With the Department of Homeland Security now armed with temporary authority to regulate security at some of the nation's chemical plants, the Department of Transportation (DOT) has set its sights on reviewing another critical link in the overall security chain. The department announced last month that it is considering whether to revise the list of hazardous materials that require shippers and carriers to develop and implement security plans for transportation in commerce.
The advanced notice of proposed rulemaking, released by the DOT's Pipeline and Hazardous Materials Safety Administration (PHMSA), comes in response to two petitions by industry groups seeking modifications to the existing security plan requirements.
The current regulations were put in place in March 2003 and affected shippers and carriers subject to DOT registration requirements who offer or transport radioactive materials, chemicals poisonous by inhalation, certain infectious and toxic substances, as well as bulk shipments of flammable and compressed gases and flammable liquids.
The requirement is extended to transports of such hazardous materials in an amount that requires placarding--or signing--under DOT guidelines. The rules require shippers and carriers to identify potential security risks and implement measures to protect shipments of hazardous materials identified by the PHMSA rule. All security plans must include personnel, access, and en route security measures, but the regulation gives companies flexibility to tailor security plans to specific circumstances, and the measures adopted may vary with the level of the threat. The rule also requires shippers and carriers to provide security training to their employees.
The petitions that prompted the decision to review the rule did not raise specific concerns about the framework of the requirements, but rather the complex list of substances covered by the regulation.
The current rule specifically covers those who transport:
* A highway-route controlled quantity of a Class 7 (radioactive) material;
* More than 25 kg of a Division 1.1, 1.2, or 1.3 (explosive) material;
* More than 1 L (1.06 qt.) per package of a material poisonous by inhalation in Hazard Zone A;
* A shipment in a bulk packaging with a capacity equal to or greater than 13,248 L (3,500 gallons) for liquids or gases or greater than13.24 cubic meters (468 cubic feet) for solids;
* A shipment in other than a bulk packaging of 2,268 kg (5,000 lbs.) gross weight or more of one class of hazardous materials for which placarding is required;
* A select agent or toxin regulated by the Centers for Disease Control and Prevention under 42 CFR Part 73 and, by April 1, 2007, a select agent or toxin regulated by the U.S. Department of Agriculture under 9 CFR Part 121; or
* A shipment that requires placarding under subpart F of part 172 of the Hazardous Materials Rule.
The Council on Safe Transportation of Hazardous Articles (COSTHA) petitioned PHMSA to reevaluate the security requirements to better harmonize the regulations with international standards and "to better utilize available resources in enhancing hazardous materials transportation security."
COSTHA, a trade organization representing the hazardous materials transport industry, complained in its petition that the list of hazardous materials affected by the current rule differs from the list of "high consequence dangerous goods" identified by the United Nations as requiring tighter security for transport.
The U.N. recommendations define high consequence dangerous goods as materials with the "potential for misuse in a terrorist incident and which may, as a result, produce serious consequences such as mass casualties or mass destruction."
The petition cited several examples of hazardous materials--automobile batteries, inks, paint and flavoring extracts--that are subject to the security requirements of the rule, but are unlikely, COSTHA argues, to be the target of terrorist attack. The organization wants the agency to either adopt the same criteria as the U.N. recommendations or eliminate the security plan requirement for "quantities of hazardous materials for which placarding under the provisions of subpart F of part 172 [of the Hazardous Materials rule] is required."
The American Trucking Association (ATA) raised similar concerns in its petition. The ATA wants PHMSA to create a new subset of hazardous materials that are "security sensitive hazardous materials."
In its petition, the organization detailed its support for the materials and quantities that are subject to the current DOT hazardous materials safety permit requirements as "the starting point" for determining security sensitive hazardous materials.
The organization, which uses more than 3,500 gallons or 5,000 pounds to define "bulk" for purposes of security planning, suggested PHMSA add materials from the U.N. list, including bulk shipments of perchlorates, ammonium nitrate and ammonium nitrate fertilizers.
PHMSA said in its notice that it agrees with the two organizations that "the list of materials for which a security plan is required should be re-assessed."
Such a review is timely and warranted, PHMSA said, because "both the industry and the government have had three years of experience evaluating security risks associated with specific hazardous materials and transportation environments and identifying appropriate measures to address those risks."
The agency will take comments until Dec. 20 on how it might revise the rule. A public meeting will be held Nov. 30 in DOT's Nassif Building.