[Federal Register: February 10, 2004 (Volume 69, Number 27)]
[Rules and Regulations]
[Page 6195-6198]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10fe04-25]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 107, 171, 176, and 177
[Docket No. RSPA-03-14982 (HM-232C)]
RIN 2137-AD79
Hazardous Materials: Enhancing Hazardous Materials Transportation
Security
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule revises the procedures for applying for an
exemption from the Hazardous Materials Regulations, adopted in an
interim final rule published May 5, 2003, to require certain applicants
to certify compliance with provisions of the Safe Explosives Act. In
addition, this final rule adopts without change provisions in the
interim final rule that require motor carriers and vessel operators to
comply with applicable licensing requirements for drivers and crewmen,
respectively.
EFFECTIVE DATE: This final rule is effective March 11, 2004.
FOR FURTHER INFORMATION CONTACT: Susan Gorsky, (202) 366-8553, Office
of Hazardous Materials Standards, Research and Special Programs
Administration.
SUPPLEMENTARY INFORMATION:
I. Background
On May 5, 2003, the Research and Special Programs Administration
(RSPA, we) published an interim final rule (IFR) to enhance hazardous
materials transportation security (68 FR 23832). The IFR described the
current system of regulations applicable to the transportation of
hazardous materials in commerce, and reviewed Department of
Transportation (DOT) activities to enhance the security of hazardous
materials shipments. In addition, the rule summarized the requirements
of the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act; Pub.
L. 107-56, October 25, 2001, 115 Stat. 272) and regulations adopted by
the Transportation Security Administration (TSA) and the Federal Motor
Carrier Safety Administration (FMCSA) to implement the background check
provisions of the Act. Further, the IFR described actions taken by the
Federal Aviation Administration (FAA), TSA, and the U.S. Coast Guard to
address security issues associated with the transportation of hazardous
materials by air and vessel. The IFR also incorporated into the
Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) a
requirement that shippers and transporters of hazardous materials
comply with applicable Federal security regulations and revised the
procedures for applying for an exemption from the HMR to require
applicants to certify compliance with applicable Federal transportation
security laws and regulations. Finally, DOT, in consultation with TSA,
determined that these regulations adequately address the security risks
posed by persons engaged in the transportation of explosives in
commerce, and, accordingly, the provisions of 18 U.S.C. 842(i), which
address categories of persons who are prohibited from possessing
explosives, do not apply to persons while they are engaged in the
transportation of explosives in commerce by motor carrier, aircraft, or
vessel.
II. Response to Comments Received on IFR
We received six comments on the IFR--from the Institute of Makers
of Explosives (IME), the Dangerous Goods Advisory Council (DGAC), the
Pennsylvania Department of Transportation (Pennsylvania DOT), the Texas
Department of Public Safety (Texas), Transportation Trades Department
(TTD), and a joint comment from the Wisconsin Federation of
Cooperatives and the Minnesota Association of Cooperatives (Wisconsin-
Minnesota Cooperatives). These comments are summarized below.
In response to the comments submitted, we are revising the
procedures adopted in the IFR for persons applying for an exemption to
transport certain explosives in commerce by aircraft. The revisions are
minor and do not affect the security risks posed by such
transportation. Therefore, the determinations made in the IFR
concerning the applicability of 18 U.S.C. 842(i) to the transportation
of explosives in commerce continue in effect.
A. Comments Beyond the Scope of the HM-232C Rulemaking
The May 5, 2003 IFR amended Part 177 of the HMR to require motor
carriers who transport hazardous materials in commerce to comply with
Part 383 of the Federal Motor Carrier Safety Regulations (FMCSRs). Part
383 establishes commercial driver license requirements. On May 5, 2003,
TSA published regulations to establish procedures for making
determinations as to whether an individual poses a security threat
warranting denial of a hazardous materials endorsement for a commercial
driver's license (interim final rule; 68 FR 23851). Also on May 5,
2003, FMCSA amended Part 383 to prohibit states from issuing a
commercial driver's license with a hazardous materials endorsement
unless the Attorney General has conducted a background records check of
the applicant and TSA has determined that the applicant does not pose a
security threat warranting denial of the hazardous materials
endorsement (interim final rule; 68 FR 23843).
Wisconsin-Minnesota Cooperatives, Texas, and TTD express concern
about various aspects of the background check requirements in the TSA
and FMCSA regulations. These comments are beyond the scope of this
rulemaking. We have placed the comments in the appropriate TSA and
FMCSA dockets to be addressed as those agencies finalize the interim
final rules they adopted on May 5, 2003.
The FMCSA IFR amended Part 383 of the FMCSRs to require commercial
drivers of motor vehicles used to transport select agents regulated by
the Centers for Disease Control and Prevention under 42 CFR part 73 to
obtain a commercial driver's license with a hazardous materials
endorsement. Pennsylvania DOT suggests that motor vehicles used to
transport select agents should be placarded. Again, this comment is
beyond the scope of this rulemaking. We considered whether placarding
for certain infectious substances should be required under Docket HM-
226 (ANPRM published September 2, 1998, 63 FR 46843; NPRM published
January 22, 2001, 66 FR 6941; final rule published August 14, 2002, 67
FR 53118). For the reasons outlined in the HM-226 NPRM (66 FR 6946), we
determined that current hazard communication requirements for
infectious substances shipments are sufficient to enable transportation
workers and emergency response
[[Page 6196]]
personnel to identity and address any potential hazards and, thus,
decided against a placarding requirement.
IME offers a number of comments concerning the application of
regulations promulgated by the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (ATF) to the transportation of explosives. These
comments are beyond the scope of this rulemaking and are appropriately
addressed by ATF.
B. Procedures for Adopting IFRs
DGAC suggests that RSPA has no procedures for adopting interim
final rules and asks if the requirements adopted in the IFR are
intended to be temporary. DGAC is not correct that there are no
procedures for adopting IFRs. Section 553(b) of the Administrative
Procedure Act (5 U.S.C. 500 et seq.) permits an agency to issue a rule
without prior notice and comment when the agency for good cause finds
that notice and comment are impracticable, unnecessary, or contrary to
the public interest. Section 106.35 of 49 CFR part 106 sets forth the
procedures for issuing an interim final rule that were adopted by RSPA
in a final rule published July 25, 2002 (67 FR 42947). Section 106.35
explains that, consistent with section 553(b) of the Administrative
Procedure Act, RSPA may issue an IFR without first publishing a notice
of proposed rulemaking and accepting public comments if the agency
finds for good cause that notice and public comment are impracticable,
unnecessary, or contrary to the public interest. After considering
comments received on an IFR, Sec. 106.35 provides that the agency may
revise the interim final rule and issue a final rule. In this
rulemaking, we are doing precisely that.
C. Determinations Made in the IFR
IME is the only commenter that addressed the determinations made in
the preamble to the May 5 IFR and is generally supportive of those
determinations. The IFR provides an exception, pursuant to 18 U.S.C.
845(a)(1), to the prohibited persons provisions in 18 U.S.C. 842(i) for
``any aspect of the transportation of explosive materials via railroad,
water, highway, or air, which are regulated by the United States
Department of Transportation (DOT) and agencies thereof, and which
pertain to safety.''
IME requests that we clarify the effect of the transportation
exception in 18 U.S.C. 842(i) on motor private carriers and their
personnel. The TSA and FMCSA regulations implementing the USA PATRIOT
Act and incorporated into the HMR in the May 5, 2003 IFR apply to the
transport of placarded and non-placarded amounts of explosives by
common, contract, or private motor carriers within the meaning of 18
U.S.C. 845(a)(1), and the provisions of 18 U.S.C. 842(i), accordingly,
do not apply to persons engaged in such transportation in commerce.
IME also requests that we clarify the effect of the transportation
exception in 18 U.S.C. 842(i) on non-driver/crew employees of companies
that offer for transportation or transport explosives in commerce. As
explained in the preamble to the May 5, 2003 IFR, DOT has determined
that non-placarded shipments of explosives do not present a sufficient
security risk to justify detailed background check or other security
requirements at this time; in light of this determination, the
provisions of 18 U.S.C. 842(i) do not apply to persons engaged in such
transportation in commerce. For placarded shipments of explosives, the
determinations explained in the preamble to the May 5, 2003 IFR with
regard to the transportation by common/contract motor carriers, vessel,
and air and the determinations concerning rail transportation of
explosives explained in a notice published jointly by FRA, RSPA, and
TSA on June 9, 2003 (68 FR 34470) apply to drivers employed by motor
carriers and crews employed by vessel, air, and rail carriers.
Non-driver employees of motor carriers were not specifically
addressed in the May 5, 2003 IFR. DOT and TSA have assessed the
security risks posed by these individuals and have determined that no
further regulation is needed at this time. Accordingly, the provisions
of 18 U.S.C. 842(i) do not apply to non-driver employees of motor
carriers when they are performing transportation functions regulated
under the HMR. As defined in a final rule published October 30, 2003
(68 FR 61906)), transportation functions are functions performed as
part of the actual movement of a hazardous material in commerce and
include certain loading, unloading, and storage operations. (See the
October 30, 2003 final rule for a complete discussion of the
applicability of the HMR to specific transportation functions.)
The exemption under 18 U.S.C. 845(a)(1) does not apply to non-
driver employees of Federal explosives licensees and permittees
regulated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(ATF). In fact, all persons who are employed by Federal explosives
licensees and permittees and who possess explosives in the course of
their employment are subject to 18 U.S.C. 842(i) prohibitions (with the
limited exception of employee drivers).
D. Procedures for Applying for an Exemption
The May 5, 2003 IFR adopted two new requirements for applicants
seeking an exemption from the HMR. First, the IFR requires an applicant
for an exemption to certify compliance with transportation security
laws and regulations. Second, the IFR requires an applicant for an
exemption to transport otherwise prohibited explosives on passenger or
cargo-only aircraft to certify that no person within the prohibited
persons categories listed in 18 U.S.C. 842(i) will participate in the
transportation of the material.
In their comments, DGAC and IME express concern about the first
requirement. DGAC notes that the text in Sec. 107.105(c)(10) is
inconsistent with the summary and preamble of the IFR in that it does
not limit the certification requirement to Federal transportation
security laws and regulations. Both DGAC and IME note that the
requirement is quite broad and could be read to include state or local
transportation security laws and regulations; DGAC makes the additional
point that the IFR could be interpreted to apply to packaging
manufacturers in addition to persons who offer or transport hazardous
materials for transportation.
Our intention in adopting the general certification requirement for
exemption applicants was to assure that they were aware of and in
compliance with applicable Federal security requirements, including
security requirements promulgated by agencies outside DOT. We agree
with commenters that the requirement in the IFR is not clear as to its
applicability. Upon further consideration, moreover, we have determined
that the requirement is not necessary to assure that exemption holders
comply with applicable security regulations. Instead of requiring
applicants to certify compliance with applicable Federal security laws
and regulations, we will include in the actual exemption document,
where applicable, an indication that the exemption does not exempt the
holder from compliance with the security plan requirements in Subpart I
of Part 172 of the HMR, the security training requirements in Sec.
172.704 of the HMR, and other specific Federal requirements that may
apply to the exemption holder's operations. Therefore, in this final
rule, the requirement for an applicant for an exemption to certify
compliance with
[[Page 6197]]
transportation security laws and regulations is deleted.
IME also expresses concern that the IFR requires applicants seeking
an exemption for the transportation of explosives that are otherwise
prohibited for air transportation to certify that no person within the
prohibited persons categories listed in 18 U.S.C. 842(i) will
participate in the transportation of the material. IME notes that
exemption applicants must demonstrate an equivalent level of safety,
including security, and suggests that this should be sufficient to
assure the security of explosives shipped under exemption.
As explained in the May 5 IFR, we have issued a limited number of
exemptions that permit the transportation of explosives that would be
placarded if transported by highway or rail, including Division 1.1 and
1.2 explosives. All but one of these exemptions were issued to
operators that are subject to TSA security requirements, including
finger-print based background checks for all flightcrew members. The
exception is an exemption that was issued for the transportation of
explosives on aircraft with a maximum certificated takeoff weight of
less than 12,500 pounds; aircraft with a certificated takeoff weight
under 12,500 pounds are not subject to the TSA security requirements.
IME is correct that exemption applicants who are subject to TSA
security requirements should not also need to certify that no person
within the prohibited persons categories listed in 18 U.S.C. 842(i)
will participate in the transportation of the material. However, for
applicants for exemptions to transport explosives who are not subject
to TSA security requirements, the certification requirement will help
to assure that prohibited persons under 18 U.S.C. 842(i) are not
involved in the transportation of the explosives. In this final rule,
we are modifying the certification requirement to clarify that it
applies only to applicants for exemptions to transport explosives in
amounts that would otherwise be prohibited for air transportation using
aircraft with a maximum certificated weight of less than 12,500 pounds.
The certification requirement is not necessary for flight crews on
aircraft with a maximum certificated takeoff of 12,500 pounds or more
because all such individuals are subject to the TSA security
requirements.
The May 5, 2003 IFR inadvertently omitted adding the new
certification requirement for applicants for party status to existing
exemptions. Therefore, in this final rule we are amending 49 CFR
107.107 to require applicants seeking to be parties to existing
exemptions to transport explosives in amounts that would otherwise be
prohibited for air transportation using aircraft with a maximum
certificated weight of less than 12,500 pounds to certify that no
person within the prohibited persons categories listed in 18 U.S.C.
842(i) will participate in the transportation of the material.
III. IFR Provisions Adopted Without Change
The May 5, 2003 IFR adopted several provisions designed to assure
that shippers and carriers comply with security requirements
promulgated by other Federal agencies, as appropriate. First, the IFR
amended Sec. 171.12a to require rail and motor carriers transporting
Class 1 materials from Canada into the United States to comply with TSA
regulations applicable to such transportation. Second, the IFR added a
new Sec. 176.7 to require vessel owners and operators to assure that
vessel personnel are licensed or documented as required under U.S.
Coast Guard regulations. Third, the IFR amended Sec. 177.804 to require
motor carriers to comply with driver licensing requirements in the
Federal Motor Carrier Safety Regulations. No persons commented on these
provisions. They are adopted without change in this final rule.
IV. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not a significant regulatory action under
Executive Order 12866 and the regulatory policies or procedures of the
Department of Transportation (44 FR 11034). This final rule imposes
minimal new compliance costs on the regulated industry. The self-
certification requirement for certain applicants for exemptions from
the HMR will apply to one or two applicants each year.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant impact on a substantial number of small entities. This
final rule imposes minimal new compliance costs on the regulated
industry. I hereby certify that the requirements of this final rule
will not have a significant impact on a substantial number of small
entities.
This final rule has been developed in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act to ensure that potential impacts of
draft rules on small entities are properly considered.
C. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule preempts State, local, and Indian tribe requirements but
does not impose any regulation with substantial direct effects on the
States, the relationship between the National government and the
States, or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
D. Executive Order 13175
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
does not have tribal implications, does not impose substantial direct
compliance costs on Indian tribal governments, and does not preempt
tribal law, the funding and consultation requirements of Executive
Order 13175 do not apply and a tribal summary impact statement is not
required.
E. Unfunded Mandates Reform Act of 1995
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in annual
costs of $100 million or more, in the aggregate, to any of the
following: State, local, or Indian tribal governments, or the private
sector.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, no person is required to
respond to a collection of information unless it displays a valid OMB
control number. RSPA has a current information collection approval
under OMB No. 2137-0051, ``Rulemaking, Exemption, and Preemption
Requirements'' with 4,219 burden hours, which includes information
collection estimates for the exemptions application process. The Office
of Management and Budget approved the extension of this information
collection on May 16, 2003, with an expiration date of May 31, 2006.
[[Page 6198]]
We estimate that an application for an exemption requires 5 hours
to complete. An application to renew an exemption requires one hour to
complete. The addition of a security certification as part of an
exemption application will not add any appreciable time to this
process.
Requests for a copy of the information collection should be
directed to Deborah Boothe or T. Glenn Foster, Office of Hazardous
Materials Standards (DHM-10), Research and Special Programs
Administration, Room 8102, 400 Seventh Street, SW., Washington, DC
20590-0001, telephone (202) 366-8553.
G. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
H. Environmental Assessment
There are no significant environmental impacts associated with this
final rule. It imposes a self-certification requirement for certain
applicants for exemptions from the HMR.
I. Privacy Act
Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477) or you
may visit http://dms.dot.gov.
List of Subjects
49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation, Penalties, Reporting and recordkeeping requirements.
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.
49 CFR Part 176
Hazardous materials transportation, Maritime carriers, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 177
Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.
0
Accordingly, the interim final rule amending 49 CFR parts 107, 171,
176, and 177 that was published at 68 FR 23832 on May 5, 2003, is
adopted as a final rule with the following changes:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
0
1. The authority citation for part 107 continues to read as follows:
Authority: 49 U.S.C. 5101-5127, 44701; Section 212-213, Pub. L.
104-121, 110 Stat. 857; 49 CFR 1.45, 1.53.
0
2. In Sec. 107.105, revise paragraph (c)(10) to read as follows:
Sec. 107.105 Application for exemption.
* * * * *
(c) * * *
(10) When a Class 1 material is forbidden for transportation by
aircraft except under an exemption (see Columns 9A and 9B in the table
in 49 CFR 172.101), an applicant for an exemption to transport such
Class 1 material on passenger-carrying or cargo-only aircraft with a
maximum certificated takeoff weight of less than 12,500 pounds must
certify that no person within the categories listed in 18 U.S.C. 842(i)
will participate in the transportation of the Class 1 material.
* * * * *
0
3. In Sec. 107.107, revise paragraphs (b)(3) and (b)(4) and add
paragraph (b)(5), to read as follows:
Sec. 107.107 Application for party status.
* * * * *
(b) * * *
(3) State the name, street and mailing addresses, e-mail address
(optional), and telephone number of the applicant; if the applicant is
not an individual, state the name, street and mailing addresses, e-mail
address (optional), and telephone number of an individual designated as
the applicant's agent for all purposes related to the application;
(4) If the applicant is not a resident of the United States,
provide a designation of agent for service in accordance with Sec.
105.40 of this subchapter; and
(5) For a Class 1 material that is forbidden for transportation by
aircraft except under an exemption (see Columns 9A and 9B in the table
in 49 CFR 172.101), an applicant for party status to an exemption to
transport such Class 1 material on passenger-carrying or cargo-only
aircraft with a maximum certificated takeoff weight of less than 12,500
pounds must certify that no person within the categories listed in 18
U.S.C. 842(i) will participate in the transportation of the Class 1
material.
* * * * *
0
4. In Sec. 107.109, revise paragraph (a)(6) to read as follows:
Sec. 107.109 Application for renewal.
(a) * * *
(6) When a Class 1 material is forbidden for transportation by
aircraft except under an exemption (see Columns 9A and 9B in the table
in 49 CFR 172.101), an applicant to renew an exemption to transport
such Class 1 material on passenger-carrying or cargo-only aircraft with
a maximum certificated takeoff weight of less than 12,500 pounds must
certify that no person within the categories listed in 18 U.S.C. 842(i)
will participate in the transportation of the Class 1 material.
* * * * *
Issued in Washington DC on February 3, 2004, under authority
delegated in 49 CFR Part 1.
Samuel G. Bonasso,
Deputy Administrator, Research and Special Programs Administration.
[FR Doc. 04-2751 Filed 2-9-04; 8:45 am]
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