Who is in charge of hazmat transportation security?
That's a good question, with multiple answers depending upon whom you ask. Of course, if many people claim to be in charge, then in effect too few actually are in charge.
After 9/11, Congress passed many new laws. As you will recall, Homeland Security initially was managed as part of the White House and only subsequently was adopted into law as a new Department. The Department of Transportation (DOT), of course, had been doing its thing on security, starting with various advisory approaches and then adopting regulations on employee awareness training and written security plans. These efforts continue.
At the time the new security department's legislation was moving through Congress, people were aware of the on-going efforts at DOT and so adjustments were made to the underlying laws for both agencies. DOT's existing hazmat law was modified to make it clearer that hazmat transportation safety includes security, and the new DHS law compelled coordination with DOT whenever any new security provision might impact hazmat transportation.
What we have today, however, is a large new agency, funded with abundance and filled with people eager to do something, running in parallel with a transportation agency that has regulated hazmat somewhat passively and with growing disinterest. The recent final rule in HM-223, in which DOT withdrew its own jurisdiction from tank car storage and unloading, is but an example of a creeping principle within DOT of letting someone else manage hazmat transportation.
In the Department of Homeland Security are the Transportation Security Administration and the U.S. Coast Guard, as well as the Bureau of Customs and Border Protection. Much of the initial work of TSA has been aviation-oriented, but its mandate extends across all modes of transportation. Within TSA are active subgroups devoted to highway and rail security, in addition to the Coast Guard's role with ocean safety and security.
Two primary factors lead industry to favor a stronger DOT hazmat transportation role. First is the fact that with more experience, DOT seems to understand better that hazardous materials are transported not for whim or amusement, but because the country depends upon these materials getting to their destination in a timely manner. Fuels, chemical building blocks, agriculture and the elements of manufacturing for everyday modern life are entwined inextricably with hazardous materials. With less experience, and a primary motive of law enforcement and reduction of risks, DHS appears less prepared to accept the cultural and economic necessity to move these materials.
More importantly, the laws under which DOT operates were designed by Congress to promote national and international uniformity. It is not by accident that the identification numbers, shipping descriptions, labeling and the packaging for hazmat are the same in every country of the world. In support of uniformity to enhance compliance and comprehension, DOT's law carries the power of preemption. The greater good of the nation precludes having each state or city develop its own differing regulatory system. Preemption, however, is a concept less accepted in the field of security, where local concerns more readily overwhelm national interests.
DHS, through its ties to the White House and other federal agencies such as the Justice Department and the Office of Management & Budget, is on a mission to control all security issues, despite the DOT hazmat law and budgeted responsibility to be in charge of hazmat transportation safety and security. In addition, too many people at the policy levels of DOT are willing to leave the field to DHS.
It is the industry and the public at large that will suffer, however, if DOT is unable or unwilling to maintain a comprehensive, globally-coordinated fabric of uniform hazmat transportation safety and security regulatory requirements. If your business depends upon hazmat transportation, make sure your elected representatives know your position on who should be regulating this field. LT
Lawrence Bierlein is a partner with McCarthy, Sweeney & Harkaway, P.C. in Washington, D.C. His practice is devoted to issues involving transportation of hazardous materials. He can be reached at 202.775.5560, [email protected].