52558 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR Part 172 

[Docket No. PHMSA–06–25885 (HM–232F)] 

RIN 2137–AE22 

Hazardous Materials: Risk-Based 

Adjustment of Transportation Security 

Plan Requirements 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: PHMSA, in consultation with 

the Transportation Safety 

Administration (TSA) of the Department 

of Homeland Security (DHS), is 

proposing to modify its current security 

plan requirements governing the 

commercial transportation of hazardous 

materials by air, rail, vessel, and 

highway. Based on an evaluation of the 

security threats associated with specific 

types and quantities of hazardous 

materials, the proposed rule would 

narrow the list of materials subject to 

security plan requirements and reduce 

associated regulatory costs and 

paperwork burden. The proposed rule 

also would clarify certain requirements 

related to security planning, training, 

and documentation and incorporate and 

build on recent international standards 

governing hazardous materials security. 

DATES: Submit comments by November 

10, 2008. 

ADDRESSES: You may submit comments 

identified by the docket number 

(PHMSA–06–25885) by any of the 

following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Fax: 1–202–493–2251. 

• Mail: Docket Operations, U.S. 

Department of Transportation, West 

Building, Ground Floor, Room W12– 

140, Routing Symbol M–30, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590. 

• Hand Delivery: To Docket 

Operations, Room W12–140 on the 

ground floor of the West Building, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590, between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. 

For more detailed instruction on 

comment submission, see the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: 

Susan Gorsky or Ben Supko, Office of 

Hazardous Materials Standards, 

Pipeline and Hazardous Materials Safety 

Administration, 202–366–8553. 

SUPPLEMENTARY INFORMATION: 

Comment Submission 

Instructions: Identify the agency and 

docket number (PHMSA–06–25885) at 

the beginning of your submission. 

Except for comments that receive 

confidential treatment, all comments 

received will be posted without change 

to the Federal Docket Management 

System (FDMS), including any personal 

information provided. Detailed 

instructions for requesting confidential 

treatment are provided below, under the 

Privacy Act heading. 

Docket: For access to the dockets to 

read background documents or 

comments received, go to http:// 

www.regulations.gov or DOT’s Docket 

Operations Office (see ADDRESSES). 

Privacy Act: Anyone is able to search 

the electronic form of any written 

communications and comments 

received into any of our dockets by the 

name of the individual submitting the 

document (or signing the document, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78), which 

may also be found at http:// 

www.regulations.gov. 

You may request confidential 

treatment of comments or portions of 

comments under the procedures set 

forth in 49 CFR part 105. While all 

comments should be sent to the FDMS, 

PHMSA will consider separately and 

not place in the public docket those 

comments or portions of comments 

PHMSA determines to include trade 

secrets, other confidential commercial 

information, or sensitive security 

information (SSI). In accordance with 49 

CFR 105.30, you may ask PHMSA to 

keep information confidential using the 

following procedures: (1) Mark 

‘‘confidential’’ on each page of the 

original document you would like to 

keep confidential; (2) send FDMS both 

the original document and a second 

copy of the original document with the 

confidential information redacted; and 

(3) explain why the information is 

confidential (as a trade secret, other 

confidential commercial information, or 

SSI). In your explanation, you should 

provide enough information to enable 

PHMSA to determine whether the 

information provided is protected by 

law and must be handled separately. 

In addition, for comments or portions 

of comments that you believe contain 

SSI as defined in 49 CFR 15.7, you 

should comply with Federal regulations 

governing the handling of SSI. See 49 

CFR 1520.9 and 49 CFR 15.9, 

Restrictions on the disclosure of 

sensitive security information. Those 

regulations restrict the disclosure of SSI 

to those with a need to know and set 

forth specific requirements for marking, 

packaging, and disposing of documents 

containing SSI. Note when mailing in or 

using a special delivery service to send 

comments containing SSI, comments 

should be wrapped in a manner to 

prevent the information from being 

read. PHMSA may perform concurrent 

reviews on requests for designations as 

SSI. 

After reviewing your request for 

confidentiality and the information 

provided, PHMSA will determine 

whether the information should be 

treated as confidential under applicable 

laws and regulations. PHMSA will 

notify you of the decision to grant or 

deny confidential treatment. If PHMSA 

denies your request, you will be 

provided an opportunity to request 

reconsideration before the information 

is publicly disclosed. PHMSA will 

reconsider its decision to deny 

confidentiality based on your response. 

To further guard against disclosure of 

SSI, PHMSA will review all 

submissions, whether or not they are 

identified as confidential, prior to their 

posting on the public docket. PHMSA 

will notify you if we determine that 

information in your submission should 

not be disclosed to the public. If you 

have any questions concerning the 

procedures for determining 

confidentiality or security sensitivity, 

you may call one of the individuals 

listed below. 

I. Background 

A. Current DOT Security Requirements 

The Hazardous Materials Regulations 

(HMR; 49 CFR parts 171–180) require 

persons who offer for transportation or 

transport certain hazardous materials in 

commerce to develop and implement 

security plans. The security plan 

requirements in subpart I of part 172 of 

the HMR apply to persons who offer for 

transportation or transport: 

(1) A highway-route controlled 

quantity of a Class 7 (radioactive) 

material; 

(2) More than 25 kg (55 lbs.) of a 

Division 1.1, 1.2, or 1.3 (explosive) 

material; 

(3) More than 1 L (1.06 qt.) per 

package of a material poisonous by 

inhalation in Hazard Zone A; 

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(4) A shipment in a bulk packaging 

with a capacity equal to or greater 

than13,248 L (3,500 gallons) for liquids 

or gases or greater than 13.24 cubic 

meters (468 cubic feet) for solids; 

(5) A shipment in other than a bulk 

packaging of 2,268 kg (5,000 lbs.) gross 

weight or more of one class of 

hazardous materials for which 

placarding is required; 

(6) A select agent or toxin regulated 

by the Centers for Disease Control and 

Prevention under 42 CFR part 73 or a 

select agent or toxin regulated by the 

U.S. Department of Agriculture under 9 

CFR part 121; or 

(7) A shipment that requires 

placarding under subpart F of part 172 

of the HMR. 

A security plan must include an 

assessment of possible transportation 

security risks and appropriate measures 

to address the assessed risks. Specific 

measures implemented as part of the 

plan may vary with the level of threat 

at a particular time. At a minimum, the 

security plan must address personnel 

security, unauthorized access, and en 

route security. For personnel security, 

the plan must include measures to 

confirm information provided by job 

applicants for positions involving access 

to and handling of the hazardous 

materials covered by the plan. For 

unauthorized access, the plan must 

include measures to address the risk of 

unauthorized persons gaining access to 

materials or transport conveyances 

being prepared for transportation. For 

en route security, the plan must include 

measures to address security risks 

during transportation, including the 

security of shipments stored temporarily 

en route to their destinations. 

As indicated above, the HMR set forth 

general requirements for a security 

plan’s components rather than a 

prescriptive list of specific items that 

must be included. The HMR set a 

performance standard providing offerors 

and carriers with the flexibility 

necessary to develop security plans 

addressing their individual 

circumstances and operational 

environments. Accordingly, each 

security plan will differ because it will 

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

individualized assessment of the 

security risks associated with the 

specific hazardous materials it ships or 

transports and its unique circumstances 

and operational environment. 

B. International Transportation Security 

Standards 

The United Nations Model 

Regulations on the Transport of 

Dangerous Goods (UN 

Recommendations) identify high 

consequence dangerous goods for which 

enhanced security measures are 

recommended. The recommended 

security measures include security 

plans and are similar to the 

requirements in subpart I of part 172 of 

the HMR. The UN Recommendations 

define high consequence dangerous 

goods as materials with the ‘‘potential 

for mis-use in a terrorist incident and 

which may, as a result, produce serious 

consequences such as mass casualties or 

mass destruction.’’ The UN 

Recommendations list the following 

materials as high consequence 

dangerous goods: 

(1) Division 1.1 explosives; 

(2) Division 1.2 explosives; 

(3) Division 1.3 compatibility group C 

explosives; 

(4) Division 1.5 explosives; 

(5) Bulk shipments of Division 2.1 

flammable gases; 

(6) Division 2.3 toxic gases (excluding 

aerosols); 

(7) Bulk shipments of Class 3 

flammable liquids in PG I or II; 

(8) Class 3 and Division 4.1 

desensitized explosives; 

(9) Bulk shipments of Division 4.2 PG 

I materials; 

(10) Bulk shipments of Division 4.3 

PG I materials; 

(11) Bulk shipments of Division 5.1 

PG I oxidizing liquids; 

(12) Bulk shipments of Division 5.1 

perchlorates, ammonium nitrate and 

ammonium nitrate fertilizers; 

(13) Division 6.1 PG I toxic materials; 

(14) Division 6.2 infectious substances 

of Category A (UN2814 and 2900); 

(15) Class 7 radioactive materials in 

quantities greater than 3000 A1 (special 

form) or 3000 A2, as applicable, in Type 

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

and 

(16) Bulk shipments of Class 8 PG I 

materials. 

For purposes of the security provisions, 

the UN defines ‘‘in bulk’’ to mean 

quantities greater than 3,000 kg (6,614 

lbs.) or 3,000 liters (793 gallons) in 

portable tanks or bulk containers. 

C. Petitions for Rulemaking 

PHMSA has received two petitions for 

rulemaking requesting a review and 

reevaluation of the current HMR 

security plan requirements. The Council 

on Safe Transportation of Hazardous 

Articles (COSTHA) petitioned PHMSA 

(P–1447) to reevaluate the security 

requirements in subpart I of part 172 of 

the HMR to ‘‘enhance international 

harmonization and to better utilize 

available resources in enhancing 

hazardous materials transportation 

security.’’ COSTHA notes that the list of 

hazardous materials subject to the 

security plan requirements differs from 

the list of high consequence dangerous 

goods in the UN Recommendations. 

COSTHA requests that PHMSA adopt 

the same criteria as the UN 

Recommendations for materials that are 

subject to the security plan 

requirements or, as an alternative, 

eliminate the security plan requirement 

for quantities of hazardous materials 

currently subject to placarding under 

subpart F of part 172. COSTHA cites 

several examples of hazardous materials 

(e.g., automobile batteries, inks, paint, 

flavoring extracts) that, based on hazard 

class and quantity are placarded and 

subject the security plan requirements 

under the HMR, but not covered by the 

list of high consequence dangerous 

goods in the UN Recommendations. 

COSTHA acknowledges that these 

materials pose certain risks in 

transportation, but contends it is highly 

unlikely a terrorist would use these 

materials to perpetrate a terrorist attack. 

Similarly, the American Trucking 

Associations (ATA) petitioned PHMSA 

(P–1466) to designate a subset of 

‘‘security sensitive hazardous materials’’

that would trigger security plan 

requirements. The ATA urges PHMSA 

to use the list of materials and quantities 

subject to the Federal Motor Carrier 

Safety Administration (FMCSA) 

Hazardous Materials Safety Permit 

requirements as the starting point for 

determining security sensitive 

hazardous materials. In 49 CFR part 385, 

FMCSA requires a safety permit for 

motor carriers transporting specified 

quantities of Class 7 (radioactive) 

materials; Class 1 materials (explosives); 

materials that are poisonous or toxic by 

inhalation (PIH or TIH materials); and 

compressed or refrigerated liquefied 

methane or liquefied natural gas. In 

addition to those materials, ATA 

suggests that PHMSA add the following 

materials from the UN high 

consequence dangerous goods list: (1) 

Bulk shipments of Division 2.1; (2) bulk 

shipments of Class 3, PG I and II; (3) 

Class 3 and Division 4.1 desensitized 

explosives (quantity to be determined); 

(4) bulk shipments of Division 4.2, PG 

I; (5) bulk shipments of Division 4.3, PG 

I; (6) bulk shipments of Division 5.1, PG 

I; (7) bulk shipments of Division 5.1 

perchlorates, ammonium nitrate and 

ammonium nitrate fertilizers; (8) 

Division 6.2 infectious substances of 

Category A (quantity to be determined); 

(9) any quantity of select agents; and 

(10) bulk shipments of Class 8, PG I. The 

ATA uses quantities greater than 3,500 

gallons or 5,000 pounds to define 

‘‘bulk’’ for purposes of security 

planning. 

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52560 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 

We agree with COSTHA and ATA that 

the list of materials for which a security 

plan is required should be reevaluated. 

Our existing security plan rules were 

developed as baseline requirements. We 

considered the company preparing the 

security plan to be in the best position 

to assess security risks based on its 

operational circumstances. If security 

risks were determined to be 

insignificant, this would be reflected in 

a simple security plan with minimal 

content. Increased coverage would be 

required when security risks are more 

substantial. The security plan 

requirements went into effect more than 

four years ago, on September 25, 2003. 

Since then, both the industry and the 

government have gained experience 

evaluating security risks associated with 

specific hazardous materials and 

transportation environments and 

identifying appropriate measures to 

address those risks. Accordingly, we 

initiated this rulemaking, in 

coordination with other DOT modal 

administrations (the Federal Aviation 

Administration (FAA), Federal Railroad 

Administration (FRA), and FMCSA), 

and TSA to consider modifications to 

the list of hazardous materials for which 

security plans are required. 

II. Advance Notice of Proposed 

Rulemaking 

On September 21, 2006, PHMSA 

published an advance notice of 

proposed rulemaking (ANPRM) seeking 

public comment on the current security 

plan requirements. Commenters were 

asked to address the list of materials 

posing a security threat sufficient to 

justify preparation and implementation 

of a security plan, including factors that 

should be considered in assessing 

security risks; quantity thresholds that 

would trigger the security plan 

requirement; packing group criteria; and 

the availability of hazardous materials 

outside of transportation. 

On November 30, 2006, PHMSA 

hosted a public meeting to discuss these 

issues and invite further comments and 

information concerning the types and 

quantities of materials that should be 

covered by the security plan rule. Six 

persons made presentations at the 

public meeting. A transcript of the 

meeting, with the statements of 

presenters, is available for review in the 

public docket for this rulemaking. 

Written comments were received from 

34 industry associations, offerors, 

carriers, and private citizens, identified 

in the following list. 

ID/name/company Date Docket No. 

1 Clare L. Welker ............................................................................................................................... 09/28/2006 PHMSA–2006–25885–2 

2 Gregory Sutherland ......................................................................................................................... 10/03/2006 PHMSA–2006–25885–3 

3 Clare L. Welker ............................................................................................................................... 10/19/2006 PHMSA–2006–25885–4 

4 Duplainville Transport ...................................................................................................................... 10/25/2006 PHMSA–2006–25885–5 

5 Ecolab .............................................................................................................................................. 11/22/2006 PHMSA–2006–25885–6 

6 Arthur E. Hall ................................................................................................................................... 11/21/2006 PHMSA–2006–25885–7 

7 Institute of Makers of Explosives (IME) .......................................................................................... 11/30/2006 PHMSA–2006–25885–8 

8 Thomas Jefferson National Accelerator Facility (Jefferson Lab) .................................................... 12/13/2006 PHMSA–2006–25885–9 

9 U.S. Department of Energy (DOE) ................................................................................................. 12/18/2006 PHMSA–2006–25885–10 

10 Thomas L. Dunaway ..................................................................................................................... 12/18/2006 PHMSA–2006–25885–11 

11 National Refrigerants, Inc. (NRI) ................................................................................................... 12/19/2006 PHMSA–2006–25885–13 

12 United States Nuclear Regulatory Commission (NRC) ................................................................ 12/19/2006 PHMSA–2006–25885–14 

13 Veolia ES Technical Solutions, L.L.C. (Veolia) ............................................................................. 12/19/2006 PHMSA–2006–25885–15 

14 Council on Radionuclides and Radiopharmaceuticals, Inc. (CORAR) ......................................... 12/19/2006 PHMSA–2006–25885–16 

15 Flavor and Extract Manufacturers Association (FEMA) ................................................................ 12/20/2006 PHMSA–2006–25885–17 

16 Fragrance Materials Association (FMA) ........................................................................................ 12/20/2006 PHMSA–2006–25885–18 

17 The Dow Chemical Company (Dow) ............................................................................................ 12/20/2006 PHMSA–2006–25885–19 

18 Laboratory Corporation of America Holdings ................................................................................ 12/19/2006 PHMSA–2006–25885–20 

19 American Trucking Associations, Inc (ATA) ................................................................................. 12/20/2006 PHMSA–2006–25885–21 

20 Dangerous Goods Transport Consulting, Inc ............................................................................... 12/20/2006 PHMSA–2006–25885–22 

21 Air-Conditioning and Refrigeration Institute (ARI) ......................................................................... 12/20/2006 PHMSA–2006–25885–23 

22 Total Petrochemicals USA, Inc. .................................................................................................... 12/20/2006 PHMSA–2006–25885–24 

23 American Beverage Association (ABA) ........................................................................................ 12/19/2006 PHMSA–2006–25885–25 

24 Reusable Industrial Packaging Association (RIPA) ...................................................................... 12/20/2006 PHMSA–2006–25885–26 

25 Utility Solid Waste Activities Group (USWAG) .............................................................................. 12/20/2006 PHMSA–2006–25885–27 

26 Association of Hazmat Shippers, Inc. (AHS) ................................................................................ 12/21/2006 PHMSA–2006–25885–28 

27 National Paint & Coatings Association, Inc. (NPCA) .................................................................... 12/20/2006 PHMSA–2006–25885–29 

28 National Propane Gas Association (NPGA) ................................................................................. 12/21/2006 PHMSA–2006–25885–30 

29 Dangerous Goods Advisory Council (DGAC) ............................................................................... 12/21/2006 PHMSA–2006–25885–31 

30 Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA) ...................................... 12/22/2006 PHMSA–2006–25885–32 

31 National Tank Truck Carriers, Inc. (NTTC) ................................................................................... 12/27/2006 PHMSA–2006–25885–33 

32 Battery Council International (BCI) ............................................................................................... 01/12/2007 PHMSA–2006–25885–34 

33 Nuclear Energy Institute (NEI) ...................................................................................................... 01/12/2007 PHMSA–2006–25885–35 

34 Bill Bradshaw—Comments ............................................................................................................ 05/17/2007 PHMSA–2006–25885–36 

The full text of their comments are 

available for review through the Federal 

eRulemaking Portal (http:// 

www.regulations.gov). 

Most commenters agree that the list of 

materials for which security plans are 

required should be revised to include 

only those materials that pose a 

significant security threat in 

transportation. In the words of one 

commenter, ‘‘[R]egulating hazardous 

materials transportation security at the 

placarded load level is inconsistent with 

a risk-based approach. Using placards as 

a trigger for hazardous materials 

security regulations results in the 

overregulation of materials that are not 

capable of being used as a terrorist 

weapon.’’ (ATA) Several commenters 

suggest that our rule should address two 

types of threats from the misuse of 

hazardous materials. As one put it: 

‘‘First, there are commercial shipments 

of materials that, based on the hazard 

and quantity in the package would, if 

attacked in transportation and 

catastrophically released, enhance the 

damage or destruction of the attack. 

* * * Second, there are other materials 

whose value to a terrorist is in the theft 

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Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 52561 

or diversion of the material for 

manipulation into weapons of mass 

destruction (WMD).’’ (IME) Similarly, 

‘‘Risk should be assessed considering 

the nature of the threat, the 

vulnerability of the target, and the 

potential consequences of an incident. 

Threat scenarios should consider the 

potential for a serious catastrophic 

release from a direct attack, the 

potential for tampering and subsequent 

downstream impact, and the potential 

for theft and misuse as a weapon of 

mass destruction.’’ (Dow) 

Commenters also agree that, in 

developing this list, PHMSA should 

consider the potential for a material to 

be used for a criminal or terrorist act 

and the consequences of such an action, 

based on the hazard class and packing 

group of the material and the quantity 

or volume transported. Commenters 

generally oppose a material-specific list 

of chemicals and other materials that 

pose a security risk. ‘‘We urge PHMSA 

to reject [security sensitive hazardous 

materials] lists that are material-bymaterial based and to continue to 

embrace one based on a hazard class 

approach. * * * Among other 

advantages, a hazard class approach can 

be internationally harmonized and it 

addresses issues created by mixtures 

and solutions that have plagued 

material-by-material lists in other 

regulatory venues.’’ (IME) 

Most commenters suggest that 

security plan requirements should apply 

to the list of hazardous materials 

identified in the UN Recommendations 

as ‘‘high consequence dangerous 

goods.’’ ‘‘[W]e believe the current 

Security Plan requirements should be 

harmonized with the UN 

Recommendations so that they focus on 

the types of hazards and volumes that 

pose a real threat of weaponization.’’

(Flavor and Extract Manufacturers 

Association) Also, ‘‘[t]he UN 

recommendation to require security 

plans for ’High Consequence Dangerous 

Goods’ appears to be a reasonable 

approach, which considers hazard, form 

of packaging and volume thresholds.’’

(Dow) As well, ‘‘the UN 

Recommendations individually define 

‘significant risk’ materials and 

quantities based on the actual risk 

factors * * * rather than general 

transport classifications. Importantly, 

material identification is accomplished 

through a stakeholder developed ‘list of 

high consequence dangerous goods’

ensuring that material is independently 

peer reviewed before it is assigned a risk 

level.’’ (Air-Conditioning and 

Refrigeration Institute). 

III. Proposed Modifications to Security 

Plan Criteria 

A. Summary of Proposal 

Based on the comments received on 

the ANRPM and an evaluation of 

possible security threats posed by 

specific types and classes of hazardous 

materials, PHMSA is proposing to 

modify the list of materials for which a 

security plan is required. PHMSA agrees 

with the commenters to the ANPRM 

that the UN list of high consequence 

dangerous goods includes most of the 

hazardous materials that pose a 

significant transportation security risk. 

The UN list of high consequence 

dangerous goods was used as the 

starting point for our deliberations for 

this NPRM. 

PHMSA worked closely with FRA, 

FMCSA, and TSA to assess the 

transportation security risks associated 

with the different classes and quantities 

of hazardous materials. To determine 

the types of materials that should be 

subject to security planning 

requirements, PHMSA evaluated 

specific transportation scenarios in 

which a terrorist could deliberately use 

hazardous materials to cause large-scale 

casualties and property damage. In our 

qualitative risk evaluation, we 

considered the following factors: (1) 

Physical and chemical properties of the 

material or class of materials and how 

those properties could contribute to a 

security incident; (2) quantities shipped 

and mode of transport; (3) past terrorist 

use; (4) potential use; and (5) 

availability. One of the most significant 

security vulnerabilities involves the 

potential for a perpetrator to take 

control of a conveyance containing a 

high-risk material and move it to a site 

where the material could cause 

maximum damage or provide unusual 

leverage. For some hazardous materials, 

the primary security threat involves 

theft or highjacking of raw materials for 

use in weapons of mass destruction. 

On the basis of these considerations, 

PHMSA proposes to modify the current 

list of materials covered by the security 

plan requirement, as summarized in the 

following table: 

PROPOSED REVISIONS TO THE LIST OF HAZARDOUS MATERIALS FOR WHICH TRANSPORTATION SECURITY PLANS WILL BE

REQUIRED

Class Current threshold Proposed threshold Change 

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

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

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

1.4 ........ A quantity requiring 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 less than 

3,000 L. 

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

with a subsidiary 5.1 hazard (3,000 L 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 in a single packaging and any 

quantity of Class 3 desensitized explosives.

Security plan not required for less than 

3,000 L 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 of 3,000 kg 

or more in a single packaging.

Security plan not required for PG III materials. 

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

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52562 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 

PROPOSED REVISIONS TO THE LIST OF HAZARDOUS MATERIALS FOR WHICH TRANSPORTATION SECURITY PLANS WILL BE

REQUIRED—Continued 

Class Current threshold Proposed threshold Change 

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

quantities of 3,000 L or more 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 for PG II and 

III.

Security plan not required for less than 

3,000 L of PG II and III. 

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

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 of 3,000 L or more 

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. 

Our proposed revisions are explained 

in detail in the following section. 

B. System Characteristics and Risks 

A number of characteristics of the 

hazardous materials transportation 

system create the potential for misuse: 

(1) Substantial quantities of inherently 

dangerous materials are transported; (2) 

these materials are already mobile; (3) 

these materials are frequently 

transported in proximity to densely 

populated areas; and (4) placards or 

other markings required for safety may 

communicate hazard information to 

those who would misuse it. 

Following are the hazards of greatest 

concern from a transportation security 

perspective: 

Explosion and fire. Hazardous 

materials that pose a risk of explosion 

or fire may be used to attack large 

groups of people and critical 

infrastructure, such as buildings, 

tunnels, bridges, subways, 

communication centers, and electrical 

power grids. 

Poison Inhalation Hazards (PIH). PIH 

materials, either as gases or volatile 

liquids, can be used to attack people in 

confined spaces such as buildings or 

subways. Bulk quantities present 

dangers to large areas and could affect 

a significant number of people in urban 

areas. 

Poison liquids or solids. Poisons can 

be used to attack food or drinking water 

supplies or to attack groups of people 

indoors or outdoors. 

Infectious substances. Depending on 

the mode of transmission for a given 

material, infectious substances can be 

used to contaminate food or water 

supplies or to expose large numbers of 

people to disease. The suspected or 

possible presence of these materials can 

result in long-term denial of the use of 

space, facilities, or goods. 

Radioactive materials. These 

materials can cause severe chronic 

effects on large numbers of people, 

depending on exposure levels and the 

time exposed. The suspected or possible 

presence of these materials can result in 

long-term denial of the use of space, 

facilities, or goods. 

Other materials of concern. Certain 

hazardous materials can be mixed to 

create explosions, intensified burning, 

and toxic effects or used as precursor 

chemicals in the manufacture of more 

dangerous substances. For example, 

mixing poisonous materials with acidic 

material can generate toxic gases (e.g., 

sodium cyanide mixed with 

hydrochloric acid will generate 

hydrogen cyanide gas). 

C. Security Risks for Specific Classes of 

Materials 

A detailed discussion of the 

transportation security risks posed by 

specific classes of hazardous materials 

follows. 

1. Division 1.1, 1.2, and 1.3 Explosives 

Division 1.1., 1.2, and 1.3 explosive 

materials (e.g. , certain types of 

ammunition and cartridges, black 

powder, gun powder, demolition 

devices, depth charges, certain types of 

detonators, certain types of fireworks, 

rockets, and warheads) pose significant 

safety and security risks in 

transportation. A Division 1.1 explosive 

is one that presents a mass explosive 

hazard. A mass explosion is one that 

affects almost the entire load 

simultaneously. An explosion of 

Division 1.1 materials creates a pressure 

pulse that moves faster than the speed 

of sound. A Division 1.2 explosive has 

a projection hazard, which means that if 

the material explodes, it will project 

fragments outward at some distance. A 

Division 1.3 explosive presents a fire 

hazard and either a minor blast hazard 

or a minor projection hazard or both. If 

compromised in transit by detonation or 

as a secondary explosion to an 

improvised explosive device (IED), 

these materials could result in 

significant numbers of fatalities and 

substantial damage to transportation 

infrastructure and the surrounding area. 

When available, these explosives have 

been the preferred weapon of terrorists. 

This trend is not expected to change. 

Significant quantities of Division 1.1, 

1.2, and 1.3 explosives are transported 

by highway and rail for both 

commercial and military applications. 

The Department of Defense alone moves 

approximately 30,000 shipments a year 

by motor carrier. Motor carrier 

shipments are transported largely on the 

nation’s interstate highway system, 

which bisects or adjoins many 

metropolitan areas offering significant 

iconic-value and critical infrastructure 

targets. About 500 carloads of these 

explosives are transported by rail each 

year. Like the interstate highway 

system, the rail transportation network 

intersects many densely populated 

areas. 

The HMR currently require security 

plans for shipments of any quantity of 

Division 1.1, 1.2, or 1.3 explosives. 

PHMSA believes that this requirement 

provides an appropriate level of 

security, given the potential 

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vulnerabilities and risks associated with 

these materials and thus proposes to 

retain this requirement in the NPRM. 

2. Division 1.4 Explosives 

Division 1.4 explosives are those that 

present a minor explosive hazard. The 

explosive effects are largely confined to 

the package, with no projection of 

fragments of appreciable size or range. 

This category of explosives includes 

detonators used to detonate the Division 

1.1, 1.2, and 1.2 explosives described 

above. Detonators are part of all IEDs. 

Over 500,000 tons of Division 1.4 

explosives are transported by rail and 

highway in the United States every year. 

Currently, the HMR require security 

plans for placarded amounts of Division 

1.4 explosives. Our evaluation suggests 

that most Division 1.4 explosives do not 

pose a significant transportation 

security risk. However, Division 1.4 

detonators are an attractive target for 

theft and use as initiating devices for 

IEDs. Therefore, in this NPRM, PHMSA 

proposes to require security plans only 

for shipments of any quantity of the 

following types of Division 1.4 

explosives (listed by proper shipping 

name and UN identification number) 

because they are difficult to produce, 

are key components to IEDs, and can be 

used as initiators for other explosives: 

(1) Detonator assemblies, non electric 

for blasting (UN 0361, UN 0500) 

(2) Detonators for ammunition (UN 

0365, UN 0366) 

(3) Detonators, electric, for blasting 

(UN 0255, UN 0456) 

(4) Detonators, non-electric, for 

blasting (UN 0267, UN 0455) 

(5) Cord, detonating, flexible (UN 

0289) 

(6) Cord, detonating, mild effect, 

metal clad (UN 0104) 

(7) Charges, shaped, flexible, linear 

(UN 0237) 

(8) Charges, shaped, without 

detonator (UN 0440, UN 0441) 

3. Division 1.5 Explosives 

Division 1.5 explosives are very 

insensitive explosives. This division 

covers substances that have a mass 

explosion hazard but are so insensitive 

that they pose very little probability of 

initiation or of transition from burning 

to detonation under normal conditions 

of transport. In practice, Division 1.5 

explosives are activated using a higherenergy explosive charge. Roughly 4.3 

million tons of Division 1.5 explosives 

are transported by rail and highway in 

the United States every year. 

Division 1.5 explosives could be used 

in attacks on people or infrastructure. 

While these explosives are insensitive to 

effects from normal transportation 

accident conditions, such as fire or 

violent shock, Division 1.5 explosives 

can be made to detonate if initiated by 

an explosive charge. The detonation 

effects, while less severe than those of 

Division 1.1, 1.2, and 1.3 explosives, are 

substantial. An example of a Division 

1.5 explosive is ammonium nitrate-fuel 

oil mixture (ANFO) that, with a 

properly designed explosive chain, can 

produce a substantial blast wave. 

Insensitive bulk blasting agents like 

ANFO have been used by terrorists in 

the past, most notably in the attack on 

the Murrah Federal Building in 

Oklahoma City. 

Currently, the HMR require security 

plans for placarded shipments of 

Division 1.5 explosives. In this NPRM, 

PHMSA proposes to require security 

plans for shipments of Division 1.5 

explosives transported in any quantity. 

4. Division 1.6 Explosives 

Division 1.6 explosives are extremely 

insensitive articles that do not have a 

mass explosion hazard and that contain 

only extremely insensitive detonating 

substances with only a negligible 

probability of accidental initiation or 

propagation. Currently, the HMR require 

security plans for shipments of 

placarded amounts of Division 1.6 

materials. However, our evaluation 

concludes that these materials do not 

pose a transportation security risk. 

Therefore, in this NPRM, PHMSA 

proposes to delete Division 1.6 

explosives from the list of materials for 

which security plans are required. 

5. Division 2.1 Flammable Gases 

Division 2.1 materials are flammable 

gases that may be transported at ambient 

pressure in a compressed or liquefied 

compressed state. Flammable gases will 

burn if mixed with an appropriate 

amount of air; confined burning of a 

flammable gas can lead to detonation. A 

commonly transported example of a 

flammable gas is propane, a liquefied 

compressed gas. When liquid propane is 

released into the atmosphere, it quickly 

vaporizes into the gaseous form that is 

its normal state at atmospheric pressure. 

This happens very rapidly, and in the 

process, the propane combines readily 

with air to form fuel-air mixtures that 

are ignitable over a range of 2.2 to 9.5 

percent propane by volume. If an 

ignition source is present in the vicinity 

of a highly flammable mixture, the 

vapor cloud ignites and burns very 

rapidly (characterized by some experts 

as ‘‘explosively’’). 

Over 120 million tons of flammable 

gas are used and distributed in the 

United States on an annual basis. A 

significant portion is transported by 

pipeline; however, more than 200,000 

carloads of these materials are 

transported by rail, and over 40 million 

tons are transported by highway each 

year. These materials generally are 

consumer products and can be 

purchased without special licenses or 

security procedures. 

Based on their hazard characteristics 

and the frequency with which propane 

and other Division 2.1 materials are 

transported in this country, PHMSA 

believes that materials meeting the 

definition for classification as Division 

2.1 materials present a sufficient 

security risk to warrant the imposition 

of security plan requirements. Terrorists 

overseas have used flammable gas in 

attacks on people and buildings, using 

an IED to detonate the gas. The resulting 

disbursement and ignition of the gas 

creates a significantly larger fireball and 

heat signature than typical of an 

explosive detonation. 

The HMR currently require security 

plans for shipments of Division 2.1 

materials in amounts that require 

placarding—that is, amounts greater 

than 119 gallons in a single packaging 

or container. In evaluating specific 

security risks associated with shipments 

of Division 2.1 materials, PHMSA has 

concluded that shipments in quantities 

less than 3,000 L in a single package do 

not pose a transportation security threat 

warranting development and 

implementation of security plans. As 

discussed above, the major security 

threat associated with these materials is 

their potential use to attack large groups 

of people and critical infrastructure; a 

substantial quantity is necessary to 

achieve a significant effect. Therefore, 

this NPRM proposes to require security 

plans for shipments of Division 2.1 

materials in amounts greater than or 

equal to 3,000 L in a single package or 

container. Security plans would not be 

required for shipments of Division 2.1 

materials in lesser quantities. 

6. Division 2.2 Compressed Gases 

Division 2.2 compressed gases are 

those that are neither flammable nor 

poisonous. Division 2.2 compressed 

gases are regulated for transportation 

safety purposes because they pose a 

physical hazard due to the increased 

pressure under which the material is 

maintained. In addition, Division 2.2 

compressed gases will displace oxygen 

if released in a confined space. Without 

oxygen, people very quickly lose 

consciousness and will die within three 

or four minutes. 

Currently, the HMR require shippers 

and carriers of Division 2.2 gases in 

amounts that require placarding to 

develop and implement security plans. 

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However, the hazard characteristics of 

these materials do not lend themselves 

to terrorist or criminal use. Therefore, 

PHMSA has concluded that Division 2.2 

compressed gases generally do not pose 

a security threat sufficient to warrant 

specific security planning measures. 

However, we are proposing to require 

security plans for oxygen and for other 

Division 2.2 gases that are oxidizers. In 

addition to being a Division 2.2 

material, oxygen and other oxidizers 

enhance the combustion of other 

materials. Oxygen and similar oxidizers 

will increase the likelihood and 

intensity of a fire or other chemical 

reaction. At least 7 million tons of 

oxygen are transported by motor carriers 

each year. Because of its oxidizing 

characteristics and the volume 

transported, large shipments of oxygen 

should be subject to security planning 

requirements. Therefore, this NPRM 

proposes to require shippers and 

carriers of oxygen in quantities greater 

than or equal to 3,000 L in a single 

package or container to develop and 

implement security plans. In addition, 

we are proposing to require security 

plans for shipments of any Division 2.2 

compressed gases with a subsidiary 

hazard of Division 5.1 oxidizer when 

transported in quantities of at least 

3,000 L in a single package or container. 

A list of such materials is provided 

below. 

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 

Carbon dioxide and oxygen mixtures, compressed ........................................................ 2.2 UN1014 2.2, 5.1 

Compressed gas, oxidizing, n.o.s. .................................................................................. 2.2 UN3156 2.2, 5.1 

Gas, refrigerated liquid, oxidizing, n.o.s. (cryogenic 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 

7. Division 2.3 and Division 6.1 PIH 

Materials 

Poison inhalation hazard (PIH) 

materials are gaseous or liquid materials 

that are known or presumed on the basis 

of tests to be toxic to humans and to 

pose a hazard to health in the event of 

a release during transportation. PIH 

materials form a toxic plume upon 

release into the atmosphere. Dispersion 

of these vapors can endanger significant 

numbers of people. Examples of PIH 

materials include phosgene, chlorine, 

hydrogen fluoride, and anhydrous 

ammonia. Each year about 100,000 

carloads of PIH materials are shipped by 

rail, and over 8 million tons of PIH 

materials are transported by highway. 

Because of their safety risks, PIH 

materials are among the most stringently 

regulated of all hazardous materials. 

The most infamous example of the 

safety risks posed by PIH materials is 

the 1984 accident in Bhopal, India, in 

which approximately 10,000 gallons of 

methyl isocyanate was released from a 

chemical plant, causing nearly 3,000 

deaths and more than 15,000 injuries. A 

PIH material (sarin) was released by 

terrorists in a Tokyo subway in 1995, 

resulting in 12 fatalities and hundreds 

of injuries. More recently, on January 6, 

2005, in Graniteville, South Carolina, a 

42-car freight train, carrying several tank 

cars of chlorine, collided with a 

standing train. The accident resulted in 

the puncture of one tank car and the 

release of a cloud of chlorine gas that 

killed nine people. In addition, 

terrorists in Iraq have employed tank 

trucks loaded with chlorine in several 

attacks. 

The transportation security risks of 

these materials have been amply 

demonstrated. The HMR currently 

require security plans for shipments of 

PIH materials in any quantity. We 

believe this requirement provides an 

appropriate level of security, given the 

potential vulnerabilities and risks 

associated with these materials. We are 

not proposing any changes to this 

requirement in this NPRM. 

8. Class 3 Flammable Liquids 

Flammable liquids burn vigorously, 

giving off large quantities of intense 

heat. Some may produce flammable 

atmospheres in confined spaces that, 

when ignited, could cause significant 

damage through deflagration or 

detonation. At least 37 million 

shipments of flammable liquids are 

moved in commerce in the United 

States every year, including upwards of 

24 million shipments of gasoline from 

bulk storage facilities through the 

distribution chain. 

Class 3 materials could be used in a 

terrorist attack to trigger a large, intense 

fire that could cause deaths, injuries, 

and damage to buildings and 

infrastructure. To be effective, such an 

attack would necessarily involve a large 

quantity of flammable liquid. The HMR 

currently require security plans for 

shipments of flammable liquids in 

amounts that require placarding. In this 

NPRM, PHMSA proposes to require 

security plans for shipments of Class 3 

materials in amounts greater than or 

equal to 3,000 L in a single package or 

container. Security plans would not be 

required for shipments in lesser 

quantities. 

9. Class 3 and Division 4.1 Desensitized 

Explosives 

Desensitized explosive substances are 

explosive materials that have been 

rendered non-explosive, according to 

the UN Manual of Tests and Criteria, by 

means of adding a diluting liquid or 

solid. The diluted substances, once 

tested and found not in Class 1, are 

regulated under the HMR as Division 

4.1 flammable solids or Class 3 

flammable liquids, depending on their 

physical state and hazardous properties. 

Water is the most commonly used 

diluent/desensitizing material, even if it 

is not miscible (dissolves in) with the 

explosive. Other diluents can include 

flammable or non-flammable liquids or 

solids that have no explosive properties 

in and of themselves, but prevent the 

ability of the explosive substance to 

initiate or sustain a detonation or 

deflagration. Plasticizing liquids like 

triacetin, dibutyl phthalate, vegetable 

oil, or paraffin oil are sometimes used. 

Simple solid diluents for explosives 

include bentonite clay, plastic granules, 

gypsum and waxes of various types. 

Some diluents like water are easily 

separated from the explosive and the 

explosive is easy to reconstitute by 

drying. Some diluents can be extracted 

by dissolving them away from the 

explosive (or vice versa) with various 

solvents. Large quantities of 

desensitized explosives are moved by 

commercial rail and motor carrier every 

year in support of mining and other 

industrial operations. 

Desensitized explosives have been 

used in terrorist attacks here and 

overseas. Urea nitrate, for example, has 

been used in a number of terrorist 

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attacks, most notably the first vehicleborne improvised explosive device 

attack on the World Trade Center in 

1993. Currently, the HMR require 

security plans for placarded shipments 

of Class 3 or Division 4.1 desensitized 

explosives. Because many desensitized 

explosives can be readily reconstituted 

into explosive materials, this NPRM 

proposes to require security plans for 

shipments of any quantity of Class 3 or 

Division 4.1 desensitized explosives. 

Other materials within Division 4.1 

would not be subject to the security 

plan requirement under this NPRM. 

10. Division 4.2 Spontaneously 

Combustible Material 

Division 4.2 spontaneously 

combustible materials are pyrophoric or 

self-heating materials. Division 4.2 

materials in Packing Group I are 

pyrophoric materials. A pyrophoric 

material is a liquid or solid that, even 

in small quantities and without an 

external ignition source, can ignite 

when it comes in contact with air. 

Division 4.2 materials in Packing 

Groups II and III are self-heating 

materials. A self-heating material is 

likely to self-heat when in contact with 

air. About one million tons of these 

materials are shipped in commerce each 

year. 

Currently, the HMR require security 

plans for placarded shipments of 

Division 4.2 materials. In this NPRM, 

PHMSA proposes to retain the security 

plan requirement for shipments of 3,000 

kg or more in a single packaging of 

Division 4.2 materials in Packing 

Groups I and II and to eliminate the 

security plan requirement for Division 

4.2 materials in Packing Group III 

because assessment indicates that the 

security risks associated with these 

materials are not sufficient to warrant 

development and implementation of 

security plans. 

11. Division 4.3 Dangerous When Wet 

Material 

Division 4.3 materials are water 

reactive—they emit flammable or toxic 

gases upon contact with water. The 

most hazardous Division 4.3 materials 

spontaneously ignite on contact with 

water. These are industrial chemicals 

easily available with no security 

restrictions. Roughly one million tons 

are shipped by highway each year, in 

addition to about 3,000 yearly 

shipments by rail. Division 4.3 materials 

may be of interest to terrorists planning 

a toxic gas attack on crowded venues 

like subways, buses, shopping centers, 

or movie theaters. 

Currently, the HMR require security 

plans for shipments of Division 4.3 

materials in any quantity. PHMSA 

believes this requirement provides an 

appropriate level of security, given the 

potential vulnerabilities and risks 

associated with these materials; 

therefore, this NPRM proposes to retain 

this requirement. 

12. Division 5.1 Oxidizing Material 

An oxidizer is a material that may 

cause or enhance the combustion of 

other materials, generally by yielding 

oxygen. Some oxidizers may explode 

when heated. Perchlorates are a subset 

of Division 5.1 materials. Both 

potassium perchlorate and ammonium 

perchlorate are used extensively in the 

pyrotechnics industry; ammonium 

perchlorate is a component of solid 

rocket fuel. Ammonium nitrate and 

ammonium nitrate fertilizers are also 

examples of oxidizing materials. As a 

strong oxidizing agent, ammonium 

nitrate makes an explosive mixture 

when combined with a fuel such as a 

hydrocarbon, usually diesel fuel (oil) or, 

sometimes, kerosene. 

Division 5.1 oxidizing materials are 

frequently used as components of IEDs. 

On April 19, 1995, Timothy McVeigh 

blew up the Murrah Federal Building in 

Oklahoma City with a bomb made from 

fertilizer and fuel oil. Division 5.1 

materials are industrial chemicals easily 

available with no security restrictions. 

Approximately nine million tons of 

Division 5.1 materials are shipped by 

motor carrier each year. The railroads 

transport about 50,000 shipments 

yearly. 

Currently, the HMR require security 

plans for placarded shipments of 

Division 5.1 materials. This NPRM 

proposes to require a security plan for 

shipments of Division 5.1 materials in 

Packing Groups I and II, perchlorates, 

and ammonium nitrate (including 

fertilizers) in a single packaging, in a 

quantity of 3,000 kg or more for solids 

or 3,000 L or more for liquids. Except 

for perchlorates and ammonium nitrate, 

we are proposing to eliminate the 

security plan requirement for Division 

5.1 materials in Packing Group III. 

13. Division 5.2 Organic Peroxides 

Organic peroxides are temperature 

sensitive, self-reacting materials that 

pose both a fire and explosion hazard, 

and may be both toxic and corrosive. 

Once an organic peroxide reaches a 

certain temperature (called the selfaccelerating decomposition temperature 

or SADT), its reaction will proceed 

uncontrollably. Organic peroxides are 

assigned to types A through G according 

to their reactivity. The most dangerous 

organic peroxides will detonate much 

like a low-energy Division 1.1 explosive. 

The most dangerous organic peroxides, 

assigned to Type A, are prohibited from 

transportation; those that are permitted 

in transportation are stringently 

regulated in terms of the quantities that 

may be transported and the type of 

packaging that may be utilized. Organic 

peroxides with SADTs in the ambient 

temperature range must be transported 

with temperature controls. Type B 

organic peroxides are the most reactive 

and, hence, the most dangerous organic 

peroxides permitted in transportation. 

Organic peroxides were used in the 

July 2005 terrorist bombings in London, 

and were planned for use by terrorists 

recently plotting to destroy aircraft 

flying from the United Kingdom to the 

United States. Terrorists call these 

materials ‘‘Mother of Satan,’’ an 

indication of their attractiveness as 

weapons or components of weapons. 

Minimal amounts of Division 5.2 

organic peroxides are transported on a 

regular basis. 

The HMR currently require security 

plans for liquid or solid Type B, 

temperature controlled Division 5.2 

organic peroxides transported in any 

quantity. PHMSA believes that this 

requirement provides an appropriate 

level of security, given the potential 

vulnerabilities and risks associated with 

these materials and proposes to retain 

this requirement in this NPRM. 

14. Division 6.1 Poisonous Materials 

(Other Than PIH Materials) 

Division 6.1 materials may be toxic to 

humans through oral ingestion or 

dermal exposure. As defined in the 

HMR, Division 6.1 materials have a 

range of toxicity values; the most toxic 

materials are assigned to Packing Group 

I. Division 6.1 materials can be used to 

contaminate food and water supplies; 

however, the effectiveness of such an 

attack would depend on the toxicity 

level of the material and the quantity 

utilized. More than eight million tons of 

these materials are shipped in 

commerce on a yearly basis. Of this, 

approximately two million tons are 

transported by highway; railroads move 

more than 30,000 shipments each year. 

The HMR currently require security 

plans for placarded shipments of 

Division 6.1 materials in all packing 

groups. In this NPRM, PHMSA proposes 

to require security plans for shipments 

of Division 6.1, Packing Group I 

materials in any amount and shipments 

of 3,000 L or more of Division 6.1, 

Packing Groups II and III materials. 

Security plans would not be required for 

shipments of Division 6.1, Packing 

Groups II and III in amounts less than 

3,000 L. 

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15. Division 6.2 Infectious Substances 

and Select Agents 

A Division 6.2 infectious substance is 

a material that contains a pathogen, 

which is a microorganism or other agent 

that can cause disease in humans or 

animals. The degree of risk associated 

with the transportation of a given 

Division 6.2 material depends on the 

nature of the material, including the 

virulence of the material, the way it is 

transmitted between humans or 

animals, the manner and ease of 

transmission between humans or 

animals, and the availability of 

preventive measures and treatment 

protocols. 

Select agents are infectious substances 

and toxins determined by the Center for 

Disease Control and United States 

Department of Agriculture to present a 

significant public health risk. Examples 

include ebola viruses, ricin, small pox, 

avian flu virus, foot-and-mouth disease 

virus, and anthrax. Use and movement 

of these materials are very strictly 

controlled. 

Because of the potential for select 

agents to be developed as weapons to 

cause serious and significant outbreaks 

of disease in humans and animals, the 

HMR require security plans for 

shipments. This requirement provides 

an appropriate level of security, given 

the potential vulnerabilities and risks 

associated with these materials. 

Therefore, PHMSA proposes to retain 

this requirement in this NPRM. 

However, in addition to the proposed 

requirement for pathogens that affect 

humans and animals, expansion of the 

security plan requirements to include 

pathogens that affect plants is also being 

considered. 

In accordance with 9 CFR part 121 we 

currently require security plans for 

biological agents and toxins with the 

potential to pose a severe threat to 

public health and safety, to animal 

health, or to animal products. As a 

result of concerns expressed by USDA’s 

Animal and Plant Health Inspection 

Service (APHIS), PHMSA believes that 

the expansion of the security plan 

requirements to include biological 

agents and toxins that have the potential 

to pose a severe threat to plant health 

or to plant products is appropriate. To 

achieve this, the current security plan 

requirements for Division 6.2 materials 

to include materials listed in 7 CFR part 

331 would be expanded. Part 331 

implements the provisions of the 

Agricultural Bioterrorism Protection Act 

of 2002 setting forth the requirements 

for possession, use, and transfer of 

select agents and toxins. APHIS 

supports the inclusion of select agent 

plant pathogens to the list Division 6.2 

materials requiring security plans. 

Stakeholders are urged to fully consider 

the implications of requiring security 

plans for select agent plant pathogens 

and to provide comments. 

16. Class 7 Radioactive Materials 

The United States transportation 

system annually moves millions of 

shipments of radioactive materials, the 

largest share consisting of small 

packages containing 

radiopharmaceuticals. The HMR 

security plan requirements currently 

apply to a person who offers for 

transportation or transports a highway 

route-controlled quantity (HRCQ) of a 

Class 7 (radioactive) material. The HMR 

also require security plans for any 

shipment that requires placarding under 

subpart F of part 172; this includes 

shipments of packages with radioactive 

Yellow III labels and exclusive use 

shipments of low specific activity 

material and surface contaminated 

objects. 

Our evaluation suggests that these 

thresholds must be expanded to include 

additional materials that, by virtue of 

their relative radiation levels and 

physical characteristics, pose similar 

security threats. Security concerns 

surrounding the transport of radioactive 

materials reflect their potential use in 

radiological dispersal devices (RDDs) (or 

‘‘dirty bombs’’), designed to spread 

radioactive material from the detonation 

of conventional explosives or other 

means, and radiological exposure 

devices (REDs), designed to expose 

people to radiation. The consequences 

of an RDD or RED event would depend 

on the specific radioactive material and 

quantity involved, the dispersal or 

exposure mechanism, and the 

environmental conditions. 

This NPRM proposes to adopt the 

security thresholds recommended by 

the International Atomic Energy Agency 

(IAEA) for radioactive materials in 

transport. These levels reflect research 

conducted by the U.S. Department of 

Energy, the U.S. Nuclear Regulatory 

Commission (NRC), and the IAEA on 

the attractiveness of radionuclides for 

malevolent use. The IAEA ‘‘Code of 

Conduct on the Safety and Security of 

Radioactive Sources’’ (IAEA/CODEOC/ 

2004) was revised to take account of 

international concerns following the 

events of September 11, 2001. The 

United States played a key role in 

revising the Code of Conduct and has 

been successful in gaining national 

commitments to the Code of Conduct by 

more than 80 countries. One of the 

essential features of the Code of 

Conduct is the cataloging of radioactive 

sources based on their relative potential 

to cause immediate injury or death. 

There are three categories that range 

from Category 1, posing the highest 

short-term exposure risk to Category 3, 

posing relatively little risk of permanent 

injury through brief exposure. 

The IAEA has used the Code of 

Conduct in the development of the 

recently issued Nuclear Security Series 

Guide, ‘‘Security of Radioactive Material 

during Transport’’ (in draft, expected to 

be issued 2009). This document is 

intended to provide IAEA Member 

States with guidance on implementing 

security measures for the transport of 

radioactive material. The threshold 

values outlined in this Notice were 

derived on the basis of the potential 

radiological consequences of malicious 

acts involving radioactive material. The 

Guide calls for enhanced security of 

radioactive material in transport, 

including adoption and compliance 

with security plans for consignments 

that include at least one package 

meeting one or both of the following 

activity threshold values: 

• For radioactive sources and other 

forms of radioactive material containing 

radionuclides covered by the Code of 

Conduct, Category 1 and Category 2; or 

• For all other radionuclides, 3000 A2

per package. 

The Code of Conduct values are 

universally understood and 

implemented for security of radioactive 

sources internationally as well as 

domestically by the NRC. For 

radionuclides not included in the Code 

of Conduct, a value of 3000 A2 can be 

used to identify packages that are 

subject to the enhanced transport 

security measures, since the A2 value of 

a radionuclide never exceeds the A1

value. 

17. Class 8 Corrosive Materials 

For purposes of the HMR, a Class 8 

corrosive material is a liquid or solid 

that causes full thickness destruction of 

human skin at the site of contact within 

a specified period of time. Class 8 

materials in Packing Group I cause full 

thickness destruction of human skin 

tissue within 60 minutes after an 

exposure time of 3 minutes. These 

materials can cause irreversible damage 

to human tissue. Examples include 

nitric acid, sodium hydroxide (caustic 

soda or lye), and hydrochloric acid. 

Class 8 materials also exhibit corrosive 

properties towards other materials, most 

notably aluminum and steel. 

Given the rate at which they react 

with human skin, aluminum and steel, 

these materials could be used to 

sabotage infrastructure, cause mass 

injury through proper dispersion, and 

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present a method for sabotaging other 

hazardous material containers such as 

cylinders, tank cars, and cargo tank 

motor vehicles. Approximately 90 

million tons of these materials are 

transported in commerce each year, 

including more than 50 million tons 

transported by motor carrier. Rail 

carriers annually move more than 

270,000 shipments of Class 8 corrosive 

materials. 

The HMR currently require security 

plans for placarded shipments of Class 

8 materials in all packing groups. In this 

NPRM, PHMSA proposes to retain 

security plan requirements for 

shipments of Class 8, Packing Group I 

materials in amounts greater than or 

equal to 3,000 L in a single package or 

container. Lesser amounts of PG I and 

PG II and III corrosive materials pose 

little, if any, security risk. Therefore, 

security plans would not be required for 

shipments of Class 8 materials, Packing 

Group I, in amounts less than 3,000 L, 

nor would security plans be required for 

shipments of Class 8 materials in 

Packing Groups II or III. 

18. Class 9 Materials 

Class 9 materials are materials that 

present a hazard during transportation 

but do not meet the definition of any 

other hazard class. Class 9 covers 

elevated temperature materials and 

materials that pose a risk to the 

environment—hazardous substances, 

hazardous wastes, and marine 

pollutants. Although it is possible that 

Class 9 materials could be deliberately 

used to contaminate the environment, 

the likelihood of such a terrorist action 

is remote because of the quantities of 

material that would be required and the 

relatively minor result that would be 

achieved. 

Currently, the HMR require security 

plans for Class 9 materials transported 

in a bulk packaging with a capacity 

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

gallons) for liquids or gases or greater 

than 13.24 cubic meters (468 cubic feet) 

for solids. This NPRM proposes to 

eliminate this requirement; the security 

risks associated with the transportation 

of these materials are not sufficient to 

warrant development and 

implementation of security plans. 

IV. Additional Revisions to Security 

Requirements 

This NPRM also proposes a number of 

amendments to clarify and enhance 

current security requirements, including 

requirements for security plans and for 

training. These proposals are detailed 

below. 

A. Revisions to Security Plan 

Requirements 

Section 172.802 of the HMR 

establishes the components that must be 

included as part of a hazardous 

materials transportation security plan. 

Paragraph (a) of this section requires 

that a security plan include an 

assessment of possible transportation 

security risks associated with the 

hazardous materials covered by the 

security plan and appropriate measures 

to address the identified security risks. 

This assessment is part of the plan and 

must be in writing and maintained with 

the plan in accordance with 

§ 172.802(b). It has come to PHMSA’s 

attention that there is some confusion as 

to whether the security risk assessment 

must be in writing. To clarify this, the 

NPRM proposes to specify that the 

security plan, including the security risk 

assessment, must be in writing and must 

be retained for as long as the plan 

remains in effect. 

In addition, the NPRM proposes to 

clarify the application of the required 

risk assessment to site-specific and 

location-specific security issues. As 

specified in the proposed rule text, the 

risk assessment must include an 

assessment of specific risks that exist on 

specific routes or in specific locations. 

Also proposed is a revised paragraph 

(b) to clarify the following security plan 

requirements: 

• The security plan must identify, by 

job title, the senior management official 

responsible for the overall development 

and implementation of the plan. 

• The security plan must be reviewed 

at least annually and updated if 

circumstances change (e.g., acquisitions, 

mergers, operating rights, materials 

transported, expanded or reduced 

service levels). 

• The security plan must include a 

plan for training hazmat employees. 

• The security plan must include 

security duties for each position or 

department that is responsible for the 

plan’s implementation and the process 

for notifying employees when specific 

elements of the security plan must be 

implemented. 

B. Security Training 

Companies that are subject to the 

security plan requirements in subpart I 

of part 172 are required to provide indepth training concerning their security 

plan and its implementation. The indepth security training must cover 

company security objectives, specific 

security procedures, employee 

responsibilities, actions to take in the 

event of a security breach, and the 

organizational security structure. As 

written, the in-depth security-training 

requirement appears to apply to all 

hazmat employees; this was not the 

intention. The in-depth security training 

requirement was meant to apply only to 

hazmat employees who perform 

regulated functions related to the 

transportation of the materials covered 

by the security plan or who are 

responsible for implementing the 

security plan. This NPRM proposes to 

clarify the in-depth security-training 

requirement by specifying its 

application to hazmat employees who 

are directly involved with implementing 

security plans. 

As discussed above, this NPRM 

proposes to require security plans to be 

reviewed at least once each year and 

updated as necessary to reflect changing 

circumstances. The in-depth security 

training requirement must be provided 

to hazmat employees responsible for the 

plan’s implementation once every three 

years, in accordance with § 172.704(c). 

This NPRM also proposes to require indepth security training once every three 

years or, if the security plan is revised 

during the recurrent training cycle, 

within 90 days of implementation of the 

revised security plan. In this way, those 

hazmat employees responsible for 

implementing the security plan will be 

trained in a timely manner concerning 

any changes or revisions to the plan. 

C. Coordination With TSA 

DHS is the lead Federal agency for 

transportation and hazardous materials 

security. DOT consults and coordinates 

on security-related hazardous materials 

transportation matters to ensure 

consistency with DHS requirements and 

broader security objectives. Both 

departments work to ensure that the 

regulated industry is not confronted 

with inconsistent government-issued 

security guidance or requirements. 

The Federal hazardous materials 

transportation law (Federal hazmat law, 

49 U.S.C. 5101 et seq.) authorizes the 

Secretary of Transportation to 

‘‘prescribe regulations for the safe 

transportation, including security, of 

hazardous material in intrastate, 

interstate, and foreign commerce.’’ The 

Secretary has delegated this authority to 

PHMSA. Authority to enforce the HMR 

has been delegated to the FAA ‘‘with 

particular emphasis on the 

transportation or shipment of hazardous 

materials by air;’’ the FRA ‘‘with 

particular emphasis on the 

transportation or shipment of hazardous 

materials by railroad;’’ PHMSA ‘‘with 

particular emphasis on the shipment of 

hazardous materials and the 

manufacture, fabrication, marking, 

maintenance, reconditioning, repair or 

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test of multi-modal containers that are 

represented, marked, certified, or sold 

for use in the transportation of 

hazardous materials;’’ and the FMCSA 

‘‘with particular emphasis on the 

transportation or shipment of hazardous 

materials by highway.’’ 49 CFR part 1, 

subpart C. Thus, enforcement of the 

security plan and training regulations is 

shared among the DOT operating 

administrations, with each placing 

particular emphasis on their respective 

authorities. 

Under Section 101(a) of the Aviation 

and Transportation Security Act (ATSA) 

(codified at 49 U.S.C. 114) and 49 CFR 

1502.1, TSA has broad responsibility 

and authority for ‘‘security in all modes 

of transportation * * *’’ TSA has 

additional responsibilities for surface 

transportation security, as specified in 

49 U.S.C. 114(f), through delegation by 

the Secretary of Homeland Security 

under the 9/11 Commission Act. 

In sum, TSA’s authority with respect 

to transportation security is 

comprehensive and supported with 

specific powers related to the 

development and enforcement of 

regulations, security directives, security 

plans, and other requirements. Under 

this authority, TSA may identify a 

security threat to any mode of 

transportation, develop a measure for 

dealing with that threat, and enforce 

compliance with that measure. 

Moreover, in addition to inspecting for 

compliance with specific regulations, 

TSA may conduct general security 

assessments. Under its authority, TSA 

may assess threats to transportation 

security; monitor the state of awareness 

and readiness throughout the various 

sectors; determine the adequacy of an 

owner or operator’s transportationrelated security measures; and identify 

security gaps. TSA, for example, could 

inspect and evaluate for emerging or 

potential security threats based on 

intelligence indicators to determine 

whether the owner or operator’s 

strategies and security measures are 

likely to deter deficiencies. 

When PHMSA adopted its security 

regulations, it was stated that these 

regulations were ‘‘the first step in what 

may be a series of rulemakings to 

address the security of hazardous 

materials shipments.’’ 68 FR 14511. 

PHMSA also noted that TSA ‘‘is 

developing regulations that are likely to 

impose additional requirements beyond 

those established in this final rule’’ and 

stated that it would ‘‘consult and 

coordinate with TSA concerning 

security-related hazardous materials 

transportation regulations * * *’’ Id. In 

this regard, note that under § 1512 of the 

9/11 Commission Act and delegated 

authority from the Secretary of 

Homeland Security, TSA must 

promulgate regulations establishing 

standards and guidelines for developing 

and implementing vulnerability 

assessments and security plans for 

‘‘high-risk’’ railroad carriers. After TSA 

promulgates these regulations, these 

railroad carriers would be required to 

submit vulnerability assessments and 

security plans to DHS for review and 

approval. In addition, § 1517 of the 9/11 

Commission Act requires DHS to 

develop and issue regulations for a 

training program to prepare railroad 

frontline employees for potential 

security threats and conditions. 

The TSA regulations are intended to 

supersede the PHMSA security plan and 

security training requirements for 

railroad carriers that will be subject to 

the TSA regulations. Once these TSA 

regulations have been issued, the 

PHMSA security plan and security 

training requirements for railroad 

carriers that will be subject to the TSA 

regulations will be reevaluated and 

revised as appropriate. 

We worked closely with TSA to align 

our proposed list of materials subject to 

security plans and the TSA Highway 

Security Sensitive Hazardous Materials 

(HSSM) list. TSA’s HSSM list is to be 

used in conjunction with voluntary 

security practices (referred to as 

Security Action Items or SAIs) to 

increase the security of certain 

hazardous materials transported by 

motor vehicle. As a result, the PHMSA 

proposal and the TSA list are very 

similar; however, there are some minor 

differences. As provided below, in four 

instances our proposal is more 

restrictive than the TSA list. 

1. We require all materials that meet 

the definition of a PIH material to have 

a security plan; TSA set thresholds of 5 

lbs for Hazard Zone A and B and bulk 

for Zones C and D. 

2. We include flammable liquids in 

PG III (i.e., diesel fuel, kerosene, jet fuel, 

fuel oil) and TSA does not. 

3. Our proposal includes any quantity 

of desensitized explosives in Division 

4.1 and TSA lists materials by 

identification number. 

4. For infectious substances, the TSA 

list does not include the USDA list of 

select agents or overlapping agents and 

toxins in 43 CFR 73.4. 

The security plan requirements 

established by the HMR are to be used 

as a baseline for security planning. 

Though there are some minor 

differences between our proposal and 

the TSA list, the overall approach taken 

by the two agencies in identifying 

materials that should be subject to 

security based requirements is 

consistent and supported by industry 

associations, offerors, carriers, and 

private citizens, as evidenced by the 

comments submitted in response to our 

ANPRM. Please submit any additional 

comments regarding the alignment of 

our proposed list with the TSA HSSM 

list during the comment period for this 

NPRM. Interested persons may submit 

their comments through the Federal 

eRulemaking Portal (on the Web site 

http://www.regulations.gov) under 

PHMSA docket number PHMSA–06–

25885 by the date provided in the DATES

section of this rulemaking. 

TSA, PHMSA, FMCSA, and FRA will 

continue to work together in the 

development of hazardous materials 

transportation security planning 

regulations and standards. TSA may 

issue security planning regulations in 

the future; if such an action is taken we 

will reconsider our security plan 

requirements for the motor carriers that 

would be subject to TSA’s regulations. 

As TSA develops security planning 

regulations applicable to hazardous 

materials, TSA will carefully consider 

how those regulations should relate to 

the HMR and will work with PHMSA, 

FMCSA, and FRA to avoid unnecessary 

duplication. 

As it implements its transportation 

security authority, TSA may identify a 

need to review transportation security 

plans developed and implemented in 

accordance with subpart I of part 172 of 

the HMR. Under ATSA, TSA has the 

authority to ‘‘ensure the adequacy of 

security measures for the transportation 

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

‘‘oversee the implementation, and 

ensure the adequacy, of security 

measures at airports and other 

transportation facilities’’ 49 U.S.C. 

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

this regulation must allow TSA and 

other authorized DHS officials, at any 

time and in a reasonable manner, 

without advance notice, to enter and 

inspect and must provide TSA 

inspectors with a copy of any securityrelated document required by the HMR 

or pursuant to TSA’s statutory or 

regulatory authorities. This includes 

security plans and training documents 

required under 49 CFR part 172. 

However, TSA does not have the 

authority to directly enforce DOT safety 

or security requirements established in 

the HMR. If, in the course of an 

inspection of a railroad or motor carrier 

or a rail or highway hazardous material 

shipper or receiver, TSA identifies 

evidence of non-compliance with a DOT 

safety or security regulation, TSA will 

provide the information to FRA (for rail) 

or FMCSA (for motor carriers) and 

PHMSA for appropriate action. 

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Similarly, if a DOT inspector identifies 

evidence of non-compliance with a TSA 

security regulation or identifies other 

security deficiencies, DOT will provide 

the information to TSA for appropriate 

action. 

V. Regulatory Analyses and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This rulemaking is considered a 

significant regulatory action under 

section 3(f) of Executive Order 12866 

and the Regulatory Policies and 

Procedures of the Department of 

Transportation (44 FR 11032). This 

NPRM was reviewed by the Office of 

Management and Budget. 

Executive Order 12866 requires 

agencies to regulate in the ‘‘most costeffective manner,’’ to make a ‘‘reasoned 

determination that the benefits of the 

intended regulation justify its costs,’’

and to develop regulations that ‘‘impose 

the least burden on society.’’ Because 

this NPRM proposes to narrow the list 

of materials for which security plans are 

required, it will reduce the number of 

shippers and carriers required to 

develop security plans in accordance 

with subpart I of part 172 of the HMR. 

It is estimated that about 10,119 entities 

would no longer be subject to current 

security plan and associated in-depth 

training requirements. The annual 

benefit resulting from the proposals in 

this NPRM is estimated to be about $3.6 

million—$2.8 million in avoided costs 

related to development of security plans 

and $0.8 million in cost savings for 

associated training. Evaluated over a 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 proposed rule has been analyzed 

in accordance with the principles and 

criteria set forth in Executive Order 

13132 (‘‘Federalism’’). Any rule 

resulting from this rulemaking will 

preempt State, local and Indian tribe 

requirements but will not have 

substantial direct effects on the States, 

the relationship between the national 

government and the States, or the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

C. Executive Order 13175 

This proposed rule was analyzed in 

accordance with the principles and 

criteria set forth in Executive Order 

13175 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’). 

Because this proposed rule does not 

have tribal implications, and does not 

impose substantial direct compliance 

costs, the funding and consultation 

requirements of Executive Order 13175 

do not apply. 

D. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

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

review regulations to assess their impact 

on small entities unless the agency 

determines that a rule is not expected to 

have a significant impact on a 

substantial number of small entities. 

PHMSA has determined that, while the 

requirements of the proposed rule 

would apply to a substantial number of 

small entities, the economic impact on 

those small entities would not be 

substantial. 

As indicated above, about 10,119 

entities would no longer be subject to 

current security plan and in-depth 

training requirements if the proposals in 

this NPRM are adopted. These entities 

are persons who offer for transportation 

or transport hazardous materials in 

commerce. Unless alternative 

definitions have been established by the 

agency in consultation with the Small 

Business Administration (SBA), the 

definition of ‘‘small business’’ has the 

same meaning as under the Small 

Business Act. Since no such special 

definition has been established, the 

thresholds published by SBA for 

industries subject to the HMR are 

utilized. Just under 90% of shippers and 

carriers affected by the proposals in this 

NPRM are small businesses. 

Based on an analysis of the potential 

benefits of the proposals in this NPRM, 

PHMSA concludes that, while the 

proposed rule would apply to a 

substantial number of small entities, it 

will not have a significant economic 

impact on those small entities. For a 

small business that would no longer be 

subject to the security plan 

requirements and associated in-depth 

training requirements, the cost savings 

would total between $332 and $437 

annually. 

E. Paperwork Reduction Act 

PHMSA currently has an approved 

information collection under OMB 

Control Number 2137–0612, 

‘‘Hazardous Materials Security Plans’’

with an expiration date of May 31, 2009. 

This NPRM may result in a decrease in 

the annual burden and costs under OMB 

Control Number 2137–0612 due to 

proposed changes to revise the list of 

materials for which hazardous materials 

transportation security plans are 

required. 

Under the Paperwork Reduction Act 

of 1995, no person is required to 

respond to an information collection 

unless it has been approved by OMB 

and displays a valid OMB control 

number. Section 1320.8(d), title 5, Code 

of Federal Regulations requires that 

PHMSA provide interested members of 

the public and affected agencies an 

opportunity to comment on information 

and recordkeeping requests. 

This notice identifies a revised 

information collection request that 

PHMSA will submit to OMB for 

approval based on the requirements in 

this proposed rule. PHMSA has 

developed burden estimates to reflect 

changes in this proposed rule. PHMSA 

estimates that the information collection 

and recordkeeping burden as proposed 

in this rule would be decreased as 

follows: 

OMB Control No. 2137–0612: 

Decrease in Annual Number of 

Respondents: 10,119. 

Decrease in Annual Responses: 

10,119. 

Decrease in Annual Burden Hours: 

55,655. 

Decrease in Annual Burden Costs: 

$2,782,750. 

PHMSA specifically requests 

comments on the information collection 

and recordkeeping burdens associated 

with developing, implementing, and 

maintaining these requirements for 

approval under this proposed rule. 

Requests for a copy of this 

information collection should be 

directed to Deborah Boothe or T. Glenn 

Foster, Office of Hazardous Materials 

Standards (PHH–11), Pipeline and 

Hazardous Materials Safety 

Administration, 1200 New Jersey 

Avenue, SE., Washington, DC 20590–

0001, Telephone (202) 366–8553. 

Address written comments to the 

Dockets Unit as identified in the 

ADDRESSES section of this rulemaking. 

We must receive comments regarding 

information collection burdens prior to 

the close of the comment period 

identified in the DATES section of this 

rulemaking. In addition, you may 

submit comments specifically related to 

the information collection burden to the 

PHMSA Desk Officer, Office of 

Management and Budget, at fax number 

202–395–6974. If these proposed 

requirements are adopted in a final rule, 

PHMSA will submit the revised 

information collection and 

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recordkeeping requirements to OMB for 

approval. 

F. Regulation Identifier Number (RIN) 

A regulation identifier number (RIN) 

is assigned to each regulatory action 

listed in the Unified Agenda of Federal 

Regulations. The Regulatory Information 

Service Center publishes the Unified 

Agenda in April and October of each 

year. The RIN contained in the heading 

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

Agenda. 

G. Unfunded Mandates Reform Act 

This proposed rule does not impose 

unfunded mandates under the 

Unfunded Mandates Reform Act of 

1995. It does not result in costs of $132 

million or more to either State, local or 

tribal governments, in the aggregate, or 

to the private sector, and is the least 

burdensome alternative that achieves 

the objective of the rule. 

H. Environmental Assessment 

The National Environmental Policy 

Act (NEPA), §§ 4321–4375, requires 

Federal agencies to analyze proposed 

actions to determine whether the action 

will have a significant impact on the 

human environment. The Council on 

Environmental Quality (CEQ) 

regulations order Federal agencies to 

conduct an environmental review 

considering (1) the need for the 

proposed action, (2) alternatives to the 

proposed action, (3) probable 

environmental impacts of the proposed 

action and alternatives, and (4) the 

agencies and persons consulted during 

the consideration process. 40 CFR 

§ 1508.9(b). 

Purpose and Need. The current 

security plan requirements, which 

became effective on September 25, 2003, 

apply to shipments of placarded loads 

of hazardous materials and to select 

agents. PHMSA has received two 

petitions for rulemaking requesting a 

review and reevaluation of the 

requirements. The petitioners cite 

several examples of hazardous materials 

that, based on hazard class and quantity, 

require placarding under the HMR and, 

therefore, are subject to security plan 

requirements. Examples include 

automobile batteries, inks, paint, and 

flavoring extracts. Petitioners suggest 

that it is highly unlikely a terrorist 

would use such materials to cause loss 

of life, destruction of property, or 

damage to the environment. 

PHMSA agrees with the petitioners 

that the list of materials for which 

security plans are required should be 

revised. Since 2003, both the industry 

and the government have had four years 

of experience in evaluating security 

risks associated with specific hazardous 

materials and transportation 

environments and identifying 

appropriate measures to address those 

risks. The revisions proposed in this 

NPRM are based on an evaluation of 

possible security threats posed by 

specific types and classes of hazardous 

materials and are intended to ensure 

that the security plan requirement 

applies only to those materials that 

present a significant security threat in 

transportation based on the hazard class 

and packing group of the material and 

the quantity or volume transported. 

Alternatives. PHMSA considered the 

following alternatives: 

No action—Under this alternative, 

security plan requirements would 

continue to apply to shipments of 

placarded loads of hazardous materials 

and to select agents, including some 

materials that do not pose a 

transportation security risk. This 

alternative is not risk-based and results 

in the over-regulation of materials that 

are not likely to be used in a terrorist or 

criminal act. This action is not 

recommended. 

Require security plans only for 

materials subject to FMCSA permit 

regulations—Under this alternative, 

security plan requirements would apply 

only to shipments of hazardous 

materials subject to safety permit 

requirements in accordance with 

FMCSA regulations at 49 CFR part 385. 

A safety permit is required for certain 

shipments of radioactive materials, 

explosives, PIH materials, and 

compressed or refrigerated methane or 

liquefied natural gas. This alternative 

would not include a number of 

materials that pose a significant security 

risk, including flammable gases, 

flammable liquids, desensitized 

explosives, dangerous when wet 

materials, oxidizing materials, organic 

peroxides, poisons, and select agents. 

Selection of this alternative could result 

in significant adverse environmental 

impacts as a result of a terrorist or 

criminal action using such materials. 

This alternative is not recommended. 

Adopt UN Recommendations Criteria 

for Security Plan Requirements—Under 

this alternative, security plans would be 

required for the materials identified in 

the UN Recommendations as high 

consequence dangerous goods—that is, 

materials with the potential for mis-use 

in a terrorist incident that may produce 

serious consequences such as mass 

casualties or mass destruction. The UN 

list of high consequence dangerous 

goods includes most of the hazardous 

materials that pose a significant 

transportation security risk. The 

materials that would no longer be 

subject to security planning 

requirements are unlikely to be targeted 

for criminal or terrorist use; therefore, 

the adverse environmental 

consequences of this alternative are 

expected to be minimal. With some 

modifications, as detailed in this NPRM, 

this is the selected alternative. 

Analysis of Environmental Impacts. 

Hazardous materials are substances that 

may pose a threat to public safety or the 

environment during transportation 

because of their physical, chemical, or 

nuclear properties. The hazardous 

material regulatory system is a risk 

management system that is preventionoriented and focused on identifying a 

safety hazard and reducing the 

probability and quantity of a hazardous 

material release. Hazardous materials 

are categorized by hazard analysis and 

experience into hazard classes and 

packing groups. The regulations require 

each shipper to classify a material in 

accordance with these hazard classes 

and packing groups; the process of 

classifying a hazardous material is itself 

a form of hazard analysis. Further, the 

regulations require the shipper to 

communicate the material’s hazards 

through use of the hazard class, packing 

group, and proper shipping name on the 

shipping paper and the use of labels on 

packages and placards on transport 

vehicles. Thus the shipping paper, 

labels, and placards communicate the 

most significant findings of the 

shipper’s hazard analysis. A hazardous 

material is assigned to one of three 

packing groups based upon its degree of 

hazard—from a high hazard Packing 

Group I to a low hazard Packing Group 

III material. The quality, damage 

resistance, and performance standards 

of the packaging in each packing group 

are appropriate for the hazards of the 

material transported. 

Releases of hazardous materials, 

whether caused by accident or 

deliberate sabotage, can result in 

explosions or fires. Radioactive, toxic, 

infectious, or corrosive hazardous 

materials can have short- or long-term 

exposure effects on humans or the 

environment. Generally, however, the 

hazard class definitions are focused on 

the potential safety hazards associated 

with a given material or type of material 

rather than the environmental hazards 

of such materials. 

Under the HMR, hazardous materials 

may be transported by aircraft, vessel, 

rail, and highway. The potential for 

environmental damage or contamination 

exists when packages of hazardous 

materials are involved in accidents or en 

route incidents resulting from cargo 

shifts, valve failures, package failures, 

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loading, unloading, collisions, handling 

problems, or deliberate sabotage. The 

release of hazardous materials can cause 

the loss of ecological resources and the 

contamination of air, aquatic 

environments, and soil. Contamination 

of soil can lead to the contamination of 

ground water. For the most part, the 

adverse environmental impacts 

associated with releases of most 

hazardous materials are short-term 

impacts that can be reduced or 

eliminated through prompt clean-up/ 

decontamination of the accident scene. 

The security plan requirements in 

subpart I of part 172 of the HMR are 

intended to reduce the potentially 

catastrophic consequences, including 

adverse environmental consequences, of 

a criminal or terrorist incident involving 

hazardous materials in transportation. A 

security plan must include an 

assessment of possible transportation 

security risks and appropriate measures 

to address the assessed risks. Specific 

measures implemented as part of the 

plan may vary with the level of threat 

at a particular time. At a minimum, the 

security plan must address personnel 

security, unauthorized access, and en 

route security. For personnel security, 

the plan must include measures to 

confirm information provided by job 

applicants for positions involving access 

to and handling of the hazardous 

materials covered by the plan. For 

unauthorized access, the plan must 

include measures to address the risk of 

unauthorized persons gaining access to 

materials or transport conveyances 

being prepared for transportation. For 

en route security, the plan must include 

measures to address security risks 

during transportation, including the 

security of shipments stored temporarily 

en route to their destinations. 

This NPRM proposes to narrow the 

list of materials for which a security 

plan would be required to ensure that 

the security plan regulations are 

targeted to those materials that pose a 

significant transportation security risk. 

It is possible to envision scenarios in 

which hazardous materials other than 

those identified in this NPRM could be 

used to inflict serious damage in a 

terrorist or criminal incident. However, 

our assessment of the security risks 

associated with such materials, detailed 

elsewhere in this preamble, suggests 

that they are unlikely to be targeted. 

PHMSA therefore concludes that there 

are no significant environmental 

impacts associated with this NPRM. 

Consultation and Public Comment. As 

discussed above, PHMSA published an 

ANPRM and hosted a public meeting to 

solicit public comments concerning 

whether the list of materials for which 

security plans are currently required 

should be modified. Commenters were 

asked to address a number of issues 

related to the identification of materials 

that pose a security threat sufficient to 

justify preparation and implementation 

of a security plan. Thirty-four comments 

were received from industry 

associations, shippers, carriers, and 

private citizens. In addition, six people 

made presentations at the public 

meeting. 

Interested persons are invited to 

submit comments on the potential 

environmental, safety, and other 

impacts of the proposals in this NPRM. 

List of Subjects in 49 CFR Part 172 

Hazardous materials transportation, 

Hazardous waste, Labeling, Packaging 

and containers, Reporting and 

recordkeeping requirements. 

In consideration of the foregoing, 

PHMSA is proposing to amend title 49 

chapter I, subchapter C, as follows: 

PART 172—HAZARDOUS MATERIALS 

TABLE, SPECIAL PROVISIONS, 

HAZARDOUS MATERIALS 

COMMUNICATIONS, EMERGENCY 

RESPONSE INFORMATION, AND 

TRAINING REQUIREMENTS 

1. The authority citation for part 172 

continues to read as follows: 

Authority: 49 U.S.C. 5101–5128, 44701; 49 

CFR 1.53. 

2. In § 172.704, paragraphs (a)(5), and 

(c)(2) are revised to read as follows: 

§ 172.704 Training requirements. 

(a)* * * 

(5) In-depth security training. Each 

hazmat employee of a person required 

to have a security plan in accordance 

with subpart I of this part who handles 

hazardous materials covered by the 

plan, performs a regulated function 

related to the hazardous materials 

covered by the plan, or is responsible 

for implementing the plan must be 

trained concerning the security plan and 

its implementation. Security training 

must include company security 

objectives, organizational security 

structure, specific security procedures, 

specific security duties and 

responsibilities for each employee, and 

specific actions to be taken by each 

employee in the event of a security 

breach. 

* * * * * 

(c)* * * 

(2) Recurrent training. A hazmat 

employee must receive the training 

required by this subpart at least once 

every three years. For in-depth security 

training required under paragraph (a)(5) 

of this section, a hazmat employee must 

be trained at least once every three years 

or, if the security plan for which 

training is required is revised during the 

three-year recurrent training cycle, 

within 90 days of implementation of the 

revised plan. 

* * * * * 

3. In § 172.800, paragraph (b) is 

revised to read as follows: 

§ 172.800 Purpose and applicability. 

* * * * * 

(b) Applicability. Each person who 

offers for transportation in commerce or 

transports in commerce one or more of 

the following hazardous materials must 

develop and adhere to a transportation 

security plan for hazardous materials 

that conforms to the requirements of 

this subpart: 

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

or 1.3 material; 

(2) Any quantity of a Division 1.4 

material, identified in the Hazardous 

Materials Table in § 172.101 of this part 

with UN identification numbers UN 

0104, UN 0237, UN 0255, UN 0267, UN 

0289, UN 0361, UN 0365, UN 0366, UN 

0440, UN 0441, UN 0455, UN 0456, and 

UN 0500; 

(3) Any quantity of a Division 1.5 

material; 

(4) 3,000 L (793 gallons) or more in a 

single packaging of a Division 2.1 

material; 

(5) 3,000 L (793 gallons) or more in a 

single packaging of a Division 2.2 

material with a subsidiary hazard of 5.1; 

(6) Any quantity of a material 

poisonous by inhalation, as defined in 

§ 171.8 of this subchapter; 

(7) 3,000 L (793 gallons) or more in a 

single packaging of a Class 3 material; 

(8) Any quantity of a desensitized 

explosive meeting the definition of a 

Class 3 or Division 4.1 material; 

(9) 3,000 kg (6,614 lbs.) or more in a 

single packaging of a Division 4.2 

material meeting the criteria for Packing 

Group I or II; 

(10) Any quantity of a Division 4.3 

material; 

(11) 3,000 L (793 gallons) or more in 

a single packaging of a Division 5.1 

liquid meeting the criteria for Packing 

Group I or II; 

(12) 3,000 L (793 gallons) of Division 

5.1 perchlorates, ammonium nitrate, 

ammonium nitrate fertilizers, or 

ammonium nitrate emulsions or 

suspensions or gels; 

(13) Any quantity of an organic 

peroxide, Type B, liquid or solid, 

temperature controlled; 

(14) Any quantity of a Division 6.1 

material meeting the criteria for Packing 

Group I; 

(15) 3,000 L (793 gallons) or more in 

a single packaging of a Division 6.1 

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52572 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 

material meeting the criteria for Packing 

Group II or III; 

(16) A select agent or toxin regulated 

by the Centers for Disease Control and 

Prevention under 42 CFR part 73 or the 

United States Department of Agriculture 

under 9 CFR part 121; 

(17) 3000 A2 in a single package of 

Class 7 material or the following 

radionuclides at the thresholds 

indicated: 

Radionuclide Transport security 

threshold (TBq) 

Am-241 ..................... 0.6 

Au-198 ...................... 2 

Cd-109 ...................... 200 

Cf-252 ....................... 0.2 

Cm-244 ..................... 0.5 

Co-57 ........................ 7 

Co-60 ........................ 0.3 

Cs-137 ...................... 1 

Fe-55 ........................ 8000 

Ge-68 ........................ 7 

Gd-153 ...................... 10 

Ir-192 ........................ 0.8 

Ni-63 ......................... 600 

Pd-103 ...................... 900 

Pm-147 ..................... 400 

Po-210 ...................... 0.6 

Pu-238 ...................... 0.6 

Pu-239 ...................... 0.6 

Ra-226 ...................... 0.4 

Ru-106 ...................... 3 

Se-75 ........................ 2 

Sr-90 ......................... 10 

Tl-204 ........................ 200 

Tm-170 ..................... 200 

Yb-169 ...................... 3 

For mixtures of radionuclides, 

determination of whether or not the 

transport security radioactivity 

threshold has been met or exceeded can 

be calculated by summing the ratios of 

activity present for each radionuclide 

divided by the transport security 

threshold for that radionuclide. If the 

sum of the fractions is less than 1, then 

the radioactivity threshold for the 

mixture has not been met or exceeded. 

This calculation can be made with the 

formula: 

A Ti i

i

∑( ) / < 1

Where: 

Ai = activity of radionuclide i that is present 

in a package (TBq) 

Ti = transport security threshold for 

radionuclide i (TBq) 

(18) 3,000 L (793 gallons) or more in 

a single packaging of a Class 8 material 

meeting the criteria for Packing Group I. 

* * * * * 

4.1. In § 172.802, revise paragraph (a) 

introductory text, redesignate paragraph 

(b) as paragraph (c) and revise it, and 

add new paragraphs (b) and (d), to read 

as follows: 

§ 172.802 Components of a security plan. 

(a) The security plan must include an 

assessment of transportation security 

risks for shipments of the hazardous 

materials listed in § 172.800, including 

site-specific or location-specific security 

risks, and appropriate measures to 

address the assessed risks. Specific 

measures put into place by the plan may 

vary commensurate with the level of 

threat at a particular time. At a 

minimum, a security plan must include 

the following elements: 

* * * * * 

(b) The security plan must also 

include the following: 

(1) Identification by job title of the 

senior management official responsible 

for overall development and 

implementation of the security plan; 

(2) Security duties for each position or 

department that is responsible for 

implementing the plan or a portion of 

the plan and the process of notifying 

employees when specific elements of 

the security plan must be implemented; 

and 

(3) A plan for training hazmat 

employees in accordance with § 172.704 

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

(c) The security plan, including the 

transportation security risk assessment 

developed in accordance with 

paragraph (a) of this section, must be in 

writing and must be retained for as long 

as it remains in effect. The security plan 

must be reviewed at least annually and 

revised and/or updated as necessary to 

reflect changing circumstances. The 

most recent version of the security plan, 

or portions thereof, must be available to 

the employees who are responsible for 

implementing it, consistent with 

personnel security clearance or 

background investigation restrictions 

and a demonstrated need to know. 

When the security plan is updated or 

revised, all employees responsible for 

implementing it must be notified and all 

copies of the plan must be maintained 

as of the date of the most recent 

revision. 

(d) Each person required to develop 

and implement a security plan in 

accordance with this subpart must 

maintain a copy of the security plan (or 

an electronic image thereof) that is 

accessible at, or through, its principal 

place of business and must make the 

security plan available upon request, at 

a reasonable time and location, to an 

authorized official of the Department of 

Transportation or the Department of 

Homeland Security. 

Issued in Washington, DC on September 3, 

2008, under authority delegated in 49 CFR 

part 106. 

Theodore L. Willke, 

Associate Administrator for Hazardous 

Materials Safety. 

[FR Doc. E8–20856 Filed 9–8–08; 8:45 am] 

BILLING CODE 4910–60–P 


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