Hazardous Materials: Risk-Based Adjustment of Transportation Security Plan Requirements, 10974-10989 [2010-4778]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

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



[[Page 10973]]

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Part IV





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration



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49 CFR Part 172



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

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

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 172

[Docket No. PHMSA-06-25885 (HM-232F)]
RIN 2137-AE22


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

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

ACTION: Final rule.

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

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

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

SUPPLEMENTARY INFORMATION: 

I. Background

A. Current DOT Security Requirements

    The federal hazardous materials transportation law (federal hazmat 
law, 49 U.S.C. 5101 et seq.) authorizes the Secretary of Transportation 
to ``prescribe regulations for the safe transportation, including 
security, of hazardous material in intrastate, interstate, and foreign 
commerce.'' The Secretary has delegated this authority to PHMSA. 
Authority to enforce the Hazardous Materials Regulations (HMR; 49 CFR 
Parts 171-180) has been delegated to the FAA ``with particular emphasis 
on the transportation or shipment of hazardous materials by air''; the 
FRA ``with particular emphasis on the transportation or shipment of 
hazardous materials by railroad''; PHMSA ``with particular emphasis on 
the shipment of hazardous materials and the manufacture, fabrication, 
marking, maintenance, reconditioning, repair or test of multi-modal 
containers that are represented, marked, certified, or sold for use in 
the transportation of hazardous materials''; and the FMCSA ``with 
particular emphasis on the transportation or shipment of hazardous 
materials by highway.'' 49 CFR Part 1, Subpart C. The United States 
Coast Guard (USCG) is authorized to enforce the HMR in connection with 
certain transportation or shipment of hazardous materials by water. 
This authority originated with the Secretary and was first delegated to 
USCG prior to 2003, when USCG was made part of the Department of 
Homeland Security. DHS Delegation No. 0170, Section 2(99) & 2(100); see 
also 6 U.S.C. 458(b), 551(d)(2). Thus, enforcement of the security plan 
and training regulations is shared among the DOT operating 
administrations and the USCG, with each placing particular emphasis on 
their respective authorities.
    The HMR require persons who offer for transportation or transport 
certain hazardous materials in commerce to develop and implement 
security plans. The security plan requirements in Subpart I of Part 172 
of the HMR apply to persons who offer for transportation or transport:
    (1) A highway-route controlled quantity of a Class 7 (radioactive) 
material;
    (2) More than 25 kg (55 lbs.) of a Division 1.1, 1.2, or 1.3 
(explosive) material;
    (3) More than 1 L (1.06 qt.) per package of a material poisonous by 
inhalation in Hazard Zone A;
    (4) A shipment in a bulk packaging with a capacity equal to or 
greater than 13,248 L (3,500 gallons) for liquids or gases or greater 
than 13.24 cubic meters (468 cubic feet) for solids;
    (5) A shipment in other than a bulk packaging of 2,268 kg (5,000 
lbs.) gross weight or more of one class of hazardous materials for 
which placarding is required;
    (6) A select agent or toxin regulated by the Centers for Disease 
Control and Prevention under 42 CFR Part 73 or a select agent or toxin 
regulated by the U.S. Department of Agriculture under 9 CFR Part 121; 
or
    (7) A shipment that requires placarding under Subpart F of Part 172 
of the HMR.
    A security plan must include an assessment of possible 
transportation security risks and appropriate measures to address the 
assessed risks. Specific measures implemented as part of the plan may 
vary with the level of threat at a particular time. At a minimum, the 
security plan must address personnel security, unauthorized access, and 
en route security. For personnel security, the plan must include 
measures to confirm information provided by job applicants for 
positions involving access to and handling of the hazardous materials 
covered by the plan. For unauthorized access, the plan must include 
measures to address the risk of unauthorized persons gaining access to 
materials or transport conveyances being prepared for transportation. 
For en route security, the plan must include measures to address 
security risks during transportation, including the security of 
shipments stored temporarily en route to their destinations.
    As indicated above, the HMR set forth general requirements for a 
security plan's components rather than a prescriptive list of specific 
items that must be included. The HMR set a performance standard 
providing offerors and carriers with the flexibility necessary to 
develop security plans addressing their individual circumstances and 
operational environments. Accordingly, each security plan will differ 
because it will be based on an offeror's or a carrier's individualized 
assessment of the security risks associated with the specific hazardous 
materials it ships or transports and its unique circumstances and 
operational environment.

B. Notice of Proposed Rulemaking

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

[[Page 10975]]

damage. In our qualitative risk evaluation, we considered the following 
factors: (1) Physical and chemical properties of the material or class 
of materials and how those properties could contribute to a security 
incident; (2) quantities shipped and mode of transport; (3) past 
terrorist use; (4) potential use; and (5) availability. One of the most 
significant security vulnerabilities involves the potential for an 
individual or group to take control of a conveyance containing a high-
risk material and move it to a site where the material could cause 
maximum physical or psychological damage. For some hazardous materials, 
the primary security threat involves theft or highjacking of raw 
materials for use in developing explosive devices or weapons.
    As we indicated in the NPRM, one of our goals for this rulemaking 
is to harmonize to the extent consistent with our security goals the 
list of materials for which security plans are required with the list 
of materials designated as high consequence dangerous goods for which 
enhanced security measures are recommended in the United Nations Model 
Regulations on the Transport of Dangerous Goods (UN Recommendations). 
The recommended security measures include security plans and are 
similar to the requirements in Subpart I of Part 172 of the HMR. The UN 
Recommendations define high consequence dangerous goods as materials 
with the ``potential for mis-use in a terrorist incident and which may, 
as a result, produce serious consequences such as mass casualties or 
mass destruction.'' The UN Recommendations list the following materials 
as high consequence dangerous goods:
    (1) Division 1.1 explosives;
    (2) Division 1.2 explosives;
    (3) Division 1.3 compatibility group C explosives;
    (4) Division 1.5 explosives;
    (5) Bulk shipments of Division 2.1 flammable gases;
    (6) Division 2.3 toxic gases (excluding aerosols);
    (7) Bulk shipments of Class 3 flammable liquids in Packing Group I 
or II;
    (8) Class 3 and Division 4.1 desensitized explosives;
    (9) Bulk shipments of Division 4.2 Packing Group I materials;
    (10) Bulk shipments of Division 4.3 Packing Group I materials;
    (11) Bulk shipments of Division 5.1 Packing Group I oxidizing 
liquids;
    (12) Bulk shipments of Division 5.1 perchlorates, ammonium nitrate 
and ammonium nitrate fertilizers;
    (13) Division 6.1 Packing Group I toxic materials;
    (14) Division 6.2 infectious substances of Category A (UN2814 and 
2900);
    (15) Class 7 radioactive materials in quantities greater than 3000 
A1 (special form) or 3000 A2, as applicable, in 
Type B(U) or Type B(M) or Type (C) packages; and
    (16) Bulk shipments of Class 8 Packing Group I materials.
    For purposes of the security provisions, the UN defines ``in bulk'' 
to mean quantities greater than 3,000 kg (6,614 lbs.) for solids and 
3,000 liters (793 gallons) for liquids and gases in portable tanks or 
bulk containers.
    In the NPRM, we proposed the following modifications to the list of 
materials subject to security plans:

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

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

II. Coordination With TSA

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

[[Page 10977]]

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

III. Comments and Analysis

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

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

[[Page 10978]]

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

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

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

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

[[Page 10979]]

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

[[Page 10980]]



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

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

[[Page 10981]]

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

[[Page 10982]]

organic peroxides transported in any quantity. The NPRM did not propose 
changes to this requirement. DGAC does not support the inclusion of 
Division 5.2, Type B materials on the list of materials that require a 
security plan. DGAC contends that as packaged for transportation these 
materials will not react dangerously.
    PHMSA agrees with DGAC that organic peroxides are packaged in a 
safe manner, but does not agree that safe packaging adequately ensures 
that a material is secure during transportation. DGAC did not explain 
how packaging for Division 5.2, Type B materials makes them more secure 
than other properly packaged materials. PHMSA, after consulting with 
TSA, agrees that Division 5.2, Type B materials should be subject to 
security plan requirements when transported in any quantity. As 
discussed in the NPRM, organic peroxides are temperature sensitive, 
self-reacting materials that pose both a fire and explosion hazard, and 
may be both toxic and corrosive. Type B organic peroxides are the most 
dangerous organic peroxides permitted in transportation. Organic 
peroxides were used in the July 2005 terrorist bombings in London, and 
were planned for use by terrorists plotting to destroy aircraft flying 
from the United Kingdom to the United States. The current security 
planning requirement provides an appropriate level of security, given 
the potential vulnerabilities and risks associated with these 
materials. In this final rule, we are continuing to require a security 
plan for any quantity of Division 5.2 organic peroxide, Type B, liquid 
or solid, temperature controlled, as proposed.
12. Poisonous Materials (Division 6.1--Other Than PIH)
    Security plans are currently required for shipments of Division 6.1 
materials in quantities that require placarding. In the NPRM, we 
proposed to require security plans for shipments of Division 6.1, 
Packing Group I materials in any amount and shipments of 3,000L (793 
gallons) or more of Division 6.1, Packing Groups II and III materials. 
DGAC, ATA, UPS, and CTA all suggest that a single packaging threshold 
of more than 3,000 kg (6,614 lbs.) for solids or 3,000 L (793 gallons) 
for liquids for all Division 6.1 materials would be more appropriate 
than the ``any quantity'' threshold we proposed for Division 6.1 
materials in Packing Group I.
    After consultation with TSA and based on the comments we received, 
we agree that a large bulk quantity threshold for Division 6.1 
materials in Packing Group I is more appropriate than the ``any 
quantity'' thresh