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Rspa hazmat

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Risk Management

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  • 1. Monday, May 5, 2003 Part IV Department of Transportation Research and Special Programs Administration 49 CFR Part 107, et al. Hazardous Materials: Enhancing Hazardous Materials Transportation Security; Interim Final RuleVerDate Jan<31>2003 15:28 May 02, 2003 Jkt 200001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:FRFM05MYR2.SGM 05MYR2
  • 2. 23832 Federal Register / Vol. 68, No. 86 / Monday, May 5, 2003 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Management System web site at http:// shipping name on the shipping paper dms.dot.gov/. and the use of labels on packages and Research and Special Programs FOR FURTHER INFORMATION CONTACT: placards on transport vehicles. Thus the Administration Susan Gorsky, (202) 366–8553, Office of shipping paper, labels, and placards Hazardous Materials Standards, communicate the most significant 49 CFR Parts 107, 171, 176, and 177 Research and Special Programs findings of the shipper’s hazard [Docket No. RSPA–03–14982 (HM–232C)] Administration. analysis. A hazardous material is SUPPLEMENTARY INFORMATION: assigned to one of three packing groups RIN 2137–AD79 based upon its degree of hazard, from a List of Topics high hazard, Packing Group I, to a low Hazardous Materials: Enhancing I. Background hazard, Packing Group III, material. The Hazardous Materials Transportation II. Security Guidance quality, damage resistance, and Security III. Security Rulemaking performance standards of the packaging IV. USA PATRIOT Act AGENCY: Research and Special Programs in each packing group are appropriate V. Safe Explosives Act Administration (RSPA), DOT. VI. Vessel and Port Security for the hazards of the material ACTION: Interim final rule and request VII. Transportation by Air transported. for comments. VIII. DOT Determination under 18 U.S.C. Under the HMR, which are based on 845(a)(1) the internationally recognized United SUMMARY: This interim final rule IX. Comments on this Interim Final Rule Nations system for classification, incorporates into the Hazardous X. Regulatory Analyses and Notices identification, and ranking of hazardous Materials Regulations a requirement that I. Background materials, all hazardous materials are shippers and transporters of certain divided into nine general classes hazardous materials comply with Hazardous materials are essential to according to their physical, chemical, Federal security regulations that apply the economy of the United States and and nuclear properties as follows: to motor carrier and vessel the well being of its people. Hazardous materials fuel cars and trucks, and heat Class 1—Explosives transportation. In addition, this interim Class 2—Compressed, flammable, final rule revises the procedures for and cool homes and offices. Hazardous materials are used for farming and nonflammable, and poison gases applying for an exemption from the Class 3—Flammable liquids Hazardous Materials Regulations to medical applications and in manufacturing, mining, and other Class 4—Flammable solids require applicants to certify compliance Class 5—Oxidizers and organic with applicable Federal transportation industrial processes. Millions of tons of explosive, toxic, corrosive, flammable, peroxides security laws and regulations. This Class 6—Toxic and infectious materials interim final rule will assure that and radioactive materials are transported every day. Hazardous Class 7—Radioactive materials shippers and transporters are aware of Class 8—Corrosive materials materials move by plane, train, truck, or and comply with their security Class 9—Miscellaneous dangerous vessel in quantities ranging from several obligations. substances and articles ounces to many thousands of gallons. DATES: Effective Date. This interim final The vast majority of hazardous materials Within Classes 1, 2, 4, 5, and 6, there rule is effective May 5, 2003. shipments arrive safely at their are more specifically defined divisions, Compliance Date: June 4, 2003. destinations. Most incidents that do and within Class 1 there are Comments. Submit comments by June occur involve small releases of material Compatibility Group subdivisions, as 4, 2003. To the extent possible, we will and present no serious threat to life or well. The hazard classes and divisions consider late-filed comments as we property. are not mutually exclusive. Certain develop a final rule. Hazardous materials are substances hazardous materials have multiple ADDRESSES: Submit comments to the that may pose a threat to public safety dangerous properties, each of which Dockets Management System, U.S. or the environment during must be addressed according to its Department of Transportation, Room PL transportation because of their physical, relative potential to do harm. In these 401, 400 Seventh Street, SW., chemical, or nuclear properties. The cases, the UN system and the HMR Washington, DC. 20590–0001. hazardous material regulatory system is allow identification and communication Comments should identify Docket a risk management system that is of both the primary and subsidiary Number RSPA–03–14982 (HM–232C) prevention-oriented and focused on threats. and be submitted in two copies. If you identifying a safety hazard and reducing DOT’s hazardous materials wish to receive confirmation of receipt the probability and quantity of a transportation safety program has of your written comments, include a hazardous material release. Under the historically focused on reducing risks self-addressed, stamped postcard. You Department of Transportation’s related to the unintentional release of may also submit comments by e-mail by Hazardous Materials Regulations (HMR; hazardous materials. The HMR are accessing the Dockets Management 49 CFR Parts 171–180), hazardous designed to achieve two goals: (1) To System web site at http://dms.dot.gov/ materials are categorized by hazard ensure that hazardous materials are and following the instructions for analysis and experience into hazard packaged and handled safely during submitting a document electronically. classes and packing groups. The transportation, thus minimizing the The Dockets Management System is regulations require each shipper to possibility of their release should an located on the Plaza level of the Nassif classify a material in accordance with incident occur, and (2) to effectively Building at the Department of these hazard classes and packing communicate to carriers, transportation Transportation at the above address. groups; the process of classifying a workers, and emergency responders the You can review public dockets there hazardous material is itself a form of hazards of the materials being between the hours of 9 a.m. and 5 p.m., hazard analysis. Further, the regulations transported. The HMR specify how to Monday through Friday, except Federal require the shipper to communicate the classify and package a hazardous holidays. You can also review material’s hazards through use of the material. Further, the HMR prescribe a comments on-line at the DOT Dockets hazard class, packing group, and proper system of hazard communication usingVerDate Jan<31>2003 15:28 May 02, 2003 Jkt 200001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:FRFM05MYR2.SGM 05MYR2
  • 3. Federal Register / Vol. 68, No. 86 / Monday, May 5, 2003 / Rules and Regulations 23833 placards, labels, package markings, and explosives, radioactive materials, bulk shipments of materials such as shipping papers. In addition, the HMR materials that are poisonous by flammable and compressed gases, prescribe training requirements for inhalation, and flammable gases and flammable liquids, flammable solids, persons who prepare hazardous liquids. The on-site security reviews and corrosives. Based on this security materials for shipment or transport included reviews by the FMCSA risk assessment, the HM–232 final rule hazardous materials. The HMR also investigator and company officials of requires persons who offer for include operational requirements carrier records in order to identify transportation or transport the following applicable to each mode of suspicious activities by company hazardous materials to develop and transportation. employees that could affect implement security plans: (1) A transportation security. The security highway route-controlled quantity of a II. Security Guidance reviews resulted in 280 findings of Class 7 (radioactive) material; (2) more In the wake of the terrorist attacks of suspicious activities by employees, with than 25 kg (55 lbs) of a Division 1.1, 1.2, September 11, 2001, and subsequent 126 referrals to the Federal Bureau of or 1.3 (explosive) material; (3) more threats related to biological and other Investigation (FBI). Examples of than 1 L (1.06 qt) per package of a hazardous materials, DOT undertook a suspicious activity that provided the material poisonous by inhalation in broad review of government and basis for the FBI referrals include false Hazard Zone A; (4) a shipment in a bulk industry hazardous materials personnel information, citizenship packaging with a capacity equal to or transportation safety and security irregularities, FBI watch list, and greater than 13,248 L (3,500 gal) for programs. As part of this review, we previous employment irregularities. liquids or gases or greater than 13.24 established the Hazardous Materials The review included cubic meters (468 cubic feet) for solids; Direct Action Group (Hazmat DAG). The recommendations for addressing (5) infectious substances listed as select Hazmat DAG met with representatives identified security risks, including risks agents by the Centers for Disease of the hazardous materials industry, associated with current or new Control and Prevention (CDC) in 42 CFR emergency response community, and employees. The FMCSA part 73; and (6) a shipment that requires state governments to discuss recommendations for mitigating such placarding. Select agents are infectious transportation security issues and risks include measures such as: (1) substances identified by CDC as continuing terrorist threats. In addition, Implementing methods for security materials with the potential to have we created a DOT Intermodal Hazardous identification (i.e., ID badges) and serious consequences for human health Materials Transportation Security Task systems to verify employee and safety if used illegitimately. In Force, which considered attack or identification; (2) reviewing employee effect, then, the HM–232 final rule sabotage vulnerabilities, existing and applicant personnel information applies the security plan requirement to security measures, and potential ways to with a particular focus on gaps in a shipper or carrier of a hazardous reduce vulnerabilities. The Task Force employment, frequent job shifts, all material in an amount that requires included representatives from the names used by the applicant, type of placarding and to select agents. Using Federal Motor Carrier Safety military discharge, citizenship, present the placarding thresholds to trigger Administration (FMCSA), Federal and prior residence information, enhanced security requirements covers Railroad Administration (FRA), Federal personal references, and criminal the materials that present the most Aviation Administration (FAA), U.S. history; and (3) verifying compliance significant security threats in Coast Guard (USCG), and Office of the with the Immigration Reform and transportation and provides a relatively Secretary. Control Act of 1986 to assure that I–9 straightforward way to distinguish Based in part on discussions in the forms are properly completed and materials that may present a significant Hazmat DAG and on the results of the maintained for all employees. A number security threat from materials that do Task Force review, on February 14, of hazardous materials shippers and not. It also provides consistency for the 2002, we published an advisory notice carriers have voluntarily implemented regulated community, thereby to inform shippers and carriers of security programs that include measures minimizing confusion and facilitating voluntary measures that can enhance to identify and address employee compliance. the security of hazardous materials security issues. The HM–232 final rule also includes shipments during transportation (67 FR new security awareness training 6963). The notice addresses personnel, III. Security Rulemaking requirements for all hazardous materials facility, and en route security issues and On March 25, 2003, the Research and employees. This training must include includes contact points for obtaining Special Programs Administration an awareness of the security risks additional, more detailed information. (RSPA) published a final rule under associated with hazardous materials Among other recommendations, the Docket HM–232 (68 FR 14510). The transportation, measures designed to security advisory notice advised final rule requires persons who offer enhance transportation security, and a employers to be aware of the possibility certain hazardous materials for component covering how to recognize that someone they employ may pose a transportation in commerce and persons and respond to possible security threats. potential security risk. We who transport certain hazardous recommended that employers consider materials in commerce to develop and IV. USA PATRIOT Act establishing a process to verify the implement security plans. DOT is working with the Department information provided by applicants on In developing the HM–232 final rule, of Homeland Security’s Transportation application forms or resumes, including we assessed the security risks associated Security Administration (TSA) to checking with former and current with the transportation of different administer provisions of the Uniting employers and personal references classes and quantities of hazardous and Strengthening America by provided by job applicants. materials. We concluded that the most Providing Appropriate Tools Required In addition, FMCSA conducted a significant security risks involve the to Intercept and Obstruct Terrorism Act number of on-site security reviews with transportation of certain radioactive (USA PATRIOT Act; Public Law 107– hazardous materials shippers and materials, certain explosives, materials 56, October 25, 2001, 115 Stat. 272). carriers. The reviews were targeted to that are poisonous by inhalation, certain Section 1012 of the USA PATRIOT Act high-risk hazardous materials, including infectious and toxic substances, and amended 49 U.S.C. Chapter 51 byVerDate Jan<31>2003 15:28 May 02, 2003 Jkt 200001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:FRFM05MYR2.SGM 05MYR2
  • 4. 23834 Federal Register / Vol. 68, No. 86 / Monday, May 5, 2003 / Rules and Regulations adding a new section 5103a titled warranting denial of a hazardous foreign commerce.’’ Prior to the ‘‘Limitation on issuance of hazmat materials endorsement for a commercial amendment, 18 U.S.C. 842(i) prohibited licenses.’’ Section 5103a(a)(1) provides driver’s license and for appealing and the transportation of explosives by any that a state may not issue a license to issuing waivers to such a determination. person under indictment for or operate a motor vehicle transporting a Also in today’s edition of the Federal convicted of a felony, a fugitive from hazardous material in commerce unless Register, FMCSA is publishing a justice, an unlawful user or addict of the Secretary of Transportation has first companion regulation amending Part any controlled substance, and any determined that the individual does not 383 of the Federal Motor Carrier Safety person who had been adjudicated as a pose a security risk warranting denial of Regulations (FMCSRs) to prohibit states mental defective or committed to a the license. Section 5103a(a)(2) subjects from issuing, renewing, transferring, or mental institution. The amendment license renewals to the same upgrading a commercial driver’s license added three new categories to the list of requirements. with a hazardous materials endorsement prohibited persons: Aliens (with certain There is no ‘‘hazmat license’’ per se unless the Attorney General has first limited exceptions), persons under state or Federal law. However, conducted a background records check dishonorably discharged from the armed section 1012(b) of the USA PATRIOT of the applicant, and TSA has forces, and former U.S. citizens who Act also amended 49 U.S.C. 31305(a)(5), determined that the applicant does not have renounced their citizenship. which prescribes fitness and testing pose a security threat warranting denial Persons who violate 18 U.S.C. 842(i) are standards for individuals operating a of the hazardous materials endorsement. subject to criminal penalties. commercial motor vehicle carrying a Part 383 of the FMCSRs requires a 18 U.S.C. 845(a)(1) provides an hazardous material, by adding a new driver to have a hazardous materials exception to 18 U.S.C 842(i) for ‘‘any paragraph (C) to require a state to ensure endorsement to the CDL only if the aspect of the transportation of explosive that an individual has been vetted under driver operates a commercial motor materials via railroad, water, highway, 49 U.S.C. 5103a before the state issues vehicle transporting hazardous or air, which are regulated by the United a commercial driver’s license (CDL). materials in amounts required to be States Department of Transportation Thus, DOT And TSA interpret the placarded under the HMR. FMCSA is (DOT) and agencies thereof, and which ‘‘hazmat license’’ referred to in section amending Part 383 to require an pertain to safety.’’ The Department of 1012 as the hazardous materials operator of a commercial motor vehicle Justice has interpreted this provision to endorsement to a CDL, which is that transports materials on the CDC exempt persons from application of required by 49 CFR 383.93(b)(4). To select agent list to have a hazardous § 842(i) when (1) DOT has actually qualify for the hazardous materials materials endorsement to his or her regulated a relevant aspect of the endorsement, an individual must first CDL. Thus, TSA and FMCSA transportation of explosives, and (2) pass a specialized knowledge test implementation of the USA PATRIOT those regulations cover the particular (§ 383.121) in addition to the requisite Act is consistent with RSPA’s aspect of the safe transportation of general knowledge and skills tests assessment in HM–232 that the explosives that prompted Congress to required for a CDL. Therefore, DOT and hazardous materials placarding enact the criminal statute from which TSA consider section 5103a a de facto thresholds, plus the CDC select agent exemption is sought. For purposes of amendment to the CDL legislation. list, cover materials that present the § 845(a)(1), if DOT determines that Section 5103a(c) requires the Attorney most significant security threats in persons engaged in certain aspects of General, upon the request of a state transportation. the transportation of explosives do not regarding issuance of a hazardous To assure consistency between the pose a security risk and do not warrant materials endorsement, to carry out a HMR and the FMCSR concerning the regulation, then those persons are not background records check of the USA PATRIOT Act requirements for subject to prosecution under 18 U.S.C. individual applying for the endorsement commercial motor vehicle drivers, in 842(i) while they are engaged in the and, upon completing the check, to this final rule, we are amending Part 177 transportation of explosives in notify the Secretary of Transportation of of the HMR to require compliance with commerce. the results. The Secretary then Part 383 of the FMCSR. The HMR define a Class 1 material as determines whether the individual TSA, with the assistance of DOT’s any substance or article that is designed poses a security risk warranting denial Federal Railroad Administration, to function by explosion—that is, an of the endorsement. The background intends to issue a rule somewhat similar extremely rapid release of gas or heat— records check must consist of: (1) A to the USA PATRIOT Act rule for or one that, by chemical reaction within check of the relevant criminal history railroad workers who are in security- itself, functions in a similar manner databases; (2) in the case of an alien, a sensitive positions. Upon issuance of even if not designed to do so. Class 1 check of the relevant databases to such a rule, RSPA will issue an materials are divided into six divisions. determine the status of the alien under additional rule making any such Assignment of an explosive to a division U.S. immigration laws; and (3) as railroad background check requirements depends on the degree and nature of the appropriate, a check of the relevant part of the HMR. explosive hazard presented. Thus, a international databases through Division 1.1 explosive is one that Interpol-U.S. National Central Bureau or V. Safe Explosives Act presents a mass explosive hazard. A other appropriate means. Congress enacted the Safe Explosives mass explosion is one that affects almost TSA and DOT’s Federal Motor Carrier Act (SEA) on November 25, 2002. the entire load simultaneously. A Safety Administration (FMCSA) have Sections 1121–1123 of SEA amended Division 1.2 explosive has a projection developed regulations to implement the section 842(i) of Title 18 of the U.S. hazard, which means that if the material hazardous materials licensing Code by adding several categories to the explodes, it will project fragments provisions of the USA PATRIOT Act. list of persons who may not lawfully outward at some distance. A Division TSA’s regulation, published in today’s ‘‘ship or transport any explosive in or 1.3 explosive presents a fire hazard and edition of the Federal Register, affecting interstate or foreign either a minor blast hazard or a minor addresses the procedures for making commerce’’ or ‘‘receive or possess any projection hazard or both, but not a determinations as to whether an explosive which has been shipped or mass explosion hazard. A Division 1.4 individual poses a security threat transported in or affecting interstate or explosive has a minor explosion hazardVerDate Jan<31>2003 15:28 May 02, 2003 Jkt 200001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:FRFM05MYR2.SGM 05MYR2
  • 5. Federal Register / Vol. 68, No. 86 / Monday, May 5, 2003 / Rules and Regulations 23835 that is largely confined to the package powder, pellet powder, initiating (oxidizer) materials because they require and does not involve projection of explosives, detonators, safety fuses, further processing before they can be fragments. A Division 1.5 explosive is a squibs, detonating cord, igniter cord, used to produce a practical explosion. very insensitive explosive that has a and igniters;’’ a ‘‘blasting agent’’ is, in Again, the difference results because the mass explosion potential, but is so part, ‘‘any material or mixture, DOT classification criteria depend on insensitive that it is unlikely to detonate consisting of fuel and oxidizer, intended testing to determine whether a material under normal conditions of transport. A for blasting, not otherwise defined as an exhibits explosive properties; if a Division 1.6 explosive is an extremely explosive;’’ and a ‘‘detonator’’ is ‘‘any material is tested and found not to meet insensitive article that does not have a device containing a detonating charge the DOT definition, it is not regulated as mass explosion hazard and that is used for initiating detonation in an explosive for purposes of the HMR. demonstrates a negligible probability of an explosive; the term includes, but is A major difference between the ATF accidental initiation or propagation. not limited to, electric blasting caps of and DOT requirements for regulating Specific materials that are covered by instantaneous and delay types, blasting explosives is how the agencies treat the definition of Class 1 materials caps for use with safety fuses and military and government shipments. In include such items as blasting agents, detonating-cord delay connectors.’’ ATF accordance with 18 U.S.C. 845, ATF propellants, detonators, various types of supplements these statutory definitions generally does not regulate explosives ammunition, explosives charges and with a list of specific materials, updated being delivered to any agency of the projectiles, ammonium nitrate-fuel oil periodically, that are regulated as United States or any state or political mixtures, rockets, fireworks, and explosives. 18 U.S.C. 841(c)—(f). Certain subdivision thereof; or explosives warheads. statutory exemptions may apply. For manufactured under the regulation of For explosives transportation, the example, certain types and quantities of the military department of the United HMR prohibit transportation of an black powder may be exempt from ATF States or transported on behalf of the explosive unless it has been tested, regulation. 18 U.S.C. 845(a)(5). military department of the United States classed, and approved by the Associate Because the various definitions used or transported to arsenals, navy yards, Administrator for Hazardous Materials by DOT and ATF are not identical, some depots, or other establishments owned Safety, RSPA. The approval granted by materials are treated differently by the by, or operated on behalf of, the United the Associate Administrator specifies two agencies. For example, ATF lists States. Under the HMR, by contrast, packaging and other transportation several specific materials that it government and military shipments of provisions that must be followed by the regulates as explosives that DOT explosives are regulated if such person who offers or transports the regulates as non-explosive hazardous shipments are transported by explosive material. In addition to materials. Further, ATF regulates all commercial carriers rather than packaging requirements, the HMR mixtures that contain any of the government or military personnel. require explosives to be labeled and/or materials it lists as explosives. ATF does For purposes of SEA, DOT compared placarded to indicate the explosive not define a lower limit at which a the list of materials that ATF regulates hazard. Explosives shipments generally mixture would cease to meet the as explosives with the definitions for must be accompanied by shipping definition for an explosive. The DOT different classes of hazardous materials papers and emergency response definition, by contrast, depends on test regulated under the HMR and assessed information. results to determine whether a material the security risks associated with the The HMR definition for a Class 1 should be classed as an explosive. Thus, transportation of such materials. We material is test- and performance-based if a mixture is tested and does not concluded that a mixture that does not and, thus, accommodates newly exhibit explosive properties, it would meet the definition of a Class 1 material developed materials and modifications not be classed as an explosive under the under the HMR generally does not pose to existing materials. Moreover, the HMR, even though the mixture might a sufficient security risk when HMR definition for a Class 1 material is contain a material that, by itself, would transported in commerce to warrant consistent with definitions used and be classed as an explosive. detailed employee background checks. accepted internationally (i.e., the UN Moreover, the ATF explosives list Such mixtures may meet the definition Recommendations for the Transport of includes dinitrophenol, guncotton, of a different hazard class, in which case Dangerous Goods, the International nitrostarch, sodium picramate, and they are subject to applicable security Civil Aviation Organization Technical several other materials that DOT requirements in HM–232 or in TSA, Instructions for the Safe Transport of regulates as non-explosive hazardous FMCSA, or USCG regulations, as Dangerous Goods by Air, and the materials when combined with water. incorporated into the HMR in this final International Maritime Organization When combined with water, these rule, or they may not meet the definition International Maritime Dangerous materials may not exhibit explosive of any hazard class, in which case they Goods Code), not only for properties and, thus, do not meet the are not regulated as hazardous materials transportation, but for many other DOT definition for an explosive. DOT under the HMR. applications, as well. regulates these materials, with specified We further concluded that a material For the most part, the HMR definition percentages of water, as Division 4.1 regulated as an explosive by ATF but as of an explosive is consistent with the (flammable solid) materials. a different class of hazardous material relevant definition established by the ATF regulates ammonium nitrate-fuel under the HMR, such as certain wetted Bureau of Alcohol, Tobacco, Firearms, oil mixtures and ammonium nitrate materials and ammonium nitrate and Explosives (ATF). By statute, ATF explosive mixtures as explosive mixtures, generally will be subject to regulates materials that are explosives, materials. Under the HMR, certain applicable security requirements in blasting agents, and detonators. An ammonium nitrate products are classed HM–232 or in TSA, FMCSA, or USCG ‘‘explosive’’ is ‘‘any chemical as Division 1.1 explosives, and regulations, as incorporated into the compound mixture, or device, the ammonium nitrate-fuel oil mixtures are HMR in this final rule. If required to be primary or common purpose of which is classed as Division 1.5 explosives. placarded, shipments of such materials to function by explosion; the term However, some mixtures that include will be subject to the background check includes, but is not limited to, dynamite ammonium nitrate among their requirements mandated in the USA and other high explosives, black components are classed as Division 5.1 PATRIOT Act when transported byVerDate Jan<31>2003 15:28 May 02, 2003 Jkt 200001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:FRFM05MYR2.SGM 05MYR2
  • 6. 23836 Federal Register / Vol. 68, No. 86 / Monday, May 5, 2003 / Rules and Regulations motor carrier and to the security plan coming into the United States from a vessel to additional scrutiny, which requirements in Subpart I of the HMR. Canada. Generally, in § 171.12a, the may include boarding offshore and When shipped in amounts that do not HMR permit shipments that originate in verification that neither the vessel nor require placarding, such shipments do Canada and either terminate in the the persons on board present a safety or not pose a security risk when United States or transit the United security risk before they are allowed to transported in commerce sufficient to States to a foreign destination to enter U.S. territorial seas and ports. warrant detailed employee background conform to requirements in the The regulations in 33 CFR Part 6 check requirements at this time. Canadian Transportation of Dangerous provide the authority for the Coast Generally, we have determined that Goods Regulations, with some Guard to board vessels and direct their the placarding thresholds established in exceptions and limitations. movements for the purpose of security. the HMR for explosives shipments For consistency with the TSA In addition, the Coast Guard’s authority represent explosives that pose the most requirements applicable to Canadian to restrict and/or order movement of significant security risk when carriers of explosives, in this final rule, vessels is found in 33 CFR 160.111(a). transported in commerce. Explosives in we are amending § 171.12a to require The Coast Guard has promulgated the following quantities must be Canadian motor carriers and railroads extensive regulations (46 CFR parts 10 placarded in accordance with HMR that transport explosives into the United and 12) to address which aliens, felons, requirements: States to comply with the TSA ex-felons, non-citizens, persons who (1) Any quantity of Division 1.1, 1.2, regulations at 49 CFR 1572.9 and have been dishonorably discharged from or 1.3 explosives; 1572.11 concerning the transportation of the military, fugitives, persons who (2) More than 454 kg of Division 1.4, explosives from Canada to the United have been adjudged insane or otherwise 1.5, or 1.6 explosives. States. determined by competent authority to Examples of Division 1.4 explosives be physically or mentally incompetent, include toy caps, signal devices, flares, VI. Vessel and Port Security drug users and ex-drug users may serve and distress signals. In quantities less The USCG is responsible for assuring as licensed and unlicensed mariners on than 454 kg, such explosives generally maritime security. Primary statutory U.S. vessels. The licensing and do not present a significant security authority is set forth in Title 14, U.S. documentation regime covers mariners threat involving their use during Code, the Ports and Waterways Safety that may handle explosives and other transportation for a criminal or terrorist Act, 33 U.S.C. 1221, et seq., and the hazardous materials. Without such a act. Similarly, Division 1.5 and 1.6 Espionage Act of 1917, as amended by license or document, an individual may explosives are sufficiently insensitive the Magnuson Act of 1950, and most not serve in a capacity requiring a that, in amounts below 454 kg, they recently by the Maritime Transportation license or document on any vessel of the generally do not present a significant and Security Act of 2002, in addition to United States. The regulations in 46 security threat. Executive Orders and Coast Guard CFR part 10 apply to persons applying To address implementation of SEA for regulations implementing the statutory for a license as a deck or engineer officer Canadian transporters of explosives into authorities. Since the September 11, or licensed operator of a vessel of the the United States, TSA issued an 2001, terrorist attacks on the United United States. interim final rule on February 6, 2003 States, the Coast Guard has quickly The Coast Guard carefully considers (68 FR 6083), which took effect adapted to the changed environment to whether a felon or an ex-felon is immediately. The regulation establishes protect our nation’s ports and sufficiently rehabilitated and whether a temporary requirements for all Canadian waterways. drug user or an ex-drug user is free from motor carriers and rail carriers using Vessels. With respect to the treatment the use of dangerous drugs in order to certain aliens to transport explosives of aliens and felons, the USCG determine if he or she should be into the United States. In essence, the regulations (33 CFR 160 Subchapter C, entrusted with the responsibilities of final rule prohibits a Canadian as amended by 68 FR 9537 (February 28, service in the capacity for which he or commercial transporter of explosives 2003); 33 CFR part 6; and 33 CFR she is seeking a license. With respect to from entering the United States unless 160.111(a)) require commercial vessels felons, the review includes persons who he or she is identified with a ‘‘known’’ to provide information on crew and are under indictment for felonies, as status. A transporter is considered passenger identity and certain well as persons who have been ‘‘known’’ by submitting specified dangerous cargo, including explosives, convicted. The regulations at 46 CFR information to Transport Canada, an to the U.S. Coast Guard National Vessel 10.201 contain a table of criminal agency within the Canadian government Movement Center. The notification must offenses that are considered that oversees transportation safety and take place at least 96 hours prior to disqualifying depending on the crime security. Transport Canada conducts arrival in port so that the Coast Guard and amount of time between application checks to ensure that the transporter is can identify any potential security and for the license and the conviction. The a legitimate entity authorized to do safety risk. This includes an table of criminal offenses includes not business in Canada, and that there are examination of the conditions under only specific offenses, but also general no security concerns with the which aliens may lawfully transport, categories of other crimes against transporter. Transport Canada forwards ship, receive, and possess explosives via property and public safety, for which an this information to TSA, which may commercial vessel into a U.S. seaport applicant may be denied a license conduct additional security checks prior from any overseas location and between depending on the circumstances. These to forwarding the list of acceptable domestic ports. The information general categories include, for example, transporters to the U.S. Customs provided is checked with law arson and unlawful possession or use of Service. The U.S. Customs service enforcement and intelligence databases. a firearm or explosives. In addition, the enforces the interim final rule by The Coast Guard then makes a regulations at 46 CFR 10.201 establish conducting checks at the U.S.-Canada determination as to whether the vessel procedures an applicant must follow to border. or any of the persons on board present prove citizenship. A person who has The HMR set forth provisions for the a security or safety threat to the United renounced his citizenship does not transportation by rail or highway of States. Based on this threat assessment, qualify for a Coast Guard license. shipments of hazardous materials the Coast Guard may decide to subject Moreover, an application may be deniedVerDate Jan<31>2003 15:28 May 02, 2003 Jkt 200001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:FRFM05MYR2.SGM 05MYR2
  • 7. Federal Register / Vol. 68, No. 86 / Monday, May 5, 2003 / Rules and Regulations 23837 to persons with ‘‘habits of life and been adjudged insane or otherwise security or safety threat. These character’’ that would make the determined by competent authority to discussions include TSA applicant’s presence on board a vessel be incapable of handling his affairs. If implementation of appropriate hazardous to marine safety or national so, the applicant must present evidence background screening checks designed security. This would include persons of cure in order to be granted a license, to disclose those factors that would lead who are fugitives, or have been and a determination is made based on the Coast Guard to deny access to part dishonorably discharged from the the record in each such case. The Coast or all of a given facility based on military. An applicant for a license must Guard is currently engaged in amending security risk and threat assessment. also pass a physical exam, which its licensing and documentation Finally, if the law enforcement and discloses whether he is physically and processes in light of the terrorist attacks intelligence data bases to which the mentally competent to serve in the of September 11, 2001. Coast Guard has access reveal capacity for which he is applying. In Ports. The USCG port security card information about an individual that addition, relevant data bases are regulations (33 CFR part 125), codified makes that person an unacceptable risk checked; such data base checks will pursuant to the Espionage Act of 1917, or a threat to a facility, including any disclose information related to whether as amended by the Magnuson Act of information relating to the individual’s an applicant has ever been adjudged 1950, 50 U.S.C. 191 et seq., govern who criminal background or drug use, 33 insane or otherwise determined by may gain access to a waterfront facility. CFR 6.04–5 authorizes the Captain of competent authority to be incapable of The USCG has promulgated explosives the Port to deny access to that person handling his affairs. If so, the applicant handling regulations (33 CFR part 126) and to prevent that person from taking must present evidence of cure in order that allow loading or discharge and any article or thing onto the vessel or to be granted a license, and a handling of explosives at designated waterfront facility. determination is made based on the waterfront facilities. These regulations The Coast Guard’s comprehensive record in each such case. restrict these activities to entities that regulatory regime in 33 CFR 160 have obtained a permit issued by the subchapter C, as amended by 68 FR The requirements of 46 CFR 12.02–4, Coast Guard. Read together, these 9537 (February 28, 2003), for vessels issued under authority of Chapter 73 of regulations provide a comprehensive arriving in the United States; 46 CFR Title 46 of the United States Code, regulatory regime for the safe and secure parts 10 and 12, for the licensing and provide a similar regime for unlicensed transportation, storage, possession, and documentation of seamen on seamen who are required to have a handling of explosives at the facility. commercial U.S. vessels; and 33 CFR merchant mariners document in order to The regulations also provide for the parts 125 and 126, regarding access and serve on the crew of a U.S. vessel. The security of the facility and the vessels at control of handling of explosives and regulations require an extensive the facility from threats presented by other hazardous materials on waterfront application and review process that terrorists and other prohibited facilities, adequately addresses the includes a check of criminal records and categories of individuals, including security risks that may be associated the National Driver Register. This felons and drug users, listed in 33 CFR with the transportation of hazardous ensures that only persons who have 125.19. On August 7, 2002, the Coast materials, including explosives, by been vetted, from a safety and security Guard published a notice in the Federal vessel. To assure consistency with these standpoint, hold licenses or other Register (67 FR 51082) to: (1) Call requirements, in this final rule, we are appropriate documents to sail as officers attention to these regulations; (2) clarify amending part 176 of the HMR, which or unlicensed seamen on U.S. vessels. the identification credentials that are addresses the transportation of Although the Coast Guard does not have acceptable to the Commandant in order hazardous materials by vessel, to require a strict ‘‘no-felon’’ rule for either to gain access to waterfront facilities, compliance with requirements in 46 licensed or unlicensed mariners, the port, and harbor areas; (3) advise that CFR parts 10 and 12. The HMR already regulations provide for a regime to Coast Guard Captains of the Port are require compliance with 33 CFR parts evaluate each individual case and responsible for ensuring that those 125, 126, and 160. determine whether the individual allowed access to waterfront facilities presents a security threat. Further, Coast VII. Transportation by Air do not present unacceptable security Guard regulations at 46 CFR 12.02–10, threats; and (4) note that individuals In response to the September 11, implementing 46 U.S.C. 8103(b)(1) without proper identification may not 2001, terrorist attacks, Congress enacted concerning citizenship requirements for gain access to waterfront facilities and the Aviation and Transportation unlicensed seamen, state that ‘‘No vessels if conditions so warrant. These Security Act (ATSA; Pub. L. 107–71; applicant * * * shall be accepted regulations allow the Coast Guard to November 19, 2001; 115 Stat. 597), unless the alien presents acceptable screen who may safely and securely which established TSA and transferred documentary evidence from the U.S. handle explosives and other hazardous authority for aviation security from FAA Immigration and Naturalization Service materials on board vessels and at to TSA. FAA continues to have that he is lawfully admitted to the waterfront facilities, including authority to regulate all areas of aviation United States for permanent residence.’’ longshoremen, and the truck drivers safety and to enforce the HMR as they Moreover, an application may be denied that drive the container chassis from apply to air shipments of hazardous to persons with ‘‘habits of life and shipside to and around the container materials. Thus, TSA, RSPA, and FAA character’’ that would make the marshalling yard. share responsibility for addressing applicant’s presence on board a vessel The Coast Guard is engaged in on- security issues associated with the hazardous to marine safety or national going discussions with TSA to transportation of hazardous materials by security. This would include fugitives implement a regime, based in part on air. and persons who have been these regulations and in part on the In summary, only a small number of dishonorably discharged from the regulations set forth in 33 CFR part 6, operators transport explosives in military. In addition, a check of the to ensure that any person granted access amounts that would require placarding relevant data bases is made; such data to waterfront facilities, including those if transported by highway or rail. These base checks will disclose information designated waterfront facilities that air carriers operate pursuant to a related to whether an applicant has ever handle explosives, does not present a security program approved by TSA andVerDate Jan<31>2003 15:28 May 02, 2003 Jkt 200001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:FRFM05MYR2.SGM 05MYR2
  • 8. 23838 Federal Register / Vol. 68, No. 86 / Monday, May 5, 2003 / Rules and Regulations an exemptions program administered by are subject to Security Directives issued departing to the United States. If the RSPA. by TSA. foreign air carrier cannot verify the TSA, FAA, and RSPA regulations TSA also requires CHRCs for identity and flight assignment of a govern the safety and security of passenger and baggage screeners; crewmember, the carrier must deny hazardous materials, including employees and contractors with access boarding and notify appropriate explosives, transported by aircraft. to secured areas, including baggage and authorities. Following creation of TSA, DOT cargo handlers; and supervisors. See 49 FAA and TSA also regulate flights to transferred to TSA a series of security CFR 1542.209 and 1544.229–230. In the United States by various other regulations that had been issued and addition, the airport must provide an commercial and private aircraft enforced by FAA prior to September 11, escort for individuals in secured areas operators pursuant to a complex set of 2001. In addition, these security who have not completed a CHRC. requirements set forth in a Notice to regulations were amended to address Aviation workers in safety sensitive Airmen (NOTAM). Under this NOTAM, new statutory requirements in ATSA. service are subject to alcohol and drug the operators must submit identifying See 49 CFR parts 1500, 1520, 1540, regulations issued and enforced by information on flight crewmembers and 1542, 1544, and 1546. Following this FAA. See Appendices I and J to 14 CFR passengers in advance of arrival in the transfer of authority, TSA promulgated part 121. These regulations require United States, so that TSA can conduct a number of additional security random, probable cause, and post- background checks. In addition, TSA regulations concerning background accident drug and alcohol testing to has the authority to issue Security checks on individuals in the aviation ensure that employees in safety- Directives (SDs) to air carriers and industry and procedures to enhance the sensitive service are not drug users or airport operators, which have the force security of airports and air carrier working under the influence of alcohol. and effect of a regulation and may operations. Also, FAA’s regulations require medical require certain actions or procedures TSA requires all operators of aircraft examinations periodically for all flight immediately. For example, TSA has with a maximum certificated takeoff crewmembers to ensure that there are no issued SDs to require background weight of 12,500 pounds or more to physical or emotional limitations that checks on individuals with unescorted adhere to a security program that may cause safety or security threats to access to certain secured areas of includes a fingerprint-based criminal aviation operations. See 14 CFR part 67. airports, special screening procedures to history record checks (CHRC) for all There are also a variety of security address individuals who may present a flight crewmembers. Any person who measures in place affecting the security threat at an airport, and a has been convicted of certain felonies transportation of explosives into the variety of new operational procedures and serious misdemeanors within the United States by aliens on aircraft. With that are triggered when the national last 10 years is not permitted to operate respect to commercial passenger flights security alert system level increases. the aircraft. These disqualifying offenses to the United States, TSA regulates In addition to these regulations, are consistent with those that would foreign commercial passenger carriers NOTAMs, and SDs, TSA requires air disqualify a person from holding a under 49 CFR part 1546. Among other carriers and airport operators to comply hazardous materials endorsement to a requirements, part 1546 requires foreign with a detailed Security Program CDL under the USA PATRIOT Act air carriers to adopt and implement a designed to address the security risks implementing regulations. security program approved by TSA. associated with the type of operation. In addition, the aircraft operator must Foreign air carriers must compare the See 49 CFR 1542.103, and 1544.101. develop procedures to restrict access to names of all direct air carrier employees There are standard Security Programs the cockpit during flights and to secure against various watch lists. In certain for air carriers in scheduled passenger the aircraft from unauthorized entry cases, the carrier is not permitted to service, public charters, private charters, while on the ground. As well, the allow the employee to have unescorted cargo operations, and small aircraft in operator must develop procedures to access to secured areas of the airport. commercial service. The Programs are handle bomb and air piracy threats and The carrier must immediately notify the tailored to the security concerns must train security coordinators to nearest field office of the FBI if an attendant to each type of operation oversee all ground activities. employee is an individual known to based on the size of aircraft, the number In addition, certain air cargo entities pose a security threat. and nature of the passengers, the degree operate under a Domestic Security Certain foreign air carriers from to which aircraft enplane or deplane Integrated Program (DSIP), which countries of particular concern also into secured areas of an airport, and a provides that all individuals with operate under special security program variety of other factors. Commercial unescorted access to secured areas procedures, which require the carrier to airports that TSA has determined undergo a CHRC. Any individual with provide TSA advance notice of the require formal Security Programs are a conviction in the preceding 10 years identities of cockpit crewmembers. This also required to adopt a TSA-approved for a disqualifying offense listed in 49 includes pilots, copilots, flight Security Program that must address CFR 1544.229 is not permitted access to engineers, and airline management background checks and identification secured areas. Under the DSIP, the cargo personnel, as well as any relief or for individuals with access to secured carrier must complete a background deadheading cockpit crew. The carrier areas of the airport and aircraft, access check of the previous five years for any must provide a variety of identifying control procedures, measures to control individual with access to controlled information for each individual. If an movement within secured areas, and areas of the airport that have not been individual is known to pose a security escort procedures for vendors who are deemed security identification display threat, the carrier is not permitted to not subject to background checks. areas. Further, the cargo operator must allow the individual to operate on a Finally, TSA plans to issue develop procedures that provide for flight into or out of the United States. strengthened cargo security program personnel identification display areas Also, under special security program requirements for passenger carriers, and to address bomb or highjack threat procedures, foreign air carriers are Indirect Air Carriers (freight forwarders) information. The cargo carriers required to examine the identification of and all-cargo air carriers by October operating under a DSIP must provide all operational crewmembers and verify 2003 that will address additional security training to all employees and their assignment on each flight measures to ensure the security of cargoVerDate Jan<31>2003 15:28 May 02, 2003 Jkt 200001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:FRFM05MYR2.SGM 05MYR2
  • 9. Federal Register / Vol. 68, No. 86 / Monday, May 5, 2003 / Rules and Regulations 23839 operations. Requirements under TSA security requirements, including transportation without an exemption consideration include expansion of requirements for CHRCs for flight crews. under the HMR. background checks for those with access Persons applying for and renewing The TSA security regulations, to air operations areas, and additional exemptions that permit the including background check screening for those persons with access transportation of explosives that are requirements, apply to nearly all of the to the flight deck of all-cargo carriers. otherwise prohibited for air explosives otherwise prohibited for The HMR establish requirements for transportation will need to demonstrate transportation by air that are transported the transportation of explosives on- that the exemption proposal maintains by air under the terms of an RSPA board aircraft. Air carriers generally are an equivalent level of safety, including exemption. An applicant for an prohibited from transporting explosives security, as is required by transportation exemption or an exemption renewal to in amounts that would require regulations. To this end, in this interim transport such prohibited explosives placarding if transported by highway or final rule, we are amending the will be required to certify that it rail. The HMR prohibit Division 1.1 and procedural regulations for applying for complies with all applicable TSA 1.2 explosives in any quantity from an exemption in 49 CFR Part 107 to security requirements as part of the being transported by aircraft. A limited require applicants to certify compliance exemption application process. Those number of explosives classed as with transportation security laws and few applicants for an exemption that are Division 1.3 are permitted for regulations. With respect to explosive not subject to the TSA security transportation by cargo aircraft in materials that are otherwise forbidden requirements will be required to certify limited amounts. These include certain for transportation by air, this will as part of the exemption application or types of cartridges, flares, and distress include a certification to RSPA that the renewal that none of the ‘‘prohibited signals. Additionally, a limited number carrier complies with all applicable TSA persons’’ listed in 18 U.S.C. 842(i), as of Division 1.4 explosives are permitted security requirements and that none of amended by SEA, will participate in the for transportation by passenger or cargo the ‘‘prohibited persons’’ listed in 18 transportation. aircraft in limited amounts. Again, these U.S.C. 842(i), as amended by SEA, will VIII. DOT Determination Under 18 include certain types of cartridges, participate in the transportation. Each U.S.C. 845(a)(1) detonators, fireworks, flares, fuses, and exemption will require, as a condition signal devices. of the exemption, that the holder be in As noted above, 18 U.S.C. 845(a)(1) Under RSPA’s exemptions program, a conformance with applicable provides an exception to the prohibited hazardous materials shipper or carrier transportation security requirements, persons provisions in 18 U.S.C. 842(i) may be granted an exemption from including the prohibitions in 18 U.S.C. for ‘‘any aspect of the transportation of certain HMR requirements. An 842(i), before loading and departure. explosive materials via railroad, water, exemption authorizes a company or Consequently, DOT and TSA security highway, or air, which are regulated by individual to transport a hazardous requirements apply to these exemption the United States Department of material in a manner that differs from holders and the exemption holders are Transportation (DOT) and agencies the HMR, so long as an equivalent level not subject to criminal enforcement thereof, and which pertain to safety.’’ of safety and security is maintained. under 18 U.S.C. 842(i) when DOT is authorized by the Federal Exemptions allow an operator quickly to transporting explosives in commerce. hazardous materials transportation law implement new technologies and to Explosives permitted for transportation (49 U.S.C. 5101 et seq.) to designate evaluate new operational techniques by passenger or cargo-only aircraft material, including an explosive, as that often enhance safety and increase under the HMR without an exemption hazardous when transporting that productivity. In addition, exemptions are not subject to the security material in commerce in a particular permit timely movement of materials in certification requirements. amount and form may pose an an emergency or under adverse RSPA has determined that the types unreasonable risk to health, safety, or transportation conditions. and quantities of explosives permitted security. 49 U.S.C. 5103. DOT We have issued a limited number of for transportation without an exemption regulations applicable to the exemptions that permit the by passenger or cargo-only aircraft transportation of explosives by all transportation of certain explosives by under the HMR do not present a modes include the classification, air that would otherwise be prohibited security risk sufficient to warrant packaging, hazard communication, and for such transportation, including application of the TSA background operational requirements described Division 1.1 and 1.2 explosives. There check requirements at this time to elsewhere in this preamble and the are currently 23 exemptions that persons who transport those shipments driver licensing and qualification authorize the transportation of in commerce or to persons who possess requirements established by FMCSA explosives that are otherwise prohibited those shipments incidental to and incorporated into the HMR. Further, for transportation by air. All but one of transportation in commerce, including the HMR include specific requirements these exemptions has been issued to an persons subject to 18 U.S.C. 842(i). for security plans and training adopted operator that is subject to TSA security Moreover, TSA regulations applicable to in the HM–232 final rule. Under this requirements applicable to aircraft with airport security address the risk that final rule, the HMR also incorporate a maximum certificated takeoff weight unauthorized persons may gain access USCG and TSA security regulations of 12,500 pounds of more. As discussed to explosives being transported by applicable to the transportation of above, the TSA security requirements aircraft at major airports. We are explosives in commerce. include provisions for CHRCs for all continuing our assessment of the As discussed in detail above, we flight crewmembers, restricted access to security risks posed by the assessed the security risks associated the cockpit during flight, and ground transportation of explosives by aircraft with the transportation in commerce of security measures. We anticipate that and will take appropriate regulatory explosives as defined in 18 U.S.C. the vast majority of exemptions action, after public notice and comment, 841(c)–(f). Based on this assessment, we applicants seeking to transport to address those risks. In light of this concluded that the most significant explosives by air that would otherwise determination, the provisions of 18 security risks are associated with the be prohibited for such transportation U.S.C. 842(i) do not apply to air transportation of explosives shipments will be air carriers that are subject to the shipments of explosives permitted for in quantities that require placardingVerDate Jan<31>2003 15:28 May 02, 2003 Jkt 200001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:FRFM05MYR2.SGM 05MYR2
  • 10. 23840 Federal Register / Vol. 68, No. 86 / Monday, May 5, 2003 / Rules and Regulations under the HMR. Thus, the HM–232 final HMR in this final rule apply to the potential impact of such enhanced rule requires persons who offer or transport of placarded amounts of security requirements on the economic transport shipments of explosives in all explosives by motor vehicle within the viability of the hazardous materials modes of transportation that must be meaning of 18 U.S.C. 845(a)(1), and the transportation industry, any additional placarded under the HMR to develop provisions of 18 U.SC. 842(i) do not security requirements should be and implement security plans. apply to persons engaged in such developed through normal notice-and- Similarly, the TSA and FMCSA transportation in commerce. DOT has comment procedures, unless security regulations implementing the USA determined that the transportation of threats justify expedited or emergency PATRIOT Act provisions for non-placarded shipments of explosives rulemaking. commercial vehicle driver security, and does not present a sufficient security incorporated into the HMR in this final risk to justify detailed security IX. Comments on This Interim Final rule, apply to drivers of commercial background check or other requirements Rule vehicles transporting explosives in at this time; in light of this This interim final rule imposes a new amounts that require placarding. determination, the provisions of 18 requirement for persons applying for an Non-placarded shipments of U.S.C. 842(i) do not apply to persons exemption under 49 CFR part 107. For explosives are not subject to these engaged in such transportation in such persons, this interim final rule requirements. We have determined that commerce. requires a certification that the non-placarded shipments do not present For the transportation of explosives applicant is in compliance with all a sufficient security risk in by vessel, USCG regulations, as applicable security laws and transportation, at this time, to warrant incorporated into the HMR in this final regulations. The new certification application of the TSA background rule, adequately address security risks requirement will not add significantly to check requirements to persons who associated with such transportation; in an exemption applicant’s compliance transport those shipments in commerce light of this determination, the costs. Because this interim final rule or to persons who possess those provisions of 18 U.S.C. 842(i) do not addresses essential security shipments incidental to transportation apply. requirements necessary to promote in commerce, including persons subject Air carriers generally are prohibited public safety, we determined that it is to 18 U.S.C. 842(i). We are continuing from transporting hazardous materials impracticable and contrary to the public our assessment of the security risks in amounts that would require interest to precede it with a notice of posed by the transportation of non- placarding if transported by highway or proposed rulemaking and an placarded shipments of explosives in rail except under an exemption issued opportunity for public comment. In commerce and will take appropriate by RSPA. As noted above, DOT has addition, based on this determination, regulatory action, after public notice determined that the transportation of and our desire to ensure the and comment, to address those risks. explosives permitted for air uninterrupted movement of explosives Nevertheless, non-placarded transportation without an exemption in commerce, we have decided to make shipments of explosives continue to be under the HMR—including by persons this rule immediately effective. We are subject to general HMR requirements listed in 18 U.S.C. 842(i)—does not requiring compliance with the governing packaging and hazard present a sufficient risk to justify substantive provisions of this rule 30 communication. These risk-based safety detailed background checks or other days after publication of this rule in the requirements also enhance overall additional regulation at this time. As Federal Register. transportation security. For example, for amended in this rule, the HMR The Regulatory Policies and high hazard shipments, such as Class 1 requirements for explosives transported Procedures of DOT (44 FR 1134; materials, the stringent packaging under exemption that would otherwise February 26, 1979) provide that, to the required by the HMR to enhance the be prohibited for transportation by air maximum extent possible, DOT safety of the shipment in transportation require a certification that the applicant operating administrations should makes it difficult for someone to tamper for the exemption complies with provide an opportunity for public with the shipment for a criminal or transportation security laws and comment on regulations issued without terrorist purpose. Similarly, shipping regulations and also that none of the prior notice. Accordingly, we encourage documents help shippers, carriers, and ‘‘prohibited persons’’ listed in 18 U.S.C. persons to participate in this rulemaking consignees account for specific 842(i), as amended by SEA, will by submitting comments containing shipments and identify discrepancies or participate in the transportation. DOT relevant information, data, or views. We missing packages. In addition, under the will enforce the certification will consider all comments received on HM–232 final rule, hazardous materials requirement for exemption holders. or before the closing date for comments. employers must assure that all Thus, the DOT regulations adequately We will consider late filed comments to hazardous materials employees receive address the security risks associated the extent practicable. This interim final security awareness training. Such with the transportation by aircraft of rule may be amended based on training must include an awareness of explosives in commerce at this time. It should be noted that these DOT comments received. the security risks associated with hazardous materials transportation and determinations related to the provisions X. Regulatory Analyses and Notices a component covering how to recognize of 18 U.S.C. 842(i) may be reassessed as we continue to identify and address A. Executive Order 12866 and DOT and respond to possible security threats. DOT’s decision as to whether a security risks associated with the Regulatory Policies and Procedures particular hazardous material, including transportation of explosives. For This final rule is not a significant an explosive, presents a sufficient example, in a rulemaking to be regulatory action under Executive Order security risk when transported in developed under Docket HM–232A we 12866 and the regulatory policies or commerce to justify background check are evaluating the need to require procedures of the Department of or other security requirements is further security enhancements on Transportation (44 FR 11034). This final determinative. The TSA and FMCSA materials or categories of materials that rule imposes minimal new compliance regulations implementing the USA present the most serious security risks costs on the regulated industry. It PATRIOT Act and incorporated into the in transportation. Because of the incorporates into the HMR FMCSA,VerDate Jan<31>2003 15:28 May 02, 2003 Jkt 200001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:FRFM05MYR2.SGM 05MYR2
  • 11. Federal Register / Vol. 68, No. 86 / Monday, May 5, 2003 / Rules and Regulations 23841 TSA, and USCG requirements local, or Indian tribal governments, or I. Privacy Act concerning security requirements the private sector. Anyone is able to search the related to the transportation of electronic form of any written hazardous materials, including F. Paperwork Reduction Act communications and comments explosives, and adds a security RSPA has a current information received into any of our dockets by the certification requirement for applicants collection approval under OMB No. name of the individual submitting the for exemptions from the HMR. 2137–0051, Preemption Requirements document (or signing the document, if B. Regulatory Flexibility Act with 4,219 burden hours, which submitted on behalf of an association, The Regulatory Flexibility Act (5 includes information collection business, labor union, etc.). You may U.S.C. 601 et seq.) requires an agency to estimates for the exemptions application review DOT’s complete Privacy Act review regulations to assess their impact process. We are in the process of Statement in the Federal Register on small entities unless the agency requesting OMB approval for extension published on April 11, 2000 (65 FR determines that a rule is not expected to of this approval; on February 5, 2003, 19477) or you may visit http:// have a significant impact on a we published a notice under Docket No. dms.dot.gov. substantial number of small entities. RSPA–2003–14307 requesting List of Subjects This final rule imposes minimal new comments on extension of this approval compliance costs on the regulated (68 FR 5972). 49 CFR Part 107 industry. It incorporates into the HMR We estimate that an application for an Administrative practice and FMCSA, TSA, and USCG requirements exemption will require 5 hours to procedure, Hazardous materials concerning security requirements complete. An application to renew an transportation, Penalties, Reporting and related to the transportation of exemption will require one hour to recordkeeping requirements. hazardous materials, including complete. The addition of a security 49 CFR Part 171 explosives, and adds a security certification as part of an exemption certification requirement for applicants application will not add any appreciable Exports, Hazardous materials for exemptions from the HMR. I hereby time to this process. Therefore, we are transportation, Hazardous waste, certify that the requirements of this final not resubmitting the approval request to Imports, Reporting and recordkeeping rule will not have a significant impact OMB. Comments on the potential requirements. on a substantial number of small paperwork burden that may be 49 CFR Part 176 entities. associated with the new security certification requirement should be Hazardous materials transportation, C. Executive Order 13132 Maritime carriers, Radioactive materials, submitted to the docket identified for This final rule has been analyzed in this interim final rule or to Docket No. Reporting and recordkeeping accordance with the principles and RSPA–2003–14307. requirements. criteria contained in Executive Order Requests for a copy of the information 49 CFR Part 177 13132 (‘‘Federalism’’). This final rule preempts State, local, and Indian tribe collection should be directed to Deborah Hazardous materials transportation, requirements but does not impose any Boothe, Office of Hazardous Materials Motor carriers, Radioactive materials, regulation with substantial direct effects Standards (DHM–10), Research and Reporting and recordkeeping on the States, the relationship between Special Programs Administration, Room requirements. the National government and the States, 8102, 400 Seventh Street, SW., s In consideration of the foregoing, we or the distribution of power and Washington, DC 20590–0001, telephone are amending 49 CFR Parts 107, 171, 176, responsibilities among the various (202) 366–8553. and 177, as follows: levels of government. Therefore, the G. Regulation Identifier Number (RIN) consultation and funding requirements PART 107—HAZARDOUS MATERIALS of Executive Order 13132 do not apply. A regulation identifier number (RIN) PROGRAM PROCEDURES D. Executive Order 13175 is assigned to each regulatory action s 1. The authority citation for part 107 listed in the Unified Agenda of Federal continues to read as follows: This final rule has been analyzed in Regulations. The Regulatory Information accordance with the principles and Service Center publishes the Unified Authority: 49 U.S.C. 5101–5127, 44701; criteria contained in Executive Order Section 212–213, Pub. L. 104–121, 110 Stat. Agenda in April and October of each 857; 49 CFR 1.45, 1.53. 13175 (‘‘Consultation and Coordination year. The RIN contained in the heading with Indian Tribal Governments’’). of this document can be used to cross- s 2. In § 107.105, paragraph (c)(10) is Because this final rule does not reference this action with the Unified added to read as follows: significantly or uniquely affect the Agenda. communities of the Indian tribal § 107.105 Application for exemption. governments and does not impose H. Environmental Assessment * * * * * substantial direct compliance costs, the (c) * * * funding and consultation requirements There are no significant (10) A certification that the applicant of Executive Order 13175 do not apply. environmental impacts associated with is in compliance with transportation this final rule. It incorporates into the security laws and regulations. When a E. Unfunded Mandates Reform Act of HMR FMCSA, TSA, and USCG Class 1 material is forbidden for 1995 requirements concerning security transportation by air except under an This final rule does not impose requirements related to the exemption (see Columns 9A and 9B in unfunded mandates under the transportation of hazardous materials, the table in 49 CFR 172.101), an Unfunded Mandates Reform Act of including explosives, and adds a applicant for an exemption to transport 1995. It does not result in annual costs security certification requirement for such Class 1 material on passenger- of $100 million or more, in the applicants for exemptions from the carrying or cargo-only aircraft must also aggregate, to any of the following: State, HMR. certify that no person within theVerDate Jan<31>2003 15:28 May 02, 2003 Jkt 200001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:FRFM05MYR2.SGM 05MYR2
  • 12. 23842 Federal Register / Vol. 68, No. 86 / Monday, May 5, 2003 / Rules and Regulations categories listed in 18 U.S.C. 842(i) will Authority: 49 U.S.C. 5101–5127; 49 CFR merchant mariner’s document by 46 participate in the transportation of the 1.53. CFR parts 10 and 12 possess a license, Class 1 material. s 5. In § 171.12a, paragraph (b)(19) is certificate or document, as appropriate. * * * * * added to read as follows: PART 177—CARRIAGE BY PUBLIC s 3. In § 107.109, paragraph (a)(6) is § 171.12a Canadian shipments and HIGHWAY added to read as follows: packagings. s 8. The authority citation for part 177 § 107.109 Application for renewal. * * * * * continues to read as follows: (a) * * * (b) * * * (6) Include a certification that the (19) Rail and motor carriers must Authority: 49 U.S.C. 5101–5127; 49 CFR comply with 49 CFR 1572.9 and 49 CFR 1.53. applicant is in compliance with transportation security laws and 1572.11 to the extent those regulations s 9. Section 177.804 is revised to read as regulations. When a Class 1 material is apply, when transporting Class 1 follows: forbidden for transportation by air materials. § 177.804 Compliance with Federal Motor except under an exemption (see Carrier Safety Regulations. Columns 9A and 9B in the table in 49 PART 176—CARRIAGE BY VESSEL Motor carriers and other persons CFR 172.101), an applicant for an s 6. The authority citation for part 176 subject to this part must comply with 49 exemption to transport such Class 1 continues to read as follows: CFR part 383 and 49 CFR parts 390 material on passenger-carrying or cargo- through 397 (excluding §§ 397.3 and only aircraft must also certify that no Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. 397.9) to the extent those regulations person within the categories listed in 18 apply. U.S.C. 842(i) will participate in the s 7. Section 176.7 is added to read as fol- transportation of the Class 1 material. Issued in Washington DC on April 25, lows: 2003, under authority delegated in 49 CFR * * * * * part 1. § 176.7 Documentation for vessel PART 171—GENERAL INFORMATION, personnel. Samuel G. Bonasso, REGULATIONS, AND DEFINITIONS Each owner, operator, master, agent, Acting Administrator, Research and Special person in charge, and charterer must Programs Administration. s 4. The authority citation for part 171 ensure that vessel personnel required to [FR Doc. 03–10828 Filed 5–2–03; 8:45 am] continues to read as follows: have a license, certificate of registry, or BILLING CODE 4910–60–PVerDate Jan<31>2003 15:28 May 02, 2003 Jkt 200001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:FRFM05MYR2.SGM 05MYR2