[Federal Register Volume 71, Number 183 (Thursday, September 21, 2006)]
[Proposed Rules]
[Pages 55156-55159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7930]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 172

[Docket No. PHMSA-06-25885 (HM-232F)]
RIN 2137-AE22


Hazardous Material: Revision of Requirements for Security Plans

AGENCY: Pipeline and Hazardous Materials Safety Administration, DOT.

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

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SUMMARY: PHMSA is considering revisions to the list of hazardous 
materials that require development and implementation of a security 
plan to address security risks during transportation in commerce. This 
effort is being coordinated with other Department of Transportation 
modal administrations (Federal Aviation Administration, Federal Motor 
Carrier Safety Administration, and Federal Railroad Administration) and 
the Transportation Security Administration of the Department of 
Homeland Security. The revisions would address outstanding petitions 
requesting that certain materials be excepted from the security plan 
requirements. PHMSA will hold a public meeting on November 30, 2006 to 
obtain stakeholder comments on security plan requirements. This ANPRM 
and the public meeting provide an opportunity for the public to comment 
on this issue and make recommendations on the applicability of the 
security plan requirements.

DATES: Public meeting: The meeting will be held on November 30, 2006. 
The meeting will begin at 9 a.m.
    Written comments: Comments must be received by December 20, 2006.

ADDRESSES: Public meeting: The meeting will be held at the U.S. 
Department of Transportation, Nassif Building, Room 2230, 400 Seventh 
Street, SW., Washington, DC 20590-0001. Requests for special 
accommodations should be addressed to the Pipeline and Hazardous 
Material Safety Administration, PHH-10, 400 Seventh Street, SW., 
Washington, DC 20590-0001; telephone (202) 366-8553. Written comments: 
You may submit comments identified by the docket number (PHMSA-06-
25885) by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     FAX: 1-202-493-2251.
     Mail: Docket Management System, U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, PL-402, 
Washington, DC 20590-0001.
     Hand Delivery: PL-402 on the plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number or Regulation Identification Number (RIN) for this 
notice. Internet users may access comments received by DOT at http://dms.dot.gov. Note that comments received may be posted without change 
to http://dms.dot.gov including any personal information provided.
    While all comments should be sent to DOT's Docket Management System 
(DMS), comments or those portions of comments PHMSA determines to 
include trade secrets, confidential commercial information, or 
sensitive security information (SSI) will not be placed in the public 
docket and will be handled separately. If you believe your comments 
contain trade secrets, confidential commercial information, or SSI, 
those comments or the relevant portions of those comments should be 
appropriately marked so that DOT may make a determination. PHMSA 
procedures in 49 CFR part 105 establish a mechanism by which commenters 
may request confidentiality.
    In accordance with 49 CFR 105.30, you may ask PHMSA to keep

[[Page 55157]]

information confidential using the following procedures: (1) Mark 
``confidential'' on each page of the original document you would like 
to keep confidential; (2) send DMS both the original document and a 
second copy of the original document with the confidential information 
redacted; and (3) explain why the information is confidential (as a 
trade secret, confidential commercial information, or SSI). In your 
explanation, you should provide enough information to enable PHMSA to 
determine whether the information provided is protected by law and must 
be handled separately.
    In addition, for comments or portions of comments that you believe 
contain SSI as defined in 49 CFR 15.7, you should comply with Federal 
regulations governing the handling of SSI. See 49 CFR 1520.9 and 49 CFR 
15.9, Restrictions on the disclosure of sensitive security information. 
Those regulations restrict the disclosure of SSI to those with a need 
to know and set forth specific requirements for marking, packaging, and 
disposing of documents containing SSI. Note when mailing in or using a 
special delivery service to send comments containing SSI, comments 
should be wrapped in a manner to prevent the information from being 
read. PHMSA may perform concurrent reviews on requests for designations 
as SSI.
    After reviewing your request for confidentiality and the 
information provided, PHMSA will determine whether the information 
should be treated as confidential under applicable laws and 
regulations. PHMSA will notify you of the decision to grant or deny 
confidential treatment. If PHMSA denies your request, you will be 
provided an opportunity to request reconsideration before the 
information is publicly disclosed. PHMSA will reconsider its decision 
to deny confidentiality based on your response.
    To further guard against disclosure of SSI, PHMSA will review all 
submissions, whether or not they are identified as confidential, prior 
to their posting on the public docket. PHMSA will notify you if we 
determine that information in your submission should not be disclosed 
to the public. If you have any questions concerning the procedures for 
determining confidentiality or security sensitivity, you may call one 
of the individuals listed below.

FOR FURTHER INFORMATION CONTACT: Susan Gorsky or Ben Supko, Office of 
Hazardous Materials Standards, (202) 366-8553, Pipeline and Hazardous 
Materials Safety Administration, U.S. Department of Transportation, 400 
Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

A. Current DOT Security Requirements

    On March 25, 2003, the Research and Special Programs Administration 
(RSPA), the predecessor agency to the Pipeline and Hazardous Materials 
Safety Administration (PHMSA) published a final rule (Docket HM-232; 57 
FR 14510) amending the Hazardous Materials Regulations (HMR; 49 CFR 
parts 171-180) to establish requirements to enhance the security of 
hazardous materials transported in commerce. The final rule required 
shippers and carriers of certain hazardous materials to develop and 
implement security plans. The security plan requirements in subpart I 
of part 172 of the HMR apply to persons who offer for transportation or 
transport:
    (1) A highway-route controlled quantity of a Class 7 (radioactive) 
material;
    (2) More than 25 kg (55 lbs.) of a Division 1.1, 1.2, or 1.3 
(explosive) material;
    (3) More than 1 L (1.06 qt.) per package of a material poisonous by 
inhalation in Hazard Zone A;
    (4) A shipment in a bulk packaging with a capacity equal to or 
greater than 13,248 L (3,500 gallons) for liquids or gases or greater 
than 13.24 cubic meters (468 cubic feet) for solids;
    (5) A shipment in other than a bulk packaging of 2,268 kg (5,000 
lbs.) gross weight or more of one class of hazardous materials for 
which placarding is required;
    (6) A select agent or toxin regulated by the Centers for Disease 
Control and Prevention under 42 CFR part 73 and, by April 1, 2007, a 
select agent or toxin regulated by the U.S. Department of Agriculture 
under 9 CFR part 121; or
    (7) A shipment that requires placarding under subpart F of part 172 
of the HMR.
    The security plan must include an assessment of possible 
transportation security risks and appropriate measures to address the 
assessed risks. Specific measures implemented as part of the plan may 
vary with the level of threat at a particular time. At a minimum, the 
security plan must address personnel security, unauthorized access, and 
en route security. For personnel security, the plan must include 
measures to confirm information provided by job applicants for 
positions involving access to and handling of the hazardous materials 
covered by the plan. For unauthorized access, the plan must include 
measures to address the risk of unauthorized persons gaining access to 
materials or transport conveyances being prepared for transportation. 
For en route security, the plan must include measures to address 
security risks during transportation, including the security of 
shipments stored temporarily en route to their destinations.
    As indicated above, the HMR set forth general requirements for a 
security plan's components rather than a prescriptive list of specific 
items that must be included. The HMR set a performance standard 
providing offerors and carriers with the flexibility necessary to 
develop security plans addressing their individual circumstances and 
operational environments. Accordingly, each security plan will differ 
because it will be based on an offeror's or a carrier's individualized 
assessment of the security risks associated with the specific hazardous 
materials it ships or transports and its unique circumstances and 
operational environment.
    In developing the HM-232 final rule, we assessed the security risks 
associated with the transportation of different classes and quantities 
of hazardous materials. We concluded that the most significant security 
risks involve the transportation of certain radioactive materials; 
certain explosives; materials that are poisonous by inhalation, certain 
infectious and toxic substances; and bulk shipments of materials such 
as flammable and compressed gases, flammable liquids, flammable solids, 
and corrosives. Based on this security risk assessment, the HM-232 
final rule currently in effect requires persons who offer for 
transportation or transport a hazardous material in an amount that 
requires placarding or select agents to develop and implement security 
plans. Using the placarding thresholds to trigger enhanced security 
requirements covers the materials that present the most significant 
security threats in transportation and provides a relatively 
straightforward way to distinguish materials that may present a 
significant security threat from materials that do not. It also 
provides regulatory consistency, thereby minimizing confusion and 
facilitating compliance by the regulated community. We note as well 
that the current security plan requirements provide shippers and 
carriers with the flexibility to develop and implement a security plan 
that is appropriate to the individual circumstances, the types and 
quantities of hazardous materials shipped or transported and the modes 
of transportation utilized. A shipper or

[[Page 55158]]

carrier must assess the security risks for the types and quantities of 
hazardous materials to be transported and implement appropriate 
measures to address those risks. The risk assessment could well 
conclude that, for materials such as paint or flavoring extracts, the 
transportation security risk is not significant and extensive security 
measures are not warranted.
    The Federal Motor Carrier Safety Administration (FMCSA), in 49 CFR 
part 385, prohibits a motor carrier from transporting certain hazardous 
materials unless the motor carrier holds a safety permit. A safety 
permit is required for the following hazardous materials in the 
quantities indicated:
    (1) A highway-route controlled quantity of a Class 7 (radioactive) 
material;
    (2) More than 25 kg (55 lbs.) of a Division 1.2, 1.2, or 1.3 
(explosive) material;
    (3) More than 1 L (1.08 qt.) per package of a material poisonous by 
inhalation in Hazard Zone A;
    (4) A bulk packaging (capacity greater than 450 L (119 gallons)) of 
a material poisonous by inhalation in Hazard Zone B;
    (5) A packaging with a capacity equal to or greater than 13,248 L 
(3,500 gallons) of a material poisonous by inhalation in Hazard Zone C 
or D; or
    (6) A shipment of compressed or refrigerated liquefied methane or 
liquefied natural gas, or other liquefied gas with a methane content of 
at least 85 percent, in a bulk packaging having a capacity equal to or 
greater than 13,248 L (3,500 gallons).

B. International Transportation Security Standards

    The United Nations Model Regulations on the Transport of Dangerous 
Goods (UN Recommendations) identify high consequence dangerous goods 
for which enhanced security measures are recommended. The recommended 
security measures include security plans and are similar to the 
requirements in subpart I of part 172 of the HMR. The UN 
Recommendations define high consequence dangerous goods as materials 
with the ``potential for mis-use in a terrorist incident and which may, 
as a result, produce serious consequences such as mass casualties or 
mass destruction.'' The UN Recommendations list the following materials 
as high consequence dangerous goods:
    (1) Division 1.1 explosives;
    (2) Division 1.2 explosives;
    (3) Division 1.3 compatibility group C explosives;
    (4) Division 1.5 explosives;
    (5) Bulk shipments of Division 2.1 flammable gases;
    (6) Division 2.3 toxic gases (excluding aerosols);
    (7) Bulk shipments of Class 3 flammable liquids in PG I or II;
    (8) Class 3 and Division 4.1 desensitized explosives;
    (9) Bulk shipments of Division 4.2 PG I materials;
    (10) Bulk shipments of Division 4.3 PG I materials;
    (11) Bulk shipments of Division 5.1 PG I oxidizing liquids;
    (12) Bulk shipments of Division 5.1 perchlorates, ammonium nitrate 
and ammonium nitrate fertilizers;
    (13) Division 6.1 PG I toxic materials;
    (14) Division 6.2 infectious substances of Category A (UN2814 and 
2900);
    (15) Class 7 radioactive materials in quantities greater than 3000 
A1 (special form) or 3000 A2, as applicable, in 
Type B(U) or Type B(M) or Type (C) packages; and
    (16) Bulk shipments of Class 8 PG I materials.

For purposes of the security provisions, the UN defines ``in bulk'' to 
mean quantities greater than 3,000 kg (6,614 lbs.) or 3,000 liters (660 
gallons) in portable tanks or bulk containers.

II. Purpose of This ANPRM

    PHMSA has received two petitions for rulemaking requesting a review 
and reevaluation of the current HMR security plan requirements. The 
Council on Safe Transportation of Hazardous Articles (COSTHA) 
petitioned PHMSA (P-1447) to reevaluate the security requirements in 
subpart I of part 172 of the HMR to ``enhance international 
harmonization and to better utilize available resources in enhancing 
hazardous materials transportation security.'' COSTHA notes that the 
list of hazardous materials in the HMR that are subject to the security 
plan requirements differs from the list of high consequence dangerous 
goods in the UN Recommendations. COSTHA cites several examples of 
hazardous materials (e.g., automobile batteries, inks, paint, flavoring 
extracts) that, based on hazard class and quantity, require placarding 
under the HMR, and, therefore, are subject to the security plan 
requirements. COSTHA suggests it is highly unlikely a terrorist would 
use these materials to cause loss of lives, destruction of property, or 
damage to the environment. The petition requests that PHMSA adopt the 
same criteria as the UN Recommendations for materials that are subject 
to the security plan requirements, or, as an alternative, eliminate the 
security plan requirement for quantities of hazardous materials for 
which placarding under the provisions of subpart F of part 172 is 
required.
    Similarly, the American Trucking Associations (ATA) petitioned 
PHMSA (P-1466) to create a new subset of hazardous materials that are 
``security sensitive hazardous materials.'' The ATA supports the 
materials and quantities that are subject to the FMCSA Hazardous 
Materials Safety Permit requirements as the starting point for 
determining security sensitive hazardous materials. In addition to 
those materials, ATA suggests that PHMSA add the following materials 
from the UN high consequence dangerous goods list: (1) Bulk shipments 
of Division 2.1; (2) bulk shipments of Class 3, PG I and II; (3) Class 
3 and Division 4.1 desensitized explosives (quantity to be determined); 
(4) bulk shipments of Division 4.2, PG I; (5) bulk shipments of 
Division 4.3, PG I; (6) bulk shipments of Division 5.1, PG I; (7) bulk 
shipments Division 5.1 perchlorates, ammonium nitrate and ammonium 
nitrate fertilizers; (8) Division 6.2 infectious substances of Category 
A (quantity to be determined); (9) any quantity of select agents; and 
(10) bulk shipments of Class 8, PG I. The ATA uses quantities greater 
than 3,500 gallons or 5,000 pounds to define ``bulk'' for purposes of 
security planning.
    We agree with COSTHA and ATA that the list of materials for which a 
security plan is required should be re-assessed. The philosophy 
underlying PHMSA's earlier approach to security plans was that the 
security plans represented a baseline requirement. We considered the 
company preparing the security plan to be in the best position to 
assess security risks based on its operational circumstances. If 
security risks were determined to be insignificant, this would be 
reflected in a simple security plan with minimal content. Increased 
coverage would be required when security risks are more substantial. 
The security plan requirements went into effect September 25, 2003; 
both the industry and the government have had three years of experience 
evaluating security risks associated with specific hazardous materials 
and transportation environments and identifying appropriate measures to 
address those risks. Accordingly, we are initiating this rulemaking, in 
coordination with other DOT modal administrations (Federal Aviation 
Administration (FAA), Federal Railroad Administration (FRA), and FMCSA) 
and the Transportation Security Administration (TSA) of the Department 
of Homeland Security (DHS), to consider modifications to the

[[Page 55159]]

list of hazardous materials for which security plans are required. We 
ask commenters to address the following questions:
    (1) What is the best basic approach to security plans? Is the 
current approach correct or should security plans be required only for 
hazardous materials in threshold quantities that are known to pose 
significant security risks?
    (2) Are there ways to lessen the burdens of security plan 
requirements on companies with minimal security risks?
    (3) Should baseline security requirements or guidelines be 
established when security plans are not required?
    (4) What factors should be considered in determining whether 
security risks of a specific hazardous material or class of hazardous 
materials are significant enough to require preparation of a security 
plan?
    (5) What role should Packing Groups play in determining the need 
for security plans?
    (6) How should the quantities of hazardous materials transported be 
considered when determining whether a security plan is required?
    (7) Does easy availability of a hazardous material in specific 
quantities outside of transportation play a role in determining whether 
a security plan should be required?
    (8) Should uniform security plan requirements apply across all 
modes of transportation or should the triggering criteria (hazardous 
class and quantity) be mode-specific?
    (9) What factors should be considered when determining whether 
specific hazardous materials, classes or quantities thereof, should be 
excepted from security plan requirements?
    (10) How should the determination of transportation security risk 
account for specific hazardous materials or classes of materials that 
by themselves do not pose a security risk, but that could present a 
security risk in combination with other materials?
    (11) What compliance or enforcement issues should be considered as 
we re-assess current security plan requirements?
    (12) Should company size or geographic location (e.g., specific 
region of the country or urban or rural) play a role in determining 
whether a security plan is required?
    (13) Does the Government need to provide more information on the 
specific security concerns that cause the need for preparation of a 
security plan for certain hazardous materials to assist in security 
plan preparation?
    (14) Should the Government maintain an evolving list of hazardous 
materials for which security plans are required based on changing 
threats and scenarios?
    There are a number of additional issues that PHMSA will consider in 
assessing the list of hazardous materials for which a security plan is 
required. These include the analyses required under the following 
statutes and executive orders in the event we determine that rulemaking 
is appropriate:
    Executive Order 12866: Regulatory Planning and Review. E.O. 12866 
requires agencies to regulate in the ``most cost-effective manner,'' to 
make a ``reasoned determination that the benefits of the intended 
regulation justify its costs,'' and to develop regulations that 
``impose the least burden on society.'' We therefore request comments, 
including specific data if possible, concerning the costs and benefits 
that may be associated with revisions to the list of hazardous 
materials for which security plans are required. A rule that is 
considered significant under E.O. 12866 must be reviewed and cleared by 
the Office of Management and Budget before it can be issued.
    Executive Order 13132: Federalism. E.O. 13132 requires agencies to 
assure meaningful and timely input by state and local officials in the 
development of regulatory policies that may have a substantial, direct 
effect on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government. We invite 
state and local governments with an interest in this rulemaking to 
comment on the effect that revisions to the list of materials for which 
security plans are required may have on state or local safety or 
security programs.
    Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments. E.O. 13175 requires agencies to assure meaningful 
and timely input from Indian tribal government representatives in the 
development of rules that ``significantly or uniquely affect'' Indian 
communities and that impose ``substantial and direct compliance costs'' 
on such communities. We invite Indian tribal governments to provide 
comments as to the effect that revisions to the list of materials for 
which security plans are required may have on Indian communities.
    Regulatory Flexibility Act. Under the Regulatory Flexibility Act of 
1980 (5 U.S.C. 601 et seq.), we must consider whether a proposed rule 
would have a significant economic impact on a substantial number of 
small entities. ``Small entities'' include small businesses, not-for-
profit organizations that are independently owned and operated and are 
not dominant in their fields, and governmental jurisdictions with 
populations under 50,000. If you believe that revisions to the list of 
materials for which security plans are required could have a 
significant economic impact on small entities, please provide 
information on such impacts.

III. Announcement of Public Meeting

    PHMSA is conducting a public meeting to discuss the security plan 
requirements and receive comments and recommendations concerning the 
list of hazardous materials that trigger the requirement for a security 
plan. Other DOT modal administrations and DHS are participating in the 
meeting. See ADDRESSES and DATES for meeting details.
    All interested persons are encouraged to participate. Prior 
notification to PHMSA is not required. Due to the heightened security 
measures, participants are encouraged to arrive early to allow time for 
security checks necessary to gain access to the building.

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

    This rulemaking is not considered a significant regulatory action 
under section 3(f) of Executive Order 12866 and, therefore, was not 
reviewed by the Office of Management and Budget. This rulemaking is not 
considered significant under the Regulatory policies and procedures of 
the Department of Transportation (44 FR 11034).

    Issued in Washington, DC, on September 18, 2006 under authority 
delegated in 49 CFR part 106.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 06-7930 Filed 9-20-06; 8:45 am]
BILLING CODE 4910-60-P se