PHMSA Final Rule Revises Hazmat Transport Security Plan Requirements

The final rule narrows the list of hazmats that are subject to transportation security plan requirements and clarifies certain requirements related to security planning, training, and documentation.

The rule is effective October 1, 2010; however, voluntary compliance with all the amendments in the final rule is authorized as of April 8, 2010.

The changes in the final rule are based on PHMSA's interest in (i) limiting the list of hazmats that are subject to transportation security plan requirements based on its evaluation of security threats associated with various types and quantities of hazmats; (ii) harmonizing that list with the list of materials designated as "high consequence dangerous goods" that are subject to enhanced security measures under U.N. recommendations (U.N. Model Regulations on the Transport of Dangerous Goods); (iii) clarifing areas where security plan requirements have often been misunderstood (security planning, training, and documentation); (iv) coordinating with the Transportation Security Administration (TSA); etc.

(See ITT's Online Archives or 09/18/08 news, 08091815, for BP summary of the proposed rule.)

Highlights of PHMSA Remarks, Comments Received

PHMSA received 160 comments on its proposed rule. Highlights of PHMSA's responses to those comments, include the following (partial list):

No Revision to Security Plan Threshold for Certain Explosives

The majority of the comments received focused on the proposed revisions to security plan requirements for certain explosives. PHMSA had proposed requiring security plans for any quantity of Division 1.4 or 1.5 explosives, and any quantity of desensitized explosives in Class 3 and Division 4.1. Commenters opposed changing the current threshold (only requiring security plans when transported in quantities that require placarding) to a requirement that applies to any quantity of these materials. Based on comments received and consultations with TSA, PHMSA decided to maintain the current threshold for such explosives.

(Note that the final rule eliminates security plan requirements for other flammable solids in Division 4.1. Existing security plan requirements are also eliminated for Class 9 materials (miscellaneous hazmats).)

Protection from Enforcement When Carrier Relies on Information Provided

Two commenters wanted PHMSA to protect the carrier from enforcement action when a shipper fails to declare a shipment as being subject to the security plan requirement. PHMSA stated that while it considers enforcement actions on a case-by-case, it is unlikely to pursue an enforcement action against a carrier for failure to have a security plan if the carrier relied on information about the shipment provided by a previous offeror or carrier in the transportation chain and the carrier did not know or have reason to believe that the information provided was incorrect.

Minimum Annual Review of Security Plan

PHMSA had proposed that security plans be reviewed at least annually and updated if circumstances change (e.g., acquisitions, mergers, operating rights, materials transported, and expanded or reduced service levels). PHMSA is requiring an annual review and update to reflect changed circumstances to ensure that shippers and carriers stay abreast of changing conditions that affect the security of the shipments they handle.

Security Plans Required Even for One-Time Shipments

The proposed rule did not address one-time shipments. Various commenters supported regulatory relief for one-time or first-time shipments of hazmats. Because it is not practicable to provide a broad exception that waives security plan requirements to accommodate one-time shipments of hazmats, PHMSA did not adopt a procedure for one-time shipments in the final rule.

Consideration of Site and Location Specific Risks

PHMSA proposed clarifying current security plan requirements by stating that the risk assessment component must include an assessment of the risks that exist on specific routes or locations. Because of confusion expressed by commenters with the language in the proposed rule, PHMSA revised the text to more clearly state that shippers and carriers must consider site and location specific risks and vulnerabilities at facilities subject to security planning requirements.

PHMSA's Coordination with TSA

PHMSA states it has worked closely with the TSA to align its list of hazmats subject to security plans with ongoing efforts by TSA in identifying Highway Security Sensitive Hazardous Materials (HSSM). Minor differences between PHMSA's rule and the TSA HSSM list have been resolved and the overall approach taken by the two agencies in identifying materials that should be subject to security based requirements is consistent.

Highlights of Final Rule

The following are highlights of the final rule:

Narrowed List of Hazmats Subject to Security Plan Requirements

Based on an evaluation of the specific security threats associated with various types and quantities of hazmats and a desire to harmonize U.S. requirements with U.N. requirements for "high consequence dangerous goods," the final rule narrows the list of materials subject to security plan requirements, which will reduce associated regulatory costs and compliance burdens. Under the final rule, the materials subject to security plan requirements are now:

Any quantity of a Division 1.1, 1.2, or 1.3 material;

A quantity of a Division 1.4, 1.5, or 1.6 material requiring placarding

A large bulk quantity of Division 2.1 material;

A large bulk quantity of Division 2.2 material with a subsidiary hazard of 5.1;

Any quantity of a material poisonous by inhalation, as defined in 49 CFR 171.8;

A large bulk quantity of a Class 3 material meeting the criteria for Packing Group I or II;

A quantity of a desensitized explosives meeting the definition of a Division 4.1 or Class 3 material requiring placarding

A large bulk quantity of a Division 4.2 material meeting the criteria for Packing Group I or II;

Any quantity of a Division 4.3 material;

A large bulk quantity of a Division 5.1 material in Packing Groups I and II; perchlorates; or ammonium nitrate, ammonium nitrate fertilizers, or ammonium nitrate emulsions, suspensions, or gels;

Any quantity of organic peroxide, Type B, liquid or solid, temperature controlled;

A large bulk quantity of Division 6.1 material (for a material poisonous by inhalation

A select agent or toxin regulated by the CDC

A quantity of uranium hexafluoride requiring placarding

International Atomic Energy Agency (IAEA) Code of Conduct Category 1 and 2 materials including certain

A large bulk quantity of Class 8 material meeting the criteria for Packing Group I.

(''Large bulk quantity'' refers to a quantity greater than 3,000 kg (6,614 pounds) for solids or 3,000 liters (792 gallons) for liquids and gases in a single packaging such as a cargo tank motor vehicle, portable tank, tank car, or other bulk container.)

Security Plan Requirements Clarified

The final rule makes certain changes to clarify current security plan requirements for hazmats. These changes include (partial list):

Site or location specific risks. The security plan must consider site-specific or location-specific risks associated with facilities at which subject hazmats are prepared for transportation, stored, or unloaded incidental to movement.

Identification, duties, and training. Security plans must identify (by job title) the senior management official responsible for the overall development and implementation of the security plan; security duties for each position or department responsible for its implementation; and the process for notifying employees when the plan must be implemented. The rule also requires hazmat employers to develop a plan for training their employees.

Minimum annual review required. The final rule requires security plans to be reviewed at least annually and updated to reflect changed circumstances.

Accessible copy of plan. A copy of the security plan (or an electronic file thereof) that is accessible at, or through, its principal place of business and must make the security plan available upon request, at a reasonable time and location, to an authorized official.

Security training within 90 days of plan changes. The final rule requires in-depth security training within 90 days of implementation of an update to the plan to reflect changed circumstances.

PHMSA contact - Susan Gorsky (202) 366-8553

PHMSA final rule (D/N PHMSA-06-25885 (HM-232F), FR Pub 03/09/10) available at http://edocket.access.gpo.gov/2010/pdf/2010-4778.pdf.