Chemical Sector Coordinating Council — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration JUN - 9 ?1l10 1 200 New Jersey Ave. SE Washington. D.C. 20590 Mr. Dan Walters Chainnan Chemical Sector Coordinating Council 1120 Nineteenth Street, NW, Suite 310 Washington, DC 20036 Ref. No. 10-0083 Dear Mr. Walters: This responds to your April 14, 2010 request for clarification on the applicability of security plan requirements under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask ifthe en route security plan requirement in § 172.802(a)(3) requires a carrier to address threats that may arise during temporary post-accident storage incidental to the removal of covered materials from an accident site. The security plan requirements apply to persons who offer for transportation or transport hazardous materials in the quantities and thresholds established by § 172.800(b). A security plan must cover personnel, unauthorized access, and en route security - that is, the security of a covered hazardous materials shipment from its origin to its destination, including shipments stored incidental to movement. A carrier's security plan may continue to apply during an incident situation under certain circumstances. For example, the carrier's security plan would continue to apply in the event that an incident does not jeopardize the integrity ofthe package, but immobilizes the motor vehicle. Thus, a carrier's security plan must include measures to ensure the security of the vehicle until it is repaired or towed from the accident site and the security of any transfer or transloading operations for the hazardous materials being transported. During an accident situation that involves a release of vehicle contents to the environment the originating carrier's security plan would apply up to the point where local first responders or remediation crews assume command of the incident. Leaks and spills must be remediated and any resulting waste materials must be re-offered for transportation. The remediation process often involves a new offeror, carrier, package, and security plan. The responsible party in#

Page 2possession of a material that triggers the security plan requirements must have and implement a security plan as required by Part 172, Subpart I of the HMR. I hope this information is helpful. If you need further assistance, please contact this Office. hades E. Betts . ,Standards Development Office of Hazardous Materials Standards 2#

Page 3American Coatings Association American ChemIstry Council American Petroleum Institute Agricultural Retailers Association ChemIcal Producers & Distributors Association The Chlorine Institute CropUfe America Compressed Gas Association The Fertilizer Institute International Institute of Ammonia Refrigeration International Liquid Terminals Association Institute of Makers of Explosives Nationa I Association of Chemical Distributors National Petrochemical & Refiners Association Society of Chemical Manufacturers and Affiliates :Ii," I?" "1, .lltldiltg, ~0~'~1! .. ~~O April 14, 2010 ~ 172. <jjoz(a~) Dr. Magdy EI~Sibaie SeC{);/+u PIMJ6 Associate Administrator . J ~\ 0i3 PipeUne and Hazardous Materials Safety Administration 10 -Du Q' U.S. Department ofTransportation 1200 New Jersey Avenue, SW Washington, DC 20590 Re: Request for Interpretation Dear Dr. EI~Sibaie: On behalf ofthe Chemical Sector Coordinating Council (CSCC)1, I am writing to request a regulatory interpretation of the scope of 49 CFR 172.802(a)(3) as it pertains to shipments of security-sensitive materials that are accidently released enroute to destination. Rules promulgated by the Pipeline and Hazardous Materials Administration (PHMSA) require persons who offer or transport in commerce security-sensitive materials to develop and implement plans to address security risks related to the transportation of those materials. Among the components to be included in these security plans, PHMSA reqUires, at 49 CFR 172.802(a)(3), "measures to address the assessed security risk of shipments of hazardous materials covered by the security plan en route from origin to destination, including shipments stored incidental to movement." There is no doubt that PHMSA's security plan requirements apply to shipments during the normal course oftransportation. Occasionally, however, shipments of security-sensitive materials are involved in accidents while enroute to destination, and these accidents may also involve the release of security-sensitive materials. After any safety concerns have been addressed at the site of such accidents, threats to the security of these materials from intentional acts, such as theft, sabotage, or release, may remain until the materials are removed. The mission ofthe csee Is to advance the physical and cyber security and emergency preparedness of the nation's chemical sector infrastructure. Membership in the csee is open to any industry association predominantly representing chemical sector businesses. The csee manages its activities consistent with Homeland Security Presidential Directive 7 and related authorities.#

Page 4Page 2 The CSCC believes that PHMSA's security plan requirements for enroute security include addressing threats that may arise during temporary post-accident storage incidental to the removal of security-sensitive materials from the site. We are asking for an interpretation from your office as to whether we have understood this requirement correctly. Thank you for your attention to this matter. Respectfully, D~~4~~ Dan Walters Chairman#