[Federal Register Volume 69, Number 157 (Monday, August 16, 2004)]
[Notices]
[Pages 50988-50994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18705]



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Part IV





Department of Transportation





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Research and Special Programs Administration



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Department of Homeland Security





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Transportation Security Administration



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Hazardous Materials: Enhancing Rail Transportation Security for Toxic 
Inhalation Hazard Materials; Notices

  Federal Register / Vol. 69, No. 157 / Monday, August 16, 2004 / 
Notices  

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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

[Docket No. RSPA-2004-18730]
RIN 2137-AE02


Hazardous Materials: Enhancing Rail Transportation Security for 
Toxic Inhalation Hazard Materials

AGENCY: Research and Special Programs Administration (RSPA), Department 
of Transportation; and Transportation Security Administration, 
Department of Homeland Security.

ACTION: Notice; request for comments.

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SUMMARY: The Department of Transportation (DOT) and the Department of 
Homeland Security (DHS) are examining the need for enhanced security 
requirements for the rail transportation of hazardous materials that 
pose a toxic inhalation hazard. The two departments are seeking 
comments on the feasibility of initiating specific security 
enhancements and the potential costs and benefits of doing so. Security 
measures being considered include improvements to security plans, 
modification of methods used to identify shipments, enhanced 
requirements for temporary storage, strengthened tank car integrity, 
and implementation of tracking and communication systems.

DATES: Submit comments by October 18, 2004. To the extent possible, we 
will consider late-filed comments as we make decisions on the issues 
addressed in this notice.

ADDRESSES: You may submit comments identified by the docket number 
RSPA-04-18730 by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management System; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001. If sent by mail, comments are to be submitted 
in two copies. Persons wishing to receive confirmation of receipt of 
their comments should include a self-addressed stamped postcard.
     Hand Delivery: Docket Management System; Room PL-401 on 
the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: You must include the agency name and docket number 
RSPA-04-18730 for this notice at the beginning of your comment. 
Internet users may access comments received by DOT at http://dms.dot.gov.. Note that comments received may be posted without change 
to http://dms.dot.gov including any personal information provided. 
Please see the Privacy Act section of this document. All comments 
should be sent to the Docket Management System. Comments or portions of 
comments that include trade secrets, confidential commercial or 
financial information, or sensitive security information will not be 
posted in the public docket. Such information will be placed in a 
separate file to which the public does not have access, and a note will 
be placed in the public docket to state that the agency has received 
such materials from the commenter. RSPA and TSA have established a 
procedure to review all comments prior to placement in the public 
docket. See Submission of Comments section of this document for 
information on the steps you should take if you believe your comments 
or portions of your comments contain trade secrets, confidential 
information, or sensitive security information that should be 
protected.
    Docket: You may view the public docket through the Internet at 
http://dms.dot.gov or in person at the Docket Management System office 
at the above address.

FOR FURTHER INFORMATION CONTACT: Susan Gorsky, (202) 366-8553, Office 
of Hazardous Materials Standards, Research and Special Programs 
Administration; Donna O'Berry, (202) 366-4400, Office of the Chief 
Counsel, Research and Special Programs Administration; Steve Rybicki, 
Maritime and Land Security, Transportation Security Administration, 
telephone (571) 227-3606; e-mail: [email protected]; or David H. 
Kasminoff, Office of Chief Counsel, TSA-2, Transportation Security 
Administration, telephone (571) 227-3583, e-mail: 
[email protected]. 

SUPPLEMENTARY INFORMATION:

I. Background

    Under the Hazardous Materials Regulations (HMR; 49 CFR parts 171-
180), toxic inhalation hazard materials (TIH materials) are gases or 
liquids that are known or presumed on the basis of tests to be so toxic 
to humans as to pose a hazard to health in the event of a release 
during transportation. See 49 CFR 171.8, 173.115, and 173.132. TIH 
materials pose special risks during transportation because their 
uncontrolled release can endanger significant numbers of people. To 
assure their safe and secure transportation, TIH materials are among 
the most stringently regulated hazardous materials. TIH materials play 
a vital role in our society, including purifying water supplies, 
fertilizing crops, providing fundamental components in manufacturing, 
and fueling the space shuttle.
    The same characteristics of TIH materials that cause concern in the 
event of an accidental release also make them attractive targets for 
terrorism or sabotage. About 10 million tons of TIH materials are 
shipped by rail in the United States every year. While this is only a 
fraction of the 3.1 billion tons of hazardous materials shipped 
annually by all modes of transportation, a terrorist attack against the 
rail transportation of TIH materials in an urbanized area could 
endanger significant numbers of people. Improving the security of these 
shipments presents complex challenges.
    Under the Aviation and Transportation Security Act (ATSA), Pub. L. 
107-71, 115 Stat. 597 (November 19, 2001), and delegated authority from 
the Secretary of Homeland Security, the TSA Assistant Secretary has 
broad responsibility and authority for ``security in all modes of 
transportation * * *'' \1\ In executing those responsibilities and 
duties, the Assistant Secretary is empowered, among other things, to:
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    \1\ 49 U.S.C. 114(d). The TSA Assistant Secretary's current 
authorities under ATSA have been delegated to him by the Secretary 
of Homeland Security. Under Section 403(2) of the Homeland Security 
Act of 2002, Pub. L. 107-296, 116 Stat. 2315 (2002) (HSA), all 
functions of TSA, including those of the Secretary of Transportation 
and the Undersecretary of Transportation of Security related to TSA, 
transferred to the Secretary of Homeland Security. Pursuant to DHS 
Delegation Number 7060.2, the Secretary delegated to the Assistant 
Secretary) then referred to as the Administrator of TSA), subject to 
the Secretary's guidance and control, the authority vested in the 
Secretary respecting TSA, including that in Section 403(2) of the 
HSA.
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    (1) Assess threats to transportation, 49 U.S.C. 114(f)(2);
    (2) Develop policies, strategies and plans for dealing with threats 
to transportation, 49 U.S.C. 114(f)(3);
    (3) Make other plans related to transportation security, including 
coordinating countermeasures with

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appropriate departments, agencies, and instrumentalities of the United 
States Government, 49 U.S.C. 114(f)(4);
    (4) Enforce security-related regulations and requirements, 49 
U.S.C. 114(f)(7);
    (5) Oversee the implementation, and ensure the adequacy, of 
security measures at airports and other transportation facilities, 49 
U.S.C. 114(f)(11); and
    (6) Issue, rescind, and revise such regulations, including issuing 
regulations and security directives without notice or comment or prior 
approval of the Secretary, as are necessary to carry out TSA functions, 
49 U.S.C. 114(l)(1) and (2).
    In sum, the TSA Assistant Secretary's authority with respect to 
transportation security is comprehensive and supported with specific 
powers related to the development and enforcement of security plans, 
regulations, and other requirements. Accordingly, under this authority, 
the Assistant Secretary may identify a security threat to a mode of 
transportation, develop a measure for dealing with that threat, and 
enforce compliance with that measure.
    The HMR are promulgated under the mandate in section 5103(b) of 
Federal hazardous materials transportation law (Federal hazmat law; 49 
U.S.C. 5101 et seq., as amended by Sec.  1711 of the Homeland Security 
Act of 2002, Pub. L. 107-296) that the Secretary of Transportation 
``prescribe regulations for the safe transportation, including 
security, of hazardous material in intrastate, interstate, and foreign 
commerce.'' Section 5103(b)(1)(B) provides that the HMR ``shall govern 
safety aspects, including security, of the transportation of hazardous 
material the Secretary considers appropriate.''
    As is evident from the above discussion, DHS and DOT share 
responsibility for hazardous materials transportation security. The two 
agencies consult and coordinate concerning security-related hazardous 
materials transportation requirements to assure that they are 
consistent with the overall security policy goals and objectives 
established by DHS and that the regulated industry is not confronted 
with inconsistent security regulations promulgated by multiple 
agencies.

II. Current Security Requirements

    On March 25, 2003, RSPA published a final rule under Docket No. 
RSPA-02-12064 (HM-232; 68 FR 14510). The final rule added a new Subpart 
I to Part 172 of the HMR to require 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. The final rule also included new security awareness 
training requirements for all hazardous materials employees (hazmat 
employees) and in-depth security training requirements for hazmat 
employees of persons required to develop and implement security plans.
    The security plan regulations adopted under HM-232 require persons 
who offer for transportation or transport the following hazardous 
materials to develop and implement security plans:
    (1) Materials, including TIH materials, that must be placarded 
under the HMR;
    (2) Shipments in bulk packagings 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; and
    (3) Infectious substances listed as select agents by the Centers 
for Disease Control and Prevention (CDC) in 42 CFR part 73.
    In accordance with Subpart I of Part 172 of the HMR, then, persons 
who offer for transportation or transport TIH materials in commerce 
must develop and implement security plans. The security plan must 
include an assessment of possible transportation security risks and 
appropriate measures to address the assessed risks. Specific measures 
implemented as part of the plan may vary commensurate with the level of 
threat at a particular time. At a minimum, the security plan must 
address personnel security, unauthorized access, and en route security. 
For personnel security, the plan must include measures to confirm 
information provided by job applicants for positions that involve 
access to and handling of the hazardous materials covered by the plan. 
For unauthorized access, the plan must include measures to address the 
risk that unauthorized persons may gain access to materials or 
transport conveyances being prepared for transportation. For en route 
security, the plan must include measures to address security risks 
during transportation, including shipments stored temporarily en route 
to their destinations.

III. Purpose of This Notice

    RSPA and the Federal Railroad Administration (FRA) of the 
Department of Transportation (DOT) and TSA and the Information Analysis 
and Infrastructure Protection Directorate (IAIP) of DHS are considering 
measures to enhance the security of rail shipments of TIH materials. We 
are examining security issues related to security plans, including 
obscuring the visibility of TIH cargoes, temporary storage of TIH 
materials in rail tank cars, tank car integrity, and tracking and 
communications. RSPA, FRA, IAIP, and TSA developed this notice to 
solicit information from the regulated community, state and local 
governments, emergency responders, and the public on the feasibility of 
adopting new security measures and potential impact of the measures 
being considered on the transportation industry and the U.S. economy as 
a whole.
    DOT and DHS are highly cognizant that the transport of TIH 
materials is not limited to rail. Currently, TIH is also transported 
via highway, pipeline and maritime. DOT and DHS's focus on rail is only 
the first phase in a interdepartmental multiphase effort to assess and 
secure the transportation of TIH in all transportation modes to create 
an end-to-end secure TIH supply chain.

A. Security Plans

    As indicated above, shipments of TIH materials are subject to the 
security plan requirements in Subpart I of Part 172 of the HMR. Each 
person who offers or transports TIH materials must develop and 
implement a security plan that covers personnel security, unauthorized 
access, and en route security. The HMR requirement for a security plan 
sets forth general requirements for a security plan's components rather 
than a prescriptive list of specific items that must be included. The 
regulation sets a performance standard that provides shippers and 
carriers with the flexibility necessary to develop plans that address 
their individual circumstances and operational environment. 
Accordingly, each security plan will differ because it will be based on 
a company's individualized assessment of the security risks associated 
with the specific materials it ships or transports and its unique 
circumstances and operational environment.
    Shippers and carriers were required to have security plans in place 
by September 25, 2003. To assist the industry to comply with the 
security plan requirements, RSPA developed a security plan template to 
illustrate how risk management methodology can be used to identify 
points in the transportation process where security procedures should 
be enhanced within the context of an overall risk management strategy. 
The security template is posted in the docket and on the RSPA Web site 
at http://hazmat.dot.gov/rmsef.htm. In addition, a number of industry 
groups and associations have developed guidance material to assist 
their members to develop appropriate security plans.

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    DOT and DHS are interested in determining how these security plans 
might be improved, particularly as they relate to TIH materials. DHS, 
using its expertise in security matters and working with DOT, including 
RSPA and FRA, is considering specific criteria for these security plans 
to adequately address the security risks to TIH materials. DHS is also 
willing to review security plans to ensure that they properly address 
these criteria. RSPA is considering revising its security plan rule to 
incorporate the DHS criteria for TIH materials and establish a process 
by which DHS would review the security plans of TIH transporters and 
shippers. DOT and DHS (RSPA, FRA, IAIP, TSA) are considering ways to 
improve compliance with the RSPA rule, both as currently written and as 
it may be revised.
    In this notice, we are seeking information from shippers and 
carriers concerning the process by which their security plans were 
developed, including any problems encountered during either the 
drafting or implementation phase, recommended ``best practices,'' and 
any additional guidance or assistance that may be appropriate. In 
addressing these issues, commenters may wish to consider the following 
questions:
    1. What methodology was used to develop your security plan? Did you 
rely in whole or in part on guidance material provided by DOT or the 
industry (e.g., the American Chemistry Council, the Chlorine Institute, 
the Association of American Railroads)? How helpful were the materials 
you utilized? Should DOT/DHS work with the industry to develop model 
security plans or ``best practices'' for shippers and transporters of 
TIH materials?
    2. Can the methodology that you utilized to develop your security 
plan be applied generally to some or all shipments of TIH materials? 
Are there specific measures you have implemented that you would 
recommend for other shippers/carriers of TIH materials?
    3. Does your security plan include ``layered'' measures that are 
tied to specific threat levels? How are these implemented? What 
difficulties have you experienced in developing such ``layered'' 
measures? Would more definitive guidance from DOT/DHS be helpful?
    4. Have you assessed the effectiveness of different types of 
security measures implemented as part of your security plan? If so, 
what types of measures did you use and how did you make the assessment?
    5. Would it be useful if DOT/DHS provided general guidelines or 
standards for security measures that would normally be expected for TIH 
shipments while allowing tailoring for individual circumstances or 
operational environments? What would be the impact of requiring company 
certification that these guidelines or required standards are achieved?
    6. Should DOT/DHS require submission of security plans for TIH 
shipments by rail for review and approval to ensure that the plans are 
adequate?

    Note: DOT and DHS recognize that company security plans may 
contain sensitive information describing newly adopted security 
measures, and that unregulated public dissemination of the 
information could defeat these measures. In the event DOT and DHS 
decide to require companies to submit their security plans, a 
determination as to whether the information would be covered by 
regulations governing the protection of sensitive security 
information (SSI) (see 49 CFR parts 15 and 1520) would be made at 
that time.

B. Identification of Materials and Hazard Communication

    Because of concerns about the potential use of TIH materials as 
weapons of opportunity or weapons of mass destruction, DOT and DHS are 
considering whether to require the removal from rail tank cars used to 
transport TIH materials of identifying marks, names, stenciling, 
placards, or other markings that could help a terrorist or criminal 
identify a target. Shippers and transporters of TIH material use a 
variety of methods to identify the materials contained inside a rail 
tank car and to communicate the hazard of the material to emergency 
responders and transport workers. In addition to the hazard 
communication requirements of the HMR (see discussion below), shippers 
may paint rail tank cars in distinctive colors or patterns to reduce or 
eliminate the possibility of mishandling the tank car during 
transportation or in an emergency. Further, shippers may print the name 
of their company on their rail tank cars; in many instances, the 
company name can be used to deduce the contents of the tank cars.
    In addition to voluntary measures employed by shippers of TIH 
materials, hazard communication is accomplished using the shipping 
documents, placards, and markings required under the HMR. In accordance 
with subpart C of part 172 of the HMR, shipments of TIH materials must 
be accompanied by appropriate shipping documentation. A shipping paper 
must include the material's proper shipping name, hazard class, UN 
identification number, and packing group number, and the total quantity 
of the material being shipped (see Sec.  172.202 of the HMR). The 
shipping paper helps transport workers and emergency responders 
identify the material and assess its hazard. The shipping paper must 
include an emergency response telephone number for use in the event of 
an emergency involving the hazardous material. The number must be for a 
person who is knowledgeable about the material and has comprehensive 
emergency response and incident mitigation information for that 
material (see Sec.  172.604 of the HMR). In addition, the shipping 
documentation for a specific hazardous materials shipment must include 
emergency response information that can be used by emergency responders 
in the mitigation of an incident involving the material (see Sec.  
172.602 of the HMR).
    Placards use colors, symbols, numbers, and text to quickly 
communicate the hazard of a specific material. Currently, all rail 
shipments of TIH materials must be placarded in accordance with subpart 
F of part 172 of the HMR. The primary function of placards is to 
provide initial warning information in the event of an emergency or 
accident involving a shipment of hazardous materials. Placards provide 
first-on-scene emergency responders with the information necessary to 
quickly assess an accident situation from a distance, reducing the 
possibility of someone approaching the accident site without wearing 
protective clothing or equipment. Firefighters, police, and other 
responders can thus avoid unnecessary exposure to dangerous, perhaps 
life-threatening, material. In addition, placards provide emergency 
response personnel with the information necessary to determine whether 
there is a need to evacuate persons in the vicinity of an accident. 
Further, placards indicate to emergency responders how to safely and 
appropriately manage the accident, mitigate the threat of environmental 
damage, and conduct life-saving operations. In addition to providing 
critical information to emergency response personnel, placards identify 
hazardous shipments for transport workers and assure that they are 
handled safely and efficiently throughout the transportation process. 
For example, the regulations applicable to rail carriers in part 174 of 
the HMR include specific handling requirements for placarded railcars, 
including their placement in a train car sequence,

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separation of tank cars containing incompatible materials, and special 
procedures for switching operations. The regulations also include 
specific operational controls for placarded freight containers that 
help to assure safe handling by transport workers during 
transportation. In addition, by Congressional mandate, the Occupational 
Safety and Health Administration regulations applicable to facilities 
that manufacture and handle hazardous materials require placards to 
remain on rail cars or motor vehicles loaded with hazardous materials 
and stored at the facility after delivery and prior to unloading.
    In addition to placards, rail tank cars loaded with TIH materials 
are required to have certain identifying markings. As with placards, 
these markings provide initial warning information in the event of an 
emergency or accident involving a shipment of hazardous materials and 
alert transport workers to the presence of a TIH chemical in a specific 
shipment, assuring that the shipment is handled safely and in 
conformance with regulatory requirements. For example, packages of TIH 
materials, such as cylinders, portable tanks, cargo tanks, and rail 
tank cars, must be marked ``INHALATION HAZARD'' (see Sec.  172.313(a)); 
marked with a 4-digit UN identification number (see Sec. Sec.  172.301, 
172.302); and marked with the proper shipping name of the material (see 
Sec. Sec.  172.326, 172.328, and 172.330). Tank cars are also marked 
with a code related to the specification to which they were built. TIH 
materials are typically required to be transported in certain high 
integrity tank cars.
    On January 15, 2003, RSPA completed a study of the role placards 
play for transportation safety and security. (The study can be found on 
our Web site at http://hazmat.dot.gov/pubtrain/0803RedactedPlacardingReportSSI.pdf and will be placed in the docket 
established to receive comments to this notice.) The study reviewed the 
use of placards to enhance hazardous materials transportation safety 
and evaluated both operational and technological alternatives to 
placarding. The study concluded that the existing placarding system 
should be retained, but that DOT should continue to review the use of 
operational procedures and technological developments as security 
enhancements and as alternatives to placards in specific high-risk 
situations as well as for broad application. In considering potential 
changes to the placarding requirements as part of its continuing 
review, the study further concluded that DOT should consider the impact 
on costs, training, and international trade that could result from 
changes in the current placarding requirements.
    In addition, DHS is conducting a study to examine alternative 
methods for communicating the hazards of hazardous materials 
transported in rail tank cars. The study will identify up to ten 
alternative methods to rail car placarding. The evaluation of the 
alternatives will include: (1) Technical considerations (i.e., the 
speed and accuracy of the identification of a specific hazardous 
material by first responders and system interoperability with systems 
currently in use by the emergency response community); (2) 
international considerations (i.e., the impact on international rail 
transportation from the United States to Canada and Mexico); (3) costs 
(i.e., installation, start-up, and system maintenance costs, as well as 
the costs to train the users, showing particular consideration for 
small urban and rural volunteer first responders); and (4) speed (i.e., 
the time required to train first responders to use the new technology). 
DHS expects to complete the study by the end of 2004.
    We encourage commenters to address the potential impacts associated 
with removing placards and identifying marks from rail tank cars and 
replacing them with some other hazard communication system. In 
particular, we invite commenters to address the following questions:
    1. Should identifying marks, such as distinctive paint colors or 
patterns and company names, be prohibited? What would be the practical 
impact of such a prohibition?
    2. If placards and other identifying marks are removed from rail 
tank cars transporting TIH materials, are there alternative operational 
procedures or systems that could simply and effectively communicate the 
hazards of the material to emergency response personnel and transport 
workers? What are the advantages and disadvantages of the alternative 
procedures or systems? What costs would be associated with development 
and implementation of such alternative procedures or systems? What 
security benefits would be associated with each?
    3. If alternative procedures or systems are considered that would 
allow removal of placards and other identifying marks from rail tank 
cars transporting TIH materials, what should the criteria be for 
balancing safety and security considerations and demonstrating that 
these procedures and systems are viable, practical, and workable? How 
secure would such systems be? Do these systems have the potential to be 
used maliciously to identify shipments and locations for attack? How 
can malicious use of such systems be prevented?
    4. What are the impacts on emergency response of a significant 
change in the way the TIH hazard is communicated? How many emergency 
responders would be affected? What are the cost implications to the 
emergency response community of a change in current hazard 
communication requirements, including costs for new equipment and 
retraining?
    5. What are the impacts for transportation workers of a significant 
change in the way the TIH hazard is communicated? Do shipping documents 
provide sufficient information to enable transportation workers to 
safely handle TIH materials during the course of transportation or 
would some additional hazard communication mechanism be necessary? What 
are the cost implications to shippers and carriers of a change in 
current hazard communication requirements, including costs for new 
equipment and retraining?
    6. Placards depict a hazard type. There are a wide range of 
materials that may be identified with a similar placard, yet not all of 
the materials will pose the same security risk. Should DOT/DHS consider 
the removal of more specific identifying marks on rail tanks cars 
carrying TIH materials, but leave placards in place? What are the 
implications for emergency responders of such an approach?
    7. Placards are part of an internationally recognized system for 
communicating the hazards of specific materials in transportation. What 
are the potential impacts on international transportation of TIH 
materials of a change to U.S. requirements for communicating the TIH 
hazard?
    In addition, commenters are invited to review the DOT placarding 
study and comment on its conclusions concernng operational and 
technological alternatives to placarding and its overall conclusion 
that the existing placarding system should be retained.

C. Temporary Storage of TIH Materials in Rail Tank Cars

    Rail tank cars carrying TIH materials may be stored temporarily at 
rail yards or other facilities prior to their ultimate delivery. The 
HMR apply to hazardous materials shipments stored temporarily between 
the time the shipment is accepted for transportation by a carrier until 
the time the shipment is delivered to its destination. Such storage is 
termed ``storage incidental to movement.'' Hazardous materials stored 
incidental to movement are subject to specific HMR

[[Page 50992]]

requirements applicable to such storage. For example, such hazardous 
materials must be accompanied at all times by appropriate shipping 
documentation, including emergency response information and an 
emergency response telephone number in accordance with subparts C and G 
of part 172. Further, package markings, labels, or placards required 
under subparts D, E, and F of part 172 must remain on the packages or 
transport vehicles throughout the time that they are stored incidental 
to movement. In addition, hazardous materials stored incidental to 
movement are subject to the requirements for security plans in subpart 
I of part 172. However, the HMR do not currently address the amounts or 
types of hazardous materials that may be stored at one time in one 
location nor do the HMR limit the time that hazardous materials may be 
stored incidental to movement.
    DOT and DHS are currently considering whether revisions to the 
temporary storage requirements applicable to rail cars transporting TIH 
materials are appropriate. Commenters are invited to address whether 
such revisions are appropriate and the impact such revisions could have 
on the costs to transport TIH materials in addition to the impact on 
recipients and users (i.e., towns, municipalities). Commenters should 
provide information related to the following specific questions:
    1. Are current security requirements applicable to the temporary 
storage of TIH materials sufficient? If not, what additional 
requirements should be considered?
    2. Should DOT/DHS consider limits on the amount of TIH materials 
that may be stored temporarily in a single location? If so, how should 
such a limit be derived? Should a limit take into consideration the 
type and location of facility at which the materials are stored and the 
security features in place at the facility? How would such an 
aggregation limit affect the transportation of TIH materials, including 
transportation costs?
    3. Should DOT/DHS consider limits on the length of time that TIH 
materials could be stored temporarily in a single location? If so, how 
should such a time limit be derived? How would such a time limit affect 
the transportation of TIH materials, including transportation costs?
    4. Should DOT/DHS develop specific criteria for facilities at which 
TIH materials may be stored temporarily (e.g., fencing, lighting, 
restricted access, security personnel, remote monitoring, and the 
like)? If so, what specific features would result in the greatest 
security benefit? Would a requirement for specific security features 
limit the availability of facilities at which TIH materials could be 
stored temporarily during transportation? If so, identify which 
features would limit availability and explain what the impact would be 
on the transportation of TIH materials, including transportation costs.
    5. Is it feasible to prohibit the temporary storage of rail tank 
cars carrying TIH materials in high-population areas or in response to 
specific threats or threat levels? What impact would such a prohibition 
have on the transportation and use of TIH materials?
    6. Would requirements for expedited handling and delivery of TIH 
rail cars serve as a feasible alternative method to limit or reduce 
temporary storage? If so, how should ``expedited handling and 
delivery'' be defined? What would be the costs and benefits of a 
requirement for expedited handling and delivery? What actions can or 
should the Federal government take to facilitate expedited handling and 
delivery of TIH rail cars?

D. Tank Car Integrity

    The first railroad tank car standards were developed by the 
railroad industry in 1903. Current regulatory requirements for the 
design and construction of railroad tank car tanks are in Part 179 of 
the HMR. Part 179 prescribes the specifications for tanks that are to 
be mounted on or form part of a tank car and that are used for the 
transportation of hazardous materials in commerce. The Association of 
American Railroads Tank Car Committee (AAR TCC) is an industry group 
that is comprised of railroads, shippers, and tank car builders. The 
AAR TCC reviews and approves tank car designs, tank car facilities, and 
quality assurance programs. This authority is given to the AAR TCC by 
RSPA in Part 179 of the HMR. The AAR TCC publishes the M-1002 Manual of 
Standards and Recommended Practices, which is incorporated by reference 
in the HMR.
    Rail tank cars used to transport TIH materials must meet rigorous 
design and construction standards and must be thoroughly inspected and 
tested on a regular basis to assure that the integrity of the tank car 
is maintained with no deterioration. The design, construction, and 
maintenance standards help to ensure that a rail tank car can withstand 
most accident situations, including collisions and derailments, with no 
release of its contents.
    DOT and DHS are considering whether rail tank cars used to 
transport TIH materials should be modified to enhance shipment 
security. Modifications could include relatively simple measures to 
prevent tampering with valves and other accessories to more fundamental 
revisions to basic designs or materials of construction that would 
enable the tank car to withstand a terrorist attack. Commenters are 
encouraged to address the following questions applicable to rail tank 
car integrity:
    1. Are devices commercially available that could be easily 
installed on rail tank cars to prevent access by unauthorized persons 
to the contents of the tank car? Are such devices currently in use in 
the rail industry? How effective are such devices? What costs are 
associated with the installation of such devices in addition to the 
cost of the devices themselves--labor costs for installation, time out-
of-service for the tank car, etc? Please provide the bases for cost 
information.
    2. What are the current capabilities of rail tank cars carrying TIH 
materials to survive a terrorist attack? What types of attacks would be 
survivable? What types of attacks should be survivable? What tests have 
been conducted or should be conducted to determine these capabilities?
    3. What technology is currently available that would strengthen 
rail tank cars to withstand or mitigate the effects of a terrorist 
attack? What types of attacks would the technology protect against? 
Would fundamental redesign of rail tank cars be necessary or could 
effective modifications be accomplished through changes in construction 
methods or materials? Would the technology or modifications be 
applicable to retrofit applications as well as new construction? What 
types of research and development need to be conducted in conjunction 
with answering questions related to strengthening rail tank car design? 
Are there technologies developed for other purposes, such as tank car 
leak or breach protection, that could play a significant role in 
enhancing security for TIH materials in addition to or in place of 
strengthening rail tank cars to withstand or mitigate the effects of a 
terrorist attack?
    4. What are the costs and benefits of modifying rail tank cars used 
to transport TIH materials to increase the likelihood that they could 
withstand or mitigate the effects of a terrorist attack? How many tank 
cars would be affected? Over what period of time could such 
modifications be accomplished? What would be the impact of such a 
program on the transportation and use of TIH materials? In responding 
to these questions, please identify specific

[[Page 50993]]

modifications. Please provide the bases for cost and benefit 
information.

E. Communication and Tracking

    Radio frequency identification (RFID) tags are small electronic 
devices designed to contain information that can be retrieved at a 
distance using a specialized reader. The railroad industry uses a rail 
car and locomotive tracking system that employs RFID tags (known in the 
industry as Automatic Equipment Identification (AEI) tags) on every 
freight car and locomotive in the United States and Canada. Railroads 
use AEI information for confirming train consists and are beginning to 
use the AEI information to identify specific cars that have been 
flagged by wayside equipment defect detectors. AEI tagging is the 
industry standard for rail cars.
    Tracking and other types of communications systems enable carriers 
to monitor a shipment while en route to its destination and to identify 
various service irregularities. Some types of tracking systems employ 
Global Positioning System (GPS) or GPS-type positioning information and 
coded or text messaging transmitted over a terrestrial communications 
system. The railroad industry and FRA are cooperating on the 
development of Positive Train Control (PTC) systems. PTC systems 
include digital data link communications networks, positioning systems, 
on-board computers with digitized maps and in-cab displays, throttle-
brake interfaces on locomotives, wayside interface units, and control 
center computers and displays. PTC systems can track the precise 
location of all trains and the individual cars that make up the train 
and will be capable of remote intervention with train operations. In 
addition, DHS is currently evaluating the feasibility, costs, and 
benefits of proposals to develop certain communication and tracking 
capabilities for rail hazardous materials shipments.
    The HMR currently do not include communication or tracking 
requirements for hazardous materials shipments. Offerors and 
transporters of TIH materials may elect to implement communication or 
tracking measures as part of security plans developed in accordance 
with Subpart I of Part 172 of the HMR, but such measures are not 
mandatory.
    DOT and DHS are considering whether communication or tracking 
requirements should be required for rail shipments of TIH materials, 
such as near real-time satellite tracking of TIH rail cars and real-
time monitoring of tank car or track conditions. In addition, DOT and 
DHS are considering reporting requirements in the event that TIH 
shipments are not delivered within specified time periods. We invite 
commenters to address communication and shipment tracking issues 
associated with enhanced shipment security and, specifically, to 
consider the following questions:
    1. Do rail carriers currently employ other communications or 
tracking technology for rail shipments? What are the practical 
limitations of such systems? Can tracking systems be activated from 
remote locations? Is it feasible to employ such systems only for 
certain shipments or certain cars? How are such systems affected by 
power outages, interference, weather and geographic phenomena, or 
communications outages? Are there distances beyond which a 
communications or tracking system will not function? Are there safety 
or productivity benefits associated with the use of communications and 
tracking technology that would help offset costs?
    2. Is the current system of Automatic Equipment Identification 
(AEI) tags and readers installed by railroads, coupled with data on the 
consist of trains, adaptable for wider use by government and industry 
in determining the approximate real-time location of TIH rail cars? How 
reliable and how accurate is rail car location information collected by 
the current system for such an application? More generally, how 
significant is tracking to enhancing security and what degree of 
tracking accuracy is optimal?
    3. Is it feasible to employ small, self-contained tracking systems 
on certain shipments or certain cars that provide positioning/status 
information only when queried from a remote location, or based on an 
event ``tripping'' a sensor? Is it feasible to employ subordinate 
sensor equipment on shipments or cars that can communicate with a 
tracking system located on a locomotive at distances potentially in 
excess of 1,000 feet?
    4. How secure are satellite tracking and similar systems? How do 
rail carriers ensure that only authorized personnel have access to such 
information? Do these systems have the potential to be used maliciously 
to identify shipments and locations for attack? How can malicious use 
of such systems be prevented?
    5. Do or should shippers continuously monitor TIH rail car 
locations while they are in transportation? How do rail shippers and 
carriers currently address problems associated with missing or 
undelivered shipments? Should DOT/DHS mandate pre-shipment coordination 
among shippers, carriers, and consignees? Should DOT/DHS mandate a 
reporting or notification system for TIH chemical shipments that are 
not delivered within an agreed-upon timeframe? Could such a reporting 
or notification system be integrated into current industry programs and 
practices for handling overdue shipments?
    6. Are there measures or incentives that may be appropriate to 
consider in promoting technology development and adoption in 
conjunction with or separate from regulatory requirements?

F. Additional Issues

    There are a number of additional issues that DOT and DHS will 
consider 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 in the event we determine that rulemaking is 
appropriate:
    Executive Order 12866: Regulatory Planning and Review. E.O. 12866 
requires agencies to regulate in the ``most cost-effective manner,'' to 
make a ``reasoned determination that the benefits of the intended 
regulation justify its costs,'' and to develop regulations that 
``impose the least burden on society.'' We therefore request comments, 
including specific data if possible, concerning the costs and benefits 
that may be associated with adoption of specific security requirements 
for rail shipments of TIH materials. A rule that is considered 
significant under E.O. 12866 must be reviewed and cleared by the Office 
of Management and Budget before it can be issued.
    Executive Order 13132: Federalism. E.O. 13132 requires agencies to 
assure meaningful and timely input by state and local officials in the 
development of regulatory policies that may have a substantial, direct 
effect on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government. We invite 
state and local governments with an interest in this rulemaking to 
comment on the effect that adoption of specific security requirements 
for rail shipments of TIH materials may have on state or local safety 
or security programs.
    Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments. E.O. 13175 requires agencies to assure meaningful 
and timely input from Indian tribal government representatives in the 
development of rules that ``significantly or uniquely affect'' Indian 
communities

[[Page 50994]]

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 rail 
shipments of TIH materials may have on Indian communities.
    Regulatory Flexibility Act. Under the Regulatory Flexibility Act of 
1980 (5 U.S.C. 601 et seq.), we must consider whether a proposed rule 
would have a significant economic impact on a substantial number of 
small entities. ``Small entities'' include small businesses, not-for-
profit organizations that are independently owned and operated and are 
not dominant in their fields, and governmental jurisdictions with 
populations under 50,000. If you believe that adoption of specific 
security requirements for rail shipments of TIH materials could have a 
significant economic impact on small entities, please provide 
information on such impacts.

IV. Submission of Comments

    All comments should be sent to DOT's Docket Management System 
(DMS). However, comments or those portions of comments that RSPA and 
TSA have determined to include trade secrets, confidential commercial 
information, or sensitive security information (SSI) will not be placed 
in the public docket and will be handled separately.
    If you believe that your comments contain trade secrets, 
confidential commercial information, or SSI, those comments or the 
relevant portions of those comments should be appropriately marked so 
that RSPA and TSA may make a determination. RSPA procedures in 49 CFR 
part 105 establish a mechanism by which commenters may request 
confidentiality. In accordance with 49 CFR 105.30, you may ask RSPA to 
keep information confidential using the following procedures: (1) Mark 
``confidential'' on each page of the original document you would like 
to keep confidential; (2) send DMS both the original document and a 
second copy of the original document with the confidential information 
deleted; and (3) explain why the information is confidential (e.g., 
trade secret, confidential commercial information, SSI). In your 
explanation, you should provide enough information to enable a 
determination to be made as to whether the information provided is 
protected by law and must be handled separately.
    In addition, for comments or portions of comments that you believe 
contain SSI as defined in 49 CFR 15.7, you should comply with TSA and 
DOT regulations governing the restrictions on the disclosure of 
sensitive security information. See 49 CFR 1520.9 and 49 CFR 15.9, 
Restrictions on the disclosure of sensitive security information. For 
example, these sections restrict the sharing of SSI to those with a 
need to know, set out the requirement to mark the information as 
sensitive security information, and address how the information should 
be disposed. Note also that when mailing in or using a special delivery 
service to send comments that contain sensitive security information, 
comments should be wrapped in a manner that prevents the information 
from being read.
    After reviewing your request for confidentiality and the 
information provided, RSPA and TSA will analyze applicable laws and 
regulations to decide whether to treat the information as confidential. 
RSPA and TSA will notify you of the decision to grant or deny 
confidentiality. If RSPA and TSA deny confidentiality, you will be 
provided an opportunity to respond to the denial before the information 
is publicly disclosed. RSPA and TSA will reconsider its decision to 
deny confidentiality based on your response.
    Regarding comments that have not been marked as confidential, prior 
to posting comments received in response to this notice in the public 
docket, RSPA and TSA will review all comments, whether or not they are 
identified as confidential, to determine if the submission or portions 
of the submission contain sensitive information that should not be made 
available to the general public. RSPA and TSA will notify you if the 
agencies make such a determination relative to your comment.
    If, prior to submitting your comment, you have any questions 
concerning the procedures for determining confidentiality or security 
sensitivity, you may call one of the individuals listed above under FOR 
FURTHER INFORMATION CONTACT for more information.

V. Privacy Act

    Anyone is able to search the electronic form of comments posted 
into any of our dockets by the name of the individual submitting the 
comment (or signing the comment, 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 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

    Issued in Washington, DC, and Arlington, Virginia, on August 9, 
2004.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety, Research and 
Special Programs Administration.
Chet Lunner,
Assistant Administrator, Office of Maritime and Land Security, 
Transportation Security Administration.
[FR Doc. 04-18705 Filed 8-13-04; 8:45 am]
BILLING CODE 4910-60-P