[Federal Register Volume 68, Number 110 (Monday, June 9, 2003)]
[Notices]
[Pages 34470-34477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14489]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration


Federal Railroad Administration

DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

[Docket No. RSPA-2003-14982, Notice No. 03-7]

Hazardous Materials: Transportation of Explosives by Rail

AGENCY: Research and Special Programs Administration and Federal 
Railroad Administration, Department of Transportation; and 
Transportation Security Administration, Department of Homeland 
Security.

ACTION: Notice.

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SUMMARY: The Research and Special Programs Administration, the Federal 
Railroad Administration, and the Transportation Security Administration 
are publishing this document to describe the application of Federal 
laws to the transportation of explosives by rail. In particular, this 
document explains that, in light of the extensive regulation of the 
rail transportation of hazardous materials, including explosives, by 
the Department of Transportation, the protections inherent in railroad 
operations against improper use of those materials by railroad 
employees, and the security safeguards taken by the railroads, the 
transportation of explosives via rail by certain persons described 
under the Safe Explosives Act does not pose a sufficient security risk 
warranting further regulation at this time. Based on the determinations 
made by the Transportation Security Administration and the Department 
of Transportation that are detailed in this document, certain federal 
criminal provisions described below do not apply to persons while they 
are engaged in the commercial transportation of explosives by rail.

DATES: Effective Date: June 4, 2003.

ADDRESSES: You may review the public docket containing this document in 
person at the Department of Transportation Dockets Management System 
office between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. The Dockets Management System office is on the plaza level of 
the NASSIF Building at the Department of Transportation, Room PL 401, 
400 Seventh Street, SW., Washington, DC 20590-0001. Also, you

[[Page 34471]]

may review public dockets on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Nancy Machado, Office of Chief 
Counsel, Research and Special Programs Administration, 400 Seventh 
Street, SW., Washington, DC 20590-0001; telephone (202) 366-4440; 
facsimile (202) 366-7041; e-mail [email protected]. David 
Kasminoff, Office of Chief Counsel, Federal Railroad Administration, 
1120 Vermont Avenue, NW., Washington, DC, 20590-0001; telephone: (202) 
493-6043; [email protected]. Christine Beyer, Office of Chief 
Counsel, Transportation Security Administration, 400 Seventh Street, 
SW., Washington, DC 20590-0001; telephone (571) 227-2657; e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Availability of Document

    You can get an electronic copy using the Internet by--
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) Web page (http://dms.dot.gov/search);
    (2) Accessing the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html;
    (3) Visiting the RSPA web page at http:// hazmat.dot.gov; or
    (4) Visiting the TSA Laws and Policy web page at http://www.tsa.dot.gov/public/index.jsp.
    In addition, copies are available by writing or calling the 
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to 
identify the docket number of this document.

Abbreviations and Terms Used in This Document

ATF--Bureau of Alcohol, Tobacco, Firearms, and Explosives
ATSA--Aviation and Transportation Security Act
CHRC--Criminal History Records Check
DHS--Department of Homeland Security
DOJ--Department of Justice
DOT--Department of Transportation
FAA--Federal Aviation Administration
Federal hazmat law--Federal Hazardous Materials Transportation Law (48 
U.S.C. 5101 et seq.)
FMCSA--Federal Motor Carrier Safety Administration
FRA--Federal Railroad Administration
GAO--General Accounting Office
Hazmat--Hazardous materials
HMR--Hazardous Material Regulations (49 CFR Parts 171-180)
RSPA--Research and Special Programs Administration
SEA--The Safe Explosives Act
TSA--Transportation Security Administration
USCG--U.S. Coast Guard

I. Background

    The Research and Special Programs Administration (RSPA) and the 
Federal Railroad Administration (FRA), agencies within the Department 
of Transportation (DOT), and the Transportation Security Administration 
(TSA), an agency within the Department of Homeland Security (DHS), have 
determined that in light of the extensive regulation of the rail 
transportation of hazardous materials, including explosives, by DOT, 
the protections inherent in railroad operations against improper use of 
those materials by railroad employees, and the security safeguards 
taken by the railroads, the transportation of explosives by rail by 
persons described under section 842(i) does not present a sufficient 
security risk warranting further regulation at this time. In view of 
the foregoing conclusion, no additional security regulations addressing 
this aspect of the transportation of explosives are immediately 
necessary. Accordingly, under 18 U.S.C. 845(a)(1), discussed in greater 
detail below, persons engaged in the commercial transportation of 
explosives by rail are excepted from the application of 18 U.S.C. 
842(i).
    As a threshold matter, it is important to discuss the role that 
Federal agencies play in the transportation of explosives by rail. In 
accordance with Federal hazardous materials transportation law (Federal 
hazmat law; 49 U.S.C. 5101 et seq.), RSPA regulates the safe and secure 
transportation of hazardous materials (hazmat), including explosives, 
in all modes of transportation. The Hazardous Materials Regulations 
(HMR; 49 CFR parts 171-180) include packaging, identification, 
handling, and security requirements. Modal administrations within DOT--
the Federal Aviation Administration (FAA), the Federal Motor Carrier 
Safety Administration (FMCSA), and FRA--enforce these regulations in 
their respective areas of authority. FRA pursues its enforcement 
responsibilities with a particular emphasis on the transportation or 
shipment of hazardous materials by rail, including the manufacture, 
fabrication, marking, maintenance, reconditioning, repair, or testing 
of containers that are represented, marked, certified, or sold for use 
in the bulk transportation of hazardous materials by railroad. In 
addition, FRA issues and enforces a variety of rail safety regulations 
that address track and roadbed conditions; signal systems; locomotive, 
freight car and passenger equipment safety; emergency preparedness; 
hours of service of railroad employees; operating practices and 
procedures; qualification standards for certain employees; and alcohol 
and drug testing of railroad employees in safety-sensitive service.
    TSA was created following the terrorist attacks of September 11, 
2001, as an agency within DOT. TSA was transferred to the DHS on March 
1, 2003, and has statutory authority to set standards for security and 
make determinations regarding the adequacy of security in all modes of 
transportation. DOT agencies consult with TSA on transportation 
security matters. The Bureau of Alcohol, Tobacco, Firearms, and 
Explosives (ATF) is an agency within the Department of Justice (DOJ), 
and has statutory authority to address, among other things, the 
manufacture, purchase, possession and use of explosives.
    Representatives of RSPA, FRA, TSA, and DOJ consulted extensively 
with each other to ensure that this document accurately reflects the 
security considerations relevant to those persons responsible for 
transportation of explosives in commerce by rail.

II. Safe Explosives Act

    Congress enacted the Safe Explosives Act (SEA) on November 25, 
2002.\1\ Sections 1121-1123 of the SEA amended section 842(i) of Title 
18 of the U.S. Code by adding several categories to the list of persons 
who may not lawfully ``ship or transport any explosive in or affecting 
interstate or foreign commerce'' or ``receive or possess any explosive 
which has been shipped or transported in or affecting interstate or 
foreign commerce.'' Prior to the amendment, 18 U.S.C. 842(i) prohibited 
the transportation of explosives by any person under indictment for or 
convicted of a felony, a fugitive from justice, an unlawful user or 
addict of any controlled substance, and any person who had been 
adjudicated as a mental defective or committed to a mental institution. 
The amendment added three new categories to the list of prohibited 
persons: aliens (with certain limited exceptions), persons dishonorably 
discharged from the armed forces, and former U.S. citizens who have 
renounced their citizenship. Individuals who violate 18 U.S.C. 842(i) 
are subject to criminal

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prosecution.\2\ These incidents are investigated by ATF and referred, 
as appropriate, to the United States Attorneys.
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    \1\ Pub. L. 107-296, November 25, 2002, 116 Stat. 2280
    \2\ The penalty for violation of 18 U.S.C. 842(i) is up to ten 
years imprisonment and a fine of up to $250,000.
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    However, 18 U.S.C. 845(a)(1) provides an exception to section 
842(i) for ``any aspect of the transportation of explosive materials 
via railroad, water, highway, or air which are regulated by the United 
States Department of Transportation and agencies thereof, and which 
pertain to safety.'' DOJ has interpreted this provision to exempt 
persons from application of Sec.  842(i) when (1) DOT has actually 
regulated a relevant aspect of the transportation of explosives, and 
(2) those regulations cover the particular aspect of the safe 
transportation of explosives that prompted Congress to enact the 
criminal statute from which exemption is sought. For purposes of Sec.  
845(a)(1), if it is determined that persons engaged in certain aspects 
of the transportation of explosives do not pose a security threat and 
do not warrant regulation, then those persons are not subject to 
prosecution under 18 U.S.C. 842(i) while they are engaged in the 
transportation of explosives in commerce.
    As discussed in greater detail throughout this document, this 
notice addresses all of the categories of individuals who are 
prohibited from transporting explosives in commerce via railroad under 
Sec.  842(i), as amended by the SEA, and thus 18 U.S.C. 845(a)(1) 
excepts those categories of individuals from prosecution under Sec.  
842(i) for activities occurring during and incident to the 
transportation of explosives by rail in commerce.

III. Hazardous Material Regulations

    Hazardous materials are substances that may pose a threat to public 
safety or the environment during transportation because of their 
physical, chemical, or nuclear properties. Hazardous materials are 
essential to the economy of the United States and the well being of its 
people. Hazardous materials fuel cars and trucks, and heat and cool 
homes and offices. Hazardous materials are used for farming and medical 
applications and in manufacturing, mining, and other industrial 
processes. These materials are transported in quantities ranging from 
several ounces to many thousands of gallons. DOT estimates that one and 
one-half billion tons of hazmat are transported each year. The majority 
of hazardous materials move by truck (56%), while rail shipments 
account for only six percent of the tonnage. The vast majority of 
hazardous materials shipments arrive safely at their destinations. Most 
incidents that do occur involve small releases of material and present 
no serious threat to life or property.
    The hazardous material regulatory system is a risk management 
system that is prevention-oriented and focused on identifying a safety 
hazard and reducing the probability and quantity of a hazardous 
material release. Under the HMR, which are based on the internationally 
recognized United Nations system for classification, identification, 
and ranking of hazardous materials, hazardous materials are categorized 
by hazard analysis and experience into hazard classes and packing 
groups. The regulations require each shipper to classify a material in 
accordance with these hazard classes and packing groups; the process of 
classifying a hazardous material is itself a form of hazard analysis. 
Further, the regulations require the shipper to communicate the 
material's hazards through use of the hazard class, packing group, and 
proper shipping name on the shipping paper and the use of labels on 
packages and placards on transport vehicles. Thus the shipping paper, 
labels, and placards communicate the most significant findings of the 
shipper's hazard analysis. A hazardous material is assigned to one of 
three packing groups based upon its degree of hazard, from a high 
hazard, Packing Group I, to a low hazard, Packing Group III, material. 
The quality, damage resistance, and performance standards of the 
packaging in each packing group are appropriate for the hazards of the 
material transported.
    Under the HMR, all hazardous materials are divided into nine 
general classes according to their physical, chemical, and nuclear 
properties as follows:
Class 1--Explosives
Class 2--Compressed, flammable, nonflammable, and poison gases
Class 3--Flammable liquids
Class 4--Flammable solids
Class 5--Oxidizers and organic peroxides
Class 6--Toxic and infectious materials
Class 7--Radioactive materials
Class 8--Corrosive materials
Class 9--Miscellaneous dangerous substances and articles

    Within Classes 1, 2, 4, 5, and 6, there are more specifically 
defined divisions, and within Class 1 there are Compatibility Group 
subdivisions as well. The hazard classes and divisions are not mutually 
exclusive. Certain hazardous materials have multiple dangerous 
properties, each of which must be addressed according to its relative 
potential to do harm. In these cases, the UN system and the HMR allow 
identification and communication of both the primary and subsidiary 
threats.
    DOT's hazardous materials transportation safety program has 
historically focused on reducing risks related to the unintentional 
release of hazardous materials. The HMR are designed to achieve two 
goals: (1) To ensure that hazardous materials are packaged and handled 
safely during transportation, thus minimizing the possibility of their 
release should an incident occur, and (2) to effectively communicate to 
carriers, transportation workers, and emergency responders the hazards 
of the materials being transported. 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 include design, performance, and 
inspection standards for packaging, which also include operational 
requirements applicable to each mode of transportation.
    With particular regard to explosives, subpart C of 49 CFR part 173 
sets forth substantial and comprehensive requirements concerning the 
definition, classification, and packaging of explosives. Other rules 
cover the required marking labeling, and placarding of explosives 
shipments. See Sec. Sec.  172.320, 411, and 522-525. The HMR also 
contain specific operational requirements for handling explosives, 
including requirements that specifically address rail operations 
(subpart E of 49 CFR part 174) and the disposition of explosive 
shipments at their rail destinations. See 49 CFR 174.16(b)(1).
    In the wake of the terrorist attacks of September 11, 2001, and 
subsequent threats related to biological and other hazardous materials, 
DOT undertook a broad review of government and industry hazardous 
materials transportation safety and security programs. As part of this 
review, DOT 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 and continuing terrorist 
threats. In addition,

[[Page 34473]]

DOT 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 
FRA, FMCSA, FAA, 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 
that can enhance the security of hazardous materials shipments during 
transportation (67 FR 6963). The notice addressed personnel, facility, 
and en route security issues and included contact points for obtaining 
additional, more detailed information. Among other recommendations, the 
security advisory notice advised employers to be aware of the 
possibility that someone they employ may pose a potential security 
risk. RSPA recommended that employers consider establishing a process 
to verify the information provided by applicants on application forms 
or resumes, including checking with former and current employers and 
personal references provided by job applicants.
    On March 25, 2003, RSPA published a final rule under Docket No. 
RSPA-02-12064 (HM-232), herein referred to as HM-232 (68 FR 14510). The 
final rule requires persons who offer certain hazardous materials for 
transportation in commerce and persons who transport certain hazardous 
materials in commerce to develop and implement security plans.
    In developing the HM-232 final rule, RSPA assessed the security 
risks associated with the transportation of different classes and 
quantities of hazardous materials. RSPA 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 requires persons who 
offer for transportation or transport the following hazardous materials 
to develop and implement security plans: (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 gal) for liquids or gases or greater 
than 13.24 cubic meters (468 cubic feet) for solids; (5) infectious 
substances listed as select agents by the Centers for Disease Control 
and Prevention (CDC) in 42 CFR Part 73; and (6) a shipment that 
requires placarding. Select agents are infectious substances identified 
by CDC as materials with the potential to have serious consequences for 
human health and safety if used illegitimately. In effect, then, the 
HM-232 final rule applies the security plan requirement to a shipper or 
carrier of a hazardous material in an amount that requires placarding 
and to select agents. 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 consistency for the regulated community, thereby 
minimizing confusion and facilitating compliance.
    The HM-232 final rule also includes new security awareness training 
requirements for all hazardous materials employees. This training must 
include an awareness of the security risks associated with hazmat 
transportation, measures designed to enhance transportation security, 
and a component covering how to recognize and respond to possible 
security threats. With regard to personnel security, the final rule 
requires that each security plan include measures to confirm 
information provided by job applicants for positions that involve 
access to, and handling of, hazmat.
    On May 5, 2003, RSPA published an interim final rule (IFR) to 
further enhance the hazardous materials transportation security (68 FR 
23832). The IFR described the current system of regulations applicable 
to the transportation of hazardous materials in commerce, and reviewed 
DOT activities to enhance the security of hazardous materials 
shipments. In addition, the rule summarized the requirements of the USA 
PATRIOT Act and regulations adopted by TSA and the FMCSA to implement 
the background check provisions of the Act, and described actions taken 
by FAA, TSA, and the U.S. Coast Guard to address security issues 
associated with the transportation of hazardous materials by air and 
vessel. The IFR also incorporated into the HMR a requirement that 
shippers and transporters of hazardous materials comply with applicable 
Federal security regulations and revised the procedures for applying 
for an exemption from the HMR to require applicants to certify 
compliance with applicable Federal transportation security laws and 
regulations. Finally, DOT, in consultation with TSA, determined that, 
based on the analyses and regulatory programs described in the IFR, the 
provisions of 18 U.S.C. 842(i) do not apply to the commercial 
transportation of explosives by motor carrier, aircraft, or vessel.

IV. Transportation Security Administration

    In the wake of the terrorist attacks of September 11, 2001, 
Congress enacted the Aviation and Transportation Security Act (ATSA), 
which established the TSA.\3\ TSA was created as an agency within DOT, 
operating under the direction of the Under Secretary of Transportation 
for Security. TSA became an agency of the DHS in March 2003, by 
operation of the Homeland Security Act of 2002. (Pub. L. 107-296.) At 
this point the Under Secretary became the Administrator. The Secretary 
of DHS has delegated back to the Administrator of TSA all of his 
authority in ATSA that was vested with the Secretary by operation of 
law under the Homeland Security Act. TSA continues to possess the 
statutory authority that ATSA established, which grants the 
Administrator authority for security in all modes of transportation.\4\
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    \3\ Pub. L. 107-71, November 19, 2001, 115 Stat. 597.
    \4\ 49 U.S.C. 114(d).
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    As part of its security mission, TSA is responsible for assessing 
intelligence and other information in order to identify individuals who 
pose a threat to transportation security and to coordinate 
countermeasures with other Federal agencies to address such threats.\5\ 
In addition, TSA is charged with serving as the primary liaison for 
transportation security to the intelligence and law enforcement 
communities.\6\
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    \5\ 49 U.S.C. 114(f)(1)-(5), (h)(1)-(4).
    \6\ 49 U.S.C. 114(f)(1) and (5).
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    TSA has exercised this authority extensively in the aviation and 
commercial trucking industries. For instance, TSA regulations require a 
fingerprint-based criminal history records check (CHRC) on individuals 
with access to secured areas of airports and aircraft. See 49 CFR parts 
1542 and 1544. In addition, TSA recently issued an interim final rule 
that requires commercial drivers to successfully complete a 
fingerprint-based CHRC in

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order to renew or obtain authority to transport hazardous materials. 
See 49 CFR part 1572. If an individual has a criminal conviction for 
certain disqualifying offenses within prescribed time periods, he or 
she is not granted access to the secured area or granted authority to 
transport hazmat in commerce.
    TSA is authorized to complete background checks on individuals in 
all modes of transportation and to issue identification media that 
capture the results of the background check. TSA is currently 
evaluating the need for and nature of background checks on 
transportation workers, in addition to those in the aviation and 
trucking industries, who are in a position to cause or control serious 
security-related events. TSA is taking a risk-based approach to 
security regulations so that the government and private sector can 
prioritize resources based on threat information, vulnerability 
assessments, and criticality determinations. TSA is engaged in such an 
analysis concerning background checks for transportation workers in the 
maritime and rail industries. TSA continues to evaluate the need for 
additional regulations concerning this population and potential 
threats, and may issue additional security requirements concerning 
railroad employees engaged in the transportation of hazmat. A 
comprehensive, risk-based approach will facilitate the development of 
standards that are narrowly tailored to suit the industry and the 
threat. TSA evaluated the measures currently required under DOT hazmat 
and rail regulations, the nature of rail operations, and the security 
enhancements completed by the railroads, and has determined that, for 
the present, they adequately address the security concerns of which it 
is aware.

V. Transportation by Rail

    FRA administers the Federal railroad safety laws (49 U.S.C. 
chapters 201-213), which encompass all areas of railroad safety (see 49 
U.S.C. 20103), including security. The terrorist attacks of September 
11 and subsequent indications of possible terrorist threats 
specifically directed at the railroad industry indicate the need to 
assess the security of hazmat shipments, including individuals in a 
position to have access to sensitive information regarding, or the 
ability to control the movement of, explosives and other hazmat. FRA 
has worked closely with TSA, the railroad industry, and RSPA on rail 
security issues since September 2001.
    The nation's railroads have taken several voluntary steps to 
enhance security since September 11, 2001. The Association of American 
Railroads (AAR) established a security task force immediately after the 
attacks. The task force created action teams to assess vulnerabilities 
in several critical areas: physical assets, information technology, 
chemicals and hazardous materials, defense shipments, train operations, 
and passenger security. AAR worked with chemical industry associations 
and security consultants to assess terrorism risks in these areas. This 
risk analysis provided the basis for the industry's security management 
plan, which was presented to DOT and TSA.
    The security management plan, which is currently being implemented, 
includes a uniform system for communicating threat levels throughout 
the industry, progressively rigorous countermeasures to be taken 
depending upon the threat level, and a round-the-clock operations 
center linking railroad control centers with law enforcement agencies. 
Among the activities the industry is taking to implement the plan are 
increasing the awareness of employees about potential security threats, 
limiting publication of information about sensitive shipments, 
periodically testing security systems, using railroad police and 
private security guards to monitor critical infrastructure locations, 
restricting access to railroad facilities, using video surveillance of 
hazardous materials shipments in certain areas, conducting security 
evaluations of specific facilities, and the temporary rerouting or 
suspension of certain hazmat shipments in the event of a credible 
terrorist threat. These security enhancements undertaken by the major 
railroads have helped to reduce the risk that explosives or other 
hazardous materials can be used for terrorist purposes while in 
railroad possession.
    On May 23, 2003, the General Accounting Office (GAO) issued a 
report titled ``Rail Safety and Security--Some Actions Already Taken to 
Enhance Rail Security, but Risk-Based Plan Needed'' (GAO-03-435). GAO 
found that, since September 11, 2001, the rail and chemical industries 
have taken steps to improve the security of rail shipments of hazardous 
materials. The report describes the rail industry's development and 
implementation of its security plan and actions taken thus far by DOT 
and TSA to address rail security issues. The report does not address 
the security issues related to railroad employees that are the subject 
of this notice, nor does it include any reason to question the 
determinations in this notice concerning the current need for further 
regulation to address the risk posed by the transportation of 
explosives by rail by persons described under section 842(i).
    GAO recommends that DOT and DHS work together to develop a risk-
based plan specifically to address rail security, including timeframes 
for actions. As noted elsewhere in this notice, DOT and TSA are in the 
process of evaluating the need for additional Federal regulations to 
address rail transportation security. We agree that a comprehensive, 
risk-based approach will facilitate the development of standards that 
are narrowly tailored to suit the industry and the threat. Recently 
adopted regulations, such as the HM-232 and USA PATRIOT Act final 
rules, as well as initiatives currently in progress, incorporate a risk 
management approach to security regulation.

1. Process for Handling Hazardous Materials Via Rail

    A discussion of the process by which explosives and other hazmat 
are transported by rail is necessary to analyze security risks and 
appropriate countermeasures. More than 75 percent of hazardous 
materials moving by railroad moves in bulk, most commonly in a tank car 
or covered hopper car. Hazardous materials moving by rail are loaded 
into a tank car, hopper car, boxcar, trailer, or intermodal container 
by the shipper (or the shipper's agent). The product is then delivered 
to the railroad for movement to its destination. Railroad employees do 
not load hazardous materials into rail cars or containers or unload 
them at their destination.
    To arrange for the transportation of a hazardous materials package, 
a shipper will contact a railroad freight agent. At this time, the 
shipping description information--the contents and format of which is 
prescribed by the HMR--is passed along to the carrier, along with 
emergency response information, origin pickup point, destination, and 
the car reporting mark and number. The freight agent, or a shipping 
clerk, enters this information into the carrier's records, and orders 
are generated for pickup by either a switch or a road crew, depending 
on the origin location and its proximity to a terminal. The shipping 
information may be transmitted orally, but the regulations require a 
document from the shipper, sent either in hard copy or electronically. 
The shipper must certify that the materials to be shipped have been 
classified, packaged, and labeled appropriately and are in proper 
condition for transportation according to the applicable DOT standards.
    The shipper must label non-bulk packages to properly disclose their

[[Page 34475]]

contents, and must placard hazmat shipments in accordance with the 
regulations. Shippers often apply security seals to both bulk and non-
bulk containers. Security seals impede access to dangerous commodities 
and also provide evidence of tampering, if it occurs.
    Once the hazardous materials shipment has been accepted for 
transportation by the railroad, the paperwork that describes the 
product must accompany the shipment. The HMR require the train crew to 
have a copy of this paperwork in the complete train consist, which must 
accurately list the placement of each hazmat shipment in the train. 
Once the product is delivered to its destination, the paperwork is 
transferred to the receiving party.

2. Unique Characteristics of Transporting Hazardous Materials Via Rail

    There are many factors unique to the rail industry that minimize 
the degree to which an individual may affect the movement of hazardous 
materials, including explosives. Railroad employees have a very limited 
opportunity to gain access to or divert hazardous materials shipments 
they are transporting. Railroad operating employees do not load or 
unload hazmat from rail cars, and are not expected to enter the cars or 
handle their contents in any way. Furthermore, train crews that move 
these shipments are not issued the tools necessary to remove or break 
the seals of the hazardous material containers. Gaining access to the 
hazmat in closed containers, if possible at all, would likely attract 
the attention of other employees. The HMR prescribe requirements for 
the packaging of all placarded hazmat, including the type of package, 
the degree to which all closures must be secured prior to transport, 
and maintenance and testing requirements to ensure that valves and 
other closures are in good working condition.
    Unlike a truck or aircraft, a train operates on a closed system. It 
is confined to the tracks it is on, and any deviation from its assigned 
route is either altogether impossible or difficult to accomplish 
without being detected quickly by railroad employees or officials. 
Train crews are expected to move their train along a pre-designated 
route and communicate with the railroad if any delays occur along the 
route. A train containing hazardous materials is monitored by a train 
dispatcher who oversees the movement, and in heavily trafficked areas, 
controls the movement by a system of signals or mechanical and 
electronic control devices. Further, on large portions of major 
railroads, each car moving in a train is monitored by trackside sensors 
that report its location back to a centralized facility or broadcast 
its location over the railroad radio network every time it contacts one 
of a variety of equipment scanners.
    Although railroads transport a large volume of hazardous materials, 
the number of annual explosives shipments via rail is very low. 
According to the AAR, there are approximately 27 million carloads of 
freight shipped by rail annually. Of these, 1.7 million are hazmat 
shipments and approximately 1,200 shipments contain explosives. Of the 
railroads TSA has surveyed, nearly all stated that explosives shipments 
are not a coveted product. There simply is not enough of it in the rail 
transportation network to produce good profit margins.
    It is also important to note that, of the 660 small railroads 
operating in the United States, fewer than 10 are known to ship 
explosive material by rail at any given time. The incidence of 
explosives shipments on small railroads is nearly nonexistent.
    The major railroads (or Class I railroads) handle 94 percent of the 
nation's rail freight traffic and employ approximately 90 percent of 
employees in the rail industry. Each of the Class I railroads employs a 
police force to guard rail yards and equipment to prevent unauthorized 
access to facilities, equipment, product, and paperwork. There are 
approximately 1,300 rail police in service today. The railroads conduct 
fingerprint-based CHRC on these individuals to ensure that persons with 
criminal or otherwise problematic backgrounds are not hired as part of 
the police force. Under 49 U.S.C. 28101, these employees are fully 
authorized to enforce laws of all states in which the railroad 
operates. See also 49 CFR part 207.
    Furthermore, railroad police agents can be linked through extensive 
radio networks to virtually all railroad employees within their 
territorial jurisdiction, including train crews, train dispatchers, and 
railroad workers who maintain the tracks, signals and rolling stock. 
The railroad police can communicate directly with most railroad 
employees and can monitor the radio communications between many of the 
employees. Therefore, railroad employees operate in a setting where the 
employer is not dependent on state or local law enforcement to detect 
criminal activity; rather, it employs its own law enforcement officers, 
with specialized knowledge of railroad operations, to ensure the 
security of those operations.
    The Class I railroads require employees to complete an extensive 
application prior to employment, which includes criminal, employment, 
educational, and credit history; citizenship status; and military 
service and type of discharge. The application also provides that 
candidates will be disqualified or terminated if any of the information 
provided on the application is false.
    As part of the application process, the Class I railroads conduct 
background checks on all new hires, although this does not include a 
fingerprint-based CHRC. The Class I railroads ask applicants to 
disclose any past criminal history. In addition, the major railroads 
complete a public records search for statewide criminal and outstanding 
debt information. Using records linked to the applicant's social 
security number, the major railroads also check the applicant's 
employment, credit, and address history. This is a significant 
evaluation, because it typically confirms a candidate's identity. 
Experienced investigators place great weight on these records to catch 
individuals who have adopted false identification, who often move 
beneath the criminal history radar screen. A number of terrorists 
involved in previous terrorist attacks would have successfully 
completed a fingerprint-based CHRC, but may have raised concerns as a 
result of the social security check.
    The employment application also requires information concerning 
previous military service and citizenship status. If a candidate has 
served in the armed forces, the railroad requests a copy of the 
individual's discharge papers. An individual with a dishonorable 
discharge is not disqualified automatically, but the dishonorable 
discharge may become grounds for disqualification. The railroad 
considers the totality of the circumstances, such as the facts that 
gave rise to the discharge, any rehabilitation that is evident, and the 
results of the other background checks. Similarly, the railroads do not 
prohibit hiring aliens, but will not hire an alien unless the proper 
immigration forms and approvals have been obtained. Any person who has 
renounced his or her U.S. citizenship would be required to state that 
he/she is not a U.S. citizen on the application. In a general survey of 
the Class I railroads, the percentage of non-Canadian aliens working in 
the railroad industry is extremely small. Citizens of Canada, who 
typically work

[[Page 34476]]

for the Canadian railroads, are discussed in greater detail below.
    The railroad employees responsible for actually transporting 
hazardous materials, i.e., the train crew members, are subject to a 
variety of requirements that address their fitness for duty, general 
health, and knowledge of appropriate operating practices. Locomotive 
engineers are certified pursuant to a comprehensive regulatory regime 
(49 CFR part 240) that includes safety testing, visual and hearing 
acuity tests, and alcohol and drug testing (49 CFR part 219). A 
locomotive engineer's certification may be revoked for failure to 
follow critical operating rules or for violation of rules concerning 
alcohol and drug use. See 49 CFR 240.117 and 307. In addition, 
engineers undergo knowledge and operational testing and training 
periodically that may reveal any severe mental disorder that might 
jeopardize the person's ability to perform safely. Railroad operating 
employees almost always work in close proximity to other crew members, 
so their actions are constantly observed. Abnormal behavior would 
likely be noticed and reported by fellow employees to management or an 
employee assistance program. Serious injury can result very quickly 
while working on or near railroad equipment; consequently, rail 
employees are typically not tolerant of abnormal or irresponsible 
behavior in the workplace.
    Aside from the locomotive engineer, the other train crew members 
are conductors and brakemen. FRA's regulations require that, like 
engineers, these employees are trained and tested on the railroad's 
operating rules. See 49 CFR part 217. These employees are also subject 
to the alcohol and drug testing regulations, and may be removed from 
service for violating operating rules or alcohol and drug prohibitions.
    We recognize that the background checks conducted by the railroad 
industry are not as comprehensive as fingerprint-based background 
checks. However, because of the conditions under which explosives are 
transported by rail and the difficulty that a potential criminal or 
terrorist would have in gaining access to or controlling an explosives 
shipment and the other Federal and industry measures currently in 
effect, we do not believe that additional regulations concerning 
railroad employees are warranted at this time. TSA continues to assess 
the need for more detailed background check requirements in the rail 
industry and may determine that such standards are necessary in the 
future.
    Because Canadian railroads transport hazardous materials into the 
United States, locomotive engineers working for these railroads are 
often citizens of Canada rather than the United States. TSA recently 
published a rule that requires Canadian train crews entering this 
country to be vetted by Transport Canada, the agency in the Canadian 
government that oversees transportation. (68 FR 6083; Feb. 6, 2003.) A 
Canadian citizen entering the U.S. via rail with explosives shipments 
on board is not granted access unless Transport Canada certifies that 
the individual has completed a background investigation. TSA is in the 
process of amending this rule to extend its application to Canadians 
who transport explosives within the United States as well. TSA has met 
with representatives of Canada on several occasions to discuss these 
procedures, and will conduct similar discussions with Mexico.
    FRA has been granted broad authority over railroad safety, 
including security, which includes authority to address particular 
safety or security problems through extraordinary remedies. Under 49 
U.S.C. 20104, FRA may issue an Emergency Order imposing requirements to 
abate an emergency situation involving a hazard of death or personal 
injury. These orders are issued without notice or prior hearing, and 
can be directed to corporations or individuals. Using such an order, 
FRA can impose whatever conditions are necessary to address the 
emergency, up to and including requiring the cessation of operations on 
a particular line or removing persons from safety-sensitive service. In 
addition, FRA has statutory authority to disqualify individuals from 
safety-sensitive service when it is shown that an individual is not fit 
for service due to his or her violation of one or more safety laws. 49 
U.S.C. 20111(c).

VI. Determination Under 18 U.S.C. 845(a)(1)

    As noted above, 18 U.S.C. 845(a)(1) provides an exception to the 
prohibited persons provisions in 18 U.S.C. 842(i) for ``any aspect of 
the transportation of explosive materials via railroad, water, highway, 
or air, which are regulated by the United States Department of 
Transportation and agencies thereof, and which pertain to safety.'' 
Under this exception, if DOT regulations address the transportation 
security issues associated with persons engaged in a particular aspect 
of the safe transportation of explosive materials, then those persons 
are not subject to prosecution under 18 U.S.C. 842(i) while they are 
engaged in the transportation of explosives in commerce. In addition, 
if it is determined by TSA and DOT jointly that certain aspects of the 
transportation of explosives do not pose a sufficient security risk and 
therefore do not warrant regulation, the exception contained in 18 
U.S.C. 845(a)(1) also applies, and persons engaged in such 
transportation would not be subject to criminal prosecution under 
section 842(i).
    DOT is authorized by Federal hazmat law to designate material, 
including an explosive, as hazardous when transported in commerce in a 
particular amount and form that may pose an unreasonable risk to 
health, safety, or security. DOT regulations applicable to the 
transportation of explosives by all modes include the classification, 
packaging, hazard communication, and operational requirements described 
elsewhere in this document. Further, the HMR include specific 
requirements for security plans and training adopted in the HM-232 
final rule.
    As discussed in detail above, DOT and TSA assessed the security 
risks associated with the transportation in commerce of explosives as 
defined in 18 U.S.C. 841(c)-(f). Based on this assessment, we concluded 
that the most significant security risks are associated with the 
transportation of explosives shipments in quantities that require 
placarding under the HMR. Thus, the HM-232 final rule requires persons 
who offer or transport shipments of explosives in all modes of 
transportation that must be placarded under the HMR to develop and 
implement security plans. There are additional requirements for 
placarded shipments in transportation, which minimize the risks 
associated with their transportation. Shipping papers, packaging, car 
placement, the integrity of seals and closures, hazmat employee 
training, and maintenance are all areas that must be handled in 
accordance with prescribed standards.
    Non-placarded shipments of explosives are not subject to these 
requirements. In rulemakings published on May 5, 2003, DOT and TSA 
determined that non-placarded shipments do not present a sufficient 
security risk in transportation, at this time, to warrant application 
of the TSA background check requirements to persons who transport those 
shipments in commerce or to persons who possess those shipments 
incidental to transportation in commerce, including persons subject to 
18 U.S.C. 842(i). See 68 FR 23832 and 68 FR 23852. DOT and TSA continue 
to assess the security risks posed by the transportation of non-
placarded shipments of explosives in commerce and will take appropriate

[[Page 34477]]

regulatory action, after public notice and comment, to address those 
risks.
    Nevertheless, non-placarded shipments of explosives continue to be 
subject to general HMR requirements governing packaging and hazard 
communication. These risk-based safety requirements also enhance 
overall transportation security. For example, for high hazard 
shipments, such as Class 1 materials, the stringent packaging required 
by the HMR to enhance the safety of the shipment in transportation 
makes it difficult for someone to tamper with the shipment for a 
criminal or terrorist purpose. Similarly, shipping documents help 
shippers, carriers, and consignees account for specific shipments and 
identify discrepancies or missing packages. In addition, under the HM-
232 final rule, hazardous materials employers must ensure that all 
hazardous materials employees receive security awareness training. Such 
training must include an awareness of the security risks associated 
with hazardous materials transportation and a component covering how to 
recognize and respond to possible security threats.
    A joint decision by DOT and TSA as to whether a particular 
hazardous material, including an explosive, presents a sufficient 
security risk when transported in commerce to warrant background check 
or other security requirements is determinative. As noted above, DOT 
and TSA previously determined that the transportation of non-placarded 
shipments by persons described under section 842(i) does not present a 
sufficient security risk to warrant further regulation at this time. 
That determination also applies to the transportation in commerce of 
non-placarded explosives via rail.
    For the transportation of explosives by rail in amounts that 
require placarding, RSPA and FRA regulations, the protections inherent 
in railroad operations against improper use of explosives by railroad 
employees, and security safeguards imposed by the railroads themselves 
adequately address, at the current time, security risks associated with 
rail employees who are involved in such transportation. DOT regulations 
ensure that explosives shipments are properly loaded, labeled, and 
documented, and that the shipments are very difficult to tamper with. 
In addition, the HM-232 final rule requires persons who transport 
certain hazardous materials to develop and implement security plans. 
Thus, railroads that carry hazardous materials, including explosives, 
in amounts that require placarding must have a security plan that 
conforms to HM-232 requirements. The plan must include an assessment of 
possible transportation security risks for covered shipments and 
appropriate measures to address the risks. Specific measures put into 
place under the plan must address personnel security. To the extent 
that a railroad identifies security vulnerabilities related to its 
personnel, its security plan must address those vulnerabilities. 
Further, major railroads have their own authorized law enforcement 
officers, and the nature of railroad operations makes it difficult for 
an employee to have any realistic opportunity to gain access to, 
improperly use, or redirect the movement of the shipments. Major 
railroads screen potential employees in a way that is designed to 
reveal those who are under indictment or have been convicted of serious 
felonies, are fugitives from justice, are in the country illegally, 
have renounced their citizenship, or have been dishonorably discharged 
from the armed forces. Serious felonies involve those offenses that 
generally pose a substantial threat to public safety and security.
    Periodic operational testing and the nature of railroad work create 
an environment in which mental disorders that give rise to safety or 
security concerns are likely to be noticed and addressed. FRA's alcohol 
and drug regulations effectively prevent substance abusers from serving 
in security-sensitive positions. Recent security enhancements 
undertaken by the major railroads have also helped to reduce the risk 
that explosives or other hazardous materials can be used for terrorist 
purposes while in railroad possession. Small railroads rarely handle 
any explosives shipments, and many of the safeguards against misuse of 
those materials that exist on larger railroads are also present on 
small ones.
    For all of these reasons, DOT and TSA have determined that the 
transportation of explosives via rail by persons described under 
section 842(i) does not pose a sufficient security risk warranting 
further regulation at this time. In light of this determination, the 
provisions of 18 U.S.C. 842(i) do not apply to persons while they are 
engaged in the transportation of explosives in commerce via rail.
    It is important to note that this determination may be reassessed 
as DOT and TSA continue to identify and address security risks 
associated with the transportation of explosives. For example, in a 
rulemaking to be developed under Docket HM-232A, RSPA is evaluating the 
need to require further security enhancements on materials or 
categories of materials that present the most serious security risks in 
transportation. Likewise, TSA is considering transportation worker 
identification rules that would likely include certain railroad workers 
and entail background checks. Because of the potential impact of such 
enhanced security requirements on the economic viability of the 
hazardous materials transportation industry, any additional security 
requirements will be developed through normal notice and comment 
procedures, unless security threats justify expedited or emergency 
rulemaking.

    Issued in Washington, DC, and Arlington, Virginia, on June 4, 
2003.
Samuel G. Bonasso,
Acting Administrator, Research and Special Programs Administration.

Allan Rutter,
Administrator, Federal Railroad Administration.

James M. Loy,
Administrator, Transportation Security Administration.
[FR Doc. 03-14489 Filed 6-5-03; 10:39 am]
BILLING CODE 4910-60-P