10974 Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 

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. 

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 

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Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 10975 

damage. In our qualitative risk 

evaluation, we considered the following 

factors: (1) Physical and chemical 

properties of the material or class of 

materials and how those properties 

could contribute to a security incident; 

(2) quantities shipped and mode of 

transport; (3) past terrorist use; (4) 

potential use; and (5) availability. One 

of the most significant security 

vulnerabilities involves the potential for 

an individual or group to take control of 

a conveyance containing a high-risk 

material and move it to a site where the 

material could cause maximum physical 

or psychological damage. For some 

hazardous materials, the primary 

security threat involves theft or 

highjacking of raw materials for use in 

developing explosive devices or 

weapons. 

As we indicated in the NPRM, one of 

our goals for this rulemaking is to 

harmonize to the extent consistent with 

our security goals the list of materials 

for which security plans are required 

with the list of materials designated as 

high consequence dangerous goods for 

which enhanced security measures are 

recommended in the United Nations 

Model Regulations on the Transport of 

Dangerous Goods (UN 

Recommendations). The recommended 

security measures include security 

plans and are similar to the 

requirements in Subpart I of Part 172 of 

the HMR. The UN Recommendations 

define high consequence dangerous 

goods as materials with the ‘‘potential 

for mis-use in a terrorist incident and 

which may, as a result, produce serious 

consequences such as mass casualties or 

mass destruction.’’ The UN 

Recommendations list the following 

materials as high consequence 

dangerous goods: 

(1) Division 1.1 explosives; 

(2) Division 1.2 explosives; 

(3) Division 1.3 compatibility group C 

explosives; 

(4) Division 1.5 explosives; 

(5) Bulk shipments of Division 2.1 

flammable gases; 

(6) Division 2.3 toxic gases (excluding 

aerosols); 

(7) Bulk shipments of Class 3 

flammable liquids in Packing Group I or 

II; 

(8) Class 3 and Division 4.1 

desensitized explosives; 

(9) Bulk shipments of Division 4.2 

Packing Group I materials; 

(10) Bulk shipments of Division 4.3 

Packing Group I materials; 

(11) Bulk shipments of Division 5.1 

Packing Group I oxidizing liquids; 

(12) Bulk shipments of Division 5.1 

perchlorates, ammonium nitrate and 

ammonium nitrate fertilizers; 

(13) Division 6.1 Packing Group I 

toxic materials; 

(14) Division 6.2 infectious substances 

of Category A (UN2814 and 2900); 

(15) Class 7 radioactive materials in 

quantities greater than 3000 A1 (special 

form) or 3000 A2, as applicable, in Type 

B(U) or Type B(M) or Type (C) packages; 

and 

(16) Bulk shipments of Class 8 

Packing Group I materials. 

For purposes of the security 

provisions, the UN defines ‘‘in bulk’’ to 

mean quantities greater than 3,000 kg 

(6,614 lbs.) for solids and 3,000 liters 

(793 gallons) for liquids and gases in 

portable tanks or bulk containers. 

In the NPRM, we proposed the 

following modifications to the list of 

materials subject to security plans: 

NPRM LIST

Class Current threshold Proposed threshold Change 

1.1 .................... Any quantity ............................................ Any quantity ............................................ None. 

1.2 .................... Any quantity ............................................ Any quantity ............................................ None. 

1.3 .................... Any quantity ............................................ Any quantity ............................................ None. 

1.4 .................... A quantity requiring placarding ............... Any quantity of UN 0104, 0237, 0255, 

0267, 0289, 0361, 0365, 0366, 0440, 

0441, 0455, 0456, 0500.

Security plan required only for detonators and shaped charges. 

1.5 .................... A quantity requiring placarding ............... Any quantity ............................................ Security plan required for all shipments. 

1.6 .................... A quantity requiring placarding ............... Not subject .............................................. Security plan not required for any Division 1.6 shipments. 

2.1 .................... A quantity requiring placarding ............... >3,000 L in a single packaging .............. Security plan not required for 3,000 L 

(793 gallons) or less. 

2.2 .................... A quantity requiring placarding ............... Not subject except for oxygen and 

gases with a subsidiary 5.1 hazard 

(<3,000 L (793 gallons) in a single 

packaging).

Security plan not required for most nonflammable, non-poisonous compressed gas shipments. 

2.3 .................... Any quantity ............................................ Any quantity ............................................ None. 

3 ....................... A quantity requiring placarding ............... >3,000 L (793 gallons) in a single packaging and any quantity of Class 3 desensitized explosives.Security plan not required for 3,000 L 

(793 gallons) or less except for desensitized explosives. 

4.1 .................... A quantity requiring placarding ............... Any quantity desensitized explosives ..... Security plan not required except for desensitized explosives. 

4.2 .................... A quantity requiring placarding ............... PG I and II only in quantities >3,000 kg 

in a single packaging.

Security plan not required for PG III materials. 

4.3 .................... Any quantity ............................................ Any quantity ............................................ None. 

5.1 .................... A quantity requiring placarding ............... PG I and II liquids, perchlorates, ammonium nitrate (including fertilizers) in 

quantities >3,000 L (793 gallons) in a 

single packaging.

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.

Any quantity of Organic peroxide, Type 

B, liquid or solid, temperature controlled.

None. 

6.1 .................... A quantity requiring placarding; any 

quantity of PIH material.

Any quantity of PG I; >3,000 L (793 gallons) for PG II and III.Security plan not required for 3,000 L 

(793 gallons) or less of PG II and III. 

6.2 .................... Select agents .......................................... Select agents .......................................... None. 

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10976 Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 

NPRM LIST—Continued 

Class Current threshold Proposed threshold Change 

7 ....................... Shipments requiring Yellow III label; 

highway route controlled quantity.

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.

Security plan only required for Class 7 

materials that pose transportation security risk. 

8 ....................... A quantity requiring placarding ............... PG I only in quantities >3,000 L (793 

gallons) in a single packaging.

Security plan not required for PG II and 

III materials. 

9 ....................... Capacity >3,500 gallons for liquid/gas; 

volumetric capacity >468 cubic feet 

for solids.

Not subject .............................................. Security plan not required for Class 9 

materials. 

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 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 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 

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Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 10977 

of the HMR. Under ATSA, TSA has the 

authority to ‘‘ensure the adequacy of 

security measures for the transportation 

of cargo’’ 49 U.S.C. 114(f)(10) and to 

‘‘oversee the implementation, and 

ensure the adequacy, of security 

measures at airports and other 

transportation facilities.’’ 49 U.S.C. 

114(f)(11). Therefore, parties subject to 

this regulation must allow TSA and 

other authorized DHS officials, at any 

time and in a reasonable manner, 

without advance notice, to enter and 

inspect and must provide TSA 

inspectors with a copy of any security 

related document required by the HMR 

or pursuant to TSA’s statutory or 

regulatory authorities. This includes 

security plans and training documents 

required under 49 CFR Part 172. TSA 

does not, however, have the authority to 

directly enforce DOT safety or security 

requirements established in the HMR. If, 

in the course of an inspection of a 

railroad or motor carrier or a rail or 

highway hazardous material shipper or 

receiver, TSA identifies evidence of 

non-compliance with a DOT safety or 

security regulation, TSA will provide 

the information to FRA (for rail) or 

FMCSA (for motor carriers) and PHMSA 

for appropriate action. Similarly, since 

DOT does not have the authority to 

enforce TSA security requirements, if a 

DOT inspector identifies evidence of 

non-compliance with a TSA security 

regulation or identifies other security 

deficiencies, DOT will provide the 

information to TSA for appropriate 

action. 

It is important to note that TSA and 

DOT have established a tiered approach 

to transportation security that imposes 

increasingly stringent security 

requirements for materials that pose 

more significant transportation security 

risks. Thus, the DOT security planning 

requirements established in 2003 and 

modified in this final rule establish a 

baseline requirement for materials that 

have been determined to pose a security 

risk across all modes of transportation. 

However, both TSA and DOT have 

established more stringent security 

requirements for certain rail shipments 

of hazardous materials. As explained in 

the TSA and DOT final rules on rail 

security published jointly on November 

26, 2008 (73 FR 72130 and 73 FR 72181, 

respectively), the list of designated 

‘‘security sensitive’’ materials to which 

the enhanced safety and security 

requirements adopted in those final 

rules apply—certain shipments of 

Division 1.1, 1.2, and 1.3, PIH, and 

radioactive materials—is based on 

specific railroad transportation 

scenarios. These scenarios depict how 

hazardous materials could be 

deliberately used to cause significant 

casualties and property damage or 

accident scenarios resulting in similar 

catastrophic consequences. DOT and 

TSA determined that the materials 

specified in the rail security final rules 

present the greatest rail transportation 

safety and security risks—because of the 

potential consequences of an 

unintentional release of these 

materials—and are the most attractive 

targets for terrorists—because of the 

potential for these materials to be used 

as weapons of opportunity or weapons 

of mass destruction. While DOT and 

TSA agree that other hazardous 

materials pose certain safety and 

security risks, the risks are not as great 

as those posed by the explosive, PIH, 

and radioactive materials specified in 

the rail security final rules. TSA, in 

consultation with DOT, will continue to 

evaluate the transportation security 

risks posed by all types of hazardous 

materials and the effectiveness of 

current regulations in addressing those 

risks and will consider revising specific 

requirements as necessary. 

III. Comments and Analysis 

A total of 160 persons submitted 

comments in response to the September 

9, 2008 NPRM. The majority of the 

comments were submitted by 

companies, but we also received 

comments from public interest groups; 

local, state, and federal government 

agencies; industry associations; and 

private citizens. The majority of 

commenters focused on the proposed 

revisions to security plan requirements 

for explosives that are used by the 

special effects and motion picture 

industries. To review rulemakings, 

regulatory evaluations, environmental 

assessments, comments, and letters 

submitted in response to this regulatory 

action go to http://www.regulations.gov 

under docket number PHMSA–06– 

25885. To locate a specific commenter 

by name simply use the search function 

provided by Regulations.gov. 

Generally, commenters express 

support for the regulatory reduction 

efforts proposed by the NPRM although 

some commenters disagree with some of 

the types and classes of materials that 

would be subject to security planning 

requirements under the NPRM. In this 

comment summary, we address areas of 

concern, as expressed by commenters, 

including the key comments regarding 

the types and classes of materials that 

we included in the proposed list of 

materials subject to security plans. We 

especially focus on aligning our list of 

materials requiring security plans and 

TSA’s HSSM list. Commenters 

emphasize that consistency is very 

important in this area, and we agree. 

TSA’s HSSM list focused on materials 

that have the potential to cause 

significant fatalities and injuries or 

significant economic damage when 

released or detonated during a 

transportation security incident. 

Materials classed as HSSM fall into one 

of two tiers and are subject to specific 

voluntary security measures that should 

be taken by manufacturers, shippers, 

and carriers of the listed materials. 

In this final rule we are revising the 

list of materials subject to security 

planning. We made several changes to 

the list of materials based on comments 

and discussions with our federal 

partners. We consulted with TSA 

throughout the development of this final 

rule. Below we list by Class/Division the 

Hazardous materials and thresholds 

subject to security planning under this 

final rule. The phrase ‘‘large bulk 

quantity,’’ as used in the following table, 

refers to a quantity greater than 3,000 kg 

(6,614 pounds) for solids or 3,000 liters 

(792 gallons) for liquids and gases in a 

single packaging such as a cargo tank 

motor vehicle, portable tank, tank car, or 

other bulk container. 

Class/ 

division 

PHMSA final rule security 

plan 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 § 172.505(b). 

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10978 Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 

Class/ 

division 

PHMSA final rule security 

plan revisions 

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 

(§ 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 § 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 § 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 § 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 reevaluated 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. 

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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 shoulderlaunched 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. 

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Proper shipping name Hazard 

class 

Identification 

Nos. 

Label 

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 § 172.800(b)(6) we state 

that ‘‘any quantity of a material 

poisonous by inhalation, as defined in 

§ 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 § 173.115(c) and assigned to Hazard 

Zone A, B, C, or D in accordance with 

§ 173.116(a); 

(2) Liquid meeting the defining 

criteria in § 173.132(a)(1)(iii) and 

assigned to Hazard Zone A or B in 

accordance with § 173.133(a); or 

(3) Material identified as an 

inhalation hazard in column 7 of the 

§ 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 

§ 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 § 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 vehicleborne 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 

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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 

§ 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 

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organic peroxides transported in any 

quantity. The NPRM did not propose 

changes to this requirement. DGAC does 

not support the inclusion of Division 

5.2, Type B materials on the list of 

materials that require a security plan. 

DGAC contends that as packaged for 

transportation these materials will not 

react dangerously. 

PHMSA agrees with DGAC that 

organic peroxides are packaged in a safe 

manner, but does not agree that safe 

packaging adequately ensures that a 

material is secure during transportation. 

DGAC did not explain how packaging 

for Division 5.2, Type B materials makes 

them more secure than other properly 

packaged materials. PHMSA, after 

consulting with TSA, agrees that 

Division 5.2, Type B materials should be 

subject to security plan requirements 

when transported in any quantity. As 

discussed in the NPRM, organic 

peroxides are temperature sensitive, 

self-reacting materials that pose both a 

fire and explosion hazard, and may be 

both toxic and corrosive. Type B organic 

peroxides are the most dangerous 

organic peroxides permitted in 

transportation. Organic peroxides were 

used in the July 2005 terrorist bombings 

in London, and were planned for use by 

terrorists plotting to destroy aircraft 

flying from the United Kingdom to the 

United States. The current security 

planning requirement provides an 

appropriate level of security, given the 

potential vulnerabilities and risks 

associated with these materials. In this 

final rule, we are continuing to require 

a security plan for any quantity of 

Division 5.2 organic peroxide, Type B, 

liquid or solid, temperature controlled, 

as proposed. 

12. Poisonous Materials (Division 6.1— 

Other Than PIH) 

Security plans are currently required 

for shipments of Division 6.1 materials 

in quantities that require placarding. In 

the NPRM, we proposed to require 

security plans for shipments of Division 

6.1, Packing Group I materials in any 

amount and shipments of 3,000L (793 

gallons) or more of Division 6.1, Packing 

Groups II and III materials. DGAC, ATA, 

UPS, and CTA all suggest that a single 

packaging threshold of more than 3,000 

kg (6,614 lbs.) for solids or 3,000 L (793 

gallons) for liquids for all Division 6.1 

materials would be more appropriate 

than the ‘‘any quantity’’ threshold we 

proposed for Division 6.1 materials in 

Packing Group I. 

After consultation with TSA and 

based on the comments we received, we 

agree that a large bulk quantity 

threshold for Division 6.1 materials in 

Packing Group I is more appropriate 

than the ‘‘any quantity’’ threshold 

proposed in the NPRM. As we indicated 

in the NPRM, Division 6.1 materials can 

be used to contaminate food and water 

supplies; however, the effectiveness of 

such an attack would depend on the 

toxicity level of the material and the 

quantity utilized. The security risks of 

these materials, therefore, vary based on 

the quantity transported. In this final 

rule, we are adopting a security plan 

threshold trigger of more than 3,000 kg 

(6,614 lbs.) for solids or 3,000 L (793 

gallons) for liquids for poisonous 

materials (other than PIH) in Packing 

Groups I, II, and III. 

13. Infectious Substances and Select 

Agents (Division 6.2) 

Currently, the HMR require security 

plans for shipments in any quantity of 

Division 6.2 materials that are 

designated as select agents by the 

Centers for Disease Control and 

Prevention and the U.S. Department of 

Agriculture. The NPRM did not propose 

to change this requirement. We received 

very few comments concerning this 

aspect of the NPRM. ATA agrees that 

the ‘‘any quantity’’ threshold is 

appropriate for Division 6.2 materials; 

DGAC suggests that security plans 

should only be required for Division 6.2 

materials transported in bulk quantities. 

We note concerning the DGAC comment 

that select agents typically are not 

transported in bulk quantities and that 

even small quantities of these materials 

may be developed as weapons to cause 

serious and significant outbreaks of 

disease in humans and animals. The 

current security planning requirements 

provide an appropriate level of security, 

given the potential vulnerabilities and 

risks associated with these materials. 

Therefore, as proposed, this final rule 

continues to require security plans for 

select agents or toxins regulated by the 

Centers for Disease Control and 

Prevention under 42 CFR Part 73 or the 

United States Department of Agriculture 

under 9 CFR Part 121. 

14. Radioactive Materials (Class 7) 

The current security plan 

requirements apply to a person who 

offers for transportation or transports a 

highway route-controlled quantity 

(HRCQ) of a Class 7 (radioactive) 

material. The HMR also require security 

plans for any shipment that requires 

placarding under Subpart F of Part 172; 

this includes shipments of packages 

with radioactive Yellow III labels and 

exclusive use shipments of low specific 

activity material and surface 

contaminated objects. In the NPRM we 

proposed to adopt security thresholds as 

established by the International Atomic 

Energy Agency (IAEA) for radioactive 

materials in transport. The levels reflect 

research conducted by the U.S. 

Department of Energy, the U.S. Nuclear 

Regulatory Commission (NRC), and the 

IAEA on the attractiveness of 

radionuclides for malevolent use. The 

changes proposed in the NPRM better 

address security concerns and align the 

HMR with international and domestic 

security requirements. Similarly, TSA’s 

HSSMs list for SAIs has included IAEA 

Code of Conduct Category 1 and 2 

materials including HRCQ quantities as 

defined in 49 CFR 173.403 or known as 

radionuclides in forms listed as RAM– 

QC by the Nuclear Regulatory 

Commission. Both lists are virtually 

identical. 

Commenters propose enhancements 

to make the requirements clear, but do 

not oppose the thresholds proposed in 

the NPRM. In their comments, AAR and 

Norfolk Southern Railway Company 

(Norfolk Southern) suggest that we 

implement a shipping paper notification 

requirement on rail shippers to enable 

easy identification of shipments that 

exceed the threshold quantity. Another 

commenter, Louisiana Energy Services, 

LLC (LES), recommends that PHMSA 

address the requirement in § 172.505(b) 

involving transportation restrictions on 

uranium hexafluoride (UF6). 

With regard to the comments from 

AAR and Norfolk Southern, we note 

that the information required to 

determine if a radioactive material 

meets the proposed security plan 

requirements is already available. It is 

the carrier’s responsibility to determine 

if it has accepted for transportation a 

quantity of radioactive materials that 

trigger security plan requirements. In 

accordance with § 172.203(d), the 

shipper is already required to include 

the name of the radionuclide and the 

activity level contained in each package. 

From that information, the carrier may 

calculate the ‘‘sum of the fractions’’ as 

described in 10 CFR, Appendix P to Part 

110—Category 1 and 2 Radioactive 

Material to determine if the threshold 

limit has been met. If the calculated 

‘‘sum of the fractions’’ ratio is greater 

than 1 then the shipment exceeds the 

threshold limit. In addition, of course, a 

carrier may simply ask the shipper of 

the material whether the shipment 

exceeds the threshold limit for which 

security plans are required. Indeed, 

shippers and carriers should discuss 

security planning issues when they 

make arrangements for transporting any 

hazardous material. 

We agree with LES that security plan 

requirements should continue to apply 

to 1,001 pounds (454 kg) or more of UF6. 

As a result, we have included a 

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provision to mandate security plans for 

quantities of UF6 at or in excess of 1,001 

pounds (454 kg), as provided by 

§ 172.505(b). In addition, we believe 

that TSA’s HSSM list more clearly and 

effectively lists the materials that should 

be subject to security planning. As such, 

we have decided to use similar language 

in this final rule. In addition to the UF6

requirement, we specifically indicate 

that security plans are required for IAEA 

Code of Conduct Category 1 and 2 

materials including HRCQ quantities as 

defined in 49 CFR 173.403 or known as 

radionuclides in forms listed as RAM– 

QC by the Nuclear Regulatory 

Commission. 

15. Corrosive Materials (Class 8) 

The HMR currently require security 

plans for placarded shipments of Class 

8 materials in all packing groups. In the 

NPRM we proposed to retain security 

plan requirements for shipments of 

Class 8, Packing Group I materials in a 

single packaging, in a quantity of 3,000 

kg (6,614 lbs.) or more for solids or 

3,000 L (793 gallons) or more for 

liquids. As we indicated in the NPRM, 

lesser amounts pose little, if any, 

security risk. There were no comments 

addressing our proposal. Therefore, this 

final rule adopts a threshold for Packing 

Group I corrosive materials in a quantity 

of greater than 3,000 kg (6,614 lbs.) for 

solids or 3,000 L (793 gallons) for 

liquids in a single packaging. 

16. Miscellaneous Hazardous Materials 

(Class 9) 

Currently, the HMR require security 

plans for Class 9 materials transported 

in a bulk packaging with a capacity 

equal to or greater than 13,248 L (3,500 

gallons) for liquids or gases or greater 

than 13.24 cubic meters (468 cubic feet) 

for solids. In the NPRM, we indicated 

that the security risks associated with 

the transportation of these materials are 

not sufficient to warrant development 

and implementation of security plans 

and proposed to eliminate this 

requirement. Comments were 

supportive of our decision. As a result, 

this final rule eliminates existing 

security plan requirements applicable to 

Class 9 materials. 

B. Revisions to Security Plan 

Requirements 

In addition to the changes to the 

applicability of security plans, the 

NPRM proposed a number of 

amendments to clarify and enhance 

current security requirements, including 

requirements for security plans and for 

training. These proposals and 

corresponding comments are discussed 

and finalized below. 

1. Site-Specific/Location-Specific 

(§ 172.802(a)) 

Security plans must include an 

assessment of possible transportation 

security risks for the covered materials. 

In the NPRM we proposed to clarify this 

requirement by stating that the required 

risk assessment must include an 

assessment of the risks that exist on 

specific routes or in specific locations. 

Comments submitted varied. Most 

commenters suggest that requiring a 

written route assessment for every route 

or location is unworkable and would 

seriously impair a carrier’s ability to do 

business. By contrast, commenters such 

as the Airline Pilots Association, 

International (ALPA) and National 

Association of SARA Title III Program 

Officials (NASTTPO) indicate that the 

strengthening of the requirements, to 

include site-specific or location-specific 

security risks, is a well-advised addition 

of specificity. However, NASTTPO 

questions the omission of a requirement 

for consultation with local emergency 

planners, law enforcement, or fire 

departments. 

It was not our intent in the NPRM to 

propose a revision to § 172.802(a) that 

would alter existing regulations in such 

a manner that a written security plan, 

including the risk assessment, would 

need to address each site or location 

along a transportation route. Our intent 

was to clarify that generic security plans 

that are not specific to a facility or 

location or corporate security plans that 

do not address security risks associated 

with a particular facility or location may 

not satisfy the risk assessment 

requirement. For example, it is our 

understanding that corporations 

frequently develop security plan 

templates for use by facilities or entities 

within the corporation. To meet the risk 

assessment requirement in § 172.802(a), 

each entity would need to adapt the 

corporate security plan template to 

address site-specific issues or 

vulnerabilities. Given the confusion 

expressed by commenters, we are 

revising the proposed text in this final 

rule to more clearly state that shippers 

and carriers must consider site-specific 

risks and vulnerabilities at facilities 

subject to the security planning 

requirement. 

2. Identification, Duties, and Training 

(§ 172.802(b)) 

In the NPRM we proposed in 

§ 172.802(b)(1) that the security plan 

identify, by job title, the senior 

management official responsible for the 

overall development and 

implementation of the plan. We 

proposed in § 172.802(b)(2) that the 

security plan include security duties for 

each position or department that is 

responsible for the plan’s 

implementation and the process for 

notifying employees when specific 

elements of the security plan must be 

implemented. In addition, to ensure that 

employees are aware of their training 

obligation by their employer, we 

proposed in § 172.802(b)(3) that hazmat 

employers develop a plan for training 

hazmat employees in accordance with 

§ 172.704 (a)(4) and (a)(5) of this part. 

One commenter, ALPA, expressed 

support for the addition of 

§ 172.802(b)(1) through (3). Specifically, 

the Association welcomes that the 

proposed language requires ‘‘the 

identification of job title for the 

responsible management official, 

security duties identified for each 

position or department responsible for 

implementing the plan, and the 

specifics of required training 

procedures.’’ 

We agree with the commenter, the 

language proposed in § 172.802(b)(1) 

through (3) of the NPRM provides 

necessary clarity and responsibility for 

compliance with security plan 

requirements. In this final rule we are 

adopting § 172.802(b) as proposed. 

3. Security Assessment in Writing 

(§ 172.802(c)) 

Section 172.802 of the HMR 

establishes the components that must be 

included as part of a hazardous 

materials transportation security plan. 

Paragraph (a) of this section requires 

that a security plan include an 

assessment of possible transportation 

security risks associated with the 

hazardous materials covered by the 

security plan and appropriate measures 

to address the identified security risks. 

This assessment is part of the plan and 

must be in writing and maintained with 

the plan in accordance with 

§ 172.802(b). Stakeholders have 

indicated that there is some confusion 

as to whether the security risk 

assessment is part of the security plan 

and if it must be in writing. To clarify 

concerns, the NPRM proposed language 

indicating that the security plan, 

including the security risk assessment, 

must be in writing and must be retained 

for as long as the plan remains in effect. 

One commenter, DGAC, opposes the 

requirement for assessments to be 

written, suggesting that written 

vulnerability assessments provide little 

to no security benefit and impose a 

paperwork burden. We disagree with 

DGAC. The risk assessment is the 

foundation of a security plan. If the 

assessment is not in writing, it will be 

difficult for a company to match the 

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components of its security plan to the 

vulnerabilities identified. Moreover, in 

the absence of a written risk assessment, 

it will be difficult—if not impossible— 

for enforcement personnel to determine 

whether a security plan conforms to 

HMR requirements. 

We note concerning the proposal in 

the NPRM that the requirement for a 

risk assessment to be included in the 

security plan is not a new requirement. 

We have addressed this and the 

requirement for plans to be in writing in 

guidance issued over the last several 

years. For example, in a February 27, 

2004 letter to Mr. Jim Smith (Ref. No. 

04–0293; Docket entry PHMSA–06– 

25885–0175), we clearly stated that a 

security plan must include an 

assessment of possible transportation 

security risks for shipments of the 

covered hazardous materials and 

appropriate measures to address the 

assessed risks. At a minimum, the 

security plan must address personnel 

security, unauthorized access, and en 

route security issues. Similarly, in a 

May 16, 2007 letter to Ms. Susan Leith 

(Ref. No. 07–0086; Docket entry 

PHMSA–06–25885–0176), we agreed 

with the requester that the security plan 

must be in writing. We indicated that 

posting a security plan on a company’s 

intranet that is accessible to company 

employees on a need-to-know basis and 

readily printed if necessary would be 

considered ‘‘in writing.’’ In light of 

stakeholder concerns, this final rule 

clarifies existing requirements for 

including the risk assessment as part of 

the overall security plan by adopting the 

language proposed in § 172.802(c). 

4. Annual Review (§ 172.802(c)) 

In the NPRM we proposed a 

requirement for the security plan to be 

reviewed at least annually and updated 

if circumstances change (e.g., 

acquisitions, mergers, operating rights, 

materials transported, and expanded or 

reduced service levels). Dominion, 

Arkema Inc., USWAG, ATA, and NTTC 

all indicate that the requirement for 

security plans to be updated as 

necessary to reflect changing 

circumstances is sufficient and that it is 

unclear how requiring annual review 

increases the effectiveness. 

When we adopted the requirement for 

security plans to be updated as 

necessary to reflect changing 

circumstances, our expectation was that 

plans would be reviewed at least 

annually and perhaps more often so that 

they could be updated to reflect 

changing circumstances. According to 

stakeholders and PHMSA enforcement 

personnel, plans are not being reviewed 

regularly. As a result, plans are not 

updated. The addition of a requirement 

for annual review and update to reflect 

changing circumstances will ensure that 

shippers and carriers keep abreast of 

changing conditions that affect the 

security of the shipments they handle 

and ensure that security measures in 

place are appropriate and effective. By 

their nature, security considerations are 

always changing and must be 

continually evaluated at the ground 

level by offerors and transporters to be 

effective. Therefore, in this final rule, 

we are adopting the proposed 

requirement for the security plan to be 

reviewed at least annually and updated 

to reflect changing circumstances. 

5. Risk Assessment and Security Plan 

Documentation (§ 172.802(c) and (d)) 

In the NPRM we proposed a 

requirement for the security plan to be 

made available to employees. Currently, 

and as proposed in the NPRM, the 

security plan must include an 

assessment of transportation security 

risks. Commenters expressed concern 

regarding the vulnerabilities that may 

develop from broad distribution of the 

entire security plan, especially the risk 

assessment. In addition, one 

commenter, Arkema Inc., requests 

clarification on what is required for a 

risk assessment—it asks for an example 

of the methodology that should be used 

and what should be maintained at the 

corporate vs. site-specific level. 

We agree with commenters that the 

distribution of security plans to 

employees without regard to job 

function and need-to-know, may not be 

in the best interest of security. 

Generally, we believe that employees 

should be involved in the risk 

assessment process at the onset. 

Employees should be given the 

opportunity to discuss security concerns 

of which they are aware and 

recommend measures that may be used 

to address identified risks. However, 

consistent with personnel security 

clearance or background check 

investigation restrictions and 

demonstrated need-to-know, it is at the 

discretion of the hazmat employer as to 

the extent to which employees are 

granted access to the completed plan. At 

a minimum, the employees need to be 

made aware of security changes and 

activities for which they are responsible. 

We believe that the language provided 

in § 172.802(c) of the NPRM is adequate 

to allow employers to make employees 

aware of the overall security posture of 

the company and of their specific 

security roles and responsibilities, 

without requiring them to share the 

entire plan. As a result, we are adopting 

the language as proposed. 

In response to Arkema’s request for 

clarification regarding the requirements 

for maintaining documentation, current 

and proposed security plan 

requirements indicate that the security 

plan, which includes the risk 

assessment, must be maintained in 

writing and for as long as it remains in 

effect. Each person must maintain the 

security plan at its principal place of 

business. Generally, the principal place 

of business is the location of the head 

office of a business where the books and 

records are kept and/or management 

works. However, for companies that 

operate more than one site or facility for 

which security plans are required, the 

security plan must be readily available 

to the employees responsible for 

implementing the plan and must be 

provided at a reasonable time and 

location to an authorized official of DOT 

or TSA and other authorized DHS 

officials upon request. Therefore, each 

facility must have the plan on file or 

have the capability of accessing or 

receiving the plan from the principal 

place of business. This final rule adopts 

the requirement as proposed in the 

NPRM. Note that for purposes of 

compliance with this requirement, a 

shipper or carrier may maintain its 

security plan electronically, such as on 

a secure intranet site or CD, so long as 

it can be accessed by employees 

responsible for its implementation, 

printed and distributed as necessary, 

and provided expeditiously to 

enforcement personnel upon request. 

In response to Arkema’s request for an 

example of the methodology that should 

be used when conducting risk 

assessments, we point to the Risk 

Management Self-Evaluation 

Framework (RMSEF) on our website. 

The framework illustrates how risk 

management methodology can be used 

to identify points in the transportation 

process where security procedures 

should be enhanced within the context 

of an overall risk management strategy. 

The RMSEF is posted on our website at 

the following URL: http:// 

www.phmsa.dot.gov/hazmat/risk/rmsef. 

Other risk assessment tools are equally 

valid. This final rule does not require 

persons subject to the security plan 

requirement to use a specific risk 

assessment tool to meet the risk 

assessment requirement. Using risk 

assessment methodology, a company 

will select an appropriate level of detail 

for its security plan based on the 

assessed risks identified for such 

material or materials. Factors that may 

be considered are the type or types of 

materials transported, the quantity of 

material transported, the area from or to 

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1TSA also requires freight rail carriers and 

certain facilities handling specified hazardous 

materials to implement chain of custody and 

control requirements to ensure a positive and 

secure exchange of the specified hazardous 

materials. 49 CFR 1580.107. 

which the material is shipped, and the 

mode of transportation used. 

C. Security Training 

In the NPRM we proposed to clarify 

that the in-depth security training 

requirements in § 172.704(a)(5) apply 

only to hazmat employees who are 

directly involved with implementing 

security plans. Companies that are 

subject to the security plan 

requirements in Subpart I of Part 172 are 

required to provide in-depth training 

concerning their security plan and its 

implementation. Additionally, as 

discussed above, the NPRM proposed to 

require security plans to be reviewed at 

least once each year and updated as 

necessary to reflect changing 

circumstances. The in-depth security 

training requirement must be provided 

to hazmat employees responsible for the 

plan’s implementation once every three 

years, in accordance with § 172.704(c). 

To align these requirements the NPRM 

proposed to require in-depth security 

training once every three years or, if the 

security plan is revised during the 

recurrent training cycle, within 90 days 

of implementation of the revised 

security plan. In this way, those hazmat 

employees responsible for 

implementing the security plan will be 

trained in a timely manner concerning 

any changes or revisions to the plan. 

USWAG does not support the 

provision in proposed § 172.704(c)(2) 

requiring recurrent training when the 

security plan is revised. USWAG 

suggests that we limit the recurrent 

training to ‘‘changes that affect the 

critical components of the security plan, 

namely ‘unauthorized access’ and ‘en 

route security’ as identified by 

§ 172.704(a)(2) and (3) and only for 

those employees affected.’’ Norfolk 

Southern states, ‘‘PHMSA should 

provide a distinct break between the 

foregoing first two categories of hazmat 

employees (those handling hazmat or 

performing regulated hazmat function) 

versus key employees who are 

responsible for implementing a 

railroad’s security plan.’’ Another 

commenter, AAR states, ‘‘in-depth 

training is appropriate for employees 

responsible for implementing a security 

plan.’’ According to AAR, in-depth 

training is not appropriate for 

employees who handle the materials or 

perform a regulated function. 

Current language requires each 

employee of a hazmat employer that has 

a security plan to be provided in-depth 

security training. Similarly, we 

currently require recurrent training 

when changes are made that impact the 

hazmat employee’s job function. For 

example, if we publish a new 

regulation, change an existing 

regulation, or if an employer revises a 

security plan, a hazmat employee must 

be instructed in those new or revised 

requirements without regard to the three 

year training cycle. Therefore, the 

revisions to the training requirements 

simply clarify existing requirements. In 

this final rule we are adopting the 

requirements in § 172.704 as proposed. 

D. Other Comments 

1. One Time Shipments 

The NPRM did not address the 

concept of one-time shipments. Various 

commenters support regulatory relief for 

one-time or first-time shipments of 

materials that require security plans. 

One commenter, Dominion, suggests 

that PHMSA except facilities with ‘‘onetime’’ shipments or events from the 

security plan requirements and provide 

a reasonable period of time for new 

companies to institute security plans. 

Another commenter, USWAG, requests 

that we clarify our expectations for 

‘‘facilities that are faced with two 

distinct factual scenarios: (i) Where a 

facility has triggered a security plan 

threshold but does not expect to trigger 

any threshold in the future (i.e., ‘onetime’ event) and (ii) where a facility has 

triggered a threshold and will likely 

trigger a security plan threshold in the 

future.’’ 

The security plan requirements apply 

to any person who offers and/or 

transports listed hazardous materials in 

commerce. They have been established 

to promote the secure transportation of 

hazardous materials in commerce. It is 

not practicable to provide a broad 

exception that waives security plan 

requirements simply to accommodate 

one-time shipments of hazardous 

materials. Therefore, we are not 

adopting a procedure for one-time 

shipments in this final rule. 

2. Modal Variations 

The NPRM did not elaborate on 

differences in security plans based on 

the mode of transportation used. One 

commenter, Dow, suggests that security 

plan requirements should vary by mode 

of transportation because security risks 

will ‘‘differ due to the unique aspects of 

each mode.’’ 

We agree with the commenter that 

security risks may well differ among 

different modes of transport. Persons 

who offer for transportation materials 

for which a security plan is required 

must assess and address security 

vulnerabilities for all the modes of 

transport utilized. The HMR set forth 

general requirements for a security 

plan’s components rather than a 

prescriptive list of specific items that 

must be included. The HMR set a 

performance standard providing offerors 

and carriers with the flexibility 

necessary to develop security plans 

addressing their individual 

circumstances and operational 

environments. Accordingly, each 

security plan will differ because it will 

be based on an offeror’s or a carrier’s 

individualized assessment of the 

security risks associated with the 

specific hazardous materials it ships or 

transports and its unique circumstances 

and operational environment. 

In the event that additional 

requirements are deemed to be 

necessary for specific modes, we will 

address those through rulemaking. An 

example of mode specific security plan 

requirements is the rail routing 

regulation in § 172.820 of the HMR, 

which were adopted in an interim final 

rule published April 16, 2008 (73 FR 

20751) and finalized in a final rule 

published November 26, 2008 (73 FR 

72182). The section requires, for a 

narrow list of materials, rail carriers to 

collect data on rail transportation 

routes, analyze the data collected, assess 

practicable alternative routes, and select 

the safest and most secure route.1

3. Exceptions and IBCs 

Three commenters ask for 

clarification of the applicability of the 

security plan requirements to materials 

shipped under exceptions and to 

residues. Commenters also asked 

whether security planning requirements 

apply to hazardous materials 

transported in IBCs. 

The security plan requirements apply 

to the materials listed in § 172.800(b) as 

amended by this final rule. Materials 

shipped in accordance with an 

exception authorized under the HMR, 

such as the materials of trade exception 

in § 173.6, small quantity exceptions in 

[list the new sections as established in 

HM–215J], or limited quantity or 

consumer commodity exceptions, are 

not subject to security planning 

requirements. In accordance with 

§ 172.800(b), listed materials offered for 

transportation or transported at or above 

the threshold quantity indicated are 

subject to security plan requirements, 

including residue quantities in excess of 

the established thresholds. Materials for 

which the established threshold is 3,000 

L (793 gallons) or 3,000 kg (6,614 lbs.) 

that are transported in an IBC or other 

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packaging with a capacity that is below 

the established threshold are not subject 

to security planning requirements. 

4. Shipper’s Responsibility 

Commenters express concern 

regarding enforcement actions taken 

against carriers as a result of errors 

made by shippers. Specifically, in its 

comments COSTHA requests that 

PHMSA add language to protect the 

carrier from enforcement action when a 

shipper fails to declare a shipment as 

being subject to the security plan 

requirement. Similarly, ATA requests 

the inclusion of a provision indicating 

that the ‘‘transportation of undeclared 

hazardous materials is not a violation of 

the HMR, unless the carrier has 

knowledge that a specific package 

contained undeclared security sensitive 

hazardous materials.’’ 

It is the carrier’s responsibility to 

develop and implement security plans 

for materials that it transports that are 

in excess of the thresholds established 

by this final rule. We note that in 

accordance with § 171.2(f) of the HMR, 

an offeror and carrier may rely on 

information provided by a previous 

offeror or carrier unless it knows, or a 

reasonable person acting in the 

circumstances and exercising reasonable 

care would know, that the information 

provided to them is incorrect. Under 

section 5123(a)(1) of the Federal 

hazardous materials transportation law 

(49 U.S.C. 5101 et seq.), a person acts 

knowingly when the person has actual 

knowledge of the facts giving rise to the 

violation; or a reasonable person acting 

in the circumstances and exercising 

reasonable care would have that 

knowledge. While we consider 

enforcement actions on a case-by-case 

basis considering the specific 

circumstances surrounding noncompliance with the regulations, we can 

say that it is unlikely that we would 

pursue an enforcement action against a 

carrier for failure to have a security plan 

if the carrier relied on information about 

the shipment provided by a previous 

offeror or carrier in the transportation 

chain and the carrier did not know or 

have reason to believe that the 

information provided was incorrect. 

5. Implementation Timeline 

One commenter, Horizon Lines, Inc, 

suggests that the proposed changes to 

the security plan will require 

modification to plans in existence today 

and requests that enough time be 

provided for training to be completed 

without creating an undue burden and 

expense for industry. 

We disagree that the proposed 

changes to the security plan will require 

modification to plans in existence 

today. This final rule narrows the list of 

materials subject to security plan 

requirements and provides clarity in 

areas where the requirements are often 

misunderstood (e.g., security planning, 

training, and documentation). This final 

rule, taken as a whole, reduces the 

number of persons subject to the 

regulatory costs and paperwork burden 

attributable to PHMSA’s security 

planning requirements. It does not 

increase the training burden or require 

modification of existing security plans. 

However, we understand the concerns 

expressed by Horizon Lines, Inc. As 

such, we will allow voluntary 

compliance 30 days after publication of 

this final rule and extend the effective 

date to October 1, 2010. This will 

provide an opportunity for companies to 

account for any changes they may 

choose to implement. 

IV. Regulatory Analyses and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This rulemaking is considered a 

significant regulatory action under 

section 3(f) of Executive Order 12866 

and the Regulatory Policies and 

Procedures of the Department of 

Transportation (44 FR 11032). This final 

rule was reviewed by the Office of 

Management and Budget. 

Executive Order 12866 requires 

agencies to regulate in the ‘‘most 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 final rule narrows the list of 

materials for which security plans are 

required, it will reduce the number of 

shippers and carriers required to 

develop security plans in accordance 

with Subpart I of Part 172 of the HMR. 

It is estimated that about 10,119 entities 

will no longer be subject to current 

security plan and associated in-depth 

training requirements. The annual 

benefit resulting from this final rule is 

estimated to be about $3.6 million–$2.8 

million in avoided costs related to 

development of security plans and $0.8 

million in costs savings for associated 

training. Evaluated over a 15-year 

period at the standard discount rate of 

7%, the estimated net present value of 

the cost savings is approximately $32.6 

million. The regulatory impact 

assessment is accessible by PHMSA 

docket number (PHMSA–06–25885) 

through the Federal eRulemaking Portal 

(http://www.regulations.gov). 

B. Executive Order 13132 

This final rule has been analyzed in 

accordance with the principles and 

criteria set forth in Executive Order 

13132 (‘‘Federalism’’). This final rule 

will preempt State, local and Indian 

tribe requirements but will not have 

substantial direct effects on the States, 

the relationship between the national 

government and the States, or the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

C. Executive Order 13175 

This final rule was analyzed in 

accordance with the principles and 

criteria set forth in Executive Order 

13175 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’). 

Because this final rule does not have 

tribal implications, and does not impose 

substantial direct compliance costs, the 

funding and consultation requirements 

of Executive Order 13175 do not apply. 

D. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires an agency to 

review regulations to assess their impact 

on small entities unless the agency 

determines that a rule is not expected to 

have a significant impact on a 

substantial number of small entities. 

PHMSA has determined that, while the 

requirements of the final rule would 

apply to a substantial number of small 

entities, the economic impact on those 

small entities would not be substantial, 

though it would be positive. 

As indicated above, about 10,119 

entities will be provided relief from 

current security plan and in-depth 

training requirements as a result of this 

final rule. These entities are persons 

who offer for transportation or transport 

hazardous materials in commerce. 

Unless alternative definitions have been 

established by the agency in 

consultation with the Small Business 

Administration (SBA), the definition of 

‘‘small business’’ has the same meaning 

as under the Small Business Act. Since 

no such special definition has been 

established, the thresholds published by 

SBA for industries subject to the HMR 

are utilized. Fewer than 90% of 

shippers and carriers affected by the 

changes in this final rule are small 

businesses. 

Based on an analysis of the potential 

reduction in cost associated with this 

final rule, PHMSA concludes that, while 

the rule applies to a substantial number 

of small entities, it does not have a 

significant economic impact on those 

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Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 10987 

small entities. For a small business that 

will no longer be subject to the security 

plan requirements and associated indepth training requirements, the cost 

savings is between $332 and $437 

annually. 

E. Paperwork Reduction Act 

PHMSA currently has an approved 

information collection under OMB 

Control Number 2137–0612, ‘‘Hazardous 

Materials Security Plans’’ with an 

expiration date of June 30, 2011. This 

final rule will result in a decrease in the 

annual burden and costs under OMB 

Control Number 2137–0612 due to 

changes adopted in this final rule to 

revise the list of materials for which 

hazardous materials transportation 

security plans are required. 

Under the Paperwork Reduction Act 

of 1995, no person is required to 

respond to an information collection 

unless it has been approved by OMB 

and displays a valid OMB control 

number. Pursuant to 5 CFR 1320.8(d), 

PHMSA is required to provide 

interested members of the public and 

affected agencies with an opportunity to 

comment on information collection and 

recordkeeping requests. This final rule 

identifies a revised information 

collection request that PHMSA will 

submit to the Office of Management and 

Budget (OMB) for approval based on the 

requirements in this final rule. 

PHMSA has developed burden 

estimates to reflect changes in this final 

rule and estimates that the information 

collection and recordkeeping burden in 

this rule would be decreased as follows: 

OMB Control No. 2137–0612: 

Decrease in Annual Number of 

Respondents: 10,119 

Decrease in Annual Responses: 

10,119 

Decrease in Annual Burden Hours: 

55,655 

Decrease in Annual Burden Costs: 

$2,782,750 

Requests for a copy of this 

information collection should be 

directed to Deborah Boothe or T. Glenn 

Foster, Office of Hazardous Materials 

Standards (PHH–11), Pipeline and 

Hazardous Materials Safety 

Administration, 1200 New Jersey 

Avenue, SE., Washington, DC 20590– 

0001, Telephone (202) 366–8553. 

F. Regulation Identifier Number (RIN) 

A regulation identifier number (RIN) 

is assigned to each regulatory action 

listed in the Unified Agenda of Federal 

Regulations. The Regulatory Information 

Service Center publishes the Unified 

Agenda in April and October of each 

year. The RIN contained in the heading 

of this document can be used to crossreference this action with the Unified 

Agenda. 

G. Unfunded Mandates Reform Act 

This final rule does not impose 

unfunded mandates under the 

Unfunded Mandates Reform Act of 

1995. It does not result in costs of $132 

million or more to either State, local or 

tribal governments, in the aggregate, or 

to the private sector, and is the least 

burdensome alternative that achieves 

the objective of the rule. 

H. Environmental Assessment 

The National Environmental Policy 

Act (NEPA), sections 4321–4375, 

requires Federal agencies to analyze 

proposed actions to determine whether 

the action will have a significant impact 

on the human environment. The 

Council on Environmental Quality 

(CEQ) regulations order Federal 

agencies to conduct an environmental 

review considering (1) the need for the 

proposed action, (2) alternatives to the 

proposed action, (3) probable 

environmental impacts of the proposed 

action and alternatives, and (4) the 

agencies and persons consulted during 

the consideration process. 40 CFR 

1508.9(b). 

Purpose and Need. The current 

security plan requirements, which 

became effective on September 25, 2003, 

apply to shipments of placarded loads 

of hazardous materials and to select 

agents. PHMSA has received two 

petitions for rulemaking requesting a 

review and reevaluation of the 

requirements. The petitioners cite 

several examples of hazardous materials 

that, based on hazard class and quantity, 

require placarding under the HMR and, 

therefore, are subject to security plan 

requirements. Examples include 

automobile batteries, inks, paint, and 

flavoring extracts. Petitioners suggest 

that it is highly unlikely a terrorist 

would use such materials to cause loss 

of life, destruction of property, or 

damage to the environment. 

PHMSA agrees with the petitioners 

that the list of materials for which 

security plans are required should be 

revised. Since 2003, both the industry 

and the government have had four years 

of experience in evaluating security 

risks associated with specific hazardous 

materials and transportation 

environments and identifying 

appropriate measures to address those 

risks. The revisions made by this final 

rule are based on an evaluation of 

possible security threats posed by 

specific types and classes of hazardous 

materials and are intended to ensure 

that the security plan requirement 

applies only to those materials that 

present a significant security threat in 

transportation based on the hazard class 

and packing group of the material and 

the quantity or volume transported. 

Alternatives. PHMSA considered the 

following alternatives: 

No action—Under this alternative, 

security plan requirements would 

continue to apply to shipments of 

placarded loads of hazardous materials 

and to select agents, including some 

materials that do not pose a 

transportation security risk. This 

alternative is not risk-based and results 

in the over-regulation of materials that 

are not likely to be used in a terrorist or 

criminal act. This action is not 

recommended. 

Require security plans only for 

materials subject to FMCSA permit 

regulations—Under this alternative, 

security plan requirements would apply 

only to shipments of hazardous 

materials subject to safety permit 

requirements in accordance with 

FMCSA regulations at 49 CFR Part 385. 

A safety permit is required for certain 

shipments of radioactive materials, 

explosives, PIH materials, and 

compressed or refrigerated methane or 

liquefied natural gas. This alternative 

would not include a number of 

materials that pose a significant security 

risk, including flammable gases, 

flammable liquids, desensitized 

explosives, dangerous when wet 

materials, oxidizing materials, organic 

peroxides, poisons, and select agents. 

Selection of this alternative could result 

in significant adverse environmental 

impacts as a result of a terrorist or 

criminal action using such materials. 

This alternative is not recommended. 

Adopt UN Recommendations Criteria 

for Security Plan Requirements—under 

this alternative, security plans would be 

required for the materials identified in 

the UN Recommendations as high 

consequence dangerous goods—that is, 

materials with the potential for misuse 

in a terrorist incident that may produce 

serious consequences such as mass 

casualties or mass destruction. The UN 

list of high consequence dangerous 

goods includes most of the hazardous 

materials that pose a significant 

transportation security risk. The 

materials that would no longer be 

subject to security planning 

requirements are unlikely to be targeted 

for criminal or terrorist use; therefore, 

the adverse environmental 

consequences of this alternative are 

expected to be minimal. With some 

modifications, as detailed in this final 

rule, this is the selected alternative. 

Analysis of Environmental Impacts. 

Hazardous materials are substances that 

may pose a threat to public safety or the 

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10988 Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 

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, 

loading, unloading, collisions, handling 

problems, or deliberate sabotage. The 

release of hazardous materials can cause 

the loss of ecological resources and the 

contamination of air, aquatic 

environments, and soil. Contamination 

of soil can lead to the contamination of 

ground water. For the most part, the 

adverse environmental impacts 

associated with releases of most 

hazardous materials are short-term 

impacts that can be reduced or 

eliminated through prompt clean-up/ 

decontamination of the accident scene. 

The security plan requirements in 

Subpart I of Part 172 of the HMR are 

intended to reduce the potentially 

catastrophic consequences, including 

adverse environmental consequences, of 

a criminal or terrorist incident involving 

hazardous materials in transportation. A 

security plan must include an 

assessment of possible transportation 

security risks and appropriate measures 

to address the assessed risks. Specific 

measures implemented as part of the 

plan may vary with the level of threat 

at a particular time. At a minimum, the 

security plan must address personnel 

security, unauthorized access, and en 

route security. For personnel security, 

the plan must include measures to 

confirm information provided by job 

applicants for positions involving access 

to and handling of the hazardous 

materials covered by the plan. For 

unauthorized access, the plan must 

include measures to address the risk of 

unauthorized persons gaining access to 

materials or transport conveyances 

being prepared for transportation. For 

en route security, the plan must include 

measures to address security risks 

during transportation, including the 

security of shipments stored temporarily 

en route to their destinations. 

This final rule narrows the list of 

materials for which a security plan is 

currently required. It targets the security 

plan regulations to those materials that 

pose a significant transportation 

security risk. It is possible to envision 

scenarios in which hazardous materials 

other than those identified in this final 

rule could be used to inflict serious 

damage in a terrorist or criminal 

incident. However, our assessment of 

the security risks associated with such 

materials, detailed elsewhere in this 

preamble, suggests that they are 

unlikely to be targeted. PHMSA 

therefore concludes that there are no 

significant environmental impacts 

associated with this final rule. 

Consultation and Public Comment. As 

discussed above, PHMSA published an 

ANPRM and hosted a public meeting to 

solicit public comments concerning 

whether the list of materials for which 

security plans are currently required 

should be modified. Commenters were 

asked to address a number of issues 

related to the identification of materials 

that pose a security threat sufficient to 

justify preparation and implementation 

of a security plan. Thirty-four comments 

were received from industry 

associations, shippers, carriers, and 

private citizens. In addition, six people 

made presentations at the public 

meeting. 

List of Subjects in 49 CFR Part 172 

Hazardous materials transportation, 

Hazardous waste, Labeling, Packaging 

and containers, Reporting and 

recordkeeping requirements. 

■ In consideration of the foregoing, 

PHMSA is amending title 49 Chapter I, 

Subchapter C, as follows: 

PART 172—HAZARDOUS MATERIALS 

TABLE, SPECIAL PROVISIONS, 

HAZARDOUS MATERIALS 

COMMUNICATIONS, EMERGENCY 

RESPONSE INFORMATION, AND 

TRAINING REQUIREMENTS 

■ 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 

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 

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Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 10989 

develop and adhere to a transportation 

security plan for hazardous materials 

that conforms to the requirements of 

this subpart. As used in this section, 

‘‘large bulk quantity’’ refers to a quantity 

greater than 3,000 kg (6,614 pounds) for 

solids or 3,000 liters (792 gallons) for 

liquids and gases in a single packaging 

such as a cargo tank motor vehicle, 

portable tank, tank car, or other bulk 

container. 

(1) Any quantity of a Division 1.1, 1.2, 

or 1.3 material; 

(2) A quantity of a Division 1.4, 1.5, 

or 1.6 material requiring placarding in 

accordance with § 172.504(c); 

(3) A large bulk quantity of Division 

2.1 material; 

(4) A large bulk quantity of Division 

2.2 material with a subsidiary hazard of 

5.1; 

(5) Any quantity of a material 

poisonous by inhalation, as defined in 

§ 171.8 of this subchapter; 

(6) A large bulk quantity of a Class 3 

material meeting the criteria for Packing 

Group I or II; 

(7) A quantity of a desensitized 

explosives meeting the definition of a 

Division 4.1 or Class 3 material 

requiring placarding in accordance with 

§ 172.504(c); 

(8) A large bulk quantity of a Division 

4.2 material meeting the criteria for 

Packing Group I or II; 

(9) Any quantity of a Division 4.3 

material; 

(10) A large bulk quantity of a 

Division 5.1 material in Packing Groups 

I and II; perchlorates; or ammonium 

nitrate, ammonium nitrate fertilizers, or 

ammonium nitrate emulsions, 

suspensions, or gels; 

(11) Any quantity of organic peroxide, 

Type B, liquid or solid, temperature 

controlled; 

(12) A large bulk quantity of Division 

6.1 material (for a material poisonous by 

inhalation see paragraph (5) above); 

(13) A select agent or toxin regulated 

by the Centers for Disease Control and 

Prevention under 42 CFR part 73 or the 

United States Department of Agriculture 

under 9 CFR part 121; 

(14) A quantity of uranium 

hexafluoride requiring placarding under 

§ 172.505(b); 

(15) International Atomic Energy 

Agency (IAEA) Code of Conduct 

Category 1 and 2 materials including 

Highway Route Controlled quantities as 

defined in 49 CFR 173.403 or known as 

radionuclides in forms listed as RAM– 

QC by the Nuclear Regulatory 

Commission; 

(16) A large bulk quantity of Class 8 

material meeting the criteria for Packing 

Group I. 

* * * * * 

■ 4. 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 risks 

associated with facilities at which the 

hazardous materials listed in § 172.800 

are prepared for transportation, stored, 

or unloaded incidental to movement, 

and appropriate measures to address the 

assessed risks. Specific measures put 

into place by the plan may vary 

commensurate with the level of threat at 

a particular time. At a minimum, a 

security plan must include the 

following elements: 

* * * * * 

(b) The security plan must also 

include the following: 

(1) Identification by job title of the 

senior management official responsible 

for overall development and 

implementation of the security plan; 

(2) Security duties for each position or 

department that is responsible for 

implementing the plan or a portion of 

the plan and the process of notifying 

employees when specific elements of 

the security plan must be implemented; 

and 

(3) A plan for training hazmat 

employees in accordance with § 172.704 

(a)(4) and (a)(5) of this part. 

(c) The security plan, including the 

transportation security risk assessment 

developed in accordance with 

paragraph (a) of this section, must be in 

writing and must be retained for as long 

as it remains in effect. The security plan 

must be reviewed at least annually and 

revised and/or updated as necessary to 

reflect changing circumstances. The 

most recent version of the security plan, 

or portions thereof, must be available to 

the employees who are responsible for 

implementing it, consistent with 

personnel security clearance or 

background investigation restrictions 

and a demonstrated need to know. 

When the security plan is updated or 

revised, all employees responsible for 

implementing it must be notified and all 

copies of the plan must be maintained 

as of the date of the most recent 

revision. 

(d) Each person required to develop 

and implement a security plan in 

accordance with this subpart must 

maintain a copy of the security plan (or 

an electronic file thereof) that is 

accessible at, or through, its principal 

place of business and must make the 

security plan available upon request, at 

a reasonable time and location, to an 

authorized official of the Department of 

Transportation or the Department of 

Homeland Security. 

Issued in Washington, DC, on March 1, 

2010, under authority delegated in 49 CFR 

Part 1. 

Cynthia L. Quarterman, 

Administrator. 

[FR Doc. 2010–4778 Filed 3–8–10; 8:45 am] 

BILLING CODE 4910–60–P 

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