[Federal Register Volume 67, Number 136 (Tuesday, July 16, 2002)]
[Proposed Rules]
[Pages 46622-46624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-17899]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 177

Federal Motor Carrier Safety Administration

49 CFR Part 397

[Docket No. FMCSA-02-11650 (HM-232A)]
RIN 2137-AD70, 2126-AA71


Security Requirements for Motor Carriers Transporting Hazardous 
Materials

AGENCY: Research and Special Programs Administration (RSPA), and 
Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The Research and Special Programs Administration and the 
Federal Motor Carrier Safety Administration are examining the need for 
enhanced security requirements for the motor carrier transportation of 
hazardous materials. The two agencies are seeking comments on the 
feasibility of specific security enhancements and the potential costs 
and benefits of deploying such enhancements. Security measures being 
considered include escorts, vehicle tracking and monitoring systems, 
emergency warning systems, remote shut-offs, direct short-range 
communications, and notification to state and local authorities.

DATES: Submit comments by October 15, 2002. To the extent possible, we 
will consider late-filed comments as we consider further action.

ADDRESSES: Submit comments to the Dockets Management System, U.S. 
Department of Transportation, Room PL 401, 400 Seventh Street, SW, 
Washington, DC 20590-0001. Comments should identify Docket Number 
FMCSA-02-11650 (HM-232A). If you wish to receive confirmation of 
receipt of your written comments, include a self-addressed, stamped 
postcard. You may also submit comments by e-mail by accessing the 
Dockets Management System web site at ``http://dms.dot.gov/'' and 
following the instructions for submitting a document electronically.
    The Dockets Management System is located on the Plaza level of the 
Nassif Building at the Department of Transportation at the above 
address. You can review public dockets there between the hours of 9:00 
a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. You 
can also review comments on-line at the DOT Dockets Management System 
web site at ``http://dms.dot.gov/.''

FOR FURTHER INFORMATION CONTACT: Susan Gorsky, (202) 366-8553, Office 
of Hazardous Materials Standards, Research and Special Programs 
Administration; or William Quade, (202) 366-6121, Office of Enforcement 
and Compliance, Federal Motor Carrier Safety Administration.

SUPPLEMENTARY INFORMATION:

I. Background

    Over 800,000 shipments of hazardous materials occur each day in the 
United States. The overwhelming majority of these shipments--
approximately 95 percent--are made by highway. Many of the hazardous 
materials transported by motor carriers potentially may be used as 
weapons of mass destruction or in the manufacture of such weapons. 
Since September 11, 2001, on several occasions, Federal law enforcement 
officials provided information indicating that terrorist organizations 
may be planning to use motor vehicles transporting certain hazardous 
materials for additional terrorist attacks on facilities in the United 
States.
    Prior to 1975, the Secretary of Transportation regulated the 
transportation of hazardous materials by highway under the authority of 
the Motor Carrier Safety Act (MCSA). The authority to issue regulations 
under the MCSA is currently delegated to the Federal Motor Carrier 
Safety Administration (FMCSA). 49 CFR 1.73(g). In 1974, Congress passed 
the Hazardous Materials Transportation Act (HMTA). The HMTA gave the 
Secretary the authority to issue ``regulations for the safe 
transportation in commerce of hazardous materials'' applicable to ``any 
person who transports, or causes to be transported or shipped, a 
hazardous material. * * *'' Public Law 93-633; 88 Stat. 2156 (Jan. 3, 
1975). The Secretary has delegated this rulemaking authority to the 
Research and Special Programs Administration (RSPA). 49 CFR 1.53(b).
    Motor carriers that transport hazardous materials in commerce must 
comply with both the Hazardous Materials Regulations (HMR; 49 CFR Parts 
171-180), administered by RSPA, and the Federal Motor Carrier Safety 
Regulations (FMCSR; 49 CFR Parts 390-397), administered by FMCSA. As a 
result of a1984 amendment to the MCSA and a 1990 amendment to the HMTA, 
RSPA is authorized to eliminate or amend regulations (other than 
highway routing regulations) that appear in Part 397 of the FMCSR and 
that apply solely to the maintenance, equipment, loading,

[[Page 46623]]

or operation of motor vehicles carrying hazardous materials. Therefore, 
we are issuing this ANPRM as a joint RSPA-FMCSA action.
    The HMR focus on the safe transportation of hazardous materials by 
all modes. The HMR specify how to classify and package a hazardous 
material. Further, the HMR prescribe a system of hazard communication 
using placards, labels, package markings, and shipping papers. In 
addition, the HMR prescribe training requirements for persons who 
prepare hazardous materials for shipment or transport hazardous 
materials. The HMR also include operational requirements applicable to 
each mode of transportation. Part 177 of the HMR specifies operational 
requirements for motor carriers that transport hazardous materials, 
such as driver training, loading and unloading requirements for 
specific hazardous materials, and segregation and separation 
requirements on loaded vehicles. The FMCSR address motor vehicle and 
driver safety, including: driver qualifications and licensing; hours of 
service; vehicle parts and accessories; and vehicle inspection, repair, 
and maintenance. Part 397 of the FMCSR prescribes certain additional 
requirements related to attendance and surveillance, parking, and 
routing of motor vehicles that transport placarded quantities of 
hazardous materials. Except for certain shipments of Class 7 
(radioactive) materials, neither the HMR nor the FMCSR specifically 
address security threats to highway shipments of hazardous materials.
    On May 2, 2002, RSPA proposed several new requirements to enhance 
the security of hazardous materials transported in commerce by all 
modes (67 FR 22028). The notice of proposed rulemaking (NPRM) included 
proposals to revise shipping documentation requirements to make it 
easier for law enforcement personnel to identify unusual or 
unauthorized activities involving transportation vehicles or operators. 
The NPRM also proposed to require hazardous materials shippers and 
carriers to assure that hazmat employee training includes a security 
component. In addition, RSPA proposed to require shippers and carriers 
of certain highly hazardous materials to develop and implement security 
plans.

II. Purpose of this ANRPM

    RSPA and FMCSA are seeking information on the feasibility of 
imposing specific security requirements, in addition to those proposed 
in the May 2 NPRM, on motor carriers that transport hazardous materials 
in commerce. Certain government agencies, including the Department of 
Defense (DoD), the Department of Energy (DOE), and the Nuclear 
Regulatory Commission, as well as some private companies, employ 
rigorous security measures to protect sensitive shipments. Some of 
these security measures may also be appropriate for broader application 
to commercial motor carrier shipments of hazardous materials. In 
addition, there are many technological solutions for tracking 
shipments, communicating with drivers, or securing shipments within 
trailers that can protect shipments from hijacking or provide an early 
indication of a potential security problem.
    Pre-notification. Though not required by Federal regulations, DoD 
and DOE sometimes notify state and/or local authorities prior to the 
transportation of certain materials through their jurisdictions. Such 
pre-notification may include the route planned for the shipment and the 
time of day during which the shipment will occur. Pre-notification 
enables emergency responders in jurisdictions through which such 
shipments take place to prepare in advance for a potential emergency or 
accident. It also enables state or local authorities to restrict 
traffic or take other precautions along the affected route.
    Escorts. Certain hazardous materials shipments may be accompanied 
by armed escorts, either on the vehicle or in an accompanying vehicle. 
The presence of armed escorts is one measure designed to prevent or 
defeat an attempted hijacking or attack against a shipment.
    Vehicle tracking. Satellite tracking, direct short-range 
communications, and cell phone technologies enable motor carriers to 
monitor a shipment while en route to its destination and to identify 
and communicate deviations from prescribed routes or time frames. 
Relatively sophisticated systems are currently available and are 
already used by many motor carriers to deter theft. Increasing numbers 
of motor carriers utilize vehicle tracking systems to enhance shipment 
security.
    Anti-theft devices. There are a number of anti-theft devices that 
can help to reduce the risk of vehicle hijacking or cargo theft. 
Devices such as remote vehicle shut-offs, electronic ignition locks, 
and driver verification systems utilizing security codes or 
fingerprints assure that unauthorized persons cannot operate a motor 
vehicle. Tamper-resistant or tamper-evident seals and locks on cargo 
compartment openings protect sensitive cargoes and limit access to 
authorized personnel.
    Operational measures. To reduce or eliminate the necessity for 
lengthy en route stops, some motor carriers are employing two drivers 
or using driver relays to avoid en route stops on long trips. These and 
other adjustments to routine operating procedures are relatively simple 
and cost-effective ways to enhance hazardous materials transportation 
security.
    Safe havens. Under Sec. 397.5 of the FMCSR, a motor vehicle 
containing Division 1.1, 1.2, or 1.3 explosives must be attended by the 
driver, or qualified representative of the motor carrier, at all times. 
Division 1.1, 1.2, and 1.3 explosives are excepted from the 
``attendance'' requirements if three conditions are met. One of these 
conditions occurs when the vehicle is parked in a ``safe haven.'' A 
``safe haven'' is defined in the regulations as an area specifically 
approved in writing by Federal, State, or local government authorities 
for the parking of unattended vehicles containing Division 1.1, 1.2, 
and 1.3 explosive materials. The decision as to what constitutes a safe 
haven is generally made by the competent local authority having 
jurisdiction over the area.
    There are no DOT regulations for construction and security of a 
safe haven other than the requirements contained in Sec. 397.7 dealing 
with parking of vehicles containing Division 1.1, 1.2, and 1.3 
explosives. The National Fire Protection Association (NFPA) has 
published standards for safe havens under NFPA 498, Standard for Safe 
Havens and Interchange Lots for Vehicles Transporting Explosives. DoD 
has published standards for non-government safe havens used for the 
commercial shipments of DoD munitions under Military Traffic Management 
Command (MTMC) Freight Traffic Rules Publication No.1B.
    The use of a safe haven may, in fact, increase the possibility of 
cargo theft or hijacking, because the driver, or qualified 
representative, is relieved from the attendance requirements of the 
regulations when using a safe haven. On the other hand, temporary 
storage of high risk cargoes in a safe haven that utilizes state-of-
the-art measures to limit access and exercise 24-hour surveillance 
could increase the overall transportation security of certain high risk 
cargoes.

III. Comments

    The measures discussed above have the potential to significantly 
enhance the security of hazardous materials shipments transported by 
motor vehicle. In addition, at least some of the security measures 
discussed in this ANPRM could also be applied more broadly to

[[Page 46624]]

hazardous materials shipments transported by air, rail, or vessel. 
Further, application of some or all of these security measures could 
have implications for the transportation choices made by hazardous 
materials shippers and for intermodal shipments of hazardous materials. 
Commenters should be aware that the information and data generated in 
response to this ANPRM could result in a notice of proposed rulemaking 
that would apply more generally to shippers and carriers of certain 
high-risk hazardous materials, such as explosives, poison-by-inhalation 
(PIH) materials, and bulk shipments of flammable liquids and gases. The 
cost of requiring additional security measures may be significant. We 
urge commenters to consider these issues as they develop responses to 
this ANPRM.
    We invite commenters to submit data and information on:
    (1) The state of information and communications technology 
development and the current level of adoption of state-of-the-art 
systems by the transportation industry, including those described above 
and others that commenters believe may warrant consideration;
    (2) The effectiveness of different types of physical security 
measures;
    (3) The overall security of safe havens for temporary storage 
during transportation, including suggestions for improving security at 
safe havens or alternatives to the use of safe havens;
    (4) The costs involved with implementing specific security 
measures;
    (5) Related safety or productivity benefits that would help offset 
costs;
    (6) Measures or incentives that may be appropriate to consider in 
promoting technology development and adoption in conjunction with or 
separate from general regulatory requirements; and
    (7) Whether specific physical security measures should be limited 
to certain highly hazardous materials and, if so, which highly 
hazardous materials might warrant specific security measures.
    We are particularly interested in hearing from shippers and 
carriers that are utilizing some of the technologies and procedures 
discussed above--information on the benefits realized, the costs 
incurred, any technical or practical difficulties encountered, and 
other real-world experience would be especially helpful.
    Because this ANPRM addresses measures to enhance the security of 
hazardous materials in transportation, we urge commenters to carefully 
consider the information they submit in response to the questions 
listed above. As with any rulemaking proceeding, we reserve the right 
to reject comments that are beyond the scope of the issues discussed 
herein. For this ANPRM, comments that include information that may 
compromise transportation security will be disqualified as beyond the 
scope of this rulemaking.
    There are a number of additional issues that we must address in 
assessing the feasibility and effectiveness of various measures to 
enhance hazardous materials transportation security. These include the 
analyses required under the following statutes and executive orders:
    1. 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 adoption of specific security 
requirements for motor carriers that transport hazardous materials in 
commerce.
    2. 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 adoption of specific security requirements 
for motor carriers that transport hazardous materials in commerce may 
have on state or local safety or environmental protection programs.
    3. 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 adoption of specific security 
requirements for motor carriers that transport hazardous materials in 
commerce may have on Indian communities.
    4. 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 your business or organization is a small 
entity and if adoption of specific security requirements for motor 
carriers that transport hazardous materials in commerce could have a 
significant economic impact on your operations, please submit a comment 
to explain how and to what your business or organization could be 
affected.

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 July 10, 2002, under authority 
delegated in 49 CFR part 106.
Robert A McGuire,
Associate Administrator for HazardousMaterials Safety,Research and 
Special Programs Administration.
Brian McLaughlin,
Acting Deputy Administrator, Federal Motor Carrier Safety 
Administration.
[FR Doc. 02-17899 Filed 7-15-02; 8:45 am]
BILLING CODE 4910-60-P; 4910-EY-P