Homeland Security Takes Over Regulatory Role From DOT

Cause for concern

The Pipelines and Hazardous Materials Safety Administration (PHMSA) of the U.S. Department of Transportation (DOT) withdrew its advance notice of proposed rulemaking (ANPRM) in HM-232A, published in the July 16, 2002, Federal Register, which was considering standards for hazmat security requirements for motor carriers. The ANPRM had not progressed yet to a specific proposal, although that would have been the next step in the regulatory process. All GAWDA members with delivery vehicles would have been subject to any resultant final rule.

According to the PHMSA notice, the Transportation Security Administration of the Department of Homeland Security (DHS) has assumed the lead role from the PHMSA for rulemaking addressing the security of motor carrier shipments of hazardous materials under this docket. PHMSA’s withdrawal of the ANPRM issued under this docket and closing its rulemaking proceeding is consistent with and supportive of the respective transportation security roles and responsibilities of DOT and DHS as set out in a Memorandum of Understanding signed September 28, 2004, and of TSA and PHMSA as outlined in an Annex to that MOU signed August 7, 2006.

PHMSA stated it will continue to consider alternatives for enhancing the safety of explosives stored during transportation under another rulemaking docket, and will consult and coordinate with TSA on hazmat transportation security issues in accordance with the PHMSA-TSA Annex.

But it is clear from this notice that DHS has now become the lead federal agency in developing security regulations for the transportation of hazardous materials by all modes, including trucks. Unfortunately, DHS does not have the knowledge or experience in hazmat regulation that DOT has developed over the past 100 years of regulating industry’s hazardous materials shipments. In contrast, DHS has been around for little more than five years.

DHS has two able officials at the top, but does not have the cadre of experienced rank-and-file civil servants necessary to assess the risk posed by terrorists and develop meaningful regulatory responses. Instead, DHS has become a revolving door for federal bureaucrats who do not stay in one office or position for more than a few months, and who do not have the industry or law enforcement experience required for the task at hand.

In addition, Congress is pressuring DHS to ensure that the American people and the American economy do not suffer from any more terrorist attacks. To accomplish these goals, Congress has provided DHS with billions in funding with less oversight than other agencies must suffer under. DHS is throwing resources at security problems without a clear understanding of how to protect our hazmat shipments but not jeopardize the stream of commerce in this country.

Three recent rulemakings illustrate this issue. First, the Transportation Worker Identification Credential (TWIC) is almost six years in development but not close to full implementation. DHS has never explained how the TWIC will be used to restrict access at every manufacturing, distribution or customer site where hazardous materials are loaded, unloaded or stored, or when the agency plans to include all transportation workers in the program.

Second, the chemical facilities security rule, which mandates facility-specific security requirements for all entities that possess more than threshold quantities of certain hazmats, was rushed through as an interim final rule with no proposed rule on which interested parties could comment. The table of threshold quantities did not track the DOT’s Hazmat Table in 49 CFR Part 172, so companies were not sure if they were included in the rule. A new Appendix of threshold quantities is promised, but no one knows exactly when it will be published.

Finally, the CDL hazmat endorsement rule requires that drivers transporting innocuous hazardous materials, like paints, must undergo background checks to determine if the drivers pose a security threat. It doesn’t matter that paint cannot be used as a weapon—all hazmats are covered, so all drivers must get fingerprinted and go through the background check.

Although I have not always agreed with DOT’s regulatory proposals, they are generally based on sound principles and logic. DHS gives me greater concern.

Gases and Welding Distributors Association
Meet the Author
GAWDA Government Affairs and Human Resources 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.