[Federal Register Volume 75, Number 45 (Tuesday, March 9, 2010)]
[Rules and Regulations]
[Pages 10974-10989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4778]



[[Page 10973]]

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Part IV





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration



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49 CFR Part 172



Hazardous Materials: Risk-Based Adjustment of Transportation Security 
Plan Requirements; Final Rule

  Federal Register / Vol. 75 , No. 45 / Tuesday, March 9, 2010 / Rules 
and Regulations  

[[Page 10974]]


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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 Materials: Risk-Based Adjustment of Transportation 
Security Plan Requirements

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

ACTION: Final rule.

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SUMMARY: PHMSA, in consultation with the Transportation Security 
Administration (TSA) of the Department of Homeland Security (DHS), is 
modifying current security plan requirements applicable to the 
commercial transportation of hazardous materials by air, rail, vessel, 
and highway. Based on an evaluation of the security threats associated 
with specific types and quantities of hazardous materials, the final 
rule narrows the list of materials subject to security plan 
requirements and reduces associated regulatory costs and paperwork 
burden. The final rule also clarifies certain requirements related to 
security planning, training, and documentation.

DATES: Effective date: This final rule is effective October 1, 2010.
    Voluntary compliance date: Voluntary compliance with all the 
amendments in this final rule is authorized as of April 8, 2010.

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

SUPPLEMENTARY INFORMATION: 

I. Background

A. Current DOT Security Requirements

    The federal hazardous materials transportation law (federal hazmat 
law, 49 U.S.C. 5101 et seq.) authorizes the Secretary 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. 
Authority to enforce the Hazardous Materials Regulations (HMR; 49 CFR 
Parts 171-180) has been delegated to the FAA ``with particular emphasis 
on the transportation or shipment of hazardous materials by air''; the 
FRA ``with particular emphasis on the transportation or shipment of 
hazardous materials by railroad''; PHMSA ``with particular emphasis on 
the shipment of hazardous materials and the manufacture, fabrication, 
marking, maintenance, reconditioning, repair or test of multi-modal 
containers that are represented, marked, certified, or sold for use in 
the transportation of hazardous materials''; and the FMCSA ``with 
particular emphasis on the transportation or shipment of hazardous 
materials by highway.'' 49 CFR Part 1, Subpart C. The United States 
Coast Guard (USCG) is authorized to enforce the HMR in connection with 
certain transportation or shipment of hazardous materials by water. 
This authority originated with the Secretary and was first delegated to 
USCG prior to 2003, when USCG was made part of the Department of 
Homeland Security. DHS Delegation No. 0170, Section 2(99) & 2(100); see 
also 6 U.S.C. 458(b), 551(d)(2). Thus, enforcement of the security plan 
and training regulations is shared among the DOT operating 
administrations and the USCG, with each placing particular emphasis on 
their respective authorities.
    The HMR require persons who offer for transportation or transport 
certain hazardous materials in commerce 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 or 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.
    A 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.

B. Notice of Proposed Rulemaking

    On September 9, 2008, PHMSA published a notice of proposed 
rulemaking (NPRM; 73 FR 52558) to propose modifications to the list of 
materials for which a security plan is required. The NPRM was based on 
comments received in response to an ANRPM issued under this docket (71 
FR 55156) and in a public meeting we hosted on November 30, 2006, and 
an evaluation of possible security threats posed by specific types and 
classes of hazardous materials. In identifying materials to which a 
security plan should apply, we consulted with the Federal Railroad 
Administration, Federal Motor Carrier Safety Administration, and the 
Transportation Security Administration (TSA) in the Department of 
Homeland Security, to assess the transportation security risks 
associated with the different classes and quantities of hazardous 
materials. We evaluated specific transportation scenarios in which a 
terrorist could deliberately use hazardous materials to cause large-
scale casualties and property

[[Page 10975]]

damage. In our qualitative risk evaluation, we considered the following 
factors: (1) Physical and chemical properties of the material or class 
of materials and how those properties could contribute to a security 
incident; (2) quantities shipped and mode of transport; (3) past 
terrorist use; (4) potential use; and (5) availability. One of the most 
significant security vulnerabilities involves the potential for an 
individual or group to take control of a conveyance containing a high-
risk material and move it to a site where the material could cause 
maximum physical or psychological damage. For some hazardous materials, 
the primary security threat involves theft or highjacking of raw 
materials for use in developing explosive devices or weapons.
    As we indicated in the NPRM, one of our goals for this rulemaking 
is to harmonize to the extent consistent with our security goals the 
list of materials for which security plans are required with the list 
of materials designated as high consequence dangerous goods for which 
enhanced security measures are recommended in the United Nations Model 
Regulations on the Transport of Dangerous Goods (UN Recommendations). 
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 Packing Group I 
or II;
    (8) Class 3 and Division 4.1 desensitized explosives;
    (9) Bulk shipments of Division 4.2 Packing Group I materials;
    (10) Bulk shipments of Division 4.3 Packing Group I materials;
    (11) Bulk shipments of Division 5.1 Packing Group I oxidizing 
liquids;
    (12) Bulk shipments of Division 5.1 perchlorates, ammonium nitrate 
and ammonium nitrate fertilizers;
    (13) Division 6.1 Packing Group 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 Packing Group I materials.
    For purposes of the security provisions, the UN defines ``in bulk'' 
to mean quantities greater than 3,000 kg (6,614 lbs.) for solids and 
3,000 liters (793 gallons) for liquids and gases in portable tanks or 
bulk containers.
    In the NPRM, we proposed the following modifications to the list of 
materials subject to security plans:

                                                    NPRM List
----------------------------------------------------------------------------------------------------------------
            Class                   Current threshold          Proposed threshold                Change
----------------------------------------------------------------------------------------------------------------
1.1..........................  Any quantity..............  Any quantity..............  None.
1.2..........................  Any quantity..............  Any quantity..............  None.
1.3..........................  Any quantity..............  Any quantity..............  None.
1.4..........................  A quantity requiring        Any quantity of UN 0104,    Security plan required
                                placarding.                 0237, 0255, 0267, 0289,     only for detonators and
                                                            0361, 0365, 0366, 0440,     shaped charges.
                                                            0441, 0455, 0456, 0500.
1.5..........................  A quantity requiring        Any quantity..............  Security plan required
                                placarding.                                             for all shipments.
1.6..........................  A quantity requiring        Not subject...............  Security plan not
                                placarding.                                             required for any
                                                                                        Division 1.6 shipments.
2.1..........................  A quantity requiring        >3,000 L in a single        Security plan not
                                placarding.                 packaging.                  required for 3,000 L
                                                                                        (793 gallons) or less.
2.2..........................  A quantity requiring        Not subject except for      Security plan not
                                placarding.                 oxygen and gases with a     required for most non-
                                                            subsidiary 5.1 hazard       flammable, non-poisonous
                                                            (<3,000 L (793 gallons)     compressed gas
                                                            in a single packaging).     shipments.
2.3..........................  Any quantity..............  Any quantity..............  None.
3............................  A quantity requiring        >3,000 L (793 gallons) in   Security plan not
                                placarding.                 a single packaging and      required for 3,000 L
                                                            any quantity of Class 3     (793 gallons) or less
                                                            desensitized explosives.    except for desensitized
                                                                                        explosives.
4.1..........................  A quantity requiring        Any quantity desensitized   Security plan not
                                placarding.                 explosives.                 required except for
                                                                                        desensitized explosives.
4.2..........................  A quantity requiring        PG I and II only in         Security plan not
                                placarding.                 quantities >3,000 kg in a   required for PG III
                                                            single packaging.           materials.
4.3..........................  Any quantity..............  Any quantity..............  None.
5.1..........................  A quantity requiring        PG I and II liquids,        Security plan not
                                placarding.                 perchlorates, ammonium      required for PG III
                                                            nitrate (including          liquids or unlisted
                                                            fertilizers) in             solids.
                                                            quantities >3,000 L (793
                                                            gallons) in a single
                                                            packaging.
5.2..........................  Any quantity of Organic     Any quantity of Organic     None.
                                peroxide, Type B, liquid    peroxide, Type B, liquid
                                or solid, temperature       or solid, temperature
                                controlled.                 controlled.
6.1..........................  A quantity requiring        Any quantity of PG I;       Security plan not
                                placarding; any quantity    >3,000 L (793 gallons)      required for 3,000 L
                                of PIH material.            for PG II and III.          (793 gallons) or less of
                                                                                        PG II and III.
6.2..........................  Select agents.............  Select agents.............  None.

[[Page 10976]]

 
7............................  Shipments requiring Yellow  For radionuclides covered   Security plan only
                                III label; highway route    by the IAEA Code of         required for Class 7
                                controlled quantity.        Conduct, Category 1 and     materials that pose
                                                            Category 2 sources per      transportation security
                                                            package; for all other      risk.
                                                            radionuclides, 3000 A2
                                                            per package.
8............................  A quantity requiring        PG I only in quantities     Security plan not
                                placarding.                 >3,000 L (793 gallons) in   required for PG II and
                                                            a single packaging.         III materials.
9............................  Capacity >3,500 gallons     Not subject...............  Security plan not
                                for liquid/gas;                                         required for Class 9
                                volumetric capacity >468                                materials.
                                cubic feet for solids.
----------------------------------------------------------------------------------------------------------------

II. Coordination With TSA

    DHS is the lead federal agency for transportation and hazardous 
materials security. DOT consults and coordinates on security-related 
hazardous materials transportation matters to ensure consistency with 
DHS requirements and broader security objectives. Both departments work 
to ensure that the regulated industry is not confronted with 
inconsistent government-issued security guidance or requirements.
    Under Section 101(a) of the Aviation and Transportation Security 
Act (ATSA, Pub. L. 107-71, November 19, 2001) (codified at 49 U.S.C. 
114) and 49 CFR 1502.1, TSA has broad responsibility and authority for 
``security in all modes of transportation * * * '' TSA has additional 
responsibilities for surface transportation security, as specified in 
49 U.S.C. 114(f), through delegation by the Secretary of Homeland 
Security under the Implementing Recommendations of the 9/11 Commission 
Act of 2007 (9/11 Commission Act, Pub. L. 110-53; 121 Stat. 266, August 
3, 2007).
    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. 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. Moreover, in addition to inspecting for compliance with 
specific regulations, TSA may conduct general security assessments. 
Under its authority, TSA may assess threats to transportation security; 
monitor the state of awareness and readiness throughout the various 
sectors; determine the adequacy of an owner or operator's 
transportation-related security measures; and identify security gaps. 
TSA, for example, could inspect and evaluate for emerging or potential 
security threats based on intelligence indicators to determine whether 
the owner or operator's strategies and security measures are likely to 
deter deficiencies.
    When PHMSA adopted its security regulations, it was stated that 
these regulations were ``the first step in what may be a series of 
rulemakings to address the security of hazardous materials shipments.'' 
68 FR 14511. PHMSA noted in the NPRM that TSA ``is developing 
regulations that are likely to impose additional requirements beyond 
those established in this final rule'' and stated that it would 
``consult and coordinate with TSA concerning security-related hazardous 
materials transportation regulations * * * '' Id.
    In this regard, note that under section 1512 of the 9/11 Commission 
Act and delegated authority from the Secretary of Homeland Security, 
TSA must promulgate regulations establishing standards and guidelines 
for developing and implementing vulnerability assessments and security 
plans for ``high-risk'' railroad carriers. TSA published a final rule 
on rail security on November 26, 2008 (73 FR 72131). That rule 
established security requirements for freight railroad carriers; 
intercity, commuter, and short-haul passenger train service providers; 
rail transit systems; and rail operations at certain, fixed-site 
facilities that ship or receive specified hazardous materials by rail. 
It codified the scope of TSA's existing inspection program and requires 
regulated parties to allow TSA and DHS officials to enter, inspect, and 
test property, facilities, conveyances, and records relevant to rail 
security. The rule also requires that regulated parties designate rail 
security coordinators and report significant security concerns. In 
addition, the rule requires freight rail carriers and certain 
facilities handling specified hazardous materials to be able to (1) 
report location and shipping information to TSA upon request and (2) 
implement chain of custody requirements to ensure a positive and secure 
exchange of specified hazardous materials. TSA also clarifies and 
amends the sensitive security information (SSI) protections to cover 
certain information associated with rail transportation.
    TSA intends to promulgate additional regulations for railroad 
carriers and other modes of surface transportation that will require 
them to submit vulnerability assessments and security plans to DHS for 
review and approval, as well as to develop and implement security 
training programs for employees performing security-sensitive functions 
to prepare for potential security threats and conditions. The security 
plan requirements established by the HMR are to be used as a baseline 
for security planning. When TSA regulations are issued, the PHMSA 
security plan and security training requirements for regulated parties 
that will be subject to the TSA regulations will be reevaluated and 
revised as appropriate.
    To this end, we have worked closely with TSA to align our proposed 
list of materials subject to security plans with ongoing efforts by TSA 
in identifying Highway Security Sensitive Hazardous Materials (HSSM). 
TSA has used its HSSM list in conjunction with voluntary security 
practices (referred to as Security Action Items or SAIs) to increase 
the security of certain hazardous materials transported by motor 
vehicle. Minor differences between our proposal and the TSA HSSM list 
have been resolved and the overall approach taken by the two agencies 
in identifying materials that should be subject to security based 
requirements is consistent and supported by industry associations, 
offerors, carriers, and private citizens, as evidenced by the comments 
submitted in response to our NPRM.
    Finally, as it implements its transportation security authority, 
TSA may identify a need to review transportation security plans and 
programs developed and implemented in accordance with Subpart I of Part 
172

[[Page 10977]]

of the HMR. Under ATSA, TSA has the authority to ``ensure the adequacy 
of security measures for the transportation of cargo'' 49 U.S.C. 
114(f)(10) and to ``oversee the implementation, and ensure the 
adequacy, of security measures at airports and other transportation 
facilities.'' 49 U.S.C. 114(f)(11). Therefore, parties subject to this 
regulation must allow TSA and other authorized DHS officials, at any 
time and in a reasonable manner, without advance notice, to enter and 
inspect and must provide TSA inspectors with a copy of any security 
related document required by the HMR or pursuant to TSA's statutory or 
regulatory authorities. This includes security plans and training 
documents required under 49 CFR Part 172. TSA does not, however, have 
the authority to directly enforce DOT safety or security requirements 
established in the HMR. If, in the course of an inspection of a 
railroad or motor carrier or a rail or highway hazardous material 
shipper or receiver, TSA identifies evidence of non-compliance with a 
DOT safety or security regulation, TSA will provide the information to 
FRA (for rail) or FMCSA (for motor carriers) and PHMSA for appropriate 
action. Similarly, since DOT does not have the authority to enforce TSA 
security requirements, if a DOT inspector identifies evidence of non-
compliance with a TSA security regulation or identifies other security 
deficiencies, DOT will provide the information to TSA for appropriate 
action.
    It is important to note that TSA and DOT have established a tiered 
approach to transportation security that imposes increasingly stringent 
security requirements for materials that pose more significant 
transportation security risks. Thus, the DOT security planning 
requirements established in 2003 and modified in this final rule 
establish a baseline requirement for materials that have been 
determined to pose a security risk across all modes of transportation. 
However, both TSA and DOT have established more stringent security 
requirements for certain rail shipments of hazardous materials. As 
explained in the TSA and DOT final rules on rail security published 
jointly on November 26, 2008 (73 FR 72130 and 73 FR 72181, 
respectively), the list of designated ``security sensitive'' materials 
to which the enhanced safety and security requirements adopted in those 
final rules apply--certain shipments of Division 1.1, 1.2, and 1.3, 
PIH, and radioactive materials--is based on specific railroad 
transportation scenarios. These scenarios depict how hazardous 
materials could be deliberately used to cause significant casualties 
and property damage or accident scenarios resulting in similar 
catastrophic consequences. DOT and TSA determined that the materials 
specified in the rail security final rules present the greatest rail 
transportation safety and security risks--because of the potential 
consequences of an unintentional release of these materials--and are 
the most attractive targets for terrorists--because of the potential 
for these materials to be used as weapons of opportunity or weapons of 
mass destruction. While DOT and TSA agree that other hazardous 
materials pose certain safety and security risks, the risks are not as 
great as those posed by the explosive, PIH, and radioactive materials 
specified in the rail security final rules. TSA, in consultation with 
DOT, will continue to evaluate the transportation security risks posed 
by all types of hazardous materials and the effectiveness of current 
regulations in addressing those risks and will consider revising 
specific requirements as necessary.

III. Comments and Analysis

    A total of 160 persons submitted comments in response to the 
September 9, 2008 NPRM. The majority of the comments were submitted by 
companies, but we also received comments from public interest groups; 
local, state, and federal government agencies; industry associations; 
and private citizens. The majority of commenters focused on the 
proposed revisions to security plan requirements for explosives that 
are used by the special effects and motion picture industries. To 
review rulemakings, regulatory evaluations, environmental assessments, 
comments, and letters submitted in response to this regulatory action 
go to http://www.regulations.gov under docket number PHMSA-06-25885. To 
locate a specific commenter by name simply use the search function 
provided by Regulations.gov.
    Generally, commenters express support for the regulatory reduction 
efforts proposed by the NPRM although some commenters disagree with 
some of the types and classes of materials that would be subject to 
security planning requirements under the NPRM. In this comment summary, 
we address areas of concern, as expressed by commenters, including the 
key comments regarding the types and classes of materials that we 
included in the proposed list of materials subject to security plans. 
We especially focus on aligning our list of materials requiring 
security plans and TSA's HSSM list. Commenters emphasize that 
consistency is very important in this area, and we agree. TSA's HSSM 
list focused on materials that have the potential to cause significant 
fatalities and injuries or significant economic damage when released or 
detonated during a transportation security incident. Materials classed 
as HSSM fall into one of two tiers and are subject to specific 
voluntary security measures that should be taken by manufacturers, 
shippers, and carriers of the listed materials.
    In this final rule we are revising the list of materials subject to 
security planning. We made several changes to the list of materials 
based on comments and discussions with our federal partners. We 
consulted with TSA throughout the development of this final rule. Below 
we list by Class/Division the Hazardous materials and thresholds 
subject to security planning under this final rule. The phrase ``large 
bulk quantity,'' as used in the following table, refers to a quantity 
greater than 3,000 kg (6,614 pounds) for solids or 3,000 liters (792 
gallons) for liquids and gases in a single packaging such as a cargo 
tank motor vehicle, portable tank, tank car, or other bulk container.

------------------------------------------------------------------------
                                     PHMSA final rule security  plan
        Class/ division                         revisions
------------------------------------------------------------------------
1.1............................  Any quantity.
1.2............................  Any quantity.
1.3............................  Any quantity.
1.4............................  Placarded quantity.
1.5............................  Placarded quantity.
1.6............................  Placarded quantity.
2.1............................  A large bulk quantity.
2.2............................  A large bulk quantity of materials with
                                  an oxidizer subsidiary.
2.3............................  Any quantity.
3..............................  PG I and II in a large bulk quantity;
                                  placarded quantity desensitized
                                  explosives.
4.1............................  Placarded quantity desensitized
                                  explosives.
4.2............................  PG I and II in a large bulk quantity.
4.3............................  Any quantity.
5.1............................  Division 5.1 materials in PG I and II,
                                  and PG III perchlorates, ammonium
                                  nitrate, ammonium nitrate fertilizers,
                                  or ammonium nitrate emulsions or
                                  suspensions or gels in a large bulk
                                  quantity.
5.2............................  Any quantity of Organic peroxide, Type
                                  B, liquid or solid, temperature
                                  controlled.
6.1............................  Any quantity PIH or a large bulk
                                  quantity of a material that is not a
                                  PIH.
6.2............................  CDC or USDA list of select agents.
7..............................  IAEA Categories 1 & 2; HRCQ; known
                                  radionuclides in forms listed as RAM-
                                  QC by NRC; or a quantity of uranium
                                  hexafluoride requiring placarding
                                  under Sec.   172.505(b).

[[Page 10978]]

 
8..............................  PG I in a large bulk quantity.
9..............................  Not subject.
ORM-D..........................  Not subject.
------------------------------------------------------------------------

    Any minor differences between the TSA HSSM list and the above list 
have been discussed with TSA and resolved.

A. Applicable Materials and Thresholds (Sec.  172.800(b))

    As indicated above, the NPRM proposed to narrow the list of 
materials to which security plan requirements would apply to cover only 
those materials that pose a significant security risk in 
transportation. In accordance with Sec.  172.800(b) of the HMR, a 
security plan is currently required for a quantity of hazardous 
materials that requires placarding under Subpart F of Part 172. We 
proposed to remove certain classes of materials from the list and to 
raise the threshold quantity that would trigger security planning 
requirements for other classes of materials. Generally, the NPRM 
proposed to continue the security plan requirement for materials listed 
in Table 1 of Sec.  172.504, which specifies materials for which 
placarding is required when any quantity of the material is transported 
in a bulk packaging, freight container, transport vehicle, or rail car. 
Thus, we proposed to retain the security plan requirement for any 
quantity of Division 1.1, 1.2, 1.3 explosive materials; 2.3 poison 
gases; 4.3 dangerous when wet material; 5.2 Type B organic peroxides, 
liquid or solid, temperature controlled; and 6.1 materials poisonous by 
inhalation. We also proposed to require security plans for any quantity 
of certain Division 1.4 materials, Division 1.5 explosives, Class 3 and 
Division 4.1 desensitized explosives, and 6.1 materials assigned to 
Packing Group I.
    Several commenters contend that the ``any quantity'' threshold 
standard, especially when applied to Table 2 materials (see Sec.  
172.504(e)), will present unreasonable and unnecessary compliance 
challenges for covered persons. We agree that the ``any quantity'' 
threshold standard is inappropriate for most Table 2 materials, based 
on the security risks posed in transportation, and proposed to modify 
the threshold quantities that would trigger security planning 
requirements accordingly. The security planning requirement is critical 
to reducing the security risks associated with a very broad spectrum of 
hazardous materials. More specific, modal based requirements that apply 
to larger quantities of material, such as through our rail routing 
rule, may be required to address specific threats. We are maintaining 
the ``any quantity'' threshold because those materials may present a 
significant security risk under certain modal specific risk-based 
transportation scenarios even when transported in small amounts.
    Dow suggests that we simplify the process of identifying materials 
for security planning purposes by adding a special provision to the 
Hazardous Materials Table to identify those materials for which 
security plans would be required. We disagree with a material-based 
strategy for identifying high-risk materials. Consistent with our 
approach to evaluating the safety risks posed by hazardous materials in 
transportation, we continue to believe that an assessment of hazardous 
materials security risks should be based on the hazard class and 
packing group of the material and the quantity or volume transported. 
In this way, we can ensure that all materials that pose a similar 
security risk are covered, including mixtures and solutions. Moreover, 
identifying individual materials through special provisions is 
inefficient and overly complex.
    In the following sections of the preamble we address comments 
concerning whether specific classes of materials should be subject to 
security planning requirements.
1. Explosives (Divisions 1.1, 1.2, 1.3, 1.4, 1.5, and 1.6)
    The majority of comments received specifically addressed 
explosives. A total of 125 persons involved with special effects for 
the motion picture industry submitted comments addressing the proposed 
threshold for Division 1.4 explosives and desensitized explosives in 
Class 3 and Division 4.1. Currently, security plans are required for 
placarded quantities of these materials. In the NPRM, we proposed to 
require security plans for any quantity of Division 1.4 explosives 
shipped under certain UN identification numbers and any quantity of 
desensitized explosives in Class 3 and Division 4.1. Commenters 
unanimously oppose this provision of the NPRM. The Alliance of Special 
Effects & Pyrotechnic Operators, Inc. (ASEPO) states that the proposed 
requirement for security plans to apply to any quantity of Division 1.4 
or desensitized explosive materials is unnecessary because secure 
transportation of the Division 1.4 explosives and desensitized 
explosives used for special effects has already been achieved under 
present security measures. ASEPO did not provide details of the 
security measures currently employed, but stated its belief that the 
current measures are effective based on the industry's long history of 
safe and secure transportation of these materials.
    The Dangerous Goods Advisory Council (DGAC), Institute of Makers of 
Explosives (IME), International Society of Explosives Engineers (ISEE), 
and United Parcel Service of America, Inc. (UPS) suggest that we retain 
the current threshold for security planning purposes--that is, security 
plans should be required for explosives, including desensitized 
explosives, when transported in quantities that require placarding. UPS 
notes that ``shipments are undetectable in commerce unless they reach 
the level requiring the carrier to apply placards on the vehicle'' and 
suggests that the lack of placards on these shipments enhances their 
security.
    It was not our intent to significantly expand upon current security 
planning requirements applicable to explosives. In the NPRM, we 
indicated that most Division 1.4 explosives do not pose a significant 
transportation security risk and limited security plan requirements to 
any quantity of a material identified as UN 0104, UN 0237, UN 0255, UN 
0267, UN 0289, UN 0361, UN 0365, UN 0366, UN 0440, UN 0441, UN 0455, UN 
0456, or UN 0500. Our concern, as expressed in the NPRM, was that 
Division 1.4 detonators make an attractive target for theft and use as 
initiating devices for improvised explosive devices (IEDs). In 
addition, it was our understanding that detonating assemblies and 
devices such as those listed above were generally shipped with greater 
quantities of Division 1.1, 1.2, or 1.3 explosives and thus were 
covered by security plans applicable to those materials. Based on the 
comments we received, we now understand that the Division 1.4 materials 
identified in the NPRM are frequently transported in small quantities 
and in separate shipments from Division 1.1, 1.2, and 1.3 materials.
    Because of the strongly adverse comments we received on this issue, 
and after consulting with TSA, we re-evaluated the proposal to require 
security plans for shipments of any quantity of Division 1.4 detonators 
in the specified UN numbers. We agree with commenters that the security 
risks associated with the transportation of small numbers of these 
devices are not sufficient to warrant the development and 
implementation of security plans, particularly given the security 
measures voluntarily utilized by shippers and carriers. Therefore, in 
this final rule we are not adopting the proposed revision applicable to 
Division 1.4 explosives.

[[Page 10979]]

Instead, the security planning requirement will apply, as it does now, 
to all Division 1.4 explosives transported in quantities that require 
placarding under Subpart F of Part 172 of the HMR.
    Currently, a security plan is required for Division 1.5 and 1.6 
explosives transported in a quantity that requires placarding. In the 
NPRM, we proposed to require security plans for any quantity of 
Division 1.5 materials and remove Division 1.6 explosives from the list 
of materials for which a security plan is required. Commenters indicate 
that the proposed revisions to the thresholds for both Division 1.5 
materials and 1.6 materials are not necessary. IME and ISEE suggest the 
inclusion of all explosives at the current level--quantities requiring 
placarding--has proven to be effective. In regard to Division 1.6 
explosives, the Department of Defense Explosives Safety Board (DDESB) 
does not disagree with our statements in the NPRM regarding the 
insensitivity of Division 1.6 materials, but indicates that their 
insensitivity can be overcome by suitable boostering, with results 
similar to that of a Division 1.2 material. In its comments, DDESB 
recommends that any quantity of Division 1.6 explosives be included in 
the list of hazardous materials that require security plans. Though we 
do not agree that the any quantity threshold is appropriate for 
Division 1.6 materials, we do agree that security plans should be 
required for explosives at a given threshold. As a result, this final 
rule will not eliminate security plan requirements applicable to 
Division 1.5 and 1.6 materials. Security plans will continue to be 
required for Division 1.5 and 1.6 materials that are offered for 
transportation or transported in quantities that require placarding.
    We did not propose to change current security planning requirements 
applicable to Division 1.1, 1.2, and 1.3 explosives in the NPRM. 
Commenters agree that security plans should be required for these 
materials when transported in any quantity. In this final rule, we are 
retaining the current requirement. Thus, without regard to the mode by 
which the material is transported, shippers and carriers of Divisions 
1.1, 1.2, and 1.3 explosives (transported in any quantity) and 
Divisions 1.4, 1.5, and 1.6 explosives (transported in quantities that 
require placarding) must develop and implement security plans. Note 
that the security planning requirements are triggered by the offering 
or transportation of a hazardous material in a quantity that requires 
placarding, not by the absence or presence of a placard on a given 
shipment.
2. Flammable Gases (Division 2.1)
    Currently, security plans are required for shipments of Division 
2.1 materials when transported in a quantity requiring placarding. In 
the NPRM, we proposed to raise the threshold trigger for security 
planning purposes to a quantity greater than 3,000 L (793 gallons). We 
concluded that shipments of flammable gases in quantities of 3,000 L 
(793 gallons) or less in a single package do not pose a transportation 
security risk warranting development and implementation of security 
plans.
    Two commenters address the proposed requirements for compressed 
gases in Division 2.1. The Gases and Welders Distribution Association 
supports the proposed changes, suggesting that adopting a threshold 
that is consistent with security planning provisions in the UN 
recommendations will facilitate compliance for international 
transportation and reduce costs for shippers and carriers handling such 
materials in international commerce. The National Propane Gas 
Association (NPGA) suggests that propane should not be considered a 
weapon of mass destruction and it should not be subject to security 
plans. We disagree. Propane is among the liquefied compressed gases 
most commonly transported throughout the nation. When liquid propane is 
released into the atmosphere, it quickly vaporizes into the gaseous 
form that is its normal state at atmospheric pressure. This happens 
very rapidly, and in the process, the propane combines readily with air 
to form fuel air mixtures that are ignitable over a range of 2.2 to 9.5 
percent propane by volume. If an ignition source is present in the 
vicinity of a highly flammable mixture, the vapor cloud ignites and 
burns very rapidly (characterized by some experts as ``explosively''). 
Based on these characteristics and the frequency with which propane is 
transported in this country, we believe that propane presents a 
sufficient security risk to warrant the imposition of security plan and 
security training requirements when transported in quantities greater 
than 3,000 L (793 gallons).
    In this final rule, we are adopting the proposed threshold for 
Division 2.1 materials to require security plans for amounts greater 
than 3,000 L (793 gallons) in a single package or container.
3. Nonflammable Gases (Division 2.2)
    Currently, security plans are required for shipments of Division 
2.2 materials when offered for transportation or transported in amounts 
that require placarding. In the NPRM, we proposed to remove most 
Division 2.2 materials from the list of materials for which security 
plans are required because the hazard characteristics of these 
materials do not lend themselves to terrorist or criminal use. However, 
we proposed to require security plans for oxygen and for other Division 
2.2 gases that are oxidizers because they can be used to increase the 
likelihood and intensity of a fire or other chemical reaction. We also 
proposed to include any Division 2.2 compressed gas with a subsidiary 
hazard of Division 5.1 oxidizer for the same reason.
    Commenters who addressed this issue oppose the proposal to require 
security plans for shipments of oxygen and other oxidizing gases. The 
Compressed Gas Association (CGA) contends that oxygen should be 
transported without any additional security regulations based on 
industry experience and its analysis of possible security scenarios. 
For example, CGA provides an assessment of the impact of firing a 
shoulder-launched rocket into a large cryogenic oxygen tank. The 
analysis concludes that the rocket would do nothing more than put a 
hole in the tank and harmlessly release oxygen into the atmosphere. 
DGAC on the other hand, supports the inclusion of oxygen, but asserts 
that the inclusion of other Division 2.2 materials with an oxidizing 
hazard is not necessary. DGAC contends that it is difficult to imagine 
how gases such as compressed or liquefied air would be used in an 
attack.
    As discussed in the NPRM, Division 2.2 compressed gases generally 
do not pose a security threat sufficient to warrant specific security 
planning measures. However, oxygen and other oxidizers enhance the 
combustion of other materials, thereby increasing the likelihood and 
intensity of a fire or other chemical reaction. At least 7 million tons 
of oxygen are transported by motor carriers each year. Because of its 
oxidizing characteristics and the volume transported, we continue to 
believe that large shipments of oxygen should be subject to security 
planning requirements. Therefore, in this final rule we are requiring 
shippers and carriers of oxygen and other Division 2.2 compressed gases 
with a subsidiary hazard of Division 5.1 oxidizer, in quantities 
greater than 3,000 L (793 gallons) in a single package or container, to 
develop and implement security plans. A list of Division 2.2 oxidizing 
gases that are authorized for transportation in large bulk quantities 
is provided below.

[[Page 10980]]



----------------------------------------------------------------------------------------------------------------
                                                                            Hazard    Identification     Label
                          Proper shipping name                              class          Nos.           code
----------------------------------------------------------------------------------------------------------------
Air, refrigerated liquid, (cryogenic liquid)............................        2.2            UN1003   2.2, 5.1
Air, refrigerated liquid, (cryogenic liquid) non-pressurized............        2.2            UN1003   2.2, 5.1
Compressed gas, oxidizing, n.o.s........................................        2.2            UN3156   2.2, 5.1
Gas, refrigerated liquid, oxidizing, n.o.s. (cryogenic liquid)..........        2.2            UN3311   2.2, 5.1
Liquefied gas, oxidizing, n.o.s.........................................        2.2            UN3157   2.2, 5.1
Nitrous oxide...........................................................        2.2            UN1070   2.2, 5.1
Nitrous oxide, refrigerated liquid......................................        2.2            UN2201   2.2, 5.1
Oxygen, compressed......................................................        2.2            UN1072   2.2, 5.1
Oxygen, refrigerated liquid (cryogenic liquid)..........................        2.2            UN1073   2.2, 5.1
----------------------------------------------------------------------------------------------------------------

4. Materials Poisonous by Inhalation (Division 2.3 and 6.1)
    Currently, poison-inhalation-hazard (PIH) materials are subject to 
security planning requirements when offered for transportation or 
transported in any quantity. We did not propose to change this 
requirement in the NPRM.
    We received several comments regarding the inclusion of anhydrous 
ammonia as a Division 2.3 material. The Association of American 
Railroads (AAR), Utility Solid Waste Activities Group (USWAG), and The 
Fertilizer Institute (TFI) request clarification of the requirements 
applicable to anhydrous ammonia. In addition, Dominion asks, ``Under 
what circumstances [do] anhydrous ammonia shipments trigger the 
security plan requirements.''
    In proposed Sec.  172.800(b)(6) we state that ``any quantity of a 
material poisonous by inhalation, as defined in Sec.  171.8'' is 
subject to security plan requirements (73 FR 52571). Section 171.8 
defines a ``material poisonous by inhalation'' as a:
    (1) Gas meeting the defining criteria in Sec.  173.115(c) and 
assigned to Hazard Zone A, B, C, or D in accordance with Sec.  
173.116(a);
    (2) Liquid meeting the defining criteria in Sec.  
173.132(a)(1)(iii) and assigned to Hazard Zone A or B in accordance 
with Sec.  173.133(a); or
    (3) Material identified as an inhalation hazard in column 7 of the 
Sec.  172.101 table.
    Anhydrous ammonia meets the definition of a PIH material because it 
is identified as having an inhalation hazard in column 7 of the 
Hazardous Materials Table (HMT) and, therefore, is subject to security 
planning requirements when offered for transportation or transported in 
any quantity. More generally, we note that many materials, such as 
those identified by a plus sign in column 1 of the Sec.  172.101 table, 
pose hazards that are not identified as the primary hazard in column 3 
of the HMT. While anhydrous ammonia is classed for domestic 
transportation as a Division 2.2 material, it does pose a significant 
inhalation hazard and, thus, should be subjected to safety and security 
requirements that address that hazard. We note further that by 
requiring security plans for materials that meet the definition for a 
material poisonous by inhalation, all materials that exhibit PIH 
characteristics are covered even if they are not specifically 
identified in column 3 of the Sec.  172.101 table as Division 2.3 or 
6.1 materials. Therefore, whether the material is anhydrous ammonia, 
boron tribromide, ethyl chlorothioformate, phosphorus oxychloride, or 
sulfuric acid, for example, it is subject to the security plan 
requirements under proposed section 172.800(b)(6), at any quantity.
    In this final rule, we are maintaining the existing any quantity 
threshold for PIH materials.
5. Desensitized Explosives (Class 3 and Division 4.1)
    Desensitized explosive substances are explosive materials that have 
been rendered non-explosive, according to the UN Manual of Tests and 
Criteria, by means of adding a diluting liquid or solid. The diluted 
substances, once tested and found not in Class 1, are regulated under 
the HMR as Division 4.1 flammable solids or Class 3 flammable liquids, 
depending on their physical state and hazardous properties. Currently, 
security plans are required for shipments of desensitized explosives in 
quantities that require placarding. In the NPRM, we proposed to require 
security plans for shipments of any quantity of desensitized explosives 
because many desensitized explosives can be readily reconstituted into 
explosive materials.
    We received well over 100 comments regarding the proposed security 
plan threshold for desensitized explosives. Generally, persons involved 
with special effects for the motion picture industry indicate they do 
not support changing the current placarding requirement to a 
requirement that applies to any quantity. Similarly, ASEPO, IME, the 
American Trucking Associations (ATA), UPS, DGAC, and Canadian Trucking 
Alliance (CTA) all disagree with the proposed requirement to regulate 
any quantity of desensitized explosives. IME suggests that the ``any 
quantity'' threshold should be reserved for materials that would 
contribute to the consequences of a direct attack on the transportation 
conveyance. According to IME, desensitized explosives would not be 
expected to contribute to the consequences of such an incident. ATA, 
UPS, and CTA indicate if we require security plans for any quantity of 
desensitized explosives we should identify specific materials to which 
the security plan requirements would apply.
    As we noted in the NPRM, desensitized explosives have been used in 
terrorist attacks in the United States and overseas. Urea nitrate, for 
example, has been used in a number of terrorist attacks, most notably 
the first vehicle-borne improvised explosive device attack on the World 
Trade Center in 1993. Moreover, requiring a security plan for any 
quantity of a desensitized explosive in Class 3 or Division 4.1 is 
consistent with the UN requirements. In addition, TSA's HSSM list for 
SAIs has included any quantity of desensitized explosives in Class 3 
and Division 4.1 in Packing Group I and lists specific Packing Group II 
desensitized explosives that are also included. However, after 
discussing our concerns with TSA and reviewing the comments, we agree 
with commenters that the ``any quantity'' threshold for a material that 
needs further processing to be used in a terrorist attack is an 
unnecessary burden. Just as we concluded with Division 1.4 materials, 
the existing placarding threshold is commensurate with the security 
risk associated with desensitized explosives in Class 3 and Division 
4.1. Therefore, in light of comments received from explosives 
manufacturers, shippers, and carriers, and resulting discussions with 
TSA, we have decided to maintain the current threshold. Accordingly, in 
this final rule, desensitized explosives in Class 3 and Division 4.1 
are subject to the

[[Page 10981]]

security plan requirements in a quantity of 454 kg (1,001 pounds) or 
more in a single transport vehicle or freight container (see exception 
in Sec.  172.504(c)).
6. Flammable Liquids (Class 3--Other Than Desensitized Explosives)
    Currently, the HMR require security plans for both flammable and 
combustible liquids when offered for transportation or transported in 
quantities requiring placarding. In the NPRM, we proposed to require 
security plans for shipments of 3,000L (793 gallons) or more in a 
single packaging of any Class 3 material. DGAC opposes subjecting Class 
3 materials to the security plan requirements because they can be 
easily acquired outside of transportation.
    As we stated in the NPRM, flammable liquids burn vigorously, giving 
off large quantities of intense heat. Some may produce flammable 
atmospheres in confined spaces that, when ignited, could cause 
significant damage through deflagration or detonation. Class 3 
materials could be used in a terrorist attack to trigger a large, 
intense fire that could cause deaths, injuries, and damage to buildings 
and infrastructure. To be effective, such an attack would necessarily 
involve a large quantity of flammable liquid. We disagree with DGAC's 
comment that flammable liquids should be dropped from security planning 
entirely. Large quantities of flammable liquids pose a significant 
security risk that can be mitigated through security planning. However, 
after consultation with TSA, we have concluded that the security risks 
associated with Class 3 materials are most significant for large 
quantities in Packing Groups I and II. Therefore, this final rule 
requires a security plan for Packing Group I and II flammable liquids 
in amounts greater than 3,000 L (793 gallons) in a single package or 
container.
7. Flammable Solids (Division 4.1)
    In the NPRM, we proposed to eliminate security plan requirements 
for flammable solids, except for desensitized explosives in Division 
4.1, which we discussed above. There were no comments addressing our 
proposal. In this final rule, we are adopting the proposal to limit the 
applicability of security plans to Division 4.1 materials that are 
desensitized explosives.
8. Spontaneously Combustible Materials (Division 4.2)
    Currently, security plans are required for quantities of Division 
4.2 materials that require placarding. The NPRM proposed to retain the 
security plan requirement for shipments of more than 3,000 kg (6,614 
lbs.) in a single packaging of Division 4.2 materials in Packing Groups 
I and II and to eliminate the security plan requirement for Division 
4.2 materials in Packing Group III. Only one commenter addressed the 
proposed threshold for spontaneously combustible materials. DGAC does 
not agree with our decision to include Division 4.2 materials in 
Packing Group II. Further, DGAC notes that both the UN and TSA's HSSM 
list for SAIs have set the threshold at the 3,000 kg (6,614 lbs.) level 
for Packing Group I materials only.
    The UN does set the threshold at 3,000 kg (6614 lbs.) for Packing 
Group I materials, but TSA's HSSM list includes both Packing Group I 
and Packing Group II materials. Though we would like to harmonize with 
the UN requirements when at all possible, the goal of this rulemaking 
is to ensure that security planning requirements apply to materials 
that pose a security risk in transportation. DGAC did not provide 
sufficient reasoning as to why we should require security plans at the 
Packing Group I level only. Based on our consultations with TSA 
concerning the security risks associated with the transportation of 
Division 4.2 materials, this final rule requires security plans for 
more than 3,000 kg (6,614 lbs.) of Division 4.2 materials in Packing 
Groups I and II in a single packaging.
9. Dangerous When Wet (Division 4.3)
    Currently, the HMR require security plans for shipments of Division 
4.3 materials in any quantity. We did not propose to change this 
requirement in the NPRM.
    Very few comments address this issue. DGAC supports the inclusion 
of Division 4.3 in Packing Group I, but not Division 4.3 materials in 
Packing Groups II and III. According to DGAC, the amount of flammable 
gas that would evolve from materials in Packing Groups II and III is 
likely to be significantly less than propane or a similar flammable 
gas. CTA, ATA, and UPS indicate that the any quantity threshold is 
inappropriate and urge PHMSA to consider the 3,000 kg (6,614 lbs.) 
threshold for Division 4.3 materials. Commenters contend that it is not 
necessary to include such small amounts of materials that are often 
commercially available.
    Division 4.3 materials are water reactive--they emit flammable or 
toxic gases upon contact with water. Division 4.3 materials may be of 
interest to terrorists planning a toxic gas attack on crowded venues 
like subways, buses, shopping centers, or movie theaters. PHMSA, after 
consulting with TSA, continues to support the current requirement for 
security plans for shipments of Division 4.3 materials in any quantity. 
The any quantity threshold provides an appropriate level of security, 
given the potential vulnerabilities and risks associated with these 
materials. Therefore, this final rule continues to require security 
plans for shipments of any quantity of Division 4.3 materials.
10. Oxidizers (Division 5.1)
    Currently, the HMR require security plans for shipments of Division 
5.1 materials in quantities that require placarding. In the NPRM, we 
proposed to require security plans for Division 5.1 materials in 
Packing Groups I and II when transported in quantities greater than 
3,000 L (793 gallons) in a single packaging, and for perchlorates and 
ammonium nitrate when transported in quantities greater than 3,000 kg 
(6,614 lbs.) for solids and 3,000 L (793 gallons) for liquids in a 
single packaging.
    Three commenters address this proposal. DGAC contends that Division 
5.1 materials in Packing Group II will be relatively ineffective in an 
attack and proposes that they not be included. TFI and IME ask for 
clarification of the proposed requirement and its applicability to 
solid and liquid materials and the threshold quantities for each.
    We disagree with DGAC's suggestion that Packing Group II materials 
are ineffective oxidizers and should be removed from the list of 
materials requiring a security plan. As we indicated in the NPRM, an 
oxidizer is a material that may cause or enhance the combustion of 
other materials, generally by yielding oxygen. Some oxidizers may 
explode when heated. Division 5.1 oxidizing materials are frequently 
used as components of IEDs.
    TFI and IME are correct that the regulatory text proposed in the 
NPRM was not clear and should be clarified in the final rule. 
Therefore, in this final rule we clearly indicate in regulatory text 
that the security plan requirements apply to Division 5.1 materials in 
Packing Groups I and II; perchlorates; and ammonium nitrate, ammonium 
nitrate fertilizers, or ammonium nitrate emulsions, suspensions, or 
gels in a single packaging, in a quantity greater than 3,000 kg (6,614 
lbs.) for solids or 3,000 L (793 gallons) for liquids.
11. Organic Peroxides (Division 5.2)
    The HMR currently require security plans for liquid or solid Type 
B, temperature controlled Division 5.2

[[Page 10982]]

organic peroxides transported in any quantity. The NPRM did not propose 
changes to this requirement. DGAC does not support the inclusion of 
Division 5.2, Type B materials on the list of materials that require a 
security plan. DGAC contends that as packaged for transportation these 
materials will not react dangerously.
    PHMSA agrees with DGAC that organic peroxides are packaged in a 
safe manner, but does not agree that safe packaging adequately ensures 
that a material is secure during transportation. DGAC did not explain 
how packaging for Division 5.2, Type B materials makes them more secure 
than other properly packaged materials. PHMSA, after consulting with 
TSA, agrees that Division 5.2, Type B materials should be subject to 
security plan requirements when transported in any quantity. As 
discussed in the NPRM, organic peroxides are temperature sensitive, 
self-reacting materials that pose both a fire and explosion hazard, and 
may be both toxic and corrosive. Type B organic peroxides are the most 
dangerous organic peroxides permitted in transportation. Organic 
peroxides were used in the July 2005 terrorist bombings in London, and 
were planned for use by terrorists plotting to destroy aircraft flying 
from the United Kingdom to the United States. The current security 
planning requirement provides an appropriate level of security, given 
the potential vulnerabilities and risks associated with these 
materials. In this final rule, we are continuing to require a security 
plan for any quantity of Division 5.2 organic peroxide, Type B, liquid 
or solid, temperature controlled, as proposed.
12. Poisonous Materials (Division 6.1--Other Than PIH)
    Security plans are currently required for shipments of Division 6.1 
materials in quantities that require placarding. In the NPRM, we 
proposed to require security plans for shipments of Division 6.1, 
Packing Group I materials in any amount and shipments of 3,000L (793 
gallons) or more of Division 6.1, Packing Groups II and III materials. 
DGAC, ATA, UPS, and CTA all suggest that a single packaging threshold 
of more than 3,000 kg (6,614 lbs.) for solids or 3,000 L (793 gallons) 
for liquids for all Division 6.1 materials would be more appropriate 
than the ``any quantity'' threshold we proposed for Division 6.1 
materials in Packing Group I.
    After consultation with TSA and based on the comments we received, 
we agree that a large bulk quantity threshold for Division 6.1 
materials in Packing Group I is more appropriate than the ``any 
quantity'' threshold proposed in the NPRM. As we indicated in the NPRM, 
Division 6.1 materials can be used to contaminate food and water 
supplies; however, the effectiveness of such an attack would depend on 
the toxicity level of the material and the quantity utilized. The 
security risks of these materials, therefore, vary based on the 
quantity transported. In this final rule, we are adopting a security 
plan threshold trigger of more than 3,000 kg (6,614 lbs.) for solids or 
3,000 L (793 gallons) for liquids for poisonous materials (other than 
PIH) in Packing Groups I, II, and III.
13. Infectious Substances and Select Agents (Division 6.2)
    Currently, the HMR require security plans for shipments in any 
quantity of Division 6.2 materials that are designated as select agents 
by the Centers for Disease Control and Prevention and the U.S. 
Department of Agriculture. The NPRM did not propose to change this 
requirement. We received very few comments concerning this aspect of 
the NPRM. ATA agrees that the ``any quantity'' threshold is appropriate 
for Division 6.2 materials; DGAC suggests that security plans should 
only be required for Division 6.2 materials transported in bulk 
quantities. We note concerning the DGAC comment that select agents 
typically are not transported in bulk quantities and that even small 
quantities of these materials may be developed as weapons to cause 
serious and significant outbreaks of disease in humans and animals. The 
current security planning requirements provide an appropriate level of 
security, given the potential vulnerabilities and risks associated with 
these materials. Therefore, as proposed, this final rule continues to 
require security plans for select agents or toxins regulated by the 
Centers for Disease Control and Prevention under 42 CFR Part 73 or the 
United States Department of Agriculture under 9 CFR Part 121.
14. Radioactive Materials (Class 7)
    The current security plan requirements apply to a person who offers 
for transportation or transports a highway route-controlled quantity 
(HRCQ) of a Class 7 (radioactive) material. The HMR also require 
security plans for any shipment that requires placarding under Subpart 
F of Part 172; this includes shipments of packages with radioactive 
Yellow III labels and exclusive use shipments of low specific activity 
material and surface contaminated objects. In the NPRM we proposed to 
adopt security thresholds as established by the International Atomic 
Energy Agency (IAEA) for radioactive materials in transport. The levels 
reflect research conducted by the U.S. Department of Energy, the U.S. 
Nuclear Regulatory Commission (NRC), and the IAEA on the attractiveness 
of radionuclides for malevolent use. The changes proposed in the NPRM 
better address security concerns and align the HMR with international 
and domestic security requirements. Similarly, TSA's HSSMs list for 
SAIs has included IAEA Code of Conduct Category 1 and 2 materials 
including HRCQ quantities as defined in 49 CFR 173.403 or known as 
radionuclides in forms listed as RAM-QC by the Nuclear Regulatory 
Commission. Both lists are virtually identical.
    Commenters propose enhancements to make the requirements clear, but 
do not oppose the thresholds proposed in the NPRM. In their comments, 
AAR and Norfolk Southern Railway Company (Norfolk Southern) suggest 
that we implement a shipping paper notification requirement on rail 
shippers to enable easy identification of shipments that exceed the 
threshold quantity. Another commenter, Louisiana Energy Services, LLC 
(LES), recommends that PHMSA address the requirement in Sec.  
172.505(b) involving transportation restrictions on uranium 
hexafluoride (UF6).
    With regard to the comments from AAR and Norfolk Southern, we note 
that the information required to determine if a radioactive material 
meets the proposed security plan requirements is already available. It 
is the carrier's responsibility to determine if it has accepted for 
transportation a quantity of radioactive materials that trigger 
security plan requirements. In accordance with Sec.  172.203(d), the 
shipper is already required to include the name of the radionuclide and 
the activity level contained in each package. From that information, 
the carrier may calculate the ``sum of the fractions'' as described in 
10 CFR, Appendix P to Part 110--Category 1 and 2 Radioactive Material 
to determine if the threshold limit has been met. If the calculated 
``sum of the fractions'' ratio is greater than 1 then the shipment 
exceeds the threshold limit. In addition, of course, a carrier may 
simply ask the shipper of the material whether the shipment exceeds the 
threshold limit for which security plans are required. Indeed, shippers 
and carriers should discuss security planning issues when they make 
arrangements for transporting any hazardous material.
    We agree with LES that security plan requirements should continue 
to apply to 1,001 pounds (454 kg) or more of UF6. As a 
result, we have included a

[[Page 10983]]

provision to mandate security plans for quantities of UF6 at 
or in excess of 1,001 pounds (454 kg), as provided by Sec.  172.505(b). 
In addition, we believe that TSA's HSSM list more clearly and 
effectively lists the materials that should be subject to security 
planning. As such, we have decided to use similar language in this 
final rule. In addition to the UF6 requirement, we 
specifically indicate that security plans are required for IAEA Code of 
Conduct Category 1 and 2 materials including HRCQ quantities as defined 
in 49 CFR 173.403 or known as radionuclides in forms listed as RAM-QC 
by the Nuclear Regulatory Commission.
15. Corrosive Materials (Class 8)
    The HMR currently require security plans for placarded shipments of 
Class 8 materials in all packing groups. In the NPRM we proposed to 
retain security plan requirements for shipments of Class 8, Packing 
Group I materials in a single packaging, in a quantity of 3,000 kg 
(6,614 lbs.) or more for solids or 3,000 L (793 gallons) or more for 
liquids. As we indicated in the NPRM, lesser amounts pose little, if 
any, security risk. There were no comments addressing our proposal. 
Therefore, this final rule adopts a threshold for Packing Group I 
corrosive materials in a quantity of greater than 3,000 kg (6,614 lbs.) 
for solids or 3,000 L (793 gallons) for liquids in a single packaging.
16. Miscellaneous Hazardous Materials (Class 9)
    Currently, the HMR require security plans for Class 9 materials 
transported 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. In the NPRM, we 
indicated that the security risks associated with the transportation of 
these materials are not sufficient to warrant development and 
implementation of security plans and proposed to eliminate this 
requirement. Comments were supportive of our decision. As a result, 
this final rule eliminates existing security plan requirements 
applicable to Class 9 materials.

B. Revisions to Security Plan Requirements

    In addition to the changes to the applicability of security plans, 
the NPRM proposed a number of amendments to clarify and enhance current 
security requirements, including requirements for security plans and 
for training. These proposals and corresponding comments are discussed 
and finalized below.
1. Site-Specific/Location-Specific (Sec.  172.802(a))
    Security plans must include an assessment of possible 
transportation security risks for the covered materials. In the NPRM we 
proposed to clarify this requirement by stating that the required risk 
assessment must include an assessment of the risks that exist on 
specific routes or in specific locations. Comments submitted varied. 
Most commenters suggest that requiring a written route assessment for 
every route or location is unworkable and would seriously impair a 
carrier's ability to do business. By contrast, commenters such as the 
Airline Pilots Association, International (ALPA) and National 
Association of SARA Title III Program Officials (NASTTPO) indicate that 
the strengthening of the requirements, to include site-specific or 
location-specific security risks, is a well-advised addition of 
specificity. However, NASTTPO questions the omission of a requirement 
for consultation with local emergency planners, law enforcement, or 
fire departments.
    It was not our intent in the NPRM to propose a revision to Sec.  
172.802(a) that would alter existing regulations in such a manner that 
a written security plan, including the risk assessment, would need to 
address each site or location along a transportation route. Our intent 
was to clarify that generic security plans that are not specific to a 
facility or location or corporate security plans that do not address 
security risks associated with a particular facility or location may 
not satisfy the risk assessment requirement. For example, it is our 
understanding that corporations frequently develop security plan 
templates for use by facilities or entities within the corporation. To 
meet the risk assessment requirement in Sec.  172.802(a), each entity 
would need to adapt the corporate security plan template to address 
site-specific issues or vulnerabilities. Given the confusion expressed 
by commenters, we are revising the proposed text in this final rule to 
more clearly state that shippers and carriers must consider site-
specific risks and vulnerabilities at facilities subject to the 
security planning requirement.
2. Identification, Duties, and Training (Sec.  172.802(b))
    In the NPRM we proposed in Sec.  172.802(b)(1) that the security 
plan identify, by job title, the senior management official responsible 
for the overall development and implementation of the plan. We proposed 
in Sec.  172.802(b)(2) that the security plan include security duties 
for each position or department that is responsible for the plan's 
implementation and the process for notifying employees when specific 
elements of the security plan must be implemented. In addition, to 
ensure that employees are aware of their training obligation by their 
employer, we proposed in Sec.  172.802(b)(3) that hazmat employers 
develop a plan for training hazmat employees in accordance with Sec.  
172.704 (a)(4) and (a)(5) of this part. One commenter, ALPA, expressed 
support for the addition of Sec.  172.802(b)(1) through (3). 
Specifically, the Association welcomes that the proposed language 
requires ``the identification of job title for the responsible 
management official, security duties identified for each position or 
department responsible for implementing the plan, and the specifics of 
required training procedures.''
    We agree with the commenter, the language proposed in Sec.  
172.802(b)(1) through (3) of the NPRM provides necessary clarity and 
responsibility for compliance with security plan requirements. In this 
final rule we are adopting Sec.  172.802(b) as proposed.
3. Security Assessment in Writing (Sec.  172.802(c))
    Section 172.802 of the HMR establishes the components that must be 
included as part of a hazardous materials transportation security plan. 
Paragraph (a) of this section requires that a security plan include an 
assessment of possible transportation security risks associated with 
the hazardous materials covered by the security plan and appropriate 
measures to address the identified security risks. This assessment is 
part of the plan and must be in writing and maintained with the plan in 
accordance with Sec.  172.802(b). Stakeholders have indicated that 
there is some confusion as to whether the security risk assessment is 
part of the security plan and if it must be in writing. To clarify 
concerns, the NPRM proposed language indicating that the security plan, 
including the security risk assessment, must be in writing and must be 
retained for as long as the plan remains in effect. One commenter, 
DGAC, opposes the requirement for assessments to be written, suggesting 
that written vulnerability assessments provide little to no security 
benefit and impose a paperwork burden. We disagree with DGAC. The risk 
assessment is the foundation of a security plan. If the assessment is 
not in writing, it will be difficult for a company to match the

[[Page 10984]]

components of its security plan to the vulnerabilities identified. 
Moreover, in the absence of a written risk assessment, it will be 
difficult--if not impossible--for enforcement personnel to determine 
whether a security plan conforms to HMR requirements.
    We note concerning the proposal in the NPRM that the requirement 
for a risk assessment to be included in the security plan is not a new 
requirement. We have addressed this and the requirement for plans to be 
in writing in guidance issued over the last several years. For example, 
in a February 27, 2004 letter to Mr. Jim Smith (Ref. No. 04-0293; 
Docket entry PHMSA-06-25885-0175), we clearly stated that a security 
plan must include an assessment of possible transportation security 
risks for shipments of the covered hazardous materials and appropriate 
measures to address the assessed risks. At a minimum, the security plan 
must address personnel security, unauthorized access, and en route 
security issues. Similarly, in a May 16, 2007 letter to Ms. Susan Leith 
(Ref. No. 07-0086; Docket entry PHMSA-06-25885-0176), we agreed with 
the requester that the security plan must be in writing. We indicated 
that posting a security plan on a company's intranet that is accessible 
to company employees on a need-to-know basis and readily printed if 
necessary would be considered ``in writing.'' In light of stakeholder 
concerns, this final rule clarifies existing requirements for including 
the risk assessment as part of the overall security plan by adopting 
the language proposed in Sec.  172.802(c).
4. Annual Review (Sec.  172.802(c))
    In the NPRM we proposed a requirement for the security plan to be 
reviewed at least annually and updated if circumstances change (e.g., 
acquisitions, mergers, operating rights, materials transported, and 
expanded or reduced service levels). Dominion, Arkema Inc., USWAG, ATA, 
and NTTC all indicate that the requirement for security plans to be 
updated as necessary to reflect changing circumstances is sufficient 
and that it is unclear how requiring annual review increases the 
effectiveness.
    When we adopted the requirement for security plans to be updated as 
necessary to reflect changing circumstances, our expectation was that 
plans would be reviewed at least annually and perhaps more often so 
that they could be updated to reflect changing circumstances. According 
to stakeholders and PHMSA enforcement personnel, plans are not being 
reviewed regularly. As a result, plans are not updated. The addition of 
a requirement for annual review and update to reflect changing 
circumstances will ensure that shippers and carriers keep abreast of 
changing conditions that affect the security of the shipments they 
handle and ensure that security measures in place are appropriate and 
effective. By their nature, security considerations are always changing 
and must be continually evaluated at the ground level by offerors and 
transporters to be effective. Therefore, in this final rule, we are 
adopting the proposed requirement for the security plan to be reviewed 
at least annually and updated to reflect changing circumstances.
5. Risk Assessment and Security Plan Documentation (Sec.  172.802(c) 
and (d))
    In the NPRM we proposed a requirement for the security plan to be 
made available to employees. Currently, and as proposed in the NPRM, 
the security plan must include an assessment of transportation security 
risks. Commenters expressed concern regarding the vulnerabilities that 
may develop from broad distribution of the entire security plan, 
especially the risk assessment. In addition, one commenter, Arkema 
Inc., requests clarification on what is required for a risk 
assessment--it asks for an example of the methodology that should be 
used and what should be maintained at the corporate vs. site-specific 
level.
    We agree with commenters that the distribution of security plans to 
employees without regard to job function and need-to-know, may not be 
in the best interest of security. Generally, we believe that employees 
should be involved in the risk assessment process at the onset. 
Employees should be given the opportunity to discuss security concerns 
of which they are aware and recommend measures that may be used to 
address identified risks. However, consistent with personnel security 
clearance or background check investigation restrictions and 
demonstrated need-to-know, it is at the discretion of the hazmat 
employer as to the extent to which employees are granted access to the 
completed plan. At a minimum, the employees need to be made aware of 
security changes and activities for which they are responsible. We 
believe that the language provided in Sec.  172.802(c) of the NPRM is 
adequate to allow employers to make employees aware of the overall 
security posture of the company and of their specific security roles 
and responsibilities, without requiring them to share the entire plan. 
As a result, we are adopting the language as proposed.
    In response to Arkema's request for clarification regarding the 
requirements for maintaining documentation, current and proposed 
security plan requirements indicate that the security plan, which 
includes the risk assessment, must be maintained in writing and for as 
long as it remains in effect. Each person must maintain the security 
plan at its principal place of business. Generally, the principal place 
of business is the location of the head office of a business where the 
books and records are kept and/or management works. However, for 
companies that operate more than one site or facility for which 
security plans are required, the security plan must be readily 
available to the employees responsible for implementing the plan and 
must be provided at a reasonable time and location to an authorized 
official of DOT or TSA and other authorized DHS officials upon request. 
Therefore, each facility must have the plan on file or have the 
capability of accessing or receiving the plan from the principal place 
of business. This final rule adopts the requirement as proposed in the 
NPRM. Note that for purposes of compliance with this requirement, a 
shipper or carrier may maintain its security plan electronically, such 
as on a secure intranet site or CD, so long as it can be accessed by 
employees responsible for its implementation, printed and distributed 
as necessary, and provided expeditiously to enforcement personnel upon 
request.
    In response to Arkema's request for an example of the methodology 
that should be used when conducting risk assessments, we point to the 
Risk Management Self-Evaluation Framework (RMSEF) on our website. The 
framework illustrates 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 RMSEF is posted on our website at the following URL: 
http://www.phmsa.dot.gov/hazmat/risk/rmsef. Other risk assessment tools 
are equally valid. This final rule does not require persons subject to 
the security plan requirement to use a specific risk assessment tool to 
meet the risk assessment requirement. Using risk assessment 
methodology, a company will select an appropriate level of detail for 
its security plan based on the assessed risks identified for such 
material or materials. Factors that may be considered are the type or 
types of materials transported, the quantity of material transported, 
the area from or to

[[Page 10985]]

which the material is shipped, and the mode of transportation used.

C. Security Training

    In the NPRM we proposed to clarify that the in-depth security 
training requirements in Sec.  172.704(a)(5) apply only to hazmat 
employees who are directly involved with implementing security plans. 
Companies that are subject to the security plan requirements in Subpart 
I of Part 172 are required to provide in-depth training concerning 
their security plan and its implementation. Additionally, as discussed 
above, the NPRM proposed to require security plans to be reviewed at 
least once each year and updated as necessary to reflect changing 
circumstances. The in-depth security training requirement must be 
provided to hazmat employees responsible for the plan's implementation 
once every three years, in accordance with Sec.  172.704(c). To align 
these requirements the NPRM proposed to require in-depth security 
training once every three years or, if the security plan is revised 
during the recurrent training cycle, within 90 days of implementation 
of the revised security plan. In this way, those hazmat employees 
responsible for implementing the security plan will be trained in a 
timely manner concerning any changes or revisions to the plan.
    USWAG does not support the provision in proposed Sec.  
172.704(c)(2) requiring recurrent training when the security plan is 
revised. USWAG suggests that we limit the recurrent training to 
``changes that affect the critical components of the security plan, 
namely `unauthorized access' and `en route security' as identified by 
Sec.  172.704(a)(2) and (3) and only for those employees affected.'' 
Norfolk Southern states, ``PHMSA should provide a distinct break 
between the foregoing first two categories of hazmat employees (those 
handling hazmat or performing regulated hazmat function) versus key 
employees who are responsible for implementing a railroad's security 
plan.'' Another commenter, AAR states, ``in-depth training is 
appropriate for employees responsible for implementing a security 
plan.'' According to AAR, in-depth training is not appropriate for 
employees who handle the materials or perform a regulated function.
    Current language requires each employee of a hazmat employer that 
has a security plan to be provided in-depth security training. 
Similarly, we currently require recurrent training when changes are 
made that impact the hazmat employee's job function. For example, if we 
publish a new regulation, change an existing regulation, or if an 
employer revises a security plan, a hazmat employee must be instructed 
in those new or revised requirements without regard to the three year 
training cycle. Therefore, the revisions to the training requirements 
simply clarify existing requirements. In this final rule we are 
adopting the requirements in Sec.  172.704 as proposed.

D. Other Comments

1. One Time Shipments
    The NPRM did not address the concept of one-time shipments. Various 
commenters support regulatory relief for one-time or first-time 
shipments of materials that require security plans. One commenter, 
Dominion, suggests that PHMSA except facilities with ``one-time'' 
shipments or events from the security plan requirements and provide a 
reasonable period of time for new companies to institute security 
plans. Another commenter, USWAG, requests that we clarify our 
expectations for ``facilities that are faced with two distinct factual 
scenarios: (i) Where a facility has triggered a security plan threshold 
but does not expect to trigger any threshold in the future (i.e., `one-
time' event) and (ii) where a facility has triggered a threshold and 
will likely trigger a security plan threshold in the future.''
    The security plan requirements apply to any person who offers and/
or transports listed hazardous materials in commerce. They have been 
established to promote the secure transportation of hazardous materials 
in commerce. It is not practicable to provide a broad exception that 
waives security plan requirements simply to accommodate one-time 
shipments of hazardous materials. Therefore, we are not adopting a 
procedure for one-time shipments in this final rule.
2. Modal Variations
    The NPRM did not elaborate on differences in security plans based 
on the mode of transportation used. One commenter, Dow, suggests that 
security plan requirements should vary by mode of transportation 
because security risks will ``differ due to the unique aspects of each 
mode.''
    We agree with the commenter that security risks may well differ 
among different modes of transport. Persons who offer for 
transportation materials for which a security plan is required must 
assess and address security vulnerabilities for all the modes of 
transport utilized. 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 the event that additional requirements are deemed to be 
necessary for specific modes, we will address those through rulemaking. 
An example of mode specific security plan requirements is the rail 
routing regulation in Sec.  172.820 of the HMR, which were adopted in 
an interim final rule published April 16, 2008 (73 FR 20751) and 
finalized in a final rule published November 26, 2008 (73 FR 72182). 
The section requires, for a narrow list of materials, rail carriers to 
collect data on rail transportation routes, analyze the data collected, 
assess practicable alternative routes, and select the safest and most 
secure route.\1\
---------------------------------------------------------------------------

    \1\ TSA also requires freight rail carriers and certain 
facilities handling specified hazardous materials to implement chain 
of custody and control requirements to ensure a positive and secure 
exchange of the specified hazardous materials. 49 CFR 1580.107.
---------------------------------------------------------------------------

3. Exceptions and IBCs
    Three commenters ask for clarification of the applicability of the 
security plan requirements to materials shipped under exceptions and to 
residues. Commenters also asked whether security planning requirements 
apply to hazardous materials transported in IBCs.
    The security plan requirements apply to the materials listed in 
Sec.  172.800(b) as amended by this final rule. Materials shipped in 
accordance with an exception authorized under the HMR, such as the 
materials of trade exception in Sec.  173.6, small quantity exceptions 
in [list the new sections as established in HM-215J], or limited 
quantity or consumer commodity exceptions, are not subject to security 
planning requirements. In accordance with Sec.  172.800(b), listed 
materials offered for transportation or transported at or above the 
threshold quantity indicated are subject to security plan requirements, 
including residue quantities in excess of the established thresholds. 
Materials for which the established threshold is 3,000 L (793 gallons) 
or 3,000 kg (6,614 lbs.) that are transported in an IBC or other

[[Page 10986]]

packaging with a capacity that is below the established threshold are 
not subject to security planning requirements.
4. Shipper's Responsibility
    Commenters express concern regarding enforcement actions taken 
against carriers as a result of errors made by shippers. Specifically, 
in its comments COSTHA requests that PHMSA add language to protect the 
carrier from enforcement action when a shipper fails to declare a 
shipment as being subject to the security plan requirement. Similarly, 
ATA requests the inclusion of a provision indicating that the 
``transportation of undeclared hazardous materials is not a violation 
of the HMR, unless the carrier has knowledge that a specific package 
contained undeclared security sensitive hazardous materials.''
    It is the carrier's responsibility to develop and implement 
security plans for materials that it transports that are in excess of 
the thresholds established by this final rule. We note that in 
accordance with Sec.  171.2(f) of the HMR, an offeror and carrier may 
rely on information provided by a previous offeror or carrier unless it 
knows, or a reasonable person acting in the circumstances and 
exercising reasonable care would know, that the information provided to 
them is incorrect. Under section 5123(a)(1) of the Federal hazardous 
materials transportation law (49 U.S.C. 5101 et seq.), a person acts 
knowingly when the person has actual knowledge of the facts giving rise 
to the violation; or a reasonable person acting in the circumstances 
and exercising reasonable care would have that knowledge. While we 
consider enforcement actions on a case-by-case basis considering the 
specific circumstances surrounding non-compliance with the regulations, 
we can say that it is unlikely that we would pursue an enforcement 
action against a carrier for failure to have a security plan if the 
carrier relied on information about the shipment provided by a previous 
offeror or carrier in the transportation chain and the carrier did not 
know or have reason to believe that the information provided was 
incorrect.
5. Implementation Timeline
    One commenter, Horizon Lines, Inc, suggests that the proposed 
changes to the security plan will require modification to plans in 
existence today and requests that enough time be provided for training 
to be completed without creating an undue burden and expense for 
industry.
    We disagree that the proposed changes to the security plan will 
require modification to plans in existence today. This final rule 
narrows the list of materials subject to security plan requirements and 
provides clarity in areas where the requirements are often 
misunderstood (e.g., security planning, training, and documentation). 
This final rule, taken as a whole, reduces the number of persons 
subject to the regulatory costs and paperwork burden attributable to 
PHMSA's security planning requirements. It does not increase the 
training burden or require modification of existing security plans. 
However, we understand the concerns expressed by Horizon Lines, Inc. As 
such, we will allow voluntary compliance 30 days after publication of 
this final rule and extend the effective date to October 1, 2010. This 
will provide an opportunity for companies to account for any changes 
they may choose to implement.

IV. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rulemaking is considered a significant regulatory action under 
section 3(f) of Executive Order 12866 and the Regulatory Policies and 
Procedures of the Department of Transportation (44 FR 11032). This 
final rule was reviewed by the Office of Management and Budget.
    Executive Order 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.'' Because this 
final rule narrows the list of materials for which security plans are 
required, it will reduce the number of shippers and carriers required 
to develop security plans in accordance with Subpart I of Part 172 of 
the HMR. It is estimated that about 10,119 entities will no longer be 
subject to current security plan and associated in-depth training 
requirements. The annual benefit resulting from this final rule is 
estimated to be about $3.6 million-$2.8 million in avoided costs 
related to development of security plans and $0.8 million in costs 
savings for associated training. Evaluated over a 15-year period at the 
standard discount rate of 7%, the estimated net present value of the 
cost savings is approximately $32.6 million. The regulatory impact 
assessment is accessible by PHMSA docket number (PHMSA-06-25885) 
through the Federal eRulemaking Portal (http://www.regulations.gov).

B. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria set forth in Executive Order 13132 (``Federalism''). This 
final rule will preempt State, local and Indian tribe requirements but 
will not have 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.

C. Executive Order 13175

    This final rule was analyzed in accordance with the principles and 
criteria set forth in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final rule 
does not have tribal implications, and does not impose substantial 
direct compliance costs, the funding and consultation requirements of 
Executive Order 13175 do not apply.

D. 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. PHMSA has 
determined that, while the requirements of the final rule would apply 
to a substantial number of small entities, the economic impact on those 
small entities would not be substantial, though it would be positive.
    As indicated above, about 10,119 entities will be provided relief 
from current security plan and in-depth training requirements as a 
result of this final rule. These entities are persons who offer for 
transportation or transport hazardous materials in commerce. Unless 
alternative definitions have been established by the agency in 
consultation with the Small Business Administration (SBA), the 
definition of ``small business'' has the same meaning as under the 
Small Business Act. Since no such special definition has been 
established, the thresholds published by SBA for industries subject to 
the HMR are utilized. Fewer than 90% of shippers and carriers affected 
by the changes in this final rule are small businesses.
    Based on an analysis of the potential reduction in cost associated 
with this final rule, PHMSA concludes that, while the rule applies to a 
substantial number of small entities, it does not have a significant 
economic impact on those

[[Page 10987]]

small entities. For a small business that will no longer be subject to 
the security plan requirements and associated in-depth training 
requirements, the cost savings is between $332 and $437 annually.

E. Paperwork Reduction Act

    PHMSA currently has an approved information collection under OMB 
Control Number 2137-0612, ``Hazardous Materials Security Plans'' with 
an expiration date of June 30, 2011. This final rule will result in a 
decrease in the annual burden and costs under OMB Control Number 2137-
0612 due to changes adopted in this final rule to revise the list of 
materials for which hazardous materials transportation security plans 
are required.
    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to an information collection unless it has been approved by OMB 
and displays a valid OMB control number. Pursuant to 5 CFR 1320.8(d), 
PHMSA is required to provide interested members of the public and 
affected agencies with an opportunity to comment on information 
collection and recordkeeping requests. This final rule identifies a 
revised information collection request that PHMSA will submit to the 
Office of Management and Budget (OMB) for approval based on the 
requirements in this final rule.
    PHMSA has developed burden estimates to reflect changes in this 
final rule and estimates that the information collection and 
recordkeeping burden in this rule would be decreased as follows:
    OMB Control No. 2137-0612:
    Decrease in Annual Number of Respondents: 10,119
    Decrease in Annual Responses: 10,119
    Decrease in Annual Burden Hours: 55,655
    Decrease in Annual Burden Costs: $2,782,750
    Requests for a copy of this information collection should be 
directed to Deborah Boothe or T. Glenn Foster, Office of Hazardous 
Materials Standards (PHH-11), Pipeline and Hazardous Materials Safety 
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001, 
Telephone (202) 366-8553.

F. 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.

G. Unfunded Mandates Reform Act

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$132 million or more to either State, local or tribal governments, in 
the aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objective of the rule.

H. Environmental Assessment

    The National Environmental Policy Act (NEPA), sections 4321-4375, 
requires Federal agencies to analyze proposed actions to determine 
whether the action will have a significant impact on the human 
environment. The Council on Environmental Quality (CEQ) regulations 
order Federal agencies to conduct an environmental review considering 
(1) the need for the proposed action, (2) alternatives to the proposed 
action, (3) probable environmental impacts of the proposed action and 
alternatives, and (4) the agencies and persons consulted during the 
consideration process. 40 CFR 1508.9(b).
    Purpose and Need. The current security plan requirements, which 
became effective on September 25, 2003, apply to shipments of placarded 
loads of hazardous materials and to select agents. PHMSA has received 
two petitions for rulemaking requesting a review and reevaluation of 
the requirements. The petitioners cite several examples of hazardous 
materials that, based on hazard class and quantity, require placarding 
under the HMR and, therefore, are subject to security plan 
requirements. Examples include automobile batteries, inks, paint, and 
flavoring extracts. Petitioners suggest that it is highly unlikely a 
terrorist would use such materials to cause loss of life, destruction 
of property, or damage to the environment.
    PHMSA agrees with the petitioners that the list of materials for 
which security plans are required should be revised. Since 2003, both 
the industry and the government have had four years of experience in 
evaluating security risks associated with specific hazardous materials 
and transportation environments and identifying appropriate measures to 
address those risks. The revisions made by this final rule are based on 
an evaluation of possible security threats posed by specific types and 
classes of hazardous materials and are intended to ensure that the 
security plan requirement applies only to those materials that present 
a significant security threat in transportation based on the hazard 
class and packing group of the material and the quantity or volume 
transported.
    Alternatives. PHMSA considered the following alternatives:
    No action--Under this alternative, security plan requirements would 
continue to apply to shipments of placarded loads of hazardous 
materials and to select agents, including some materials that do not 
pose a transportation security risk. This alternative is not risk-based 
and results in the over-regulation of materials that are not likely to 
be used in a terrorist or criminal act. This action is not recommended.
    Require security plans only for materials subject to FMCSA permit 
regulations--Under this alternative, security plan requirements would 
apply only to shipments of hazardous materials subject to safety permit 
requirements in accordance with FMCSA regulations at 49 CFR Part 385. A 
safety permit is required for certain shipments of radioactive 
materials, explosives, PIH materials, and compressed or refrigerated 
methane or liquefied natural gas. This alternative would not include a 
number of materials that pose a significant security risk, including 
flammable gases, flammable liquids, desensitized explosives, dangerous 
when wet materials, oxidizing materials, organic peroxides, poisons, 
and select agents. Selection of this alternative could result in 
significant adverse environmental impacts as a result of a terrorist or 
criminal action using such materials. This alternative is not 
recommended.
    Adopt UN Recommendations Criteria for Security Plan Requirements--
under this alternative, security plans would be required for the 
materials identified in the UN Recommendations as high consequence 
dangerous goods--that is, materials with the potential for misuse in a 
terrorist incident that may produce serious consequences such as mass 
casualties or mass destruction. The UN list of high consequence 
dangerous goods includes most of the hazardous materials that pose a 
significant transportation security risk. The materials that would no 
longer be subject to security planning requirements are unlikely to be 
targeted for criminal or terrorist use; therefore, the adverse 
environmental consequences of this alternative are expected to be 
minimal. With some modifications, as detailed in this final rule, this 
is the selected alternative.
    Analysis of Environmental Impacts. Hazardous materials are 
substances that may pose a threat to public safety or the

[[Page 10988]]

environment during transportation because of their physical, chemical, 
or nuclear properties. The hazardous material regulatory system is a 
risk management system that is prevention-oriented and focused on 
identifying a safety hazard and reducing the probability and quantity 
of a hazardous material release. Hazardous materials are categorized by 
hazard analysis and experience into hazard classes and packing groups. 
The regulations require each shipper to classify a material in 
accordance with these hazard classes and packing groups; the process of 
classifying a hazardous material is itself a form of hazard analysis. 
Further, the regulations require the shipper to communicate the 
material's hazards through use of the hazard class, packing group, and 
proper shipping name on the shipping paper and the use of labels on 
packages and placards on transport vehicles. Thus the shipping paper, 
labels, and placards communicate the most significant findings of the 
shipper's hazard analysis. A hazardous material is assigned to one of 
three packing groups based upon its degree of hazard--from a high 
hazard Packing Group I to a low hazard Packing Group III material. The 
quality, damage resistance, and performance standards of the packaging 
in each packing group are appropriate for the hazards of the material 
transported.
    Releases of hazardous materials, whether caused by accident or 
deliberate sabotage, can result in explosions or fires. Radioactive, 
toxic, infectious, or corrosive hazardous materials can have short or 
long term exposure effects on humans or the environment. Generally, 
however, the hazard class definitions are focused on the potential 
safety hazards associated with a given material or type of material 
rather than the environmental hazards of such materials.
    Under the HMR, hazardous materials may be transported by aircraft, 
vessel, rail, and highway. The potential for environmental damage or 
contamination exists when packages of hazardous materials are involved 
in accidents or en route incidents resulting from cargo shifts, valve 
failures, package failures, loading, unloading, collisions, handling 
problems, or deliberate sabotage. The release of hazardous materials 
can cause the loss of ecological resources and the contamination of 
air, aquatic environments, and soil. Contamination of soil can lead to 
the contamination of ground water. For the most part, the adverse 
environmental impacts associated with releases of most hazardous 
materials are short-term impacts that can be reduced or eliminated 
through prompt clean-up/decontamination of the accident scene.
    The security plan requirements in Subpart I of Part 172 of the HMR 
are intended to reduce the potentially catastrophic consequences, 
including adverse environmental consequences, of a criminal or 
terrorist incident involving hazardous materials in transportation. A 
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.
    This final rule narrows the list of materials for which a security 
plan is currently required. It targets the security plan regulations to 
those materials that pose a significant transportation security risk. 
It is possible to envision scenarios in which hazardous materials other 
than those identified in this final rule could be used to inflict 
serious damage in a terrorist or criminal incident. However, our 
assessment of the security risks associated with such materials, 
detailed elsewhere in this preamble, suggests that they are unlikely to 
be targeted. PHMSA therefore concludes that there are no significant 
environmental impacts associated with this final rule.
    Consultation and Public Comment. As discussed above, PHMSA 
published an ANPRM and hosted a public meeting to solicit public 
comments concerning whether the list of materials for which security 
plans are currently required should be modified. Commenters were asked 
to address a number of issues related to the identification of 
materials that pose a security threat sufficient to justify preparation 
and implementation of a security plan. Thirty-four comments were 
received from industry associations, shippers, carriers, and private 
citizens. In addition, six people made presentations at the public 
meeting.

List of Subjects in 49 CFR Part 172

    Hazardous materials transportation, Hazardous waste, Labeling, 
Packaging and containers, Reporting and recordkeeping requirements.

0
In consideration of the foregoing, PHMSA is amending title 49 Chapter 
I, Subchapter C, as follows:

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND 
TRAINING REQUIREMENTS

0
1. The authority citation for part 172 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128, 44701; 49 CFR 1.53.


0
2. In Sec.  172.704, paragraphs (a)(5), and (c)(2) are revised to read 
as follows:


Sec.  172.704  Training requirements.

    (a) * * *
    (5) In-depth security training. Each hazmat employee of a person 
required to have a security plan in accordance with subpart I of this 
part who handles hazardous materials covered by the plan, performs a 
regulated function related to the hazardous materials covered by the 
plan, or is responsible for implementing the plan must be trained 
concerning the security plan and its implementation. Security training 
must include company security objectives, organizational security 
structure, specific security procedures, specific security duties and 
responsibilities for each employee, and specific actions to be taken by 
each employee in the event of a security breach.
* * * * *
    (c) * * *
    (2) Recurrent training. A hazmat employee must receive the training 
required by this subpart at least once every three years. For in-depth 
security training required under paragraph (a)(5) of this section, a 
hazmat employee must be trained at least once every three years or, if 
the security plan for which training is required is revised during the 
three-year recurrent training cycle, within 90 days of implementation 
of the revised plan.
* * * * *

0
3. In Sec.  172.800, paragraph (b) is revised to read as follows:


Sec.  172.800  Purpose and applicability.

* * * * *
    (b) Applicability. Each person who offers for transportation in 
commerce or transports in commerce one or more of the following 
hazardous materials must

[[Page 10989]]

develop and adhere to a transportation security plan for hazardous 
materials that conforms to the requirements of this subpart. As used in 
this section, ``large bulk quantity'' refers to a quantity greater than 
3,000 kg (6,614 pounds) for solids or 3,000 liters (792 gallons) for 
liquids and gases in a single packaging such as a cargo tank motor 
vehicle, portable tank, tank car, or other bulk container.
    (1) Any quantity of a Division 1.1, 1.2, or 1.3 material;
    (2) A quantity of a Division 1.4, 1.5, or 1.6 material requiring 
placarding in accordance with Sec.  172.504(c);
    (3) A large bulk quantity of Division 2.1 material;
    (4) A large bulk quantity of Division 2.2 material with a 
subsidiary hazard of 5.1;
    (5) Any quantity of a material poisonous by inhalation, as defined 
in Sec.  171.8 of this subchapter;
    (6) A large bulk quantity of a Class 3 material meeting the 
criteria for Packing Group I or II;
    (7) A quantity of a desensitized explosives meeting the definition 
of a Division 4.1 or Class 3 material requiring placarding in 
accordance with Sec.  172.504(c);
    (8) A large bulk quantity of a Division 4.2 material meeting the 
criteria for Packing Group I or II;
    (9) Any quantity of a Division 4.3 material;
    (10) A large bulk quantity of a Division 5.1 material in Packing 
Groups I and II; perchlorates; or ammonium nitrate, ammonium nitrate 
fertilizers, or ammonium nitrate emulsions, suspensions, or gels;
    (11) Any quantity of organic peroxide, Type B, liquid or solid, 
temperature controlled;
    (12) A large bulk quantity of Division 6.1 material (for a material 
poisonous by inhalation see paragraph (5) above);
    (13) A select agent or toxin regulated by the Centers for Disease 
Control and Prevention under 42 CFR part 73 or the United States 
Department of Agriculture under 9 CFR part 121;
    (14) A quantity of uranium hexafluoride requiring placarding under 
Sec.  172.505(b);
    (15) International Atomic Energy Agency (IAEA) Code of Conduct 
Category 1 and 2 materials including Highway Route Controlled 
quantities as defined in 49 CFR 173.403 or known as radionuclides in 
forms listed as RAM-QC by the Nuclear Regulatory Commission;
    (16) A large bulk quantity of Class 8 material meeting the criteria 
for Packing Group I.
* * * * *

0
4. In Sec.  172.802, revise paragraph (a) introductory text, 
redesignate paragraph (b) as paragraph (c) and revise it, and add new 
paragraphs (b) and (d), to read as follows:


Sec.  172.802  Components of a security plan.

    (a) The security plan must include an assessment of transportation 
security risks for shipments of the hazardous materials listed in Sec.  
172.800, including site-specific or location-specific risks associated 
with facilities at which the hazardous materials listed in Sec.  
172.800 are prepared for transportation, stored, or unloaded incidental 
to movement, and appropriate measures to address the assessed risks. 
Specific measures put into place by the plan may vary commensurate with 
the level of threat at a particular time. At a minimum, a security plan 
must include the following elements:
* * * * *
    (b) The security plan must also include the following:
    (1) Identification by job title of the senior management official 
responsible for overall development and implementation of the security 
plan;
    (2) Security duties for each position or department that is 
responsible for implementing the plan or a portion of the plan and the 
process of notifying employees when specific elements of the security 
plan must be implemented; and
    (3) A plan for training hazmat employees in accordance with Sec.  
172.704 (a)(4) and (a)(5) of this part.
    (c) The security plan, including the transportation security risk 
assessment developed in accordance with paragraph (a) of this section, 
must be in writing and must be retained for as long as it remains in 
effect. The security plan must be reviewed at least annually and 
revised and/or updated as necessary to reflect changing circumstances. 
The most recent version of the security plan, or portions thereof, must 
be available to the employees who are responsible for implementing it, 
consistent with personnel security clearance or background 
investigation restrictions and a demonstrated need to know. When the 
security plan is updated or revised, all employees responsible for 
implementing it must be notified and all copies of the plan must be 
maintained as of the date of the most recent revision.
    (d) Each person required to develop and implement a security plan 
in accordance with this subpart must maintain a copy of the security 
plan (or an electronic file thereof) that is accessible at, or through, 
its principal place of business and must make the security plan 
available upon request, at a reasonable time and location, to an 
authorized official of the Department of Transportation or the 
Department of Homeland Security.

    Issued in Washington, DC, on March 1, 2010, under authority 
delegated in 49 CFR Part 1.
Cynthia L. Quarterman,
Administrator.
[FR Doc. 2010-4778 Filed 3-8-10; 8:45 am]
BILLING CODE 4910-60-P