20030721Decision Memo.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
COMMISSIONER SMITH
COMMISSIONER HANSEN
COMMISSION SECRETARY
COMMISSION STAFF
FROM:DON HOWELL
DATE:JULY 16, 2003
RE:ADOPTING THE NEW FEDERAL SECURITY RULES REGARDING THE
TRANSPORTATION OF HAZARDOUS MATERIALS BY RAIL, PUC CASE
NO. RUL-03-1 (IDAPA DOCKET NO. 31-7103-0301)
In March 2003, the U.S. Department of Transportation in conjunction with the
Department of Homeland Security issued new safety rules to enhance the security of hazardous
materials transported by rail. The new safety rules require shippers of hazardous materials and
railroads to develop and implement security plans. 68 Fed. Reg. 14510 (March 25, 2003). These
amended safety rules are to be codified in scattered sections of 49 C.R. Part 172.
The security plans are to address risk assessment, personnel safety, unauthorized access
to materials, and in-route transportation safety. In addition, the new federal safety rules require
shippers and transporters of hazardous materials to provide security awareness training to their
employees. The new c.F.R. sections are attached for your review in Attachment 1.
The Staff recommends that the Commission adopt these new safety rules by
incorporation. The new safety rules are to be incorporated in the October 1 , 2003 Edition of the
Code of Federal Regulations. More specifically, Staff proposes that the Commission s Railroad
Safety Rule 103 be amended as shown in Attachment 2.
COMMISSION DECISION
Does the Commission wish to adopt the new federal Safety Rule? Does the Commission
wish to issue a Notice of Proposed Rule to be published in the Administrative Bulletin on
September 3 , 2003?
Don Howell
VldlN:31-71O3-0301 DecMemo-
IDAPA 31
TITLE 71
CHAPTER 03
31.71.03-RAILROAD SAFETY/SANITATION RULE
103.TRANSPORTATION OF HAZARDOUS MATERIAL BY RAIL (Rule 103).
01. Hazardous Material Defined. Hazardous material" means a substance or material
which has been determined by the United States Secretary of Transportation to be capable of
posing an unreasonable risk to health, safety, and property when transported in commerce, and
which has been so designated by the Secretary of Transportation. The term includes hazardous
substances, hazardous wastes, marine pollutants, elevated temperature materials as defined in 49
c.F.R. Section 171.8, materials designated as hazardous under the provisions of 49 C.
Section 172.101 , and materials that meet the defining criteria for hazardous classes and divisions
in 49 c.F.R. Part 173.(3-30-01)
02. Adoption Of Federal Safety Regulations. The Commission hereby adopts by
reference 49 C.R. Parts 107, 171 , 172, 173 , 174, 178, 179, and 180 (October 1 , 200GJ). All
customers offering hazardous materials for shipment by rail and all railroads operating in Idaho
that transport hazardous materials listed in, defined by, or regulated by the adopted federal safety
regulations must comply with 49 C.R. Parts 107, 171 , 172, 173 , 174, 178, 179 and 180.
(3 30 01)(
03. Recognition Of Federal Exemptions. Whenever a railroad or shipper has applied to
a federal agency and has been granted an exemption from the transportation or packaging
requirements of the federal safety regulations adopted in Subsection 103., the federal
exemption will also be recognized under these rules. The Commission shall not administer a
program to duplicate consideration or approval of federal exemptions on a state level. (3-30-01)
Page 27 of 30
68 FR 14510-
2003 WL 1475026 (F.
(Cite as: 68 FR 14510)
Page 26
49 CFR ~ 172. 704
2. In ~ 172.704, paragraph (a) introductory text is revised, paragraphs
and (a) (5) are added, and paragraph (b) is revised to read as follows:
(a) (4)
49 CFR ~ 172.704
~ 172.704 Training requirements.
(a) Hazmat employee training must include the following:
(4) Security awareness training. No later than the date of the first scheduled
recurrent training after March 25, 2003, and in no case later than March 24, 2006,
each hazmat employee must receive training that provides an awareness of security
risks associated with hazardous materials transportation and methods designed to
enhance transportation security. This training must also include a component
covering how to recognize and respond to possible security threats. After March
25, 2003, new hazmat employees must receive the security awareness training
required by this paragraph wi thin 90 days after employment.
(5) In-depth security training. By December 22, 2003, each hazmat employee of a
person required to have a security plan in accordance with subpart I of this part
must be trained concerning the security plan and its implementation. Security
training must include company security obj ectives, specific security procedures,
employee responsibilities, actions to take in the event of a security breach, and
the organizational security structure.
(b) OSHA, EPA, and other training. Training conducted by employers to comply
with the hazard communication programs required by the Occupational Safety and
Health Administration of the Department of Labor (29 CFR 1910.120 or 1910.1200) or
the Environmental Protection Agency (40 CFR 311.1), or training conducted by
employers to comply with security training programs required by other Federal or
international agencies, may be used to satisfy the training requirements in
paragraph (a) of this section to the extent that such training addresses the
training components specified in paragraph (a) of this section.
Subpart I is added to read as follows:
Subpart I--Securi ty Plans
Sec.
172.800 Purpose and applicability.
172.802 Components of a security plan.
Copr. (Q West 2003 No Claim to Orig. U.S. Govt. Works ATTACHMENT
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Page 28 of
68 FR 14510-
2003 WL 1475026 (F.
(Cite as: 68 FR 14510)
Page 27
172.804 Relationship to other Federal requirements.
49 CFR ~ 172.800
~ 172.800 Purpose and applicability.
(a) Purpose. This subpart prescribes requirements for development and
implementation of plans to address security risks related to the transportation of
hazardous materials in commerce.
(b) Applicability. By September 25, 2003,
transportation in commerce or transports in
hazardous materials must develop and adhere
materials that conforms to the requirements
each person who offers for
commerce one or more of the following
to a security plan for hazardous
of this subpart:
(1) A highway route-controlled quantity of a Class 7 (radioactive) material, as
defined in ~ 173.403 of this subchapter, in a motor vehicle, rail car, or freight
container;
(2) More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.
material in a motor vehicle, rail car, or freight container;
(explosive)
(3) More than one L (1.06 qt) per package of a material poisonous by inhalation,
as defined in ~ 171.8 of this subchapter, that meets the criteria for Hazard Zone
A, as specified in ~~ 173.116(a) or 173.133(a) of this subchapter;
(4) A shipment of a quantity of hazardous materials in a bulk packaging having a
capacity equal to or greater than 13,248 L (3,500 gallons) for liquids or gases or
more than 13.24 cubic meters (468 cubic feet) for solids;
(5) A shipment in other than a bulk packaging of 2,268 kg (5,000 pounds) gross
weight or more of one class of hazardous materials for which placarding of a
vehicle, rail car, or freight container is required for that class under the
provisions of subpart F of this part;
(6) A select agent or toxin regulated by the Centers for Disease Control and
Prevention under 42 CFR part 73; or
(7) A quantity of hazardous material that requires placarding under the
provisions of subpart F of this part.
49 CFR ~ 172.802
~ 172.802 Components of a security plan.
(a) The security plan must include an assessment of possible transportation
security risks for shipments of the hazardous materials listed in ~ 172.800 and
appropriate measures to address the assessed risks. Specific measures put into
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Page 29 of
68 FR 14510-
2003 WL 1475026 (F.
(Cite as: 68 FR 14510)
Page 28
place by the plan may vary commensurate with the level of threat at a particular
time. At a minimum, a security plan must include the following elements:
(1) Personnel security. Measures to confirm information provided by job
applicants hired for positions that involve access to and handling of the
hazardous materials covered by the security plan. Such confirmation system must
be consistent with applicable Federal and State laws and requirements concerning
employment practices and individual privacy.
(2) Unauthorized access. Measures to address the assessed risk that unauthorized
persons may gain access to the hazardous materials covered by the security plan or
transport conveyances being prepared for transportation of the hazardous materials
covered by the security plan.
(3) En route security. Measures to address the assessed security risks of
shipments of hazardous materials covered by the security plan en route from origin
to destination, including shipments stored incidental to movement.
(b) The security plan must be in writing and must be retained for as long as it
remains in effect. Copies of the security plan, or portions thereof, must be
available to the employees who are responsible for implementing it, consistent
wi th personnel security clearance or background investigation restrictions and a
demonstrated need to know. The security plan must be revised and updated as
necessary to reflect changing circumstances. When the security plan is updated or
revised, all copies of the plan must be maintained as of the date of the most
recent revision.
49 CFR ~ 172.804
~ 172.804 Relationship to other Federal requirements.
To avoid unnecessary duplication of security requirements, security plans that
conform to regulations, standards, protocols, or guidelines issued by other
Federal agencies, international organizations, or industry organizations may be
used to satisfy the requirements in this subpart, provided such security plans
address the requirements specified in this subpart.
Issued in Washington DC on March 19, 2003, under authority delegated in 49 CFR
part 1.
Ellen G. Engleman,
Administrator, Research and Special Programs Administration.
(FR Doc. 03-7080 Filed 3-24-03; 8:45 am)
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