Rspa hazmat

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 Rule

VerDate Jan<31>2003 15:28 May 02, 2003 Jkt 200001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:FRFM05MYR2.SGM 05MYR2

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 using


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 by



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 hazard



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 by



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 denied



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 and



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 cargo



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 placarding



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,


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