Security Developments Since 9/11

New world. New rules. Are you ready?

By Richard P. Schweitzer, Esq.

In the less than two years since September 11, 2001, the nature of my job as a consultant for the gases and welding supply industry has changed dramatically. Previously, I dealt mostly with issues of regulatory compliance involving the safety of industrial operations. Today the focus is on security, security, security.

Two years ago, there was no Transportation Security Administration or Department of Homeland Security. There was no USA PATRIOT Act or Port Security Act or Homeland Security Act. The Research and Special Programs Administration (RSPA) regulated the safety of hazardous materials in transportation, and the thought of a terrorist attack on a shipment of hazardous materials was far-fetched at best.

More Rulemakings to Come
The government is now morphing in response to the new realities of international terrorism. Frits Wybenga, deputy associate administrator for hazardous materials safety at RSPA, says that he now spends 95 percent of his time on security issues. RSPA just issued a final rule on security for hazmat shippers and carriers in HM-232, and the agency stated that this is the first in a series of rulemakings on this topic. All companies handling placardable loads of hazardous materials will need a written security plan and will have to train all of their hazmat employees in the elements of that plan.

The Federal Motor Carrier Safety Administration (FMCSA) is collecting its own data in preparation for a rulemaking on the security of hazmat shipments by truck, and the Transportation Security Administration (TSA) is expected to issue its own security directives once it reorganizes after moving earlier this year from the Department of Transportation to the Department of Homeland Security.

International Hazmat Shipping
For those who ship hazmat internationally, there are even more security regulations on the horizon. The former U.S. Customs Service, now known as the Bureau of Customs Protection and Border Protection of the Department of Homeland Security, has established its Container Security Initiative to pre-screen containers at foreign ports bound for the United States. Shippers must now provide Customs with 24-hour prior notice of all containers before they are loaded at the foreign ports. Customs has also set up a voluntary program called Customs-Trade Partnership Against Terrorism (C-TPAT) to expedite shipments using pre-cleared importers, brokers, forwarders, carriers and port authorities. All U.S. ports must now have their own written security plans with limited access to those who have passed security screening.

Background Checks and Credentialing
Perhaps the biggest changes involve new security requirements for employees who handle or transport hazmat. There are a variety of new requirements and proposals for background checks and credentialing for hazmat employees. The TSA and FMCSA are working on a joint rulemaking to require criminal background checks for all drivers with a Commercial Driver's License and a hazardous materials endorsement. For alien drivers, the rule would also require a check into the driver's immigration status. The new final rule in HM-232 requires employers to “verify” the information received on job applications for positions involving access to or transportation of hazardous materials.

In addition, the Port Security Act mandates background checks and credentials for all persons needing access to port facilities, including for those delivering or picking up goods at the ports. The TSA is considering a Transportation Workers Identification Card, or “TWIC,” that would include a criminal background check and new credential for all transportation workers, from airline pilots to cylinder fillers. The TWIC would have a magnetic strip indicating the holder's credentials and allowing access to certain predetermined areas of transportation facilities.

State and Local Requirements
State and local governments are also developing their own security requirements. The State of California recently enacted a law requiring two-way communication devices on all vehicles transporting hazmat shipments and the locking of all enclosed hazmat vehicles during transport. This raises the need for uniform standards nationwide, and the federal Homeland Security Act gave RSPA preemption authority over state or local security requirements that interfere with federal security regulations.

Finally, many customers now have credentialing and prior notification requirements for drivers and other personnel entering their facilities.

The last two years have provided many substantial changes to regulatory compliance, and the next two years promise to bring more security requirements for GAWDA members. But GAWDA will be there to guide you through the new requirements and to work with the government to ensure that security rules make sense in the new world.