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21 September 2006

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[Federal Register: September 21, 2006 (Volume 71, Number 183)]

[Proposed Rules]               

[Page 55156-55159]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr21se06-14]                         



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DEPARTMENT OF TRANSPORTATION



Pipeline and Hazardous Materials Safety Administration



49 CFR Part 172



[Docket No. PHMSA-06-25885 (HM-232F)]

RIN 2137-AE22



 

Hazardous Material: Revision of Requirements for Security Plans



AGENCY: Pipeline and Hazardous Materials Safety Administration, DOT.



ACTION: Advance notice of proposed rulemaking (ANPRM) and announcement 

of public meeting.



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SUMMARY: PHMSA is considering revisions to the list of hazardous 

materials that require development and implementation of a security 

plan to address security risks during transportation in commerce. This 

effort is being coordinated with other Department of Transportation 

modal administrations (Federal Aviation Administration, Federal Motor 

Carrier Safety Administration, and Federal Railroad Administration) and 

the Transportation Security Administration of the Department of 

Homeland Security. The revisions would address outstanding petitions 

requesting that certain materials be excepted from the security plan 

requirements. PHMSA will hold a public meeting on November 30, 2006 to 

obtain stakeholder comments on security plan requirements. This ANPRM 

and the public meeting provide an opportunity for the public to comment 

on this issue and make recommendations on the applicability of the 

security plan requirements.



DATES: Public meeting: The meeting will be held on November 30, 2006. 

The meeting will begin at 9 a.m.

    Written comments: Comments must be received by December 20, 2006.



ADDRESSES: Public meeting: The meeting will be held at the U.S. 

Department of Transportation, Nassif Building, Room 2230, 400 Seventh 

Street, SW., Washington, DC 20590-0001. Requests for special 

accommodations should be addressed to the Pipeline and Hazardous 

Material Safety Administration, PHH-10, 400 Seventh Street, SW., 

Washington, DC 20590-0001; telephone (202) 366-8553. Written comments: 

You may submit comments identified by the docket number (PHMSA-06-

25885) by any of the following methods:

     Federal eRulemaking Portal: http://www.regulations.gov. 



Follow the online instructions for submitting comments.

     Web site: http://dms.dot.gov. Follow the instructions for 



submitting comments on the DOT electronic docket site.

     FAX: 1-202-493-2251.

     Mail: Docket Management System, U.S. Department of 

Transportation, 400 Seventh Street, SW., Nassif Building, PL-402, 

Washington, DC 20590-0001.

     Hand Delivery: PL-402 on the plaza level of the Nassif 

Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 

p.m., Monday through Friday, except Federal holidays.

    Instructions: All submissions must include the agency name and 

docket number or Regulation Identification Number (RIN) for this 

notice. Internet users may access comments received by DOT at http://dms.dot.gov.

 Note that comments received may be posted without change 



to http://dms.dot.gov including any personal information provided.



    While all comments should be sent to DOT's Docket Management System 

(DMS), comments or those portions of comments PHMSA determines to 

include trade secrets, confidential commercial information, or 

sensitive security information (SSI) will not be placed in the public 

docket and will be handled separately. If you believe your comments 

contain trade secrets, confidential commercial information, or SSI, 

those comments or the relevant portions of those comments should be 

appropriately marked so that DOT may make a determination. PHMSA 

procedures in 49 CFR part 105 establish a mechanism by which commenters 

may request confidentiality.

    In accordance with 49 CFR 105.30, you may ask PHMSA to keep



[[Page 55157]]



information confidential using the following procedures: (1) Mark 

``confidential'' on each page of the original document you would like 

to keep confidential; (2) send DMS both the original document and a 

second copy of the original document with the confidential information 

redacted; and (3) explain why the information is confidential (as a 

trade secret, confidential commercial information, or SSI). In your 

explanation, you should provide enough information to enable PHMSA to 

determine whether the information provided is protected by law and must 

be handled separately.

    In addition, for comments or portions of comments that you believe 

contain SSI as defined in 49 CFR 15.7, you should comply with Federal 

regulations governing the handling of SSI. See 49 CFR 1520.9 and 49 CFR 

15.9, Restrictions on the disclosure of sensitive security information. 

Those regulations restrict the disclosure of SSI to those with a need 

to know and set forth specific requirements for marking, packaging, and 

disposing of documents containing SSI. Note when mailing in or using a 

special delivery service to send comments containing SSI, comments 

should be wrapped in a manner to prevent the information from being 

read. PHMSA may perform concurrent reviews on requests for designations 

as SSI.

    After reviewing your request for confidentiality and the 

information provided, PHMSA will determine whether the information 

should be treated as confidential under applicable laws and 

regulations. PHMSA will notify you of the decision to grant or deny 

confidential treatment. If PHMSA denies your request, you will be 

provided an opportunity to request reconsideration before the 

information is publicly disclosed. PHMSA will reconsider its decision 

to deny confidentiality based on your response.

    To further guard against disclosure of SSI, PHMSA will review all 

submissions, whether or not they are identified as confidential, prior 

to their posting on the public docket. PHMSA will notify you if we 

determine that information in your submission should not be disclosed 

to the public. If you have any questions concerning the procedures for 

determining confidentiality or security sensitivity, you may call one 

of the individuals listed below.



FOR FURTHER INFORMATION CONTACT: Susan Gorsky or Ben Supko, Office of 

Hazardous Materials Standards, (202) 366-8553, Pipeline and Hazardous 

Materials Safety Administration, U.S. Department of Transportation, 400 

Seventh Street, SW., Washington, DC 20590-0001.



SUPPLEMENTARY INFORMATION:



I. Background



A. Current DOT Security Requirements



    On March 25, 2003, the Research and Special Programs Administration 

(RSPA), the predecessor agency to the Pipeline and Hazardous Materials 

Safety Administration (PHMSA) published a final rule (Docket HM-232; 57 

FR 14510) amending the Hazardous Materials Regulations (HMR; 49 CFR 

parts 171-180) to establish requirements to enhance the security of 

hazardous materials transported in commerce. The final rule required 

shippers and carriers of certain hazardous materials to develop and 

implement security plans. The security plan requirements in subpart I 

of part 172 of the HMR apply to persons who offer for transportation or 

transport:

    (1) A highway-route controlled quantity of a Class 7 (radioactive) 

material;

    (2) More than 25 kg (55 lbs.) of a Division 1.1, 1.2, or 1.3 

(explosive) material;

    (3) More than 1 L (1.06 qt.) per package of a material poisonous by 

inhalation in Hazard Zone A;

    (4) A shipment in a bulk packaging with a capacity equal to or 

greater than 13,248 L (3,500 gallons) for liquids or gases or greater 

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 

lbs.) gross weight or more of one class of hazardous materials for 

which placarding is required;

    (6) A select agent or toxin regulated by the Centers for Disease 

Control and Prevention under 42 CFR part 73 and, by April 1, 2007, a 

select agent or toxin regulated by the U.S. Department of Agriculture 

under 9 CFR part 121; or

    (7) A shipment that requires placarding under subpart F of part 172 

of the HMR.

    The security plan must include an assessment of possible 

transportation security risks and appropriate measures to address the 

assessed risks. Specific measures implemented as part of the plan may 

vary with the level of threat at a particular time. At a minimum, the 

security plan must address personnel security, unauthorized access, and 

en route security. For personnel security, the plan must include 

measures to confirm information provided by job applicants for 

positions involving access to and handling of the hazardous materials 

covered by the plan. For unauthorized access, the plan must include 

measures to address the risk of unauthorized persons gaining access to 

materials or transport conveyances being prepared for transportation. 

For en route security, the plan must include measures to address 

security risks during transportation, including the security of 

shipments stored temporarily en route to their destinations.

    As indicated above, the HMR set forth general requirements for a 

security plan's components rather than a prescriptive list of specific 

items that must be included. The HMR set a performance standard 

providing offerors and carriers with the flexibility necessary to 

develop security plans addressing their individual circumstances and 

operational environments. Accordingly, each security plan will differ 

because it will be based on an offeror's or a carrier's individualized 

assessment of the security risks associated with the specific hazardous 

materials it ships or transports and its unique circumstances and 

operational environment.

    In developing the HM-232 final rule, we assessed the security risks 

associated with the transportation of different classes and quantities 

of hazardous materials. We concluded that the most significant security 

risks involve the transportation of certain radioactive materials; 

certain explosives; materials that are poisonous by inhalation, certain 

infectious and toxic substances; and bulk shipments of materials such 

as flammable and compressed gases, flammable liquids, flammable solids, 

and corrosives. Based on this security risk assessment, the HM-232 

final rule currently in effect requires persons who offer for 

transportation or transport a hazardous material in an amount that 

requires placarding or select agents to develop and implement security 

plans. Using the placarding thresholds to trigger enhanced security 

requirements covers the materials that present the most significant 

security threats in transportation and provides a relatively 

straightforward way to distinguish materials that may present a 

significant security threat from materials that do not. It also 

provides regulatory consistency, thereby minimizing confusion and 

facilitating compliance by the regulated community. We note as well 

that the current security plan requirements provide shippers and 

carriers with the flexibility to develop and implement a security plan 

that is appropriate to the individual circumstances, the types and 

quantities of hazardous materials shipped or transported and the modes 

of transportation utilized. A shipper or



[[Page 55158]]



carrier must assess the security risks for the types and quantities of 

hazardous materials to be transported and implement appropriate 

measures to address those risks. The risk assessment could well 

conclude that, for materials such as paint or flavoring extracts, the 

transportation security risk is not significant and extensive security 

measures are not warranted.

    The Federal Motor Carrier Safety Administration (FMCSA), in 49 CFR 

part 385, prohibits a motor carrier from transporting certain hazardous 

materials unless the motor carrier holds a safety permit. A safety 

permit is required for the following hazardous materials in the 

quantities indicated:

    (1) A highway-route controlled quantity of a Class 7 (radioactive) 

material;

    (2) More than 25 kg (55 lbs.) of a Division 1.2, 1.2, or 1.3 

(explosive) material;

    (3) More than 1 L (1.08 qt.) per package of a material poisonous by 

inhalation in Hazard Zone A;

    (4) A bulk packaging (capacity greater than 450 L (119 gallons)) of 

a material poisonous by inhalation in Hazard Zone B;

    (5) A packaging with a capacity equal to or greater than 13,248 L 

(3,500 gallons) of a material poisonous by inhalation in Hazard Zone C 

or D; or

    (6) A shipment of compressed or refrigerated liquefied methane or 

liquefied natural gas, or other liquefied gas with a methane content of 

at least 85 percent, in a bulk packaging having a capacity equal to or 

greater than 13,248 L (3,500 gallons).



B. International Transportation Security Standards



    The United Nations Model Regulations on the Transport of Dangerous 

Goods (UN Recommendations) identify high consequence dangerous goods 

for which enhanced security measures are recommended. The recommended 

security measures include security plans and are similar to the 

requirements in subpart I of part 172 of the HMR. The UN 

Recommendations define high consequence dangerous goods as materials 

with the ``potential for mis-use in a terrorist incident and which may, 

as a result, produce serious consequences such as mass casualties or 

mass destruction.'' The UN Recommendations list the following materials 

as high consequence dangerous goods:

    (1) Division 1.1 explosives;

    (2) Division 1.2 explosives;

    (3) Division 1.3 compatibility group C explosives;

    (4) Division 1.5 explosives;

    (5) Bulk shipments of Division 2.1 flammable gases;

    (6) Division 2.3 toxic gases (excluding aerosols);

    (7) Bulk shipments of Class 3 flammable liquids in PG I or II;

    (8) Class 3 and Division 4.1 desensitized explosives;

    (9) Bulk shipments of Division 4.2 PG I materials;

    (10) Bulk shipments of Division 4.3 PG I materials;

    (11) Bulk shipments of Division 5.1 PG I oxidizing liquids;

    (12) Bulk shipments of Division 5.1 perchlorates, ammonium nitrate 

and ammonium nitrate fertilizers;

    (13) Division 6.1 PG I toxic materials;

    (14) Division 6.2 infectious substances of Category A (UN2814 and 

2900);

    (15) Class 7 radioactive materials in quantities greater than 3000 

A1 (special form) or 3000 A2, as applicable, in 

Type B(U) or Type B(M) or Type (C) packages; and

    (16) Bulk shipments of Class 8 PG I materials.



For purposes of the security provisions, the UN defines ``in bulk'' to 

mean quantities greater than 3,000 kg (6,614 lbs.) or 3,000 liters (660 

gallons) in portable tanks or bulk containers.



II. Purpose of This ANPRM



    PHMSA has received two petitions for rulemaking requesting a review 

and reevaluation of the current HMR security plan requirements. The 

Council on Safe Transportation of Hazardous Articles (COSTHA) 

petitioned PHMSA (P-1447) to reevaluate the security requirements in 

subpart I of part 172 of the HMR to ``enhance international 

harmonization and to better utilize available resources in enhancing 

hazardous materials transportation security.'' COSTHA notes that the 

list of hazardous materials in the HMR that are subject to the security 

plan requirements differs from the list of high consequence dangerous 

goods in the UN Recommendations. COSTHA cites several examples of 

hazardous materials (e.g., automobile batteries, inks, paint, flavoring 

extracts) that, based on hazard class and quantity, require placarding 

under the HMR, and, therefore, are subject to the security plan 

requirements. COSTHA suggests it is highly unlikely a terrorist would 

use these materials to cause loss of lives, destruction of property, or 

damage to the environment. The petition requests that PHMSA adopt the 

same criteria as the UN Recommendations for materials that are subject 

to the security plan requirements, or, as an alternative, eliminate the 

security plan requirement for quantities of hazardous materials for 

which placarding under the provisions of subpart F of part 172 is 

required.

    Similarly, the American Trucking Associations (ATA) petitioned 

PHMSA (P-1466) to create a new subset of hazardous materials that are 

``security sensitive hazardous materials.'' The ATA supports the 

materials and quantities that are subject to the FMCSA Hazardous 

Materials Safety Permit requirements as the starting point for 

determining security sensitive hazardous materials. In addition to 

those materials, ATA suggests that PHMSA add the following materials 

from the UN high consequence dangerous goods list: (1) Bulk shipments 

of Division 2.1; (2) bulk shipments of Class 3, PG I and II; (3) Class 

3 and Division 4.1 desensitized explosives (quantity to be determined); 

(4) bulk shipments of Division 4.2, PG I; (5) bulk shipments of 

Division 4.3, PG I; (6) bulk shipments of Division 5.1, PG I; (7) bulk 

shipments Division 5.1 perchlorates, ammonium nitrate and ammonium 

nitrate fertilizers; (8) Division 6.2 infectious substances of Category 

A (quantity to be determined); (9) any quantity of select agents; and 

(10) bulk shipments of Class 8, PG I. The ATA uses quantities greater 

than 3,500 gallons or 5,000 pounds to define ``bulk'' for purposes of 

security planning.

    We agree with COSTHA and ATA that the list of materials for which a 

security plan is required should be re-assessed. The philosophy 

underlying PHMSA's earlier approach to security plans was that the 

security plans represented a baseline requirement. We considered the 

company preparing the security plan to be in the best position to 

assess security risks based on its operational circumstances. If 

security risks were determined to be insignificant, this would be 

reflected in a simple security plan with minimal content. Increased 

coverage would be required when security risks are more substantial. 

The security plan requirements went into effect September 25, 2003; 

both the industry and the government have had three years of experience 

evaluating security risks associated with specific hazardous materials 

and transportation environments and identifying appropriate measures to 

address those risks. Accordingly, we are initiating this rulemaking, in 

coordination with other DOT modal administrations (Federal Aviation 

Administration (FAA), Federal Railroad Administration (FRA), and FMCSA) 

and the Transportation Security Administration (TSA) of the Department 

of Homeland Security (DHS), to consider modifications to the



[[Page 55159]]



list of hazardous materials for which security plans are required. We 

ask commenters to address the following questions:

    (1) What is the best basic approach to security plans? Is the 

current approach correct or should security plans be required only for 

hazardous materials in threshold quantities that are known to pose 

significant security risks?

    (2) Are there ways to lessen the burdens of security plan 

requirements on companies with minimal security risks?

    (3) Should baseline security requirements or guidelines be 

established when security plans are not required?

    (4) What factors should be considered in determining whether 

security risks of a specific hazardous material or class of hazardous 

materials are significant enough to require preparation of a security 

plan?

    (5) What role should Packing Groups play in determining the need 

for security plans?

    (6) How should the quantities of hazardous materials transported be 

considered when determining whether a security plan is required?

    (7) Does easy availability of a hazardous material in specific 

quantities outside of transportation play a role in determining whether 

a security plan should be required?

    (8) Should uniform security plan requirements apply across all 

modes of transportation or should the triggering criteria (hazardous 

class and quantity) be mode-specific?

    (9) What factors should be considered when determining whether 

specific hazardous materials, classes or quantities thereof, should be 

excepted from security plan requirements?

    (10) How should the determination of transportation security risk 

account for specific hazardous materials or classes of materials that 

by themselves do not pose a security risk, but that could present a 

security risk in combination with other materials?

    (11) What compliance or enforcement issues should be considered as 

we re-assess current security plan requirements?

    (12) Should company size or geographic location (e.g., specific 

region of the country or urban or rural) play a role in determining 

whether a security plan is required?

    (13) Does the Government need to provide more information on the 

specific security concerns that cause the need for preparation of a 

security plan for certain hazardous materials to assist in security 

plan preparation?

    (14) Should the Government maintain an evolving list of hazardous 

materials for which security plans are required based on changing 

threats and scenarios?

    There are a number of additional issues that PHMSA will consider in 

assessing the list of hazardous materials for which a security plan is 

required. These include the analyses required under the following 

statutes and executive orders in the event we determine that rulemaking 

is appropriate:

    Executive Order 12866: Regulatory Planning and Review. E.O. 12866 

requires agencies to regulate in the ``most cost-effective manner,'' to 

make a ``reasoned determination that the benefits of the intended 

regulation justify its costs,'' and to develop regulations that 

``impose the least burden on society.'' We therefore request comments, 

including specific data if possible, concerning the costs and benefits 

that may be associated with revisions to the list of hazardous 

materials for which security plans are required. A rule that is 

considered significant under E.O. 12866 must be reviewed and cleared by 

the Office of Management and Budget before it can be issued.

    Executive Order 13132: Federalism. E.O. 13132 requires agencies to 

assure meaningful and timely input by state and local officials in the 

development of regulatory policies that may have a substantial, direct 

effect on the states, on the relationship between the national 

government and the states, or on the distribution of power and 

responsibilities among the various levels of government. We invite 

state and local governments with an interest in this rulemaking to 

comment on the effect that revisions to the list of materials for which 

security plans are required may have on state or local safety or 

security programs.

    Executive Order 13175: Consultation and Coordination with Indian 

Tribal Governments. E.O. 13175 requires agencies to assure meaningful 

and timely input from Indian tribal government representatives in the 

development of rules that ``significantly or uniquely affect'' Indian 

communities and that impose ``substantial and direct compliance costs'' 

on such communities. We invite Indian tribal governments to provide 

comments as to the effect that revisions to the list of materials for 

which security plans are required may have on Indian communities.

    Regulatory Flexibility Act. Under the Regulatory Flexibility Act of 

1980 (5 U.S.C. 601 et seq.), we must consider whether a proposed rule 

would have a significant economic impact on a substantial number of 

small entities. ``Small entities'' include small businesses, not-for-

profit organizations that are independently owned and operated and are 

not dominant in their fields, and governmental jurisdictions with 

populations under 50,000. If you believe that revisions to the list of 

materials for which security plans are required could have a 

significant economic impact on small entities, please provide 

information on such impacts.



III. Announcement of Public Meeting



    PHMSA is conducting a public meeting to discuss the security plan 

requirements and receive comments and recommendations concerning the 

list of hazardous materials that trigger the requirement for a security 

plan. Other DOT modal administrations and DHS are participating in the 

meeting. See ADDRESSES and DATES for meeting details.

    All interested persons are encouraged to participate. Prior 

notification to PHMSA is not required. Due to the heightened security 

measures, participants are encouraged to arrive early to allow time for 

security checks necessary to gain access to the building.



IV. Regulatory Notices--Executive Order 12866 and DOT Regulatory 

Policies and Procedures



    This rulemaking is not considered a significant regulatory action 

under section 3(f) of Executive Order 12866 and, therefore, was not 

reviewed by the Office of Management and Budget. This rulemaking is not 

considered significant under the Regulatory policies and procedures of 

the Department of Transportation (44 FR 11034).



    Issued in Washington, DC, on September 18, 2006 under authority 

delegated in 49 CFR part 106.

Robert A. McGuire,

Associate Administrator for Hazardous Materials Safety.

[FR Doc. 06-7930 Filed 9-20-06; 8:45 am]



BILLING CODE 4910-60-P