PHMSA Considering Limits To Hazmat Security Plans

The Pipelines and Hazardous Materials Safety Administration (PHMSA) has published an Advance Notice of Proposed Rulemaking (ANPRM) to consider revisions to the list of hazardous materials that require development and implementation of a security plan to address security risks during transportation in commerce (71 Federal Register 55156, September 21, 2006). This may be good news for distributors who handle only inert gases and other relatively safe materials but still fall under the hazmat security requirements.

This effort is being coordinated with the Federal Motor Carrier Safety Administration (FMCSA), Federal Aviation Administration and Federal Railroad Administration, as well as the Transportation Security Administration of the Department of Homeland Security. Once it has received public comment on this issue, PHMSA will decide whether to publish an actual proposed rulemaking to revise the hazmat security requirements.

On March 25, 2003, the Research and Special Programs Administration, the predecessor agency to PHMSA, published a final rule in Docket HM-232 amending the Hazardous Materials Regulations to establish requirements to enhance the security of hazardous materials transported in commerce. The final rule required shippers and carriers of certain hazardous materials, including any shipment requiring a placard under the Hazardous Materials Regulations, to develop and implement security plans.

The security plan must include an assessment of possible transportation security risks and appropriate measures to address the assessed risks. At a minimum, the security plan must address personnel security, unauthorized access and en route security. For personnel security, the plan must include measures to confirm information provided by job applicants for positions involving access to and handling of the hazardous materials covered by the plan. For unauthorized access, the plan must include measures to address the risk of unauthorized persons gaining access to materials or transport conveyances being prepared for transportation. For en route security, the plan must include measures to address security risks during transportation, including the security of shipments stored temporarily en route to their destinations.

In addition, the FMCSA, in 49 CFR Part 385, prohibits a motor carrier from transporting certain hazardous materials unless the motor carrier holds a safety permit. The United Nations Model Regulations on the Transport of Dangerous Goods (UN Recommendations) identify high consequence dangerous goods for which enhanced security measures are recommended. The recommended security measures include security plans and are similar to the requirements in subpart I of part 172 of the HMR. The UN 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.”

PHMSA is responding to two requests for rulemaking to limit the hazardous materials for which a security plan is required to exclude such items as automobile batteries, inks, paint and flavoring extracts, as those items are unlikely to be used in a terrorist attack. In addition, the ANPRM will consider ways to make the PHMSA list of hazardous materials consistent with the UN Recommendations and the list used by FMCSA for hazmat safety permits.

PHMSA agrees that it should revisit the list of hazardous materials on which the security requirements are based. It makes little sense to require security plans for the handling and transportation of materials that pose little or no threat to the public from terrorism or criminal mischief. This is one area where the federal government regulated too broadly in response to the September 11, 2001, attacks and PHMSA should now rationalize its regulations to conform to the actual risk presented by the materials in question.

Gases and Welding Distributors Association
Meet the Author
GAWDA Government Affairs and Human Re-sources Legal Consultant Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC, in Washington, D.C. Members can reach him at 202-223-3040 and at rpschweitzer@rpslegal.com.