Security And Transportation Issues Remain On Docket For 2008

Issues of security and transportation regulation will remain at the top of the Washington agenda for GAWDA in 2008. First, members will need to determine whether they need to and then how to comply with the DHS final rule on Chemical Facility Anti-Terrorism Standards, 6 CFR Part 27, issued in April 2007. Although the security rule is now in effect, DHS has yet to publish its final version of Appendix A, which will contain the chemicals subject to the rule and the threshold amounts.

The DHS rule applies to high-risk chemical facilities in the United States. The law requires risk-based performance standards for security of those facilities, to require facilities to conduct security vulnerability assessments and to develop site-specific security plans.

The agency’s approach is to divide chemical facilities into four tiers. Tiers 1 and 2 are the highest-risk facilities. Tier 3 facilities are those that pose less risk than Tier 2 facilities, but would still be required to develop a Site Security Plan in accordance with the IFR. Tier 4 facilities are those that pose the least risk and would not be required to submit a security vulnerability assessment. DHS believes the vast majority of companies in the chemical industry will fall outside the regulations. Even fewer will be designated Tier 1 or 2.

DHS has established a Web-based system (the Chemical Security Assessment Tool or “CSAT”) that chemical facilities must use to determine their tier and submit information. Companies with facilities having chemicals listed in the rule’s Appendix A in amounts over the threshold quantities will be required to complete the system’s Top Screen. The information in the Top Screen will lead to a DHS determination of each facility’s preliminary tier. Many facilities will fall into Tier 4. Those falling in Tiers 1 through 3 will be required to conduct a vulnerability assessment through CSAT. The assessment will determine the facility’s final tier. Facilities will then have to complete a security plan, depending on their tier, which will be reviewed by DHS for approval.

There will be additional requirements for background checks and credentials for truck drivers with a commercial driver’s license and a hazardous materials endorsement. The Coast Guard and DHS have begun implementing the requirements for Transportation Worker Identification Cards at major U.S. ports, and some individual companies have begun requiring their own credentials for drivers picking up or dropping off at their facilities. Eventually, DHS will require a TWIC for all transportation workers in all modes, with a criminal background check as the initial requirement to acquire the credential. Do not expect any reduction in these new security obligations.

Some basic transportation regulations also will undergo changes in 2008. Two of the driver hours of service rules (the 11-hour daily driving limit and the 34-hour weekly rest) were thrown out by the court of appeals in July 2007, but the court stayed the effect of that until December 27, 2007, to give DOT time to revise its justification for the rules in another rulemaking. Whatever DOT does, Public Citizen (a Ralph Nader group) is likely to bring the case back to court in 2008.

Likewise, DOT is trying to start a new rulemaking on training standards for entry-level commercial truck drivers. Several years ago, the court of appeals vacated DOT’s training rules for commercial drivers, and the agency is just now preparing some revised training rules that will probably hit the Federal Register in 2008 (they are under review at the Office of Management and Budget at present).

Hazmat routing issues also are likely to take center stage this year. A D.C. federal court is expected to rule in a case involving the District of Columbia’s ban on all hazmat shipments by truck or rail within 2.2 miles of the Capitol building. This case will have implications for the dozen or so local governments that want to impose similar bans. DHS is expected to propose new security regulations for shipments of hazmats by rail, and DOT is still considering whether to impose additional security requirements on truck shipments of hazardous materials.

Finally, the election in November 2008 is not expected to change the leadership in Congress. If anything, the Democrats should solidify their control of the House and Senate. That usually means that businesses should plan for additional and more stringent regulations on their operations.

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