Transportation Security Rule

On Friday the RegInfo.gov web site noted that the Department of Transportation had sent the Pipeline and Hazardous Material Safety Administration’s (PHMSA) rule on Risk-Based Adjustment of Transportation Security Plan Requirements [PHMSA-06-25885 (HM-232F)] to the Office of Management and Budget for the final administrative review before it is published as a final rule. According to the Spring Regulatory Review noted that PHMSA had intended to publish this final rule in October but that deadline was obviously missed. The Rule I have no idea (yet) what made it into the draft of the final rule that was sent to OMB. The ANPRM was published before I started this blog, but I did report on the NPRM when it was issued in September of last year. According to the summary published in the NPRM:

“PHMSA, in consultation with the Transportation Safety [sic] Administration (TSA) of the Department of Homeland Security (DHS), is proposing to modify its current security plan requirements governing the commercial transportation of hazardous materials by air, rail, vessel, and highway. Based on an evaluation of the security threats associated with specific types and quantities of hazardous materials, the proposed rule would narrow the list of materials subject to security plan requirements and reduce associated regulatory costs and paperwork burden. The proposed rule also would clarify certain requirements related to security planning, training, and documentation and incorporate and build on recent international standards governing hazardous materials security.”

According to the NPRM the current security plan regulation (49 CFR 172.800) requires a vulnerability assessment and security plan for all shipments “that requires placarding under subpart F of part 172 of the HMR” (73 FR 52559). The NPRM recognized industry complaints that not all of those hazardous materials were at risk for a terrorist attack. The new rule produced a list that started with the United Nations Model Regulations on the Transport of Dangerous Goods (UN Recommendations) list of ‘high consequence dangerous goods’. PHMSA modified that list after conducting an analysis to determine if those chemicals would serve as a target for terrorist attack either as a release agent, a chemical that could be used to manufacture WMD, or chemicals that could be sabotaged or modified to create a chemical incident at some manufacturing facility. In addition to reducing the size of the list of covered materials, the NPRM also ‘clarified’ the requirements for the vulnerability assessment and the security plan. Among other things it required that the security assessment and security plan:

Would be in writing; Would address specific risks associated with specific routes or locations; Would identify the senior management official responsible for those documents; Would require an annual review and update; and Would require employee training for specific security duties.

Public Comments There were a large number of comments posted to the Regulations.gov web site for the NPRM. Even though the comment period ended on November 10th last year, I was still commenting on new comments as late as December 18th with two additional comments posted even after that. The special effects community conducted a letter writing campaign objecting to the new ‘any amount’ threshold for requiring a security assessment/plan for Division 1.4 explosives instead of the old 1,000 lb floor. They fear that the expensive requirement would put a stop to their parcel shipments of small quantities of squibs and pyrotechnics used by the film and movie industries. A number of transportation companies and shippers objected to the ‘specific route’ requirements for risk assessments and security plans. The shippers objected that they would not know the routes used by the transporters. The transporters noted that truck routes were seldom fixed, but varied on various transportation requirements and traffic conditions. Moving Forward Regulatory review at the OMB can be time consuming. There are three other DOT rules currently being reviewed by OMB. They are (with date of referral)

Positive Train Control (10/23/2009); Enhancing Airline Passenger Protections (10/29/2009); and Hazardous Materials: Revisions to Requirements for the Transportation of Lithium Batteries (09/11/2009)

Once OMB approves the rule, barring the requirement of extensive re-writing, the rule should be published in the Federal Register. This will probably not happen until after the first of the year.