Hazardous Materials: Risk-Based Adjustment of Transportation Security Plan Requirements, 52558-52572 [E8-20856]
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Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules
DEPARTMENT OF TRANSPORTATION
FOR FURTHER INFORMATION CONTACT:
49 CFR Part 172
Susan Gorsky or Ben Supko, Office of
Hazardous Materials Standards,
Pipeline and Hazardous Materials Safety
Administration, 202–366–8553.
SUPPLEMENTARY INFORMATION:
[Docket No. PHMSA–06–25885 (HM–232F)]
Comment Submission
RIN 2137–AE22
Instructions: Identify the agency and
docket number (PHMSA–06–25885) at
the beginning of your submission.
Except for comments that receive
confidential treatment, all comments
received will be posted without change
to the Federal Docket Management
System (FDMS), including any personal
information provided. Detailed
instructions for requesting confidential
treatment are provided below, under the
Privacy Act heading.
Docket: For access to the dockets to
read background documents or
comments received, go to https://
www.regulations.gov or DOT’s Docket
Operations Office (see ADDRESSES).
Privacy Act: Anyone is able to search
the electronic form of any written
communications and comments
received into any of our dockets by the
name of the individual submitting the
document (or signing the document, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (Volume
65, Number 70; Pages 19477–78), which
may also be found at https://
www.regulations.gov.
You may request confidential
treatment of comments or portions of
comments under the procedures set
forth in 49 CFR part 105. While all
comments should be sent to the FDMS,
PHMSA will consider separately and
not place in the public docket those
comments or portions of comments
PHMSA determines to include trade
secrets, other confidential commercial
information, or sensitive security
information (SSI). In accordance with 49
CFR 105.30, you may ask PHMSA to
keep information confidential using the
following procedures: (1) Mark
‘‘confidential’’ on each page of the
original document you would like to
keep confidential; (2) send FDMS both
the original document and a second
copy of the original document with the
confidential information redacted; and
(3) explain why the information is
confidential (as a trade secret, other
confidential commercial information, or
SSI). In your explanation, you should
provide enough information to enable
PHMSA to determine whether the
information provided is protected by
law and must be handled separately.
Pipeline and Hazardous Materials
Safety Administration
Hazardous Materials: Risk-Based
Adjustment of Transportation Security
Plan Requirements
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
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AGENCY:
SUMMARY: PHMSA, in consultation with
the Transportation Safety
Administration (TSA) of the Department
of Homeland Security (DHS), is
proposing to modify its current security
plan requirements governing 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 proposed rule would
narrow the list of materials subject to
security plan requirements and reduce
associated regulatory costs and
paperwork burden. The proposed rule
also would clarify certain requirements
related to security planning, training,
and documentation and incorporate and
build on recent international standards
governing hazardous materials security.
DATES: Submit comments by November
10, 2008.
ADDRESSES: You may submit comments
identified by the docket number
(PHMSA–06–25885) by any of the
following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Fax: 1–202–493–2251.
• Mail: Docket Operations, U.S.
Department of Transportation, West
Building, Ground Floor, Room W12–
140, Routing Symbol M–30, 1200 New
Jersey Avenue, SE., Washington, DC
20590.
• Hand Delivery: To Docket
Operations, Room W12–140 on the
ground floor of the West Building, 1200
New Jersey Avenue, SE., Washington,
DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays.
For more detailed instruction on
comment submission, see the
SUPPLEMENTARY INFORMATION section.
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In addition, for comments or portions
of comments that you believe contain
SSI as defined in 49 CFR 15.7, you
should comply with Federal regulations
governing the handling of SSI. See 49
CFR 1520.9 and 49 CFR 15.9,
Restrictions on the disclosure of
sensitive security information. Those
regulations restrict the disclosure of SSI
to those with a need to know and set
forth specific requirements for marking,
packaging, and disposing of documents
containing SSI. Note when mailing in or
using a special delivery service to send
comments containing SSI, comments
should be wrapped in a manner to
prevent the information from being
read. PHMSA may perform concurrent
reviews on requests for designations as
SSI.
After reviewing your request for
confidentiality and the information
provided, PHMSA will determine
whether the information should be
treated as confidential under applicable
laws and regulations. PHMSA will
notify you of the decision to grant or
deny confidential treatment. If PHMSA
denies your request, you will be
provided an opportunity to request
reconsideration before the information
is publicly disclosed. PHMSA will
reconsider its decision to deny
confidentiality based on your response.
To further guard against disclosure of
SSI, PHMSA will review all
submissions, whether or not they are
identified as confidential, prior to their
posting on the public docket. PHMSA
will notify you if we determine that
information in your submission should
not be disclosed to the public. If you
have any questions concerning the
procedures for determining
confidentiality or security sensitivity,
you may call one of the individuals
listed below.
I. Background
A. Current DOT Security Requirements
The Hazardous Materials Regulations
(HMR; 49 CFR parts 171–180) 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;
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(4) A shipment in a bulk packaging
with a capacity equal to or greater
than13,248 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. International Transportation Security
Standards
The United Nations Model
Regulations on the Transport of
Dangerous Goods (UN
Recommendations) identify high
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consequence dangerous goods for which
enhanced security measures are
recommended. The recommended
security measures include security
plans and are similar to the
requirements in subpart I of part 172 of
the HMR. The UN Recommendations
define high consequence dangerous
goods as materials with the ‘‘potential
for mis-use in a terrorist incident and
which may, as a result, produce serious
consequences such as mass casualties or
mass destruction.’’ The UN
Recommendations list the following
materials as high consequence
dangerous goods:
(1) Division 1.1 explosives;
(2) Division 1.2 explosives;
(3) Division 1.3 compatibility group C
explosives;
(4) Division 1.5 explosives;
(5) Bulk shipments of Division 2.1
flammable gases;
(6) Division 2.3 toxic gases (excluding
aerosols);
(7) Bulk shipments of Class 3
flammable liquids in PG I or II;
(8) Class 3 and Division 4.1
desensitized explosives;
(9) Bulk shipments of Division 4.2 PG
I materials;
(10) Bulk shipments of Division 4.3
PG I materials;
(11) Bulk shipments of Division 5.1
PG I oxidizing liquids;
(12) Bulk shipments of Division 5.1
perchlorates, ammonium nitrate and
ammonium nitrate fertilizers;
(13) Division 6.1 PG I toxic materials;
(14) Division 6.2 infectious substances
of Category A (UN2814 and 2900);
(15) Class 7 radioactive materials in
quantities greater than 3000 A1 (special
form) or 3000 A2, as applicable, in Type
B(U) or Type B(M) or Type (C) packages;
and
(16) Bulk shipments of Class 8 PG I
materials.
For purposes of the security provisions,
the UN defines ‘‘in bulk’’ to mean
quantities greater than 3,000 kg (6,614
lbs.) or 3,000 liters (793 gallons) in
portable tanks or bulk containers.
C. Petitions for Rulemaking
PHMSA has received two petitions for
rulemaking requesting a review and
reevaluation of the current HMR
security plan requirements. The Council
on Safe Transportation of Hazardous
Articles (COSTHA) petitioned PHMSA
(P–1447) to reevaluate the security
requirements in subpart I of part 172 of
the HMR to ‘‘enhance international
harmonization and to better utilize
available resources in enhancing
hazardous materials transportation
security.’’ COSTHA notes that the list of
hazardous materials subject to the
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security plan requirements differs from
the list of high consequence dangerous
goods in the UN Recommendations.
COSTHA requests that PHMSA adopt
the same criteria as the UN
Recommendations for materials that are
subject to the security plan
requirements or, as an alternative,
eliminate the security plan requirement
for quantities of hazardous materials
currently subject to placarding under
subpart F of part 172. COSTHA cites
several examples of hazardous materials
(e.g., automobile batteries, inks, paint,
flavoring extracts) that, based on hazard
class and quantity are placarded and
subject the security plan requirements
under the HMR, but not covered by the
list of high consequence dangerous
goods in the UN Recommendations.
COSTHA acknowledges that these
materials pose certain risks in
transportation, but contends it is highly
unlikely a terrorist would use these
materials to perpetrate a terrorist attack.
Similarly, the American Trucking
Associations (ATA) petitioned PHMSA
(P–1466) to designate a subset of
‘‘security sensitive hazardous materials’’
that would trigger security plan
requirements. The ATA urges PHMSA
to use the list of materials and quantities
subject to the Federal Motor Carrier
Safety Administration (FMCSA)
Hazardous Materials Safety Permit
requirements as the starting point for
determining security sensitive
hazardous materials. In 49 CFR part 385,
FMCSA requires a safety permit for
motor carriers transporting specified
quantities of Class 7 (radioactive)
materials; Class 1 materials (explosives);
materials that are poisonous or toxic by
inhalation (PIH or TIH materials); and
compressed or refrigerated liquefied
methane or liquefied natural gas. In
addition to those materials, ATA
suggests that PHMSA add the following
materials from the UN high
consequence dangerous goods list: (1)
Bulk shipments of Division 2.1; (2) bulk
shipments of Class 3, PG I and II; (3)
Class 3 and Division 4.1 desensitized
explosives (quantity to be determined);
(4) bulk shipments of Division 4.2, PG
I; (5) bulk shipments of Division 4.3, PG
I; (6) bulk shipments of Division 5.1, PG
I; (7) bulk shipments of Division 5.1
perchlorates, ammonium nitrate and
ammonium nitrate fertilizers; (8)
Division 6.2 infectious substances of
Category A (quantity to be determined);
(9) any quantity of select agents; and
(10) bulk shipments of Class 8, PG I. The
ATA uses quantities greater than 3,500
gallons or 5,000 pounds to define
‘‘bulk’’ for purposes of security
planning.
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We agree with COSTHA and ATA that
the list of materials for which a security
plan is required should be reevaluated.
Our existing security plan rules were
developed as baseline requirements. We
considered the company preparing the
security plan to be in the best position
to assess security risks based on its
operational circumstances. If security
risks were determined to be
insignificant, this would be reflected in
a simple security plan with minimal
content. Increased coverage would be
required when security risks are more
substantial. The security plan
requirements went into effect more than
four years ago, on September 25, 2003.
Since then, both the industry and the
government have gained experience
evaluating security risks associated with
specific hazardous materials and
transportation environments and
identifying appropriate measures to
address those risks. Accordingly, we
initiated this rulemaking, in
coordination with other DOT modal
administrations (the Federal Aviation
Administration (FAA), Federal Railroad
Administration (FRA), and FMCSA),
and TSA to consider modifications to
the list of hazardous materials for which
security plans are required.
II. Advance Notice of Proposed
Rulemaking
On September 21, 2006, PHMSA
published an advance notice of
proposed rulemaking (ANPRM) seeking
public comment on the current security
plan requirements. Commenters were
asked to address the list of materials
posing a security threat sufficient to
justify preparation and implementation
of a security plan, including factors that
should be considered in assessing
security risks; quantity thresholds that
would trigger the security plan
requirement; packing group criteria; and
the availability of hazardous materials
outside of transportation.
On November 30, 2006, PHMSA
hosted a public meeting to discuss these
issues and invite further comments and
information concerning the types and
quantities of materials that should be
covered by the security plan rule. Six
persons made presentations at the
public meeting. A transcript of the
meeting, with the statements of
presenters, is available for review in the
public docket for this rulemaking.
Written comments were received from
34 industry associations, offerors,
carriers, and private citizens, identified
in the following list.
ID/name/company
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Date
Clare L. Welker ...............................................................................................................................
Gregory Sutherland .........................................................................................................................
Clare L. Welker ...............................................................................................................................
Duplainville Transport ......................................................................................................................
Ecolab ..............................................................................................................................................
Arthur E. Hall ...................................................................................................................................
Institute of Makers of Explosives (IME) ..........................................................................................
Thomas Jefferson National Accelerator Facility (Jefferson Lab) ....................................................
U.S. Department of Energy (DOE) .................................................................................................
Thomas L. Dunaway .....................................................................................................................
National Refrigerants, Inc. (NRI) ...................................................................................................
United States Nuclear Regulatory Commission (NRC) ................................................................
Veolia ES Technical Solutions, L.L.C. (Veolia) .............................................................................
Council on Radionuclides and Radiopharmaceuticals, Inc. (CORAR) .........................................
Flavor and Extract Manufacturers Association (FEMA) ................................................................
Fragrance Materials Association (FMA) ........................................................................................
The Dow Chemical Company (Dow) ............................................................................................
Laboratory Corporation of America Holdings ................................................................................
American Trucking Associations, Inc (ATA) .................................................................................
Dangerous Goods Transport Consulting, Inc ...............................................................................
Air-Conditioning and Refrigeration Institute (ARI) .........................................................................
Total Petrochemicals USA, Inc. ....................................................................................................
American Beverage Association (ABA) ........................................................................................
Reusable Industrial Packaging Association (RIPA) ......................................................................
Utility Solid Waste Activities Group (USWAG) ..............................................................................
Association of Hazmat Shippers, Inc. (AHS) ................................................................................
National Paint & Coatings Association, Inc. (NPCA) ....................................................................
National Propane Gas Association (NPGA) .................................................................................
Dangerous Goods Advisory Council (DGAC) ...............................................................................
Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA) ......................................
National Tank Truck Carriers, Inc. (NTTC) ...................................................................................
Battery Council International (BCI) ...............................................................................................
Nuclear Energy Institute (NEI) ......................................................................................................
Bill Bradshaw—Comments ............................................................................................................
The full text of their comments are
available for review through the Federal
eRulemaking Portal (https://
www.regulations.gov).
Most commenters agree that the list of
materials for which security plans are
required should be revised to include
only those materials that pose a
significant security threat in
transportation. In the words of one
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commenter, ‘‘[R]egulating hazardous
materials transportation security at the
placarded load level is inconsistent with
a risk-based approach. Using placards as
a trigger for hazardous materials
security regulations results in the
overregulation of materials that are not
capable of being used as a terrorist
weapon.’’ (ATA) Several commenters
suggest that our rule should address two
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Docket No.
PHMSA–2006–25885–2
PHMSA–2006–25885–3
PHMSA–2006–25885–4
PHMSA–2006–25885–5
PHMSA–2006–25885–6
PHMSA–2006–25885–7
PHMSA–2006–25885–8
PHMSA–2006–25885–9
PHMSA–2006–25885–10
PHMSA–2006–25885–11
PHMSA–2006–25885–13
PHMSA–2006–25885–14
PHMSA–2006–25885–15
PHMSA–2006–25885–16
PHMSA–2006–25885–17
PHMSA–2006–25885–18
PHMSA–2006–25885–19
PHMSA–2006–25885–20
PHMSA–2006–25885–21
PHMSA–2006–25885–22
PHMSA–2006–25885–23
PHMSA–2006–25885–24
PHMSA–2006–25885–25
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PHMSA–2006–25885–27
PHMSA–2006–25885–28
PHMSA–2006–25885–29
PHMSA–2006–25885–30
PHMSA–2006–25885–31
PHMSA–2006–25885–32
PHMSA–2006–25885–33
PHMSA–2006–25885–34
PHMSA–2006–25885–35
PHMSA–2006–25885–36
types of threats from the misuse of
hazardous materials. As one put it:
‘‘First, there are commercial shipments
of materials that, based on the hazard
and quantity in the package would, if
attacked in transportation and
catastrophically released, enhance the
damage or destruction of the attack.
* * * Second, there are other materials
whose value to a terrorist is in the theft
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or diversion of the material for
manipulation into weapons of mass
destruction (WMD).’’ (IME) Similarly,
‘‘Risk should be assessed considering
the nature of the threat, the
vulnerability of the target, and the
potential consequences of an incident.
Threat scenarios should consider the
potential for a serious catastrophic
release from a direct attack, the
potential for tampering and subsequent
downstream impact, and the potential
for theft and misuse as a weapon of
mass destruction.’’ (Dow)
Commenters also agree that, in
developing this list, PHMSA should
consider the potential for a material to
be used for a criminal or terrorist act
and the consequences of such an action,
based on the hazard class and packing
group of the material and the quantity
or volume transported. Commenters
generally oppose a material-specific list
of chemicals and other materials that
pose a security risk. ‘‘We urge PHMSA
to reject [security sensitive hazardous
materials] lists that are material-bymaterial based and to continue to
embrace one based on a hazard class
approach. * * * Among other
advantages, a hazard class approach can
be internationally harmonized and it
addresses issues created by mixtures
and solutions that have plagued
material-by-material lists in other
regulatory venues.’’ (IME)
Most commenters suggest that
security plan requirements should apply
to the list of hazardous materials
identified in the UN Recommendations
as ‘‘high consequence dangerous
goods.’’ ‘‘[W]e believe the current
Security Plan requirements should be
harmonized with the UN
Recommendations so that they focus on
the types of hazards and volumes that
pose a real threat of weaponization.’’
(Flavor and Extract Manufacturers
Association) Also, ‘‘[t]he UN
recommendation to require security
plans for ’High Consequence Dangerous
Goods’ appears to be a reasonable
approach, which considers hazard, form
of packaging and volume thresholds.’’
(Dow) As well, ‘‘the UN
Recommendations individually define
‘significant risk’ materials and
quantities based on the actual risk
factors * * * rather than general
transport classifications. Importantly,
material identification is accomplished
through a stakeholder developed ‘list of
high consequence dangerous goods’
ensuring that material is independently
peer reviewed before it is assigned a risk
level.’’ (Air-Conditioning and
Refrigeration Institute).
III. Proposed Modifications to Security
Plan Criteria
A. Summary of Proposal
Based on the comments received on
the ANRPM and an evaluation of
possible security threats posed by
specific types and classes of hazardous
materials, PHMSA is proposing to
modify the list of materials for which a
security plan is required. PHMSA agrees
with the commenters to the ANPRM
that the UN list of high consequence
dangerous goods includes most of the
hazardous materials that pose a
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significant transportation security risk.
The UN list of high consequence
dangerous goods was used as the
starting point for our deliberations for
this NPRM.
PHMSA worked closely with FRA,
FMCSA, and TSA to assess the
transportation security risks associated
with the different classes and quantities
of hazardous materials. To determine
the types of materials that should be
subject to security planning
requirements, PHMSA evaluated
specific transportation scenarios in
which a terrorist could deliberately use
hazardous materials to cause large-scale
casualties and property 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 a perpetrator to take
control of a conveyance containing a
high-risk material and move it to a site
where the material could cause
maximum damage or provide unusual
leverage. For some hazardous materials,
the primary security threat involves
theft or highjacking of raw materials for
use in weapons of mass destruction.
On the basis of these considerations,
PHMSA proposes to modify the current
list of materials covered by the security
plan requirement, as summarized in the
following table:
PROPOSED REVISIONS TO THE LIST OF HAZARDOUS MATERIALS FOR WHICH TRANSPORTATION SECURITY PLANS WILL BE
REQUIRED
Class
Current threshold
Proposed threshold
Change
........
........
........
........
Any quantity ................................................
Any quantity ................................................
Any quantity ................................................
A quantity requiring placarding ...................
None.
None.
None.
Security plan required only for detonators
and shaped charges.
1.5 ........
1.6 ........
A quantity requiring placarding ...................
A quantity requiring placarding ...................
Any quantity ................................................
Any quantity ................................................
Any quantity ................................................
Any quantity of UN 0104, 0237, 0255,
0267, 0289, 0361, 0365, 0366, 0440,
0441, 0455, 0456, 0500.
Any quantity ................................................
Not subject ..................................................
2.1 ........
A quantity requiring placarding ...................
3,000 L in a single packaging ....................
2.2 ........
A quantity requiring placarding ...................
2.3 ........
3 ...........
Any quantity ................................................
A quantity requiring placarding ...................
4.1 ........
A quantity requiring placarding ...................
Not subject except for oxygen and gases
with a subsidiary 5.1 hazard (3,000 L in
a single packaging).
Any quantity ................................................
3,000 L in a single packaging and any
quantity of Class 3 desensitized explosives.
Any quantity desensitized explosives .........
4.2 ........
A quantity requiring placarding ...................
4.3 ........
Any quantity ................................................
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1.1
1.2
1.3
1.4
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PG I and II only in quantities of 3,000 kg
or more in a single packaging.
Any quantity ................................................
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Security plan required for all shipments.
Security plan not required for any Division
1.6 shipments.
Security plan not required for less than
3,000 L.
Security plan not required for most nonflammable, non-poisonous compressed
gas shipments.
None.
Security plan not required for less than
3,000 L except for desensitized explosives.
Security plan not required except for desensitized explosives.
Security plan not required for PG III materials.
None.
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PROPOSED REVISIONS TO THE LIST OF HAZARDOUS MATERIALS FOR WHICH TRANSPORTATION SECURITY PLANS WILL BE
REQUIRED—Continued
Class
Current threshold
Proposed threshold
Change
5.1 ........
A quantity requiring placarding ...................
Security plan not required for PG III liquids
or unlisted solids.
5.2 ........
Any quantity of Organic peroxide, Type B,
liquid or solid, temperature controlled.
A quantity requiring placarding; any quantity of PIH material.
Select agents ..............................................
Shipments requiring Yellow III label; highway route controlled quantity.
PG I and II liquids, perchlorates, ammonium nitrate (including fertilizers) in
quantities of 3,000 L or more in a single
packaging.
Any quantity of Organic peroxide, Type B,
liquid or solid, temperature controlled.
Any quantity of PG I; 3,000 L for PG II and
III.
Select agents ..............................................
For radionuclides covered by the IAEA
Code of Conduct, Category 1 and Category 2 sources per package; for all
other radionuclides, 3000 A2 per package.
PG I only in quantities of 3,000 L or more
in a single packaging.
Not subject ..................................................
6.1 ........
6.2 ........
7 ...........
8 ...........
A quantity requiring placarding ...................
9 ...........
Capacity >3,500 gallons for liquid/gas; volumetric capacity >468 cubic feet for solids.
Our proposed revisions are explained
in detail in the following section.
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B. System Characteristics and Risks
A number of characteristics of the
hazardous materials transportation
system create the potential for misuse:
(1) Substantial quantities of inherently
dangerous materials are transported; (2)
these materials are already mobile; (3)
these materials are frequently
transported in proximity to densely
populated areas; and (4) placards or
other markings required for safety may
communicate hazard information to
those who would misuse it.
Following are the hazards of greatest
concern from a transportation security
perspective:
Explosion and fire. Hazardous
materials that pose a risk of explosion
or fire may be used to attack large
groups of people and critical
infrastructure, such as buildings,
tunnels, bridges, subways,
communication centers, and electrical
power grids.
Poison Inhalation Hazards (PIH). PIH
materials, either as gases or volatile
liquids, can be used to attack people in
confined spaces such as buildings or
subways. Bulk quantities present
dangers to large areas and could affect
a significant number of people in urban
areas.
Poison liquids or solids. Poisons can
be used to attack food or drinking water
supplies or to attack groups of people
indoors or outdoors.
Infectious substances. Depending on
the mode of transmission for a given
material, infectious substances can be
used to contaminate food or water
supplies or to expose large numbers of
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people to disease. The suspected or
possible presence of these materials can
result in long-term denial of the use of
space, facilities, or goods.
Radioactive materials. These
materials can cause severe chronic
effects on large numbers of people,
depending on exposure levels and the
time exposed. The suspected or possible
presence of these materials can result in
long-term denial of the use of space,
facilities, or goods.
Other materials of concern. Certain
hazardous materials can be mixed to
create explosions, intensified burning,
and toxic effects or used as precursor
chemicals in the manufacture of more
dangerous substances. For example,
mixing poisonous materials with acidic
material can generate toxic gases (e.g.,
sodium cyanide mixed with
hydrochloric acid will generate
hydrogen cyanide gas).
C. Security Risks for Specific Classes of
Materials
A detailed discussion of the
transportation security risks posed by
specific classes of hazardous materials
follows.
1. Division 1.1, 1.2, and 1.3 Explosives
Division 1.1., 1.2, and 1.3 explosive
materials (e.g. , certain types of
ammunition and cartridges, black
powder, gun powder, demolition
devices, depth charges, certain types of
detonators, certain types of fireworks,
rockets, and warheads) pose significant
safety and security risks in
transportation. A Division 1.1 explosive
is one that presents a mass explosive
hazard. A mass explosion is one that
affects almost the entire load
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None.
Security plan not required for less than
3,000 L of PG II and III.
None.
Security plan only required for Class 7 materials that pose transportation security
risk.
Security plan not required for PG II and III
materials.
Security plan not required for Class 9 materials.
simultaneously. An explosion of
Division 1.1 materials creates a pressure
pulse that moves faster than the speed
of sound. A Division 1.2 explosive has
a projection hazard, which means that if
the material explodes, it will project
fragments outward at some distance. A
Division 1.3 explosive presents a fire
hazard and either a minor blast hazard
or a minor projection hazard or both. If
compromised in transit by detonation or
as a secondary explosion to an
improvised explosive device (IED),
these materials could result in
significant numbers of fatalities and
substantial damage to transportation
infrastructure and the surrounding area.
When available, these explosives have
been the preferred weapon of terrorists.
This trend is not expected to change.
Significant quantities of Division 1.1,
1.2, and 1.3 explosives are transported
by highway and rail for both
commercial and military applications.
The Department of Defense alone moves
approximately 30,000 shipments a year
by motor carrier. Motor carrier
shipments are transported largely on the
nation’s interstate highway system,
which bisects or adjoins many
metropolitan areas offering significant
iconic-value and critical infrastructure
targets. About 500 carloads of these
explosives are transported by rail each
year. Like the interstate highway
system, the rail transportation network
intersects many densely populated
areas.
The HMR currently require security
plans for shipments of any quantity of
Division 1.1, 1.2, or 1.3 explosives.
PHMSA believes that this requirement
provides an appropriate level of
security, given the potential
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vulnerabilities and risks associated with
these materials and thus proposes to
retain this requirement in the NPRM.
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2. Division 1.4 Explosives
Division 1.4 explosives are those that
present a minor explosive hazard. The
explosive effects are largely confined to
the package, with no projection of
fragments of appreciable size or range.
This category of explosives includes
detonators used to detonate the Division
1.1, 1.2, and 1.2 explosives described
above. Detonators are part of all IEDs.
Over 500,000 tons of Division 1.4
explosives are transported by rail and
highway in the United States every year.
Currently, the HMR require security
plans for placarded amounts of Division
1.4 explosives. Our evaluation suggests
that most Division 1.4 explosives do not
pose a significant transportation
security risk. However, Division 1.4
detonators are an attractive target for
theft and use as initiating devices for
IEDs. Therefore, in this NPRM, PHMSA
proposes to require security plans only
for shipments of any quantity of the
following types of Division 1.4
explosives (listed by proper shipping
name and UN identification number)
because they are difficult to produce,
are key components to IEDs, and can be
used as initiators for other explosives:
(1) Detonator assemblies, non electric
for blasting (UN 0361, UN 0500)
(2) Detonators for ammunition (UN
0365, UN 0366)
(3) Detonators, electric, for blasting
(UN 0255, UN 0456)
(4) Detonators, non-electric, for
blasting (UN 0267, UN 0455)
(5) Cord, detonating, flexible (UN
0289)
(6) Cord, detonating, mild effect,
metal clad (UN 0104)
(7) Charges, shaped, flexible, linear
(UN 0237)
(8) Charges, shaped, without
detonator (UN 0440, UN 0441)
3. Division 1.5 Explosives
Division 1.5 explosives are very
insensitive explosives. This division
covers substances that have a mass
explosion hazard but are so insensitive
that they pose very little probability of
initiation or of transition from burning
to detonation under normal conditions
of transport. In practice, Division 1.5
explosives are activated using a higherenergy explosive charge. Roughly 4.3
million tons of Division 1.5 explosives
are transported by rail and highway in
the United States every year.
Division 1.5 explosives could be used
in attacks on people or infrastructure.
While these explosives are insensitive to
effects from normal transportation
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accident conditions, such as fire or
violent shock, Division 1.5 explosives
can be made to detonate if initiated by
an explosive charge. The detonation
effects, while less severe than those of
Division 1.1, 1.2, and 1.3 explosives, are
substantial. An example of a Division
1.5 explosive is ammonium nitrate-fuel
oil mixture (ANFO) that, with a
properly designed explosive chain, can
produce a substantial blast wave.
Insensitive bulk blasting agents like
ANFO have been used by terrorists in
the past, most notably in the attack on
the Murrah Federal Building in
Oklahoma City.
Currently, the HMR require security
plans for placarded shipments of
Division 1.5 explosives. In this NPRM,
PHMSA proposes to require security
plans for shipments of Division 1.5
explosives transported in any quantity.
4. Division 1.6 Explosives
Division 1.6 explosives are extremely
insensitive articles that do not have a
mass explosion hazard and that contain
only extremely insensitive detonating
substances with only a negligible
probability of accidental initiation or
propagation. Currently, the HMR require
security plans for shipments of
placarded amounts of Division 1.6
materials. However, our evaluation
concludes that these materials do not
pose a transportation security risk.
Therefore, in this NPRM, PHMSA
proposes to delete Division 1.6
explosives from the list of materials for
which security plans are required.
5. Division 2.1 Flammable Gases
Division 2.1 materials are flammable
gases that may be transported at ambient
pressure in a compressed or liquefied
compressed state. Flammable gases will
burn if mixed with an appropriate
amount of air; confined burning of a
flammable gas can lead to detonation. A
commonly transported example of a
flammable gas is propane, a liquefied
compressed gas. 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’’).
Over 120 million tons of flammable
gas are used and distributed in the
United States on an annual basis. A
significant portion is transported by
PO 00000
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Fmt 4701
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pipeline; however, more than 200,000
carloads of these materials are
transported by rail, and over 40 million
tons are transported by highway each
year. These materials generally are
consumer products and can be
purchased without special licenses or
security procedures.
Based on their hazard characteristics
and the frequency with which propane
and other Division 2.1 materials are
transported in this country, PHMSA
believes that materials meeting the
definition for classification as Division
2.1 materials present a sufficient
security risk to warrant the imposition
of security plan requirements. Terrorists
overseas have used flammable gas in
attacks on people and buildings, using
an IED to detonate the gas. The resulting
disbursement and ignition of the gas
creates a significantly larger fireball and
heat signature than typical of an
explosive detonation.
The HMR currently require security
plans for shipments of Division 2.1
materials in amounts that require
placarding—that is, amounts greater
than 119 gallons in a single packaging
or container. In evaluating specific
security risks associated with shipments
of Division 2.1 materials, PHMSA has
concluded that shipments in quantities
less than 3,000 L in a single package do
not pose a transportation security threat
warranting development and
implementation of security plans. As
discussed above, the major security
threat associated with these materials is
their potential use to attack large groups
of people and critical infrastructure; a
substantial quantity is necessary to
achieve a significant effect. Therefore,
this NPRM proposes to require security
plans for shipments of Division 2.1
materials in amounts greater than or
equal to 3,000 L in a single package or
container. Security plans would not be
required for shipments of Division 2.1
materials in lesser quantities.
6. Division 2.2 Compressed Gases
Division 2.2 compressed gases are
those that are neither flammable nor
poisonous. Division 2.2 compressed
gases are regulated for transportation
safety purposes because they pose a
physical hazard due to the increased
pressure under which the material is
maintained. In addition, Division 2.2
compressed gases will displace oxygen
if released in a confined space. Without
oxygen, people very quickly lose
consciousness and will die within three
or four minutes.
Currently, the HMR require shippers
and carriers of Division 2.2 gases in
amounts that require placarding to
develop and implement security plans.
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However, the hazard characteristics of
these materials do not lend themselves
to terrorist or criminal use. Therefore,
PHMSA has concluded that Division 2.2
compressed gases generally do not pose
a security threat sufficient to warrant
specific security planning measures.
However, we are proposing to require
security plans for oxygen and for other
Division 2.2 gases that are oxidizers. In
addition to being a Division 2.2
material, oxygen and other oxidizers
enhance the combustion of other
materials. Oxygen and similar oxidizers
will increase 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, large shipments of oxygen
should be subject to security planning
requirements. Therefore, this NPRM
proposes to require shippers and
Proper shipping name
Hazard class
Air, refrigerated liquid, (cryogenic liquid) .........................................................................
Air, refrigerated liquid, (cryogenic liquid) non-pressurized ..............................................
Carbon dioxide and oxygen mixtures, compressed ........................................................
Compressed gas, oxidizing, n.o.s. ..................................................................................
Gas, refrigerated liquid, oxidizing, n.o.s. (cryogenic liquid) ............................................
Liquefied gas, oxidizing, n.o.s. ........................................................................................
Nitrous oxide ....................................................................................................................
Nitrous oxide, refrigerated liquid ......................................................................................
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7. Division 2.3 and Division 6.1 PIH
Materials
Poison inhalation hazard (PIH)
materials are gaseous or liquid materials
that are known or presumed on the basis
of tests to be toxic to humans and to
pose a hazard to health in the event of
a release during transportation. PIH
materials form a toxic plume upon
release into the atmosphere. Dispersion
of these vapors can endanger significant
numbers of people. Examples of PIH
materials include phosgene, chlorine,
hydrogen fluoride, and anhydrous
ammonia. Each year about 100,000
carloads of PIH materials are shipped by
rail, and over 8 million tons of PIH
materials are transported by highway.
Because of their safety risks, PIH
materials are among the most stringently
regulated of all hazardous materials.
The most infamous example of the
safety risks posed by PIH materials is
the 1984 accident in Bhopal, India, in
which approximately 10,000 gallons of
methyl isocyanate was released from a
chemical plant, causing nearly 3,000
deaths and more than 15,000 injuries. A
PIH material (sarin) was released by
terrorists in a Tokyo subway in 1995,
resulting in 12 fatalities and hundreds
of injuries. More recently, on January 6,
2005, in Graniteville, South Carolina, a
42-car freight train, carrying several tank
cars of chlorine, collided with a
standing train. The accident resulted in
the puncture of one tank car and the
release of a cloud of chlorine gas that
killed nine people. In addition,
terrorists in Iraq have employed tank
trucks loaded with chlorine in several
attacks.
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The transportation security risks of
these materials have been amply
demonstrated. The HMR currently
require security plans for shipments of
PIH materials in any quantity. We
believe this requirement provides an
appropriate level of security, given the
potential vulnerabilities and risks
associated with these materials. We are
not proposing any changes to this
requirement in this NPRM.
8. Class 3 Flammable Liquids
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. At least 37 million
shipments of flammable liquids are
moved in commerce in the United
States every year, including upwards of
24 million shipments of gasoline from
bulk storage facilities through the
distribution chain.
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. The HMR
currently require security plans for
shipments of flammable liquids in
amounts that require placarding. In this
NPRM, PHMSA proposes to require
security plans for shipments of Class 3
materials in amounts greater than or
equal to 3,000 L in a single package or
container. Security plans would not be
required for shipments in lesser
quantities.
PO 00000
carriers of oxygen in quantities greater
than or equal to 3,000 L in a single
package or container to develop and
implement security plans. In addition,
we are proposing to require security
plans for shipments of any Division 2.2
compressed gases with a subsidiary
hazard of Division 5.1 oxidizer when
transported in quantities of at least
3,000 L in a single package or container.
A list of such materials is provided
below.
Frm 00008
Fmt 4701
Sfmt 4702
Identification
Nos.
2.2
2.2
2.2
2.2
2.2
2.2
2.2
2.2
UN1003
UN1003
UN1014
UN3156
UN3311
UN3157
UN1070
UN2201
Label code
2.2,
2.2,
2.2,
2.2,
2.2,
2.2,
2.2,
2.2,
5.1
5.1
5.1
5.1
5.1
5.1
5.1
5.1
9. Class 3 and Division 4.1 Desensitized
Explosives
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.
Water is the most commonly used
diluent/desensitizing material, even if it
is not miscible (dissolves in) with the
explosive. Other diluents can include
flammable or non-flammable liquids or
solids that have no explosive properties
in and of themselves, but prevent the
ability of the explosive substance to
initiate or sustain a detonation or
deflagration. Plasticizing liquids like
triacetin, dibutyl phthalate, vegetable
oil, or paraffin oil are sometimes used.
Simple solid diluents for explosives
include bentonite clay, plastic granules,
gypsum and waxes of various types.
Some diluents like water are easily
separated from the explosive and the
explosive is easy to reconstitute by
drying. Some diluents can be extracted
by dissolving them away from the
explosive (or vice versa) with various
solvents. Large quantities of
desensitized explosives are moved by
commercial rail and motor carrier every
year in support of mining and other
industrial operations.
Desensitized explosives have been
used in terrorist attacks here and
overseas. Urea nitrate, for example, has
been used in a number of terrorist
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attacks, most notably the first vehicleborne improvised explosive device
attack on the World Trade Center in
1993. Currently, the HMR require
security plans for placarded shipments
of Class 3 or Division 4.1 desensitized
explosives. Because many desensitized
explosives can be readily reconstituted
into explosive materials, this NPRM
proposes to require security plans for
shipments of any quantity of Class 3 or
Division 4.1 desensitized explosives.
Other materials within Division 4.1
would not be subject to the security
plan requirement under this NPRM.
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10. Division 4.2 Spontaneously
Combustible Material
Division 4.2 spontaneously
combustible materials are pyrophoric or
self-heating materials. Division 4.2
materials in Packing Group I are
pyrophoric materials. A pyrophoric
material is a liquid or solid that, even
in small quantities and without an
external ignition source, can ignite
when it comes in contact with air.
Division 4.2 materials in Packing
Groups II and III are self-heating
materials. A self-heating material is
likely to self-heat when in contact with
air. About one million tons of these
materials are shipped in commerce each
year.
Currently, the HMR require security
plans for placarded shipments of
Division 4.2 materials. In this NPRM,
PHMSA proposes to retain the security
plan requirement for shipments of 3,000
kg or more 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
because assessment indicates that the
security risks associated with these
materials are not sufficient to warrant
development and implementation of
security plans.
11. Division 4.3 Dangerous When Wet
Material
Division 4.3 materials are water
reactive—they emit flammable or toxic
gases upon contact with water. The
most hazardous Division 4.3 materials
spontaneously ignite on contact with
water. These are industrial chemicals
easily available with no security
restrictions. Roughly one million tons
are shipped by highway each year, in
addition to about 3,000 yearly
shipments by rail. 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.
Currently, the HMR require security
plans for shipments of Division 4.3
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materials in any quantity. PHMSA
believes this requirement provides an
appropriate level of security, given the
potential vulnerabilities and risks
associated with these materials;
therefore, this NPRM proposes to retain
this requirement.
12. Division 5.1 Oxidizing Material
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. Perchlorates are a subset
of Division 5.1 materials. Both
potassium perchlorate and ammonium
perchlorate are used extensively in the
pyrotechnics industry; ammonium
perchlorate is a component of solid
rocket fuel. Ammonium nitrate and
ammonium nitrate fertilizers are also
examples of oxidizing materials. As a
strong oxidizing agent, ammonium
nitrate makes an explosive mixture
when combined with a fuel such as a
hydrocarbon, usually diesel fuel (oil) or,
sometimes, kerosene.
Division 5.1 oxidizing materials are
frequently used as components of IEDs.
On April 19, 1995, Timothy McVeigh
blew up the Murrah Federal Building in
Oklahoma City with a bomb made from
fertilizer and fuel oil. Division 5.1
materials are industrial chemicals easily
available with no security restrictions.
Approximately nine million tons of
Division 5.1 materials are shipped by
motor carrier each year. The railroads
transport about 50,000 shipments
yearly.
Currently, the HMR require security
plans for placarded shipments of
Division 5.1 materials. This NPRM
proposes to require a security plan for
shipments of Division 5.1 materials in
Packing Groups I and II, perchlorates,
and ammonium nitrate (including
fertilizers) in a single packaging, in a
quantity of 3,000 kg or more for solids
or 3,000 L or more for liquids. Except
for perchlorates and ammonium nitrate,
we are proposing to eliminate the
security plan requirement for Division
5.1 materials in Packing Group III.
13. Division 5.2 Organic Peroxides
Organic peroxides are temperature
sensitive, self-reacting materials that
pose both a fire and explosion hazard,
and may be both toxic and corrosive.
Once an organic peroxide reaches a
certain temperature (called the selfaccelerating decomposition temperature
or SADT), its reaction will proceed
uncontrollably. Organic peroxides are
assigned to types A through G according
to their reactivity. The most dangerous
organic peroxides will detonate much
like a low-energy Division 1.1 explosive.
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52565
The most dangerous organic peroxides,
assigned to Type A, are prohibited from
transportation; those that are permitted
in transportation are stringently
regulated in terms of the quantities that
may be transported and the type of
packaging that may be utilized. Organic
peroxides with SADTs in the ambient
temperature range must be transported
with temperature controls. Type B
organic peroxides are the most reactive
and, hence, 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
recently plotting to destroy aircraft
flying from the United Kingdom to the
United States. Terrorists call these
materials ‘‘Mother of Satan,’’ an
indication of their attractiveness as
weapons or components of weapons.
Minimal amounts of Division 5.2
organic peroxides are transported on a
regular basis.
The HMR currently require security
plans for liquid or solid Type B,
temperature controlled Division 5.2
organic peroxides transported in any
quantity. PHMSA believes that this
requirement provides an appropriate
level of security, given the potential
vulnerabilities and risks associated with
these materials and proposes to retain
this requirement in this NPRM.
14. Division 6.1 Poisonous Materials
(Other Than PIH Materials)
Division 6.1 materials may be toxic to
humans through oral ingestion or
dermal exposure. As defined in the
HMR, Division 6.1 materials have a
range of toxicity values; the most toxic
materials are assigned to Packing Group
I. 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. More than eight million tons of
these materials are shipped in
commerce on a yearly basis. Of this,
approximately two million tons are
transported by highway; railroads move
more than 30,000 shipments each year.
The HMR currently require security
plans for placarded shipments of
Division 6.1 materials in all packing
groups. In this NPRM, PHMSA proposes
to require security plans for shipments
of Division 6.1, Packing Group I
materials in any amount and shipments
of 3,000 L or more of Division 6.1,
Packing Groups II and III materials.
Security plans would not be required for
shipments of Division 6.1, Packing
Groups II and III in amounts less than
3,000 L.
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15. Division 6.2 Infectious Substances
and Select Agents
A Division 6.2 infectious substance is
a material that contains a pathogen,
which is a microorganism or other agent
that can cause disease in humans or
animals. The degree of risk associated
with the transportation of a given
Division 6.2 material depends on the
nature of the material, including the
virulence of the material, the way it is
transmitted between humans or
animals, the manner and ease of
transmission between humans or
animals, and the availability of
preventive measures and treatment
protocols.
Select agents are infectious substances
and toxins determined by the Center for
Disease Control and United States
Department of Agriculture to present a
significant public health risk. Examples
include ebola viruses, ricin, small pox,
avian flu virus, foot-and-mouth disease
virus, and anthrax. Use and movement
of these materials are very strictly
controlled.
Because of the potential for select
agents to be developed as weapons to
cause serious and significant outbreaks
of disease in humans and animals, the
HMR require security plans for
shipments. This requirement provides
an appropriate level of security, given
the potential vulnerabilities and risks
associated with these materials.
Therefore, PHMSA proposes to retain
this requirement in this NPRM.
However, in addition to the proposed
requirement for pathogens that affect
humans and animals, expansion of the
security plan requirements to include
pathogens that affect plants is also being
considered.
In accordance with 9 CFR part 121 we
currently require security plans for
biological agents and toxins with the
potential to pose a severe threat to
public health and safety, to animal
health, or to animal products. As a
result of concerns expressed by USDA’s
Animal and Plant Health Inspection
Service (APHIS), PHMSA believes that
the expansion of the security plan
requirements to include biological
agents and toxins that have the potential
to pose a severe threat to plant health
or to plant products is appropriate. To
achieve this, the current security plan
requirements for Division 6.2 materials
to include materials listed in 7 CFR part
331 would be expanded. Part 331
implements the provisions of the
Agricultural Bioterrorism Protection Act
of 2002 setting forth the requirements
for possession, use, and transfer of
select agents and toxins. APHIS
supports the inclusion of select agent
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plant pathogens to the list Division 6.2
materials requiring security plans.
Stakeholders are urged to fully consider
the implications of requiring security
plans for select agent plant pathogens
and to provide comments.
16. Class 7 Radioactive Materials
The United States transportation
system annually moves millions of
shipments of radioactive materials, the
largest share consisting of small
packages containing
radiopharmaceuticals. The HMR
security plan requirements currently
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.
Our evaluation suggests that these
thresholds must be expanded to include
additional materials that, by virtue of
their relative radiation levels and
physical characteristics, pose similar
security threats. Security concerns
surrounding the transport of radioactive
materials reflect their potential use in
radiological dispersal devices (RDDs) (or
‘‘dirty bombs’’), designed to spread
radioactive material from the detonation
of conventional explosives or other
means, and radiological exposure
devices (REDs), designed to expose
people to radiation. The consequences
of an RDD or RED event would depend
on the specific radioactive material and
quantity involved, the dispersal or
exposure mechanism, and the
environmental conditions.
This NPRM proposes to adopt the
security thresholds recommended by
the International Atomic Energy Agency
(IAEA) for radioactive materials in
transport. These 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 IAEA ‘‘Code of
Conduct on the Safety and Security of
Radioactive Sources’’ (IAEA/CODEOC/
2004) was revised to take account of
international concerns following the
events of September 11, 2001. The
United States played a key role in
revising the Code of Conduct and has
been successful in gaining national
commitments to the Code of Conduct by
more than 80 countries. One of the
essential features of the Code of
Conduct is the cataloging of radioactive
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sources based on their relative potential
to cause immediate injury or death.
There are three categories that range
from Category 1, posing the highest
short-term exposure risk to Category 3,
posing relatively little risk of permanent
injury through brief exposure.
The IAEA has used the Code of
Conduct in the development of the
recently issued Nuclear Security Series
Guide, ‘‘Security of Radioactive Material
during Transport’’ (in draft, expected to
be issued 2009). This document is
intended to provide IAEA Member
States with guidance on implementing
security measures for the transport of
radioactive material. The threshold
values outlined in this Notice were
derived on the basis of the potential
radiological consequences of malicious
acts involving radioactive material. The
Guide calls for enhanced security of
radioactive material in transport,
including adoption and compliance
with security plans for consignments
that include at least one package
meeting one or both of the following
activity threshold values:
• For radioactive sources and other
forms of radioactive material containing
radionuclides covered by the Code of
Conduct, Category 1 and Category 2; or
• For all other radionuclides, 3000 A2
per package.
The Code of Conduct values are
universally understood and
implemented for security of radioactive
sources internationally as well as
domestically by the NRC. For
radionuclides not included in the Code
of Conduct, a value of 3000 A2 can be
used to identify packages that are
subject to the enhanced transport
security measures, since the A2 value of
a radionuclide never exceeds the A1
value.
17. Class 8 Corrosive Materials
For purposes of the HMR, a Class 8
corrosive material is a liquid or solid
that causes full thickness destruction of
human skin at the site of contact within
a specified period of time. Class 8
materials in Packing Group I cause full
thickness destruction of human skin
tissue within 60 minutes after an
exposure time of 3 minutes. These
materials can cause irreversible damage
to human tissue. Examples include
nitric acid, sodium hydroxide (caustic
soda or lye), and hydrochloric acid.
Class 8 materials also exhibit corrosive
properties towards other materials, most
notably aluminum and steel.
Given the rate at which they react
with human skin, aluminum and steel,
these materials could be used to
sabotage infrastructure, cause mass
injury through proper dispersion, and
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present a method for sabotaging other
hazardous material containers such as
cylinders, tank cars, and cargo tank
motor vehicles. Approximately 90
million tons of these materials are
transported in commerce each year,
including more than 50 million tons
transported by motor carrier. Rail
carriers annually move more than
270,000 shipments of Class 8 corrosive
materials.
The HMR currently require security
plans for placarded shipments of Class
8 materials in all packing groups. In this
NPRM, PHMSA proposes to retain
security plan requirements for
shipments of Class 8, Packing Group I
materials in amounts greater than or
equal to 3,000 L in a single package or
container. Lesser amounts of PG I and
PG II and III corrosive materials pose
little, if any, security risk. Therefore,
security plans would not be required for
shipments of Class 8 materials, Packing
Group I, in amounts less than 3,000 L,
nor would security plans be required for
shipments of Class 8 materials in
Packing Groups II or III.
18. Class 9 Materials
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Class 9 materials are materials that
present a hazard during transportation
but do not meet the definition of any
other hazard class. Class 9 covers
elevated temperature materials and
materials that pose a risk to the
environment—hazardous substances,
hazardous wastes, and marine
pollutants. Although it is possible that
Class 9 materials could be deliberately
used to contaminate the environment,
the likelihood of such a terrorist action
is remote because of the quantities of
material that would be required and the
relatively minor result that would be
achieved.
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. This NPRM proposes to
eliminate this requirement; the security
risks associated with the transportation
of these materials are not sufficient to
warrant development and
implementation of security plans.
IV. Additional Revisions to Security
Requirements
This NPRM also proposes a number of
amendments to clarify and enhance
current security requirements, including
requirements for security plans and for
training. These proposals are detailed
below.
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A. Revisions to Security Plan
Requirements
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
§ 172.802(b). It has come to PHMSA’s
attention that there is some confusion as
to whether the security risk assessment
must be in writing. To clarify this, the
NPRM proposes to specify 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.
In addition, the NPRM proposes to
clarify the application of the required
risk assessment to site-specific and
location-specific security issues. As
specified in the proposed rule text, the
risk assessment must include an
assessment of specific risks that exist on
specific routes or in specific locations.
Also proposed is a revised paragraph
(b) to clarify the following security plan
requirements:
• The security plan must identify, by
job title, the senior management official
responsible for the overall development
and implementation of the plan.
• The security plan must be reviewed
at least annually and updated if
circumstances change (e.g., acquisitions,
mergers, operating rights, materials
transported, expanded or reduced
service levels).
• The security plan must include a
plan for training hazmat employees.
• The security plan must 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.
B. Security Training
Companies that are subject to the
security plan requirements in subpart I
of part 172 are required to provide indepth training concerning their security
plan and its implementation. The indepth security training must cover
company security objectives, specific
security procedures, employee
responsibilities, actions to take in the
event of a security breach, and the
organizational security structure. As
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written, the in-depth security-training
requirement appears to apply to all
hazmat employees; this was not the
intention. The in-depth security training
requirement was meant to apply only to
hazmat employees who perform
regulated functions related to the
transportation of the materials covered
by the security plan or who are
responsible for implementing the
security plan. This NPRM proposes to
clarify the in-depth security-training
requirement by specifying its
application to hazmat employees who
are directly involved with implementing
security plans.
As discussed above, this NPRM
proposes 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 § 172.704(c).
This NPRM also proposes to require indepth 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.
C. 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.
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 HMR
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
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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. Thus, enforcement of the
security plan and training regulations is
shared among the DOT operating
administrations, with each placing
particular emphasis on their respective
authorities.
Under Section 101(a) of the Aviation
and Transportation Security Act (ATSA)
(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 9/11 Commission Act.
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 transportationrelated 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 also noted 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 § 1512 of the
9/11 Commission Act and delegated
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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. After TSA
promulgates these regulations, these
railroad carriers would be required to
submit vulnerability assessments and
security plans to DHS for review and
approval. In addition, § 1517 of the 9/11
Commission Act requires DHS to
develop and issue regulations for a
training program to prepare railroad
frontline employees for potential
security threats and conditions.
The TSA regulations are intended to
supersede the PHMSA security plan and
security training requirements for
railroad carriers that will be subject to
the TSA regulations. Once these TSA
regulations have been issued, the
PHMSA security plan and security
training requirements for railroad
carriers that will be subject to the TSA
regulations will be reevaluated and
revised as appropriate.
We worked closely with TSA to align
our proposed list of materials subject to
security plans and the TSA Highway
Security Sensitive Hazardous Materials
(HSSM) list. TSA’s HSSM list is to be
used 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. As a result, the PHMSA
proposal and the TSA list are very
similar; however, there are some minor
differences. As provided below, in four
instances our proposal is more
restrictive than the TSA list.
1. We require all materials that meet
the definition of a PIH material to have
a security plan; TSA set thresholds of 5
lbs for Hazard Zone A and B and bulk
for Zones C and D.
2. We include flammable liquids in
PG III (i.e., diesel fuel, kerosene, jet fuel,
fuel oil) and TSA does not.
3. Our proposal includes any quantity
of desensitized explosives in Division
4.1 and TSA lists materials by
identification number.
4. For infectious substances, the TSA
list does not include the USDA list of
select agents or overlapping agents and
toxins in 43 CFR 73.4.
The security plan requirements
established by the HMR are to be used
as a baseline for security planning.
Though there are some minor
differences between our proposal and
the TSA list, the overall approach taken
by the two agencies in identifying
materials that should be subject to
security based requirements is
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consistent and supported by industry
associations, offerors, carriers, and
private citizens, as evidenced by the
comments submitted in response to our
ANPRM. Please submit any additional
comments regarding the alignment of
our proposed list with the TSA HSSM
list during the comment period for this
NPRM. Interested persons may submit
their comments through the Federal
eRulemaking Portal (on the Web site
https://www.regulations.gov) under
PHMSA docket number PHMSA–06–
25885 by the date provided in the DATES
section of this rulemaking.
TSA, PHMSA, FMCSA, and FRA will
continue to work together in the
development of hazardous materials
transportation security planning
regulations and standards. TSA may
issue security planning regulations in
the future; if such an action is taken we
will reconsider our security plan
requirements for the motor carriers that
would be subject to TSA’s regulations.
As TSA develops security planning
regulations applicable to hazardous
materials, TSA will carefully consider
how those regulations should relate to
the HMR and will work with PHMSA,
FMCSA, and FRA to avoid unnecessary
duplication.
As it implements its transportation
security authority, TSA may identify a
need to review transportation security
plans developed and implemented in
accordance with subpart I of part 172 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 securityrelated 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.
However, TSA does not 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.
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Similarly, 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.
V. 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
NPRM was reviewed by the Office of
Management and Budget.
Executive Order 12866 requires
agencies to regulate in the ‘‘most costeffective 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 NPRM proposes to narrow 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
would no longer be subject to current
security plan and associated in-depth
training requirements. The annual
benefit resulting from the proposals in
this NPRM 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 cost savings for
associated training. Evaluated over a 15year 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
(https://www.regulations.gov).
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B. Executive Order 13132
This proposed rule has been analyzed
in accordance with the principles and
criteria set forth in Executive Order
13132 (‘‘Federalism’’). Any rule
resulting from this rulemaking 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.
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C. Executive Order 13175
This proposed 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 proposed 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 proposed rule
would apply to a substantial number of
small entities, the economic impact on
those small entities would not be
substantial.
As indicated above, about 10,119
entities would no longer be subject to
current security plan and in-depth
training requirements if the proposals in
this NPRM are adopted. 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. Just under 90% of shippers and
carriers affected by the proposals in this
NPRM are small businesses.
Based on an analysis of the potential
benefits of the proposals in this NPRM,
PHMSA concludes that, while the
proposed rule would apply to a
substantial number of small entities, it
will not have a significant economic
impact on those small entities. For a
small business that would no longer be
subject to the security plan
requirements and associated in-depth
training requirements, the cost savings
would total 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 May 31, 2009.
This NPRM may result in a decrease in
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the annual burden and costs under OMB
Control Number 2137–0612 due to
proposed changes 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. Section 1320.8(d), title 5, Code
of Federal Regulations requires that
PHMSA provide interested members of
the public and affected agencies an
opportunity to comment on information
and recordkeeping requests.
This notice identifies a revised
information collection request that
PHMSA will submit to OMB for
approval based on the requirements in
this proposed rule. PHMSA has
developed burden estimates to reflect
changes in this proposed rule. PHMSA
estimates that the information collection
and recordkeeping burden as proposed
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.
PHMSA specifically requests
comments on the information collection
and recordkeeping burdens associated
with developing, implementing, and
maintaining these requirements for
approval under this proposed rule.
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.
Address written comments to the
Dockets Unit as identified in the
ADDRESSES section of this rulemaking.
We must receive comments regarding
information collection burdens prior to
the close of the comment period
identified in the DATES section of this
rulemaking. In addition, you may
submit comments specifically related to
the information collection burden to the
PHMSA Desk Officer, Office of
Management and Budget, at fax number
202–395–6974. If these proposed
requirements are adopted in a final rule,
PHMSA will submit the revised
information collection and
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recordkeeping requirements to OMB for
approval.
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 crossreference this action with the Unified
Agenda.
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G. Unfunded Mandates Reform Act
This proposed 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), §§ 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
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of experience in evaluating security
risks associated with specific hazardous
materials and transportation
environments and identifying
appropriate measures to address those
risks. The revisions proposed in this
NPRM 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 mis-use
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
PO 00000
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Fmt 4701
Sfmt 4702
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 NPRM,
this is the selected alternative.
Analysis of Environmental Impacts.
Hazardous materials are substances that
may pose a threat to public safety or the
environment during transportation
because of their physical, chemical, or
nuclear properties. The hazardous
material regulatory system is a risk
management system that is preventionoriented 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,
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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 NPRM proposes to narrow the
list of materials for which a security
plan would be required to ensure that
the security plan regulations are
targeted 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 NPRM 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 NPRM.
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
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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.
Interested persons are invited to
submit comments on the potential
environmental, safety, and other
impacts of the proposals in this NPRM.
List of Subjects in 49 CFR Part 172
Hazardous materials transportation,
Hazardous waste, Labeling, Packaging
and containers, Reporting and
recordkeeping requirements.
In consideration of the foregoing,
PHMSA is proposing to amend title 49
chapter I, subchapter C, as follows:
PART 172—HAZARDOUS MATERIALS
TABLE, SPECIAL PROVISIONS,
HAZARDOUS MATERIALS
COMMUNICATIONS, EMERGENCY
RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
1. The authority citation for part 172
continues to read as follows:
Authority: 49 U.S.C. 5101–5128, 44701; 49
CFR 1.53.
2. In § 172.704, paragraphs (a)(5), and
(c)(2) are revised to read as follows:
§ 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
PO 00000
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Fmt 4701
Sfmt 4702
52571
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.
*
*
*
*
*
3. In § 172.800, paragraph (b) is
revised to read as follows:
§ 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
develop and adhere to a transportation
security plan for hazardous materials
that conforms to the requirements of
this subpart:
(1) Any quantity of a Division 1.1, 1.2,
or 1.3 material;
(2) Any quantity of a Division 1.4
material, identified in the Hazardous
Materials Table in § 172.101 of this part
with UN identification numbers UN
0104, UN 0237, UN 0255, UN 0267, UN
0289, UN 0361, UN 0365, UN 0366, UN
0440, UN 0441, UN 0455, UN 0456, and
UN 0500;
(3) Any quantity of a Division 1.5
material;
(4) 3,000 L (793 gallons) or more in a
single packaging of a Division 2.1
material;
(5) 3,000 L (793 gallons) or more in a
single packaging of a Division 2.2
material with a subsidiary hazard of 5.1;
(6) Any quantity of a material
poisonous by inhalation, as defined in
§ 171.8 of this subchapter;
(7) 3,000 L (793 gallons) or more in a
single packaging of a Class 3 material;
(8) Any quantity of a desensitized
explosive meeting the definition of a
Class 3 or Division 4.1 material;
(9) 3,000 kg (6,614 lbs.) or more in a
single packaging of a Division 4.2
material meeting the criteria for Packing
Group I or II;
(10) Any quantity of a Division 4.3
material;
(11) 3,000 L (793 gallons) or more in
a single packaging of a Division 5.1
liquid meeting the criteria for Packing
Group I or II;
(12) 3,000 L (793 gallons) of Division
5.1 perchlorates, ammonium nitrate,
ammonium nitrate fertilizers, or
ammonium nitrate emulsions or
suspensions or gels;
(13) Any quantity of an organic
peroxide, Type B, liquid or solid,
temperature controlled;
(14) Any quantity of a Division 6.1
material meeting the criteria for Packing
Group I;
(15) 3,000 L (793 gallons) or more in
a single packaging of a Division 6.1
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Radionuclide
Transport security
threshold (TBq)
Am-241 .....................
Au-198 ......................
Cd-109 ......................
Cf-252 .......................
Cm-244 .....................
Co-57 ........................
Co-60 ........................
Cs-137 ......................
Fe-55 ........................
Ge-68 ........................
Gd-153 ......................
Ir-192 ........................
Ni-63 .........................
Pd-103 ......................
Pm-147 .....................
Po-210 ......................
Pu-238 ......................
Pu-239 ......................
Ra-226 ......................
Ru-106 ......................
Se-75 ........................
Sr-90 .........................
Tl-204 ........................
Tm-170 .....................
Yb-169 ......................
0.6
2
200
0.2
0.5
7
0.3
1
8000
7
10
0.8
600
900
400
0.6
0.6
0.6
0.4
3
2
10
200
200
3
mstockstill on PROD1PC66 with PROPOSALS3
For mixtures of radionuclides,
determination of whether or not the
transport security radioactivity
threshold has been met or exceeded can
be calculated by summing the ratios of
activity present for each radionuclide
divided by the transport security
threshold for that radionuclide. If the
sum of the fractions is less than 1, then
the radioactivity threshold for the
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mixture has not been met or exceeded.
This calculation can be made with the
formula:
∑ ( A /T ) < 1
i
i
i
Where:
Ai = activity of radionuclide i that is present
in a package (TBq)
Ti = transport security threshold for
radionuclide i (TBq)
(18) 3,000 L (793 gallons) or more in
a single packaging of a Class 8 material
meeting the criteria for Packing Group I.
*
*
*
*
*
4.1. In § 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:
§ 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 § 172.800, including
site-specific or location-specific security
risks, 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
PO 00000
Frm 00016
Fmt 4701
Sfmt 4702
the security plan must be implemented;
and
(3) A plan for training hazmat
employees in accordance with § 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 image 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 September 3,
2008, under authority delegated in 49 CFR
part 106.
Theodore L. Willke,
Associate Administrator for Hazardous
Materials Safety.
[FR Doc. E8–20856 Filed 9–8–08; 8:45 am]
BILLING CODE 4910–60–P
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material meeting the criteria for Packing
Group II or III;
(16) 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;
(17) 3000 A2 in a single package of
Class 7 material or the following
radionuclides at the thresholds
indicated:
Agencies
[Federal Register Volume 73, Number 175 (Tuesday, September 9, 2008)]
[Proposed Rules]
[Pages 52558-52572]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-20856]
[[Page 52557]]
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Part V
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; Proposed Rule
Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 /
Proposed Rules
[[Page 52558]]
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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),
DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: PHMSA, in consultation with the Transportation Safety
Administration (TSA) of the Department of Homeland Security (DHS), is
proposing to modify its current security plan requirements governing
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 proposed rule would narrow the list of materials subject to
security plan requirements and reduce associated regulatory costs and
paperwork burden. The proposed rule also would clarify certain
requirements related to security planning, training, and documentation
and incorporate and build on recent international standards governing
hazardous materials security.
DATES: Submit comments by November 10, 2008.
ADDRESSES: You may submit comments identified by the docket number
(PHMSA-06-25885) by any of the following methods:
Federal eRulemaking Portal: Go to https://
www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: 1-202-493-2251.
Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
Hand Delivery: To Docket Operations, Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
For more detailed instruction on comment submission, see the
SUPPLEMENTARY INFORMATION section.
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:
Comment Submission
Instructions: Identify the agency and docket number (PHMSA-06-
25885) at the beginning of your submission. Except for comments that
receive confidential treatment, all comments received will be posted
without change to the Federal Docket Management System (FDMS),
including any personal information provided. Detailed instructions for
requesting confidential treatment are provided below, under the Privacy
Act heading.
Docket: For access to the dockets to read background documents or
comments received, go to https://www.regulations.gov or DOT's Docket
Operations Office (see ADDRESSES).
Privacy Act: Anyone is able to search the electronic form of any
written communications and comments received into any of our dockets by
the name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Pages 19477-78), which may also be found at https://www.regulations.gov.
You may request confidential treatment of comments or portions of
comments under the procedures set forth in 49 CFR part 105. While all
comments should be sent to the FDMS, PHMSA will consider separately and
not place in the public docket those comments or portions of comments
PHMSA determines to include trade secrets, other confidential
commercial information, or sensitive security information (SSI). In
accordance with 49 CFR 105.30, you may ask PHMSA to keep information
confidential using the following procedures: (1) Mark ``confidential''
on each page of the original document you would like to keep
confidential; (2) send FDMS both the original document and a second
copy of the original document with the confidential information
redacted; and (3) explain why the information is confidential (as a
trade secret, other confidential commercial information, or SSI). In
your explanation, you should provide enough information to enable PHMSA
to determine whether the information provided is protected by law and
must be handled separately.
In addition, for comments or portions of comments that you believe
contain SSI as defined in 49 CFR 15.7, you should comply with Federal
regulations governing the handling of SSI. See 49 CFR 1520.9 and 49 CFR
15.9, Restrictions on the disclosure of sensitive security information.
Those regulations restrict the disclosure of SSI to those with a need
to know and set forth specific requirements for marking, packaging, and
disposing of documents containing SSI. Note when mailing in or using a
special delivery service to send comments containing SSI, comments
should be wrapped in a manner to prevent the information from being
read. PHMSA may perform concurrent reviews on requests for designations
as SSI.
After reviewing your request for confidentiality and the
information provided, PHMSA will determine whether the information
should be treated as confidential under applicable laws and
regulations. PHMSA will notify you of the decision to grant or deny
confidential treatment. If PHMSA denies your request, you will be
provided an opportunity to request reconsideration before the
information is publicly disclosed. PHMSA will reconsider its decision
to deny confidentiality based on your response.
To further guard against disclosure of SSI, PHMSA will review all
submissions, whether or not they are identified as confidential, prior
to their posting on the public docket. PHMSA will notify you if we
determine that information in your submission should not be disclosed
to the public. If you have any questions concerning the procedures for
determining confidentiality or security sensitivity, you may call one
of the individuals listed below.
I. Background
A. Current DOT Security Requirements
The Hazardous Materials Regulations (HMR; 49 CFR parts 171-180)
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;
[[Page 52559]]
(4) A shipment in a bulk packaging with a capacity equal to or
greater than13,248 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. International Transportation Security Standards
The United Nations Model Regulations on the Transport of Dangerous
Goods (UN Recommendations) identify high consequence dangerous goods
for which enhanced security measures are recommended. The recommended
security measures include security plans and are similar to the
requirements in subpart I of part 172 of the HMR. The UN
Recommendations define high consequence dangerous goods as materials
with the ``potential for mis-use in a terrorist incident and which may,
as a result, produce serious consequences such as mass casualties or
mass destruction.'' The UN Recommendations list the following materials
as high consequence dangerous goods:
(1) Division 1.1 explosives;
(2) Division 1.2 explosives;
(3) Division 1.3 compatibility group C explosives;
(4) Division 1.5 explosives;
(5) Bulk shipments of Division 2.1 flammable gases;
(6) Division 2.3 toxic gases (excluding aerosols);
(7) Bulk shipments of Class 3 flammable liquids in PG I or II;
(8) Class 3 and Division 4.1 desensitized explosives;
(9) Bulk shipments of Division 4.2 PG I materials;
(10) Bulk shipments of Division 4.3 PG I materials;
(11) Bulk shipments of Division 5.1 PG I oxidizing liquids;
(12) Bulk shipments of Division 5.1 perchlorates, ammonium nitrate
and ammonium nitrate fertilizers;
(13) Division 6.1 PG I toxic materials;
(14) Division 6.2 infectious substances of Category A (UN2814 and
2900);
(15) Class 7 radioactive materials in quantities greater than 3000
A1 (special form) or 3000 A2, as applicable, in
Type B(U) or Type B(M) or Type (C) packages; and
(16) Bulk shipments of Class 8 PG I materials.
For purposes of the security provisions, the UN defines ``in bulk'' to
mean quantities greater than 3,000 kg (6,614 lbs.) or 3,000 liters (793
gallons) in portable tanks or bulk containers.
C. Petitions for Rulemaking
PHMSA has received two petitions for rulemaking requesting a review
and reevaluation of the current HMR security plan requirements. The
Council on Safe Transportation of Hazardous Articles (COSTHA)
petitioned PHMSA (P-1447) to reevaluate the security requirements in
subpart I of part 172 of the HMR to ``enhance international
harmonization and to better utilize available resources in enhancing
hazardous materials transportation security.'' COSTHA notes that the
list of hazardous materials subject to the security plan requirements
differs from the list of high consequence dangerous goods in the UN
Recommendations. COSTHA requests that PHMSA adopt the same criteria as
the UN Recommendations for materials that are subject to the security
plan requirements or, as an alternative, eliminate the security plan
requirement for quantities of hazardous materials currently subject to
placarding under subpart F of part 172. COSTHA cites several examples
of hazardous materials (e.g., automobile batteries, inks, paint,
flavoring extracts) that, based on hazard class and quantity are
placarded and subject the security plan requirements under the HMR, but
not covered by the list of high consequence dangerous goods in the UN
Recommendations. COSTHA acknowledges that these materials pose certain
risks in transportation, but contends it is highly unlikely a terrorist
would use these materials to perpetrate a terrorist attack.
Similarly, the American Trucking Associations (ATA) petitioned
PHMSA (P-1466) to designate a subset of ``security sensitive hazardous
materials'' that would trigger security plan requirements. The ATA
urges PHMSA to use the list of materials and quantities subject to the
Federal Motor Carrier Safety Administration (FMCSA) Hazardous Materials
Safety Permit requirements as the starting point for determining
security sensitive hazardous materials. In 49 CFR part 385, FMCSA
requires a safety permit for motor carriers transporting specified
quantities of Class 7 (radioactive) materials; Class 1 materials
(explosives); materials that are poisonous or toxic by inhalation (PIH
or TIH materials); and compressed or refrigerated liquefied methane or
liquefied natural gas. In addition to those materials, ATA suggests
that PHMSA add the following materials from the UN high consequence
dangerous goods list: (1) Bulk shipments of Division 2.1; (2) bulk
shipments of Class 3, PG I and II; (3) Class 3 and Division 4.1
desensitized explosives (quantity to be determined); (4) bulk shipments
of Division 4.2, PG I; (5) bulk shipments of Division 4.3, PG I; (6)
bulk shipments of Division 5.1, PG I; (7) bulk shipments of Division
5.1 perchlorates, ammonium nitrate and ammonium nitrate fertilizers;
(8) Division 6.2 infectious substances of Category A (quantity to be
determined); (9) any quantity of select agents; and (10) bulk shipments
of Class 8, PG I. The ATA uses quantities greater than 3,500 gallons or
5,000 pounds to define ``bulk'' for purposes of security planning.
[[Page 52560]]
We agree with COSTHA and ATA that the list of materials for which a
security plan is required should be reevaluated. Our existing security
plan rules were developed as baseline requirements. We considered the
company preparing the security plan to be in the best position to
assess security risks based on its operational circumstances. If
security risks were determined to be insignificant, this would be
reflected in a simple security plan with minimal content. Increased
coverage would be required when security risks are more substantial.
The security plan requirements went into effect more than four years
ago, on September 25, 2003. Since then, both the industry and the
government have gained experience evaluating security risks associated
with specific hazardous materials and transportation environments and
identifying appropriate measures to address those risks. Accordingly,
we initiated this rulemaking, in coordination with other DOT modal
administrations (the Federal Aviation Administration (FAA), Federal
Railroad Administration (FRA), and FMCSA), and TSA to consider
modifications to the list of hazardous materials for which security
plans are required.
II. Advance Notice of Proposed Rulemaking
On September 21, 2006, PHMSA published an advance notice of
proposed rulemaking (ANPRM) seeking public comment on the current
security plan requirements. Commenters were asked to address the list
of materials posing a security threat sufficient to justify preparation
and implementation of a security plan, including factors that should be
considered in assessing security risks; quantity thresholds that would
trigger the security plan requirement; packing group criteria; and the
availability of hazardous materials outside of transportation.
On November 30, 2006, PHMSA hosted a public meeting to discuss
these issues and invite further comments and information concerning the
types and quantities of materials that should be covered by the
security plan rule. Six persons made presentations at the public
meeting. A transcript of the meeting, with the statements of
presenters, is available for review in the public docket for this
rulemaking.
Written comments were received from 34 industry associations,
offerors, carriers, and private citizens, identified in the following
list.
----------------------------------------------------------------------------------------------------------------
ID/name/company Date Docket No.
----------------------------------------------------------------------------------------------------------------
1 Clare L. Welker............................. 09/28/2006 PHMSA-2006-25885-2
2 Gregory Sutherland.......................... 10/03/2006 PHMSA-2006-25885-3
3 Clare L. Welker............................. 10/19/2006 PHMSA-2006-25885-4
4 Duplainville Transport...................... 10/25/2006 PHMSA-2006-25885-5
5 Ecolab...................................... 11/22/2006 PHMSA-2006-25885-6
6 Arthur E. Hall.............................. 11/21/2006 PHMSA-2006-25885-7
7 Institute of Makers of Explosives (IME)..... 11/30/2006 PHMSA-2006-25885-8
8 Thomas Jefferson National Accelerator 12/13/2006 PHMSA-2006-25885-9
Facility (Jefferson Lab).
9 U.S. Department of Energy (DOE)............. 12/18/2006 PHMSA-2006-25885-10
10 Thomas L. Dunaway.......................... 12/18/2006 PHMSA-2006-25885-11
11 National Refrigerants, Inc. (NRI).......... 12/19/2006 PHMSA-2006-25885-13
12 United States Nuclear Regulatory Commission 12/19/2006 PHMSA-2006-25885-14
(NRC).
13 Veolia ES Technical Solutions, L.L.C. 12/19/2006 PHMSA-2006-25885-15
(Veolia).
14 Council on Radionuclides and 12/19/2006 PHMSA-2006-25885-16
Radiopharmaceuticals, Inc. (CORAR).
15 Flavor and Extract Manufacturers 12/20/2006 PHMSA-2006-25885-17
Association (FEMA).
16 Fragrance Materials Association (FMA)...... 12/20/2006 PHMSA-2006-25885-18
17 The Dow Chemical Company (Dow)............. 12/20/2006 PHMSA-2006-25885-19
18 Laboratory Corporation of America Holdings. 12/19/2006 PHMSA-2006-25885-20
19 American Trucking Associations, Inc (ATA).. 12/20/2006 PHMSA-2006-25885-21
20 Dangerous Goods Transport Consulting, Inc.. 12/20/2006 PHMSA-2006-25885-22
21 Air-Conditioning and Refrigeration 12/20/2006 PHMSA-2006-25885-23
Institute (ARI).
22 Total Petrochemicals USA, Inc.............. 12/20/2006 PHMSA-2006-25885-24
23 American Beverage Association (ABA)........ 12/19/2006 PHMSA-2006-25885-25
24 Reusable Industrial Packaging Association 12/20/2006 PHMSA-2006-25885-26
(RIPA).
25 Utility Solid Waste Activities Group 12/20/2006 PHMSA-2006-25885-27
(USWAG).
26 Association of Hazmat Shippers, Inc. (AHS). 12/21/2006 PHMSA-2006-25885-28
27 National Paint & Coatings Association, Inc. 12/20/2006 PHMSA-2006-25885-29
(NPCA).
28 National Propane Gas Association (NPGA).... 12/21/2006 PHMSA-2006-25885-30
29 Dangerous Goods Advisory Council (DGAC).... 12/21/2006 PHMSA-2006-25885-31
30 Council on Safe Transportation of Hazardous 12/22/2006 PHMSA-2006-25885-32
Articles, Inc. (COSTHA).
31 National Tank Truck Carriers, Inc. (NTTC).. 12/27/2006 PHMSA-2006-25885-33
32 Battery Council International (BCI)........ 01/12/2007 PHMSA-2006-25885-34
33 Nuclear Energy Institute (NEI)............. 01/12/2007 PHMSA-2006-25885-35
34 Bill Bradshaw--Comments.................... 05/17/2007 PHMSA-2006-25885-36
----------------------------------------------------------------------------------------------------------------
The full text of their comments are available for review through
the Federal eRulemaking Portal (https://www.regulations.gov).
Most commenters agree that the list of materials for which security
plans are required should be revised to include only those materials
that pose a significant security threat in transportation. In the words
of one commenter, ``[R]egulating hazardous materials transportation
security at the placarded load level is inconsistent with a risk-based
approach. Using placards as a trigger for hazardous materials security
regulations results in the overregulation of materials that are not
capable of being used as a terrorist weapon.'' (ATA) Several commenters
suggest that our rule should address two types of threats from the
misuse of hazardous materials. As one put it: ``First, there are
commercial shipments of materials that, based on the hazard and
quantity in the package would, if attacked in transportation and
catastrophically released, enhance the damage or destruction of the
attack. * * * Second, there are other materials whose value to a
terrorist is in the theft
[[Page 52561]]
or diversion of the material for manipulation into weapons of mass
destruction (WMD).'' (IME) Similarly, ``Risk should be assessed
considering the nature of the threat, the vulnerability of the target,
and the potential consequences of an incident. Threat scenarios should
consider the potential for a serious catastrophic release from a direct
attack, the potential for tampering and subsequent downstream impact,
and the potential for theft and misuse as a weapon of mass
destruction.'' (Dow)
Commenters also agree that, in developing this list, PHMSA should
consider the potential for a material to be used for a criminal or
terrorist act and the consequences of such an action, based on the
hazard class and packing group of the material and the quantity or
volume transported. Commenters generally oppose a material-specific
list of chemicals and other materials that pose a security risk. ``We
urge PHMSA to reject [security sensitive hazardous materials] lists
that are material-by-material based and to continue to embrace one
based on a hazard class approach. * * * Among other advantages, a
hazard class approach can be internationally harmonized and it
addresses issues created by mixtures and solutions that have plagued
material-by-material lists in other regulatory venues.'' (IME)
Most commenters suggest that security plan requirements should
apply to the list of hazardous materials identified in the UN
Recommendations as ``high consequence dangerous goods.'' ``[W]e believe
the current Security Plan requirements should be harmonized with the UN
Recommendations so that they focus on the types of hazards and volumes
that pose a real threat of weaponization.'' (Flavor and Extract
Manufacturers Association) Also, ``[t]he UN recommendation to require
security plans for 'High Consequence Dangerous Goods' appears to be a
reasonable approach, which considers hazard, form of packaging and
volume thresholds.'' (Dow) As well, ``the UN Recommendations
individually define `significant risk' materials and quantities based
on the actual risk factors * * * rather than general transport
classifications. Importantly, material identification is accomplished
through a stakeholder developed `list of high consequence dangerous
goods' ensuring that material is independently peer reviewed before it
is assigned a risk level.'' (Air-Conditioning and Refrigeration
Institute).
III. Proposed Modifications to Security Plan Criteria
A. Summary of Proposal
Based on the comments received on the ANRPM and an evaluation of
possible security threats posed by specific types and classes of
hazardous materials, PHMSA is proposing to modify the list of materials
for which a security plan is required. PHMSA agrees with the commenters
to the ANPRM that the UN list of high consequence dangerous goods
includes most of the hazardous materials that pose a significant
transportation security risk. The UN list of high consequence dangerous
goods was used as the starting point for our deliberations for this
NPRM.
PHMSA worked closely with FRA, FMCSA, and TSA to assess the
transportation security risks associated with the different classes and
quantities of hazardous materials. To determine the types of materials
that should be subject to security planning requirements, PHMSA
evaluated specific transportation scenarios in which a terrorist could
deliberately use hazardous materials to cause large-scale casualties
and property 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 a perpetrator to take control of a
conveyance containing a high-risk material and move it to a site where
the material could cause maximum damage or provide unusual leverage.
For some hazardous materials, the primary security threat involves
theft or highjacking of raw materials for use in weapons of mass
destruction.
On the basis of these considerations, PHMSA proposes to modify the
current list of materials covered by the security plan requirement, as
summarized in the following table:
Proposed Revisions to the List of Hazardous Materials for Which Transportation Security Plans Will Be Required
----------------------------------------------------------------------------------------------------------------
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 only
placarding. 0237, 0255, 0267, 0289, for detonators and shaped
0361, 0365, 0366, 0440, charges.
0441, 0455, 0456, 0500.
1.5................ A quantity requiring Any quantity................. Security plan required for
placarding. all shipments.
1.6................ A quantity requiring Not subject.................. Security plan not required
placarding. for any Division 1.6
shipments.
2.1................ A quantity requiring 3,000 L in a single packaging Security plan not required
placarding. for less than 3,000 L.
2.2................ A quantity requiring Not subject except for oxygen Security plan not required
placarding. and gases with a subsidiary for most non-flammable, non-
5.1 hazard (3,000 L in a poisonous compressed gas
single packaging). shipments.
2.3................ Any quantity................. Any quantity................. None.
3.................. A quantity requiring 3,000 L in a single packaging Security plan not required
placarding. and any quantity of Class 3 for less than 3,000 L except
desensitized explosives. for desensitized explosives.
4.1................ A quantity requiring Any quantity desensitized Security plan not required
placarding. explosives. except for desensitized
explosives.
4.2................ A quantity requiring PG I and II only in Security plan not required
placarding. quantities of 3,000 kg or for PG III materials.
more in a single packaging.
4.3................ Any quantity................. Any quantity................. None.
[[Page 52562]]
5.1................ A quantity requiring PG I and II liquids, Security plan not required
placarding. perchlorates, ammonium for PG III liquids or
nitrate (including unlisted solids.
fertilizers) in quantities
of 3,000 L or more in a
single packaging.
5.2................ Any quantity of Organic Any quantity of Organic None.
peroxide, Type B, liquid or peroxide, Type B, liquid or
solid, temperature solid, temperature
controlled. controlled.
6.1................ A quantity requiring Any quantity of PG I; 3,000 L Security plan not required
placarding; any quantity of for PG II and III. for less than 3,000 L of PG
PIH material. II and III.
6.2................ Select agents................ Select agents................ None.
7.................. Shipments requiring Yellow For radionuclides covered by Security plan only required
III label; highway route the IAEA Code of Conduct, for Class 7 materials that
controlled quantity. Category 1 and Category 2 pose transportation security
sources per package; for all risk.
other radionuclides, 3000 A2
per package.
8.................. A quantity requiring PG I only in quantities of Security plan not required
placarding. 3,000 L or more in a single for PG II and III materials.
packaging.
9.................. Capacity >3,500 gallons for Not subject.................. Security plan not required
liquid/gas; volumetric for Class 9 materials.
capacity >468 cubic feet for
solids.
----------------------------------------------------------------------------------------------------------------
Our proposed revisions are explained in detail in the following
section.
B. System Characteristics and Risks
A number of characteristics of the hazardous materials
transportation system create the potential for misuse: (1) Substantial
quantities of inherently dangerous materials are transported; (2) these
materials are already mobile; (3) these materials are frequently
transported in proximity to densely populated areas; and (4) placards
or other markings required for safety may communicate hazard
information to those who would misuse it.
Following are the hazards of greatest concern from a transportation
security perspective:
Explosion and fire. Hazardous materials that pose a risk of
explosion or fire may be used to attack large groups of people and
critical infrastructure, such as buildings, tunnels, bridges, subways,
communication centers, and electrical power grids.
Poison Inhalation Hazards (PIH). PIH materials, either as gases or
volatile liquids, can be used to attack people in confined spaces such
as buildings or subways. Bulk quantities present dangers to large areas
and could affect a significant number of people in urban areas.
Poison liquids or solids. Poisons can be used to attack food or
drinking water supplies or to attack groups of people indoors or
outdoors.
Infectious substances. Depending on the mode of transmission for a
given material, infectious substances can be used to contaminate food
or water supplies or to expose large numbers of people to disease. The
suspected or possible presence of these materials can result in long-
term denial of the use of space, facilities, or goods.
Radioactive materials. These materials can cause severe chronic
effects on large numbers of people, depending on exposure levels and
the time exposed. The suspected or possible presence of these materials
can result in long-term denial of the use of space, facilities, or
goods.
Other materials of concern. Certain hazardous materials can be
mixed to create explosions, intensified burning, and toxic effects or
used as precursor chemicals in the manufacture of more dangerous
substances. For example, mixing poisonous materials with acidic
material can generate toxic gases (e.g., sodium cyanide mixed with
hydrochloric acid will generate hydrogen cyanide gas).
C. Security Risks for Specific Classes of Materials
A detailed discussion of the transportation security risks posed by
specific classes of hazardous materials follows.
1. Division 1.1, 1.2, and 1.3 Explosives
Division 1.1., 1.2, and 1.3 explosive materials (e.g. , certain
types of ammunition and cartridges, black powder, gun powder,
demolition devices, depth charges, certain types of detonators, certain
types of fireworks, rockets, and warheads) pose significant safety and
security risks in transportation. A Division 1.1 explosive is one that
presents a mass explosive hazard. A mass explosion is one that affects
almost the entire load simultaneously. An explosion of Division 1.1
materials creates a pressure pulse that moves faster than the speed of
sound. A Division 1.2 explosive has a projection hazard, which means
that if the material explodes, it will project fragments outward at
some distance. A Division 1.3 explosive presents a fire hazard and
either a minor blast hazard or a minor projection hazard or both. If
compromised in transit by detonation or as a secondary explosion to an
improvised explosive device (IED), these materials could result in
significant numbers of fatalities and substantial damage to
transportation infrastructure and the surrounding area. When available,
these explosives have been the preferred weapon of terrorists. This
trend is not expected to change.
Significant quantities of Division 1.1, 1.2, and 1.3 explosives are
transported by highway and rail for both commercial and military
applications. The Department of Defense alone moves approximately
30,000 shipments a year by motor carrier. Motor carrier shipments are
transported largely on the nation's interstate highway system, which
bisects or adjoins many metropolitan areas offering significant iconic-
value and critical infrastructure targets. About 500 carloads of these
explosives are transported by rail each year. Like the interstate
highway system, the rail transportation network intersects many densely
populated areas.
The HMR currently require security plans for shipments of any
quantity of Division 1.1, 1.2, or 1.3 explosives. PHMSA believes that
this requirement provides an appropriate level of security, given the
potential
[[Page 52563]]
vulnerabilities and risks associated with these materials and thus
proposes to retain this requirement in the NPRM.
2. Division 1.4 Explosives
Division 1.4 explosives are those that present a minor explosive
hazard. The explosive effects are largely confined to the package, with
no projection of fragments of appreciable size or range. This category
of explosives includes detonators used to detonate the Division 1.1,
1.2, and 1.2 explosives described above. Detonators are part of all
IEDs. Over 500,000 tons of Division 1.4 explosives are transported by
rail and highway in the United States every year.
Currently, the HMR require security plans for placarded amounts of
Division 1.4 explosives. Our evaluation suggests that most Division 1.4
explosives do not pose a significant transportation security risk.
However, Division 1.4 detonators are an attractive target for theft and
use as initiating devices for IEDs. Therefore, in this NPRM, PHMSA
proposes to require security plans only for shipments of any quantity
of the following types of Division 1.4 explosives (listed by proper
shipping name and UN identification number) because they are difficult
to produce, are key components to IEDs, and can be used as initiators
for other explosives:
(1) Detonator assemblies, non electric for blasting (UN 0361, UN
0500)
(2) Detonators for ammunition (UN 0365, UN 0366)
(3) Detonators, electric, for blasting (UN 0255, UN 0456)
(4) Detonators, non-electric, for blasting (UN 0267, UN 0455)
(5) Cord, detonating, flexible (UN 0289)
(6) Cord, detonating, mild effect, metal clad (UN 0104)
(7) Charges, shaped, flexible, linear (UN 0237)
(8) Charges, shaped, without detonator (UN 0440, UN 0441)
3. Division 1.5 Explosives
Division 1.5 explosives are very insensitive explosives. This
division covers substances that have a mass explosion hazard but are so
insensitive that they pose very little probability of initiation or of
transition from burning to detonation under normal conditions of
transport. In practice, Division 1.5 explosives are activated using a
higher-energy explosive charge. Roughly 4.3 million tons of Division
1.5 explosives are transported by rail and highway in the United States
every year.
Division 1.5 explosives could be used in attacks on people or
infrastructure. While these explosives are insensitive to effects from
normal transportation accident conditions, such as fire or violent
shock, Division 1.5 explosives can be made to detonate if initiated by
an explosive charge. The detonation effects, while less severe than
those of Division 1.1, 1.2, and 1.3 explosives, are substantial. An
example of a Division 1.5 explosive is ammonium nitrate-fuel oil
mixture (ANFO) that, with a properly designed explosive chain, can
produce a substantial blast wave. Insensitive bulk blasting agents like
ANFO have been used by terrorists in the past, most notably in the
attack on the Murrah Federal Building in Oklahoma City.
Currently, the HMR require security plans for placarded shipments
of Division 1.5 explosives. In this NPRM, PHMSA proposes to require
security plans for shipments of Division 1.5 explosives transported in
any quantity.
4. Division 1.6 Explosives
Division 1.6 explosives are extremely insensitive articles that do
not have a mass explosion hazard and that contain only extremely
insensitive detonating substances with only a negligible probability of
accidental initiation or propagation. Currently, the HMR require
security plans for shipments of placarded amounts of Division 1.6
materials. However, our evaluation concludes that these materials do
not pose a transportation security risk. Therefore, in this NPRM, PHMSA
proposes to delete Division 1.6 explosives from the list of materials
for which security plans are required.
5. Division 2.1 Flammable Gases
Division 2.1 materials are flammable gases that may be transported
at ambient pressure in a compressed or liquefied compressed state.
Flammable gases will burn if mixed with an appropriate amount of air;
confined burning of a flammable gas can lead to detonation. A commonly
transported example of a flammable gas is propane, a liquefied
compressed gas. 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'').
Over 120 million tons of flammable gas are used and distributed in
the United States on an annual basis. A significant portion is
transported by pipeline; however, more than 200,000 carloads of these
materials are transported by rail, and over 40 million tons are
transported by highway each year. These materials generally are
consumer products and can be purchased without special licenses or
security procedures.
Based on their hazard characteristics and the frequency with which
propane and other Division 2.1 materials are transported in this
country, PHMSA believes that materials meeting the definition for
classification as Division 2.1 materials present a sufficient security
risk to warrant the imposition of security plan requirements.
Terrorists overseas have used flammable gas in attacks on people and
buildings, using an IED to detonate the gas. The resulting disbursement
and ignition of the gas creates a significantly larger fireball and
heat signature than typical of an explosive detonation.
The HMR currently require security plans for shipments of Division
2.1 materials in amounts that require placarding--that is, amounts
greater than 119 gallons in a single packaging or container. In
evaluating specific security risks associated with shipments of
Division 2.1 materials, PHMSA has concluded that shipments in
quantities less than 3,000 L in a single package do not pose a
transportation security threat warranting development and
implementation of security plans. As discussed above, the major
security threat associated with these materials is their potential use
to attack large groups of people and critical infrastructure; a
substantial quantity is necessary to achieve a significant effect.
Therefore, this NPRM proposes to require security plans for shipments
of Division 2.1 materials in amounts greater than or equal to 3,000 L
in a single package or container. Security plans would not be required
for shipments of Division 2.1 materials in lesser quantities.
6. Division 2.2 Compressed Gases
Division 2.2 compressed gases are those that are neither flammable
nor poisonous. Division 2.2 compressed gases are regulated for
transportation safety purposes because they pose a physical hazard due
to the increased pressure under which the material is maintained. In
addition, Division 2.2 compressed gases will displace oxygen if
released in a confined space. Without oxygen, people very quickly lose
consciousness and will die within three or four minutes.
Currently, the HMR require shippers and carriers of Division 2.2
gases in amounts that require placarding to develop and implement
security plans.
[[Page 52564]]
However, the hazard characteristics of these materials do not lend
themselves to terrorist or criminal use. Therefore, PHMSA has concluded
that Division 2.2 compressed gases generally do not pose a security
threat sufficient to warrant specific security planning measures.
However, we are proposing to require security plans for oxygen and for
other Division 2.2 gases that are oxidizers. In addition to being a
Division 2.2 material, oxygen and other oxidizers enhance the
combustion of other materials. Oxygen and similar oxidizers will
increase 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, large shipments of oxygen should be subject to
security planning requirements. Therefore, this NPRM proposes to
require shippers and carriers of oxygen in quantities greater than or
equal to 3,000 L in a single package or container to develop and
implement security plans. In addition, we are proposing to require
security plans for shipments of any Division 2.2 compressed gases with
a subsidiary hazard of Division 5.1 oxidizer when transported in
quantities of at least 3,000 L in a single package or container. A list
of such materials is provided below.
----------------------------------------------------------------------------------------------------------------
Identification
Proper shipping name Hazard class Nos. Label code
----------------------------------------------------------------------------------------------------------------
Air, refrigerated liquid, (cryogenic liquid).............. 2.2 UN1003 2.2, 5.1
Air, refrigerated liquid, (cryogenic liquid) non- 2.2 UN1003 2.2, 5.1
pressurized..............................................
Carbon dioxide and oxygen mixtures, compressed............ 2.2 UN1014 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 2.2 UN3311 2.2, 5.1
liquid)..................................................
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
----------------------------------------------------------------------------------------------------------------
7. Division 2.3 and Division 6.1 PIH Materials
Poison inhalation hazard (PIH) materials are gaseous or liquid
materials that are known or presumed on the basis of tests to be toxic
to humans and to pose a hazard to health in the event of a release
during transportation. PIH materials form a toxic plume upon release
into the atmosphere. Dispersion of these vapors can endanger
significant numbers of people. Examples of PIH materials include
phosgene, chlorine, hydrogen fluoride, and anhydrous ammonia. Each year
about 100,000 carloads of PIH materials are shipped by rail, and over 8
million tons of PIH materials are transported by highway. Because of
their safety risks, PIH materials are among the most stringently
regulated of all hazardous materials.
The most infamous example of the safety risks posed by PIH
materials is the 1984 accident in Bhopal, India, in which approximately
10,000 gallons of methyl isocyanate was released from a chemical plant,
causing nearly 3,000 deaths and more than 15,000 injuries. A PIH
material (sarin) was released by terrorists in a Tokyo subway in 1995,
resulting in 12 fatalities and hundreds of injuries. More recently, on
January 6, 2005, in Graniteville, South Carolina, a 42-car freight
train, carrying several tank cars of chlorine, collided with a standing
train. The accident resulted in the puncture of one tank car and the
release of a cloud of chlorine gas that killed nine people. In
addition, terrorists in Iraq have employed tank trucks loaded with
chlorine in several attacks.
The transportation security risks of these materials have been
amply demonstrated. The HMR currently require security plans for
shipments of PIH materials in any quantity. We believe this requirement
provides an appropriate level of security, given the potential
vulnerabilities and risks associated with these materials. We are not
proposing any changes to this requirement in this NPRM.
8. Class 3 Flammable Liquids
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. At least 37 million shipments of flammable liquids are
moved in commerce in the United States every year, including upwards of
24 million shipments of gasoline from bulk storage facilities through
the distribution chain.
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. The HMR
currently require security plans for shipments of flammable liquids in
amounts that require placarding. In this NPRM, PHMSA proposes to
require security plans for shipments of Class 3 materials in amounts
greater than or equal to 3,000 L in a single package or container.
Security plans would not be required for shipments in lesser
quantities.
9. Class 3 and Division 4.1 Desensitized Explosives
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. Water is
the most commonly used diluent/desensitizing material, even if it is
not miscible (dissolves in) with the explosive. Other diluents can
include flammable or non-flammable liquids or solids that have no
explosive properties in and of themselves, but prevent the ability of
the explosive substance to initiate or sustain a detonation or
deflagration. Plasticizing liquids like triacetin, dibutyl phthalate,
vegetable oil, or paraffin oil are sometimes used. Simple solid
diluents for explosives include bentonite clay, plastic granules,
gypsum and waxes of various types. Some diluents like water are easily
separated from the explosive and the explosive is easy to reconstitute
by drying. Some diluents can be extracted by dissolving them away from
the explosive (or vice versa) with various solvents. Large quantities
of desensitized explosives are moved by commercial rail and motor
carrier every year in support of mining and other industrial
operations.
Desensitized explosives have been used in terrorist attacks here
and overseas. Urea nitrate, for example, has been used in a number of
terrorist
[[Page 52565]]
attacks, most notably the first vehicle-borne improvised explosive
device attack on the World Trade Center in 1993. Currently, the HMR
require security plans for placarded shipments of Class 3 or Division
4.1 desensitized explosives. Because many desensitized explosives can
be readily reconstituted into explosive materials, this NPRM proposes
to require security plans for shipments of any quantity of Class 3 or
Division 4.1 desensitized explosives. Other materials within Division
4.1 would not be subject to the security plan requirement under this
NPRM.
10. Division 4.2 Spontaneously Combustible Material
Division 4.2 spontaneously combustible materials are pyrophoric or
self-heating materials. Division 4.2 materials in Packing Group I are
pyrophoric materials. A pyrophoric material is a liquid or solid that,
even in small quantities and without an external ignition source, can
ignite when it comes in contact with air. Division 4.2 materials in
Packing Groups II and III are self-heating materials. A self-heating
material is likely to self-heat when in contact with air. About one
million tons of these materials are shipped in commerce each year.
Currently, the HMR require security plans for placarded shipments
of Division 4.2 materials. In this NPRM, PHMSA proposes to retain the
security plan requirement for shipments of 3,000 kg or more 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 because assessment indicates that the security risks
associated with these materials are not sufficient to warrant
development and implementation of security plans.
11. Division 4.3 Dangerous When Wet Material
Division 4.3 materials are water reactive--they emit flammable or
toxic gases upon contact with water. The most hazardous Division 4.3
materials spontaneously ignite on contact with water. These are
industrial chemicals easily available with no security restrictions.
Roughly one million tons are shipped by highway each year, in addition
to about 3,000 yearly shipments by rail. 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.
Currently, the HMR require security plans for shipments of Division
4.3 materials in any quantity. PHMSA believes this requirement provides
an appropriate level of security, given the potential vulnerabilities
and risks associated with these materials; therefore, this NPRM
proposes to retain this requirement.
12. Division 5.1 Oxidizing Material
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. Perchlorates are a subset of Division 5.1
materials. Both potassium perchlorate and ammonium perchlorate are used
extensively in the pyrotechnics industry; ammonium perchlorate is a
component of solid rocket fuel. Ammonium nitrate and ammonium nitrate
fertilizers are also examples of oxidizing materials. As a strong
oxidizing agent, ammonium nitrate makes an explosive mixture when
combined with a fuel such as a hydrocarbon, usually diesel fuel (oil)
or, sometimes, kerosene.
Division 5.1 oxidizing materials are frequently used as components
of IEDs. On April 19, 1995, Timothy McVeigh blew up the Murrah Federal
Building in Oklahoma City with a bomb made from fertilizer and fuel
oil. Division 5.1 materials are industrial chemicals easily available
with no security restrictions. Approximately nine million tons of
Division 5.1 materials are shipped by motor carrier each year. The
railroads transport about 50,000 shipments yearly.
Currently, the HMR require security plans for placarded shipments
of Division 5.1 materials. This NPRM proposes to require a security
plan for shipments of Division 5.1 materials in Packing Groups I and
II, perchlorates, and ammonium nitrate (including fertilizers) in a
single packaging, in a quantity of 3,000 kg or more for solids or 3,000
L or more for liquids. Except for perchlorates and ammonium nitrate, we
are proposing to eliminate the security plan requirement for Division
5.1 materials in Packing Group III.
13. Division 5.2 Organic Peroxides
Organic peroxides are temperature sensitive, self-reacting
materials that pose both a fire and explosion hazard, and may be both
toxic and corrosive. Once an organic peroxide reaches a certain
temperature (called the self-accelerating decomposition temperature or
SADT), its reaction will proceed uncontrollably. Organic peroxides are
assigned to types A through G according to their reactivity. The most
dangerous organic peroxides will detonate much like a low-energy
Division 1.1 explosive. The most dangerous organic peroxides, assigned
to Type A, are prohibited from transportation; those that are permitted
in transportation are stringently regulated in terms of the quantities
that may be transported and the type of packaging that may be utilized.
Organic peroxides with SADTs in the ambient temperature range must be
transported with temperature controls. Type B organic peroxides are the
most reactive and, hence, 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 recently plotting to
destroy aircraft flying from the United Kingdom to the United States.
Terrorists call these materials ``Mother of Satan,'' an indication of
their attractiveness as weapons or components of weapons. Minimal
amounts of Division 5.2 organic peroxides are transported on a regular
basis.
The HMR currently require security plans for liquid or solid Type
B, temperature controlled Division 5.2 organic peroxides transported in
any quantity. PHMSA believes that this requirement provides an
appropriate level of security, given the potential vulnerabilities and
risks associated with these materials and proposes to retain this
requirement in this NPRM.
14. Division 6.1 Poisonous Materials (Other Than PIH Materials)
Division 6.1 materials may be toxic to humans through oral
ingestion or dermal exposure. As defined in the HMR, Division 6.1
materials have a range of toxicity values; the most toxic materials are
assigned to Packing Group I. 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. More than eight million tons of these materials are
shipped in commerce on a yearly basis. Of this, approximately two
million tons are transported by highway; railroads move more than
30,000 shipments each year.
The HMR currently require security plans for placarded shipments of
Division 6.1 materials in all packing groups. In this NPRM, PHMSA
proposes to require security plans for shipments of Division 6.1,
Packing Group I materials in any amount and shipments of 3,000 L or
more of Division 6.1, Packing Groups II and III materials. Security
plans would not be required for shipments of Division 6.1, Packing
Groups II and III in amounts less than 3,000 L.
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15. Division 6.2 Infectious Substances and Select Agents
A Division 6.2 infectious substance is a material that contains a
pathogen, which is a microorganism or other agent that can cause
disease in humans or animals. The degree of risk associated with the
transportation of a given Division 6.2 material depends on the nature
of the material, including the virulence of the material, the way it is
transmitted between humans or animals, the manner and ease of
transmission between humans or animals, and the availability of
preventive measures and treatment protocols.
Select agents are infectious substances and toxins determined by
the Center for Disease Control and United States Department of
Agriculture to present a significant public health risk. Examples
include ebola viruses, ricin, small pox, avian flu virus, foot-and-
mouth disease virus, and anthrax. Use and movement of these materials
are very strictly controlled.
Because of the potential for select agents to be developed as
weapons to cause serious and significant outbreaks of disease in humans
and animals, the HMR require security plans for shipments. This
requirement provides an appropriate level of security, given the
potential vulnerabilities and risks associated with these materials.
Therefore, PHMSA proposes to retain this requirement in this NPRM.
However, in addition to the proposed requirement for pathogens that
affect humans and animals, expansion of the security plan requirements
to include pathogens that affect plants is also being considered.
In accordance with 9 CFR part 121 we currently require security
plans for biological agents and toxins with the potential to pose a
severe threat to public health and safety, to animal health, or to
animal products. As a result of concerns expressed by USDA's Animal and
Plant Health Inspection Service (APHIS), PHMSA believes that the
expansion of the security plan requirements to include biological
agents and toxins that have the potential to pose a severe threat to
plant health or to plant products is appropriate. To achieve this, the
current security plan requirements for Division 6.2 materials to
include materials listed in 7 CFR part 331 would be expanded. Part 331
implements the provisions of the Agricultural Bioterrorism Protection
Act of 2002 setting forth the requirements for possession, use, and
transfer of select agents and toxins. APHIS supports the inclusion of
select agent plant pathogens to the list Division 6.2 materials
requiring security plans. Stakeholders are urged to fully consider the
implications of requiring security plans for select agent plant
pathogens and to provide comments.
16. Class 7 Radioactive Materials
The United States transportation system annually moves millions of
shipments of radioactive materials, the largest share consisting of
small packages containing radiopharmaceuticals. The HMR security plan
requirements currently 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.
Our evaluation suggests that these thresholds must be expanded to
include additional materials that, by virtue of their relative
radiation levels and physical characteristics, pose similar security
threats. Security concerns surrounding the transport of radioactive
materials reflect their potential use in radiological dispersal devices
(RDDs) (or ``dirty bombs''), designed to spread radioactive material
from the detonation of conventional explosives or other means, and
radiological exposure devices (REDs), designed to expose people to
radiation. The consequences of an RDD or RED event would depend on the
specific radioactive material and quantity involved, the dispersal or
exposure mechanism, and the environmental conditions.
This NPRM proposes to adopt the security thresholds recommended by
the International Atomic Energy Agency (IAEA) for radioactive materials
in transport. These 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
IAEA ``Code of Conduct on the Safety and Security of Radioactive
Sources'' (IAEA/CODEOC/2004) was revised to take account of
international concerns following the events of September 11, 2001. The
United States played a key role in revising the Code of Conduct and has
been successful in gaining national commitments to the Code of Conduct
by more than 80 countries. One of the essential features of the Code of
Conduct is the cataloging of radioactive sources based on their
relative potential to cause immediate injury or death. There are three
categories that range from Category 1, posing the highest short-term
exposure risk to Category 3, posing relatively little risk of permanent
injury through brief exposure.
The IAEA has used the Code of Conduct in the development of the
recently issued Nuclear Security Series Guide, ``Security of
Radioactive Material during Transport'' (in draft, expected to be
issued 2009). This document is intended to provide IAEA Member States
with guidance on implementing security measures for the transport of
radioactive material. The threshold values outlined in this Notice were
derived on the basis of the potential radiological consequences of
malicious acts involving radioactive