ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: May 5, 2003 (Volume 68, Number 86)]
[Rules and Regulations]               
[Page 23831-23842]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my03-22]                         


[[Page 23831]]

-----------------------------------------------------------------------

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


[[Page 23832]]


-----------------------------------------------------------------------

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: Interim final rule and request for comments.

-----------------------------------------------------------------------

SUMMARY: This interim final rule incorporates into the Hazardous 
Materials Regulations a requirement that shippers and transporters of 
certain hazardous materials comply with Federal security regulations 
that apply to motor carrier and vessel transportation. In addition, 
this interim final rule revises the procedures for applying for an 
exemption from the Hazardous Materials Regulations to require 
applicants to certify compliance with applicable Federal transportation 
security laws and regulations. This interim final rule will assure that 
shippers and transporters are aware of and comply with their security 
obligations.

DATES: Effective Date. This interim final rule is effective May 5, 
2003.
    Compliance Date: June 4, 2003.
    Comments. Submit comments by June 4, 2003. To the extent possible, 
we will consider late-filed comments as we develop a final rule.

ADDRESSES: Submit comments to the Dockets Management System, U.S. 
Department of Transportation, Room PL 401, 400 Seventh Street, SW., 
Washington, DC. 20590-0001. Comments should identify Docket Number 
RSPA-03-14982 (HM-232C) and be submitted in two copies. If you wish to 
receive confirmation of receipt of your written comments, include a 
self-addressed, stamped postcard. You may also submit comments by e-
mail by accessing the Dockets Management System web site at http://dms.dot.gov/
 and following the instructions for submitting a document 
electronically.
    The Dockets Management System is located on the Plaza level of the 
Nassif Building at the Department of Transportation at the above 
address. You can review public dockets there between the hours of 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. You 
can also review comments on-line at the DOT Dockets Management System 
web site at http://dms.dot.gov/.

FOR FURTHER INFORMATION CONTACT: Susan Gorsky, (202) 366-8553, Office 
of Hazardous Materials Standards, Research and Special Programs 
Administration.

SUPPLEMENTARY INFORMATION:

List of Topics

I. Background
II. Security Guidance
III. Security Rulemaking
IV. USA PATRIOT Act
V. Safe Explosives Act
VI. Vessel and Port Security
VII. Transportation by Air
VIII. DOT Determination under 18 U.S.C. 845(a)(1)
IX. Comments on this Interim Final Rule
X. Regulatory Analyses and Notices

I. Background

    Hazardous materials are essential to the economy of the United 
States and the well being of its people. Hazardous materials fuel cars 
and trucks, and heat and cool homes and offices. Hazardous materials 
are used for farming and medical applications and in manufacturing, 
mining, and other industrial processes. Millions of tons of explosive, 
toxic, corrosive, flammable, and radioactive materials are transported 
every day. Hazardous materials move by plane, train, truck, or vessel 
in quantities ranging from several ounces to many thousands of gallons. 
The vast majority of hazardous materials shipments arrive safely at 
their destinations. Most incidents that do occur involve small releases 
of material and present no serious threat to life or property.
    Hazardous materials are substances that may pose a threat to public 
safety or the environment during transportation because of their 
physical, chemical, or nuclear properties. The hazardous material 
regulatory system is a risk management system that is prevention-
oriented and focused on identifying a safety hazard and reducing the 
probability and quantity of a hazardous material release. Under the 
Department of Transportation's Hazardous Materials Regulations (HMR; 49 
CFR Parts 171-180), hazardous materials are categorized by hazard 
analysis and experience into hazard classes and packing groups. The 
regulations require each shipper to classify a material in accordance 
with these hazard classes and packing groups; the process of 
classifying a hazardous material is itself a form of hazard analysis. 
Further, the regulations require the shipper to communicate the 
material's hazards through use of the hazard class, packing group, and 
proper shipping name on the shipping paper and the use of labels on 
packages and placards on transport vehicles. Thus the shipping paper, 
labels, and placards communicate the most significant findings of the 
shipper's hazard analysis. A hazardous material is assigned to one of 
three packing groups based upon its degree of hazard, from a high 
hazard, Packing Group I, to a low hazard, Packing Group III, material. 
The quality, damage resistance, and performance standards of the 
packaging in each packing group are appropriate for the hazards of the 
material transported.
    Under the HMR, which are based on the internationally recognized 
United Nations system for classification, identification, and ranking 
of hazardous materials, all hazardous materials are divided into nine 
general classes according to their physical, chemical, and nuclear 
properties as follows:

Class 1--Explosives
Class 2--Compressed, flammable, nonflammable, and poison gases
Class 3--Flammable liquids
Class 4--Flammable solids
Class 5--Oxidizers and organic peroxides
Class 6--Toxic and infectious materials
Class 7--Radioactive materials
Class 8--Corrosive materials
Class 9--Miscellaneous dangerous substances and articles

    Within Classes 1, 2, 4, 5, and 6, there are more specifically 
defined divisions, and within Class 1 there are Compatibility Group 
subdivisions, as well. The hazard classes and divisions are not 
mutually exclusive. Certain hazardous materials have multiple dangerous 
properties, each of which must be addressed according to its relative 
potential to do harm. In these cases, the UN system and the HMR allow 
identification and communication of both the primary and subsidiary 
threats.
    DOT's hazardous materials transportation safety program has 
historically focused on reducing risks related to the unintentional 
release of hazardous materials. The HMR are designed to achieve two 
goals: (1) To ensure that hazardous materials are packaged and handled 
safely during transportation, thus minimizing the possibility of their 
release should an incident occur, and (2) to effectively communicate to 
carriers, transportation workers, and emergency responders the hazards 
of the materials being transported. The HMR specify how to classify and 
package a hazardous material. Further, the HMR prescribe a system of 
hazard communication using

[[Page 23833]]

placards, labels, package markings, and shipping papers. In addition, 
the HMR prescribe training requirements for persons who prepare 
hazardous materials for shipment or transport hazardous materials. The 
HMR also include operational requirements applicable to each mode of 
transportation.

II. Security Guidance

    In the wake of the terrorist attacks of September 11, 2001, and 
subsequent threats related to biological and other hazardous materials, 
DOT undertook a broad review of government and industry hazardous 
materials transportation safety and security programs. As part of this 
review, we established the Hazardous Materials Direct Action Group 
(Hazmat DAG). The Hazmat DAG met with representatives of the hazardous 
materials industry, emergency response community, and state governments 
to discuss transportation security issues and continuing terrorist 
threats. In addition, we created a DOT Intermodal Hazardous Materials 
Transportation Security Task Force, which considered attack or sabotage 
vulnerabilities, existing security measures, and potential ways to 
reduce vulnerabilities. The Task Force included representatives from 
the Federal Motor Carrier Safety Administration (FMCSA), Federal 
Railroad Administration (FRA), Federal Aviation Administration (FAA), 
U.S. Coast Guard (USCG), and Office of the Secretary.
    Based in part on discussions in the Hazmat DAG and on the results 
of the Task Force review, on February 14, 2002, we published an 
advisory notice to inform shippers and carriers of voluntary measures 
that can enhance the security of hazardous materials shipments during 
transportation (67 FR 6963). The notice addresses personnel, facility, 
and en route security issues and includes contact points for obtaining 
additional, more detailed information. Among other recommendations, the 
security advisory notice advised employers to be aware of the 
possibility that someone they employ may pose a potential security 
risk. We recommended that employers consider establishing a process to 
verify the information provided by applicants on application forms or 
resumes, including checking with former and current employers and 
personal references provided by job applicants.
    In addition, FMCSA conducted a number of on-site security reviews 
with hazardous materials shippers and carriers. The reviews were 
targeted to high-risk hazardous materials, including explosives, 
radioactive materials, materials that are poisonous by inhalation, and 
flammable gases and liquids. The on-site security reviews included 
reviews by the FMCSA investigator and company officials of carrier 
records in order to identify suspicious activities by company employees 
that could affect transportation security. The security reviews 
resulted in 280 findings of suspicious activities by employees, with 
126 referrals to the Federal Bureau of Investigation (FBI). Examples of 
suspicious activity that provided the basis for the FBI referrals 
include false personnel information, citizenship irregularities, FBI 
watch list, and previous employment irregularities.
    The review included recommendations for addressing identified 
security risks, including risks associated with current or new 
employees. The FMCSA recommendations for mitigating such risks include 
measures such as: (1) Implementing methods for security identification 
(i.e., ID badges) and systems to verify employee identification; (2) 
reviewing employee and applicant personnel information with a 
particular focus on gaps in employment, frequent job shifts, all names 
used by the applicant, type of military discharge, citizenship, present 
and prior residence information, personal references, and criminal 
history; and (3) verifying compliance with the Immigration Reform and 
Control Act of 1986 to assure that I-9 forms are properly completed and 
maintained for all employees. A number of hazardous materials shippers 
and carriers have voluntarily implemented security programs that 
include measures to identify and address employee security issues.

III. Security Rulemaking

    On March 25, 2003, the Research and Special Programs Administration 
(RSPA) published a final rule under Docket HM-232 (68 FR 14510). The 
final rule requires persons who offer certain hazardous materials for 
transportation in commerce and persons who transport certain hazardous 
materials in commerce to develop and implement security plans.
    In developing the HM-232 final rule, we assessed the security risks 
associated with the transportation of different classes and quantities 
of hazardous materials. We concluded that the most significant security 
risks involve the transportation of certain radioactive materials, 
certain explosives, materials that are poisonous by inhalation, certain 
infectious and toxic substances, and bulk shipments of materials such 
as flammable and compressed gases, flammable liquids, flammable solids, 
and corrosives. Based on this security risk assessment, the HM-232 
final rule requires persons who offer for transportation or transport 
the following hazardous materials to develop and implement security 
plans: (1) A highway route-controlled quantity of a Class 7 
(radioactive) material; (2) more than 25 kg (55 lbs) of a Division 1.1, 
1.2, or 1.3 (explosive) material; (3) more than 1 L (1.06 qt) per 
package of a material poisonous by inhalation in Hazard Zone A; (4) a 
shipment in a bulk packaging with a capacity equal to or greater than 
13,248 L (3,500 gal) for liquids or gases or greater than 13.24 cubic 
meters (468 cubic feet) for solids; (5) infectious substances listed as 
select agents by the Centers for Disease Control and Prevention (CDC) 
in 42 CFR part 73; and (6) a shipment that requires placarding. Select 
agents are infectious substances identified by CDC as materials with 
the potential to have serious consequences for human health and safety 
if used illegitimately. In effect, then, the HM-232 final rule applies 
the security plan requirement to a shipper or carrier of a hazardous 
material in an amount that requires placarding and to select agents. 
Using the placarding thresholds to trigger enhanced security 
requirements covers the materials that present the most significant 
security threats in transportation and provides a relatively 
straightforward way to distinguish materials that may present a 
significant security threat from materials that do not. It also 
provides consistency for the regulated community, thereby minimizing 
confusion and facilitating compliance.
    The HM-232 final rule also includes new security awareness training 
requirements for all hazardous materials employees. This training must 
include an awareness of the security risks associated with hazardous 
materials transportation, measures designed to enhance transportation 
security, and a component covering how to recognize and respond to 
possible security threats.

IV. USA PATRIOT Act

    DOT is working with the Department of Homeland Security's 
Transportation Security Administration (TSA) to administer provisions 
of the Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act; 
Public Law 107-56, October 25, 2001, 115 Stat. 272). Section 1012 of 
the USA PATRIOT Act amended 49 U.S.C. Chapter 51 by

[[Page 23834]]

adding a new section 5103a titled ``Limitation on issuance of hazmat 
licenses.'' Section 5103a(a)(1) provides that a state may not issue a 
license to operate a motor vehicle transporting a hazardous material in 
commerce unless the Secretary of Transportation has first determined 
that the individual does not pose a security risk warranting denial of 
the license. Section 5103a(a)(2) subjects license renewals to the same 
requirements.
    There is no ``hazmat license'' per se under state or Federal law. 
However, section 1012(b) of the USA PATRIOT Act also amended 49 U.S.C. 
31305(a)(5), which prescribes fitness and testing standards for 
individuals operating a commercial motor vehicle carrying a hazardous 
material, by adding a new paragraph (C) to require a state to ensure 
that an individual has been vetted under 49 U.S.C. 5103a before the 
state issues a commercial driver's license (CDL). Thus, DOT And TSA 
interpret the ``hazmat license'' referred to in section 1012 as the 
hazardous materials endorsement to a CDL, which is required by 49 CFR 
383.93(b)(4). To qualify for the hazardous materials endorsement, an 
individual must first pass a specialized knowledge test (Sec.  383.121) 
in addition to the requisite general knowledge and skills tests 
required for a CDL. Therefore, DOT and TSA consider section 5103a a de 
facto amendment to the CDL legislation.
    Section 5103a(c) requires the Attorney General, upon the request of 
a state regarding issuance of a hazardous materials endorsement, to 
carry out a background records check of the individual applying for the 
endorsement and, upon completing the check, to notify the Secretary of 
Transportation of the results. The Secretary then determines whether 
the individual poses a security risk warranting denial of the 
endorsement. The background records check must consist of: (1) A check 
of the relevant criminal history databases; (2) in the case of an 
alien, a check of the relevant databases to determine the status of the 
alien under U.S. immigration laws; and (3) as appropriate, a check of 
the relevant international databases through Interpol-U.S. National 
Central Bureau or other appropriate means.
    TSA and DOT's Federal Motor Carrier Safety Administration (FMCSA) 
have developed regulations to implement the hazardous materials 
licensing provisions of the USA PATRIOT Act. TSA's regulation, 
published in today's edition of the Federal Register, addresses the 
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 and for appealing and 
issuing waivers to such a determination. Also in today's edition of the 
Federal Register, FMCSA is publishing a companion regulation amending 
Part 383 of the Federal Motor Carrier Safety Regulations (FMCSRs) to 
prohibit states from issuing, renewing, transferring, or upgrading a 
commercial driver's license with a hazardous materials endorsement 
unless the Attorney General has first 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.
    Part 383 of the FMCSRs requires a driver to have a hazardous 
materials endorsement to the CDL only if the driver operates a 
commercial motor vehicle transporting hazardous materials in amounts 
required to be placarded under the HMR. FMCSA is amending Part 383 to 
require an operator of a commercial motor vehicle that transports 
materials on the CDC select agent list to have a hazardous materials 
endorsement to his or her CDL. Thus, TSA and FMCSA implementation of 
the USA PATRIOT Act is consistent with RSPA's assessment in HM-232 that 
the hazardous materials placarding thresholds, plus the CDC select 
agent list, cover materials that present the most significant security 
threats in transportation.
    To assure consistency between the HMR and the FMCSR concerning the 
USA PATRIOT Act requirements for commercial motor vehicle drivers, in 
this final rule, we are amending Part 177 of the HMR to require 
compliance with Part 383 of the FMCSR.
    TSA, with the assistance of DOT's Federal Railroad Administration, 
intends to issue a rule somewhat similar to the USA PATRIOT Act rule 
for railroad workers who are in security-sensitive positions. Upon 
issuance of such a rule, RSPA will issue an additional rule making any 
such railroad background check requirements part of the HMR.

V. Safe Explosives Act

    Congress enacted the Safe Explosives Act (SEA) on November 25, 
2002. Sections 1121-1123 of SEA amended section 842(i) of Title 18 of 
the U.S. Code by adding several categories to the list of persons who 
may not lawfully ``ship or transport any explosive in or affecting 
interstate or foreign commerce'' or ``receive or possess any explosive 
which has been shipped or transported in or affecting interstate or 
foreign commerce.'' Prior to the amendment, 18 U.S.C. 842(i) prohibited 
the transportation of explosives by any person under indictment for or 
convicted of a felony, a fugitive from justice, an unlawful user or 
addict of any controlled substance, and any person who had been 
adjudicated as a mental defective or committed to a mental institution. 
The amendment added three new categories to the list of prohibited 
persons: Aliens (with certain limited exceptions), persons dishonorably 
discharged from the armed forces, and former U.S. citizens who have 
renounced their citizenship. Persons who violate 18 U.S.C. 842(i) are 
subject to criminal penalties.
    18 U.S.C. 845(a)(1) provides an exception to 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.'' The Department of Justice has interpreted this 
provision to exempt persons from application of Sec.  842(i) when (1) 
DOT has actually regulated a relevant aspect of the transportation of 
explosives, and (2) those regulations cover the particular aspect of 
the safe transportation of explosives that prompted Congress to enact 
the criminal statute from which exemption is sought. For purposes of 
Sec.  845(a)(1), if DOT determines that persons engaged in certain 
aspects of the transportation of explosives do not pose a security risk 
and do not warrant regulation, then those persons are not subject to 
prosecution under 18 U.S.C. 842(i) while they are engaged in the 
transportation of explosives in commerce.
    The HMR define a Class 1 material as any substance or article that 
is designed to function by explosion--that is, an extremely rapid 
release of gas or heat--or one that, by chemical reaction within 
itself, functions in a similar manner even if not designed to do so. 
Class 1 materials are divided into six divisions. Assignment of an 
explosive to a division depends on the degree and nature of the 
explosive hazard presented. Thus, a Division 1.1 explosive is one that 
presents a mass explosive hazard. A mass explosion is one that affects 
almost the entire load simultaneously. A Division 1.2 explosive has a 
projection hazard, which means that if the material explodes, it will 
project fragments outward at some distance. A Division 1.3 explosive 
presents a fire hazard and either a minor blast hazard or a minor 
projection hazard or both, but not a mass explosion hazard. A Division 
1.4 explosive has a minor explosion hazard

[[Page 23835]]

that is largely confined to the package and does not involve projection 
of fragments. A Division 1.5 explosive is a very insensitive explosive 
that has a mass explosion potential, but is so insensitive that it is 
unlikely to detonate under normal conditions of transport. A Division 
1.6 explosive is an extremely insensitive article that does not have a 
mass explosion hazard and demonstrates a negligible probability of 
accidental initiation or propagation. Specific materials that are 
covered by the definition of Class 1 materials include such items as 
blasting agents, propellants, detonators, various types of ammunition, 
explosives charges and projectiles, ammonium nitrate-fuel oil mixtures, 
rockets, fireworks, and warheads.
    For explosives transportation, the HMR prohibit transportation of 
an explosive unless it has been tested, classed, and approved by the 
Associate Administrator for Hazardous Materials Safety, RSPA. The 
approval granted by the Associate Administrator specifies packaging and 
other transportation provisions that must be followed by the person who 
offers or transports the explosive material. In addition to packaging 
requirements, the HMR require explosives to be labeled and/or placarded 
to indicate the explosive hazard. Explosives shipments generally must 
be accompanied by shipping papers and emergency response information.
    The HMR definition for a Class 1 material is test- and performance-
based and, thus, accommodates newly developed materials and 
modifications to existing materials. Moreover, the HMR definition for a 
Class 1 material is consistent with definitions used and accepted 
internationally (i.e., the UN Recommendations for the Transport of 
Dangerous Goods, the International Civil Aviation Organization 
Technical Instructions for the Safe Transport of Dangerous Goods by 
Air, and the International Maritime Organization International Maritime 
Dangerous Goods Code), not only for transportation, but for many other 
applications, as well.
    For the most part, the HMR definition of an explosive is consistent 
with the relevant definition established by the Bureau of Alcohol, 
Tobacco, Firearms, and Explosives (ATF). By statute, ATF regulates 
materials that are explosives, blasting agents, and detonators. An 
``explosive'' is ``any chemical compound mixture, or device, the 
primary or common purpose of which is to function by explosion; the 
term includes, but is not limited to, dynamite and other high 
explosives, black powder, pellet powder, initiating explosives, 
detonators, safety fuses, squibs, detonating cord, igniter cord, and 
igniters;'' a ``blasting agent'' is, in part, ``any material or 
mixture, consisting of fuel and oxidizer, intended for blasting, not 
otherwise defined as an explosive;'' and a ``detonator'' is ``any 
device containing a detonating charge that is used for initiating 
detonation in an explosive; the term includes, but is not limited to, 
electric blasting caps of instantaneous and delay types, blasting caps 
for use with safety fuses and detonating-cord delay connectors.'' ATF 
supplements these statutory definitions with a list of specific 
materials, updated periodically, that are regulated as explosives. 18 
U.S.C. 841(c)--(f). Certain statutory exemptions may apply. For 
example, certain types and quantities of black powder may be exempt 
from ATF regulation. 18 U.S.C. 845(a)(5).
    Because the various definitions used by DOT and ATF are not 
identical, some materials are treated differently by the two agencies. 
For example, ATF lists several specific materials that it regulates as 
explosives that DOT regulates as non-explosive hazardous materials. 
Further, ATF regulates all mixtures that contain any of the materials 
it lists as explosives. ATF does not define a lower limit at which a 
mixture would cease to meet the definition for an explosive. The DOT 
definition, by contrast, depends on test results to determine whether a 
material should be classed as an explosive. Thus, if a mixture is 
tested and does not exhibit explosive properties, it would not be 
classed as an explosive under the HMR, even though the mixture might 
contain a material that, by itself, would be classed as an explosive.
    Moreover, the ATF explosives list includes dinitrophenol, 
guncotton, nitrostarch, sodium picramate, and several other materials 
that DOT regulates as non-explosive hazardous materials when combined 
with water. When combined with water, these materials may not exhibit 
explosive properties and, thus, do not meet the DOT definition for an 
explosive. DOT regulates these materials, with specified percentages of 
water, as Division 4.1 (flammable solid) materials.
    ATF regulates ammonium nitrate-fuel oil mixtures and ammonium 
nitrate explosive mixtures as explosive materials. Under the HMR, 
certain ammonium nitrate products are classed as Division 1.1 
explosives, and ammonium nitrate-fuel oil mixtures are classed as 
Division 1.5 explosives. However, some mixtures that include ammonium 
nitrate among their components are classed as Division 5.1 (oxidizer) 
materials because they require further processing before they can be 
used to produce a practical explosion. Again, the difference results 
because the DOT classification criteria depend on testing to determine 
whether a material exhibits explosive properties; if a material is 
tested and found not to meet the DOT definition, it is not regulated as 
an explosive for purposes of the HMR.
    A major difference between the ATF and DOT requirements for 
regulating explosives is how the agencies treat military and government 
shipments. In accordance with 18 U.S.C. 845, ATF generally does not 
regulate explosives being delivered to any agency of the United States 
or any state or political subdivision thereof; or explosives 
manufactured under the regulation of the military department of the 
United States or transported on behalf of the military department of 
the United States or transported to arsenals, navy yards, depots, or 
other establishments owned by, or operated on behalf of, the United 
States. Under the HMR, by contrast, government and military shipments 
of explosives are regulated if such shipments are transported by 
commercial carriers rather than government or military personnel.
    For purposes of SEA, DOT compared the list of materials that ATF 
regulates as explosives with the definitions for different classes of 
hazardous materials regulated under the HMR and assessed the security 
risks associated with the transportation of such materials. We 
concluded that a mixture that does not meet the definition of a Class 1 
material under the HMR generally does not pose a sufficient security 
risk when transported in commerce to warrant detailed employee 
background checks. Such mixtures may meet the definition of a different 
hazard class, in which case they are subject to applicable security 
requirements in HM-232 or in TSA, FMCSA, or USCG regulations, as 
incorporated into the HMR in this final rule, or they may not meet the 
definition of any hazard class, in which case they are not regulated as 
hazardous materials under the HMR.
    We further concluded that a material regulated as an explosive by 
ATF but as a different class of hazardous material under the HMR, such 
as certain wetted materials and ammonium nitrate mixtures, generally 
will be subject to applicable security requirements in HM-232 or in 
TSA, FMCSA, or USCG regulations, as incorporated into the HMR in this 
final rule. If required to be placarded, shipments of such materials 
will be subject to the background check requirements mandated in the 
USA PATRIOT Act when transported by

[[Page 23836]]

motor carrier and to the security plan requirements in Subpart I of the 
HMR. When shipped in amounts that do not require placarding, such 
shipments do not pose a security risk when transported in commerce 
sufficient to warrant detailed employee background check requirements 
at this time.
    Generally, we have determined that the placarding thresholds 
established in the HMR for explosives shipments represent explosives 
that pose the most significant security risk when transported in 
commerce. Explosives in the following quantities must be placarded in 
accordance with HMR requirements:
    (1) Any quantity of Division 1.1, 1.2, or 1.3 explosives;
    (2) More than 454 kg of Division 1.4, 1.5, or 1.6 explosives.
    Examples of Division 1.4 explosives include toy caps, signal 
devices, flares, and distress signals. In quantities less than 454 kg, 
such explosives generally do not present a significant security threat 
involving their use during transportation for a criminal or terrorist 
act. Similarly, Division 1.5 and 1.6 explosives are sufficiently 
insensitive that, in amounts below 454 kg, they generally do not 
present a significant security threat.
    To address implementation of SEA for Canadian transporters of 
explosives into the United States, TSA issued an interim final rule on 
February 6, 2003 (68 FR 6083), which took effect immediately. The 
regulation establishes temporary requirements for all Canadian motor 
carriers and rail carriers using certain aliens to transport explosives 
into the United States. In essence, the final rule prohibits a Canadian 
commercial transporter of explosives from entering the United States 
unless he or she is identified with a ``known'' status. A transporter 
is considered ``known'' by submitting specified information to 
Transport Canada, an agency within the Canadian government that 
oversees transportation safety and security. Transport Canada conducts 
checks to ensure that the transporter is a legitimate entity authorized 
to do business in Canada, and that there are no security concerns with 
the transporter. Transport Canada forwards this information to TSA, 
which may conduct additional security checks prior to forwarding the 
list of acceptable transporters to the U.S. Customs Service. The U.S. 
Customs service enforces the interim final rule by conducting checks at 
the U.S.-Canada border.
    The HMR set forth provisions for the transportation by rail or 
highway of shipments of hazardous materials coming into the United 
States from Canada. Generally, in Sec.  171.12a, the HMR permit 
shipments that originate in Canada and either terminate in the United 
States or transit the United States to a foreign destination to conform 
to requirements in the Canadian Transportation of Dangerous Goods 
Regulations, with some exceptions and limitations.
    For consistency with the TSA requirements applicable to Canadian 
carriers of explosives, in this final rule, we are amending Sec.  
171.12a to require Canadian motor carriers and railroads that transport 
explosives into the United States to comply with the TSA regulations at 
49 CFR 1572.9 and 1572.11 concerning the transportation of explosives 
from Canada to the United States.

VI. Vessel and Port Security

    The USCG is responsible for assuring maritime security. Primary 
statutory authority is set forth in Title 14, U.S. Code, the Ports and 
Waterways Safety Act, 33 U.S.C. 1221, et seq., and the Espionage Act of 
1917, as amended by the Magnuson Act of 1950, and most recently by the 
Maritime Transportation and Security Act of 2002, in addition to 
Executive Orders and Coast Guard regulations implementing the statutory 
authorities. Since the September 11, 2001, terrorist attacks on the 
United States, the Coast Guard has quickly adapted to the changed 
environment to protect our nation's ports and waterways.
    Vessels. With respect to the treatment of aliens and felons, the 
USCG regulations (33 CFR 160 Subchapter C, as amended by 68 FR 9537 
(February 28, 2003); 33 CFR part 6; and 33 CFR 160.111(a)) require 
commercial vessels to provide information on crew and passenger 
identity and certain dangerous cargo, including explosives, to the U.S. 
Coast Guard National Vessel Movement Center. The notification must take 
place at least 96 hours prior to arrival in port so that the Coast 
Guard can identify any potential security and safety risk. This 
includes an examination of the conditions under which aliens may 
lawfully transport, ship, receive, and possess explosives via 
commercial vessel into a U.S. seaport from any overseas location and 
between domestic ports. The information provided is checked with law 
enforcement and intelligence databases. The Coast Guard then makes a 
determination as to whether the vessel or any of the persons on board 
present a security or safety threat to the United States. Based on this 
threat assessment, the Coast Guard may decide to subject a vessel to 
additional scrutiny, which may include boarding offshore and 
verification that neither the vessel nor the persons on board present a 
safety or security risk before they are allowed to enter U.S. 
territorial seas and ports.
    The regulations in 33 CFR Part 6 provide the authority for the 
Coast Guard to board vessels and direct their movements for the purpose 
of security. In addition, the Coast Guard's authority to restrict and/
or order movement of vessels is found in 33 CFR 160.111(a).
    The Coast Guard has promulgated extensive regulations (46 CFR parts 
10 and 12) to address which aliens, felons, ex-felons, non-citizens, 
persons who have been dishonorably discharged from the military, 
fugitives, persons who have been adjudged insane or otherwise 
determined by competent authority to be physically or mentally 
incompetent, drug users and ex-drug users may serve as licensed and 
unlicensed mariners on U.S. vessels. The licensing and documentation 
regime covers mariners that may handle explosives and other hazardous 
materials. Without such a license or document, an individual may not 
serve in a capacity requiring a license or document on any vessel of 
the United States. The regulations in 46 CFR part 10 apply to persons 
applying for a license as a deck or engineer officer or licensed 
operator of a vessel of the United States.
    The Coast Guard carefully considers whether a felon or an ex-felon 
is sufficiently rehabilitated and whether a drug user or an ex-drug 
user is free from the use of dangerous drugs in order to determine if 
he or she should be entrusted with the responsibilities of service in 
the capacity for which he or she is seeking a license. With respect to 
felons, the review includes persons who are under indictment for 
felonies, as well as persons who have been convicted. The regulations 
at 46 CFR 10.201 contain a table of criminal offenses that are 
considered disqualifying depending on the crime and amount of time 
between application for the license and the conviction. The table of 
criminal offenses includes not only specific offenses, but also general 
categories of other crimes against property and public safety, for 
which an applicant may be denied a license depending on the 
circumstances. These general categories include, for example, arson and 
unlawful possession or use of a firearm or explosives. In addition, the 
regulations at 46 CFR 10.201 establish procedures an applicant must 
follow to prove citizenship. A person who has renounced his citizenship 
does not qualify for a Coast Guard license. Moreover, an application 
may be denied

[[Page 23837]]

to persons with ``habits of life and character'' that would make the 
applicant's presence on board a vessel hazardous to marine safety or 
national security. This would include persons who are fugitives, or 
have been dishonorably discharged from the military. An applicant for a 
license must also pass a physical exam, which discloses whether he is 
physically and mentally competent to serve in the capacity for which he 
is applying. In addition, relevant data bases are checked; such data 
base checks will disclose information related to whether an applicant 
has ever been adjudged insane or otherwise determined by competent 
authority to be incapable of handling his affairs. If so, the applicant 
must present evidence of cure in order to be granted a license, and a 
determination is made based on the record in each such case.
    The requirements of 46 CFR 12.02-4, issued under authority of 
Chapter 73 of Title 46 of the United States Code, provide a similar 
regime for unlicensed seamen who are required to have a merchant 
mariners document in order to serve on the crew of a U.S. vessel. The 
regulations require an extensive application and review process that 
includes a check of criminal records and the National Driver Register. 
This ensures that only persons who have been vetted, from a safety and 
security standpoint, hold licenses or other appropriate documents to 
sail as officers or unlicensed seamen on U.S. vessels. Although the 
Coast Guard does not have a strict ``no-felon'' rule for either 
licensed or unlicensed mariners, the regulations provide for a regime 
to evaluate each individual case and determine whether the individual 
presents a security threat. Further, Coast Guard regulations at 46 CFR 
12.02-10, implementing 46 U.S.C. 8103(b)(1) concerning citizenship 
requirements for unlicensed seamen, state that ``No applicant * * * 
shall be accepted unless the alien presents acceptable documentary 
evidence from the U.S. Immigration and Naturalization Service that he 
is lawfully admitted to the United States for permanent residence.'' 
Moreover, an application may be denied to persons with ``habits of life 
and character'' that would make the applicant's presence on board a 
vessel hazardous to marine safety or national security. This would 
include fugitives and persons who have been dishonorably discharged 
from the military. In addition, a check of the relevant data bases is 
made; such data base checks will disclose information related to 
whether an applicant has ever been adjudged insane or otherwise 
determined by competent authority to be incapable of handling his 
affairs. If so, the applicant must present evidence of cure in order to 
be granted a license, and a determination is made based on the record 
in each such case. The Coast Guard is currently engaged in amending its 
licensing and documentation processes in light of the terrorist attacks 
of September 11, 2001.
    Ports. The USCG port security card regulations (33 CFR part 125), 
codified pursuant to the Espionage Act of 1917, as amended by the 
Magnuson Act of 1950, 50 U.S.C. 191 et seq., govern who may gain access 
to a waterfront facility. The USCG has promulgated explosives handling 
regulations (33 CFR part 126) that allow loading or discharge and 
handling of explosives at designated waterfront facilities. These 
regulations restrict these activities to entities that have obtained a 
permit issued by the Coast Guard. Read together, these regulations 
provide a comprehensive regulatory regime for the safe and secure 
transportation, storage, possession, and handling of explosives at the 
facility. The regulations also provide for the security of the facility 
and the vessels at the facility from threats presented by terrorists 
and other prohibited categories of individuals, including felons and 
drug users, listed in 33 CFR 125.19. On August 7, 2002, the Coast Guard 
published a notice in the Federal Register (67 FR 51082) to: (1) Call 
attention to these regulations; (2) clarify the identification 
credentials that are acceptable to the Commandant in order to gain 
access to waterfront facilities, port, and harbor areas; (3) advise 
that Coast Guard Captains of the Port are responsible for ensuring that 
those allowed access to waterfront facilities do not present 
unacceptable security threats; and (4) note that individuals without 
proper identification may not gain access to waterfront facilities and 
vessels if conditions so warrant. These regulations allow the Coast 
Guard to screen who may safely and securely handle explosives and other 
hazardous materials on board vessels and at waterfront facilities, 
including longshoremen, and the truck drivers that drive the container 
chassis from shipside to and around the container marshalling yard.
    The Coast Guard is engaged in on-going discussions with TSA to 
implement a regime, based in part on these regulations and in part on 
the regulations set forth in 33 CFR part 6, to ensure that any person 
granted access to waterfront facilities, including those designated 
waterfront facilities that handle explosives, does not present a 
security or safety threat. These discussions include TSA implementation 
of appropriate background screening checks designed to disclose those 
factors that would lead the Coast Guard to deny access to part or all 
of a given facility based on security risk and threat assessment. 
Finally, if the law enforcement and intelligence data bases to which 
the Coast Guard has access reveal information about an individual that 
makes that person an unacceptable risk or a threat to a facility, 
including any information relating to the individual's criminal 
background or drug use, 33 CFR 6.04-5 authorizes the Captain of the 
Port to deny access to that person and to prevent that person from 
taking any article or thing onto the vessel or waterfront facility.
    The Coast Guard's comprehensive regulatory regime in 33 CFR 160 
subchapter C, as amended by 68 FR 9537 (February 28, 2003), for vessels 
arriving in the United States; 46 CFR parts 10 and 12, for the 
licensing and documentation of seamen on commercial U.S. vessels; and 
33 CFR parts 125 and 126, regarding access and control of handling of 
explosives and other hazardous materials on waterfront facilities, 
adequately addresses the security risks that may be associated with the 
transportation of hazardous materials, including explosives, by vessel. 
To assure consistency with these requirements, in this final rule, we 
are amending part 176 of the HMR, which addresses the transportation of 
hazardous materials by vessel, to require compliance with requirements 
in 46 CFR parts 10 and 12. The HMR already require compliance with 33 
CFR parts 125, 126, and 160.

VII. Transportation by Air

    In response to the September 11, 2001, terrorist attacks, Congress 
enacted the Aviation and Transportation Security Act (ATSA; Pub. L. 
107-71; November 19, 2001; 115 Stat. 597), which established TSA and 
transferred authority for aviation security from FAA to TSA. FAA 
continues to have authority to regulate all areas of aviation safety 
and to enforce the HMR as they apply to air shipments of hazardous 
materials. Thus, TSA, RSPA, and FAA share responsibility for addressing 
security issues associated with the transportation of hazardous 
materials by air.
    In summary, only a small number of operators transport explosives 
in amounts that would require placarding if transported by highway or 
rail. These air carriers operate pursuant to a security program 
approved by TSA and

[[Page 23838]]

an exemptions program administered by RSPA.
    TSA, FAA, and RSPA regulations govern the safety and security of 
hazardous materials, including explosives, transported by aircraft. 
Following creation of TSA, DOT transferred to TSA a series of security 
regulations that had been issued and enforced by FAA prior to September 
11, 2001. In addition, these security regulations were amended to 
address new statutory requirements in ATSA. See 49 CFR parts 1500, 
1520, 1540, 1542, 1544, and 1546. Following this transfer of authority, 
TSA promulgated a number of additional security regulations concerning 
background checks on individuals in the aviation industry and 
procedures to enhance the security of airports and air carrier 
operations.
    TSA requires all operators of aircraft with a maximum certificated 
takeoff weight of 12,500 pounds or more to adhere to a security program 
that includes a fingerprint-based criminal history record checks (CHRC) 
for all flight crewmembers. Any person who has been convicted of 
certain felonies and serious misdemeanors within the last 10 years is 
not permitted to operate the aircraft. These disqualifying offenses are 
consistent with those that would disqualify a person from holding a 
hazardous materials endorsement to a CDL under the USA PATRIOT Act 
implementing regulations.
    In addition, the aircraft operator must develop procedures to 
restrict access to the cockpit during flights and to secure the 
aircraft from unauthorized entry while on the ground. As well, the 
operator must develop procedures to handle bomb and air piracy threats 
and must train security coordinators to oversee all ground activities.
    In addition, certain air cargo entities operate under a Domestic 
Security Integrated Program (DSIP), which provides that all individuals 
with unescorted access to secured areas undergo a CHRC. Any individual 
with a conviction in the preceding 10 years for a disqualifying offense 
listed in 49 CFR 1544.229 is not permitted access to secured areas. 
Under the DSIP, the cargo carrier must complete a background check of 
the previous five years for any individual with access to controlled 
areas of the airport that have not been deemed security identification 
display areas. Further, the cargo operator must develop procedures that 
provide for personnel identification display areas and to address bomb 
or highjack threat information. The cargo carriers operating under a 
DSIP must provide security training to all employees and are subject to 
Security Directives issued by TSA.
    TSA also requires CHRCs for passenger and baggage screeners; 
employees and contractors with access to secured areas, including 
baggage and cargo handlers; and supervisors. See 49 CFR 1542.209 and 
1544.229-230. In addition, the airport must provide an escort for 
individuals in secured areas who have not completed a CHRC.
    Aviation workers in safety sensitive service are subject to alcohol 
and drug regulations issued and enforced by FAA. See Appendices I and J 
to 14 CFR part 121. These regulations require random, probable cause, 
and post-accident drug and alcohol testing to ensure that employees in 
safety-sensitive service are not drug users or working under the 
influence of alcohol. Also, FAA's regulations require medical 
examinations periodically for all flight crewmembers to ensure that 
there are no physical or emotional limitations that may cause safety or 
security threats to aviation operations. See 14 CFR part 67.
    There are also a variety of security measures in place affecting 
the transportation of explosives into the United States by aliens on 
aircraft. With respect to commercial passenger flights to the United 
States, TSA regulates foreign commercial passenger carriers under 49 
CFR part 1546. Among other requirements, part 1546 requires foreign air 
carriers to adopt and implement a security program approved by TSA. 
Foreign air carriers must compare the names of all direct air carrier 
employees against various watch lists. In certain cases, the carrier is 
not permitted to allow the employee to have unescorted access to 
secured areas of the airport. The carrier must immediately notify the 
nearest field office of the FBI if an employee is an individual known 
to pose a security threat.
    Certain foreign air carriers from countries of particular concern 
also operate under special security program procedures, which require 
the carrier to provide TSA advance notice of the identities of cockpit 
crewmembers. This includes pilots, copilots, flight engineers, and 
airline management personnel, as well as any relief or deadheading 
cockpit crew. The carrier must provide a variety of identifying 
information for each individual. If an individual is known to pose a 
security threat, the carrier is not permitted to allow the individual 
to operate on a flight into or out of the United States.
    Also, under special security program procedures, foreign air 
carriers are required to examine the identification of all operational 
crewmembers and verify their assignment on each flight departing to the 
United States. If the foreign air carrier cannot verify the identity 
and flight assignment of a crewmember, the carrier must deny boarding 
and notify appropriate authorities.
    FAA and TSA also regulate flights to the United States by various 
other commercial and private aircraft operators pursuant to a complex 
set of requirements set forth in a Notice to Airmen (NOTAM). Under this 
NOTAM, the operators must submit identifying information on flight 
crewmembers and passengers in advance of arrival in the United States, 
so that TSA can conduct background checks. In addition, TSA has the 
authority to issue Security Directives (SDs) to air carriers and 
airport operators, which have the force and effect of a regulation and 
may require certain actions or procedures immediately. For example, TSA 
has issued SDs to require background checks on individuals with 
unescorted access to certain secured areas of airports, special 
screening procedures to address individuals who may present a security 
threat at an airport, and a variety of new operational procedures that 
are triggered when the national security alert system level increases.
    In addition to these regulations, NOTAMs, and SDs, TSA requires air 
carriers and airport operators to comply with a detailed Security 
Program designed to address the security risks associated with the type 
of operation. See 49 CFR 1542.103, and 1544.101. There are standard 
Security Programs for air carriers in scheduled passenger service, 
public charters, private charters, cargo operations, and small aircraft 
in commercial service. The Programs are tailored to the security 
concerns attendant to each type of operation based on the size of 
aircraft, the number and nature of the passengers, the degree to which 
aircraft enplane or deplane into secured areas of an airport, and a 
variety of other factors. Commercial airports that TSA has determined 
require formal Security Programs are also required to adopt a TSA-
approved Security Program that must address background checks and 
identification for individuals with access to secured areas of the 
airport and aircraft, access control procedures, measures to control 
movement within secured areas, and escort procedures for vendors who 
are not subject to background checks.
    Finally, TSA plans to issue strengthened cargo security program 
requirements for passenger carriers, Indirect Air Carriers (freight 
forwarders) and all-cargo air carriers by October 2003 that will 
address additional measures to ensure the security of cargo

[[Page 23839]]

operations. Requirements under consideration include expansion of 
background checks for those with access to air operations areas, and 
additional screening for those persons with access to the flight deck 
of all-cargo carriers.
    The HMR establish requirements for the transportation of explosives 
on-board aircraft. Air carriers generally are prohibited from 
transporting explosives in amounts that would require placarding if 
transported by highway or rail. The HMR prohibit Division 1.1 and 1.2 
explosives in any quantity from being transported by aircraft. A 
limited number of explosives classed as Division 1.3 are permitted for 
transportation by cargo aircraft in limited amounts. These include 
certain types of cartridges, flares, and distress signals. 
Additionally, a limited number of Division 1.4 explosives are permitted 
for transportation by passenger or cargo aircraft in limited amounts. 
Again, these include certain types of cartridges, detonators, 
fireworks, flares, fuses, and signal devices.
    Under RSPA's exemptions program, a hazardous materials shipper or 
carrier may be granted an exemption from certain HMR requirements. An 
exemption authorizes a company or individual to transport a hazardous 
material in a manner that differs from the HMR, so long as an 
equivalent level of safety and security is maintained. Exemptions allow 
an operator quickly to implement new technologies and to evaluate new 
operational techniques that often enhance safety and increase 
productivity. In addition, exemptions permit timely movement of 
materials in an emergency or under adverse transportation conditions.
    We have issued a limited number of exemptions that permit the 
transportation of certain explosives by air that would otherwise be 
prohibited for such transportation, including Division 1.1 and 1.2 
explosives. There are currently 23 exemptions that authorize the 
transportation of explosives that are otherwise prohibited for 
transportation by air. All but one of these exemptions has been issued 
to an operator that is subject to TSA security requirements applicable 
to aircraft with a maximum certificated takeoff weight of 12,500 pounds 
of more. As discussed above, the TSA security requirements include 
provisions for CHRCs for all flight crewmembers, restricted access to 
the cockpit during flight, and ground security measures. We anticipate 
that the vast majority of exemptions applicants seeking to transport 
explosives by air that would otherwise be prohibited for such 
transportation will be air carriers that are subject to the TSA 
security requirements, including requirements for CHRCs for flight 
crews.
    Persons applying for and renewing exemptions that permit the 
transportation of explosives that are otherwise prohibited for air 
transportation will need to demonstrate that the exemption proposal 
maintains an equivalent level of safety, including security, as is 
required by transportation regulations. To this end, in this interim 
final rule, we are amending the procedural regulations for applying for 
an exemption in 49 CFR Part 107 to require applicants to certify 
compliance with transportation security laws and regulations. With 
respect to explosive materials that are otherwise forbidden for 
transportation by air, this will include a certification to RSPA that 
the carrier complies with all applicable TSA security requirements and 
that none of the ``prohibited persons'' listed in 18 U.S.C. 842(i), as 
amended by SEA, will participate in the transportation. Each exemption 
will require, as a condition of the exemption, that the holder be in 
conformance with applicable transportation security requirements, 
including the prohibitions in 18 U.S.C. 842(i), before loading and 
departure. Consequently, DOT and TSA security requirements apply to 
these exemption holders and the exemption holders are not subject to 
criminal enforcement under 18 U.S.C. 842(i) when transporting 
explosives in commerce. Explosives permitted for transportation by 
passenger or cargo-only aircraft under the HMR without an exemption are 
not subject to the security certification requirements.
    RSPA has determined that the types and quantities of explosives 
permitted for transportation without an exemption by passenger or 
cargo-only aircraft under the HMR do not present a security risk 
sufficient to warrant application of the TSA background check 
requirements at this time to persons who transport those shipments in 
commerce or to persons who possess those shipments incidental to 
transportation in commerce, including persons subject to 18 U.S.C. 
842(i). Moreover, TSA regulations applicable to airport security 
address the risk that unauthorized persons may gain access to 
explosives being transported by aircraft at major airports. We are 
continuing our assessment of the security risks posed by the 
transportation of explosives by aircraft and will take appropriate 
regulatory action, after public notice and comment, to address those 
risks. In light of this determination, the provisions of 18 U.S.C. 
842(i) do not apply to air shipments of explosives permitted for 
transportation without an exemption under the HMR.
    The TSA security regulations, including background check 
requirements, apply to nearly all of the explosives otherwise 
prohibited for transportation by air that are transported by air under 
the terms of an RSPA exemption. An applicant for an exemption or an 
exemption renewal to transport such prohibited explosives will be 
required to certify that it complies with all applicable TSA security 
requirements as part of the exemption application process. Those few 
applicants for an exemption that are not subject to the TSA security 
requirements will be required to certify as part of the exemption 
application or renewal that none of the ``prohibited persons'' listed 
in 18 U.S.C. 842(i), as amended by SEA, will participate in the 
transportation.

VIII. DOT Determination Under 18 U.S.C. 845(a)(1)

    As noted above, 18 U.S.C. 845(a)(1) provides an exception 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.''
    DOT is authorized by the Federal hazardous materials transportation 
law (49 U.S.C. 5101 et seq.) to designate material, including an 
explosive, as hazardous when transporting that material in commerce in 
a particular amount and form may pose an unreasonable risk to health, 
safety, or security. 49 U.S.C. 5103. DOT regulations applicable to the 
transportation of explosives by all modes include the classification, 
packaging, hazard communication, and operational requirements described 
elsewhere in this preamble and the driver licensing and qualification 
requirements established by FMCSA and incorporated into the HMR. 
Further, the HMR include specific requirements for security plans and 
training adopted in the HM-232 final rule. Under this final rule, the 
HMR also incorporate USCG and TSA security regulations applicable to 
the transportation of explosives in commerce.
    As discussed in detail above, we assessed the security risks 
associated with the transportation in commerce of explosives as defined 
in 18 U.S.C. 841(c)-(f). Based on this assessment, we concluded that 
the most significant security risks are associated with the 
transportation of explosives shipments in quantities that require 
placarding

[[Page 23840]]

under the HMR. Thus, the HM-232 final rule requires persons who offer 
or transport shipments of explosives in all modes of transportation 
that must be placarded under the HMR to develop and implement security 
plans. Similarly, the TSA and FMCSA regulations implementing the USA 
PATRIOT Act provisions for commercial vehicle driver security, and 
incorporated into the HMR in this final rule, apply to drivers of 
commercial vehicles transporting explosives in amounts that require 
placarding.
    Non-placarded shipments of explosives are not subject to these 
requirements. We have determined that non-placarded shipments do not 
present a sufficient security risk in transportation, at this time, to 
warrant application of the TSA background check requirements to persons 
who transport those shipments in commerce or to persons who possess 
those shipments incidental to transportation in commerce, including 
persons subject to 18 U.S.C. 842(i). We are continuing our assessment 
of the security risks posed by the transportation of non-placarded 
shipments of explosives in commerce and will take appropriate 
regulatory action, after public notice and comment, to address those 
risks.
    Nevertheless, non-placarded shipments of explosives continue to be 
subject to general HMR requirements governing packaging and hazard 
communication. These risk-based safety requirements also enhance 
overall transportation security. For example, for high hazard 
shipments, such as Class 1 materials, the stringent packaging required 
by the HMR to enhance the safety of the shipment in transportation 
makes it difficult for someone to tamper with the shipment for a 
criminal or terrorist purpose. Similarly, shipping documents help 
shippers, carriers, and consignees account for specific shipments and 
identify discrepancies or missing packages. In addition, under the HM-
232 final rule, hazardous materials employers must assure that all 
hazardous materials employees receive security awareness training. Such 
training must include an awareness of the security risks associated 
with hazardous materials transportation and a component covering how to 
recognize and respond to possible security threats.
    DOT's decision as to whether a particular hazardous material, 
including an explosive, presents a sufficient security risk when 
transported in commerce to justify background check or other security 
requirements is determinative. The TSA and FMCSA regulations 
implementing the USA PATRIOT Act and incorporated into the HMR in this 
final rule apply to the transport of placarded amounts of explosives by 
motor vehicle within the meaning of 18 U.S.C. 845(a)(1), and the 
provisions of 18 U.SC. 842(i) do not apply to persons engaged in such 
transportation in commerce. DOT has determined that the transportation 
of non-placarded shipments of explosives does not present a sufficient 
security risk to justify detailed security background check or other 
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 the transportation of explosives by vessel, USCG regulations, 
as incorporated into the HMR in this final rule, adequately address 
security risks associated with such transportation; in light of this 
determination, the provisions of 18 U.S.C. 842(i) do not apply.
    Air carriers generally are prohibited from transporting hazardous 
materials in amounts that would require placarding if transported by 
highway or rail except under an exemption issued by RSPA. As noted 
above, DOT has determined that the transportation of explosives 
permitted for air transportation without an exemption under the HMR--
including by persons listed in 18 U.S.C. 842(i)--does not present a 
sufficient risk to justify detailed background checks or other 
additional regulation at this time. As amended in this rule, the HMR 
requirements for explosives transported under exemption that would 
otherwise be prohibited for transportation by air require a 
certification that the applicant for the exemption complies with 
transportation security laws and regulations and also that none of the 
``prohibited persons'' listed in 18 U.S.C. 842(i), as amended by SEA, 
will participate in the transportation. DOT will enforce the 
certification requirement for exemption holders. Thus, the DOT 
regulations adequately address the security risks associated with the 
transportation by aircraft of explosives in commerce at this time.
    It should be noted that these DOT determinations related to the 
provisions of 18 U.S.C. 842(i) may be reassessed as we continue to 
identify and address security risks associated with the transportation 
of explosives. For example, in a rulemaking to be developed under 
Docket HM-232A we are evaluating the need to require further security 
enhancements on materials or categories of materials that present the 
most serious security risks in transportation. Because of the potential 
impact of such enhanced security requirements on the economic viability 
of the hazardous materials transportation industry, any additional 
security requirements should be developed through normal notice-and-
comment procedures, unless security threats justify expedited or 
emergency rulemaking.

IX. Comments on This Interim Final Rule

    This interim final rule imposes a new requirement for persons 
applying for an exemption under 49 CFR part 107. For such persons, this 
interim final rule requires a certification that the applicant is in 
compliance with all applicable security laws and regulations. The new 
certification requirement will not add significantly to an exemption 
applicant's compliance costs. Because this interim final rule addresses 
essential security requirements necessary to promote public safety, we 
determined that it is impracticable and contrary to the public interest 
to precede it with a notice of proposed rulemaking and an opportunity 
for public comment. In addition, based on this determination, and our 
desire to ensure the uninterrupted movement of explosives in commerce, 
we have decided to make this rule immediately effective. We are 
requiring compliance with the substantive provisions of this rule 30 
days after publication of this rule in the Federal Register.
    The Regulatory Policies and Procedures of DOT (44 FR 1134; February 
26, 1979) provide that, to the maximum extent possible, DOT operating 
administrations should provide an opportunity for public comment on 
regulations issued without prior notice. Accordingly, we encourage 
persons to participate in this rulemaking by submitting comments 
containing relevant information, data, or views. We will consider all 
comments received on or before the closing date for comments. We will 
consider late filed comments to the extent practicable. This interim 
final rule may be amended based on comments received.

X. 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. It incorporates 
into the HMR FMCSA,

[[Page 23841]]

TSA, and USCG requirements concerning security requirements related to 
the transportation of hazardous materials, including explosives, and 
adds a security certification requirement for applicants for exemptions 
from the HMR.

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. It incorporates into the HMR FMCSA, TSA, and USCG 
requirements concerning security requirements related to the 
transportation of hazardous materials, including explosives, and adds a 
security certification requirement for applicants for exemptions from 
the HMR. I hereby certify that the requirements of this final rule will 
not have a significant impact on a substantial number of small 
entities.

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 significantly or uniquely affect the communities of the Indian 
tribal governments and does not impose substantial direct compliance 
costs, the funding and consultation requirements of Executive Order 
13175 do not apply.

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

    RSPA has a current information collection approval under OMB No. 
2137-0051, Preemption Requirements with 4,219 burden hours, which 
includes information collection estimates for the exemptions 
application process. We are in the process of requesting OMB approval 
for extension of this approval; on February 5, 2003, we published a 
notice under Docket No. RSPA-2003-14307 requesting comments on 
extension of this approval (68 FR 5972).
    We estimate that an application for an exemption will require 5 
hours to complete. An application to renew an exemption will require 
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. Therefore, we are not resubmitting the approval request to 
OMB. Comments on the potential paperwork burden that may be associated 
with the new security certification requirement should be submitted to 
the docket identified for this interim final rule or to Docket No. 
RSPA-2003-14307.
    Requests for a copy of the information collection should be 
directed to Deborah Boothe, 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 incorporates into the HMR FMCSA, TSA, and USCG 
requirements concerning security requirements related to the 
transportation of hazardous materials, including explosives, and adds a 
security certification requirement for 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
In consideration of the foregoing, we are amending 49 CFR Parts 107, 
171, 176, and 177, as follows:

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, paragraph (c)(10) is added to read as follows:


Sec.  107.105  Application for exemption.

* * * * *
    (c) * * *
    (10) A certification that the applicant is in compliance with 
transportation security laws and regulations. When a Class 1 material 
is forbidden for transportation by air 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 must also certify that no person within the

[[Page 23842]]

categories listed in 18 U.S.C. 842(i) will participate in the 
transportation of the Class 1 material.
* * * * *

0
3. In Sec.  107.109, paragraph (a)(6) is added to read as follows:


Sec.  107.109  Application for renewal.

    (a) * * *
    (6) Include a certification that the applicant is in compliance 
with transportation security laws and regulations. When a Class 1 
material is forbidden for transportation by air 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 must also 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.
* * * * *

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
4. The authority citation for part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.


0
5. In Sec.  171.12a, paragraph (b)(19) is added to read as follows:


Sec.  171.12a  Canadian shipments and packagings.

* * * * *
    (b) * * *
    (19) Rail and motor carriers must comply with 49 CFR 1572.9 and 49 
CFR 1572.11 to the extent those regulations apply, when transporting 
Class 1 materials.

PART 176--CARRIAGE BY VESSEL

0
6. The authority citation for part 176 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.


0
7. Section 176.7 is added to read as follows:


Sec.  176.7  Documentation for vessel personnel.

    Each owner, operator, master, agent, person in charge, and 
charterer must ensure that vessel personnel required to have a license, 
certificate of registry, or merchant mariner's document by 46 CFR parts 
10 and 12 possess a license, certificate or document, as appropriate.

PART 177--CARRIAGE BY PUBLIC HIGHWAY

0
8. The authority citation for part 177 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

0
9. Section 177.804 is revised to read as follows:


Sec.  177.804  Compliance with Federal Motor Carrier Safety 
Regulations.

    Motor carriers and other persons subject to this part must comply 
with 49 CFR part 383 and 49 CFR parts 390 through 397 (excluding 
Sec. Sec.  397.3 and 397.9) to the extent those regulations apply.

    Issued in Washington DC on April 25, 2003, under authority 
delegated in 49 CFR part 1.
Samuel G. Bonasso,
Acting Administrator, Research and Special Programs Administration.
[FR Doc. 03-10828 Filed 5-2-03; 8:45 am]
BILLING CODE 4910-60-P




Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: