PHMSA Adjusts Fines for HMR Violations

The Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) on Tuesday published in the Federal Register a Final Rule adjusting upwards the minimum and maximum civil fines for violations of the hazardous materials regulations (HMR) [at 49 CFR Parts 100-185]. These increases are based on the Consumer Price Index (CPI-U) for 2005 (the last time the fines were adjusted) and for 2008 (the last full year for which data is available). The new rates published in the December 29, 2009 Final Rule become effective December 31, 2009, and are applicable to any violation of the HMR made after January 1, 2010.

The new rule increases the minimum fine for an HMR violation from $250 to $275 dollars, except for a violation relating to training. HMR training violation fines increase from $450 to $495. Maximum fines are increased from $50,000 to $55,000, except where the HMR violation results in death, serious illness or severe injury to any person or substantial destruction of property. In those cases, the maximum fine increases from $100,000 to $110,000. No changes were made by the Final Rule to the fines for criminal offenses under the HMR.

The rule modifies the fines listed in 49 CFR §107.329(a), §107.329(b), and §171.1. No advance notice of proposed rule making (NPRM) was required because these fine adjustments were required by law. PHMSA has certified that this final rule will “not have an significant economic impact on a substantial number of small entities” because “there is no economic impact on any person who complies with Federal hazardous material transportation law and the regulations, orders, special permits, and approvals issued under that law” (74 FR 68702).

Annual TSA Enforcement Action Summary Released

The Transportation Security Administration (TSA) on Monday published a notice in the Federal Register that they are making available, in accordance with 49 USC 114(v), a summary of enforcement actions it has taken in 2009 (through December 15th). According to the notice, these enforcement actions were “for violations of any surface transportation requirements under 49 U.S.C. and for any violations of chapter 701 of title 46 of the U.S. Code.” A complete summary of enforcement actions for all of 2009 will be made available in January.

The enforcement actions summary lists seven cases total, two of which relate to railcar chain of custody measures (49 CFR 1580.107(e)) and five of which relate to the Transportation Worker Identification Credential program (49 CFR 1570). TSA imposed no fine in any of the seven cases, issuing instead warnings. The provisions of 49 U.S.C. 114(v) would have permitted TSA to levy a civil penalty of up to $10,000 in each of the cases listed.

DHS's National Infrastructure Advisory Council to Hold Meeting

The Department of Homeland Security (DHS) announced Tuesday that its National Infrastructure Advisory Council (NIAC) will hold a meeting on Tuesday, January 12, 2010, from 1:30pm to 4:30pm. NIAC, composed of members from private industry, academia, and state and local government that are appointed by the U.S. President, submits reports and issues advice to the President regarding the eighteen critical infrastructure and key resources (CIKR) and their information systems. The purpose of the January meeting is to discuss and propose new topics of study for NIAC to undertake.

Participation in the meeting is limited to committee members and other DHS officials. However, the meeting is open to public comment. comments submitted by the public. Members of the public may submit written comments by December 29, 2009, in one of several ways:

• Online, through the Federal eRulemaking Portal;
• By emailing NIAC@dhs.gov;
• Via fax, at (703) 235-3055; or
• Via mail, to: Nancy Wong, Department of Homeland Security, National Protection and Programs Directorate, Washington, DC 20528 (IP/POD/PPIS Mail Stop 0607, B1, 3rd Floor).

DHS Releases Mass Transit Security Grant Assistance

The Department of Homeland Security (DHS) on Monday announced the release of more than $253 million in grant money available for high-risk mass transit systems. The Transit Security Grant Program is designed to assist high-risk mass transit systems with the purchase of equipment and training in order to address threats from terrorists and natural disasters. Grant applications are due February 18.

Congress appropriates money annually for emergency preparedness and critical asset protection. Security at mass transit systems, including subways and light rails, has come under scrutiny in recent months. Last week, the House Transportation and Infrastructure Committee heard testimony from Department of Transportation (DOT) Secretary Ray LaHood and other administration heads asking Congress to give the federal government regulatory authority over state and local mass transit systems. Urged legislation, if passed, would give the DOT's Federal Transit Administration (FTA) authority to issue regulations mandating security measures for rail transit systems.

DOT Publishes Final Rule Amending Air Transport Security Requirements for Chemical Oxygen Generators

The Department of Transportation (DOT) on Friday published in the Federal Register confirmation of the effective date of a Final Rule published earlier this year amending the Hazardous Materials Regulations (HMR) [49 CFR Parts 100-185] by revising the quantity limitation from 25kg "gross" to 25kg "net" for packages of chemical oxygen generators transported aboard cargo aircraft. The effective date was confirmed to have been November 16, 2009, by the DOT's Pipeline and Hazardous Materials Safety Administration (PHMSA), after no adverse comments were filed in regard to the October 15, 2009 Direct Final Rule.

The October 15 Direct Final Rule revises a Final Rule issued originally in January 31, 2007, enhancing the safety standards of cylinders of compressed oxygen, other oxidizing gases, and chemical oxygen generators being transported in aircraft. The January 31 Final Rule amended the HMR to require these products to be transported in outer packaging that (1) meets the same flame penetration resistance standards as required for cargo compartment sidewalls and ceiling panels in transport category airplanes; and (2) provides certain thermal protection capabilities so as to retain its contents during an otherwise controllable cargo compartment fire.

House Committee Considers Greater Federal Oversight Over Mass Transit Systems

The House Transportation and Infrastructure Committee on Tuesday heard testimony from Department of Transportation (DOT) Secretary Ray LaHood and other administration heads asking Congress to give the federal government regulatory authority over the nation's subways, light rails, and other mass transit systems. Urged legislation, if passed, would give the DOT's Federal Transit Administration (FTA) authority to issue regulations mandating security measures for rail transit systems. In his testimony, LaHood noted that mass rail systems are responsible for transporting more passengers daily than are domestic airlines - which are regulated by DOT's Federal Aviation Administration - or passenger and commuter railroads - regulated by DOT's Federal Railroad Administration. Alternatively, local rail systems are responsible for creating and implementing their own independent security measures, which are overseen by state-run agencies.

DOT members have sent a plan to Congress that would permit federal regulation of mass transit systems. According to LaHood, the proposal would accomplish three goals. First, it would require DOT to establish and enforce minimum Federal safety standards for rail transit systems that receive Federal transit funding. Second, the DOT would establish a safety certification program whereby a state would be eligible for federal transit assistance to carry out a federally-approved public transportation safety program. Finally, the program would ensure that State agencies with oversight authority over transit system security be fully financially independent from those transit systems. The proposal now goes to Congress for consideration and debate.

DHS Launches Collaborative Emergency Response Tool

The Department of Homeland Security (DHS) on Wednesday officially launched Virtual USA, an information sharing tool that helps local and state responders share the location and status of critical assets and information. The program, which has been in development by DHS's Science and Technology Directorate for more than a year, assists federal, state, and local responders track emergency vehicle and ambulance locations, weather and traffic conditions, and evacuation routes (among other things) when responding to an emergency. Virtual USA works as a technology collaboration tool, allowing real-time information sharing from the public that draws on input from local and state first responders. The program utilizes open source software to allow for information sharing between all levels of response - from federal to tribal.

Virtual USA is modeled after a program, Virtual Alabama, developed in 2007 by the Alabama Department of Homeland Security to implement information sharing at the local level to aid first responders. A meeting was held earlier this year to discuss the Virtual USA spin-off, with representatives from Florida, Alabama, Mississippi, Louisiana, Texas, Virginia, Tennessee, and Georgia in attendance. Those eight states have been operating Virtual USA pilot programs since the meeting. The Virginia program alone has reduced hazardous materials incident response time in that state by at least seventy percent.

Senate Intelligence Committee Announces Cybersecurity Task Force

The Senate Select Committee on Intelligence announced Tuesday the formation of a cybersecurity task force to evaluate cyber threats against the U.S. Senators Mikulski (D-MD) and Snowe (R-ME) will serve as task force members. Senator Whitehouse (D-RI) will serve as task force chair. Among other things, the task force will issue recommendations relating to cyber threats and cyber security to the U.S. intelligence community. The task force will serve until June 2010.

Cybersecurity has become a key issue of concern in recent months for members of Congress as well as the intelligence community. Last month, the House Committee on Science and Technology passed H.R. 4061, the Cyersecurity Enhancement Act of 2009, which would streamline federal investments in cybersecurity research and development as well as improve cybersecurity and technical standards in the workforce and encourage cybersecurity partnerships between the public and private sectors. Also in November, the Senate Committee on the Judiciary's Subcommittee on Terrorism and Homeland Security held a two-panel hearing called “Cybersecurity: Preventing Terrorist Attacks and Protecting Privacy in Cyberspace” to discuss the growing risk of cyber attacks. The first panel included representatives from the Department of Homeland Security (DHS), Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the Department of Defense (DOD). The second panel included Senior Counsel of the Center for Democracy and Technology and the President of the Internet Security Alliance. Testimony was heard regarding al-Qaeda's growing awareness of U.S. cyber vulnerabilities, and their increased interest in learning computer hacking skills. Some members of the panels added that gaps exist in current cybersecurity laws such that new and growing threats are not being addressed.

BASF Installing Real-Time Tracking System on Chemical Railcars

German chemical company BASF is completing the installation of a real-time tracking system on U.S. railcars carrying the company's six most hazardous chemicals, as mentioned in the Department of Homeland Security's (DHS's) Daily Open Source Infrastructure Report on Monday. The wireless tracking system, consisting of a VeriWise tracking unit with a GPS receiver and communications satellite transceiver, allows the company to monitor the location of approximately 1,000 of its 7,000 railcars that travel to and from chemical plants. Some of the systems also contain sensors to monitor the conditions on and around the railcar, including detection for impact and motion and temperature gauges. The system transmits all information via satellite to a VeriWise server, identifying the railcar with an ID number. In the event of an incident, such as a collision or tampering with the railcar, VeriWise sends an alert to BASF. The upgraded system also allows BASF to communicate with the mounted devices, providing two-way communication capabilities. Eventually, BASF plans to equip a total of 1,200 of its railcars with the tracking system.

In the wake of increased chemical security regulations in recent years, including the Chemical Facility Anti-Terrorism Standards and the Rail Transportation Security Final Rule, security of railcars carrying hazardous chemicals has increased. Tracking and monitoring of such railcars as well as chain of custody and control procedures at facility loading and unloading stations have become necessary in order to address new security regulations.

DHS Announces Mass Transportation Security Study

Last Wednesday, the Department of Homeland Security (DHS) and the Massachusetts Bay Transportation Authority (MBTA) announced the beginning of a study led by DHS's Science & Technology Directorate to examine the effect of a release of airborne contaminants into subway and mass transit systems. The project will include studying both chemical and biological compounds, in order to determine how best to respond to a release in the wake of a chemical or biological terrorist attack on the nation's public transportation system. According to DHS, the MBTA subway system will be used to test particle concentrations throughout the subway system in order to help design detection systems as well as to help plan emergency and security response strategies. Testing began yesterday, and will run until December 11.

Transportation systems, including mass transit, make up one of eighteen sectors deemed "critical infrastructure and key resources" (CIKR) in Homeland Security Presidential Directive 7 (HSPD-7). Wednesday's announcement comes about a month after several news stories reported that the White House has proposed the passage of federal regulations that would oversee the security of mass transit systems, including subways and light rail systems, across the country. Earlier this week, the House of Representatives passed a resolution mandating the Transportation Security Administration (TSA) to enhance security of the nation's rail and mass transit systems.

House Passes Rail and Mass Transit Security Resolution

The U.S. House of Representatives on Thursday passed H.Res. 28, enhancing security of the nation's rail and mass transit systems, in a 417-3 vote. The resolution, sponsored by Rep. Jackson-Lee (D-TX), would allow the Transportation Security Administration (TSA) to enhance security measures at the nation's rail and mass transit lines, under Congressional mandate provided by the Implementing Recommendations of the 9/11 Commission Act of 2007. H.Res. 28 mandates TSA to:

• Continue to enhance security to the nation's rail and mass transit systems and other surface transportation modes;
• Continue developing TSA's National Explosives Detection Canine Team Program, which has effectively secured the nation's rail and mass transit systems from explosives threats; and
• Enhance online training programs to ensure that individuals responsible for securing surface transportation systems are highly trained to prevent and respond to potential terrorist attacks.

In June, the House passed H.R. 2200, the Transportation Security Administration Authorization Act of 2009, which authorizes TSA to implement security over the nation's rail and mass transit systems. That measure has been referred to the Senate Committee on Commerce, Science, and Transportation, and is awaiting Senate action.