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Newsletter > March 2003

Hazardous Materials Transportation Security – A Response to 9/11

The U.S. Department of Transportation (DOT) is responsible for ensuring the safety of the public from the inherent risk associated with transporting hazardous materials. The Research and Special Programs Administration (RSPA) co-ordinates the Department’s multi-modal hazardous materials transportation safety program.

The RSPA issues the Hazardous Materials Regulations (HMR), 49 CFR Parts 171-180, governing the packaging and safe transportation of hazardous materials by air, highway, rail, and water. RSPA promotes regulations, outreach and compliance, deals with alternative to regulations and preparedness and response.

There are over 800,000 shipments daily, and 2 billion tons of hazardous materials transported annually in the United States.

o 50,000+ Gasoline Cargo Tanks in Service o 35,000+ Propane Trucks in Service o 200,000+ Railroad Tank Cars in Service o 770,000 (96%) Shipments Move by Truck o 69% of All Tonnage Moved by Highway o 24% of All Tonnage Moved by Water o 7% of All Tonnage Moved by Rail

In the wrong hands, hazardous materials pose a threat. The areas of vulnerability include: Ports, En route land and sea transportation, terminals, warehouses, and distribution centers.

As a result of the terrorist attacks of September 11, 2001, and subsequent threats related to biological and other hazardous materials, the RSPA undertook a broad review of government and industry hazardous materials transportation safety and security programs. As part of this review, RSPA established the Hazardous Materials Direct Action Group (Hazmat DAG). The Hazmat DAG met with representatives of the hazardous materials industry, emergency response community, and state governments to discuss transportation security issues in the wake of the September 11 attacks and continuing terrorist threats. In addition, RSPA created a DOT Intermodal Hazardous Materials Transportation Security Task Force, which considered attack or sabotage vulnerabilities, existing security measures, and potential ways to reduce vulnerabilities. The Task Force included representatives from the Federal Motor Carrier Safety Administration, Federal Railroad Administration, Federal Aviation Administration, U.S. Coast Guard (USCG), and Office of the Secretary.

Based in part on discussions in the Hazmat DAG and on the results of the Task Force review, on February 14, 2002, RSPA published an advisory notice to inform shippers and carriers of voluntary measures to enhance the security of hazardous materials shipments during transportation (67 FR 6963). These measures included:

Personnel Security o Ensure detailed background checks have been performed o Verify U.S. citizenship/immigration status o Conduct personal Interviews o Report any suspicious activity to the FBI

Hazardous Materials and Package Controls o Facility grounds lighted o HM secured in buildings of fenced enclosure o Controlled access to HM storage o Check locks and other protective measures o Record removal of HM from facility o Ensure adequate alarms and other security systems o Driver awareness o Guards or security personnel as required o Develop control procedures for HM packages o Conduct security spot checks o Do not accept suspicious shipments o Be conscious of your consignors and consignees o Be familiar with vendors (suppliers, contractors, housekeeping etc.) that service your facility

En Route Security o Avoid high population centers to the extent possible o Use alternate routes where practical to avoid high population areas o Deliver HM expeditiously o Instruct drivers to lock vehicles when parked o Avoid tunnel and bridges where possible o Review parking and attendance rules in 49 CFR Part 397 o Consider a guard if appropriate

Technical Innovations o Consider the use of cell phones, GPS and other technical innovations o Utilize state of the art locks and seals o Utilize tamper-proof locking devices for 5th wheel o Utilize blanket type alarm systems o Utilize electronic engine controls with security system

Management Prerogatives o Consider finger printing and photographing o Protect against personal identity theft o Perform criminal background checks o Implement security training

Communications o Develop communication network with others in the industry o Develop a means of contacting key personnel in cases of emergency o Insure widest distribution of security related information to employees

On May 2nd, 2002 RSPA published a notice of proposed rulemaking for security requirements for shippers and transporters of hazardous materials. The RSPA is proposing new requirements to enhance the security of hazardous materials transported in commerce. Proposals include a requirement for motor carriers registered with the agency to maintain a copy of their current registration certificate on each motor vehicle. The RSPA further propose to require shipping papers to include the name and address of the consignor and consignee and the shipper’s DOT Hazmat Registration number, if applicable. In addition, the RSPA propose to require shippers and carriers of certain highly hazardous materials to develop and implement security plans. The RSPA also propose to require hazardous materials shippers and carriers to assure that their employee training includes a security component.

In Canada the Transportation of Dangerous Goods Act, 1992 regulates the identification and classification of dangerous goods, the handling of dangerous goods, the training required for every person handling dangerous goods and the remedies and penalties for violation.

In Canada there has not been an overall agency that has taken on the role of providing advise as has the RSPA. Transport Canada has recognized the need for improved security but as yet has not developed an initiative similar to the RSPA. Individual government authorities have however taken steps to upgrade security in certain areas. Following September 11, 2001 the Canadian Nuclear Safety Commission took steps to require licensees to initiate enhanced security measures at their sites. These measures included:

o providing a capability for immediate armed response on site. o enhanced security screening of employees and contractors o protection against forced vehicle penetration of the Protected Area o improved physical identification checks of personnel o searching of personnel and vehicles.

CNSC continue to assess the measures taken by conducting site audits and evaluations to ensure appropriate security measures are in place


This newsletter is published to keep our clients and friends informed of new and important legal developments. It is intended for information purposes only and does not constitute legal advice. You should not act or fail to act on anything based on any of the material contained herein without first consulting with a lawyer. The reading, sending or receiving of information from or via the newsletter does not create a lawyer-client relationship. Unless otherwise noted, all content on this newsletter (the “Content”) including images, illustrations, designs, icons, photographs, and written and other materials are copyrights, trade-marks and/or other intellectual properties owned, controlled or licensed by Fernandes Hearn LLP. The Content may not be otherwise used, reproduced, broadcast, published,or retransmitted without the prior written permission of Fernandes Hearn LLP.

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