[Federal Register Volume 72, Number 123 (Wednesday, June 27, 2007)]
[Proposed Rules]
[Pages 35211-35213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-12404]



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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 177

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


Security Requirements for Motor Carriers Transporting Hazardous 
Materials

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Advance Notice of Proposed Rulemaking (ANPRM); withdrawal.

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SUMMARY: This withdrawal advises the public that the Transportation 
Security Administration (TSA) of the Department of Homeland Security 
(DHS) has assumed the lead role from the Pipeline and Hazardous 
Materials Safety Administration (PHMSA) for rulemaking addressing the 
security of motor carrier shipments of hazardous materials under this 
docket. Accordingly, PHMSA is withdrawing the ANPRM issued under this 
docket and closing its rulemaking proceeding. This action is consistent 
with and supportive of the respective transportation security roles and 
responsibilities of the Department of Transportation and DHS as 
delineated in a Memorandum of Understanding (MOU) signed September 28, 
2004, and of TSA and PHMSA as outlined in an Annex to that MOU signed 
August 7, 2006. PHMSA will continue to consider alternatives for 
enhancing the safety of explosives stored during transportation under 
another rulemaking docket. PHMSA will consult and coordinate with TSA 
on hazardous materials transportation security issues in accordance 
with the PHMSA-TSA Annex.

DATES: The ANPRM published at 67 FR 46622, July 16, 2002, is withdrawn 
as of June 27, 2007.

FOR FURTHER INFORMATION CONTACT: Susan Gorsky or Ben Supko, Office of 
Hazardous Materials Standards, Pipeline and Hazardous Materials Safety 
Administration, telephone (202) 366-8553.

SUPPLEMENTARY INFORMATION:

I. Background

A. Joint PHMSA-FMCSA ANPRM

    On July 16, 2002 (67 FR 46622), the Research and Special Programs 
Administration (predecessor to the Pipeline and Hazardous Materials 
Safety Administration (PHMSA)) and the Federal Motor Carrier Safety 
Administration (FMCSA) jointly published an advance notice of proposed 
rulemaking (ANPRM) seeking comments on the feasibility, costs, and 
benefits of requiring motor carriers that transport hazardous materials 
to employ certain enhanced security measures. Specific measures 
discussed in the ANPRM included escorts, vehicle tracking and 
monitoring systems, emergency warning systems, remote ignition shut-
offs, direct short-range communications, notification to state and 
local authorities, and safe havens for the temporary storage of 
explosives during transportation. We received over 80 sets of comments 
in response to the ANPRM. Commenters encouraged DOT to apply enhanced 
security measures only to those materials presenting a significant 
security risk and expressed various views on the merits of particular 
security measures, as summarized in the following section. As a result 
of PHMSA's expanded authority to regulate hazardous materials 
transportation security, granted to PHMSA under section 1711 of the 
Homeland Security Act, FMCSA issued a notice on March 19, 2003 (68 FR 
13250) that transferred any future action on Docket HM-232A to PHMSA.

B. Summary of Comments on Issues Discussed in ANPRM

    Escorts. Most commenters oppose armed escorts, whether on the 
vehicle itself or accompanying the vehicle. Many commenters suggest 
armed escorts could actually increase the vulnerability of a shipment 
by drawing attention to the vehicle and because of the increased number 
of stops a support vehicle would be required to make. Most commenters 
also express concern that the use of escorts would be cost prohibitive 
and could result in carriers refusing shipments for which escorts would 
be required. Commenters also expressed concern about logistical 
problems and higher insurance premiums (related to liability issues 
associated with armed escorts). Finally, commenters suggest ``mixing'' 
firearms and hazardous materials in transportation could increase 
safety problems because firearms are a potential source of ignition for 
explosives and certain other types of hazardous materials.
    Pre-notification. Most commenters oppose pre-notification of state 
and/or local governments of planned shipments of hazardous materials. 
Commenters suggest a pre-notification requirement would overload 
emergency responders with information and likely detract from their 
ability to respond promptly and efficiently to an incident or accident. 
Commenters note it is unlikely emergency response organizations have 
the personnel or resources necessary to manage the volume of 
information that would be received. Commenters also express concern 
that a pre-notification requirement could actually compromise security 
by making shipment information more widely available than would 
otherwise be the case. Shippers and carriers would be required to 
provide load-specific information (e.g., product name and hazard, 
routing, timing), which would then be disseminated to a variety of 
individuals and organizations. The opportunity for disclosure, whether 
deliberate or inadvertent, would be high. Commenters note volunteer 
emergency response organizations conduct virtually no security 
background checks. Finally, commenters outline a number of operational 
concerns, including handling road detours and route changes, related to 
increasing transportation times and adverse affects on supply chains 
for a host of industries that rely on ``just-in-time'' deliveries to 
manage inventories.
    Safe Havens. A ``safe haven'' is an area specifically approved in 
writing by Federal, state, or local government authorities for the 
parking of unattended vehicles containing Division 1.1, 1.2, and 1.3 
explosive materials (49 CFR 397.5(d)(3)). The competent local authority 
having jurisdiction over the area generally makes the decision as to 
what constitutes a safe haven. There are no Federal standards for safe 
havens. Commenters support the continued use of safe havens, but 
recommend DOT develop Federal standards to provide details on the 
construction, maintenance, availability, and use of safe havens. 
Without clearly defined standards to follow, commenters state any 
future reliance on safe havens may actually make the hazardous 
materials stored there more susceptible to safety and security threats 
than if they were stored at other locations.
    Due to the complexity of the safe haven issue and commenter 
response, PHMSA and FMCSA decided to split the safe havens issue from 
the other enhanced security measures proposed in the ANPRM by placing 
it in a separate docket (HM-238). On November 16, 2005, PHMSA published 
an ANPRM (70 FR 69493) to solicit additional comments on the safety and 
security issues associated with the storage of explosives during 
transportation and the need for additional regulatory requirements. The 
ANPRM includes summaries of current

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government and industry standards applicable to such storage. We are 
currently evaluating the comments received in response to this ANRPM to 
determine whether additional rulemaking is warranted.
    Vehicle tracking and monitoring systems, emergency warning systems, 
remote shut-offs, and direct short range communications. In December 
2004, FMCSA completed a two-year national field operational test of 
existing technologies that could offer solutions to enhance the 
security of motor carrier shipments of hazardous materials. The test 
evaluated the costs, benefits, and operational processes required for 
wireless communications systems, including GPS tracking and digital 
telephones; in-vehicle technologies, such as on-board computers, panic 
buttons, and electronic cargo seals; personal identification systems, 
including biometrics and a user name/password system; and vehicle 
tracking, including geofencing and trailer tracking systems. The tested 
technologies performed well under operational conditions and showed 
promise for significantly reducing security vulnerabilities.

II. DOT/PHMSA and DHS/TSA Transportation Security Responsibilities

    The 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 and Title VII of the 2005 Safe, 
Accountable, Flexible and Efficient Transportation Equity Act--A Legacy 
for Users (SAFETEA-LU)) authorizes the Secretary of the Department of 
Transportation to ``prescribe regulations for the safe transportation, 
including security, of hazardous material in intrastate, interstate, 
and foreign commerce.'' The Secretary has delegated this authority to 
PHMSA. The Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) 
promulgated by PHMSA under the mandate in section 5103(b), govern 
safety aspects, including security, of the transportation of hazardous 
materials.
    Under the Aviation and Transportation Security Act (ATSA), Public 
Law 107-71, 115 Stat. 597 (November 19, 2001), and delegated authority 
from the Secretary of Homeland Security (DHS), the Assistant Secretary 
of DHS for TSA has broad responsibility and authority for ``security in 
all modes of transportation'' (49 U.S.C. 114(d)).'' ATSA authorizes TSA 
to take immediate action to protect against threats to transportation 
security.
    TSA's authority over the security of transportation stems from 
several provisions of 49 U.S.C. 114. In executing its responsibilities 
and duties, TSA is specifically empowered to develop policies, 
strategies and plans for dealing with threats to transportation (49 
U.S.C. 114(f)(3)). As part of its security mission, TSA is responsible 
for assessing intelligence and other information in order to identify 
individuals who pose a threat to transportation security and to 
coordinate countermeasures with other Federal agencies to address such 
threats (49 U.S.C. 114(f)(1)-(5), (h)(1)-(4)). TSA is also mandated to 
enforce security-related regulations and requirements (49 U.S.C. 
114(f)(7)); ensure the adequacy of security measures for the 
transportation of cargo (49 U.S.C. 114(f)(10)); oversee the 
implementation and ensure the adequacy of security measures at 
transportation facilities (49 U.S.C. 114(f)(11)); and carry out other 
appropriate duties relating to transportation security (49 U.S.C. 
114(f)(15)). TSA serves as the primary liaison for transportation 
security to the intelligence and law enforcement communities (49 U.S.C. 
114(f)(1) and (5)).
    In sum, TSA's authority with respect to transportation security is 
comprehensive and supported with specific powers related to the 
development and enforcement of regulations, security directives, 
security plans, and other requirements. Accordingly, under this 
authority, TSA may identify a security threat to any mode of 
transportation, develop a measure for dealing with that threat, and 
enforce compliance with that measure.
    As is evident from the above discussion, DHS and DOT share 
responsibility for hazardous materials transportation security. The two 
departments consult and coordinate on security-related hazardous 
materials transportation requirements to ensure 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 guidance or requirements promulgated by multiple agencies. On 
September 28, 2004, DOT and DHS signed a Memorandum of Understanding 
(MOU) on Roles and Responsibilities. The purpose of the MOU is to 
facilitate the development and deployment of transportation security 
measures that promote safety, security, and efficiency in the movement 
of people and goods. The MOU recognizes that DHS has primary 
responsibility for security in all modes of transportation. In this 
regard, DHS will establish national security performance goals, and, to 
the extent practicable, develop appropriate transportation security 
measures to achieve an integrated national transportation security 
system.
    On August 7, 2006, PHMSA and TSA signed an annex to the September 
28, 2004 DOT-DHS MOU. The Annex acknowledges TSA's lead role in 
transportation security and that each agency brings core competencies, 
legal authority, resources, and expertise to their shared mission. The 
Annex reflects the agencies' commitment to a system risk-based approach 
and to the development of practical solutions through work teams 
focused on key program elements, including research and development and 
the review and development of security standards. In entering into the 
Annex, PHMSA and TSA pledged to build on and not duplicate the various 
security initiatives and efforts already underway.

III. TSA Hazardous Materials Truck Security Pilot

    In August 2005, TSA initiated the ``TSA Hazardous Materials Truck 
Security Pilot.'' This congressionally mandated pilot program is 
designed to test the functionality and capabilities of a centralized 
truck tracking system. The pilot utilizes specific protocols capable of 
interfacing with existing truck tracking systems, government 
intelligence centers, and first responders. The goal is to provide TSA 
with a tested and established truck tracking center that will allow TSA 
to ``continually'' track truck locations and specific hazardous 
materials load types in all 50 states. The tracking system will also 
allow for automatic or manual notification of exception based events. 
The TSA Hazardous Materials Truck Security Pilot including the 
prototype Truck Tracking Center is currently scheduled to operate 
through Fiscal Year 2007.

IV. Withdrawal of PHMSA-FMCSA ANRPM

    Based on comments to the ANPRM and the results of the FMCSA Field 
Operational Test, two of the security measures addressed in the ANPRM--
use of vehicle tracking and communications systems and anti-theft 
technologies--appear promising as means of enhancing the security of 
motor carrier transportation of certain classes and quantities of 
hazardous materials. In accordance with the DHS-DOT MOU and the PHMSA-
TSA Annex, however, PHMSA, FMCSA, and TSA have determined action to 
address

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motor carrier security tracking should not be taken prior to the 
completion of TSA's pilot, and, in any event, be carried out under 
TSA's legal authority, rather than primarily as an amendment to the 
HMR. By contrast, the proposals to require use of escorts or a pre-
notification system do not appear worthy of further consideration. As 
mentioned above, PHMSA will continue to address safe havens and other 
issues related to the storage of explosives during transportation in 
Docket HM-238. In the meantime, PHMSA will consult and coordinate with 
TSA on hazardous materials transportation security issues in accordance 
with the PHMSA-TSA Annex.
    Accordingly, PHMSA is withdrawing the July 16, 2002 ANPRM and 
terminating this rulemaking proceeding.

    Issued in Washington, DC, on June 1, 2007, under authority 
delegated in 49 CFR Part 1.
Theodore L. Willke,
Acting Associate Administrator for Hazardous Materials Safety.
 [FR Doc. E7-12404 Filed 6-26-07; 8:45 am]
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