[Federal Register Volume 67, Number 85 (Thursday, May 2, 2002)]
[Proposed Rules]
[Pages 22028-22035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10405]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 107, 171, 172, and 177
[Docket No. RSPA-02-12064 (HM-232)]
RIN 2137-AD66
Hazardous Materials: Security Requirements for Offerors and
Transporters of Hazardous Materials
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Research and Special Programs Administration is proposing
new requirements to enhance the security of hazardous materials
transported in commerce. Proposals include a requirement for motor
carriers registered with the agency to maintain a copy of their current
registration certificate on each motor vehicle. We further propose to
require shipping papers to include the name and address of the
consignor and consignee and the shipper's DOT Hazmat Registration
number, if applicable. In addition, we propose to require shippers and
carriers of certain highly hazardous materials to develop and implement
security plans. We also propose to require hazardous materials shippers
and carriers to assure that their employee training includes a security
component.
DATES: Submit comments by June 3, 2002. 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-
02-12064 (HM-232) 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 9:00
a.m. and 5:00 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:
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,
poisonous, 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.
RSPA's hazardous materials transportation safety program has
historically focused on reducing risks related to the unintentional
release of hazardous materials. The hazardous materials regulations
(HMR; 49 CFR Parts 171-180) 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 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.
In the wrong hands, hazardous materials can pose a significant
security threat. Hazardous materials in transportation are particularly
vulnerable to sabotage or misuse. Security of hazardous materials in
the transportation environment poses unique challenges as compared to
security at fixed facilities. Hazardous materials are frequently
transported in substantial quantities. Such materials are already
mobile and are frequently transported in proximity to large population
centers. Further, hazardous materials in transportation are often
clearly identified to ensure safe and appropriate handling during
transportation and to facilitate effective emergency response in the
event of an accidental release. While the HMR provide for a high degree
of safety with respect to avoiding and mitigating unintentional
releases of hazardous materials during transportation, the HMR do not
specifically address security threats.
As a result of the terrorist attacks of September 11, 2001, and
subsequent threats related to biological and other hazardous materials,
the Research and Special Programs Administration (RSPA, we) has
undertaken 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 in the wake of the September
11 attacks 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, Federal Railroad Administration, Federal Aviation
Administration, 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.
[[Page 22029]]
In addition, we identified a number of regulatory measures that,
when implemented, will improve the security of hazardous materials in
transportation. In this NPRM, we are proposing to revise requirements
in the HMR applicable to registration certificates, shipping
documentation, and training. We also propose to establish a new
requirement for certain hazardous materials shippers and carriers to
have plans in place to assure the security of shipments during
transportation.
Many of these proposed requirements already are being implemented
voluntarily by the hazardous materials industry, particularly by
shippers and carriers of certain highly hazardous materials. If
adopted, the measures proposed in this NPRM will facilitate monitoring
and tracking of hazardous materials shipments by shippers, carriers,
and enforcement authorities; reduce the potential for certain hazardous
materials to be targets for terrorists or saboteurs; and increase
security awareness for hazardous materials employees. Specific
provisions of this NPRM are discussed below.
A. Registration Certificates
Currently, each motor carrier transporting placarded quantities of
certain classes or divisions of hazardous materials is required to file
with RSPA a registration statement and pay an annual fee (49 CFR Part
107). A Certificate of Registration (certificate), which includes a
U.S. DOT Hazmat Registration Number, is then issued by RSPA to the
carrier. A carrier must display its registration number on a document
carried on each motor vehicle, but need not maintain a copy of the
certificate itself on each vehicle.
The registration certificate can substantially assist state and
local law enforcement personnel in determining whether a carrier is a
legitimate transporter of hazardous materials. Therefore, in this NPRM,
we propose to revise 49 CFR 107.620(b) and Part 177 of the HMR to
require each motor carrier registered with RSPA to maintain a copy of
its current certificate on each motor vehicle used to transport
hazardous materials.
B. Shipping Papers
Many hazardous materials transported in commerce potentially may be
used as weapons of mass destruction or weapons of convenience. It is
critical to assuring the safety and security of these shipments that
transportation of a hazardous material by an unauthorized carrier or
vehicle operator is readily apparent to Federal, state, and local
regulatory and law enforcement agencies. Shipping papers are an
important tool for assisting law enforcement personnel to identify
unusual or unauthorized activities involving drivers or vehicles.
Currently, the HMR generally require each person who offers a
hazardous material for transportation to describe the material on a
shipping paper. However, there is no requirement for a shipping paper
to include the name and address of the person offering the shipment or
the person to whom the shipment will be delivered. Further, there is no
requirement for a shipping paper to include the U.S. DOT Hazmat
Registration Number of the person offering the hazardous material for
transportation. A requirement to include this information on a shipping
paper will assist law enforcement personnel to promptly ascertain the
legitimacy of hazardous materials shipments during routine or random
roadside inspections and to identify suspicious or questionable
situations where additional investigation may be necessary.
Therefore, in this NPRM, we propose to amend Sec. 172.201 of the
HMR to require each shipping paper to include the name of the shipment
consignor and the address from which the shipment originates and the
name and address of each person to whom the shipment will be delivered.
In addition, we propose to require each shipping paper to include the
U.S. DOT Hazmat Registration Number, if applicable, of the person
offering the shipment for transportation. The names and addresses of
the consignor and each consignee may be included in an attachment to
the shipping paper. If contained in an attachment, the attachment would
not be subject to the one-year retention requirement of 49 U.S.C.
5110(e). Note that the proposal requires a shipping paper to include
the actual street address from which a shipment originates and the
actual street address(es) to which a shipment will be delivered. A
billing address, corporate headquarters address, or post office box
number would not be acceptable. Moreover, each person who prepares a
shipping paper for a given shipment must indicate the location from
which the hazardous material will be transported and the destination to
which the hazardous material will be delivered under that shipping
paper. As an example, a shipment originates in New York City and is
transported to a freight forwarder located in Baltimore to be
consolidated with other materials and transported to Atlanta. In this
case, the original shipper will complete a shipping paper that includes
the origin address in New York City and the destination address in
Baltimore. The freight forwarder will complete a new shipping paper for
the consolidated shipment that includes the origin address in Baltimore
and the destination address in Atlanta.
In this NPRM, we propose to except certain shipments from the
requirement to include consignor/consignee names and addresses and U.S.
DOT Registration Numbers on shipping papers. The exceptions would apply
to limited quantities of hazardous materials and to materials described
as: Battery powered equipment; Battery powered vehicle; Carbon dioxide,
solid; Castor bean; Castor flake; Castor meal; Castor pomace; Consumer
commodity; Dry ice; Engines, internal combustion; Fish meal,
stabilized; Fish scrap, stabilized; Refrigerating machine; Vehicle,
flammable gas powered; Vehicle, flammable liquid powered; and
Wheelchair, electric. The proposed exceptions are identical to current
exceptions from the requirement in Subpart G of Part 172 for emergency
response information to accompany hazardous materials shipments. The
listed materials do not pose a security risk in transportation.
C. Security Plans
Hazardous materials in transit are uniquely vulnerable to theft or
attack. To assure public safety, shippers and carriers must take
reasonable measures to plan for and implement procedures to prevent
unauthorized persons from taking control of or attacking hazardous
materials shipments. Therefore, in this NPRM, we propose a new Subpart
I in Part 172 to require persons subject to the registration
requirements in Subpart G of Part 107 and persons who offer or
transport infectious substances listed as select agents by the Centers
for Disease Control and Prevention (CDC) in 42 CFR Part 72 to develop
and implement written plans to assure the security of hazardous
materials shipments. Those persons required to register under Subpart G
of Part 107 include persons who offer for transportation or transport:
(1) A highway route-controlled quantity of a Class 7 (radioactive)
material; (2) more than 25 kg (55 lbs) of a Division 1.1, 1.2, or 1.3
(explosive) material; (3) more than 1 L (1.06 qt) per package of a
material poisonous by inhalation in Hazard Zone A; (4) a shipment in a
bulk packaging with a capacity equal to or greater than 13,248 L (3,500
gal) for liquids or gases or greater than 13.24 cubic meters (468 cubic
feet) for solids; and (5) a shipment that requires placarding. Select
agents are infectious
[[Page 22030]]
substances identified by CDC as materials with the potential to have
serious consequences for human health and safety if used
illegitimately.
The requirements for a transportation security plan are in a new
Subpart I of Part 172. In Subpart I, we propose to establish a general
requirement for persons who offer hazardous materials for
transportation and persons who transport hazardous materials in
commerce to have written security plans. At a minimum, a security plan
should use a risk management model to assess security risks and develop
appropriate measures to reduce or eliminate risk. To assist shippers
and carriers to perform appropriate risk assessments, we made a Risk
Management Self-Evaluation Framework available on our website (http://hazmat.dot.gov). A number of industry associations have also developed
guidelines for performing security risk assessments. See our February
14, 2002 advisory notice for a list of Federal agencies and industry
associations and organizations that may be of help.
For hazardous materials transportation, a security plan should
focus not only on the potential threats posed by the material, but on
personnel, facility, and en route security issues, as well. This NPRM
does not include a laundry list of actions that must be included in a
security plan. Rather, a company should implement a plan that is
appropriate to its individual circumstances, considering the types and
amounts of hazardous materials shipped or transported and the modes
used for transportation.
It is our understanding that the USCG and the International
Maritime Organization (IMO) are considering broad, comprehensive
security-related requirements for vessels and port facilities. The
requirements under consideration would address all vessel and port
facility operations, not merely those involving hazardous materials. In
addition, the Environmental Protection Agency (EPA) is considering
security requirements for fixed facilities that handle hazardous
materials. It is not our intention to require shippers or carriers to
develop several different security plans in order to comply with
regulations that may be issued by other Federal or international
entities. Therefore, in this NPRM, we include language to specify that
security plans that conform to requirements issued by other Federal or
international agencies may be used to satisfy the requirement proposed
for the HMR, provided the security plans address the components
specified.
D. Training
The HMR currently require hazmat employees to be trained so they:
(1) Are familiar with the general provisions of the HMR and can
recognize and identify hazardous materials; (2) are knowledgeable about
specific HMR requirements applicable to functions performed; and (3)
are knowledgeable about emergency response information, self-protection
measures, and accident prevention methods. A hazmat employee is one who
directly affects hazardous materials transportation safety
(Sec. 171.8). Hazmat employers must ensure that their hazmat employees
are trained. For new employees, training must be completed within 90
days after employment or a change in job function. All hazmat employees
must receive recurrent training every three years.
The safety training provided by hazmat employers may include the
physical security of hazardous materials and ways to prevent vandalism
and theft. However, such training may not be adequate to meet current
threats. Because many hazardous materials transported in commerce may
potentially be used as weapons of mass destruction or weapons of
convenience, it is critical to the assurance of public safety that
training for persons who offer and transport hazardous materials in
commerce include a security component. Therefore, in this NPRM, we are
proposing to add a provision to Sec. 172.704 to require the training of
each hazmat employee to include a security component. Under this
proposal, hazmat employees of persons required to have a security plan
under the provisions of this NPRM must be trained in the plan's
specifics. All hazmat employees must receive training that provides an
awareness of the security issues associated with hazardous materials
transportation and possible methods to enhance transportation security.
This training must also include a component covering how to recognize
and respond to possible security threats. As proposed in this NPRM, all
hazmat employees would be required to be trained within three months of
issuance of a final rule.
As discussed above under ``Security Plans,'' we are aware that the
USCG, IMO, and EPA are considering comprehensive security requirements
for operations and facilities under their respective jurisdictions. To
the extent that regulations promulgated by other agencies may include
security training, such training may be used to satisfy the training
requirements proposed in this NPRM, provided the training covers the
components specified in this NPRM.
II. Comments on the NPRM
The threat to this Nation's security posed by possible intentional
misuse of hazardous materials in transportation in commerce is ongoing
and significant. Those responsible for the September 11 attacks on the
World Trade Center and the Pentagon are affiliated with an organization
possessing a near-global terrorist network. The leaders of the groups
constituting this organization have publicly stated that they will
attack the United States for incarcerating their members. These groups
are also vehemently opposed to U.S. foreign policy and presence in the
Middle East. They appear to be willing to and may well be capable of
conducting bombings, hijackings, and suicide attacks against domestic
U.S. targets. Hazardous materials shippers and carriers must take
action to enhance hazardous materials transportation security.
Therefore, we are issuing this NPRM with a very short comment period.
We encourage persons to participate in this rulemaking by submitting
comments containing relevant information, data, or views. We also
invite comments concerning the costs and benefits that may result from
the provisions of this NPRM and particularly the costs that may be
incurred by small businesses. We will consider all comments received on
or before the closing date for comments. We will consider late-filed
comments to the extent practicable.
III. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This NPRM is not considered a significant regulatory action under
Executive Order 12866 and, therefore, was not reviewed by the Office of
Management and Budget. This NPRM is not considered significant under
the regulatory policies and procedures of the Department of
Transportation (44 FR 11034). The costs and benefits associated with
the proposals in this NPRM are discussed below.
Although many hazardous materials shippers and carriers have
already implemented many of the actions proposed in this NPRM, we
recognize that the proposals may impose additional costs on them. Most
compliance costs resulting from this NPRM will result from the new
requirements for certain shippers and carriers to develop and implement
security plans and for hazmat employee training to include a security
component.
Security plans. The proposed security plan requirement applies to
shippers
[[Page 22031]]
and carriers who are required to register with RSPA under Subpart G of
49 CFR part 107 or persons who offer or transport infectious substances
listed as select agents by the Centers for Disease Control and
Prevention (CDC) in 42 CFR part 72. Those persons required to register
under Subpart G of Part 107 include persons who offer for
transportation or transport: (1) A highway route-controlled quantity of
a Class 7 (radioactive) material; (2) more than 25 kg (55 lbs) of a
Division 1.1, 1.2, or 1.3 (explosive) material; (3) more than 1 L (1.06
qt) per package of a material poisonous by inhalation in hazard zone A;
(4) a shipment in a bulk packaging with a capacity equal to or greater
than 13,248 L (3,500 gal) for liquids or gases or greater than 13.24
cubic meters (468 cubic feet) for solids; and (5) 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.
About 43,000 shippers and carriers are registered with DOT under
the provisions of 49 CFR Part 107 (FY 2000, most recent year
available). In addition, about 1,000 shippers apply to CDC each year
for permission to transport select agents (OMB Control No. 0920-0199).
We estimate that development of a security plan from the ground up
would require about 40 hours for all persons (management and technical
personnel) involved. However, many industry associations have developed
guidance and model security plans for use by their members. As a
result, most companies already have implemented many of the elements of
a security plan either as part of their standard operating procedures
or in response to the events of September 11. Further, to assist
hazardous materials shippers and transporters in evaluating risks and
implementing measures to reduce those risks, we designed a security
template for the Risk Management Self-Evaluation Framework (RMSEF).
RMSEF is a tool we developed through a public process to assist
regulators, shippers, carriers, and emergency response personnel to
examine their operations, and consider how they assess and manage risk.
The security template illustrates how risk management methodology can
be used to identify points in the transportation process where security
procedures should be enhanced within the context of an overall risk
management strategy. The RMSEF security template is posted on our
website at http://hazmat.dot.gov/rmsef.htm.
We estimate that most companies would require about 20 hours to
develop and implement a security plan that conforms to the new
regulatory requirements. Maintaining and updating the plan as necessary
would require about 1 hour each year after the plan is implemented.
Using Bureau of Labor Statistics information on employee compensation
(March 2001), we estimate that the cost per hour of developing and
updating a security plan is $30.00. The industry would thus incur an
estimated $26,400,000 in first-year compliance costs, or about $600 per
entity (44,000 affected entities x 20 hrs x $30.00/hr =
$26,400,000). In subsequent years, we estimate that 200 new entrants
would be subject to the security plan requirement, incurring compliance
costs estimated at $120,000. Companies required to update and maintain
security plans would incur compliance costs of about $1,320,000, or $30
per entity.
Security training. The proposed requirement for security training
applies to all hazmat employees, defined in Sec. 171.8 of the HMR as
persons employed by a company that offers or transports hazardous
materials in commerce (hazmat employer) that directly affect hazardous
materials safety. Based on information in the 1997 Economic Census, we
estimate that firms involved with the transportation of hazardous
materials employ a total of 6 million individuals. Of these, perhaps 5
percent are hazmat employees, as defined in the HMR. Thus, about
300,000 hazmat employees will be subject to the new requirement for
security training.
The training requirements in the HMR can be met in a number of
ways--classroom instruction, self-instruction, on-the-job training,
etc. This flexibility helps to minimize the cost to hazmat employers
and allows use of the most efficient, effective training methods to
meet the basic requirements. To assist hazmat employers to meet any new
security training requirements, we are developing a Hazardous Materials
Transportation Security Awareness Training Module directed at law
enforcement, industry, and the hazmat community. The training module
will be web-based, posted on the HMS website, and presented at
multimodal seminars.
We estimate that, on average, a hazmat employee would require one
hour of security training to meet the new requirements. The costs of
training would vary, depending on the method used. For example, the
security training module we are developing will be provided free of
charge. The current cost of CDROM hazmat training modules is $25 per
module. Classroom training may cost as much as $75 per hour. We
estimate that the average training cost for one hour of security
training will be $15. Thus, the industry would incur costs of about
$4,500,000 in first-year compliance costs (300,000 hazmat employees x
one hour of training x $15/hour = $4,500,000). Hazmat employees must
be trained at least once every three years. Thus, in subsequent years
the industry would incur about $1,500,000 in recurrent training costs.
The benefits of the security programs proposed in this NPRM are
difficult to quantify. However, the cost of one devastating terrorist
attack caused by a crude bomb made from commonly available hazardous
materials is illustrative. On April 19, 1995, Timothy McVeigh blew up
the Murrah Federal Building in Oklahoma City with a bomb made from
fertilizer and fuel oil. The bomb killed 168 people, including 19
children, injured 500 more people, and caused more than $1 billion in
property and economic damage. If the measures proposed in this NPRM
prevent even one such terrorist act, the potential costs industry will
incur will be more than offset by the benefits.
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. We have
determined that, while the requirements in this NPRM apply to a
substantial number of small entities, there will not be a significant
economic impact on those small entities.
Need for the NPRM. RSPA's hazardous materials transportation safety
program has historically focused on reducing risks related to the
unintentional release of hazardous materials. The HMR have provided a
high degree of safety with respect to incidents that occur during
transportation. However, in the wake of September 11, we face a
heightened security environment. The risk of hazardous materials
falling into the wrong hands poses a significant security challenge.
Description of Actions. In this NPRM, we propose to amend the HMR
to:
Require motor carriers registered with DOT to maintain a
copy of their current registration certificate on each motor vehicle.
Require shipping papers to include the name and address of
the shipment consignor and consignee and the
[[Page 22032]]
shipper's DOT Hazmat Registration Number, if applicable.
Require shippers and carriers of certain highly hazardous
materials to develop and implement security plans.
Require hazardous materials shippers and carriers to
assure that employee training includes a security component.
Identification of potentially affected small entities. Businesses
likely to be affected by the proposals in this NPRM are persons who
offer and transport hazardous materials in commerce. We estimate there
are approximately 400,000 persons who offer or transport hazardous
materials in commerce subject to requirements in the HMR who will be
affected by the proposals involving shipping documentation and security
training. Approximately 44,000 entities will be subject to the proposed
requirement for security plans.
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, we employ the thresholds published by SBA for industries
subject to the HMR. Based on data for 1997 compiled by the U.S. Census
Bureau, it appears that upwards of 95 percent of firms subject to the
requirements proposed in this NPRM are small businesses.
Reporting and recordkeeping requirements. This NPRM proposes
several new or modified recordkeeping requirements. These are detailed
in the section of this preamble entitled ``Paperwork Reduction Act.''
We have built flexibility into the proposed requirements, so that
entities can choose the method by which they comply with the proposals.
For example, there is no prescribed form for shipping papers. Shippers
are permitted to use waybills, bills of lading, and other types of
shipping documents provided they include the information required in
the HMR. Similarly, there is no form prescribed for security plans.
Entities can assess their own situations and tailor the requirements to
fit them.
Related Federal rules and regulations. With respect to the security
of hazardous materials transported in commerce, there are no related
rules or regulations issued by other departments or agencies of the
Federal government. However, it is our understanding that certain
Federal agencies (such as the USCG and EPA) and international
standards-setting organizations (such as IMO) are considering
comprehensive security requirements for the entities under their
jurisdiction. This NPRM includes language to permit programs
implemented in conformance with other Federal or international
requirements to be used to comply with the requirements in this NPRM,
provided the specific components in this NPRM are covered.
Alternate proposals for small businesses. The Regulatory
Flexibility Act directs agencies to establish exceptions and differing
compliance standards for small businesses, where it is possible to do
so and still meet the objectives of applicable regulatory statutes. In
the case of the security of hazardous materials transported in
commerce, it is not possible to establish exceptions or differing
standards and still accomplish the objectives of Federal hazmat law.
We developed this NPRM under the assumption that small businesses
make up the overwhelming majority of entities that will be subject to
its provisions. Thus, we considered how to minimize expected compliance
costs as we developed this NPRM.
Conclusion. Based on the discussion of the potential costs of this
NPRM in the section of this preamble entitled ``Executive Order 12866
and DOT Regulatory Policies and Procedures,'' we conclude that, while
this NPRM applies to a substantial number of small entities, there will
not be a significant economic impact on those small entities. We
estimate the cost of developing and implementing a security plan to be
about $600 per company. Updating and maintaining a security plan would
cost about $30 per entity. The costs incurred for providing security
training to hazmat employees would be about $15 per employee.
C. Executive Order 13132
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This NPRM
preempts state, local, and Indian tribe requirements but does not
propose 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.
Federal hazardous materials transportation law, 49 U.S.C. 5101-
5127, contains an express preemption provision (49 U.S.C. 5125(b))
preempting state, local, and Indian tribe requirements on certain
covered subjects. Covered subjects are:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This NPRM addresses covered subject item 3 above and preempts
state, local, and Indian tribe requirements not meeting the
``substantively the same'' standard. This NPRM is necessary to assure
the security of hazardous materials transported in commerce.
Federal hazardous materials transportation law provides at
Sec. 5125(b)(2) that, if DOT issues a regulation concerning any of the
covered subjects, DOT must determine and publish in the Federal
Register the effective date of Federal preemption. The effective date
may not be earlier than the 90th day following the date of issuance of
a final rule and not later than two years after the date of issuance.
We propose that the effective date of Federal preemption will be 90
days from publication of a final rule in the Federal Register.
We invite comments on whether, and to what extent, state or local
governments or Indian tribes should be permitted to impose similar
additional requirements to those proposed in this rulemaking. For
example, should a state be allowed to require all shippers and carriers
of hazardous materials to have security plans?
D. Executive Order 13175
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this NPRM 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.
[[Page 22033]]
E. Unfunded Mandates Reform Act of 1995
This NPRM does not impose unfunded mandates under the Unfunded
Mandates Reform Act of 1995. It does not result in costs of $100
million or more, in the aggregate, to any of the following: state,
local, or Indian tribal governments, or the private sector. This rule
is the least burdensome alternative to achieve the objective of the
rule.
F. Paperwork Reduction Act
We submitted the information collection and recordkeeping
requirements contained in this NPRM to the Office of Management and
Budget (OMB) for approval under the provisions of the Paperwork
Reduction Act of 1995, Section 1320.8(d). Title 5, Code of Federal
Regulations requires us to provide interested members of the public and
affected agencies an opportunity to comment on information collection
and recordkeeping requests. Under the Paperwork Reduction Act, no
person is required to respond to an information collection unless it
has been approved by OMB and displays a valid OMB control number.
RSPA currently has an approved information collection under OMB
Control No. 2137-0034, ``Hazardous Materials Shipping Papers &
Emergency Response Information'' with 6,500,000 burden hours and
$6,500,000 cost. There will be an increase in the burden for OMB
Control No. 2137-0034 due to additional information this NPRM requires
to be included on shipping papers. In addition, there will be a new
information collection burden for a new requirement for a security
plan. This new information collection, ``Hazardous Materials Security
Plans'', will be assigned an OMB control number after review and
approval by OMB.
We estimate that the new total information collection and
recordkeeping burden resulting from the additional information required
on shipping papers and for the development and maintenance of security
plans under this rule are as follows.
Hazardous Materials Shipping Papers & Emergency Response
Information
[OMB No. 2137-0034]
Total Annual Number of Respondents: 250,000.
Total Annual Responses: 260,000,000.
Total Annual Burden Hours: 6,861,111.
Total Annual Burden Cost: $6,929,722.11.
Hazardous Materials Security Plans
[OMB No. 2137-xxxx]
First Year Annual Burden:
Total Annual Number of Respondents: 44,000.
Total Annual Responses: 44,000.
Total Annual Burden Hours: 880,000.
Total Annual Burden Cost: $26,400,000.00.
Subsequent Year Burden:
Total Annual Number of Respondents: 44,200.
Total Annual Responses: 44,200.
Total Annual Burden Hours: 48,000.
Total Annual Burden Cost: $1,440,000.00.
Requests for a copy of this information collection should be
directed to Deborah Boothe, Office of Hazardous Materials Standards
(DHM-10), Research and Special Programs Administration, Room 8422, 400
Seventh Street, SW, Washington, DC 20590-0001. Telephone (202) 366-
8553. Written comments should be addressed to the Dockets Unit as
identified in the ADDRESSES section of this rulemaking. We will publish
a notice advising interested parties of the OMB control number for this
information collection when assigned by OMB.
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
NPRM.
List of Subjects
49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation, Packaging and containers, Penalties, Reporting and
recordkeeping requirements.
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 172
Hazardous materials transportation, Hazardous waste, Labeling,
Packaging and containers, Reporting and recordkeeping requirements.
49 CFR Part 177
Hazardous materials transportation, Motor vehicle safety, Packaging
and containers, Reporting and recordkeeping requirements.
In consideration of the foregoing, we propose to amend Title 49,
Chapter I, Subchapters A and C, of the Code of Federal Regulations, as
follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
1. The authority citation for part 107 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127, 44701; Sec. 212-213, Pub. L.
104-121, 110 Stat. 857; 49 CFR 1.45, 1.53.
2. In Sec. 107.620, paragraph (b) would be revised to read as
follows:
Sec. 107.620 Recordkeeping requirements.
* * * * *
(b) Each motor carrier subject to the requirements of this subpart
must carry a copy of its current Certificate of Registration issued by
RSPA on board each truck and truck tractor (not including trailers and
semi-trailers) used to transport hazardous materials subject to the
requirements of this subpart. The Certificate of Registration must
immediately be made available, upon request, to enforcement personnel.
* * * * *
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
3. The authority citation for part 171 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR part 1.
4. In Sec. 171.11, paragraph (d)(18) would be added to read as
follows:
Sec. 171.11 Use of ICAO Technical Instructions.
* * * * *
(d) * * *
(18) The shipping paper must include the name of the consignor and
the complete address from which the shipment originates, and the name
and complete address of each person to whom the hazardous material will
be delivered (consignee), in accordance with Sec. 172.201(e) of this
subchapter. If the person offering the hazardous material for
transportation is subject to the requirements of subpart G of 49 CFR
part 107, the shipping paper must include the person's current
registration number, identified as ``U.S. DOT Hazmat Reg. No.'' in
accordance with Sec. 172.201(f) of this subchapter. The
[[Page 22034]]
requirements of this paragraph (d)(18) do not apply to shipments
excepted under Sec. 172.201(g) of this subchapter.
5. In Sec. 171.12, paragraph (b)(21) would be added to read as
follows:
Sec. 171.12 Import and export shipments.
* * * * *
(b) * * *
(21) The shipping paper must include the name of the consignor and
the complete address from which the shipment originates, and the name
and complete address of each person to whom the hazardous material will
be delivered (consignee), in accordance with Sec. 172.201(e) of this
subchapter. If the person offering the hazardous material for
transportation is subject to the requirements of subpart G of 49 CFR
part 107, the shipping paper must include the person's current
registration number, identified as ``U.S. DOT Hazmat Reg. No.'' in
accordance with Sec. 172.201(f) of this subchapter. The requirements of
this paragraph (b)(21) do not apply to shipments excepted under
Sec. 172.201(g) of this subchapter.
* * * * *
6. In Sec. 171.12a, paragraph (b)(19) would be added to read as
follows:
Sec. 171.12a Canadian shipments and packagings.
* * * * *
(b) * * *
(19) The shipping paper must include the name of the consignor and
the complete address from which the shipment originates, and the name
and complete address of each person to whom the hazardous material will
be delivered (consignee), in accordance with Sec. 172.201(e) of this
subchapter. If the person offering the hazardous material for
transportation is subject to the requirements of subpart G of 49 CFR
part 107, the shipping paper must include the person's current
registration number, identified as ``U.S. DOT Hazmat Reg. No.'' in
accordance with Sec. 172.201(f) of this subchapter. The requirements of
this paragraph (b)(19) do not apply to shipments excepted under
Sec. 172.201(g) of this subchapter.
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
7. The authority citation for part 172 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
8. In Sec. 172.201, paragraphs (e), (f), and (g) would be added to
read as follows:
Sec. 172.201 General entries.
* * * * *
(e) Consignor and consignee name and address. After [date 20 days
after effective date of final rule], a shipping paper must include the
name of the consignor and the complete address from which the shipment
originates, and the name and complete address of each person to whom
the hazardous material will be delivered (consignee). The names and
addresses may be included on an attachment to the shipping paper.
(f) Registration number. After [date 20 days after effective date
of final rule], if the person offering a hazardous material for
transportation is subject to the requirements of subpart G of 49 CFR
part 107, the shipping paper must include the person's current
registration number, identified as ``U.S. DOT Hazmat Reg. No.''
(g) Exceptions. The requirements of paragraphs (e) and (f) of this
section do not apply to--
(1) Hazardous materials that are offered for transportation under
the provisions of this subchapter applicable to limited quantities; and
(2) Materials properly described under the following shipping
names:
Battery powered equipment
Battery powered vehicle
Carbon dioxide, solid
Castor bean
Castor flake
Castor meal
Castor pomace
Consumer commodity
Dry ice
Engines, internal combustion
Fish meal, stabilized
Fish scrap, stabilized
Refrigerating machine
Vehicle, flammable gas powered
Vehicle, flammable liquid powered
Wheelchair, electric
Sec. 172.203 [Amended]
9. In Sec. 172.203, paragraph (i)(4) would be removed, and
paragraphs (i)(5) and (i)(6) would be redesignated as paragraphs (i)(4)
and (i)(5), respectively.
10. In Sec. 172.704, paragraph (a) introductory text would be
revised and paragraph (a)(4) would be added, and paragraph (b) would be
revised to read as follows:
Sec. 172.704 Training requirements.
(a) Hazmat employee training must include the following:
* * * * *
(4) Security training. By [date three months after effective date
of final rule], each hazmat employee must receive training on how to
assure the security of hazardous materials that are transported in
commerce.
(i) For each hazmat employee, security training must provide an
awareness of the security issues associated with hazardous materials
transportation and methods designed to assure transportation security.
This training must also include a component covering how to recognize
and respond to possible security threats.
(ii) Each hazmat employee of a person required to have a security
plan that conforms to Sec. 173.14 of this subchapter must be familiar
with the security plan and its implementation. Security training must
include company security objectives, specific security procedures,
employee responsibilities, actions to take in the event of a security
breach, and the organizational security structure.
(b) OSHA, EPA, and other training. Training conducted by employers
to comply with the hazard communication programs required by the
Occupational Safety and Health Administration of the Department of
Labor (29 CFR 1910.120 or 1910.1200) or the Environmental Protection
Agency (40 CFR 311.1), or training conducted by employers to comply
with security training programs required by other Federal or
international agencies, may be used to satisfy the training
requirements in paragraph (a) of this section to the extent that such
training addresses the training components specified in paragraph (a)
of this section.
* * * * *
11. Subpart I would be added to read as follows:
Subpart I--Security Plans
Sec.
172.800 Purpose and applicability.
172.802 Components of a security plan.
172.804 Relationship to other Federal requirements.
Sec. 172.800 Purpose and applicability.
(a) Purpose. This subpart prescribes requirements for shippers and
carriers to develop and implement plans to assure the security of
hazardous materials transported in commerce.
(b) Applicability. Each person subject to the registration
requirements of subpart G of 49 CFR part 107 and each person who offers
for transportation or transports in commerce a Division 6.2 material,
other than a diagnostic specimen, listed as a select agent in 42 CFR
part 72 must develop and adhere to a security plan that conforms to the
requirements of this subpart.
Sec. 172.802 Components of a security plan.
A security plan must be written, and must be retained for as long
as it remains in effect. Copies of the security
[[Page 22035]]
plan must be available to the employees who are responsible for
implementing it. When the security plan is updated or revised, all
copies of the plan must be maintained as of the date of the most recent
revision. The security plan must include an assessment of possible
transportation security risks and appropriate measures to reduce or
eliminate the risks. Specific operational details of the security plan
may vary commensurate with the level of threat at a particular time. At
a minimum, a security plan must include the following elements:
(a) Personnel security. A process to verify the information
provided by job applicants on application forms or resumes.
(b) Unauthorized access. A process to assure that unauthorized
personnel do not have access to hazardous materials or transport
conveyances being prepared for transportation of hazardous materials.
(c) En route security. A process to assure the security of
hazardous materials shipments en route from origin to destination,
including shipments stored incidental to movement. This process may
include one or more of the following elements, as appropriate:
(1) An assessment of the transportation modes or combinations of
modes available for transporting specific materials and selection of
the most appropriate method of transportation to assure efficient and
secure movement of product.
(2) A system for verifying that the carriers used to transport
hazardous materials have an on-going transportation security program.
(3) For highway shipments, a system to verify the identity of the
carrier and driver prior to releasing a hazardous material for
transportation in commerce.
(4) Identification of preferred and alternative routing, including
acceptable deviations. Routes should minimize product exposures to
populated areas and avoid tunnels and bridges, where possible.
Transportation of a shipment to its destination should be accomplished
without unnecessary delays or layovers.
(5) A system for communicating with a transport vehicle or its
operator.
(6) A system for a customer to alert the shipper if a hazardous
material is not received when expected.
Sec. 172.804 Relationship to other Federal requirements.
To avoid unnecessary duplication of security requirements, security
plans that conform to regulations issued by other Federal or
international agencies may be used to satisfy the requirements in this
subpart, provided such security plans address the requirements
specified in this subpart.
PART 177--CARRIAGE BY PUBLIC HIGHWAY
12. The authority citation for part 177 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
13. In Sec. 177.817, paragraph (e) introductory text would be
revised to read as follows:
Sec. 177.817 Shipping papers.
* * * * *
(e) Shipping paper accessibility--accident or inspection. A driver
of a motor vehicle containing a hazardous material, and each carrier
using such a vehicle, must ensure that the shipping paper required by
this section, including an attachment prepared in accordance with
Sec. 172.201(e) of this subchapter, is readily available to, and
recognizable by, authorities in the event of accident or inspection.
Specifically, the driver and carrier must:
* * * * *
14. In subpart A, Sec. 177.820 would be added to read as follows:
Sec. 177.820 Certificates of registration.
Each motor carrier subject to the requirements of subpart G of part
107 of this chapter must carry a copy of its current Certificate of
Registration issued by RSPA on board each truck and truck tractor (not
including trailers and semi-trailers) used to transport hazardous
materials subject to the requirements of this subchapter. The
Certificate of Registration must immediately be made available, upon
request, to enforcement personnel.
Issued in Washington, DC on April 23, 2002 under authority
delegated in 49 CFR part 106.
Frits Wybenga,
Deputy Associate Administrator for Hazardous Materials Safety, Research
and Special Programs Administration.
[FR Doc. 02-10405 Filed 5-1-02; 8:45 am]
BILLING CODE 4910-60-P