Security Requirements for Motor Carriers Transporting Hazardous Materials, 35211-35213 [E7-12404]

Download as PDF Federal Register / Vol. 72, No. 123 / Wednesday, June 27, 2007 / Proposed Rules DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 177 [Docket No. FMCSA–02–11650 (HM–232A)] RIN 2137–AD70 Security Requirements for Motor Carriers Transporting Hazardous Materials Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Advance Notice of Proposed Rulemaking (ANPRM); withdrawal. AGENCY: SUMMARY: This withdrawal advises the public that the Transportation Security Administration (TSA) of the Department of Homeland Security (DHS) has assumed the lead role from the Pipeline and Hazardous Materials Safety Administration (PHMSA) for rulemaking addressing the security of motor carrier shipments of hazardous materials under this docket. Accordingly, PHMSA is withdrawing the ANPRM issued under this docket and closing its rulemaking proceeding. This action is consistent with and supportive of the respective transportation security roles and responsibilities of the Department of Transportation and DHS as delineated in a Memorandum of Understanding (MOU) signed September 28, 2004, and of TSA and PHMSA as outlined in an Annex to that MOU signed August 7, 2006. PHMSA will continue to consider alternatives for enhancing the safety of explosives stored during transportation under another rulemaking docket. PHMSA will consult and coordinate with TSA on hazardous materials transportation security issues in accordance with the PHMSA–TSA Annex. The ANPRM published at 67 FR 46622, July 16, 2002, is withdrawn as of June 27, 2007. FOR FURTHER INFORMATION CONTACT: Susan Gorsky or Ben Supko, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration, telephone (202) 366– 8553. DATES: sroberts on PROD1PC70 with PROPOSALS SUPPLEMENTARY INFORMATION: I. Background A. Joint PHMSA–FMCSA ANPRM On July 16, 2002 (67 FR 46622), the Research and Special Programs Administration (predecessor to the Pipeline and Hazardous Materials Safety VerDate Aug<31>2005 16:41 Jun 26, 2007 Jkt 211001 Administration (PHMSA)) and the Federal Motor Carrier Safety Administration (FMCSA) jointly published an advance notice of proposed rulemaking (ANPRM) seeking comments on the feasibility, costs, and benefits of requiring motor carriers that transport hazardous materials to employ certain enhanced security measures. Specific measures discussed in the ANPRM included escorts, vehicle tracking and monitoring systems, emergency warning systems, remote ignition shut-offs, direct short-range communications, notification to state and local authorities, and safe havens for the temporary storage of explosives during transportation. We received over 80 sets of comments in response to the ANPRM. Commenters encouraged DOT to apply enhanced security measures only to those materials presenting a significant security risk and expressed various views on the merits of particular security measures, as summarized in the following section. As a result of PHMSA’s expanded authority to regulate hazardous materials transportation security, granted to PHMSA under section 1711 of the Homeland Security Act, FMCSA issued a notice on March 19, 2003 (68 FR 13250) that transferred any future action on Docket HM–232A to PHMSA. B. Summary of Comments on Issues Discussed in ANPRM Escorts. Most commenters oppose armed escorts, whether on the vehicle itself or accompanying the vehicle. Many commenters suggest armed escorts could actually increase the vulnerability of a shipment by drawing attention to the vehicle and because of the increased number of stops a support vehicle would be required to make. Most commenters also express concern that the use of escorts would be cost prohibitive and could result in carriers refusing shipments for which escorts would be required. Commenters also expressed concern about logistical problems and higher insurance premiums (related to liability issues associated with armed escorts). Finally, commenters suggest ‘‘mixing’’ firearms and hazardous materials in transportation could increase safety problems because firearms are a potential source of ignition for explosives and certain other types of hazardous materials. Pre-notification. Most commenters oppose pre-notification of state and/or local governments of planned shipments of hazardous materials. Commenters suggest a pre-notification requirement would overload emergency responders with information and likely detract from PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 35211 their ability to respond promptly and efficiently to an incident or accident. Commenters note it is unlikely emergency response organizations have the personnel or resources necessary to manage the volume of information that would be received. Commenters also express concern that a pre-notification requirement could actually compromise security by making shipment information more widely available than would otherwise be the case. Shippers and carriers would be required to provide load-specific information (e.g., product name and hazard, routing, timing), which would then be disseminated to a variety of individuals and organizations. The opportunity for disclosure, whether deliberate or inadvertent, would be high. Commenters note volunteer emergency response organizations conduct virtually no security background checks. Finally, commenters outline a number of operational concerns, including handling road detours and route changes, related to increasing transportation times and adverse affects on supply chains for a host of industries that rely on ‘‘just-in-time’’ deliveries to manage inventories. Safe Havens. A ‘‘safe haven’’ is an area specifically approved in writing by Federal, state, or local government authorities for the parking of unattended vehicles containing Division 1.1, 1.2, and 1.3 explosive materials (49 CFR 397.5(d)(3)). The competent local authority having jurisdiction over the area generally makes the decision as to what constitutes a safe haven. There are no Federal standards for safe havens. Commenters support the continued use of safe havens, but recommend DOT develop Federal standards to provide details on the construction, maintenance, availability, and use of safe havens. Without clearly defined standards to follow, commenters state any future reliance on safe havens may actually make the hazardous materials stored there more susceptible to safety and security threats than if they were stored at other locations. Due to the complexity of the safe haven issue and commenter response, PHMSA and FMCSA decided to split the safe havens issue from the other enhanced security measures proposed in the ANPRM by placing it in a separate docket (HM–238). On November 16, 2005, PHMSA published an ANPRM (70 FR 69493) to solicit additional comments on the safety and security issues associated with the storage of explosives during transportation and the need for additional regulatory requirements. The ANPRM includes summaries of current E:\FR\FM\27JNP1.SGM 27JNP1 35212 Federal Register / Vol. 72, No. 123 / Wednesday, June 27, 2007 / Proposed Rules sroberts on PROD1PC70 with PROPOSALS government and industry standards applicable to such storage. We are currently evaluating the comments received in response to this ANRPM to determine whether additional rulemaking is warranted. Vehicle tracking and monitoring systems, emergency warning systems, remote shut-offs, and direct short range communications. In December 2004, FMCSA completed a two-year national field operational test of existing technologies that could offer solutions to enhance the security of motor carrier shipments of hazardous materials. The test evaluated the costs, benefits, and operational processes required for wireless communications systems, including GPS tracking and digital telephones; in-vehicle technologies, such as on-board computers, panic buttons, and electronic cargo seals; personal identification systems, including biometrics and a user name/ password system; and vehicle tracking, including geofencing and trailer tracking systems. The tested technologies performed well under operational conditions and showed promise for significantly reducing security vulnerabilities. II. DOT/PHMSA and DHS/TSA Transportation Security Responsibilities The Federal hazardous materials transportation law (Federal hazmat law, 49 U.S.C. 5101 et seq., as amended by § 1711 of the Homeland Security Act of 2002, Pub. L. 107–296 and Title VII of the 2005 Safe, Accountable, Flexible and Efficient Transportation Equity Act—A Legacy for Users (SAFETEA– LU)) authorizes the Secretary of the Department of Transportation to ‘‘prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.’’ The Secretary has delegated this authority to PHMSA. The Hazardous Materials Regulations (HMR; 49 CFR Parts 171– 180) promulgated by PHMSA under the mandate in section 5103(b), govern safety aspects, including security, of the transportation of hazardous materials. Under the Aviation and Transportation Security Act (ATSA), Public Law 107–71, 115 Stat. 597 (November 19, 2001), and delegated authority from the Secretary of Homeland Security (DHS), the Assistant Secretary of DHS for TSA has broad responsibility and authority for ‘‘security in all modes of transportation’’ (49 U.S.C. 114(d)).’’ ATSA authorizes TSA to take immediate action to protect against threats to transportation security. VerDate Aug<31>2005 16:41 Jun 26, 2007 Jkt 211001 TSA’s authority over the security of transportation stems from several provisions of 49 U.S.C. 114. In executing its responsibilities and duties, TSA is specifically empowered to develop policies, strategies and plans for dealing with threats to transportation (49 U.S.C. 114(f)(3)). As part of its security mission, TSA is responsible for assessing intelligence and other information in order to identify individuals who pose a threat to transportation security and to coordinate countermeasures with other Federal agencies to address such threats (49 U.S.C. 114(f)(1)–(5), (h)(1)–(4)). TSA is also mandated to enforce securityrelated regulations and requirements (49 U.S.C. 114(f)(7)); ensure the adequacy of security measures for the transportation of cargo (49 U.S.C. 114(f)(10)); oversee the implementation and ensure the adequacy of security measures at transportation facilities (49 U.S.C. 114(f)(11)); and carry out other appropriate duties relating to transportation security (49 U.S.C. 114(f)(15)). TSA serves as the primary liaison for transportation security to the intelligence and law enforcement communities (49 U.S.C. 114(f)(1) and (5)). In sum, TSA’s authority with respect to transportation security is comprehensive and supported with specific powers related to the development and enforcement of regulations, security directives, security plans, and other requirements. Accordingly, under this authority, TSA may identify a security threat to any mode of transportation, develop a measure for dealing with that threat, and enforce compliance with that measure. As is evident from the above discussion, DHS and DOT share responsibility for hazardous materials transportation security. The two departments consult and coordinate on security-related hazardous materials transportation requirements to ensure they are consistent with the overall security policy goals and objectives established by DHS and that the regulated industry is not confronted with inconsistent security guidance or requirements promulgated by multiple agencies. On September 28, 2004, DOT and DHS signed a Memorandum of Understanding (MOU) on Roles and Responsibilities. The purpose of the MOU is to facilitate the development and deployment of transportation security measures that promote safety, security, and efficiency in the movement of people and goods. The MOU recognizes that DHS has primary responsibility for security in all modes PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 of transportation. In this regard, DHS will establish national security performance goals, and, to the extent practicable, develop appropriate transportation security measures to achieve an integrated national transportation security system. On August 7, 2006, PHMSA and TSA signed an annex to the September 28, 2004 DOT–DHS MOU. The Annex acknowledges TSA’s lead role in transportation security and that each agency brings core competencies, legal authority, resources, and expertise to their shared mission. The Annex reflects the agencies’ commitment to a system risk-based approach and to the development of practical solutions through work teams focused on key program elements, including research and development and the review and development of security standards. In entering into the Annex, PHMSA and TSA pledged to build on and not duplicate the various security initiatives and efforts already underway. III. TSA Hazardous Materials Truck Security Pilot In August 2005, TSA initiated the ‘‘TSA Hazardous Materials Truck Security Pilot.’’ This congressionally mandated pilot program is designed to test the functionality and capabilities of a centralized truck tracking system. The pilot utilizes specific protocols capable of interfacing with existing truck tracking systems, government intelligence centers, and first responders. The goal is to provide TSA with a tested and established truck tracking center that will allow TSA to ‘‘continually’’ track truck locations and specific hazardous materials load types in all 50 states. The tracking system will also allow for automatic or manual notification of exception based events. The TSA Hazardous Materials Truck Security Pilot including the prototype Truck Tracking Center is currently scheduled to operate through Fiscal Year 2007. IV. Withdrawal of PHMSA–FMCSA ANRPM Based on comments to the ANPRM and the results of the FMCSA Field Operational Test, two of the security measures addressed in the ANPRM— use of vehicle tracking and communications systems and anti-theft technologies—appear promising as means of enhancing the security of motor carrier transportation of certain classes and quantities of hazardous materials. In accordance with the DHS– DOT MOU and the PHMSA–TSA Annex, however, PHMSA, FMCSA, and TSA have determined action to address E:\FR\FM\27JNP1.SGM 27JNP1 Federal Register / Vol. 72, No. 123 / Wednesday, June 27, 2007 / Proposed Rules motor carrier security tracking should not be taken prior to the completion of TSA’s pilot, and, in any event, be carried out under TSA’s legal authority, rather than primarily as an amendment to the HMR. By contrast, the proposals to require use of escorts or a prenotification system do not appear worthy of further consideration. As mentioned above, PHMSA will continue to address safe havens and other issues related to the storage of explosives during transportation in Docket HM– 238. In the meantime, PHMSA will consult and coordinate with TSA on hazardous materials transportation security issues in accordance with the PHMSA–TSA Annex. Accordingly, PHMSA is withdrawing the July 16, 2002 ANPRM and terminating this rulemaking proceeding. Issued in Washington, DC, on June 1, 2007, under authority delegated in 49 CFR Part 1. Theodore L. Willke, Acting Associate Administrator for Hazardous Materials Safety. [FR Doc. E7–12404 Filed 6–26–07; 8:45 am] BILLING CODE 4910–60–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 070611120–7120–01; I.D. 032607A] RIN 0648–AU77 Fisheries Off West Coast States; Highly Migratory Species Fisheries National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. sroberts on PROD1PC70 with PROPOSALS AGENCY: SUMMARY: NMFS issues a proposed rule to implement daily bag limits for sportcaught albacore tuna (Thunnus alalunga) and bluefin tuna (Thunnus orientalis) in the Exclusive Economic Zone (EEZ) off California under the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP). This proposed rule would be implemented as a conservation measure as part of the 2007–2009 biennial management cycle as established in the HMS FMP Framework provisions for changes to routine management measures. DATES: Comments must be received by July 27, 2007. VerDate Aug<31>2005 16:41 Jun 26, 2007 Jkt 211001 You may submit comments on this notice, identified by I.D. 032607A, by any of the following methods: • E-mail: 0648–AU77.SWR@noaa.gov. Include the I.D. number in the subject line of the message. • Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments. • Mail: Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802–4213. • Fax: (562) 980–4047. FOR FURTHER INFORMATION CONTACT: Craig Heberer, Sustainable Fisheries Division, NMFS, 760–431–9440, ext. 303. ADDRESSES: On April 7, 2004, NMFS published a final rule to implement the HMS FMP (69 FR 18444) that included annual specification guidelines at 50 CFR 660.709. These guidelines establish a process for the Pacific Fishery Management Council (Council) to take final action at its regularly-scheduled November meeting on any necessary harvest guideline, quota, or other management measure and recommend any such action to NMFS. At their November 12–17, 2006, meeting, the Council adopted a recommendation to establish daily bag limits for sport caught albacore and bluefin tuna harvested in the EEZ off of California as a routine management measure for the 2007–2009 biennial management cycle. NMFS is initiating rulemaking for this action pursuant to procedures established at 50 CFR 660.709(a)(4) of the implementing regulations for the HMS FMP. This proposed rule would establish a daily bag limit of 10 albacore tuna harvested in the U.S. EEZ south of Point Conception (34° 27′ N. latitude) to the U.S.-Mexico border and a daily bag limit of 25 albacore tuna harvested in the U.S. EEZ north of Point Conception to the California-Oregon border. This proposed rule would also establish a daily bag limit of 10 bluefin tuna in the U.S. EEZ off the entire California coast. The two bag limits for albacore tuna are intended to accommodate differences in fishing opportunity in the two regions south and north of Point Conception. The 25 fish albacore tuna bag limit north of Point Conception is consistent with the current albacore tuna bag limit established by the State of Oregon for recreational fisheries in its waters and recognizes the more frequent weatherrelated loss of fishing opportunity in these waters compared to waters south of Pt. Conception. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 35213 California State regulations allow, by special permit, the retention of up to three daily bag limits for a trip occurring over multiple, consecutive days. California State regulations also allow for two or more persons angling for finfish aboard a vessel in ocean waters off California to continue fishing until boat limits are reached. NMFS and the Council would consider these additional state restrictions to be consistent with Federal regulations implementing the HMS FMP, including this proposed rule if implemented. If approved, this regulation will stay in effect until such time as the Council and/or NMFS proposes further modifications as part of the HMS FMP biennial management cycle process. The State of California has informed NMFS that it intends to implement companion regulations to impose daily albacore and bluefin bag limits applicable to recreational angling and possession of fish in state waters (0–3 nm). Classification NMFS has determined that the proposed rule is consistent with the HMS FMP and preliminarily determined that this proposed rule is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. Approximately 165 HMS recreational charter vessels based in California were permitted under the HMS FMP to operate in the HMS recreational fishery off the U.S. West Coast in 2006. The California HMS recreational charter vessels are considered small business entities. The HMS recreational charter fleet based in Oregon does not fish off the coast of California and would therefore not be impacted by this proposed rule. A review of historic recreational fisheries data in ocean waters adjacent to California by recreational anglers, in all marine areas, and all boat-based fishing modes from 1997 through 2005 shows that approximately 98 percent of sampled catches that contained albacore landed less than 10 fish per day. For the 2 percent of trips that would be impacted by this proposed rule, the estimated economic impact equates to a potential expenditure loss of 0.08 percent to 1.0 percent. The data for bluefin tuna catches shows that 100 percent of the 1997 through 2005 sampled catches that landed bluefin contained less than six fish per day therefore potential expenditure loss under this proposed rule would be zero. In addition, the E:\FR\FM\27JNP1.SGM 27JNP1

Agencies

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



[[Page 35211]]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 177

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


Security Requirements for Motor Carriers Transporting Hazardous 
Materials

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

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

-----------------------------------------------------------------------

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

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

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

SUPPLEMENTARY INFORMATION:

I. Background

A. Joint PHMSA-FMCSA ANPRM

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

B. Summary of Comments on Issues Discussed in ANPRM

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

[[Page 35212]]

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

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

    The Federal hazardous materials transportation law (Federal hazmat 
law, 49 U.S.C. 5101 et seq., as amended by Sec.  1711 of the Homeland 
Security Act of 2002, Pub. L. 107-296 and Title VII of the 2005 Safe, 
Accountable, Flexible and Efficient Transportation Equity Act--A Legacy 
for Users (SAFETEA-LU)) authorizes the Secretary of the Department of 
Transportation to ``prescribe regulations for the safe transportation, 
including security, of hazardous material in intrastate, interstate, 
and foreign commerce.'' The Secretary has delegated this authority to 
PHMSA. The Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) 
promulgated by PHMSA under the mandate in section 5103(b), govern 
safety aspects, including security, of the transportation of hazardous 
materials.
    Under the Aviation and Transportation Security Act (ATSA), Public 
Law 107-71, 115 Stat. 597 (November 19, 2001), and delegated authority 
from the Secretary of Homeland Security (DHS), the Assistant Secretary 
of DHS for TSA has broad responsibility and authority for ``security in 
all modes of transportation'' (49 U.S.C. 114(d)).'' ATSA authorizes TSA 
to take immediate action to protect against threats to transportation 
security.
    TSA's authority over the security of transportation stems from 
several provisions of 49 U.S.C. 114. In executing its responsibilities 
and duties, TSA is specifically empowered to develop policies, 
strategies and plans for dealing with threats to transportation (49 
U.S.C. 114(f)(3)). As part of its security mission, TSA is responsible 
for assessing intelligence and other information in order to identify 
individuals who pose a threat to transportation security and to 
coordinate countermeasures with other Federal agencies to address such 
threats (49 U.S.C. 114(f)(1)-(5), (h)(1)-(4)). TSA is also mandated to 
enforce security-related regulations and requirements (49 U.S.C. 
114(f)(7)); ensure the adequacy of security measures for the 
transportation of cargo (49 U.S.C. 114(f)(10)); oversee the 
implementation and ensure the adequacy of security measures at 
transportation facilities (49 U.S.C. 114(f)(11)); and carry out other 
appropriate duties relating to transportation security (49 U.S.C. 
114(f)(15)). TSA serves as the primary liaison for transportation 
security to the intelligence and law enforcement communities (49 U.S.C. 
114(f)(1) and (5)).
    In sum, TSA's authority with respect to transportation security is 
comprehensive and supported with specific powers related to the 
development and enforcement of regulations, security directives, 
security plans, and other requirements. Accordingly, under this 
authority, TSA may identify a security threat to any mode of 
transportation, develop a measure for dealing with that threat, and 
enforce compliance with that measure.
    As is evident from the above discussion, DHS and DOT share 
responsibility for hazardous materials transportation security. The two 
departments consult and coordinate on security-related hazardous 
materials transportation requirements to ensure they are consistent 
with the overall security policy goals and objectives established by 
DHS and that the regulated industry is not confronted with inconsistent 
security guidance or requirements promulgated by multiple agencies. On 
September 28, 2004, DOT and DHS signed a Memorandum of Understanding 
(MOU) on Roles and Responsibilities. The purpose of the MOU is to 
facilitate the development and deployment of transportation security 
measures that promote safety, security, and efficiency in the movement 
of people and goods. The MOU recognizes that DHS has primary 
responsibility for security in all modes of transportation. In this 
regard, DHS will establish national security performance goals, and, to 
the extent practicable, develop appropriate transportation security 
measures to achieve an integrated national transportation security 
system.
    On August 7, 2006, PHMSA and TSA signed an annex to the September 
28, 2004 DOT-DHS MOU. The Annex acknowledges TSA's lead role in 
transportation security and that each agency brings core competencies, 
legal authority, resources, and expertise to their shared mission. The 
Annex reflects the agencies' commitment to a system risk-based approach 
and to the development of practical solutions through work teams 
focused on key program elements, including research and development and 
the review and development of security standards. In entering into the 
Annex, PHMSA and TSA pledged to build on and not duplicate the various 
security initiatives and efforts already underway.

III. TSA Hazardous Materials Truck Security Pilot

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

IV. Withdrawal of PHMSA-FMCSA ANRPM

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

[[Page 35213]]

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

    Issued in Washington, DC, on June 1, 2007, under authority 
delegated in 49 CFR Part 1.
Theodore L. Willke,
Acting Associate Administrator for Hazardous Materials Safety.
 [FR Doc. E7-12404 Filed 6-26-07; 8:45 am]
BILLING CODE 4910-60-P

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