[Federal Register: June 27, 2007 (Volume 72, Number 123)]
[Proposed Rules]
[Page 35211-35213]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jn07-34]
[[Page 35211]]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 177
[Docket No. FMCSA-02-11650 (HM-232A)]
RIN 2137-AD70
Security Requirements for Motor Carriers Transporting Hazardous
Materials
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Advance Notice of Proposed Rulemaking (ANPRM); withdrawal.
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SUMMARY: This withdrawal advises the public that the Transportation
Security Administration (TSA) of the Department of Homeland Security
(DHS) has assumed the lead role from the Pipeline and Hazardous
Materials Safety Administration (PHMSA) for rulemaking addressing the
security of motor carrier shipments of hazardous materials under this
docket. Accordingly, PHMSA is withdrawing the ANPRM issued under this
docket and closing its rulemaking proceeding. This action is consistent
with and supportive of the respective transportation security roles and
responsibilities of the Department of Transportation and DHS as
delineated in a Memorandum of Understanding (MOU) signed September 28,
2004, and of TSA and PHMSA as outlined in an Annex to that MOU signed
August 7, 2006. PHMSA will continue to consider alternatives for
enhancing the safety of explosives stored during transportation under
another rulemaking docket. PHMSA will consult and coordinate with TSA
on hazardous materials transportation security issues in accordance
with the PHMSA-TSA Annex.
DATES: The ANPRM published at 67 FR 46622, July 16, 2002, is withdrawn
as of June 27, 2007.
FOR FURTHER INFORMATION CONTACT: Susan Gorsky or Ben Supko, Office of
Hazardous Materials Standards, Pipeline and Hazardous Materials Safety
Administration, telephone (202) 366-8553.
SUPPLEMENTARY INFORMATION:
I. Background
A. Joint PHMSA-FMCSA ANPRM
On July 16, 2002 (67 FR 46622), the Research and Special Programs
Administration (predecessor to the Pipeline and Hazardous Materials
Safety Administration (PHMSA)) and the Federal Motor Carrier Safety
Administration (FMCSA) jointly published an advance notice of proposed
rulemaking (ANPRM) seeking comments on the feasibility, costs, and
benefits of requiring motor carriers that transport hazardous materials
to employ certain enhanced security measures. Specific measures
discussed in the ANPRM included escorts, vehicle tracking and
monitoring systems, emergency warning systems, remote ignition shut-
offs, direct short-range communications, notification to state and
local authorities, and safe havens for the temporary storage of
explosives during transportation. We received over 80 sets of comments
in response to the ANPRM. Commenters encouraged DOT to apply enhanced
security measures only to those materials presenting a significant
security risk and expressed various views on the merits of particular
security measures, as summarized in the following section. As a result
of PHMSA's expanded authority to regulate hazardous materials
transportation security, granted to PHMSA under section 1711 of the
Homeland Security Act, FMCSA issued a notice on March 19, 2003 (68 FR
13250) that transferred any future action on Docket HM-232A to PHMSA.
B. Summary of Comments on Issues Discussed in ANPRM
Escorts. Most commenters oppose armed escorts, whether on the
vehicle itself or accompanying the vehicle. Many commenters suggest
armed escorts could actually increase the vulnerability of a shipment
by drawing attention to the vehicle and because of the increased number
of stops a support vehicle would be required to make. Most commenters
also express concern that the use of escorts would be cost prohibitive
and could result in carriers refusing shipments for which escorts would
be required. Commenters also expressed concern about logistical
problems and higher insurance premiums (related to liability issues
associated with armed escorts). Finally, commenters suggest ``mixing''
firearms and hazardous materials in transportation could increase
safety problems because firearms are a potential source of ignition for
explosives and certain other types of hazardous materials.
Pre-notification. Most commenters oppose pre-notification of state
and/or local governments of planned shipments of hazardous materials.
Commenters suggest a pre-notification requirement would overload
emergency responders with information and likely detract from their
ability to respond promptly and efficiently to an incident or accident.
Commenters note it is unlikely emergency response organizations have
the personnel or resources necessary to manage the volume of
information that would be received. Commenters also express concern
that a pre-notification requirement could actually compromise security
by making shipment information more widely available than would
otherwise be the case. Shippers and carriers would be required to
provide load-specific information (e.g., product name and hazard,
routing, timing), which would then be disseminated to a variety of
individuals and organizations. The opportunity for disclosure, whether
deliberate or inadvertent, would be high. Commenters note volunteer
emergency response organizations conduct virtually no security
background checks. Finally, commenters outline a number of operational
concerns, including handling road detours and route changes, related to
increasing transportation times and adverse affects on supply chains
for a host of industries that rely on ``just-in-time'' deliveries to
manage inventories.
Safe Havens. A ``safe haven'' is an area specifically approved in
writing by Federal, state, or local government authorities for the
parking of unattended vehicles containing Division 1.1, 1.2, and 1.3
explosive materials (49 CFR 397.5(d)(3)). The competent local authority
having jurisdiction over the area generally makes the decision as to
what constitutes a safe haven. There are no Federal standards for safe
havens. Commenters support the continued use of safe havens, but
recommend DOT develop Federal standards to provide details on the
construction, maintenance, availability, and use of safe havens.
Without clearly defined standards to follow, commenters state any
future reliance on safe havens may actually make the hazardous
materials stored there more susceptible to safety and security threats
than if they were stored at other locations.
Due to the complexity of the safe haven issue and commenter
response, PHMSA and FMCSA decided to split the safe havens issue from
the other enhanced security measures proposed in the ANPRM by placing
it in a separate docket (HM-238). On November 16, 2005, PHMSA published
an ANPRM (70 FR 69493) to solicit additional comments on the safety and
security issues associated with the storage of explosives during
transportation and the need for additional regulatory requirements. The
ANPRM includes summaries of current
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government and industry standards applicable to such storage. We are
currently evaluating the comments received in response to this ANRPM to
determine whether additional rulemaking is warranted.
Vehicle tracking and monitoring systems, emergency warning systems,
remote shut-offs, and direct short range communications. In December
2004, FMCSA completed a two-year national field operational test of
existing technologies that could offer solutions to enhance the
security of motor carrier shipments of hazardous materials. The test
evaluated the costs, benefits, and operational processes required for
wireless communications systems, including GPS tracking and digital
telephones; in-vehicle technologies, such as on-board computers, panic
buttons, and electronic cargo seals; personal identification systems,
including biometrics and a user name/password system; and vehicle
tracking, including geofencing and trailer tracking systems. The tested
technologies performed well under operational conditions and showed
promise for significantly reducing security vulnerabilities.
II. DOT/PHMSA and DHS/TSA Transportation Security Responsibilities
The Federal hazardous materials transportation law (Federal hazmat
law, 49 U.S.C. 5101 et seq., as amended by Sec. 1711 of the Homeland
Security Act of 2002, Pub. L. 107-296 and Title VII of the 2005 Safe,
Accountable, Flexible and Efficient Transportation Equity Act--A Legacy
for Users (SAFETEA-LU)) authorizes the Secretary of the Department of
Transportation to ``prescribe regulations for the safe transportation,
including security, of hazardous material in intrastate, interstate,
and foreign commerce.'' The Secretary has delegated this authority to
PHMSA. The Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180)
promulgated by PHMSA under the mandate in section 5103(b), govern
safety aspects, including security, of the transportation of hazardous
materials.
Under the Aviation and Transportation Security Act (ATSA), Public
Law 107-71, 115 Stat. 597 (November 19, 2001), and delegated authority
from the Secretary of Homeland Security (DHS), the Assistant Secretary
of DHS for TSA has broad responsibility and authority for ``security in
all modes of transportation'' (49 U.S.C. 114(d)).'' ATSA authorizes TSA
to take immediate action to protect against threats to transportation
security.
TSA's authority over the security of transportation stems from
several provisions of 49 U.S.C. 114. In executing its responsibilities
and duties, TSA is specifically empowered to develop policies,
strategies and plans for dealing with threats to transportation (49
U.S.C. 114(f)(3)). As part of its security mission, TSA is responsible
for assessing intelligence and other information in order to identify
individuals who pose a threat to transportation security and to
coordinate countermeasures with other Federal agencies to address such
threats (49 U.S.C. 114(f)(1)-(5), (h)(1)-(4)). TSA is also mandated to
enforce security-related regulations and requirements (49 U.S.C.
114(f)(7)); ensure the adequacy of security measures for the
transportation of cargo (49 U.S.C. 114(f)(10)); oversee the
implementation and ensure the adequacy of security measures at
transportation facilities (49 U.S.C. 114(f)(11)); and carry out other
appropriate duties relating to transportation security (49 U.S.C.
114(f)(15)). TSA serves as the primary liaison for transportation
security to the intelligence and law enforcement communities (49 U.S.C.
114(f)(1) and (5)).
In sum, TSA's authority with respect to transportation security is
comprehensive and supported with specific powers related to the
development and enforcement of regulations, security directives,
security plans, and other requirements. Accordingly, under this
authority, TSA may identify a security threat to any mode of
transportation, develop a measure for dealing with that threat, and
enforce compliance with that measure.
As is evident from the above discussion, DHS and DOT share
responsibility for hazardous materials transportation security. The two
departments consult and coordinate on security-related hazardous
materials transportation requirements to ensure they are consistent
with the overall security policy goals and objectives established by
DHS and that the regulated industry is not confronted with inconsistent
security guidance or requirements promulgated by multiple agencies. On
September 28, 2004, DOT and DHS signed a Memorandum of Understanding
(MOU) on Roles and Responsibilities. The purpose of the MOU is to
facilitate the development and deployment of transportation security
measures that promote safety, security, and efficiency in the movement
of people and goods. The MOU recognizes that DHS has primary
responsibility for security in all modes of transportation. In this
regard, DHS will establish national security performance goals, and, to
the extent practicable, develop appropriate transportation security
measures to achieve an integrated national transportation security
system.
On August 7, 2006, PHMSA and TSA signed an annex to the September
28, 2004 DOT-DHS MOU. The Annex acknowledges TSA's lead role in
transportation security and that each agency brings core competencies,
legal authority, resources, and expertise to their shared mission. The
Annex reflects the agencies' commitment to a system risk-based approach
and to the development of practical solutions through work teams
focused on key program elements, including research and development and
the review and development of security standards. In entering into the
Annex, PHMSA and TSA pledged to build on and not duplicate the various
security initiatives and efforts already underway.
III. TSA Hazardous Materials Truck Security Pilot
In August 2005, TSA initiated the ``TSA Hazardous Materials Truck
Security Pilot.'' This congressionally mandated pilot program is
designed to test the functionality and capabilities of a centralized
truck tracking system. The pilot utilizes specific protocols capable of
interfacing with existing truck tracking systems, government
intelligence centers, and first responders. The goal is to provide TSA
with a tested and established truck tracking center that will allow TSA
to ``continually'' track truck locations and specific hazardous
materials load types in all 50 states. The tracking system will also
allow for automatic or manual notification of exception based events.
The TSA Hazardous Materials Truck Security Pilot including the
prototype Truck Tracking Center is currently scheduled to operate
through Fiscal Year 2007.
IV. Withdrawal of PHMSA-FMCSA ANRPM
Based on comments to the ANPRM and the results of the FMCSA Field
Operational Test, two of the security measures addressed in the ANPRM--
use of vehicle tracking and communications systems and anti-theft
technologies--appear promising as means of enhancing the security of
motor carrier transportation of certain classes and quantities of
hazardous materials. In accordance with the DHS-DOT MOU and the PHMSA-
TSA Annex, however, PHMSA, FMCSA, and TSA have determined action to
address
[[Page 35213]]
motor carrier security tracking should not be taken prior to the
completion of TSA's pilot, and, in any event, be carried out under
TSA's legal authority, rather than primarily as an amendment to the
HMR. By contrast, the proposals to require use of escorts or a pre-
notification system do not appear worthy of further consideration. As
mentioned above, PHMSA will continue to address safe havens and other
issues related to the storage of explosives during transportation in
Docket HM-238. In the meantime, PHMSA will consult and coordinate with
TSA on hazardous materials transportation security issues in accordance
with the PHMSA-TSA Annex.
Accordingly, PHMSA is withdrawing the July 16, 2002 ANPRM and
terminating this rulemaking proceeding.
Issued in Washington, DC, on June 1, 2007, under authority
delegated in 49 CFR Part 1.
Theodore L. Willke,
Acting Associate Administrator for Hazardous Materials Safety.
[FR Doc. E7-12404 Filed 6-26-07; 8:45 am]
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