Monday, November 24, 2008

PHMSA HAZMAT Security Rule Comments – 11-21-08

While the comment period was closed last week on this rule, a number of new comments were posted to the web site this week. Of the eleven comments received this week only two were from the special effects community and one of those was from a manufacturer. The commenters were: Utility Solid Waste Activities Group National Association of Chemical Distributors William Dawson (special effects operator) Association of Hazmat Shippers National Paint & Coatings Association Council on Safe Transportation of Hazardous Articles The Cotton Warehouse Association of America Brent Bell Dangerous Goods Advisory Council Air Lines Pilots Association, International Nuclear Energy Institute Association of Hazmat Shippers Comments The AHS generally supports the proposed rule. They would like to see the wording of ‘3000 liters or more’ changed to the more common UN wording of ‘greater than 3000 liters’. They believe the current wording unintentionally brings IBCs (intermediate bulk containers) under the regulation. They would also like to see the wording of §172.802 to be changed to include words like ‘pertinent’, ‘appropriate’, or ‘significant’ to be included in the description of ‘site-specific’ or ‘location-specific’ elements of the security plan. National Association of Chemical Distributors Comments The NACD generally supports the proposed rule. They would like to see PHMSA and TSA use identical lists of security sensitive hazardous materials (SSHM). This would make it less confusing for the regulated community to comply with both sets of HAZMAT shipping regulations. The NACD has ‘grave concerns’ about the requirement to include route specific assessments. They note that many of the carriers do not have set routes for their deliveries and this would be an unreasonable burden to place on those carriers. Dangerous Goods Advisory Council Comments The DGAC does not think that small quantities of Division 1.4 explosives, Division 2.2 gasses that are oxidizers (except oxygen) or Class 3 desensitized explosives should be regulated under this rule. Further, it objects to the coverage of Division 4.3 PG II or PG III, Division 5.1 PG II liquids, Organic peroxides Type B, Division 6.1 PG 1 other than TIH, and small quantities of Division 6.1 TIH materials. DGAC objects to the requirement for risk assessments for specific routes as being impractical due to the daily route variations of most carriers. DGAC would also like to see a separate document used for the risk assessment and believes that a generic risk assessment “similar to the generic plan PHMSA provided on its website for farmers” would be appropriate in many instances. Brent Bell Comments Mr. Bell is the vice-president of BellFX, LLC, a company that provides Class 1.4 and 4.1 product to the special effects market. His company self-ships some of their products but as much as 70% ships next day delivery via common carrier in less than placardable quantities. He expects that those shipments would not be accepted if the proposed rule is passed and that would drive his company out of business. National Paint & Coatings Association Comments The NPCA objects to the inclusion of Class 3 and Class 8 paint materials (PG III) in the list of regulated items due to their low risk as potential terrorist targets. They would also like clarification that Class 3 combustible materials and high temperature materials are exempted from coverage. They would also like to see TSA and PHMS harmonize their approach to security requirements. They would also like to see the requirement for position specific requirements in the security plan changed to just department specific listing of requirements. The Cotton Warehouse Association of America Comments The CWAA supports the decision of PHMSA to remove all Class 9 materials from the list of materials requiring security planning. Air Lines Pilots Association, International Comments The ALPA supports the provisions of the rule. They particularly support the increased specificity of the training requirements. Utility Solid Waste Activities Group Comments The USWAG objects to the annual review requirements for security plans; noting that reviewing the plans only when there are significant changes that affect those plans is more reasonable. They also object to the 90 day requirement to retrain all employees after a change in the security plan; they believe that the re-training requirement should be limited to employees directly affected by the change. The USWAG requests clarification about anhydrous ammonia shipments. Since this material is typically shipped as a Division 2.2 material it does not appear to be covered, though this is clearly not the intent of the rule. They would also like clarification of how facilities are affected that come under this regulation because of an unplanned or unexpected requirement to ship listed HAZMAT, particularly one-time shipments. Council on Safe Transportation of Hazardous Articles Comments The COSTHA agrees with the ATA’s and IME’s submitted comments that PHMSA needs to define a quantity “that could be reasonably used in a mass-casualty terrorist activity” instead of using an ‘any quantity’ provision. The COSTHA objects specifically to the ‘any quantity’ provisions for Division 4.3 and 6.1, PG I materials when “materials meeting both these classifications are readily available through commercial distributors or retail outlets in non-bulk packagings”. The COSTHA notes the confusion expressed by IME about the term ‘desensitized explosives’ and suggests that PHMSA include a UN number listing of materials that it intends to be covered by that term. The COSTHA suggests that PHMSA include provisions in this rule that exempt a carrier from provisions of the rule when the shipper does not notify the carrier that the material is covered. Nuclear Energy Institute Comments The NEI notes that there is one minor difference between the NRC rules and the proposed rule; PHMSA includes coverage of ‘the 3000 A2 in a single package of Class 7 material’. NEI notes that this is not a significant difference except that the industry will have different requirements for the two agencies and this may lead to some confusion. NEI would like to see a single agency setting the shipping security requirements to avoid such confusion. My Comments on Comments As I noted in last week’s blog on this rule (see: “PHMSA HAZMAT Security Rule Comments – 11-14-08”) it is disappointing to see such a large number of last minute comments from industry. I continue to be disappointed in the lack of comments from a variety of public interest groups. While I do not always agree with some of their agendas or specific ideas, I do think that it is important that as wide a variety of opinions and ideas as possible should be included in the rule making process. I would like to applaud two commenters among those listed in today’s blog; ALPA and CWAA. Both of these organizations took the time to prepare and send positive comments without suggestions for changes. The hard working bureaucrats (not a contradiction in terms despite popular opinion) that prepare these rules need to be told when they get things right.

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