# Hazardous Materials: Security Requirements for Offerors and Transporters of Hazardous Materials

- **operation:** document
- **citation:** 68 FR 14510
- **title:** Hazardous Materials: Security Requirements for Offerors and Transporters of Hazardous Materials
- **source type:** rulemaking
- **agency:** Research and Special Programs Administration
- **status:** historical
- **official:** true
- **published on:** 2003-03-25
- **effective on:** 2003-03-25
- **summary:** The Research and Special Programs Administration is establishing new requirements to enhance the security of hazardous materials transported in commerce. Shippers and carriers of certain highly hazardous materials must develop and implement security plans. In addition, all shippers and carriers of hazardous materials must assure that their employee training includes a security component.
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- **source url:** https://www.federalregister.gov/documents/2003/03/25/03-7080/hazardous-materials-security-requirements-for-offerors-and-transporters-of-hazardous-materials
**body:**

Federal Register, Volume 68 Issue 57 (Tuesday, March 25, 2003) [Federal Register Volume 68, Number 57 (Tuesday, March 25, 2003)] [Rules and Regulations] [Pages 14510-14521] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 03-7080] [[Page 14509]] ----------------------------------------------------------------------- Part IV Department of Transportation ----------------------------------------------------------------------- Research and Special Programs Administration ----------------------------------------------------------------------- 49 CFR Part 172 Hazardous Materials: Security Requirements for Offerors and Transporters of Hazardous Materials; Final Rule Federal Register / Vol. 68, No. 57 / Tuesday, March 25, 2003 / Rules and Regulations [[Page 14510]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Research and Special Programs Administration 49 CFR Part 172 [Docket No. RSPA-02-12064 (HM-232)] RIN 2137-AD67 Hazardous Materials: Security Requirements for Offerors and Transporters of Hazardous Materials AGENCY: Research and Special Programs Administration (RSPA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Research and Special Programs Administration is establishing new requirements to enhance the security of hazardous materials transported in commerce. Shippers and carriers of certain highly hazardous materials must develop and implement security plans. In addition, all shippers and carriers of hazardous materials must assure that their employee training includes a security component. EFFECTIVE DATE: This final rule is effective March 25, 2003. FOR FURTHER INFORMATION CONTACT: Susan Gorsky, (202) 366-8553, Office of Hazardous Materials Standards, Research and Special Programs Administration. SUPPLEMENTARY INFORMATION: I. Background On May 2, 2002, the Research and Special Programs Administration (RSPA, we) published a notice of proposed rulemaking (NPRM) to enhance the security of hazardous materials in transportation (67 FR 22028). Proposals for amending the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) included a requirement for motor carriers registered with the agency to maintain a copy of their current registration certificate on each motor vehicle. We further proposed to require shipping papers to include the name and address of the consignor and consignee and the shipper's DOT Hazmat Registration number, if applicable. In addition, we proposed to require shippers and carriers of certain highly hazardous materials to develop and implement security plans. We also proposed to require hazardous materials shippers and carriers to assure that their employee training includes a security component. The NPRM provided a 30-day comment period. On May 23, 2002, in response to a number of requests, we extended the comment period for the NPRM an additional 30 days (67 FR 36138). The comment period closed July 3, 2002. In addition, on July 16, 2002, RSPA and the Federal Motor Carrier Safety Administration (FMCSA) published an advance notice of proposed rulemaking (ANPRM) to examine the need for enhanced security requirements for hazardous materials transported by motor carriers (67 FR 46622). The two agencies are seeking comments on the feasibility of specific security enhancements and the potential costs and benefits of deploying such enhancements. Security measures addressed in the ANPRM include escorts, vehicle tracking and monitoring systems, emergency warning systems, remote shut-offs, direct short-range communications, notification to State and local authorities, and operational measures. The comment period for the ANPRM was extended until November 15, 2002. Late-filed comments will be considered to the extent feasible. In this final rule, we are adopting the following revisions to the HMR to enhance the security of hazardous materials transported in commerce: --Shippers and carriers subject to the registration requirements in 49 CFR part 107 or who offer or transport select agents and toxins regulated by the Centers for Disease Control and Prevention (CDC) must develop and implement security plans. --Hazmat employers must provide security training to their hazmat employees. Hazmat employees of companies required to have a security plan under this final rule must be trained in the plan's specifics. All hazmat employees must receive training that provides an awareness of the security issues associated with hazardous materials transportation and possible methods to enhance transportation security. This training must also include a component covering how to recognize and respond to possible security threats. When conducting inspections at shipper and other facilities, DOT inspectors will be looking for security plans and training records related to security. If violations are found, appropriate penalty action will be initiated. Baseline penalties for these violations will be provided in a civil penalty rulemaking that we expect to issue in the near future. II. Analysis of Comments We received over 270 comments on the May 3, 2002, NPRM from hazardous materials shippers, carriers, industry associations, and State and local government agencies. Commenters unanimously support the NPRM's goal of enhancing the secure transportation of hazardous materials. However, most commenters have significant concerns about some or all of the specific proposals in the NPRM. For example, some commenters suggest that the NPRM proposals do not provide an appropriate balance between security and economic goals. In addition, some commenters oppose some or all of the proposed security requirements because they would not have prevented the September 11, 2001, terrorist attacks. Several commenters also suggest that we should defer to the Transportation Security Administration (TSA) or the proposed Department of Homeland Security on security issues. Further, many commenters express reservations about the scope of the NPRM and the applicability of some of its provisions to most shipments of hazardous materials. As well, a significant proportion of commenters oppose some or all of the proposals concerning registration numbers and certificates, shipping documentation requirements, security plans, and security training. Finally, many commenters suggest that we seriously underestimated the potential cost impacts of the proposals in the NPRM. These comments are discussed in detail below. A. Security Versus Economic Efficiency Several commenters express concern that the NPRM proposals in the aggregate will result in unacceptable economic burdens on the industry and will adversely affect the efficiency with which hazardous materials are routinely transported. ``We also are concerned that the proposed measures will be expensive to implement and will introduce inefficiencies to the manner in which hazardous materials are transported. In responding to the events of September 11th, we must not compromise our ability to move large amounts of hazardous materials in an efficient, cost-effective manner. Introducing inefficiencies to our freight transportation system helps further the terrorists' goals of disrupting the American way of life.'' (American Trucking Associations) As we stated in the NPRM, hazardous materials are essential to the economy of the United States and the well-being of its people. Our goal in this rulemaking is to implement security requirements that will be effective in preventing hazardous materials from being used as tools of destruction and terror while permitting continued transportation of these essential products. We applaud those in the industry who have recognized their responsibility for [[Page 14511]] enhanced security for the products they manufacture and transport and have developed and implemented thorough and detailed security programs. We do not agree that the imposition of prudent, common-sense security measures will cause massive disruptions in the movement of hazardous materials. We recognize that the provisions proposed in the NPRM and adopted, with modifications, in this final rule, will impose new costs of doing business on both hazardous materials shippers and carriers. As discussed in the following sections, in this final rule we revised certain proposals in response to comments on the NPRM to increase the effectiveness and reduce potential costs impacts of the new security provisions. Several commenters note that the security measures proposed in the NPRM would not have prevented the September 11th terrorist attacks, the 1993 attack on the World Trade Center, or the 1995 attack on the Murrah Building in Oklahoma City. Nowhere in the NPRM do we state that the proposed security requirements would have prevented past attacks. Rather, we discussed the September 11th terrorist atrocities to indicate the heightened risk of terrorism with which we all now live and the need to reassess and address security vulnerabilities in all areas of our public and private lives. The discussion of the attack on the Murrah Building was intended as an illustration of the devastating consequences that can result from a criminal or terrorist act involving hazardous materials and to provide an estimate of the economic costs of such an act. We cannot limit our actions on security to efforts to prevent terrorist attacks that have already occurred. It is incumbent on everyone responsible for the safety and security of the United States to proactively assess future terrorist threats and take actions to try to prevent future attacks. We believe that the new requirements in this final rule will enhance the security of hazardous materials in transportation and, thus, help to deter and prevent terrorists from using hazardous materials in the transportation system as weapons of destruction or intimidation. B. Security Authority Some commenters question whether RSPA is the appropriate agency to issue transportation security regulations. These commenters suggest that the Transportation Security Agency (TSA) or the proposed Department of Homeland Security would be better suited to issue transportation security-related regulations. One commenter points out that TSA has been given the responsibility for security in all modes of transportation, and that TSA has been authorized to issue, rescind and revise such regulations as are necessary to carry out the functions of the Administration. The HMR are promulgated under the mandate in Sec. 5103(b) of Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq., as amended by Sec. 1711 of the Homeland Security Act of 2002, Pub. L. 107-296) that the Secretary of Transportation ``prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.'' Section 5103(b)(1)(B) provides that the HMR ``shall govern safety aspects, including security, of the transportation of hazardous material the Secretary considers appropriate.'' Hazardous materials shippers and carriers should be aware that this final rule is the first step in what may be a series of rulemakings to address the security of hazardous materials shipments. The joint RSPA- FMCSA ANPRM described above may result in one or more proposals to require specific security measures for hazardous materials that pose a significant security risk in transportation. In addition, TSA is developing regulations that are likely to impose additional requirements beyond those established in this final rule. We consult and coordinate with TSA concerning security-related hazardous materials transportation regulations and will continue to do so after TSA becomes part of the new Department of Homeland Security. C. Industry Consensus Standards One commenter suggests that we should work with the hazardous materials industry to develop consensus standards for hazardous materials transportation security. ``Instead of implementing its proposals, RSPA should hold one or more public meetings to solicit recommendations from shippers, carriers, and other members of the interested public as to security enhancements, and as to regulatory approaches, that will accomplish more, and do so more efficiently.'' (National Small Shipments Traffic Conference, Inc., and the Health and Personal Care Logistics Conference, Inc.) We appreciate this suggestion; indeed, we are aware that a number of industry associations have developed and disseminated recommendations for enhancing the security of hazardous materials and expect that they will form the basis for many individual company plans. However, we do not agree that a consensus-standards approach is appropriate for this rulemaking. Consensus standards generally are specification standards; that is, they set forth specific requirements for achieving a regulatory goal. One of the goals of this final rule is to establish a performance standard for hazardous materials transportation security plans. Performance standards generally permit a regulated entity to determine the specific measures necessary to achieve compliance with the established performance goal. In the case of hazardous materials transportation security, the flexibility provided by a performance standard permits a company to implement a security plan that is tailored to its specific circumstances and operations. A consensus-standards process is a lengthy process. It can take many months or even years for the parties developing such a standard to reach consensus on the appropriate measures to be implemented. The security threat is real and ongoing. We do not have the time to spend on development of a consensus standard for hazardous materials transportation security. D. Registration Certificates Currently, each motor carrier transporting certain classes or divisions of hazardous materials is required to file with RSPA a registration statement and pay an annual fee (49 CFR part 107). A Certificate of Registration (certificate), which includes a U.S. DOT Hazmat Registration Number, is then issued by RSPA to the carrier. A carrier must display its registration number on a document carried on each motor vehicle, but need not maintain a copy of the certificate itself on each vehicle. The NPRM proposed to require each motor carrier registered with RSPA to maintain a copy of its current registration certificate on each motor vehicle used to transport hazardous materials. We suggested that the actual certificate could assist State and local law enforcement personnel to determine whether a carrier is a legitimate transporter of hazardous materials. Commenters overwhelmingly oppose this proposal, primarily because the registration system as currently structured is not designed to make determinations as to the legitimacy of registrants. ``[A] valid registration certificate is no indication that a transporter is `legitimate.' It is not an endorsement of regulatory compliance. It is simply proof of payment.'' (Institute of Makers of Explosives) Commenters also note that the registration system has no relevance to transportation security. ``[T]he act of registering and obtaining a DOT registration certificate and number * * * does nothing to ensure that the [[Page 14512]] registrant is not a potential risk to transport security. * * * In no case is any background investigation conducted before registering an applicant, or even investigation to ensure that the applicant is a bona fide company legitimately engaged in the offering for transport and/or transport of hazardous materials.'' (The Conference on the Safe Transportation of Hazardous Articles, Inc.) In addition, commenters suggest that a registration certificate can easily be copied or falsified. Even those commenters who support the proposal for motor carriers to maintain a copy of their registration certificates on transport vehicles state that the proposal will not enhance transportation security. We have reconsidered this issue in light of the overwhelming opposition expressed by commenters to this proposal, and it is not adopted in this final rule. We agree with commenters that, absent significant changes to the current registration system, the mere presence of a registration certificate in a motor vehicle transporting hazardous materials will do little to enhance transportation security or to assist enforcement personnel to verify the legitimacy of hazardous materials carriers. E. Shipping Papers Currently, the HMR generally require each person who offers a hazardous material for transportation to describe the material on a shipping paper. However, there is no requirement for a shipping paper to include the name and address of the person offering the shipment or the person to whom the shipment will be delivered. The NPRM proposed to require each shipping paper to include the name of the shipment consignor and the address from which the shipment originates and the name and address of each person to whom the shipment will be delivered. In addition, we proposed to require each shipping paper to include the U.S. DOT Hazmat Registration Number, if applicable, of the person offering the shipment for transportation. The proposal was intended to assure that shipping papers included information to assist law enforcement personnel to promptly ascertain the legitimacy of hazardous materials shipments during routine or random roadside inspections and to identify suspicious or questionable situations where additional investigation may be necessary. As with the proposal to require motor carriers to maintain copies of registration certificates in vehicles transporting hazardous materials, commenters overwhelmingly oppose the proposal to require shippers to include registration numbers on shipping papers. Commenters say that the registration program is not designed to determine whether shippers are ``legitimate'' and that the proposed requirement will not enhance shipment security. In addition, commenters suggest that a requirement to include registration numbers on shipping papers would be expensive to implement because many shippers would have to modify computer systems and shipping paper forms to include the new information. ``Configuring computer systems to provide new data on shipping documents will cause significant problems for shippers, carriers, freight forwarders, brokers, agents, and others. Available display fields are limited and companies will need to redirect their limited Information Technology (IT) resources to reprogram their information management systems.'' (Dangerous Goods Advisory Council) While we believe that commenters have overstated the costs that might be incurred to modify information systems to accommodate the proposed registration number requirement, we agree that the paperwork burden is not justified by the limited security benefits that might result. Therefore, the registration number proposal is not adopted in this final rule. A number of commenters support the proposal to include the names and addresses of consignors and consignees on shipping papers. ``This provision, to include the name of the shipment consignor and the address of the person to whom the shipment will be delivered, is already widely in use by most companies that ship hazardous materials and therefore is readily acceptable.'' (Dow Chemical Company) Similarly, ``[i]ndustry routinely prepares thousands of shipping papers each year and the requirement that the addresses of the consignor and consignee appear on such documents should not pose a problem or burden.'' (Nuclear Energy Institute) Other commenters, however, express serious reservations about the proposal to require consignor and consignee names and addresses on shipping papers. Most commenters question whether such a requirement would actually make it easier to identify suspicious shipments, as stated in the NPRM, without a system in place to verify the consignor and consignee information provided. ``Establishing the legitimacy of any consignor or consignee, and their respective addresses, requires knowledge and information not `promptly ascertainable' from the roadside more than a thousand miles from the consignor and consignee as indicated in the shipping paper.'' (The Conference on the Safe Transportation of Hazardous Articles, Inc.) As well, commenters suggest that the proposal is unnecessarily broad and would apply to shipments of hazardous materials that pose little or no security threat. In addition, commenters say that, while the proposed requirement for consignor/consignee names and addresses on shipping papers may have some security benefit for motor carrier operations, it is not appropriate for all modes of transportation. Rail carriers, for example, suggest that the proposal would result in little or no security benefit for rail car transportation. ``Adding information to the shipping papers might be useful to a law enforcement officer stopping a truck on the highway * * * but would add nothing to rail security. * * * The carload rail network is a fixed network that serves only those shippers connecting to it. The identity and location of every rail car shipper is known and only specific destinations can be reached by rail. The security issues addressed by the proposed street address requirement are simply not present in rail transportation.'' (CSX Transportation) Further, shippers and carriers of specific classes and types of materials cite operational difficulties that they say will make it difficult to comply with the proposed new requirement. Hazardous waste generators suggest that the proposed requirement to include consignor and consignee names and addresses on shipping papers is redundant for hazardous waste shipments because the EPA hazardous waste manifest already includes sufficient information for tracking hazardous wastes from origin to destination. Other commenters are concerned that the NPRM proposal concerning shipping papers did not consider the positive security implications of electronic tracking systems that are utilized by a number of shippers and carriers to monitor shipments. ``[There are] superior technology and tracking systems in place that not only track all shipments but also the vehicle or container used to transport the freight. Unfortunately, RSPA does not give indication that it has considered the advanced or enhanced security benefits gained from having such a system in place. RSPA should recognize and waive any proposed requirements for carriers and companies with these type information [[Page 14513]] systems in place * * * '' (FedEx Express) Commenters representing shippers and carriers of hazardous materials used in agricultural applications note that many of the locations to which they deliver do not have street addresses, making it difficult to complete a shipping paper as proposed in the NPRM. ``[Agricultural retailers] often deliver their product to farm fields that don't have addresses, or to farms with rural addresses, and in some cases in one State, no addresses. * * * Many applicators intimately know the customer's fields they are delivering to and thus don't need addresses. Some use maps or air photos that show the fields or sections of fields that need the products applied.'' (Agricultural Retailers Association) Representatives of shippers and carriers of hazardous materials used at construction sites have similar concerns. Shippers and carriers of compressed gas cylinders used in medical care and heating oil, diesel fuel, propane, gasoline, and similar materials that use individual motor vehicles to deliver product to multiple locations point out that drivers frequently make changes to their delivery schedules or make emergency or unscheduled deliveries in the course of a single day, so that a shipping paper with a list of delivery locations completed in the morning would have to be significantly altered by the driver during the course of the day as his delivery schedule is modified. ``It is common practice to have multiple deliveries of fuel throughout the day. The shipment locations may be known for some deliveries, but there are numerous instances where the location of a particular delivery is not known until the truck has already begun its route. In other words, not every gallon of petroleum is accounted for when loaded at the bulk plant.'' (BOC Oil Company and others) Finally, shippers of so-called ``blind shipments'' of hazardous materials suggest that they would be adversely affected by the proposal. Blind shipments are transported under product trading transactions in which the receiving person is not provided information about the true origin of the shipments delivered to them and the shipper may not know the true destination of the shipment. ``Thousands of shipments are made from unnamed locations or from shippers acting as agents for suppliers who do not wish to be identified for business reasons. Perhaps an equal number of shipments are made to unnamed consignees. This NPRM would eliminate this practice resulting in the loss of millions of dollars in revenue annually for shippers with no increase in security.'' (Compressed Gas Association) We do not agree with commenters that the proposed requirement for consignor and consignee names on shipping papers would provide little or no security benefit. In the absence of requirements for route plans or electronic tracking, the name and address of the shipment consignor and consignee can help law enforcement personnel determine whether a shipment has been unreasonably diverted and, thus, whether further investigation is warranted. However, having considered the adverse comments received on this proposal, we are not adopting it in this final rule. Instead, we are considering modified procedures for making consignor and consignee information available to law enforcement personnel. A modified procedure may be proposed in a future rulemaking. We note in this regard that the UN Recommendations on the Transport of Dangerous Goods require the name and address of both the shipment consignor and consignee to be included on shipping papers (chapter 5.4.1.3). A similar requirement is also in the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (chapter 4.1.6). Moreover, a provision to require the consignor and consignee name and address has been adopted by the International Maritime Organization for inclusion in Amendment 3.1 of the International Maritime Dangerous Goods Code. We also note that the U.S. Customs Service has issued a final rule to require consignor/consignee information on bills of lading for all cargoes entering the United States (67 FR 66318; October 31, 2002). F. Security Plans The NPRM proposed a new subpart I in part 172 to require persons subject to the registration requirements in subpart G of part 107 and persons who offer or transport select agents and toxins regulated by CDC in 42 CFR part 73 to develop and implement written security plans. Those persons required to register under subpart G of part 107 include persons who offer for transportation or transport: (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) a shipment in a non-bulk packaging of 2,268 kg (5,000 pounds) gross weight or more of one class of hazardous materials for which placarding is required; and (6) a shipment that requires placarding. Select agents and toxins are materials regulated by CDC because they have the potential to pose a severe threat to the public health and safety. We suggested that a security plan should focus not only on the potential threats posed by the material being transported, but on personnel, facility, and en route security issues, as well. The NPRM did not include a prescriptive list of actions that must be included in a security plan. Rather, we proposed that a company should implement a plan that is appropriate to its individual circumstances, considering the types and amounts of hazardous materials shipped or transported and the modes used for transportation. Commenters generally support the proposed requirement. However, commenters are concerned about certain details of the proposal. A major concern for many commenters is the language used in the NPRM to describe the security plan and its purpose. In the words of one commenter, ``The written plan requirement is too strongly worded. [We are] deeply concerned with much of the language in the security plan component of the NPRM. The purpose of any planning, whether for security or safety, is to reduce and mitigate risks. However, the NPRM as worded mandates `assurance' of 100% risk-free operations. This is not possible.'' (National Propane Gas Association) Other commenters express similar reservations. ``The security plan should `address' various subjects, but no requirement of the regulations should require that the plan `assure' that unauthorized or unlawful actions will not take place. The word `assure' has a strong legal content, and would serve to impose undue strict liability on anyone who had the misfortune to experience a security incident, no matter how unavoidable that incident was.'' (Sulfur Dioxide Mutual Assistance Response Team) We agree that the term ``assure,'' as used in the NPRM to describe the purposes and goals of a security plan, was inappropriate. No plan, no matter how comprehensive and detailed, can provide absolute assurance that each shipment of hazardous materials to which it applies will be transported without incident. In this final rule, we are modifying subpart I, as suggested by commenters, to more properly [[Page 14514]] characterize a security plan in terms of addressing and reducing security risks presented by the transportation of certain hazardous materials in commerce. Related to the liability concern, commenters ask how the proposed security plan requirement would be enforced. ``Any measurement of a security plan would be entirely subjective. * * * If our products were somehow involved in a terrorist act, does this mean our security plan failed? And if so, what enforcement action will be taken?'' (Airgas, Inc.) Other commenters ask what standard will be used to determine whether security plans comply with regulatory requirements. Each security plan will differ because each security plan will be based on a company's assessment of the security risks associated with the materials it ships or transports. There is no ``one-size-fits-all'' security plan that will be appropriate for each company's individual circumstances; similarly, there is no ``one-size-fits-all'' enforcement standard that can be applied to individual companies. We will examine a company's security plans, including the vulnerability assessment on which the security plan is based, as necessary to ascertain that a company has a plan in place, that it includes the components specified in this final rule, and that its personnel have been trained concerning the plan's specific components. The fact that a product is used in a terrorist, criminal, or destructive action does not automatically mean that the security plan failed or that Federal security requirements are inadequate. A security plan should represent a company's best, good-faith effort to address identified security risks. However, plans must be updated as new information and technology become available. Compliance with Federal regulatory standards may constitute an effective defense in private litigation. However, failure to comply with those standards can be argued to constitute negligence. Several commenters suggest that the requirement for security plans should be applied more narrowly than proposed in the NPRM. For example, shipments of bulk packagings that contain residues of certain hazardous materials must be placarded and, thus, would be subject to the proposed security plan requirement. Similarly, shipments of certain corrosive or flammable materials in Packing Groups II or III, such as institutional cleaning products, must be placarded in some circumstances and, thus, would be subject to the proposed security plan requirement. Commenters suggest that ``the requirement for an offeror or transporter to develop and implement a security plan should more appropriately be predicated upon the types (in terms of hazard) and/or quantities of hazardous materials offered or transported by the person, rather than on whether that person is required to register. * * * [S]ecurity plans should only be required for offerors and transporters of hazardous materials that have the potential to pose a significant threat from a security perspective if those hazardous materials were to fall into the wrong hands.'' (Conference on Safe Transportation of Hazardous Articles, Inc.) We agree that a requirement for security plans should apply only to those materials that present significant security threats. The registration and select agent and toxins lists cover the materials that present the most significant security threats in transportation and provide a relatively straightforward way to distinguish materials that may present a significant security threat from materials that do not. Further, the requirements for security plans proposed in the NPRM and adopted in this final rule permit a shipper or carrier to develop a security plan that assesses the specific security risks of the materials to be transported and put into place measures that are commensurate with the assessed risks. If a shipper or carrier determines that the security risks of the materials it handles are relatively small, then its security plan may well be limited in scope and complexity. One commenter suggests that materials such as propane do not present a security risk sufficient to require development of shipper and carrier security plans. ``Propane has an excellent safety record both at the storage site and in transit. Propane's narrow range of flammability, its tendency to disperse rapidly if released, and the robust, Federally-regulated systems used to contain the product all support the assertion that propane should not be considered a weapon of mass destruction.'' (National Propane Gas Association) We disagree. Propane is among the liquefied compressed gases most commonly transported throughout the nation. When liquid propane is released into the atmosphere, it quickly vaporizes into the gaseous form that is its normal state at atmospheric pressure. This happens very rapidly, and in the process, the propane combines readily with air to form fuel-air mixtures that are ignitable over a range of 2.2 to 9.5 percent propane by volume. If an ignition source is present in the vicinity of a highly flammable mixture, the vapor cloud ignites and burns very rapidly (characterized by some experts as ``explosively''). Based on these characteristics and the frequency with which propane is transported in this country, we believe that propane presents a sufficient security risk to warrant the imposition of security plan and security training requirements. Another commenter requests an exception from the proposed security plan requirements for petroleum marketer transporters ``given the already heightened level of security practiced by this unique branch of hazardous materials transporters.'' (Ohio Petroleum Marketers Association) In support of this request, the commenter cites regulations such as State fire codes, workers compensation laws, and Federal transportation safety laws ``that reduce the potential for certain hazardous materials to be targets for terrorists, and that maintain a high level of security awareness for hazardous materials employees.'' Again, we disagree. The regulations cited by the commenter are focused on safety, not security. Products transported by petroleum marketers, such as fuel oil and motor fuel, can potentially be used as weapons of opportunity or can be combined with other materials to construct weapons of mass destruction. Indeed, trucks loaded with petroleum products have been used in terrorist attacks on at least two occasions in recent months overseas. In addition, on June 21, 2002, the Federal Bureau of Investigation disclosed that it had information that terrorists using fuel tanker trucks might try to attack fuel depots or Jewish schools or synagogues. The warning was based on interviews with captured al Qaeda fighters and other sources. Therefore, we reject the requested exceptions. A number of commenters note that, as drafted, the NPRM suggests that the proposed security plan requirements apply to every shipment offered for transportation or transported in commerce by a person required to register by subpart G of part 107. For example, one commenter says, ``A corporation subject to the hazmat registration requirements may easily have more than one facility--some of which might perform operations that would benefit from a security plan, others of which might not. It would be patently unreasonable to require each facility operated by the same corporation subject to hazmat registration requirements * * * develop and implement a security plan regardless of whether the particular facility transports hazardous materials [[Page 14515]] subject to those requirements.'' (Utility Solid Waste Activities Group) We agree. Our intention in the NPRM was for those shipments that are listed as triggering the registration requirements in subpart G of part 107 to be subject to security plan requirements, not for every shipment transported by a registered entity or every facility operated by a registered entity. This final rule clarifies that persons who offer for transportation or transport any of the materials listed in subpart G of part 107 or a select agent or toxin regulated by CDC must develop and adhere to security plans applicable to the listed materials. The NPRM proposed that a security plan address the security of shipments stored incidental to movement in transportation. Several commenters are concerned about the applicability of the security plan requirement to persons that do not offer or transport hazardous materials in commerce, but who may operate facilities at which hazardous materials are stored during transportation. One commenter notes that ``[i]n many situations, HAZMAT are delivered to or through facilities operated by entities that are not subject to the security plan requirements because they may not be legally required to register.'' (Dangerous Goods Advisory Council) We agree that the final rule should clarify responsibility for security plans applicable to hazardous materials stored incidental to movement in transportation. Generally, these hazardous materials will be stored at a shipper or carrier-owned or -operated facilities, and the shipper or carrier will be responsible for developing a security plan. In this final rule, the requirement for developing and adhering to a security plan applies to persons who offer for transportation or transport hazardous materials in commerce, including loading, unloading, or storage operations incidental to the movement of hazardous materials in commerce. Another commenter proposes that we adopt a definition for ``storage incidental to movement'' to distinguish storage that is part of transportation, and therefore subject to security plan requirements, from storage that is not part of transportation. For purposes of this final rule, storage incidental to movement of a hazardous material in commerce is storage that takes plac
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