[Federal Register: May 5, 2003 (Volume 68, Number 86)]
[Rules and Regulations]
[Page 23831-23842]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my03-22]
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Part IV
Department of Transportation
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Research and Special Programs Administration
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49 CFR Part 107, et al.
Hazardous Materials: Enhancing Hazardous Materials Transportation
Security; Interim Final Rule
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 107, 171, 176, and 177
[Docket No. RSPA-03-14982 (HM-232C)]
RIN 2137-AD79
Hazardous Materials: Enhancing Hazardous Materials Transportation
Security
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Interim final rule and request for comments.
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SUMMARY: This interim final rule incorporates into the Hazardous
Materials Regulations a requirement that shippers and transporters of
certain hazardous materials comply with Federal security regulations
that apply to motor carrier and vessel transportation. In addition,
this interim final rule revises the procedures for applying for an
exemption from the Hazardous Materials Regulations to require
applicants to certify compliance with applicable Federal transportation
security laws and regulations. This interim final rule will assure that
shippers and transporters are aware of and comply with their security
obligations.
DATES: Effective Date. This interim final rule is effective May 5,
2003.
Compliance Date: June 4, 2003.
Comments. Submit comments by June 4, 2003. To the extent possible,
we will consider late-filed comments as we develop a final rule.
ADDRESSES: Submit comments to the Dockets Management System, U.S.
Department of Transportation, Room PL 401, 400 Seventh Street, SW.,
Washington, DC. 20590-0001. Comments should identify Docket Number
RSPA-03-14982 (HM-232C) and be submitted in two copies. If you wish to
receive confirmation of receipt of your written comments, include a
self-addressed, stamped postcard. You may also submit comments by e-
mail by accessing the Dockets Management System web site at http://dms.dot.gov/
and following the instructions for submitting a document
electronically.
The Dockets Management System is located on the Plaza level of the
Nassif Building at the Department of Transportation at the above
address. You can review public dockets there between the hours of 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. You
can also review comments on-line at the DOT Dockets Management System
web site at http://dms.dot.gov/.
FOR FURTHER INFORMATION CONTACT: Susan Gorsky, (202) 366-8553, Office
of Hazardous Materials Standards, Research and Special Programs
Administration.
SUPPLEMENTARY INFORMATION:
List of Topics
I. Background
II. Security Guidance
III. Security Rulemaking
IV. USA PATRIOT Act
V. Safe Explosives Act
VI. Vessel and Port Security
VII. Transportation by Air
VIII. DOT Determination under 18 U.S.C. 845(a)(1)
IX. Comments on this Interim Final Rule
X. Regulatory Analyses and Notices
I. Background
Hazardous materials are essential to the economy of the United
States and the well being of its people. Hazardous materials fuel cars
and trucks, and heat and cool homes and offices. Hazardous materials
are used for farming and medical applications and in manufacturing,
mining, and other industrial processes. Millions of tons of explosive,
toxic, corrosive, flammable, and radioactive materials are transported
every day. Hazardous materials move by plane, train, truck, or vessel
in quantities ranging from several ounces to many thousands of gallons.
The vast majority of hazardous materials shipments arrive safely at
their destinations. Most incidents that do occur involve small releases
of material and present no serious threat to life or property.
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 prevention-
oriented and focused on identifying a safety hazard and reducing the
probability and quantity of a hazardous material release. Under the
Department of Transportation's Hazardous Materials Regulations (HMR; 49
CFR Parts 171-180), 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.
Under the HMR, which are based on the internationally recognized
United Nations system for classification, identification, and ranking
of hazardous materials, all hazardous materials are divided into nine
general classes according to their physical, chemical, and nuclear
properties as follows:
Class 1--Explosives
Class 2--Compressed, flammable, nonflammable, and poison gases
Class 3--Flammable liquids
Class 4--Flammable solids
Class 5--Oxidizers and organic peroxides
Class 6--Toxic and infectious materials
Class 7--Radioactive materials
Class 8--Corrosive materials
Class 9--Miscellaneous dangerous substances and articles
Within Classes 1, 2, 4, 5, and 6, there are more specifically
defined divisions, and within Class 1 there are Compatibility Group
subdivisions, as well. The hazard classes and divisions are not
mutually exclusive. Certain hazardous materials have multiple dangerous
properties, each of which must be addressed according to its relative
potential to do harm. In these cases, the UN system and the HMR allow
identification and communication of both the primary and subsidiary
threats.
DOT's hazardous materials transportation safety program has
historically focused on reducing risks related to the unintentional
release of hazardous materials. The HMR are designed to achieve two
goals: (1) To ensure that hazardous materials are packaged and handled
safely during transportation, thus minimizing the possibility of their
release should an incident occur, and (2) to effectively communicate to
carriers, transportation workers, and emergency responders the hazards
of the materials being transported. The HMR specify how to classify and
package a hazardous material. Further, the HMR prescribe a system of
hazard communication using
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placards, labels, package markings, and shipping papers. In addition,
the HMR prescribe training requirements for persons who prepare
hazardous materials for shipment or transport hazardous materials. The
HMR also include operational requirements applicable to each mode of
transportation.
II. Security Guidance
In the wake of the terrorist attacks of September 11, 2001, and
subsequent threats related to biological and other hazardous materials,
DOT undertook a broad review of government and industry hazardous
materials transportation safety and security programs. As part of this
review, we established the Hazardous Materials Direct Action Group
(Hazmat DAG). The Hazmat DAG met with representatives of the hazardous
materials industry, emergency response community, and state governments
to discuss transportation security issues and continuing terrorist
threats. In addition, we created a DOT Intermodal Hazardous Materials
Transportation Security Task Force, which considered attack or sabotage
vulnerabilities, existing security measures, and potential ways to
reduce vulnerabilities. The Task Force included representatives from
the Federal Motor Carrier Safety Administration (FMCSA), Federal
Railroad Administration (FRA), Federal Aviation Administration (FAA),
U.S. Coast Guard (USCG), and Office of the Secretary.
Based in part on discussions in the Hazmat DAG and on the results
of the Task Force review, on February 14, 2002, we published an
advisory notice to inform shippers and carriers of voluntary measures
that can enhance the security of hazardous materials shipments during
transportation (67 FR 6963). The notice addresses personnel, facility,
and en route security issues and includes contact points for obtaining
additional, more detailed information. Among other recommendations, the
security advisory notice advised employers to be aware of the
possibility that someone they employ may pose a potential security
risk. We recommended that employers consider establishing a process to
verify the information provided by applicants on application forms or
resumes, including checking with former and current employers and
personal references provided by job applicants.
In addition, FMCSA conducted a number of on-site security reviews
with hazardous materials shippers and carriers. The reviews were
targeted to high-risk hazardous materials, including explosives,
radioactive materials, materials that are poisonous by inhalation, and
flammable gases and liquids. The on-site security reviews included
reviews by the FMCSA investigator and company officials of carrier
records in order to identify suspicious activities by company employees
that could affect transportation security. The security reviews
resulted in 280 findings of suspicious activities by employees, with
126 referrals to the Federal Bureau of Investigation (FBI). Examples of
suspicious activity that provided the basis for the FBI referrals
include false personnel information, citizenship irregularities, FBI
watch list, and previous employment irregularities.
The review included recommendations for addressing identified
security risks, including risks associated with current or new
employees. The FMCSA recommendations for mitigating such risks include
measures such as: (1) Implementing methods for security identification
(i.e., ID badges) and systems to verify employee identification; (2)
reviewing employee and applicant personnel information with a
particular focus on gaps in employment, frequent job shifts, all names
used by the applicant, type of military discharge, citizenship, present
and prior residence information, personal references, and criminal
history; and (3) verifying compliance with the Immigration Reform and
Control Act of 1986 to assure that I-9 forms are properly completed and
maintained for all employees. A number of hazardous materials shippers
and carriers have voluntarily implemented security programs that
include measures to identify and address employee security issues.
III. Security Rulemaking
On March 25, 2003, the Research and Special Programs Administration
(RSPA) published a final rule under Docket HM-232 (68 FR 14510). The
final rule requires persons who offer certain hazardous materials for
transportation in commerce and persons who transport certain hazardous
materials in commerce to develop and implement security plans.
In developing the HM-232 final rule, we assessed the security risks
associated with the transportation of different classes and quantities
of hazardous materials. We concluded that the most significant security
risks involve the transportation of certain radioactive materials,
certain explosives, materials that are poisonous by inhalation, certain
infectious and toxic substances, and bulk shipments of materials such
as flammable and compressed gases, flammable liquids, flammable solids,
and corrosives. Based on this security risk assessment, the HM-232
final rule requires persons who offer for transportation or transport
the following hazardous materials to develop and implement security
plans: (1) A highway route-controlled quantity of a Class 7
(radioactive) material; (2) more than 25 kg (55 lbs) of a Division 1.1,
1.2, or 1.3 (explosive) material; (3) more than 1 L (1.06 qt) per
package of a material poisonous by inhalation in Hazard Zone A; (4) a
shipment in a bulk packaging with a capacity equal to or greater than
13,248 L (3,500 gal) for liquids or gases or greater than 13.24 cubic
meters (468 cubic feet) for solids; (5) infectious substances listed as
select agents by the Centers for Disease Control and Prevention (CDC)
in 42 CFR part 73; and (6) a shipment that requires placarding. Select
agents are infectious substances identified by CDC as materials with
the potential to have serious consequences for human health and safety
if used illegitimately. In effect, then, the HM-232 final rule applies
the security plan requirement to a shipper or carrier of a hazardous
material in an amount that requires placarding and to select agents.
Using the placarding thresholds to trigger enhanced security
requirements covers the materials that present the most significant
security threats in transportation and provides a relatively
straightforward way to distinguish materials that may present a
significant security threat from materials that do not. It also
provides consistency for the regulated community, thereby minimizing
confusion and facilitating compliance.
The HM-232 final rule also includes new security awareness training
requirements for all hazardous materials employees. This training must
include an awareness of the security risks associated with hazardous
materials transportation, measures designed to enhance transportation
security, and a component covering how to recognize and respond to
possible security threats.
IV. USA PATRIOT Act
DOT is working with the Department of Homeland Security's
Transportation Security Administration (TSA) to administer provisions
of the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act;
Public Law 107-56, October 25, 2001, 115 Stat. 272). Section 1012 of
the USA PATRIOT Act amended 49 U.S.C. Chapter 51 by
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adding a new section 5103a titled ``Limitation on issuance of hazmat
licenses.'' Section 5103a(a)(1) provides that a state may not issue a
license to operate a motor vehicle transporting a hazardous material in
commerce unless the Secretary of Transportation has first determined
that the individual does not pose a security risk warranting denial of
the license. Section 5103a(a)(2) subjects license renewals to the same
requirements.
There is no ``hazmat license'' per se under state or Federal law.
However, section 1012(b) of the USA PATRIOT Act also amended 49 U.S.C.
31305(a)(5), which prescribes fitness and testing standards for
individuals operating a commercial motor vehicle carrying a hazardous
material, by adding a new paragraph (C) to require a state to ensure
that an individual has been vetted under 49 U.S.C. 5103a before the
state issues a commercial driver's license (CDL). Thus, DOT And TSA
interpret the ``hazmat license'' referred to in section 1012 as the
hazardous materials endorsement to a CDL, which is required by 49 CFR
383.93(b)(4). To qualify for the hazardous materials endorsement, an
individual must first pass a specialized knowledge test (Sec. 383.121)
in addition to the requisite general knowledge and skills tests
required for a CDL. Therefore, DOT and TSA consider section 5103a a de
facto amendment to the CDL legislation.
Section 5103a(c) requires the Attorney General, upon the request of
a state regarding issuance of a hazardous materials endorsement, to
carry out a background records check of the individual applying for the
endorsement and, upon completing the check, to notify the Secretary of
Transportation of the results. The Secretary then determines whether
the individual poses a security risk warranting denial of the
endorsement. The background records check must consist of: (1) A check
of the relevant criminal history databases; (2) in the case of an
alien, a check of the relevant databases to determine the status of the
alien under U.S. immigration laws; and (3) as appropriate, a check of
the relevant international databases through Interpol-U.S. National
Central Bureau or other appropriate means.
TSA and DOT's Federal Motor Carrier Safety Administration (FMCSA)
have developed regulations to implement the hazardous materials
licensing provisions of the USA PATRIOT Act. TSA's regulation,
published in today's edition of the Federal Register, addresses the
procedures for making determinations as to whether an individual poses
a security threat warranting denial of a hazardous materials
endorsement for a commercial driver's license and for appealing and
issuing waivers to such a determination. Also in today's edition of the
Federal Register, FMCSA is publishing a companion regulation amending
Part 383 of the Federal Motor Carrier Safety Regulations (FMCSRs) to
prohibit states from issuing, renewing, transferring, or upgrading a
commercial driver's license with a hazardous materials endorsement
unless the Attorney General has first conducted a background records
check of the applicant, and TSA has determined that the applicant does
not pose a security threat warranting denial of the hazardous materials
endorsement.
Part 383 of the FMCSRs requires a driver to have a hazardous
materials endorsement to the CDL only if the driver operates a
commercial motor vehicle transporting hazardous materials in amounts
required to be placarded under the HMR. FMCSA is amending Part 383 to
require an operator of a commercial motor vehicle that transports
materials on the CDC select agent list to have a hazardous materials
endorsement to his or her CDL. Thus, TSA and FMCSA implementation of
the USA PATRIOT Act is consistent with RSPA's assessment in HM-232 that
the hazardous materials placarding thresholds, plus the CDC select
agent list, cover materials that present the most significant security
threats in transportation.
To assure consistency between the HMR and the FMCSR concerning the
USA PATRIOT Act requirements for commercial motor vehicle drivers, in
this final rule, we are amending Part 177 of the HMR to require
compliance with Part 383 of the FMCSR.
TSA, with the assistance of DOT's Federal Railroad Administration,
intends to issue a rule somewhat similar to the USA PATRIOT Act rule
for railroad workers who are in security-sensitive positions. Upon
issuance of such a rule, RSPA will issue an additional rule making any
such railroad background check requirements part of the HMR.
V. Safe Explosives Act
Congress enacted the Safe Explosives Act (SEA) on November 25,
2002. Sections 1121-1123 of SEA amended section 842(i) of Title 18 of
the U.S. Code by adding several categories to the list of persons who
may not lawfully ``ship or transport any explosive in or affecting
interstate or foreign commerce'' or ``receive or possess any explosive
which has been shipped or transported in or affecting interstate or
foreign commerce.'' Prior to the amendment, 18 U.S.C. 842(i) prohibited
the transportation of explosives by any person under indictment for or
convicted of a felony, a fugitive from justice, an unlawful user or
addict of any controlled substance, and any person who had been
adjudicated as a mental defective or committed to a mental institution.
The amendment added three new categories to the list of prohibited
persons: Aliens (with certain limited exceptions), persons dishonorably
discharged from the armed forces, and former U.S. citizens who have
renounced their citizenship. Persons who violate 18 U.S.C. 842(i) are
subject to criminal penalties.
18 U.S.C. 845(a)(1) provides an exception to 18 U.S.C 842(i) for
``any aspect of the transportation of explosive materials via railroad,
water, highway, or air, which are regulated by the United States
Department of Transportation (DOT) and agencies thereof, and which
pertain to safety.'' The Department of Justice has interpreted this
provision to exempt persons from application of Sec. 842(i) when (1)
DOT has actually regulated a relevant aspect of the transportation of
explosives, and (2) those regulations cover the particular aspect of
the safe transportation of explosives that prompted Congress to enact
the criminal statute from which exemption is sought. For purposes of
Sec. 845(a)(1), if DOT determines that persons engaged in certain
aspects of the transportation of explosives do not pose a security risk
and do not warrant regulation, then those persons are not subject to
prosecution under 18 U.S.C. 842(i) while they are engaged in the
transportation of explosives in commerce.
The HMR define a Class 1 material as any substance or article that
is designed to function by explosion--that is, an extremely rapid
release of gas or heat--or one that, by chemical reaction within
itself, functions in a similar manner even if not designed to do so.
Class 1 materials are divided into six divisions. Assignment of an
explosive to a division depends on the degree and nature of the
explosive hazard presented. Thus, 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. 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, but not a mass explosion hazard. A Division
1.4 explosive has a minor explosion hazard
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that is largely confined to the package and does not involve projection
of fragments. A Division 1.5 explosive is a very insensitive explosive
that has a mass explosion potential, but is so insensitive that it is
unlikely to detonate under normal conditions of transport. A Division
1.6 explosive is an extremely insensitive article that does not have a
mass explosion hazard and demonstrates a negligible probability of
accidental initiation or propagation. Specific materials that are
covered by the definition of Class 1 materials include such items as
blasting agents, propellants, detonators, various types of ammunition,
explosives charges and projectiles, ammonium nitrate-fuel oil mixtures,
rockets, fireworks, and warheads.
For explosives transportation, the HMR prohibit transportation of
an explosive unless it has been tested, classed, and approved by the
Associate Administrator for Hazardous Materials Safety, RSPA. The
approval granted by the Associate Administrator specifies packaging and
other transportation provisions that must be followed by the person who
offers or transports the explosive material. In addition to packaging
requirements, the HMR require explosives to be labeled and/or placarded
to indicate the explosive hazard. Explosives shipments generally must
be accompanied by shipping papers and emergency response information.
The HMR definition for a Class 1 material is test- and performance-
based and, thus, accommodates newly developed materials and
modifications to existing materials. Moreover, the HMR definition for a
Class 1 material is consistent with definitions used and accepted
internationally (i.e., the UN Recommendations for the Transport of
Dangerous Goods, the International Civil Aviation Organization
Technical Instructions for the Safe Transport of Dangerous Goods by
Air, and the International Maritime Organization International Maritime
Dangerous Goods Code), not only for transportation, but for many other
applications, as well.
For the most part, the HMR definition of an explosive is consistent
with the relevant definition established by the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF). By statute, ATF regulates
materials that are explosives, blasting agents, and detonators. An
``explosive'' is ``any chemical compound mixture, or device, the
primary or common purpose of which is to function by explosion; the
term includes, but is not limited to, dynamite and other high
explosives, black powder, pellet powder, initiating explosives,
detonators, safety fuses, squibs, detonating cord, igniter cord, and
igniters;'' a ``blasting agent'' is, in part, ``any material or
mixture, consisting of fuel and oxidizer, intended for blasting, not
otherwise defined as an explosive;'' and a ``detonator'' is ``any
device containing a detonating charge that is used for initiating
detonation in an explosive; the term includes, but is not limited to,
electric blasting caps of instantaneous and delay types, blasting caps
for use with safety fuses and detonating-cord delay connectors.'' ATF
supplements these statutory definitions with a list of specific
materials, updated periodically, that are regulated as explosives. 18
U.S.C. 841(c)--(f). Certain statutory exemptions may apply. For
example, certain types and quantities of black powder may be exempt
from ATF regulation. 18 U.S.C. 845(a)(5).
Because the various definitions used by DOT and ATF are not
identical, some materials are treated differently by the two agencies.
For example, ATF lists several specific materials that it regulates as
explosives that DOT regulates as non-explosive hazardous materials.
Further, ATF regulates all mixtures that contain any of the materials
it lists as explosives. ATF does not define a lower limit at which a
mixture would cease to meet the definition for an explosive. The DOT
definition, by contrast, depends on test results to determine whether a
material should be classed as an explosive. Thus, if a mixture is
tested and does not exhibit explosive properties, it would not be
classed as an explosive under the HMR, even though the mixture might
contain a material that, by itself, would be classed as an explosive.
Moreover, the ATF explosives list includes dinitrophenol,
guncotton, nitrostarch, sodium picramate, and several other materials
that DOT regulates as non-explosive hazardous materials when combined
with water. When combined with water, these materials may not exhibit
explosive properties and, thus, do not meet the DOT definition for an
explosive. DOT regulates these materials, with specified percentages of
water, as Division 4.1 (flammable solid) materials.
ATF regulates ammonium nitrate-fuel oil mixtures and ammonium
nitrate explosive mixtures as explosive materials. Under the HMR,
certain ammonium nitrate products are classed as Division 1.1
explosives, and ammonium nitrate-fuel oil mixtures are classed as
Division 1.5 explosives. However, some mixtures that include ammonium
nitrate among their components are classed as Division 5.1 (oxidizer)
materials because they require further processing before they can be
used to produce a practical explosion. Again, the difference results
because the DOT classification criteria depend on testing to determine
whether a material exhibits explosive properties; if a material is
tested and found not to meet the DOT definition, it is not regulated as
an explosive for purposes of the HMR.
A major difference between the ATF and DOT requirements for
regulating explosives is how the agencies treat military and government
shipments. In accordance with 18 U.S.C. 845, ATF generally does not
regulate explosives being delivered to any agency of the United States
or any state or political subdivision thereof; or explosives
manufactured under the regulation of the military department of the
United States or transported on behalf of the military department of
the United States or transported to arsenals, navy yards, depots, or
other establishments owned by, or operated on behalf of, the United
States. Under the HMR, by contrast, government and military shipments
of explosives are regulated if such shipments are transported by
commercial carriers rather than government or military personnel.
For purposes of SEA, DOT compared the list of materials that ATF
regulates as explosives with the definitions for different classes of
hazardous materials regulated under the HMR and assessed the security
risks associated with the transportation of such materials. We
concluded that a mixture that does not meet the definition of a Class 1
material under the HMR generally does not pose a sufficient security
risk when transported in commerce to warrant detailed employee
background checks. Such mixtures may meet the definition of a different
hazard class, in which case they are subject to applicable security
requirements in HM-232 or in TSA, FMCSA, or USCG regulations, as
incorporated into the HMR in this final rule, or they may not meet the
definition of any hazard class, in which case they are not regulated as
hazardous materials under the HMR.
We further concluded that a material regulated as an explosive by
ATF but as a different class of hazardous material under the HMR, such
as certain wetted materials and ammonium nitrate mixtures, generally
will be subject to applicable security requirements in HM-232 or in
TSA, FMCSA, or USCG regulations, as incorporated into the HMR in this
final rule. If required to be placarded, shipments of such materials
will be subject to the background check requirements mandated in the
USA PATRIOT Act when transported by
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motor carrier and to the security plan requirements in Subpart I of the
HMR. When shipped in amounts that do not require placarding, such
shipments do not pose a security risk when transported in commerce
sufficient to warrant detailed employee background check requirements
at this time.
Generally, we have determined that the placarding thresholds
established in the HMR for explosives shipments represent explosives
that pose the most significant security risk when transported in
commerce. Explosives in the following quantities must be placarded in
accordance with HMR requirements:
(1) Any quantity of Division 1.1, 1.2, or 1.3 explosives;
(2) More than 454 kg of Division 1.4, 1.5, or 1.6 explosives.
Examples of Division 1.4 explosives include toy caps, signal
devices, flares, and distress signals. In quantities less than 454 kg,
such explosives generally do not present a significant security threat
involving their use during transportation for a criminal or terrorist
act. Similarly, Division 1.5 and 1.6 explosives are sufficiently
insensitive that, in amounts below 454 kg, they generally do not
present a significant security threat.
To address implementation of SEA for Canadian transporters of
explosives into the United States, TSA issued an interim final rule on
February 6, 2003 (68 FR 6083), which took effect immediately. The
regulation establishes temporary requirements for all Canadian motor
carriers and rail carriers using certain aliens to transport explosives
into the United States. In essence, the final rule prohibits a Canadian
commercial transporter of explosives from entering the United States
unless he or she is identified with a ``known'' status. A transporter
is considered ``known'' by submitting specified information to
Transport Canada, an agency within the Canadian government that
oversees transportation safety and security. Transport Canada conducts
checks to ensure that the transporter is a legitimate entity authorized
to do business in Canada, and that there are no security concerns with
the transporter. Transport Canada forwards this information to TSA,
which may conduct additional security checks prior to forwarding the
list of acceptable transporters to the U.S. Customs Service. The U.S.
Customs service enforces the interim final rule by conducting checks at
the U.S.-Canada border.
The HMR set forth provisions for the transportation by rail or
highway of shipments of hazardous materials coming into the United
States from Canada. Generally, in Sec. 171.12a, the HMR permit
shipments that originate in Canada and either terminate in the United
States or transit the United States to a foreign destination to conform
to requirements in the Canadian Transportation of Dangerous Goods
Regulations, with some exceptions and limitations.
For consistency with the TSA requirements applicable to Canadian
carriers of explosives, in this final rule, we are amending Sec.
171.12a to require Canadian motor carriers and railroads that transport
explosives into the United States to comply with the TSA regulations at
49 CFR 1572.9 and 1572.11 concerning the transportation of explosives
from Canada to the United States.
VI. Vessel and Port Security
The USCG is responsible for assuring maritime security. Primary
statutory authority is set forth in Title 14, U.S. Code, the Ports and
Waterways Safety Act, 33 U.S.C. 1221, et seq., and the Espionage Act of
1917, as amended by the Magnuson Act of 1950, and most recently by the
Maritime Transportation and Security Act of 2002, in addition to
Executive Orders and Coast Guard regulations implementing the statutory
authorities. Since the September 11, 2001, terrorist attacks on the
United States, the Coast Guard has quickly adapted to the changed
environment to protect our nation's ports and waterways.
Vessels. With respect to the treatment of aliens and felons, the
USCG regulations (33 CFR 160 Subchapter C, as amended by 68 FR 9537
(February 28, 2003); 33 CFR part 6; and 33 CFR 160.111(a)) require
commercial vessels to provide information on crew and passenger
identity and certain dangerous cargo, including explosives, to the U.S.
Coast Guard National Vessel Movement Center. The notification must take
place at least 96 hours prior to arrival in port so that the Coast
Guard can identify any potential security and safety risk. This
includes an examination of the conditions under which aliens may
lawfully transport, ship, receive, and possess explosives via
commercial vessel into a U.S. seaport from any overseas location and
between domestic ports. The information provided is checked with law
enforcement and intelligence databases. The Coast Guard then makes a
determination as to whether the vessel or any of the persons on board
present a security or safety threat to the United States. Based on this
threat assessment, the Coast Guard may decide to subject a vessel to
additional scrutiny, which may include boarding offshore and
verification that neither the vessel nor the persons on board present a
safety or security risk before they are allowed to enter U.S.
territorial seas and ports.
The regulations in 33 CFR Part 6 provide the authority for the
Coast Guard to board vessels and direct their movements for the purpose
of security. In addition, the Coast Guard's authority to restrict and/
or order movement of vessels is found in 33 CFR 160.111(a).
The Coast Guard has promulgated extensive regulations (46 CFR parts
10 and 12) to address which aliens, felons, ex-felons, non-citizens,
persons who have been dishonorably discharged from the military,
fugitives, persons who have been adjudged insane or otherwise
determined by competent authority to be physically or mentally
incompetent, drug users and ex-drug users may serve as licensed and
unlicensed mariners on U.S. vessels. The licensing and documentation
regime covers mariners that may handle explosives and other hazardous
materials. Without such a license or document, an individual may not
serve in a capacity requiring a license or document on any vessel of
the United States. The regulations in 46 CFR part 10 apply to persons
applying for a license as a deck or engineer officer or licensed
operator of a vessel of the United States.
The Coast Guard carefully considers whether a felon or an ex-felon
is sufficiently rehabilitated and whether a drug user or an ex-drug
user is free from the use of dangerous drugs in order to determine if
he or she should be entrusted with the responsibilities of service in
the capacity for which he or she is seeking a license. With respect to
felons, the review includes persons who are under indictment for
felonies, as well as persons who have been convicted. The regulations
at 46 CFR 10.201 contain a table of criminal offenses that are
considered disqualifying depending on the crime and amount of time
between application for the license and the conviction. The table of
criminal offenses includes not only specific offenses, but also general
categories of other crimes against property and public safety, for
which an applicant may be denied a license depending on the
circumstances. These general categories include, for example, arson and
unlawful possession or use of a firearm or explosives. In addition, the
regulations at 46 CFR 10.201 establish procedures an applicant must
follow to prove citizenship. A person who has renounced his citizenship
does not qualify for a Coast Guard license. Moreover, an application
may be denied
[[Page 23837]]
to persons with ``habits of life and character'' that would make the
applicant's presence on board a vessel hazardous to marine safety or
national security. This would include persons who are fugitives, or
have been dishonorably discharged from the military. An applicant for a
license must also pass a physical exam, which discloses whether he is
physically and mentally competent to serve in the capacity for which he
is applying. In addition, relevant data bases are checked; such data
base checks will disclose information related to whether an applicant
has ever been adjudged insane or otherwise determined by competent
authority to be incapable of handling his affairs. If so, the applicant
must present evidence of cure in order to be granted a license, and a
determination is made based on the record in each such case.
The requirements of 46 CFR 12.02-4, issued under authority of
Chapter 73 of Title 46 of the United States Code, provide a similar
regime for unlicensed seamen who are required to have a merchant
mariners document in order to serve on the crew of a U.S. vessel. The
regulations require an extensive application and review process that
includes a check of criminal records and the National Driver Register.
This ensures that only persons who have been vetted, from a safety and
security standpoint, hold licenses or other appropriate documents to
sail as officers or unlicensed seamen on U.S. vessels. Although the
Coast Guard does not have a strict ``no-felon'' rule for either
licensed or unlicensed mariners, the regulations provide for a regime
to evaluate each individual case and determine whether the individual
presents a security threat. Further, Coast Guard regulations at 46 CFR
12.02-10, implementing 46 U.S.C. 8103(b)(1) concerning citizenship
requirements for unlicensed seamen, state that ``No applicant * * *
shall be accepted unless the alien presents acceptable documentary
evidence from the U.S. Immigration and Naturalization Service that he
is lawfully admitted to the United States for permanent residence.''
Moreover, an application may be denied to persons with ``habits of life
and character'' that would make the applicant's presence on board a
vessel hazardous to marine safety or national security. This would
include fugitives and persons who have been dishonorably discharged
from the military. In addition, a check of the relevant data bases is
made; such data base checks will disclose information related to
whether an applicant has ever been adjudged insane or otherwise
determined by competent authority to be incapable of handling his
affairs. If so, the applicant must present evidence of cure in order to
be granted a license, and a determination is made based on the record
in each such case. The Coast Guard is currently engaged in amending its
licensing and documentation processes in light of the terrorist attacks
of September 11, 2001.
Ports. The USCG port security card regulations (33 CFR part 125),
codified pursuant to the Espionage Act of 1917, as amended by the
Magnuson Act of 1950, 50 U.S.C. 191 et seq., govern who may gain access
to a waterfront facility. The USCG has promulgated explosives handling
regulations (33 CFR part 126) that allow loading or discharge and
handling of explosives at designated waterfront facilities. These
regulations restrict these activities to entities that have obtained a
permit issued by the Coast Guard. Read together, these regulations
provide a comprehensive regulatory regime for the safe and secure
transportation, storage, possession, and handling of explosives at the
facility. The regulations also provide for the security of the facility
and the vessels at the facility from threats presented by terrorists
and other prohibited categories of individuals, including felons and
drug users, listed in 33 CFR 125.19. On August 7, 2002, the Coast Guard
published a notice in the Federal Register (67 FR 51082) to: (1) Call
attention to these regulations; (2) clarify the identification
credentials that are acceptable to the Commandant in order to gain
access to waterfront facilities, port, and harbor areas; (3) advise
that Coast Guard Captains of the Port are responsible for ensuring that
those allowed access to waterfront facilities do not present
unacceptable security threats; and (4) note that individuals without
proper identification may not gain access to waterfront facilities and
vessels if conditions so warrant. These regulations allow the Coast
Guard to screen who may safely and securely handle explosives and other
hazardous materials on board vessels and at waterfront facilities,
including longshoremen, and the truck drivers that drive the container
chassis from shipside to and around the container marshalling yard.
The Coast Guard is engaged in on-going discussions with TSA to
implement a regime, based in part on these regulations and in part on
the regulations set forth in 33 CFR part 6, to ensure that any person
granted access to waterfront facilities, including those designated
waterfront facilities that handle explosives, does not present a
security or safety threat. These discussions include TSA implementation
of appropriate background screening checks designed to disclose those
factors that would lead the Coast Guard to deny access to part or all
of a given facility based on security risk and threat assessment.
Finally, if the law enforcement and intelligence data bases to which
the Coast Guard has access reveal information about an individual that
makes that person an unacceptable risk or a threat to a facility,
including any information relating to the individual's criminal
background or drug use, 33 CFR 6.04-5 authorizes the Captain of the
Port to deny access to that person and to prevent that person from
taking any article or thing onto the vessel or waterfront facility.
The Coast Guard's comprehensive regulatory regime in 33 CFR 160
subchapter C, as amended by 68 FR 9537 (February 28, 2003), for vessels
arriving in the United States; 46 CFR parts 10 and 12, for the
licensing and documentation of seamen on commercial U.S. vessels; and
33 CFR parts 125 and 126, regarding access and control of handling of
explosives and other hazardous materials on waterfront facilities,
adequately addresses the security risks that may be associated with the
transportation of hazardous materials, including explosives, by vessel.
To assure consistency with these requirements, in this final rule, we
are amending part 176 of the HMR, which addresses the transportation of
hazardous materials by vessel, to require compliance with requirements
in 46 CFR parts 10 and 12. The HMR already require compliance with 33
CFR parts 125, 126, and 160.
VII. Transportation by Air
In response to the September 11, 2001, terrorist attacks, Congress
enacted the Aviation and Transportation Security Act (ATSA; Pub. L.
107-71; November 19, 2001; 115 Stat. 597), which established TSA and
transferred authority for aviation security from FAA to TSA. FAA
continues to have authority to regulate all areas of aviation safety
and to enforce the HMR as they apply to air shipments of hazardous
materials. Thus, TSA, RSPA, and FAA share responsibility for addressing
security issues associated with the transportation of hazardous
materials by air.
In summary, only a small number of operators transport explosives
in amounts that would require placarding if transported by highway or
rail. These air carriers operate pursuant to a security program
approved by TSA and
[[Page 23838]]
an exemptions program administered by RSPA.
TSA, FAA, and RSPA regulations govern the safety and security of
hazardous materials, including explosives, transported by aircraft.
Following creation of TSA, DOT transferred to TSA a series of security
regulations that had been issued and enforced by FAA prior to September
11, 2001. In addition, these security regulations were amended to
address new statutory requirements in ATSA. See 49 CFR parts 1500,
1520, 1540, 1542, 1544, and 1546. Following this transfer of authority,
TSA promulgated a number of additional security regulations concerning
background checks on individuals in the aviation industry and
procedures to enhance the security of airports and air carrier
operations.
TSA requires all operators of aircraft with a maximum certificated
takeoff weight of 12,500 pounds or more to adhere to a security program
that includes a fingerprint-based criminal history record checks (CHRC)
for all flight crewmembers. Any person who has been convicted of
certain felonies and serious misdemeanors within the last 10 years is
not permitted to operate the aircraft. These disqualifying offenses are
consistent with those that would disqualify a person from holding a
hazardous materials endorsement to a CDL under the USA PATRIOT Act
implementing regulations.
In addition, the aircraft operator must develop procedures to
restrict access to the cockpit during flights and to secure the
aircraft from unauthorized entry while on the ground. As well, the
operator must develop procedures to handle bomb and air piracy threats
and must train security coordinators to oversee all ground activities.
In addition, certain air cargo entities operate under a Domestic
Security Integrated Program (DSIP), which provides that all individuals
with unescorted access to secured areas undergo a CHRC. Any individual
with a conviction in the preceding 10 years for a disqualifying offense
listed in 49 CFR 1544.229 is not permitted access to secured areas.
Under the DSIP, the cargo carrier must complete a background check of
the previous five years for any individual with access to controlled
areas of the airport that have not been deemed security identification
display areas. Further, the cargo operator must develop procedures that
provide for personnel identification display areas and to address bomb
or highjack threat information. The cargo carriers operating under a
DSIP must provide security training to all employees and are subject to
Security Directives issued by TSA.
TSA also requires CHRCs for passenger and baggage screeners;
employees and contractors with access to secured areas, including
baggage and cargo handlers; and supervisors. See 49 CFR 1542.209 and
1544.229-230. In addition, the airport must provide an escort for
individuals in secured areas who have not completed a CHRC.
Aviation workers in safety sensitive service are subject to alcohol
and drug regulations issued and enforced by FAA. See Appendices I and J
to 14 CFR part 121. These regulations require random, probable cause,
and post-accident drug and alcohol testing to ensure that employees in
safety-sensitive service are not drug users or working under the
influence of alcohol. Also, FAA's regulations require medical
examinations periodically for all flight crewmembers to ensure that
there are no physical or emotional limitations that may cause safety or
security threats to aviation operations. See 14 CFR part 67.
There are also a variety of security measures in place affecting
the transportation of explosives into the United States by aliens on
aircraft. With respect to commercial passenger flights to the United
States, TSA regulates foreign commercial passenger carriers under 49
CFR part 1546. Among other requirements, part 1546 requires foreign air
carriers to adopt and implement a security program approved by TSA.
Foreign air carriers must compare the names of all direct air carrier
employees against various watch lists. In certain cases, the carrier is
not permitted to allow the employee to have unescorted access to
secured areas of the airport. The carrier must immediately notify the
nearest field office of the FBI if an employee is an individual known
to pose a security threat.
Certain foreign air carriers from countries of particular concern
also operate under special security program procedures, which require
the carrier to provide TSA advance notice of the identities of cockpit
crewmembers. This includes pilots, copilots, flight engineers, and
airline management personnel, as well as any relief or deadheading
cockpit crew. The carrier must provide a variety of identifying
information for each individual. If an individual is known to pose a
security threat, the carrier is not permitted to allow the individual
to operate on a flight into or out of the United States.
Also, under special security program procedures, foreign air
carriers are required to examine the identification of all operational
crewmembers and verify their assignment on each flight departing to the
United States. If the foreign air carrier cannot verify the identity
and flight assignment of a crewmember, the carrier must deny boarding
and notify appropriate authorities.
FAA and TSA also regulate flights to the United States by various
other commercial and private aircraft operators pursuant to a complex
set of requirements set forth in a Notice to Airmen (NOTAM). Under this
NOTAM, the operators must submit identifying information on flight
crewmembers and passengers in advance of arrival in the United States,
so that TSA can conduct background checks. In addition, TSA has the
authority to issue Security Directives (SDs) to air carriers and
airport operators, which have the force and effect of a regulation and
may require certain actions or procedures immediately. For example, TSA
has issued SDs to require background checks on individuals with
unescorted access to certain secured areas of airports, special
screening procedures to address individuals who may present a security
threat at an airport, and a variety of new operational procedures that
are triggered when the national security alert system level increases.
In addition to these regulations, NOTAMs, and SDs, TSA requires air
carriers and airport operators to comply with a detailed Security
Program designed to address the security risks associated with the type
of operation. See 49 CFR 1542.103, and 1544.101. There are standard
Security Programs for air carriers in scheduled passenger service,
public charters, private charters, cargo operations, and small aircraft
in commercial service. The Programs are tailored to the security
concerns attendant to each type of operation based on the size of
aircraft, the number and nature of the passengers, the degree to which
aircraft enplane or deplane into secured areas of an airport, and a
variety of other factors. Commercial airports that TSA has determined
require formal Security Programs are also required to adopt a TSA-
approved Security Program that must address background checks and
identification for individuals with access to secured areas of the
airport and aircraft, access control procedures, measures to control
movement within secured areas, and escort procedures for vendors who
are not subject to background checks.
Finally, TSA plans to issue strengthened cargo security program
requirements for passenger carriers, Indirect Air Carriers (freight
forwarders) and all-cargo air carriers by October 2003 that will
address additional measures to ensure the security of cargo
[[Page 23839]]
operations. Requirements under consideration include expansion of
background checks for those with access to air operations areas, and
additional screening for those persons with access to the flight deck
of all-cargo carriers.
The HMR establish requirements for the transportation of explosives
on-board aircraft. Air carriers generally are prohibited from
transporting explosives in amounts that would require placarding if
transported by highway or rail. The HMR prohibit Division 1.1 and 1.2
explosives in any quantity from being transported by aircraft. A
limited number of explosives classed as Division 1.3 are permitted for
transportation by cargo aircraft in limited amounts. These include
certain types of cartridges, flares, and distress signals.
Additionally, a limited number of Division 1.4 explosives are permitted
for transportation by passenger or cargo aircraft in limited amounts.
Again, these include certain types of cartridges, detonators,
fireworks, flares, fuses, and signal devices.
Under RSPA's exemptions program, a hazardous materials shipper or
carrier may be granted an exemption from certain HMR requirements. An
exemption authorizes a company or individual to transport a hazardous
material in a manner that differs from the HMR, so long as an
equivalent level of safety and security is maintained. Exemptions allow
an operator quickly to implement new technologies and to evaluate new
operational techniques that often enhance safety and increase
productivity. In addition, exemptions permit timely movement of
materials in an emergency or under adverse transportation conditions.
We have issued a limited number of exemptions that permit the
transportation of certain explosives by air that would otherwise be
prohibited for such transportation, including Division 1.1 and 1.2
explosives. There are currently 23 exemptions that authorize the
transportation of explosives that are otherwise prohibited for
transportation by air. All but one of these exemptions has been issued
to an operator that is subject to TSA security requirements applicable
to aircraft with a maximum certificated takeoff weight of 12,500 pounds
of more. As discussed above, the TSA security requirements include
provisions for CHRCs for all flight crewmembers, restricted access to
the cockpit during flight, and ground security measures. We anticipate
that the vast majority of exemptions applicants seeking to transport
explosives by air that would otherwise be prohibited for such
transportation will be air carriers that are subject to the TSA
security requirements, including requirements for CHRCs for flight
crews.
Persons applying for and renewing exemptions that permit the
transportation of explosives that are otherwise prohibited for air
transportation will need to demonstrate that the exemption proposal
maintains an equivalent level of safety, including security, as is
required by transportation regulations. To this end, in this interim
final rule, we are amending the procedural regulations for applying for
an exemption in 49 CFR Part 107 to require applicants to certify
compliance with transportation security laws and regulations. With
respect to explosive materials that are otherwise forbidden for
transportation by air, this will include a certification to RSPA that
the carrier complies with all applicable TSA security requirements and
that none of the ``prohibited persons'' listed in 18 U.S.C. 842(i), as
amended by SEA, will participate in the transportation. Each exemption
will require, as a condition of the exemption, that the holder be in
conformance with applicable transportation security requirements,
including the prohibitions in 18 U.S.C. 842(i), before loading and
departure. Consequently, DOT and TSA security requirements apply to
these exemption holders and the exemption holders are not subject to
criminal enforcement under 18 U.S.C. 842(i) when transporting
explosives in commerce. Explosives permitted for transportation by
passenger or cargo-only aircraft under the HMR without an exemption are
not subject to the security certification requirements.
RSPA has determined that the types and quantities of explosives
permitted for transportation without an exemption by passenger or
cargo-only aircraft under the HMR do not present a security risk
sufficient to warrant application of the TSA background check
requirements at this time to persons who transport those shipments in
commerce or to persons who possess those shipments incidental to
transportation in commerce, including persons subject to 18 U.S.C.
842(i). Moreover, TSA regulations applicable to airport security
address the risk that unauthorized persons may gain access to
explosives being transported by aircraft at major airports. We are
continuing our assessment of the security risks posed by the
transportation of explosives by aircraft and will take appropriate
regulatory action, after public notice and comment, to address those
risks. In light of this determination, the provisions of 18 U.S.C.
842(i) do not apply to air shipments of explosives permitted for
transportation without an exemption under the HMR.
The TSA security regulations, including background check
requirements, apply to nearly all of the explosives otherwise
prohibited for transportation by air that are transported by air under
the terms of an RSPA exemption. An applicant for an exemption or an
exemption renewal to transport such prohibited explosives will be
required to certify that it complies with all applicable TSA security
requirements as part of the exemption application process. Those few
applicants for an exemption that are not subject to the TSA security
requirements will be required to certify as part of the exemption
application or renewal that none of the ``prohibited persons'' listed
in 18 U.S.C. 842(i), as amended by SEA, will participate in the
transportation.
VIII. DOT Determination Under 18 U.S.C. 845(a)(1)
As noted above, 18 U.S.C. 845(a)(1) provides an exception to the
prohibited persons provisions in 18 U.S.C. 842(i) for ``any aspect of
the transportation of explosive materials via railroad, water, highway,
or air, which are regulated by the United States Department of
Transportation (DOT) and agencies thereof, and which pertain to
safety.''
DOT is authorized by the Federal hazardous materials transportation
law (49 U.S.C. 5101 et seq.) to designate material, including an
explosive, as hazardous when transporting that material in commerce in
a particular amount and form may pose an unreasonable risk to health,
safety, or security. 49 U.S.C. 5103. DOT regulations applicable to the
transportation of explosives by all modes include the classification,
packaging, hazard communication, and operational requirements described
elsewhere in this preamble and the driver licensing and qualification
requirements established by FMCSA and incorporated into the HMR.
Further, the HMR include specific requirements for security plans and
training adopted in the HM-232 final rule. Under this final rule, the
HMR also incorporate USCG and TSA security regulations applicable to
the transportation of explosives in commerce.
As discussed in detail above, we assessed the security risks
associated with the transportation in commerce of explosives as defined
in 18 U.S.C. 841(c)-(f). Based on this assessment, we concluded that
the most significant security risks are associated with the
transportation of explosives shipments in quantities that require
placarding
[[Page 23840]]
under the HMR. Thus, the HM-232 final rule requires persons who offer
or transport shipments of explosives in all modes of transportation
that must be placarded under the HMR to develop and implement security
plans. Similarly, the TSA and FMCSA regulations implementing the USA
PATRIOT Act provisions for commercial vehicle driver security, and
incorporated into the HMR in this final rule, apply to drivers of
commercial vehicles transporting explosives in amounts that require
placarding.
Non-placarded shipments of explosives are not subject to these
requirements. We have determined that non-placarded shipments do not
present a sufficient security risk in transportation, at this time, to
warrant application of the TSA background check requirements to persons
who transport those shipments in commerce or to persons who possess
those shipments incidental to transportation in commerce, including
persons subject to 18 U.S.C. 842(i). We are continuing our assessment
of the security risks posed by the transportation of non-placarded
shipments of explosives in commerce and will take appropriate
regulatory action, after public notice and comment, to address those
risks.
Nevertheless, non-placarded shipments of explosives continue to be
subject to general HMR requirements governing packaging and hazard
communication. These risk-based safety requirements also enhance
overall transportation security. For example, for high hazard
shipments, such as Class 1 materials, the stringent packaging required
by the HMR to enhance the safety of the shipment in transportation
makes it difficult for someone to tamper with the shipment for a
criminal or terrorist purpose. Similarly, shipping documents help
shippers, carriers, and consignees account for specific shipments and
identify discrepancies or missing packages. In addition, under the HM-
232 final rule, hazardous materials employers must assure that all
hazardous materials employees receive security awareness training. Such
training must include an awareness of the security risks associated
with hazardous materials transportation and a component covering how to
recognize and respond to possible security threats.
DOT's decision as to whether a particular hazardous material,
including an explosive, presents a sufficient security risk when
transported in commerce to justify background check or other security
requirements is determinative. The TSA and FMCSA regulations
implementing the USA PATRIOT Act and incorporated into the HMR in this
final rule apply to the transport of placarded amounts of explosives by
motor vehicle within the meaning of 18 U.S.C. 845(a)(1), and the
provisions of 18 U.SC. 842(i) do not apply to persons engaged in such
transportation in commerce. DOT has determined that the transportation
of non-placarded shipments of explosives does not present a sufficient
security risk to justify detailed security background check or other
requirements at this time; in light of this determination, the
provisions of 18 U.S.C. 842(i) do not apply to persons engaged in such
transportation in commerce.
For the transportation of explosives by vessel, USCG regulations,
as incorporated into the HMR in this final rule, adequately address
security risks associated with such transportation; in light of this
determination, the provisions of 18 U.S.C. 842(i) do not apply.
Air carriers generally are prohibited from transporting hazardous
materials in amounts that would require placarding if transported by
highway or rail except under an exemption issued by RSPA. As noted
above, DOT has determined that the transportation of explosives
permitted for air transportation without an exemption under the HMR--
including by persons listed in 18 U.S.C. 842(i)--does not present a
sufficient risk to justify detailed background checks or other
additional regulation at this time. As amended in this rule, the HMR
requirements for explosives transported under exemption that would
otherwise be prohibited for transportation by air require a
certification that the applicant for the exemption complies with
transportation security laws and regulations and also that none of the
``prohibited persons'' listed in 18 U.S.C. 842(i), as amended by SEA,
will participate in the transportation. DOT will enforce the
certification requirement for exemption holders. Thus, the DOT
regulations adequately address the security risks associated with the
transportation by aircraft of explosives in commerce at this time.
It should be noted that these DOT determinations related to the
provisions of 18 U.S.C. 842(i) may be reassessed as we continue to
identify and address security risks associated with the transportation
of explosives. For example, in a rulemaking to be developed under
Docket HM-232A we are evaluating the need to require further security
enhancements on materials or categories of materials that present the
most serious security risks in transportation. Because of the potential
impact of such enhanced security requirements on the economic viability
of the hazardous materials transportation industry, any additional
security requirements should be developed through normal notice-and-
comment procedures, unless security threats justify expedited or
emergency rulemaking.
IX. Comments on This Interim Final Rule
This interim final rule imposes a new requirement for persons
applying for an exemption under 49 CFR part 107. For such persons, this
interim final rule requires a certification that the applicant is in
compliance with all applicable security laws and regulations. The new
certification requirement will not add significantly to an exemption
applicant's compliance costs. Because this interim final rule addresses
essential security requirements necessary to promote public safety, we
determined that it is impracticable and contrary to the public interest
to precede it with a notice of proposed rulemaking and an opportunity
for public comment. In addition, based on this determination, and our
desire to ensure the uninterrupted movement of explosives in commerce,
we have decided to make this rule immediately effective. We are
requiring compliance with the substantive provisions of this rule 30
days after publication of this rule in the Federal Register.
The Regulatory Policies and Procedures of DOT (44 FR 1134; February
26, 1979) provide that, to the maximum extent possible, DOT operating
administrations should provide an opportunity for public comment on
regulations issued without prior notice. Accordingly, we encourage
persons to participate in this rulemaking by submitting comments
containing relevant information, data, or views. We will consider all
comments received on or before the closing date for comments. We will
consider late filed comments to the extent practicable. This interim
final rule may be amended based on comments received.
X. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not a significant regulatory action under
Executive Order 12866 and the regulatory policies or procedures of the
Department of Transportation (44 FR 11034). This final rule imposes
minimal new compliance costs on the regulated industry. It incorporates
into the HMR FMCSA,
[[Page 23841]]
TSA, and USCG requirements concerning security requirements related to
the transportation of hazardous materials, including explosives, and
adds a security certification requirement for applicants for exemptions
from the HMR.
B. 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. This
final rule imposes minimal new compliance costs on the regulated
industry. It incorporates into the HMR FMCSA, TSA, and USCG
requirements concerning security requirements related to the
transportation of hazardous materials, including explosives, and adds a
security certification requirement for applicants for exemptions from
the HMR. I hereby certify that the requirements of this final rule will
not have a significant impact on a substantial number of small
entities.
C. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule preempts State, local, and Indian tribe requirements but
does not impose any regulation with 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.
D. Executive Order 13175
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
does not significantly or uniquely affect the communities of the Indian
tribal governments and does not impose substantial direct compliance
costs, the funding and consultation requirements of Executive Order
13175 do not apply.
E. Unfunded Mandates Reform Act of 1995
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in annual
costs of $100 million or more, in the aggregate, to any of the
following: State, local, or Indian tribal governments, or the private
sector.
F. Paperwork Reduction Act
RSPA has a current information collection approval under OMB No.
2137-0051, Preemption Requirements with 4,219 burden hours, which
includes information collection estimates for the exemptions
application process. We are in the process of requesting OMB approval
for extension of this approval; on February 5, 2003, we published a
notice under Docket No. RSPA-2003-14307 requesting comments on
extension of this approval (68 FR 5972).
We estimate that an application for an exemption will require 5
hours to complete. An application to renew an exemption will require
one hour to complete. The addition of a security certification as part
of an exemption application will not add any appreciable time to this
process. Therefore, we are not resubmitting the approval request to
OMB. Comments on the potential paperwork burden that may be associated
with the new security certification requirement should be submitted to
the docket identified for this interim final rule or to Docket No.
RSPA-2003-14307.
Requests for a copy of the information collection should be
directed to Deborah Boothe, Office of Hazardous Materials Standards
(DHM-10), Research and Special Programs Administration, Room 8102, 400
Seventh Street, SW., Washington, DC 20590-0001, telephone (202) 366-
8553.
G. 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 cross-reference this action with the
Unified Agenda.
H. Environmental Assessment
There are no significant environmental impacts associated with this
final rule. It incorporates into the HMR FMCSA, TSA, and USCG
requirements concerning security requirements related to the
transportation of hazardous materials, including explosives, and adds a
security certification requirement for applicants for exemptions from
the HMR.
I. 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 (65 FR 19477) or you
may visit http://dms.dot.gov.
List of Subjects
49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation, Penalties, Reporting and recordkeeping requirements.
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.
49 CFR Part 176
Hazardous materials transportation, Maritime carriers, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 177
Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.
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In consideration of the foregoing, we are amending 49 CFR Parts 107,
171, 176, and 177, as follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
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1. The authority citation for part 107 continues to read as follows:
Authority: 49 U.S.C. 5101-5127, 44701; Section 212-213, Pub. L.
104-121, 110 Stat. 857; 49 CFR 1.45, 1.53.
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2. In Sec. 107.105, paragraph (c)(10) is added to read as follows:
Sec. 107.105 Application for exemption.
* * * * *
(c) * * *
(10) A certification that the applicant is in compliance with
transportation security laws and regulations. When a Class 1 material
is forbidden for transportation by air except under an exemption (see
Columns 9A and 9B in the table in 49 CFR 172.101), an applicant for an
exemption to transport such Class 1 material on passenger-carrying or
cargo-only aircraft must also certify that no person within the
[[Page 23842]]
categories listed in 18 U.S.C. 842(i) will participate in the
transportation of the Class 1 material.
* * * * *
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3. In Sec. 107.109, paragraph (a)(6) is added to read as follows:
Sec. 107.109 Application for renewal.
(a) * * *
(6) Include a certification that the applicant is in compliance
with transportation security laws and regulations. When a Class 1
material is forbidden for transportation by air except under an
exemption (see Columns 9A and 9B in the table in 49 CFR 172.101), an
applicant for an exemption to transport such Class 1 material on
passenger-carrying or cargo-only aircraft must also certify that no
person within the categories listed in 18 U.S.C. 842(i) will
participate in the transportation of the Class 1 material.
* * * * *
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
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4. The authority citation for part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
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5. In Sec. 171.12a, paragraph (b)(19) is added to read as follows:
Sec. 171.12a Canadian shipments and packagings.
* * * * *
(b) * * *
(19) Rail and motor carriers must comply with 49 CFR 1572.9 and 49
CFR 1572.11 to the extent those regulations apply, when transporting
Class 1 materials.
PART 176--CARRIAGE BY VESSEL
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6. The authority citation for part 176 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
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7. Section 176.7 is added to read as follows:
Sec. 176.7 Documentation for vessel personnel.
Each owner, operator, master, agent, person in charge, and
charterer must ensure that vessel personnel required to have a license,
certificate of registry, or merchant mariner's document by 46 CFR parts
10 and 12 possess a license, certificate or document, as appropriate.
PART 177--CARRIAGE BY PUBLIC HIGHWAY
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8. The authority citation for part 177 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
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9. Section 177.804 is revised to read as follows:
Sec. 177.804 Compliance with Federal Motor Carrier Safety
Regulations.
Motor carriers and other persons subject to this part must comply
with 49 CFR part 383 and 49 CFR parts 390 through 397 (excluding
Sec. Sec. 397.3 and 397.9) to the extent those regulations apply.
Issued in Washington DC on April 25, 2003, under authority
delegated in 49 CFR part 1.
Samuel G. Bonasso,
Acting Administrator, Research and Special Programs Administration.
[FR Doc. 03-10828 Filed 5-2-03; 8:45 am]
BILLING CODE 4910-60-P