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55156 Federal Register / Vol. 71, No.

183 / Thursday, September 21, 2006 / Proposed Rules

could be reclaimed by the Commission, including the Initial Regulatory applicability of the security plan
as well as how a reconfigured and Flexibility Analysis, to the Chief requirements.
enlarged A Block should be licensed, in Counsel for Advocacy of the Small DATES: Public meeting: The meeting will
the event the Commission adopts the Business Administration. be held on November 30, 2006. The
Optimization Plan. meeting will begin at 9 a.m.
43. Further, because the Optimization List of Subjects
Written comments: Comments must
Plan does not specifically disclaim or 47 CFR Part 1 be received by December 20, 2006.
supercede the preceding White Paper
Administrative practice and ADDRESSES: Public meeting: The
band plan proposals, the Commission
procedure, Communications common meeting will be held at the U.S.
seeks comment on the White Paper
carriers. Department of Transportation, Nassif
proposals as well. As in the case of the
Building, Room 2230, 400 Seventh
Optimization Plan, the White Paper’s 47 CFR Part 27 Street, SW., Washington, DC 20590–
three proposals entail some shift in the
Communications equipment, Radio. 0001. Requests for special
position of the commercial spectrum
accommodations should be addressed to
blocks in the Upper 700 MHz Band. The 47 CFR Part 90
the Pipeline and Hazardous Material
White Paper’s three band plan proposals Radio, Reporting and recordkeeping Safety Administration, PHH–10, 400
would increase the existing allocation of requirements. Seventh Street, SW., Washington, DC
one megahertz for the A Block up to
Federal Communication Commission. 20590–0001; telephone (202) 366–8553.
one-and-a-half or two megahertz. In
Marlene H. Dortch, Written comments: You may submit
order to facilitate broadband within an comments identified by the docket
enlarged A Block, the White Paper Secretary.
number (PHMSA–06–25885) by any of
proposals involve either eliminating the [FR Doc. 06–7912 Filed 9–20–06; 8:45 am] the following methods:
B Block while adding bandwidth to the BILLING CODE 6712–01–P • Federal eRulemaking Portal: http://
A Block and the public safety block, or www.regulations.gov. Follow the online
reducing the B Block while adding instructions for submitting comments.
bandwidth to the A Block. The NPRM DEPARTMENT OF TRANSPORTATION • Web site: http://dms.dot.gov.
seeks comment on whether the Follow the instructions for submitting
Commission should adopt any of the Pipeline and Hazardous Materials comments on the DOT electronic docket
various White Paper proposals and also Safety Administration site.
requests comment on the same • FAX: 1–202–493–2251.
transition issues raised by consideration 49 CFR Part 172 • Mail: Docket Management System,
of the Optimization Plan. The NPRM U.S. Department of Transportation, 400
seeks comment on similar transition [Docket No. PHMSA–06–25885 (HM–232F)]
Seventh Street, SW., Nassif Building,
issues, including cost, timing and RIN 2137–AE22 PL–402, Washington, DC 20590–0001.
equitable compensation considerations, • Hand Delivery: PL–402 on the plaza
for each of the other alternative Hazardous Material: Revision of level of the Nassif Building, 400
proposals as well. Requirements for Security Plans Seventh Street, SW., Washington, DC
between 9 a.m. and 5 p.m., Monday
Federal Rules That May Duplicate, AGENCY: Pipeline and Hazardous through Friday, except Federal holidays.
Overlap, or Conflict With the Proposed Materials Safety Administration, DOT. Instructions: All submissions must
Rule ACTION: Advance notice of proposed include the agency name and docket
44. None. rulemaking (ANPRM) and number or Regulation Identification
announcement of public meeting. Number (RIN) for this notice. Internet
Ordering Clauses
users may access comments received by
45. Pursuant to sections 1, 2, 4(i), 5(c), SUMMARY: PHMSA is considering DOT at http://dms.dot.gov. Note that
7, 10, 201, 202, 208, 214, 301, 302, 303, revisions to the list of hazardous comments received may be posted
307, 308, 309, 310, 311, 314, 316, 319, materials that require development and without change to http://dms.dot.gov
324, 332, 333, 336 and 337 of the implementation of a security plan to including any personal information
Communications Act of 1934, as address security risks during provided.
amended, 47 U.S.C. 151, 152, 154(i), transportation in commerce. This effort While all comments should be sent to
155(c), 157, 160, 201, 202, 208, 214, 301, is being coordinated with other DOT’s Docket Management System
302, 303, 307, 308, 309, 310, 311, 314, Department of Transportation modal (DMS), comments or those portions of
316, 319, 324, 332, 333, 336 and 337, administrations (Federal Aviation comments PHMSA determines to
this Notice of Proposed Rulemaking is Administration, Federal Motor Carrier include trade secrets, confidential
hereby adopted. Safety Administration, and Federal commercial information, or sensitive
46. Pursuant to applicable procedures Railroad Administration) and the security information (SSI) will not be
set forth in §§ 1.415 and 1.419 of the Transportation Security Administration placed in the public docket and will be
Commission’s rules, 47 CFR 1.415, and of the Department of Homeland handled separately. If you believe your
1.419, interested parties may file Security. The revisions would address comments contain trade secrets,
comments on this Notice of Proposed outstanding petitions requesting that confidential commercial information, or
Rulemaking on or before 30 days after certain materials be excepted from the SSI, those comments or the relevant
publication in the Federal Register, and security plan requirements. PHMSA portions of those comments should be
will hold a public meeting on November
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reply comments on or before 45 days appropriately marked so that DOT may


after publication in the Federal 30, 2006 to obtain stakeholder make a determination. PHMSA
Register. comments on security plan procedures in 49 CFR part 105 establish
47. The Commission’s Consumer and requirements. This ANPRM and the a mechanism by which commenters
Governmental Affairs Bureau, Reference public meeting provide an opportunity may request confidentiality.
Information Center, shall send a copy of for the public to comment on this issue In accordance with 49 CFR 105.30,
this Notice of Proposed Rulemaking, and make recommendations on the you may ask PHMSA to keep

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Federal Register / Vol. 71, No. 183 / Thursday, September 21, 2006 / Proposed Rules 55157

information confidential using the Department of Transportation, 400 unauthorized access, the plan must
following procedures: (1) Mark Seventh Street, SW., Washington, DC include measures to address the risk of
‘‘confidential’’ on each page of the 20590–0001. unauthorized persons gaining access to
original document you would like to SUPPLEMENTARY INFORMATION: materials or transport conveyances
keep confidential; (2) send DMS both being prepared for transportation. For
the original document and a second I. Background en route security, the plan must include
copy of the original document with the A. Current DOT Security Requirements measures to address security risks
confidential information redacted; and during transportation, including the
On March 25, 2003, the Research and security of shipments stored temporarily
(3) explain why the information is
Special Programs Administration en route to their destinations.
confidential (as a trade secret,
(RSPA), the predecessor agency to the As indicated above, the HMR set forth
confidential commercial information, or
Pipeline and Hazardous Materials Safety general requirements for a security
SSI). In your explanation, you should
Administration (PHMSA) published a plan’s components rather than a
provide enough information to enable
final rule (Docket HM–232; 57 FR prescriptive list of specific items that
PHMSA to determine whether the
14510) amending the Hazardous must be included. The HMR set a
information provided is protected by
Materials Regulations (HMR; 49 CFR performance standard providing offerors
law and must be handled separately.
parts 171–180) to establish requirements and carriers with the flexibility
In addition, for comments or portions
to enhance the security of hazardous necessary to develop security plans
of comments that you believe contain
materials transported in commerce. The addressing their individual
SSI as defined in 49 CFR 15.7, you
final rule required shippers and carriers circumstances and operational
should comply with Federal regulations
of certain hazardous materials to environments. Accordingly, each
governing the handling of SSI. See 49
develop and implement security plans. security plan will differ because it will
CFR 1520.9 and 49 CFR 15.9,
The security plan requirements in be based on an offeror’s or a carrier’s
Restrictions on the disclosure of
subpart I of part 172 of the HMR apply individualized assessment of the
sensitive security information. Those
to persons who offer for transportation security risks associated with the
regulations restrict the disclosure of SSI
or transport: specific hazardous materials it ships or
to those with a need to know and set
(1) A highway-route controlled transports and its unique circumstances
forth specific requirements for marking,
quantity of a Class 7 (radioactive) and operational environment.
packaging, and disposing of documents
material; In developing the HM–232 final rule,
containing SSI. Note when mailing in or (2) More than 25 kg (55 lbs.) of a
using a special delivery service to send we assessed the security risks associated
Division 1.1, 1.2, or 1.3 (explosive) with the transportation of different
comments containing SSI, comments material;
should be wrapped in a manner to classes and quantities of hazardous
(3) More than 1 L (1.06 qt.) per materials. We concluded that the most
prevent the information from being package of a material poisonous by significant security risks involve the
read. PHMSA may perform concurrent inhalation in Hazard Zone A; transportation of certain radioactive
reviews on requests for designations as (4) A shipment in a bulk packaging materials; certain explosives; materials
SSI. with a capacity equal to or greater than that are poisonous by inhalation, certain
After reviewing your request for 13,248 L (3,500 gallons) for liquids or infectious and toxic substances; and
confidentiality and the information gases or greater than 13.24 cubic meters bulk shipments of materials such as
provided, PHMSA will determine (468 cubic feet) for solids; flammable and compressed gases,
whether the information should be (5) A shipment in other than a bulk flammable liquids, flammable solids,
treated as confidential under applicable packaging of 2,268 kg (5,000 lbs.) gross and corrosives. Based on this security
laws and regulations. PHMSA will weight or more of one class of risk assessment, the HM–232 final rule
notify you of the decision to grant or hazardous materials for which currently in effect requires persons who
deny confidential treatment. If PHMSA placarding is required; offer for transportation or transport a
denies your request, you will be (6) A select agent or toxin regulated hazardous material in an amount that
provided an opportunity to request by the Centers for Disease Control and requires placarding or select agents to
reconsideration before the information Prevention under 42 CFR part 73 and, develop and implement security plans.
is publicly disclosed. PHMSA will by April 1, 2007, a select agent or toxin Using the placarding thresholds to
reconsider its decision to deny regulated by the U.S. Department of trigger enhanced security requirements
confidentiality based on your response. Agriculture under 9 CFR part 121; or covers the materials that present the
To further guard against disclosure of (7) A shipment that requires most significant security threats in
SSI, PHMSA will review all placarding under subpart F of part 172 transportation and provides a relatively
submissions, whether or not they are of the HMR. straightforward way to distinguish
identified as confidential, prior to their The security plan must include an materials that may present a significant
posting on the public docket. PHMSA assessment of possible transportation security threat from materials that do
will notify you if we determine that security risks and appropriate measures not. It also provides regulatory
information in your submission should to address the assessed risks. Specific consistency, thereby minimizing
not be disclosed to the public. If you measures implemented as part of the confusion and facilitating compliance
have any questions concerning the plan may vary with the level of threat by the regulated community. We note as
procedures for determining at a particular time. At a minimum, the well that the current security plan
confidentiality or security sensitivity, security plan must address personnel requirements provide shippers and
you may call one of the individuals security, unauthorized access, and en
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carriers with the flexibility to develop


listed below. route security. For personnel security, and implement a security plan that is
FOR FURTHER INFORMATION CONTACT: the plan must include measures to appropriate to the individual
Susan Gorsky or Ben Supko, Office of confirm information provided by job circumstances, the types and quantities
Hazardous Materials Standards, (202) applicants for positions involving access of hazardous materials shipped or
366–8553, Pipeline and Hazardous to and handling of the hazardous transported and the modes of
Materials Safety Administration, U.S. materials covered by the plan. For transportation utilized. A shipper or

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55158 Federal Register / Vol. 71, No. 183 / Thursday, September 21, 2006 / Proposed Rules

carrier must assess the security risks for (4) Division 1.5 explosives; for quantities of hazardous materials for
the types and quantities of hazardous (5) Bulk shipments of Division 2.1 which placarding under the provisions
materials to be transported and flammable gases; of subpart F of part 172 is required.
implement appropriate measures to (6) Division 2.3 toxic gases (excluding Similarly, the American Trucking
address those risks. The risk assessment aerosols); Associations (ATA) petitioned PHMSA
could well conclude that, for materials (7) Bulk shipments of Class 3 (P–1466) to create a new subset of
such as paint or flavoring extracts, the flammable liquids in PG I or II; hazardous materials that are ‘‘security
transportation security risk is not (8) Class 3 and Division 4.1 sensitive hazardous materials.’’ The
significant and extensive security desensitized explosives; ATA supports the materials and
measures are not warranted. (9) Bulk shipments of Division 4.2 PG quantities that are subject to the FMCSA
The Federal Motor Carrier Safety I materials; Hazardous Materials Safety Permit
Administration (FMCSA), in 49 CFR (10) Bulk shipments of Division 4.3 requirements as the starting point for
part 385, prohibits a motor carrier from PG I materials; determining security sensitive
transporting certain hazardous materials (11) Bulk shipments of Division 5.1 hazardous materials. In addition to
unless the motor carrier holds a safety PG I oxidizing liquids; those materials, ATA suggests that
(12) Bulk shipments of Division 5.1 PHMSA add the following materials
permit. A safety permit is required for
perchlorates, ammonium nitrate and from the UN high consequence
the following hazardous materials in the
ammonium nitrate fertilizers; dangerous goods list: (1) Bulk shipments
quantities indicated:
(13) Division 6.1 PG I toxic materials; of Division 2.1; (2) bulk shipments of
(1) A highway-route controlled
(14) Division 6.2 infectious substances Class 3, PG I and II; (3) Class 3 and
quantity of a Class 7 (radioactive)
of Category A (UN2814 and 2900); Division 4.1 desensitized explosives
material; (15) Class 7 radioactive materials in
(2) More than 25 kg (55 lbs.) of a (quantity to be determined); (4) bulk
quantities greater than 3000 A1 (special shipments of Division 4.2, PG I; (5) bulk
Division 1.2, 1.2, or 1.3 (explosive)
form) or 3000 A2, as applicable, in Type shipments of Division 4.3, PG I; (6) bulk
material;
(3) More than 1 L (1.08 qt.) per B(U) or Type B(M) or Type (C) packages; shipments of Division 5.1, PG I; (7) bulk
package of a material poisonous by and shipments Division 5.1 perchlorates,
(16) Bulk shipments of Class 8 PG I ammonium nitrate and ammonium
inhalation in Hazard Zone A;
(4) A bulk packaging (capacity greater materials. nitrate fertilizers; (8) Division 6.2
than 450 L (119 gallons)) of a material For purposes of the security provisions, infectious substances of Category A
poisonous by inhalation in Hazard Zone the UN defines ‘‘in bulk’’ to mean (quantity to be determined); (9) any
B; quantities greater than 3,000 kg (6,614 quantity of select agents; and (10) bulk
(5) A packaging with a capacity equal lbs.) or 3,000 liters (660 gallons) in shipments of Class 8, PG I. The ATA
to or greater than 13,248 L (3,500 portable tanks or bulk containers. uses quantities greater than 3,500
gallons) of a material poisonous by II. Purpose of This ANPRM gallons or 5,000 pounds to define
inhalation in Hazard Zone C or D; or ‘‘bulk’’ for purposes of security
(6) A shipment of compressed or PHMSA has received two petitions for planning.
refrigerated liquefied methane or rulemaking requesting a review and We agree with COSTHA and ATA that
liquefied natural gas, or other liquefied reevaluation of the current HMR the list of materials for which a security
gas with a methane content of at least security plan requirements. The Council plan is required should be re-assessed.
85 percent, in a bulk packaging having on Safe Transportation of Hazardous The philosophy underlying PHMSA’s
a capacity equal to or greater than Articles (COSTHA) petitioned PHMSA earlier approach to security plans was
13,248 L (3,500 gallons). (P–1447) to reevaluate the security that the security plans represented a
requirements in subpart I of part 172 of baseline requirement. We considered
B. International Transportation Security the HMR to ‘‘enhance international the company preparing the security plan
Standards harmonization and to better utilize to be in the best position to assess
The United Nations Model available resources in enhancing security risks based on its operational
Regulations on the Transport of hazardous materials transportation circumstances. If security risks were
Dangerous Goods (UN security.’’ COSTHA notes that the list of determined to be insignificant, this
Recommendations) identify high hazardous materials in the HMR that are would be reflected in a simple security
consequence dangerous goods for which subject to the security plan plan with minimal content. Increased
enhanced security measures are requirements differs from the list of high coverage would be required when
recommended. The recommended consequence dangerous goods in the UN security risks are more substantial. The
security measures include security Recommendations. COSTHA cites security plan requirements went into
plans and are similar to the several examples of hazardous materials effect September 25, 2003; both the
requirements in subpart I of part 172 of (e.g., automobile batteries, inks, paint, industry and the government have had
the HMR. The UN Recommendations flavoring extracts) that, based on hazard three years of experience evaluating
define high consequence dangerous class and quantity, require placarding security risks associated with specific
goods as materials with the ‘‘potential under the HMR, and, therefore, are hazardous materials and transportation
for mis-use in a terrorist incident and subject to the security plan environments and identifying
which may, as a result, produce serious requirements. COSTHA suggests it is appropriate measures to address those
consequences such as mass casualties or highly unlikely a terrorist would use risks. Accordingly, we are initiating this
mass destruction.’’ The UN these materials to cause loss of lives, rulemaking, in coordination with other
destruction of property, or damage to
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Recommendations list the following DOT modal administrations (Federal


materials as high consequence the environment. The petition requests Aviation Administration (FAA), Federal
dangerous goods: that PHMSA adopt the same criteria as Railroad Administration (FRA), and
(1) Division 1.1 explosives; the UN Recommendations for materials FMCSA) and the Transportation
(2) Division 1.2 explosives; that are subject to the security plan Security Administration (TSA) of the
(3) Division 1.3 compatibility group C requirements, or, as an alternative, Department of Homeland Security
explosives; eliminate the security plan requirement (DHS), to consider modifications to the

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Federal Register / Vol. 71, No. 183 / Thursday, September 21, 2006 / Proposed Rules 55159

list of hazardous materials for which need for preparation of a security plan the effect that revisions to the list of
security plans are required. We ask for certain hazardous materials to assist materials for which security plans are
commenters to address the following in security plan preparation? required may have on Indian
questions: (14) Should the Government maintain communities.
(1) What is the best basic approach to an evolving list of hazardous materials Regulatory Flexibility Act. Under the
security plans? Is the current approach for which security plans are required Regulatory Flexibility Act of 1980 (5
correct or should security plans be based on changing threats and U.S.C. 601 et seq.), we must consider
required only for hazardous materials in scenarios?
whether a proposed rule would have a
threshold quantities that are known to There are a number of additional
significant economic impact on a
pose significant security risks? issues that PHMSA will consider in
assessing the list of hazardous materials substantial number of small entities.
(2) Are there ways to lessen the
for which a security plan is required. ‘‘Small entities’’ include small
burdens of security plan requirements
These include the analyses required businesses, not-for-profit organizations
on companies with minimal security
under the following statutes and that are independently owned and
risks?
(3) Should baseline security executive orders in the event we operated and are not dominant in their
requirements or guidelines be determine that rulemaking is fields, and governmental jurisdictions
established when security plans are not appropriate: with populations under 50,000. If you
required? Executive Order 12866: Regulatory believe that revisions to the list of
(4) What factors should be considered Planning and Review. E.O. 12866 materials for which security plans are
in determining whether security risks of requires agencies to regulate in the required could have a significant
a specific hazardous material or class of ‘‘most cost-effective manner,’’ to make a economic impact on small entities,
hazardous materials are significant ‘‘reasoned determination that the please provide information on such
enough to require preparation of a benefits of the intended regulation impacts.
security plan? justify its costs,’’ and to develop III. Announcement of Public Meeting
(5) What role should Packing Groups regulations that ‘‘impose the least
play in determining the need for burden on society.’’ We therefore PHMSA is conducting a public
security plans? request comments, including specific meeting to discuss the security plan
(6) How should the quantities of data if possible, concerning the costs requirements and receive comments and
hazardous materials transported be and benefits that may be associated with recommendations concerning the list of
considered when determining whether a revisions to the list of hazardous hazardous materials that trigger the
security plan is required? materials for which security plans are requirement for a security plan. Other
(7) Does easy availability of a required. A rule that is considered DOT modal administrations and DHS
hazardous material in specific quantities significant under E.O. 12866 must be are participating in the meeting. See
outside of transportation play a role in reviewed and cleared by the Office of ADDRESSES and DATES for meeting
determining whether a security plan Management and Budget before it can be details.
should be required? issued.
Executive Order 13132: Federalism. All interested persons are encouraged
(8) Should uniform security plan
E.O. 13132 requires agencies to assure to participate. Prior notification to
requirements apply across all modes of
meaningful and timely input by state PHMSA is not required. Due to the
transportation or should the triggering
and local officials in the development of heightened security measures,
criteria (hazardous class and quantity)
regulatory policies that may have a participants are encouraged to arrive
be mode-specific?
(9) What factors should be considered substantial, direct effect on the states, early to allow time for security checks
when determining whether specific on the relationship between the national necessary to gain access to the building.
hazardous materials, classes or government and the states, or on the IV. Regulatory Notices—Executive
quantities thereof, should be excepted distribution of power and Order 12866 and DOT Regulatory
from security plan requirements? responsibilities among the various Policies and Procedures
(10) How should the determination of levels of government. We invite state
transportation security risk account for and local governments with an interest This rulemaking is not considered a
specific hazardous materials or classes in this rulemaking to comment on the significant regulatory action under
of materials that by themselves do not effect that revisions to the list of section 3(f) of Executive Order 12866
pose a security risk, but that could materials for which security plans are and, therefore, was not reviewed by the
present a security risk in combination required may have on state or local Office of Management and Budget. This
with other materials? safety or security programs. rulemaking is not considered significant
(11) What compliance or enforcement Executive Order 13175: Consultation under the Regulatory policies and
issues should be considered as we re- and Coordination with Indian Tribal procedures of the Department of
assess current security plan Governments. E.O. 13175 requires Transportation (44 FR 11034).
requirements? agencies to assure meaningful and
Issued in Washington, DC, on September
(12) Should company size or timely input from Indian tribal
18, 2006 under authority delegated in 49 CFR
geographic location (e.g., specific region government representatives in the
part 106.
of the country or urban or rural) play a development of rules that ‘‘significantly
or uniquely affect’’ Indian communities Robert A. McGuire,
role in determining whether a security
plan is required? and that impose ‘‘substantial and direct Associate Administrator for Hazardous
(13) Does the Government need to compliance costs’’ on such Materials Safety.
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provide more information on the communities. We invite Indian tribal [FR Doc. 06–7930 Filed 9–20–06; 8:45 am]
specific security concerns that cause the governments to provide comments as to BILLING CODE 4910–60–P

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