Hazardous Materials: Risk-Based Adjustment of Transportation Security Plan Requirements, 52558-52572 [E8-20856]

Download as PDF 52558 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). mstockstill on PROD1PC66 with PROPOSALS3 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. VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 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; E:\FR\FM\09SEP3.SGM 09SEP3 mstockstill on PROD1PC66 with PROPOSALS3 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules (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 VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 52559 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. E:\FR\FM\09SEP3.SGM 09SEP3 52560 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 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 mstockstill on PROD1PC66 with PROPOSALS3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 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 VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 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 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 09/28/2006 10/03/2006 10/19/2006 10/25/2006 11/22/2006 11/21/2006 11/30/2006 12/13/2006 12/18/2006 12/18/2006 12/19/2006 12/19/2006 12/19/2006 12/19/2006 12/20/2006 12/20/2006 12/20/2006 12/19/2006 12/20/2006 12/20/2006 12/20/2006 12/20/2006 12/19/2006 12/20/2006 12/20/2006 12/21/2006 12/20/2006 12/21/2006 12/21/2006 12/22/2006 12/27/2006 01/12/2007 01/12/2007 05/17/2007 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 PHMSA–2006–25885–26 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 E:\FR\FM\09SEP3.SGM 09SEP3 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 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 52561 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 ................................................ mstockstill on PROD1PC66 with PROPOSALS3 1.1 1.2 1.3 1.4 VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 PO 00000 PG I and II only in quantities of 3,000 kg or more in a single packaging. Any quantity ................................................ Frm 00005 Fmt 4701 Sfmt 4702 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. E:\FR\FM\09SEP3.SGM 09SEP3 52562 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 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. mstockstill on PROD1PC66 with PROPOSALS3 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 VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 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 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 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 E:\FR\FM\09SEP3.SGM 09SEP3 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules vulnerabilities and risks associated with these materials and thus proposes to retain this requirement in the NPRM. mstockstill on PROD1PC66 with PROPOSALS3 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 VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 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 Frm 00007 Fmt 4701 Sfmt 4702 52563 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. E:\FR\FM\09SEP3.SGM 09SEP3 52564 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 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 ...................................................................................... mstockstill on PROD1PC66 with PROPOSALS3 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. VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 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 E:\FR\FM\09SEP3.SGM 09SEP3 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 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. mstockstill on PROD1PC66 with PROPOSALS3 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 VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 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. PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 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. E:\FR\FM\09SEP3.SGM 09SEP3 mstockstill on PROD1PC66 with PROPOSALS3 52566 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 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 VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 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 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 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 E:\FR\FM\09SEP3.SGM 09SEP3 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 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 mstockstill on PROD1PC66 with PROPOSALS3 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. VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 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 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 52567 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 E:\FR\FM\09SEP3.SGM 09SEP3 mstockstill on PROD1PC66 with PROPOSALS3 52568 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 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 VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 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 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 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. E:\FR\FM\09SEP3.SGM 09SEP3 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 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). mstockstill on PROD1PC66 with PROPOSALS3 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. VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 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 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 52569 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 E:\FR\FM\09SEP3.SGM 09SEP3 52570 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 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. mstockstill on PROD1PC66 with PROPOSALS3 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 VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 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 Frm 00014 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, E:\FR\FM\09SEP3.SGM 09SEP3 mstockstill on PROD1PC66 with PROPOSALS3 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 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 VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 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 Frm 00015 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 E:\FR\FM\09SEP3.SGM 09SEP3 52572 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 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 VerDate Aug<31>2005 17:42 Sep 08, 2008 Jkt 214001 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 E:\FR\FM\09SEP3.SGM 09SEP3 EP09SE08.037</MATH> 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

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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).

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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.

[[Page 52566]]

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