition to other grants of authority, serves as the basis for a comprehensive maritime security regime. Under these authorities, the Coast Guard issued regulations to ensure the security of vessels, facilities, and other elements of the maritime transportation system. Part 105 of Title 33 of the Code of Federal Regulations imposed requirements on a range of maritime facilities, including hazardous material and petroleum facilities and those fleeting facilities that receive barges carrying, in bulk, cargoes regulated by Subchapters D and O of Chapter I, Title 46, Code of Federal Regulations or Certain Dangerous Cargoes.

Pursuant to these maritime security regulations, the Coast Guard requires these facilities to perform security assessments and then, based on these assessments, develop security plans, and implement security measures and procedures in order to reduce the risk of, and to mitigate the results of, any security incident that threatens the facility, its personnel, the public, the environment, and the economy. [[Page 72136]]

A few commenters requested that TSA not apply certain provisions of this final rule to facilities that comply with 33 CFR part 105 of the MTSA regulations. Specifically, commenters requested that TSA exempt these facilities from the Rail Transportation Security rule's requirements for appointing RSCs, for reporting of significant security concerns, and for chain of custody and controls. TSA addresses those specific comments in Section V of this preamble. Generally, however, TSA has decided not to exempt MTSAregulated facilities from these requirements.

Regulating rail security at maritime facilities is a complex issue, and TSA recognizes that certain aspects of the Coast Guard's maritime security regulations and TSA's authorities are concurrent and overlapping. In some respects, compliance with the Coast Guard regulations and with these regulations can be achieved through the same operational practices. For example, the Facility Security Officer (FSO) can serve as the RSC. Also, the rail secure area required by this rule can be the same area as the restricted area designated in the facility security assessment required by 33 CFR 105.305, so long as the regulated party employs physical security measures to ensure that no unauthorized person gains access to the area. However, to the extent that the two sets of requirements are different to account for mode specific differences in the security issues being addressed by the Coast Guard and TSA, the facility would have to satisfy both sets of regulatory requirements. TSA and the Coast Guard will work closely together to make sure that the requirements of the two programs are complementary, not inconsistent, with each other.

III. Rail SecuritySensitive Material

As discussed in section I.C.3 of this preamble, Sec. 1501(13) of the 9/11 Commission Act defines the term ``securitysensitive material'' to mean ``a material, or a group or class of material, in a particular amount and form that the Secretary [of Homeland Security], in consultation with the Secretary of Transportation, determines, through a rulemaking with the opportunity for public comment, poses a significant risk to national security while being transported in commerce due to the potential use of the material in an act of terrorism.'' In making such a determination, the Secretary of Homeland Security is directed to consider at least the following: (1) Class 7 radioactive materials; (2) Division 1.1, 1.2, and 1.3 explosives; (3) materials poisonous or toxic by inhalation, including Division 2.3 gases and Division 6.1 materials; and (4) a select agent or toxin regulated by the Centers for Disease Control and Prevention (CDC) under 42 CFR part 73.

As discussed in section IV.B of this preamble, DHS and DOT assessed the security vulnerabilities associated with the transportation of different types and classes of hazardous materials before proposing to apply enhanced security requirements for the categories and quantities of explosive, PIH, and radioactive materials specified in proposed Sec. 1580.100(b). TSA sought comment on whether to apply the requirements in this final rule to fewer or additional hazardous materials or to extend the requirements to include tank cars containing residue. TSA also sought 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 in this final rule to those other materials.

TSA did not propose to include select agents or toxins regulated by the CDC under 42 CFR part 73, because railroads transport few, if any, shipments of these types of materials. Generally, shipments of infectious substances, including select agents and toxins, must be transported quickly from point of origin to destination to prevent degradation of samples that can occur over time and to ensure swift diagnosis and treatment of infectious diseases. For these reasons, highway (for short distances) and air (for longer distances) are the preferred modes of transportation for these materials.

TSA provided notice and invited public comment in the NPRM on the list of materials that the Secretary of Homeland Security is required to consider under Sec. 1501(13) of the 9/11 Commission Act when defining ``securitysensitive material.'' The hazardous materials set forth in Sec. 1580.100(b) of this final rule constitute the Secretary of Homeland Security's list of ``securitysensitive materials'' for purposes of rail transportation. See Sec. 1551 of the 9/11 Commission Act. Accordingly, the Secretary of Homeland Security, in consultation with the Secretary of Transportation, has satisfied the requirements of Sec. 1551 with respect to the rail mode of transportation and has determined that ``rail securitysensitive materials'' are: (1) More than 2,268 kg (5,000 lbs) in a single carload of a Division 1.1, 1.2, or 1.3 explosive; (2) a tank car containing a material poisonous by inhalation, as defined in 49 CFR 171.8, including anhydrous ammonia but excluding residue quantities of these materials; and (3) a highway routecontrolled quantity of a Class 7 (radioactive) material, as defined in 49 CFR 173.403.

The list of ``rail securitysensitive materials'' represents the materials that TSA has determined are appropriate at this time for purposes of this final rule and the PHMSA interim final rule. DHS, in consultation with DOT, will continue to evaluate the transportation security risks posed by all types of hazardous materials and may regulate the transportation by rail of other materials at a later time. TSA notes that although PHMSA must require railroad carriers transporting the categories and quantities of materials identified on the DHS list of ``rail securitysensitive materials'' to comply with the routing requirements in the PHMSA interim final rule, DOT is not precluded by Sec. 1551 of the 9/11 Commission Act from regulating the railroad routing of additional materials or quantities of materials, such as rail cars transporting residue amounts of hazardous materials. IV. Public Comments on the NPRM and TSA Responses on Regulatory Provisions

A. Summary

To gain additional commenter input on the proposed rail security requirements, TSA held a public meeting on February 2, 2007 in Arlington, Virginia. Sixtyone persons attended the meeting. The oral presentations given by stakeholders mirrored their written comments. Transcripts from the public meeting are available for review in the public docket for this rulemaking. The public comment period for the NPRM closed on February 20, 2007. TSA received approximately 73 public comments on the NPRM. Comments were submitted by trade associations, individual companies, labor unions, States and localities, and private individuals.

Below is a summary of the public comments and TSA's responses, organized as follows: Section A describes the overall organization of this section of the preamble, and Section B includes comments and responses related to the specification of hazardous materials. Sections C, D, and E include comments and responses on issues that apply to passenger rail (including rail transit), freight rail, and hazardous materials facilities that ship or receive materials by rail. These issues relate to the appointment of an RSC, TSA's inspection authority, and the requirement to report suspicious incidents or activities. Section F
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includes comments and responses on SSI issues. Sections G and H include comments and responses on issues that relate to freight railroad carriers and hazardous materials facilities that ship or receive materials by rail. Section I includes comments and responses on whistleblower protection. Section J includes comments and responses on preemption. Section K includes comments and responses on the regulatory impact assessment. Section L concerns comments that are beyond the scope of this rulemaking.

B. Specification of Hazardous Materials

As explained in the NPRM, TSA, PHMSA, and FRA have assessed the security vulnerabilities associated with the transportation of different types and classes of hazardous materials. TSA applied enhanced security requirements for certain categories and quantities of hazardous materials (i.e., as specified in proposed Sec. 1580.100(b)) based upon specific railroad transportation scenarios depicting how individuals could deliberately use hazardous materials to cause significant casualties and property damage. 71 FR at 76861. The materials specified in the NPRM present a significant rail transportation security risk and an attractive target for terrorists because of the potential for these materials to be used as weapons of mass effect. The proposed rule excluded tank cars containing only residue quantities of the hazardous material, because TSA concluded that, from a security perspective, the consequences of the release of a residue quantity of a PIH material would be significantly less than the consequences involving a loaded tank car. 71 FR at 76861. TSA sought comment on whether to apply the requirements in the final rule to fewer or additional hazardous materials or to extend the requirements to include tank cars containing residue quantities. TSA also sought 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 in the final rule to those other materials.

Comments: An association commented that this final rule should not apply to Division 1.3 explosives, which consist of materials such as fireworks, smokeless powder, and rocket motors. The commenter noted that while TSA characterizes Division 1.3 explosives as commodities presenting ``a fire hazard and either a minor blast hazard or a minor projection hazard or both, but not a mass explosion hazard'' (71 FR at 76861), many commodities present a fire hazard that are not included in the commodities identified by TSA as warranting special security protection.

TSA Response: TSA is retaining Division 1.3 explosives in Sec. 1580.100(b) of the final rule, because these explosive materials in the quantities covered in this rule present a significant security risk in transportation. Although a Division 1.3 explosive presents a minor blast and/or projection hazard, this material is extremely flammable and could be used as a weapon of mass effect. If compromised in transit by detonation or as a secondary explosion to an IED, Division 1.3 explosives could result in substantial damage to people, public and private property, and rail infrastructure.

Comments: A labor union recommended that TSA reduce the 5,000 pound applicability trigger for explosives in Sec. 1580.100(b) to 100 pounds.

TSA Response: TSA has not adopted this recommendation. A low threshold quantity of 100 pounds of explosives, even if compromised or detonated in transit, is unlikely to have the potential to turn the rail shipment into a weapon of mass effect.

Comments: Several commenters expressed some concern that the TSA and PHMSA rail security NPRMs are not consistent in terms of their application to shipments of PIH materials. The PHMSA NPRM applies to bulk quantities of PIH materials. A ``bulk quantity'' as used in the HMR means a quantity that exceeds 450 L (119 gallons) for liquids, a net mass greater than 400 kg (882 pounds) for solids, or a water capacity greater than 454 kg (1,000 pounds) as a receptacle for gas. See 49 CFR 171.8. Thus, the provisions of the PHMSA NPRM would apply to PIH shipments transported in tank cars, including residue amounts exceeding 119 gallons, and portable tanks and other bulk containers. In contrast, the TSA NPRM would apply to tank cars containing PIH materials but exclude residues. Commenters suggested that the two rules should be applied consistently. They recommended that both final rules adopt the TSA tankcar threshold and exclude residue shipments, because they represent a low security threat.

TSA Response: We believe that there are important distinctions between the quantities of concern from a security perspective and the quantities of concern from a safety perspective. These distinctions account for the differences between the two rules. The amount of residue remaining in a tank car varies, but in most instances, tank car residues will total approximately 12 percent of the original amount of material in the tank, or 1,8003,600 pounds. There are legitimate safety concerns relating to residue quantities even though the target attractiveness from a security standpoint is diminished. PHMSA explains those safety concerns in its rule. With respect to security, the potential consequences of the release of a residue quantity of al PIH material would be significantly less than the consequences of an incident involving a loaded tank car. Therefore, in this final rule, TSA is requiring enhanced security measures for the classes and quantities of PIH materials as proposed in the NPRM (i.e., not tank cars containing residual PIH materials). TSA has determined that residue quantities of PIH materials in bulk packaging shipments do not carry sufficient amounts of securitysensitive materials to warrant the enhanced security measures required by this rulemaking.

Comments: Some commenters were confused as to whether TSA intended anhydrous ammonia to be included as a PIH material for which enhanced security measures are required.

TSA Response: The answer is yes. To ensure that this confusion does not persist, we are specifically adding anhydrous ammonia as an example in Sec. 1580.100(b) of a material covered by the security requirements in this final rule. Commenters are correct that, under the HMR, anhydrous ammonia is classed as a Division 2.2 compressed gas for domestic transportation. However, anhydrous ammonia meets the definition of a material that is poisonous by inhalation under 49 CFR 171.8 of the HMR. That definition includes any material identified as an inhalation hazard by a special provision in column 7 of the 49 CFR 172.10 Hazardous Materials Table. The entry for anhydrous ammonia in the Hazardous Materials Table includes Special Provision 13, which requires the words ``Inhalation Hazard'' to be entered on shipping papers and marked on packages.

Comments: Some commenters believed that the hazardous materials listed in 49 CFR 1580.100(b) should include other flammable gases and liquids, since those materials could be weaponized, as well as include other materials that could cause serious damage if released into rivers and lakes. One commenter recommended that TSA extend the applicability of this final rule to cover commodities that convert to poisonous gases when they come into contact with water, fire, or acids; this commenter referenced a train derailment that occurred near Superior,
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Wisconsin on June 30, 1992 in which 73 persons were injured when the contents of one rail car reacted with water and formed a vast vapor cloud.

TSA Response: While TSA agrees that other types of hazardous materials pose certain security risks in rail transportation, the risks are not as great as those posed by the explosive, radioactive, and PIH materials specified in this final rule, and at this time we are not persuaded that they warrant the additional precautions required by this final rule. TSA, in consultation with PHMSA and FRA, will continue to evaluate the rail transportation security risks posed by all types of hazardous materials and the effectiveness of existing Federal regulations in addressing those risks and will consider specific requirements as necessary.

Comments: One commenter requested that TSA revise the applicability language in 49 CFR 1580.100(b)(3) by replacing the threshold limit of ``a highway routecontrolled quantity of a Class 7 (radioactive) material'' with the NRC's published list of Import and Export Threshold Limits for Category 1 and 2 Radioactive Materials. See Appendix P to 20 CFR part 110.

TSA Response: TSA has retained the threshold limits for radioactive materials as proposed in the NPRM. From a security perspective, it appears that the consequences from a release of a radioactive material subject to the lower threshold limits set forth by the NRC would be significantly less than the consequences of an incident using a highway routecontrolled quantity of a Class 7 radioactive material. C. Rail Security Coordinators

Section 1580.101 of the NPRM proposed that freight railroad carriers, rail hazardous materials shippers, and rail hazardous materials receivers within a High Threat Urban Area (HTUA) appoint an RSC, designated at the corporate level, to serve as the primary contact for intelligence information and securityrelated activities and communications with TSA, and coordinate security practices and procedures with law enforcement and emergency response agencies. Section 1580.201 of the NPRM proposed that passenger railroad carriers and rail transit systems appoint RSCs who would perform the same functions. TSA received numerous comments on the RSC provisions of the NPRM. TSA summarizes those comments and its responses below. 1. The RSC Role Must Be Performed by a Designated Individual

Comments: Several commenters, representing railroad carriers and explosives manufacturers, remarked that many companies already have emergency response and communications systems in place, with some of them following PHMSA's emergency response information requirements.\24\ Some of these commenters urged TSA to allow the use of an emergency contact center number or a 24hour corporate security number, instead of appointing an RSC.\25\ The commenters stressed that an emergency call center could connect the TSA caller to the appropriate security or response personnel as needed. Further, other commenters thought that having TSA maintain telephone lists of specific individuals named as RSCs does not appear to add value to the regulation.
\24\ PHMSA requires any person offering a hazardous material for transportation to provide an emergency response telephone number for use in the event of an emergency involving the hazardous material. See 49 CFR 172.604(a). The regulation requires that the telephone number be monitored at all times by ``a person who is either knowledgeable of the hazardous material being shipped and has comprehensive emergency response and incident mitigation information for that material, or has immediate access to a person who possesses such knowledge and information,'' but permits the offeror to meet this requirement by providing the telephone number of an agency or organization. See 49 CFR 172.604(a) and (b).
\25\ In 1971, the chemical industry established CHEMTREC as a public service hotline for fire fighters, law enforcement, and other emergency responders to obtain information and assistance for emergency incidents involving chemicals and hazardous materials. Additionally, for a fee, CHEMTREC helps shippers of hazardous materials comply with the PHMSA regulatory requirement to provide an emergency telephone number on shipping documents that can be called in the event of an emergency involving the hazardous material that is being shipped. CHEMTREC also provides emergency responders with the information they need in the event of an incident.

TSA Response: TSA believes that there is great security value in requiring the appointment of RSCs and in requiring regulated entities to provide contact information for these individuals. The RSC or alternate must serve as the security liaison between the regulated party and TSA. The RSC or alternate provides a primary single point of contact at the corporate level for receiving communications and inquiries from TSA concerning threat information or security procedures and coordinating responses with appropriate law enforcement and emergency response agencies. If TSA needs to convey extremely time sensitive security information to a regulated party, particularly in situations requiring frequent information updates, it is important for the sake of continuity that TSA be able to interact with a specific individual. The RSC must be in a position to understand security problems, raise issues with corporate leadership, and recognize when emergency response action is appropriate.

TSA has decided not to allow the use of emergency call centers or 24hour generic contact numbers to substitute for the requirement to designate named individuals to serve as RSCs and alternate RSCs. However, using call centers, in conjunction with appointed RSCs, may be an appropriate way to satisfy the requirements of 49 CFR 1580.101(e)(2) and 1580.201(e)(2). To meet these requirements, the call center or emergency hotline would need to be staffed 24hours a day, 7 days a week, and must be able to immediately locate and communicate with the RSC.

2. Scope of Section 1580.101

Comments: Several commenters suggested that certain operations do not need RSCs or that individuals performing similar functions for other purposes, such as individuals responsible for security under DHS's CFATS rule, should be able to serve as RSCs.

Some commenters argued that proposed Sec. 1580.101 should not apply to marine terminals because those facilities are regulated under the Coast Guard security requirements. They believed that TSA should exclude ``ondock'' rail facilities from the requirement.

Several trade associations stated that Sec. 1580.101 should not apply to a rail hazardous material shipper or receiver that only ships or receives the specified hazardous materials on an occasional basis. One of these commenters noted that many of its members are relatively small operations that may ship or receive tank cars of anhydrous ammonia only once or twice a year. Another association recommended exempting entities that ship or receive less than

FOR FURTHER INFORMATION CONTACT

For questions related to freight rail security: Scott Gorton, Transportation Sector Network Management, Freight Rail Security, TSA28, Transportation Security Administration, 601 South 12th Street, Arlington, VA 222024220; telephone (571) 227 1251; facsimile (571) 2271923; email freightrailsecurity@dhs.gov.

For questions related to passenger rail security: Morvarid Zolghadr, Mass Transit and Passenger Rail Security, TSA28, Transportation Security Administration, 601 South 12th Street, Arlington, VA 222024220; telephone (571) 2272957; email
passengerrailcomments@dhs.gov.

For legal questions: David H. Kasminoff, Office of Chief Counsel, TSA2, Transportation Security Administration, 601 South 12th Street, Arlington, VA 222024220; telephone (571) 2273583; facsimile (571) 2271378; email david.kasminoff@dhs.gov.

For questions related to SSI: Andrew E. Colsky, Office of the Special Counselor, SSI Office, TSA31, Transportation Security Administration, 601 South 12th Street, Arlington, VA 222024220; telephone (571) 2273513; facsimile (571) 2272945; email SSI@dhs.gov.