Monday, November 17, 2008

PHMSA HAZMAT Security Rule Comments – 11-14-08

This week saw the end of the comment period for this NPRM and six comments were posted on the Regulations.Gov web site. That means that this should be the last blog that I do on the comments. The six comments were submitted by: National Tank Truck Carriers, Inc Dow Chemical Company Full Scale Effects Tassilo Baur National Association of SARA Title III Program Officials Compressed Gas Association Special Effects Industry Comments We have two comments from the special effects industry this week, Full Scale Effects and Tassilo Baur. Once again they object to the ‘any amount’ requirement for Division 1.4 explosives. The letter from Thomas M Craven, Operations Manager, Full Scale Effects brings up some new information that I had not seen in the previous industry letters. First he notes that there are only two suppliers of the pyrotechnic devices used by the special effects industry. I find it curious that neither of them has posted a comment to this regulation. Second, he takes issue with the PHMSA assertion that “while the proposed rule would apply to a substantial number of small entities, it will not have a significant economic impact on those small entities” (page 52569). Actually, what the PHMSA discussion was about was the negligible benefit received by the approximately 10,000 small businesses that would benefit by no longer being covered by the current regulations. PHMSA fails to note that any small entities would be adversely affected by the proposed rule. Finally, he proposes that small quantities (e.g. 25 lbs for Division 1.4 explosives) be allowed to be shipped ‘next day’ without falling under the security provisions of this NPRM. He notes that this “would expose the product to theft for the least amount of time and limit the amount that could be stolen at any one time”. National Tank Truck Carriers, Inc Comments The NTTC agrees with the comments submitted by the American Trucking Association and specifically objects to two provisions of the current NPRM, “route specific security analyses and security plan updates”. The NTTC notes that it is not practical to conduct a route specific security analysis because there really is no such thing as a fixed route for truck transported materials. Exigencies of the moment caused by traffic, construction and weather (for example) routinely cause truck drivers to change the route to their destination. The NTTC objects to the language in the preamble to the NPRM (page 52567) that includes “acquisitions, mergers, operating rights, materials transported, expanded or reduced service levels” as ‘changing circumstance’ that would require revision of the security plan. They would, however, support the actual wording of §172.802(c) if it included the qualification that the ‘changing circumstances’ would “render a significant aspect of the security plan deficient”. Dow Chemical Company Comments Dow presents a detailed discussion on a number of areas. Those areas include:
· Regulated material must be quantified above “any quantity” · Shipment of residual material must be exempted · PHMSA should expressly note that risks and security measures will vary by mode · HAZMAT employees need access only to the need-to-know elements of the security plan and not to the security risk assessment · “Site-specific” and “location-specific” are not appropriate terms for transportation security risk assessments · The specific security criteria must be defined between offeror and transporter · PHMSA should clarify that a corporate security assessment and plan satisfies the requirements of the subpart · PHMSA should ensure consistency with other federal regulations · PHMSA should facilitate identification of materials subject to Security Plan requirements
National Association of SARA Title III Program Officials Comments This organization takes exception to the requirement for route security assessments without a requirement to consult with “local emergency planners, law enforcement or fire departments”. They suggest that a new §172.802 (b)(4) be added to require that the security plan includes a certification that security risks were evaluated in consultation with local emergency planners, law enforcement and fire departments. Compressed Gas Association Comments The CGA recommends that cryogenic Oxygen be removed from the list of chemicals that require shipment security plans. They note that, other than the cryogenic hazard, there is typically no direct hazard from an oxygen release. They provide a copy of a magazine article from 1989 describing an attack with small arms and a light anti-tank weapon (M72 LAW) on an oxygen storage tank to support their contention. My Comments on Comments First I want to note that there appear to be a large number of comments that were submitted on this docket that were not published on the Regulation.Gov web site. There are provisions for submitters to request that their submission be kept from public view IAW 49 CFR part 105. This allows for trade secrets, confidential commercial information and sensitive security information to be kept confidential. However, a news release by the National Association of Chemical Distributors notes that they filed comments on November 11th and they were not available on the site by close of business November 14th. Nor have I seen the comments submitted by the American Trucking Association referenced in the National Tank Carriers comments. As is fairly usual the bulk of the comments by large industry commenters are filed at or near the close of the comment period. A part of the reason is the fact that a large organization needs more time to get its comments organized, reviewed and approved. I also suspect that it is an attempt to restrict the time for counter comments by special interest groups and others ‘opposing industry interests’. The Dow Chemical comments on the different security assessment and plan requirements for shippers and carriers need to be addressed more completely in the proposed regulations. The shipper cannot accurately assess and/or address the enroute security risks associated with the hazmat shipment. The carrier will, likewise, not be able to accurately assess the security of the loading or unloading operations. The regulations need to more completely address the different roles of the shipper, the carrier and the receiver, as well as the change of custody between each. A good example of how this might be done would be the current final rule on Rail Transportation Security recently published by the TSA (see: “DHS Announces Final Rule on Railroad Security Standards”). One thing that large hazmat shippers like DOW might want to consider is including suggested security procedures for bulk unloading operations in their product stewardship documents. I have seen the detailed information that these large companies include for safe unloading requirements. They should do something similar for security. Future of the Rule It will be interesting to see how this rule is handled during the transition to the Obama administration. PHMSA will almost certainly not have time to publish the final rule before January 20th. The Obama campaign had very little to say about chemical security (to be fair, neither did the McCain campaign), nor has there been much comment from Congress or the variety of special interest groups that would be expected to have an opinion and some level of influence in the new administration. The one comment from the SARA Title III organization does show what types of suggestions I would have expected to see from some of the groups that have been vocal on other chemical security issues. I have seen no comments about routing bulk shipments of PIH chemicals away from HTUAs, or about requiring the involvement of truck drivers and other front line workers in the security planning process, or comments about whistleblower protections. All of these could have easily been included in this regulation. This is one of the regulations where we will get a good chance to see how the new administration is going to address homeland security issues. Personally, I think that this rule should be approved essentially as is (except do away with the ‘any quantity’ wording and set some sort of reasonable minimum quantity for each covered material). It has taken more than two years to get this regulation this far. Then the new administration could set about improving the regulation. There are alternative possibilities. The new administration could completely scrap the rule making process completed to date and start with a completely new ANPRM. Or it could take all or part of the process accomplished to date and re-write the present NPRM. Of the two, I would prefer to see that later, if for no other reason than it would speed up the process of improving the current regulations.

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