Railroads, transit agencies seek federal security funding

By Angela Cotey, Associate Editor

Gone are the days when pick-pocketers topped transit agencies’ security concerns. And the curious trespasser has fallen a few notches on freight railroads’ security priority list.

Today, an abandoned bag on a station platform is cause for transit officials to call in the canine units. A freight train hauling hazardous materials near or through a large urban area might prompt local officials to seek a ban on moving the cargo in the vicinity. Welcome to rail security, post-9/11.

It’s an era that both freight and passenger railroads adapted to quickly. By December 2001, freight roads had created an industry-wide rail security plan that included developing a database of critical railroad assets, assessments of vulnerable areas, and an analysis of potential risks and countermeasures. As part of the plan, railroads have increased tracking and inspection of certain hazardous materials and munitions movements, added more random inspections, improved security of physical assets and trained employees to be the “eyes and ears” of their respective railroads.

Transit agencies have hired additional police officers to inspect and patrol stations and trains, added canine units, trained employees, increased public awareness of security, and installed security cameras onboard trains, and at stations and other key facilities.

Rail officials believe their efforts during the past five years have made for a safer and more secure rail network. They also know they’ve still got work to do.

“A great deal has been done and a great deal can still be done to increase security for public transit systems,” says Greg Hull, director of security and member services for the American Public Transportation Association (APTA). “We recognize our infrastructure isn’t going to be 100 percent secure, but we have a responsibility to make it as secure an environment as possible.”

It’s a continuous process that’ll require investing billions of dollars. Railroads and transit agencies also could use some more direction and support from the federal government. Although there have been some positive signs of late — legislation’s on the table to provide long-term rail security funding, and the Transportation Security Administration (TSA) has made management and organizational changes that could translate into more support — the federal government’s role in the rail security realm remains a work in progress.

Step in the right direction
For the most part, rail officials say they’re OK with that, as long as progress is being made. Since its November 2001 creation, TSA has gone through a number of personnel and organizational changes as it’s tried to come to grips with its role in the transportation security world, making it tough for rail officials to develop strong relationships within the organization.

But in November 2005, TSA created the office of Transportation Sector Network Management (TSNM), which oversees security for railroads, mass transit agencies, ships, airlines and airports, highways, pipelines and international transportation. Since then, the agency’s hired managers to oversee security for each mode, including a few rail veterans.

Last year, TSA named John Sammon, who’s held upper management positions at CSX Transportation and Conrail, assistant administrator to oversee the office. The agency also appointed Gil Kovar, another CSXT and Conrail veteran, to head the freight-rail sector. Forty-year transit industry veteran Paul Lennon, who most recently served as director of intelligence and emergency preparedness management for the Los Angeles County Metropolitan Transportation Authority, will head up the mass transit sector.

“[TSA] recently brought some people into the organization that have some very good rail background, and I’m cautiously optimistic that we might get back to a time where command, control and enforcement isn’t seen as the only thing TSA can do to show they’re helping to enhance security at our nation’s railroads,” says Skip Elliott, CSXT vice president of public safety and environment.

In recent months, sector managers have been working to get a better handle on the top security priorities for their respective industries so that, if nothing else, railroads and transit agencies are on the same page with each other and TSA.

Last year, Class Is, regionals and short lines developed “security action items” at the request of and in conjunction with TSA. The agency issued 24 of the measures in June 2006 and another three in November 2006.

Taking action
The security action items serve as voluntary guidelines that TSA recommends freight roads follow to improve system security, access control and en-route security. Among them: Railroads should designate an individual to be responsible for hazardous materials transportation security planning and training; identify and annually review critical infrastructure; provide local authorities with information on the hazardous materials transported through their communities; consider alternative routes for transporting toxic inhalation hazard (TIH) materials where practical; and, when possible, place cars containing TIH materials in areas of rail yards where “the most practical protection can be provided against tampering and outside interference.”

TSA currently employs about 100 rail inspectors throughout the country who help ensure railroads are following the guidelines — and for the most part, they are, says TSA’s Kovar.

“Our goal is to reduce the risk associated with transporting TIH materials by 50 percent by the end of 2008,” he says. “We’ll measure that by looking at dwell hours, the location of cars, and looking into what railroads can do to reduce the amount of time cars sit unattended.”

TSA’s mass transit sector has developed its own set of priorities. Announced in November 2006, the priorities are to secure high-risk, underwater tunnels, elevated structures and major terminals; implement visible, unpredictable measures of deterrence, such as police officers; implement employee training and public awareness programs; and conduct tabletop exercises.

Sound familiar? Most transit agencies have been focusing on the same six areas since just after 9/11 — the only difference is that TSA has “codified” them, says TSA’s Lennon.

“These are the elements, but no one has captured and focused on them as such,” he says.

Meanwhile, APTA is working to codify some priorities of its own. The association currently is working to develop infrastructure, emergency preparedness and risk management security standards. APTA has formed working groups comprising transit agency officials, business members and federal partners to develop the standards. For example, the infrastructure working group is creating standards pertaining to the use and placement of lighting, closed-circuit television systems, trash receptacles and fencing; the emergency preparedness group is developing standards for emergency plans and drills, says APTA’s Hull. The association soon plans to post an initial set of standards for industry review.

Wanted: $6 billion
But in the transit industry, security standards and priorities mean very little if there aren’t funds available to back them up. That’s why the industry has cited $6 billion in security needs — $5.2 billion in one-time capital investments and $800,000 annually for operating support to train employees.

“Our largest priority is working toward a level of funding through Congress that will enable transit systems to put into effect the measures required from a capital and operational standpoint,” says Hull.

Transit officials don’t think the $6 billion price tag is too much — especially considering the aviation industry has received more than $25 billion in federal security funding since 9/11. In comparison, the public transit industry has only obtained about $485 million and it transports more than 16 times the number of people as domestic airlines, says Hull.

“We recognize this $6 billion is not an amount Congress can provide in a one-year time span, so we’re looking for appropriate funding over a period of time, such as five years,” says Hull.

The transit industry might get its wish with The Rail and Public Transportation Security Act of 2007 (H.R. 1401), which was passed by the House in March. The bill would provide $7.3 billion over four years to the rail and mass transit industries (including $3.36 billion for public transit) beginning in fiscal-year 2008. Also in March, the Senate passed a similar bill, the Improving America’s Security by Implementing Unfinished Recommendations of the 9/11 Commission Act of 2007 (S. 4). The bill includes an amendment calling for $3.5 billion in transit security during a three-year period.

Since there is no comparable transit security legislation in the House’s version of the 9/11 Commission bill, H.R. 1401 likely will be considered as the House’s position on transit security when the House and Senate “negotiate a conference” on the agreement, according to APTA.

Either bill would provide a “more realistic” level of funding for transit security, says Hull, and while APTA officials say they can’t determine the likelihood of either bill being passed, they support both.

Bad language
Freight railroads can’t say the same. The Association of American Railroads (AAR) and American Short Line and Regional Railroad Association (ASLRRA) are lobbying against language included in H.R. 1401 that would eliminate federal preemption of state and local laws.

“[The bill] could subject railroads to widely differing regulations throughout the country,” says Nancy Wilson, AAR’s VP of security. “Not only could it be different depending on which city or county the train might be traveling through, there would be nothing to prevent one jurisdiction from adopting regulations that directly conflict with the regulations from an adjacent jurisdiction.”

H.R. 1401 also contains requirements for rerouting hazardous materials, calling for rail carriers to “select the most secure route and storage pattern to be used in moving the materials,” meaning “the route or storage pattern that best reduces risk, including consequences, of a terrorist attack on a shipment of security-sensitive material that is transported through or near an area of concern,” according to the legislation.

For freight-rail officials, the bill’s proposed haz-mat rerouting and preemption-eliminating language is more important than the funding level.

“We’re not looking for federal funds, we’re not expecting them and we’re certainly not waiting for them,” says Wilson. “We’ve been implementing security measures since right after the terrorist attacks and we’ve not waited for the federal government to either pay for them or tell us what we should be doing.”

That said, railroads probably wouldn’t turn away some federal help.

“There’s been a great deal of money spent in certain sectors on security issues, yet railroads are expected to carry all those costs on their own, and we’re directed to carry many materials that could be very destructive,” says ASLRRA President Richard Timmons.

Those destructive materials are causing some headaches for freight railroads. For one, they’ve caused roads’ liability insurance costs to skyrocket. North American railroads handle about 100,000 carloads of hazardous materials annually (about 0.3 percent of their total carloads), yet they account for about half of their liability insurance expenses, says Wilson.

“We are the only link in the supply chain that’s required by federal law to handle these materials, so we have no right to refuse these shipments, but our potential liability is limitless,” she says.

So, the AAR and ASLRRA currently are lobbying Congress to implement a cap on freight railroads’ haz-mat liability costs.

Some freight roads also are contending with a handful of haz-mat bans proposed in large urban areas. In March 2005, Washington, D.C., passed legislation prohibiting rail and truck haz-mat moves within two miles of downtown. After being approved by the District Court in April 2005, the ban was sent to the Court of Appeals, which sided with CSXT and the Department of Justice by determining that the district couldn’t implement an ordinance prohibiting the movement of materials already being regulated by the federal government. The legislation then was sent back to the District Court, where it’s been for about a year.

Since D.C. proposed the legislation, several other cities have followed suit. But it ultimately should be up to the federal government to determine how railroads should handle haz-mat moves, says CSXT’s Elliott.

“We don’t believe it’s our responsibility to determine that the lives of people in a community outside of Washington, D.C., or another location are any less important than the people in a community that developed an ordinance,” he says.

Also on the needs-improvement list: rail officials’ relationships with their federal partners. They’re getting better, sure, but signs of strain are still there.

Voluntary or regulatory?
For example, on Dec. 15, the USDOT proposed a rule that would require railroads to determine the most appropriate route for shipping hazardous materials, securely store hazardous materials en route, and ensure a railroad informs the final receiver within a specified time period that a haz-mat car has been delivered. That same day, TSA proposed a rule that would require railroads to establish security protocols for transferring TIH materials-carrying cars in “high-threat” urban areas and appoint a rail security coordinator to share information with the federal government. The rules might sound familiar to freight officials — many of the proposed regulations are very similar to the voluntary security action items.

“You negotiate in good faith and develop these voluntary guidelines, and then shortly thereafter we see this proposed rulemaking,” says CSXT’s Elliott. “That creates an inconsistency. If we have both voluntary guidelines and regulation, we’ll always have some confusion.”

TSA didn’t offer an explanation why it proposed a rule regulating some of the same voluntary actions railroads and TSA had agreed upon just months earlier.

“I assume at some point, [TSA] decided something more stringent needed to be in place. Maybe they didn’t believe voluntary action items would have the same effect as regulation,” says Elliott.

Transit-rail officials are looking for better communication from TSA and the U.S. Department of Homeland Security (DHS), too.

“While we’ve certainly had a number of activities we’ve engaged in together, we still haven’t seen a truly engaging relationship,” says APTA’s Hull.

For example, transit officials would like to work with TSA and DHS to determine which security technologies are best suited for the transit industry before testing them.

“We’ve seen an interest from DHS to test security-related technology and we fully support the notion,” says Hull. “But if we’d had the opportunity to sit down with them, we could have reviewed our needs and issues, then talked about what types of technology we need to develop and test.”

Searching for solid ground
Rail officials can’t build better relationships with their federal partners if those partners keep changing. Putting rail veterans in charge of TSA’s TSNM freight rail and mass transit sectors was a good first step, but now, it’s imperative they stay there.

“DHS and TSA have gone through a number of people changes, and changes in roles and responsibilities,” says ASLRRA’s Timmons. “It’s been a turnstile as they’ve tried to come to grips with everything, and this has been a very difficult evolutionary process.”

The good news: Whether it’s a freight railroad, transit agency or federal partner, the ultimate goal is the same — to keep North America’s rail network as secure as possible. And good relationships or bad, long-term federal funding or no federal funding, regulation or no regulation, it’s one that all rail officials need to make sure remains top-of-mind now and for years to come.