[Federal Register Volume 69, Number 27 (Tuesday, February 10, 2004)]
[Rules and Regulations]
[Pages 6195-6198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2751]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 107, 171, 176, and 177

[Docket No. RSPA-03-14982 (HM-232C)]
RIN 2137-AD79


Hazardous Materials: Enhancing Hazardous Materials Transportation 
Security

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule revises the procedures for applying for an 
exemption from the Hazardous Materials Regulations, adopted in an 
interim final rule published May 5, 2003, to require certain applicants 
to certify compliance with provisions of the Safe Explosives Act. In 
addition, this final rule adopts without change provisions in the 
interim final rule that require motor carriers and vessel operators to 
comply with applicable licensing requirements for drivers and crewmen, 
respectively.

EFFECTIVE DATE: This final rule is effective March 11, 2004.

FOR FURTHER INFORMATION CONTACT: Susan Gorsky, (202) 366-8553, Office 
of Hazardous Materials Standards, Research and Special Programs 
Administration.

SUPPLEMENTARY INFORMATION:

I. Background

    On May 5, 2003, the Research and Special Programs Administration 
(RSPA, we) published an interim final rule (IFR) to enhance 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 Department of 
Transportation (DOT) activities to enhance the security of hazardous 
materials shipments. In addition, the rule summarized the requirements 
of the Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act; Pub. 
L. 107-56, October 25, 2001, 115 Stat. 272) and regulations adopted by 
the Transportation Security Administration (TSA) and the Federal Motor 
Carrier Safety Administration (FMCSA) to implement the background check 
provisions of the Act. Further, the IFR described actions taken by the 
Federal Aviation Administration (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 
Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) 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 these regulations adequately address the security risks 
posed by persons engaged in the transportation of explosives in 
commerce, and, accordingly, the provisions of 18 U.S.C. 842(i), which 
address categories of persons who are prohibited from possessing 
explosives, do not apply to persons while they are engaged in the 
transportation of explosives in commerce by motor carrier, aircraft, or 
vessel.

II. Response to Comments Received on IFR

    We received six comments on the IFR--from the Institute of Makers 
of Explosives (IME), the Dangerous Goods Advisory Council (DGAC), the 
Pennsylvania Department of Transportation (Pennsylvania DOT), the Texas 
Department of Public Safety (Texas), Transportation Trades Department 
(TTD), and a joint comment from the Wisconsin Federation of 
Cooperatives and the Minnesota Association of Cooperatives (Wisconsin-
Minnesota Cooperatives). These comments are summarized below.
    In response to the comments submitted, we are revising the 
procedures adopted in the IFR for persons applying for an exemption to 
transport certain explosives in commerce by aircraft. The revisions are 
minor and do not affect the security risks posed by such 
transportation. Therefore, the determinations made in the IFR 
concerning the applicability of 18 U.S.C. 842(i) to the transportation 
of explosives in commerce continue in effect.

A. Comments Beyond the Scope of the HM-232C Rulemaking

    The May 5, 2003 IFR amended Part 177 of the HMR to require motor 
carriers who transport hazardous materials in commerce to comply with 
Part 383 of the Federal Motor Carrier Safety Regulations (FMCSRs). Part 
383 establishes commercial driver license requirements. On May 5, 2003, 
TSA published regulations to establish procedures for making 
determinations as to whether an individual poses a security threat 
warranting denial of a hazardous materials endorsement for a commercial 
driver's license (interim final rule; 68 FR 23851). Also on May 5, 
2003, FMCSA amended Part 383 to prohibit states from issuing a 
commercial driver's license with a hazardous materials endorsement 
unless the Attorney General has conducted a background records check of 
the applicant and TSA has determined that the applicant does not pose a 
security threat warranting denial of the hazardous materials 
endorsement (interim final rule; 68 FR 23843).
    Wisconsin-Minnesota Cooperatives, Texas, and TTD express concern 
about various aspects of the background check requirements in the TSA 
and FMCSA regulations. These comments are beyond the scope of this 
rulemaking. We have placed the comments in the appropriate TSA and 
FMCSA dockets to be addressed as those agencies finalize the interim 
final rules they adopted on May 5, 2003.
    The FMCSA IFR amended Part 383 of the FMCSRs to require commercial 
drivers of motor vehicles used to transport select agents regulated by 
the Centers for Disease Control and Prevention under 42 CFR part 73 to 
obtain a commercial driver's license with a hazardous materials 
endorsement. Pennsylvania DOT suggests that motor vehicles used to 
transport select agents should be placarded. Again, this comment is 
beyond the scope of this rulemaking. We considered whether placarding 
for certain infectious substances should be required under Docket HM-
226 (ANPRM published September 2, 1998, 63 FR 46843; NPRM published 
January 22, 2001, 66 FR 6941; final rule published August 14, 2002, 67 
FR 53118). For the reasons outlined in the HM-226 NPRM (66 FR 6946), we 
determined that current hazard communication requirements for 
infectious substances shipments are sufficient to enable transportation 
workers and emergency response

[[Page 6196]]

personnel to identity and address any potential hazards and, thus, 
decided against a placarding requirement.
    IME offers a number of comments concerning the application of 
regulations promulgated by the Bureau of Alcohol, Tobacco, Firearms, 
and Explosives (ATF) to the transportation of explosives. These 
comments are beyond the scope of this rulemaking and are appropriately 
addressed by ATF.

B. Procedures for Adopting IFRs

    DGAC suggests that RSPA has no procedures for adopting interim 
final rules and asks if the requirements adopted in the IFR are 
intended to be temporary. DGAC is not correct that there are no 
procedures for adopting IFRs. Section 553(b) of the Administrative 
Procedure Act (5 U.S.C. 500 et seq.) permits an agency to issue a rule 
without prior notice and comment when the agency for good cause finds 
that notice and comment are impracticable, unnecessary, or contrary to 
the public interest. Section 106.35 of 49 CFR part 106 sets forth the 
procedures for issuing an interim final rule that were adopted by RSPA 
in a final rule published July 25, 2002 (67 FR 42947). Section 106.35 
explains that, consistent with section 553(b) of the Administrative 
Procedure Act, RSPA may issue an IFR without first publishing a notice 
of proposed rulemaking and accepting public comments if the agency 
finds for good cause that notice and public comment are impracticable, 
unnecessary, or contrary to the public interest. After considering 
comments received on an IFR, Sec. 106.35 provides that the agency may 
revise the interim final rule and issue a final rule. In this 
rulemaking, we are doing precisely that.

C. Determinations Made in the IFR

    IME is the only commenter that addressed the determinations made in 
the preamble to the May 5 IFR and is generally supportive of those 
determinations. The IFR provides an exception, pursuant to 18 U.S.C. 
845(a)(1), 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 (DOT) and agencies thereof, and which 
pertain to safety.''
    IME requests that we clarify the effect of the transportation 
exception in 18 U.S.C. 842(i) on motor private carriers and their 
personnel. The TSA and FMCSA regulations implementing the USA PATRIOT 
Act and incorporated into the HMR in the May 5, 2003 IFR apply to the 
transport of placarded and non-placarded amounts of explosives by 
common, contract, or private motor carriers within the meaning of 18 
U.S.C. 845(a)(1), and the provisions of 18 U.S.C. 842(i), accordingly, 
do not apply to persons engaged in such transportation in commerce.
    IME also requests that we clarify the effect of the transportation 
exception in 18 U.S.C. 842(i) on non-driver/crew employees of companies 
that offer for transportation or transport explosives in commerce. As 
explained in the preamble to the May 5, 2003 IFR, DOT has determined 
that non-placarded shipments of explosives do not present a sufficient 
security risk to justify detailed background check or other security 
requirements at this time; in light of this determination, the 
provisions of 18 U.S.C. 842(i) do not apply to persons engaged in such 
transportation in commerce. For placarded shipments of explosives, the 
determinations explained in the preamble to the May 5, 2003 IFR with 
regard to the transportation by common/contract motor carriers, vessel, 
and air and the determinations concerning rail transportation of 
explosives explained in a notice published jointly by FRA, RSPA, and 
TSA on June 9, 2003 (68 FR 34470) apply to drivers employed by motor 
carriers and crews employed by vessel, air, and rail carriers.
    Non-driver employees of motor carriers were not specifically 
addressed in the May 5, 2003 IFR. DOT and TSA have assessed the 
security risks posed by these individuals and have determined that no 
further regulation is needed at this time. Accordingly, the provisions 
of 18 U.S.C. 842(i) do not apply to non-driver employees of motor 
carriers when they are performing transportation functions regulated 
under the HMR. As defined in a final rule published October 30, 2003 
(68 FR 61906)), transportation functions are functions performed as 
part of the actual movement of a hazardous material in commerce and 
include certain loading, unloading, and storage operations. (See the 
October 30, 2003 final rule for a complete discussion of the 
applicability of the HMR to specific transportation functions.)
    The exemption under 18 U.S.C. 845(a)(1) does not apply to non-
driver employees of Federal explosives licensees and permittees 
regulated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives 
(ATF). In fact, all persons who are employed by Federal explosives 
licensees and permittees and who possess explosives in the course of 
their employment are subject to 18 U.S.C. 842(i) prohibitions (with the 
limited exception of employee drivers).

D. Procedures for Applying for an Exemption

    The May 5, 2003 IFR adopted two new requirements for applicants 
seeking an exemption from the HMR. First, the IFR requires an applicant 
for an exemption to certify compliance with transportation security 
laws and regulations. Second, the IFR requires an applicant for an 
exemption to transport otherwise prohibited explosives on passenger or 
cargo-only aircraft to certify that no person within the prohibited 
persons categories listed in 18 U.S.C. 842(i) will participate in the 
transportation of the material.
    In their comments, DGAC and IME express concern about the first 
requirement. DGAC notes that the text in Sec. 107.105(c)(10) is 
inconsistent with the summary and preamble of the IFR in that it does 
not limit the certification requirement to Federal transportation 
security laws and regulations. Both DGAC and IME note that the 
requirement is quite broad and could be read to include state or local 
transportation security laws and regulations; DGAC makes the additional 
point that the IFR could be interpreted to apply to packaging 
manufacturers in addition to persons who offer or transport hazardous 
materials for transportation.
    Our intention in adopting the general certification requirement for 
exemption applicants was to assure that they were aware of and in 
compliance with applicable Federal security requirements, including 
security requirements promulgated by agencies outside DOT. We agree 
with commenters that the requirement in the IFR is not clear as to its 
applicability. Upon further consideration, moreover, we have determined 
that the requirement is not necessary to assure that exemption holders 
comply with applicable security regulations. Instead of requiring 
applicants to certify compliance with applicable Federal security laws 
and regulations, we will include in the actual exemption document, 
where applicable, an indication that the exemption does not exempt the 
holder from compliance with the security plan requirements in Subpart I 
of Part 172 of the HMR, the security training requirements in Sec. 
172.704 of the HMR, and other specific Federal requirements that may 
apply to the exemption holder's operations. Therefore, in this final 
rule, the requirement for an applicant for an exemption to certify 
compliance with

[[Page 6197]]

transportation security laws and regulations is deleted.
    IME also expresses concern that the IFR requires applicants seeking 
an exemption for the transportation of explosives that are otherwise 
prohibited for air transportation to certify that no person within the 
prohibited persons categories listed in 18 U.S.C. 842(i) will 
participate in the transportation of the material. IME notes that 
exemption applicants must demonstrate an equivalent level of safety, 
including security, and suggests that this should be sufficient to 
assure the security of explosives shipped under exemption.
    As explained in the May 5 IFR, we have issued a limited number of 
exemptions that permit the transportation of explosives that would be 
placarded if transported by highway or rail, including Division 1.1 and 
1.2 explosives. All but one of these exemptions were issued to 
operators that are subject to TSA security requirements, including 
finger-print based background checks for all flightcrew members. The 
exception is an exemption that was issued for the transportation of 
explosives on aircraft with a maximum certificated takeoff weight of 
less than 12,500 pounds; aircraft with a certificated takeoff weight 
under 12,500 pounds are not subject to the TSA security requirements. 
IME is correct that exemption applicants who are subject to TSA 
security requirements should not also need to certify that no person 
within the prohibited persons categories listed in 18 U.S.C. 842(i) 
will participate in the transportation of the material. However, for 
applicants for exemptions to transport explosives who are not subject 
to TSA security requirements, the certification requirement will help 
to assure that prohibited persons under 18 U.S.C. 842(i) are not 
involved in the transportation of the explosives. In this final rule, 
we are modifying the certification requirement to clarify that it 
applies only to applicants for exemptions to transport explosives in 
amounts that would otherwise be prohibited for air transportation using 
aircraft with a maximum certificated weight of less than 12,500 pounds. 
The certification requirement is not necessary for flight crews on 
aircraft with a maximum certificated takeoff of 12,500 pounds or more 
because all such individuals are subject to the TSA security 
requirements.
    The May 5, 2003 IFR inadvertently omitted adding the new 
certification requirement for applicants for party status to existing 
exemptions. Therefore, in this final rule we are amending 49 CFR 
107.107 to require applicants seeking to be parties to existing 
exemptions to transport explosives in amounts that would otherwise be 
prohibited for air transportation using aircraft with a maximum 
certificated weight of less than 12,500 pounds to certify that no 
person within the prohibited persons categories listed in 18 U.S.C. 
842(i) will participate in the transportation of the material.

III. IFR Provisions Adopted Without Change

    The May 5, 2003 IFR adopted several provisions designed to assure 
that shippers and carriers comply with security requirements 
promulgated by other Federal agencies, as appropriate. First, the IFR 
amended Sec. 171.12a to require rail and motor carriers transporting 
Class 1 materials from Canada into the United States to comply with TSA 
regulations applicable to such transportation. Second, the IFR added a 
new Sec. 176.7 to require vessel owners and operators to assure that 
vessel personnel are licensed or documented as required under U.S. 
Coast Guard regulations. Third, the IFR amended Sec. 177.804 to require 
motor carriers to comply with driver licensing requirements in the 
Federal Motor Carrier Safety Regulations. No persons commented on these 
provisions. They are adopted without change in this final rule.

IV. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not a significant regulatory action under 
Executive Order 12866 and the regulatory policies or procedures of the 
Department of Transportation (44 FR 11034). This final rule imposes 
minimal new compliance costs on the regulated industry. The self-
certification requirement for certain applicants for exemptions from 
the HMR will apply to one or two applicants each year.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant impact on a substantial number of small entities. This 
final rule imposes minimal new compliance costs on the regulated 
industry. I hereby certify that the requirements of this final rule 
will not have a significant impact on a substantial number of small 
entities.
    This final rule has been developed in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act to ensure that potential impacts of 
draft rules on small entities are properly considered.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
final rule preempts State, local, and Indian tribe requirements but 
does not impose any regulation with substantial direct effects on the 
States, the relationship between the National government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.

D. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final rule 
does not have tribal implications, does not impose substantial direct 
compliance costs on Indian tribal governments, and does not preempt 
tribal law, the funding and consultation requirements of Executive 
Order 13175 do not apply and a tribal summary impact statement is not 
required.

E. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in annual 
costs of $100 million or more, in the aggregate, to any of the 
following: State, local, or Indian tribal governments, or the private 
sector.

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to a collection of information unless it displays a valid OMB 
control number. RSPA has a current information collection approval 
under OMB No. 2137-0051, ``Rulemaking, Exemption, and Preemption 
Requirements'' with 4,219 burden hours, which includes information 
collection estimates for the exemptions application process. The Office 
of Management and Budget approved the extension of this information 
collection on May 16, 2003, with an expiration date of May 31, 2006.

[[Page 6198]]

    We estimate that an application for an exemption requires 5 hours 
to complete. An application to renew an exemption requires one hour to 
complete. The addition of a security certification as part of an 
exemption application will not add any appreciable time to this 
process.
    Requests for a copy of the information collection should be 
directed to Deborah Boothe or T. Glenn Foster, Office of Hazardous 
Materials Standards (DHM-10), Research and Special Programs 
Administration, Room 8102, 400 Seventh Street, SW., Washington, DC 
20590-0001, telephone (202) 366-8553.

G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

H. Environmental Assessment

    There are no significant environmental impacts associated with this 
final rule. It imposes a self-certification requirement for certain 
applicants for exemptions from the HMR.

I. Privacy Act

    Anyone is able to search the electronic form of any written 
communications and comments received into any of our dockets by the 
name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477) or you 
may visit http://dms.dot.gov.

List of Subjects

49 CFR Part 107

    Administrative practice and procedure, Hazardous materials 
transportation, Penalties, Reporting and recordkeeping requirements.

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Reporting and recordkeeping requirements.

49 CFR Part 176

    Hazardous materials transportation, Maritime carriers, Radioactive 
materials, Reporting and recordkeeping requirements.

49 CFR Part 177

    Hazardous materials transportation, Motor carriers, Radioactive 
materials, Reporting and recordkeeping requirements.

0
Accordingly, the interim final rule amending 49 CFR parts 107, 171, 
176, and 177 that was published at 68 FR 23832 on May 5, 2003, is 
adopted as a final rule with the following changes:

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

0
1. The authority citation for part 107 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127, 44701; Section 212-213, Pub. L. 
104-121, 110 Stat. 857; 49 CFR 1.45, 1.53.

0
2. In Sec. 107.105, revise paragraph (c)(10) to read as follows:


Sec. 107.105  Application for exemption.

* * * * *
    (c) * * *
    (10) When a Class 1 material is forbidden for transportation by 
aircraft except under an exemption (see Columns 9A and 9B in the table 
in 49 CFR 172.101), an applicant for an exemption to transport such 
Class 1 material on passenger-carrying or cargo-only aircraft with a 
maximum certificated takeoff weight of less than 12,500 pounds must 
certify that no person within the categories listed in 18 U.S.C. 842(i) 
will participate in the transportation of the Class 1 material.
* * * * *

0
3. In Sec. 107.107, revise paragraphs (b)(3) and (b)(4) and add 
paragraph (b)(5), to read as follows:


Sec. 107.107  Application for party status.

* * * * *
    (b) * * *
    (3) State the name, street and mailing addresses, e-mail address 
(optional), and telephone number of the applicant; if the applicant is 
not an individual, state the name, street and mailing addresses, e-mail 
address (optional), and telephone number of an individual designated as 
the applicant's agent for all purposes related to the application;
    (4) If the applicant is not a resident of the United States, 
provide a designation of agent for service in accordance with Sec. 
105.40 of this subchapter; and
    (5) For a Class 1 material that is forbidden for transportation by 
aircraft except under an exemption (see Columns 9A and 9B in the table 
in 49 CFR 172.101), an applicant for party status to an exemption to 
transport such Class 1 material on passenger-carrying or cargo-only 
aircraft with a maximum certificated takeoff weight of less than 12,500 
pounds must certify that no person within the categories listed in 18 
U.S.C. 842(i) will participate in the transportation of the Class 1 
material.
* * * * *

0
4. In Sec. 107.109, revise paragraph (a)(6) to read as follows:


Sec. 107.109  Application for renewal.

    (a) * * *
    (6) When a Class 1 material is forbidden for transportation by 
aircraft except under an exemption (see Columns 9A and 9B in the table 
in 49 CFR 172.101), an applicant to renew an exemption to transport 
such Class 1 material on passenger-carrying or cargo-only aircraft with 
a maximum certificated takeoff weight of less than 12,500 pounds must 
certify that no person within the categories listed in 18 U.S.C. 842(i) 
will participate in the transportation of the Class 1 material.
* * * * *

    Issued in Washington DC on February 3, 2004, under authority 
delegated in 49 CFR Part 1.
Samuel G. Bonasso,
Deputy Administrator, Research and Special Programs Administration.
[FR Doc. 04-2751 Filed 2-9-04; 8:45 am]
BILLING CODE 4910-60-U