[Federal Register Volume 75, Number 143 (Tuesday, July 27, 2010)]
[Proposed Rules]
[Pages 43906-43914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18368]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 171 and 177
[Docket No. PHMSA-2005-22987 (HM-238)]
RIN 2137-AE06
Hazardous Materials: Requirements for the Storage of Explosives
During Transportation
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: PHMSA, in coordination with the Federal Motor Carrier Safety
Administration (FMCSA), is proposing to enhance existing attendance
requirements for explosives stored during transportation by designating
the National Fire Protection Association (NFPA) standard 498 as the
Federally approved standard for the construction and maintenance of
safe havens used for unattended storage of Division 1.1, 1.2, and 1.3
explosives.
DATES: Comments must be received by September 27, 2010.
ADDRESSES: You may submit comments identified by the docket number
PHMSA-2005-22987 by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: 1-202-493-2251.
Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
Hand Delivery: To Docket Operations; Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
Instructions: All submissions must include the agency name and
docket number for this rule. Note that all comments received will be
posted without change, including any personal information provided.
Please see the discussion of the Privacy Act below.
Docket: For access to the docket to read background documents and
comments received, go to http://www.regulations.gov at any time or to
Room W12-140, Ground Level, Washington, DC between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Ben Supko, Office of Hazardous
Materials Standards, (202) 366-8553, Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Current Federal Requirements Applicable to Explosives Stored During
Transportation
A. Hazardous Materials Regulations (HMR), 49 CFR Parts 171-180
Transportation includes the storage of materials ``incident to
the[ir] movement.'' (49 U.S.C. 5102(13)). The HMR require hazardous
materials stored incidental to movement to meet all applicable
requirements for packaging, hazard communication (including shipping
papers and emergency response information), and handling that apply
when shipments are actually moving in transportation. The HMR include
specific carrier requirements for transportation of hazardous materials
by rail, air, vessel, and highway, including requirements for loading
and unloading, blocking and bracing, stowage, segregation, and
compatibility (49 CFR parts 174, 175, 176, and 177, respectively).
Explosive (Class 1) materials are among the most stringently
regulated hazardous materials under the HMR. 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 (49 CFR 173.50(a)). Class 1 materials are
divided into six divisions depending on the degree and nature of the
explosive hazard, as shown in the following table (49 CFR 173.50(b)).
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Division Hazard Description of hazard Examples
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1.1............................. Mass explosion hazard....... Instantaneous explosion of grenades, mines,
virtually the entire and
package or shipment. nitroglycerin.
1.2............................. Projection hazard without a Fragments projected outward rockets and
mass explosion hazard. at some distance. warheads.
1.3............................. Fire hazard and either a Fire and possible projection projectiles,
minor projection hazard or of fragments outward at signal smoke, and
minor blast hazard or both some distance. tracers for
but not a mass explosion ammunition.
hazard.
1.4............................. Minor explosion hazard...... Explosion largely confined ammunition,
to the package and no airbags, and
projection of fragments of model rocket
any appreciable size or motors.
range is expected.
1.5............................. Very insensitive explosive.. Mass explosion hazard, but blasting agents
low probability of and ammonia-
initiation or detonation nitrate fuel oil
while in transportation. mixture.
1.6............................. Extremely insensitive Negligible probability of insensitive
article. accidental initiation or article and
propagation. military.
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[[Page 43907]]
The HMR prohibit transportation of an explosive unless it has been
examined, classed, and approved by PHMSA's Associate Administrator for
Hazardous Materials Safety (49 CFR 173.51). Separate provisions apply
to the transportation of new explosives for examination or
developmental testing, explosives approval by a foreign government,
small arms cartridges, and fireworks manufactured in accordance with
APA Standard 87-1 (49 CFR 173.56). Each approval granted by the
Associate Administrator contains packaging and other transportation
provisions that must be followed by a person who offers or transports
the explosive material. In addition to the specific requirements in the
approval, the HMR require explosives to be marked and labeled and/or
placarded to indicate the explosive hazard. Explosives shipments
generally must be accompanied by shipping papers and emergency response
information. The same requirements apply to the transportation of
hazardous materials whether the materials are incidentally stored or
actually moving. In addition, any person who offers for transportation
in commerce or transports in commerce a shipment of explosives for
which placarding is required under the HMR must develop and implement
security plans (49 CFR 172.800(b)). A security plan must include an
assessment of possible transportation security risks for the covered
shipments and appropriate measures to address the identified risks. At
a minimum, a security plan must include measures to prevent
unauthorized access to shipments and to address personnel and en route
security (49 CFR 172.802(a)). The en route security element of the plan
must include measures to address the security risks of the shipment
while it is moving from its origin to its destination, including
shipments stored incidental to movement (49 CFR 172.802(a)(3)). Thus, a
facility at which a shipment subject to the security plan requirements
is stored during transportation must itself be covered by the security
plan. Security plan requirements are performance-based to provide
shippers and carriers with the flexibility necessary to develop a plan
that addresses a person's individual circumstances and operational
environment.
B. Federal Motor Carrier Safety Regulations (FMCSRs), 49 CFR Parts 350-
397
Motor carriers that transport hazardous materials in commerce must
also comply with the FMCSRs addressing driver qualifications; vehicle
parts and accessories; driving requirements and hours of service;
vehicle inspection, repair and maintenance; driving and parking rules
for the transportation of hazardous materials; hazardous materials
safety permits; and written route plans. The FMCSRs include
requirements for storage of explosives incidental to movement. In
accordance with the FMCSRs, a motor vehicle that contains Division 1.1,
1.2, or 1.3 explosives must be attended at all times, including during
incidental storage, unless the motor vehicle is located on the motor
carrier's property, the shipper or consignee's property, or at a safe
haven (49 CFR 397.5).
Under the FMCSRs, a safe haven is an area specifically approved in
writing by Federal, State, or local government authorities for the
parking of unattended vehicles containing Division 1.1, 1.2, and 1.3
explosive materials (49 CFR 397.5(d)(3)). The decision as to what
constitutes a safe haven is generally made by the local authority
having jurisdiction over the area. The FMCSRs do not include
requirements for safety or security measures for safe havens.
In addition, the FMCSRs require any person who transports more than
25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3 material or an amount
of a Division 1.5 (explosive) material that requires placarding under
Subpart F of Part 172 of the HMR to hold a valid safety permit (49 CFR
385.403(b)). Persons holding a safety permit and transporting Division
1.1, 1.2, and 1.3 materials must prepare a written route plan that
meets the requirements of Sec. 397.67(d), which avoids heavily
populated areas, places where crowds are assembled, tunnels, narrow
streets, or alleys.
Finally, a motor vehicle containing a Division 1.1, 1.2, or 1.3
explosive may not be parked on or within five feet of the traveled
portion of a public highway or street; on private property without the
consent of the person in charge of the property; or within 300 feet of
a bridge, tunnel, dwelling, or place where people work or congregate
unless for brief periods when parking in such locations is unavoidable
(49 CFR 397.7(a)).
II. Previous Rulemaking Activity in This Matter
A. July 16, 2002 ANPRM (HM-232A)
On July 16, 2002, FMCSA and PHMSA's predecessor agency (the
Research and Special Programs Administration) published an advance
notice of proposed rulemaking under Docket HM-232A (67 FR 46622)
entitled ``Security Requirements for Motor Carriers Transporting
Hazardous Materials.'' In the ANPRM, we examined the need for enhanced
security requirements for motor carrier transportation of hazardous
materials. We requested comments on the issue of storage of explosives
at safe havens, as well as a variety of security measures generally
applicable to a broader range of hazardous materials.
B. November 16, 2005 ANPRM (HM-238)
Some of the comments submitted in response to the July 16, 2002
ANPRM contained recommendations that the current requirements
applicable to the storage of explosives during transportation should be
reevaluated to ensure that they adequately account for potential safety
and security risks. As a result, PHMSA and FMCSA initiated this
rulemaking to evaluate current standards for the storage of explosives
in transportation. We published a new ANPRM on November 16, 2005 (70 FR
69493), in which we summarized government and industry standards for
explosives storage (which vary greatly by mode of transportation, type
of explosives, and whether the explosive is in transportation) and
requested comments on a list of concerns regarding the risks posed by
the storage of explosives while in transportation. The November 16,
2005 ANPRM is accessible through the Federal eRulemaking Portal (http://www.regulations.gov), at docket number PHMSA-2005-22987).
In the ANPRM, PHMSA solicited comments concerning measures to
reduce the risks posed by the storage of explosives while they are in
transportation and whether regulatory action is warranted. We invited
commenters to address issues related to security and storage of other
types of high-hazard materials. In addition, the ANPRM provided
detailed information addressing the following regulations and industry
standards:
United States Coast Guard Requirements applicable to
explosives storage (33 CFR Parts 101-126)
Bureau of Alcohol, Tobacco, Firearms, and Explosives
Regulations for explosives in commerce (27 CFR Part 555)
National Fire Protection Association (NFPA) 498,
``Standard for Safe Havens and Interchange Lots for Vehicles
Transporting Explosives'' (NFPA 498)
Institute of Makers of Explosives Safety Library
Publication No. 27, ``Security in Manufacturing, Transportation,
Storage and Use of Commercial Explosives''
[[Page 43908]]
Surface Deployment and Distribution Command, ``SDDC
Freight Traffic Rules Publication NO. 1C (MFTRP NO. 1C)''
C. July 3, 2008 ANPRM and Public Meeting
On July 3, 2008 PHMSA published a further ANPRM under this docket
to re-open the comment period, and announce a public meeting (73 FR
38164) to provide an additional opportunity for interested persons to
submit more focused comments on safety issues associated with the
storage of explosives transported by highway and standards for
establishing, approving, and maintaining safe havens for the temporary
storage of explosives during motor vehicle transportation. As discussed
above, there are currently no minimum or uniform criteria for Federal,
State, or local governments to rely on for the approval of safe havens.
III. Comments on the July 3, 2008 ANPRM
A. Public Meeting
Representatives of the following organizations and government
agencies attended the public meeting held on August 7, 2008 (a
transcript of the public meeting is accessible through the Federal
eRulemaking Portal (http://www.regulations.gov):
National Volunteer Fire Council,
Commercial Vehicle Safety Alliance (CVSA),
BNA Daily Environmental Report,
Baker Hughes Corporation,
Sporting Arms and Ammunition Manufacturers Association,
Institute of Makers of Explosives (IME),
Orica, USA,
Science Applications International Corporation,
Automotive Occupant Restraint Council (Autoliv Inc.),
Delphi Corporation,
National Fire Protection Association,
Bureau of Alcohol, Tobacco, Firearms & Explosives, Department of
Justice (ATF),
Explosives Safety Board, Department of Defense (DDESB),
Office of Packaging and Transportation Safety, Department of Energy,
Surface Deployment and Distribution Command.
Under FMCSA regulations a motor vehicle which contains a Division
1.1, 1.2, or 1.3 material must be attended at all times by the driver
or a qualified representative of the motor carrier that operates it or
be parked in a safe haven. A safe haven is an area specifically
approved in writing by Federal, State, or local government authorities
for the parking of unattended vehicles containing Division 1.1, 1.2, or
1.3 explosive materials. Except for the fact that States select and
approve locations where safe havens can be placed, there are no
specific safety standards provided in the FMCSRs for safe havens.
Participants at the public meeting generally noted that safe havens are
not generally available for use by commercial carriers of explosives
and that the State/local government approval process can be difficult,
and supported adoption of an industry consensus standard, such as NFPA
498.
One solution discussed in the public meeting is the incorporation
by reference of an existing, widely used, and accepted standard--such
as NFPA 498. According to public meeting participants, NFPA 498 is
straightforward, designed for highway transportation, and intended to
enhance FMCSA standards. The key focus of NFPA 498 is to provide safety
guidelines, such as vehicle inspection, five feet space between
trailers, notification of local emergency response of the type and
quantity of materials authorized, and no cutting or welding repairs,
firearms, or smoking allowed. In addition, NFPA 498 provides some very
general security requirements such as a requirement for a security
guard or surveillance equipment to protect a safe haven from
trespassers.
During the meeting, CVSA noted that its 1990 report entitled
``Recommended National Criteria for Establishment and Operation of Safe
Havens'' (a copy is in the docket) was the most recent effort to
catalogue safe havens in the United States. In a brief summary of that
report, CVSA stated that the approval process for a safe haven varied
greatly between States and even towns of a single State. Further, CVSA
indicated that the system in place at the time of the report was
susceptible to arbitrary and opaque decisions concerning the
designation of safe havens, with little or no provision for public
participation or comment.
CVSA suggested that relying on State or local governments to
designate and operate safe havens has not been a successful strategy.
Instead, private entities use their own facilities to safely store
explosives during transportation, but do not make those facilities
generally available because of liability concerns. CVSA stated that DOD
operates safe havens for military shipments, but that these facilities
are not available to commercial carriers.
IME pointed out that the sensitivity of DOD munitions dictates
stringent storage standards, but the same standards would likely be
excessive for commercial products. IME also suggested that because the
explosives industry has implemented a variety of measures to address
storage and attendance issues, such as dual drivers, a nationwide
network of safe havens is not necessary. Rather, there appears to be a
need for safe havens near port locations or transportation end points,
such as Seattle, Washington; Savannah, Georgia; Louisville, Kentucky;
anywhere in West Virginia; and Morgan, Louisiana.
ATF emphasized that the location of a safe haven is critical to
ensure both safety and security, noting that a facility should be
removed to the extent possible from populated areas and suggesting that
minimum distances should be considered. In response, IME recommended a
risk analysis approach for locating safe havens, using tools such as
the Institute of Makers of Explosives Safety Analysis for Risk
(IMESAFR) software developed by IME. According to IME, IMESAFR is a
probabilistic risk assessment tool used to calculate risk to personnel
from explosives facilities. As detailed by IME, the system provides a
sophisticated methodology for determining appropriate safety measures,
because it assesses the unique characteristics of a particular site.
DDESB suggested the use of a risk assessment approach that considers
ATF quantity distances. IME discussed the differences between
transportation storage and permanent storage and suggested that while
the ATF requirements for the permanent storage of explosives have
proven to be effective in ensuring the protection of the general
public, those requirements may not be necessary or practical for
temporary storage facilities.
B. Written Comments
We received written comments in response to the July 3, 2008 ANPRM
from the following five entities (available for review through the
Federal eRulemaking Portal (http://www.regulations.gov):
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Commenter Document No.
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R & R Trucking, Inc. (R & R Trucking).. PHMSA-2005-22987-0027
[[Page 43909]]
Surface Deployment and Distribution PHMSA-2005-22987-0028
Command, (SDDC).
Sporting Arms and Ammunition PHMSA-2005-22987-0030
Manufacturers Institute, Inc (SAAMI).
Boyle Transportation................... PHMSA-2005-22987-0031
Institute of Makers of Explosives (IME) PHMSA-2005-22987-0032
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Generally, the comments indicate that a lack of consistent
regulations for the storage of explosives creates a safety concern.
However, the comments do not support a prescriptive solution that could
limit transportation options or create an undue burden on a particular
mode of transportation. Commenters suggest that an effective approach
would be one that promotes flexibility and provides several storage
options for explosives while they are in transportation.
As indicated above, the intention of the July 3, 2008 ANPRM was to
gather information from commenters to help us make a determination
regarding further regulatory action. The ANPRM posed several questions
and solicited commenter response. Below we paraphrase the 18 questions
asked in the ANPRM, provide a summary of the comments applicable to the
safe transportation of explosives, and provide our response.
(1) Are safe havens currently available? How many? Where are they
located?
Boyle Transportation indicates that there are no commercial safe
havens that are available to any motor carrier or transporter of
explosives. Boyle Transportation notes that the Department of Defense
(DOD) provides secure holding areas at military facilities (some sites
require attendance by drivers while parked) but only for motor carriers
that are transporting DOD explosives shipments, and that a few motor
carriers and explosives manufacturers have facilities for temporary
parking of trailers loaded with explosives.
IME states that it has only anecdotal information on the location
and operational state of third-party safe havens. IME indicates that
given the absence of standards for these sites, this information is
likely not reliable, with the exception of sites meeting DOD standards.
R&R Trucking states that public safe havens are not currently
available. The safe havens utilized by R&R Trucking are private
facilities owned and operated by R&R Trucking.
Sporting Arms and Ammunition Manufacturers Institute, Inc. (SAAMI)
indicates that safe havens generally do not exist and references the
report CVSA prepared as supporting documentation.
(2) Would a network of safe havens provide a safety benefit?
Boyle Transportation indicates that a network of safe havens would
provide a safety benefit. IME suggests safe havens provide a benefit if
they are operated in accordance with risk-based performance standards
and located at cargo delivery chokepoints, such as ports. R&R Trucking
states that safe havens would provide a safety benefit for emergency
situations and hours-of-service relief.
SAAMI agrees that a network of safe havens would provide a safety
benefit, but notes that there are other options that would obviate the
need for such network, including short distance hauling or the use of
dual drivers. SAAMI states that safe havens are intended as one
alternative to satisfy the applicable attendance requirements for
Division 1.1, 1.2, and 1.3 explosives, but suggests that establishment
of an extensive safe havens network for routine use by commercial motor
carriers likely would not provide a sufficient safety benefit to offset
associated costs.
(3) What is the value of a rest stop for the vehicle and the driver?
Boyle Transportation states that safe havens are necessary since
most shippers and consignees do not operate 24 hours a day, seven days
a week and suggests that without a safe haven either en route or at the
destination for arrival during non-working hours, even team drivers
would eventually run out of available hours of service when complying
with 49 CFR 397.5.
IME and R&R Trucking note rest stops enable a driver to comply with
hours-of-service requirements and to address fuel, food, rest, and
other personal needs. According to IME, the main benefit of a safe
haven, given the safety and security preference for team drivers of
Division 1.1, 1.2, and 1.3 materials to meet attendance requirements
for long-haul (greater than hours-of-service) trips, is to serve as a
buffer between shipping time, transit time and delivery time. IME
suggests that a safe haven can be used to stage vehicles prior to
delivery, thereby avoiding situations where vehicles must remain on
highways or parked at various locations with unknown risk and response
capabilities. SAAMI suggests that existing attendance requirements
should be modified to allow short absences, e.g. for fueling, eating or
using a restroom.
(4) Would companies use safe havens or continue using driver teams?
Does one promote safety more than the other?
Boyle Transportation notes that safe havens are not a replacement
for team drivers since team drivers are required to provide constant
attendance and surveillance and suggests that the use of team drivers
promotes safety since it is impractical to expect that a single driver
would always be able to reach a safe haven without having to stop en
route and temporarily leave the motor vehicle unattended. IME agrees
that companies will continue to prefer team drivers to meet attendance
requirements for Division 1.1, 1.2, and 1.3 materials for trips greater
than one driver's hours-of-service period because teams provide faster
delivery, better use of equipment, less fuel consumption and enhanced
security while the vehicle is in motion or temporarily parked at a rest
stop. Additionally, driver teams are healthier and less likely to have
accidents than driving alone. IME suggests that there is a need for
incidental storage locations as a buffer between shipping time, transit
time, and delivery time.
R&R Trucking states that generally motor carriers use a single
driver for local deliveries without a required layover; for longer
deliveries, whether a single driver or a team driver is used. R&R
Trucking suggests that the value of a safe haven with single or team
drivers is based on its location and availability and further that
providing relief from current attendance requirements would promote
safety. SAAMI agrees that motor carriers will continue to utilize team
drivers and short-haul deliveries to comply with hours-of-service and
attendance requirements. In addition, SAAMI contends that there are
significant liability issues associated with the use of safe havens
open to all operators; SAAMI does not consider the concept viable.
[[Page 43910]]
(5) Would the adoption of standards such as NFPA 498 promote the
development of safe havens?
Boyle Transportation answers ``possibly.'' However, it indicates
that DOD accounts for a majority of explosives shipments and suggests
that PHMSA should work with DOD and the Transportation Security
Administration to establish consistent transport rules for explosives
and criteria for safe havens.
IME indicates that to enable motor carriers to meet the attendance
requirement of 49 CFR 397.5, it supports inclusion in the HMR of
performance standards based on those contained in Chapter 4 of NFPA 498
as a replacement for the current requirement for a location approved by
State, local, or Federal authorities. IME indicates that it supports
providing notice to States and localities that explosives will
temporarily be stored at a safe haven in their jurisdiction and
requiring a safe haven to conform with local zoning ordinances,
provided such requirements would not act as de facto bans on explosives
storage in a given jurisdiction. IME suggests that PHMSA-adopted HMR
standards that are backed by the agency's preemption authority in 49
U.S.C. 5125 would inject a degree of certainty into the process and
could encourage investment in such properties. R&R Trucking agrees that
adoption of a DOT standard could encourage some States to designate
safe havens. Similarly, SAAMI indicates that safe havens might expand
to a limited degree, e.g., near high volume areas of mining or ports,
if the requirements for authorization, operation and site selection
were standardized and suggests that performance standards could be
added to PHMSA regulations to aid those interested in establishing a
safe haven.
(6) Do facilities that are being used as safe havens meet the
requirements of NFPA 498?
Boyle Transportation, R&R Trucking, and SAAMI all state that some
safe havens may meet the NFPA 498 standards, while others conform with
DOD standards, or local standards or requirements. IME suggests that
DOD-approved safe havens exceed the standard provided in NFPA 498.
(7) Would you expect companies to convert existing facilities that meet
NFPA 498 into safe havens?
Boyle Transportation answered ``yes,'' if PHMSA issues regulations
that incorporate NFPA 498. IME and R&R Trucking suggest that the
decision to convert existing facilities to meet NFPA 498 requirements
would be driven by market considerations.
(8) How can PHMSA improve on the safety measures provided in NFPA 498?
Should a regulation for safe havens include aggregation limits, time
limits, etc.?
R&R Trucking states that the NFPA 498 standard is satisfactory, but
that a carrier or safe haven operator should be permitted to improve on
these standards as they see fit. SAAMI suggests that a safe haven
regulation should include both time and aggregation limits with some
flexibility for the facility to accept vehicles that would exceed the
aggregation limits if refusing entry would increase a safety risk.
IME opposes per vehicle aggregation limits, suggesting that such
limits would have the effect of putting more vehicles on the road,
adding to congestion, wasting fuel, and increasing the opportunity for
accident or mischief. According to IME, the ability to fully load a
truck means fewer trucks, fewer trips, fewer miles traveled, and less
exposure to accidents or incidents. Further, IME suggests that any site
aggregation and/or time limits should be flexible in terms of system-
wide impact--turning vehicles away because of the aggregation limits,
when they need a place to stop, or pushing vehicles out when time
limits expire when they cannot make a delivery will just put vehicles
on the road, adding more miles, more exposure, more pressure to remove
placards, or other undesirable outcomes. IME concludes that if time/
aggregation limits are established and exceeded, local emergency
response authorities should be notified.
(9) If we incorporate by reference NFPA 498 into the HMR, should we
expect a drop in the number of carriers similar to what occurred when
DOD implemented SDDS MFTRP No. 1C?
The commenters generally do not expect that the number of carriers
transporting explosives would drop if PHMSA adopted a safe haven
standard based on NFPA 498 because carriers primarily rely on dual
drivers or short hauls to meet attendance requirements.
IME indicates that the only way PHMSA would see a drop in carriers
would be if a carrier relied on a ``safe haven'' as the only means to
meet attendance requirements for the transportation of Division 1.1,
1.2, and 1.3 materials and the safe haven was eliminated because the
site did not meet the new requirement. IME suggests that the drop in
carriers that occurred with the implementation of SDDS MFTRP No. 1C
resulted because the DOD standard is more than a site standard; it
requires operational controls for the vehicles and drivers that
carriers were unwilling or (unable) to meet. According to IME, adopting
NFPA performance-standards would only affect the condition of the site
and could result in fewer available safe haven sites rather than fewer
carriers.
(10) Would it be more appropriate to align safe havens with the Surface
Deployment and Distribution Command (SDDC) MFTRP No. 1C than a
consensus standard such as NFPA 498?
The commenters generally agree that the NFPA 498 standard is more
appropriate for commercial safe havens and note that it is the standard
of choice for fire marshals and fire departments throughout the United
States. The commenters suggest that the DOD standard is more stringent
than required for commercial shipments and that it would be cost
prohibitive to operate a commercial safe haven under the MFTRP. IME
suggests that in times of heightened security, DOD should open its
military sites to commercial shipments looking for a secure harbor.
(11) What is the impact of eliminating the requirement for safe havens
to be approved by Federal, State, or local government officials?
IME indicates that this requirement is arbitrary and subjective and
recommends that it should be replaced (not eliminated) with performance
standards based on Chapter 4 of NFPA 498. R&R Trucking indicates that
it would support a well written regulation that would allow carriers to
make a sound business decision to operate safe havens; however, R&R
asserts that State and local laws should still prevail on safe haven
approval.
(12) Would State and local governments allow the development of safe
havens without prior approval?
Commenters are uncertain whether State and local governments would
allow the designation of safe havens with prior approval. SAAMI
suggests that even without a formal approval process, State and local
requirements related to zoning, building permits, and the like would
still apply. IME recommends a number of measures to provide State and
local governments a role in the process that would attract investment
in safe havens while ensuring that State or local requirements do not
result in de facto bans on the storage of explosives within a given
jurisdiction.
[[Page 43911]]
(13) Are zoning restrictions the primary factor restricting the
development of safe havens?
All of the commenters agree that zoning restrictions are not
insurmountable. Boyle Transportation indicates the initial investment
and on-going operating expenses are the primary impediments to safe
havens. IME contends that local officials take a ``NIMBY'' approach to
this kind of investment and simply do not approve sites. IME also
suggests that another factor inhibiting safe havens investment is the
infrequent use of sites as opposed to other uses for such property.
SAAMI notes that the primary factors are need and liability, and that
an extensive safe haven network is not generally needed. SAAMI states
that when there is a local need, it may be related to the operations of
a particular company or group of companies in a high volume area.
According to SAAMI, a company or group that wishes to establish a safe
haven can calculate the cost versus benefit, estimate the risk of the
operations for which they are responsible, and work with local
governments to obtain building permits in an appropriate location.
(14) What emergency response needs must be taken into consideration
when selecting a location for a safe haven and how should they be
addressed?
Commenters generally agree that emergency response needs must be
considered as part of the process for designating a safe haven. R & R
Trucking notes that emergency response needs would vary depending on
the location of the safe haven and the type and quantity of explosives
authorized at the site. Access to the site, location of local fire
department, capability of the local fire department, area to be
evacuated in case of a fire, and the effect on the community (including
traffic and businesses) in case of a fire or emergency should be
considered.
(15) Are areas that house carrier facilities (close proximity to
transportation arteries, industrial parks, etc.) sufficient locations
for safe havens in terms of emergency response capabilities?
Boyle Transportation, R & R Trucking, and SAAMI all indicate that
it would depend on several factors, including: Location of carrier
facilities; quantity of explosives involved; and separation distances.
According to the commenters each situation would need to be evaluated.
IME indicates that carrier facilities would be sufficient
locations. IME indicates also that performance standards based on
Chapter 4 of NFPA 498 would minimize the possibility that fire
(accidental or intentional) would propagate from one vehicle to another
on the site. According to IME, fire is the biggest safety concern for
in-transit explosives.
(16) What costs apply to the operation of safe havens?
Commenters generally agree that the costs would include those
related to the acquisition of land for the facility, building permits
and approvals, construction, and insurance. In addition, commenters
note that operating costs would include salaries and training for
personnel, taxes and fees, communication, fire suppression materials,
office supplies, account auditing, buffer zone maintenance, and
overhead (maintenance, electricity, water/sewer, etc.)
(17) Would safe haven operators charge a fee to carriers for allowing
them to use their safe haven?
Boyle Transportation indicates that the primary issue would be the
liability associated with the explosives shipments and suggests that
third-party operators would require liability limitations from
carriers. IME recommends that a safe haven regulation not include
restrictions or limits on fees that would be charged and suggests that
the market should dictate the amount of any such fees. R & R Trucking
expresses concern that the costs could be prohibitive. SAAMI notes that
operators of safe havens likely would be private rather than government
entities and would operate a safe haven to support their own operations
and not for industry at large due to liability issues.
(18) Is the concept of temporary parking (less than 4 hours) at truck
stops and carrier terminals a sufficient alternative to safe havens?
Boyle Transportation indicates that temporary parking at truck
stops and carrier terminals is a necessity. In most instances, a long-
distance truckload shipment will need to stop at truck stops along the
route (for example, the average transportation distance for DOD
explosives shipments is nearly 1,000 miles). Carrier terminals are
preferable to truck stops since hazardous materials workers at the
terminals are trained and familiar with the hazards of the material
being transported; also, fueling, change of drivers, and maintenance
can be prioritized and accomplished in much less time than if these
activities were to be completed at truck stops. Boyle Transportation
recommends that carriers that transport explosives should be required
to operate at least one safe haven so that there is a safe location for
shipments that may exceed temporary parking limits or are frustrated
due to the inability of the consignee to receive the freight.
IME indicates that safe havens are an alternative to driver
attendance. Explosives vehicles parked temporarily at a truck stop
should be attended in accordance with current requirements, and drivers
should notify the truck stop operator that the truck is present. IME
further states that temporary parking should be permitted only for
reasons of food, fuel, and other personal needs. If a truck stop is
used as a staging facility, IME recommends that it should meet
performance requirements based on those in Chapter 4 of NFPA 498.
SAAMI indicates that in the absence of an extensive safe haven
network, drivers must be permitted to use truck stops for rest,
fueling, and to meet personal needs. SAAMI recommends that the current
attendance requirements should be modified to allow drivers time at a
rest stop for such purposes.
General Comments
In addition to answering the specific questions raised in the
ANPRM, IME provided additional comments. IME suggests that given the
intermodal nature of transportation and distances traveled by some
shipments, a system of safe havens, especially where explosives are
staged pending intermodal transfers, would provide a useful alternative
to other forms of attendance. IME indicates that it does not believe
that the current requirement for authorizing safe havens--simply
obtaining the approval of a local, State, or Federal authority--is
sufficient to ensure that safety and security precautions are in place
or to ensure that the safe haven storage option is not arbitrarily
denied.
IME expresses concern with existing requirements applicable to
explosives storage during transportation:
1. State or local approval of safe havens can, on the one hand,
lead to approval of sites without adequate operational, administrative,
or engineering controls, and on the other hand, act as a ban when
practically no risk exists. PHMSA should revise 49 CFR 397.5(d)(3), to
include performance standards for safe havens. Requirements based on
Chapter 4 of NFPA 498--Standard for Safe Havens and Interchange Lots
for Vehicles Transporting Explosives, edition 2006, National Fire
Protection Association
[[Page 43912]]
would provide an adequate performance standard for safe havens.
2. There currently is no mechanism under the HMR for reporting
thefts or losses. The HMR should either incorporate the ATF requirement
on how to report thefts and losses at 27 CFR 555.30(d), or adopt its
own theft/loss reporting requirement.
3. The requirement to have an ``unobstructed field of view'' of the
vehicle being attended, set forth in Sec. 397.5(b)(3), should be
revised to allow for either in-person or electronic monitoring at safe
havens.
IME indicates the risk assessment for a safe haven should take into
consideration the probability of an incident on-site (both accidental
and intentional), the consequences of such an incident, and the
exposure of personnel. There are many acceptable ways in which the risk
assessment could be conducted, but IME encourages PHMSA to recognize
the software model IMESAFR (Institute of Makers of Explosives Safety
Analysis for Risk; IMESAFR was developed by IME in conjunction with APT
Research, Inc.) is a probabilistic risk assessment tool used to
calculate risk to personnel from explosives facilities, as one, not the
only, acceptable means of arriving at a quantitative assessment of the
risk. An advantage of quantitative assessment of risk is that it can
easily be factored with other risks, options, and alternatives during a
system-wide assessment of risk. IME believes that PHMSA should ensure
that any information generated, or records maintained, from risk or
vulnerability assessments performed in order to meet performance-based
standards at safe havens, be protected as security sensitive
information pursuant to 49 CFR 1520.7(r). (See 49 CFR 15.11).
IV. Discussion of Proposals
PHMSA continues to believe that the lack of Federal standards for
safe havens poses a safety concern. Commenters to this rulemaking
generally support this view and recommend incorporation of NFPA 498
into the HMR. A summary NFPA 498 is provided below:
1. A safe haven must be located in a secured area that is no closer
than 300 ft (91.5m) to a bridge, tunnel, dwelling, building, or place
where people work, congregate, or assemble. The perimeter of the safe
haven must be cleared of weeds, underbrush, vegetation, or other
combustible materials for a distance of 25 ft (7.6 m). The safe haven
must be protected from unauthorized persons by warning signs, gates,
and patrols. NFPA 498 sections 4.1.1, 4.1.2, 4.1.3, and 4.1.4.
2. When vehicles carrying Class 1 materials are parked in a safe
haven, the entrance to the safe haven must be marked with this warning
sign:
DANGER
NO SMOKING
NEVER FIGHT EXPLOSIVE FIRES
VEHICLES ON THIS SITE CONTAIN EXPLOSIVES
CALL-------------------------------------------------------------------
The sign must be weatherproof with reflective printing, and the
letters must be at least 2 in. high. NFPA 498 sections 4.1.4.1 and
4.1.4.2.
3. Watch personnel must be made aware of the explosives,
corresponding emergency response procedures, and NFPA 601. NFPA 498
sections 4.1.5 4.1.5.1.
4. A stand-by vehicle in good operating condition that is capable
of moving the explosives trailers must be kept at the safe haven. NFPA
498 section 4.1.5.2.
5. Fire protection equipment must be provided--to include portable
fire extinguishers and a dependable water supply source. NFPA 498
section 4.1.6
6. Vehicles will be inspected before they enter the safe haven. Any
risks (e.g., hot tires, hot wheel bearings, hot brakes, any
accumulation of oil or grease, any defects in the electrical system, or
any apparent physical damage to the vehicle that could cause or
contribute to a fire) that are identified by the inspector must be
corrected before the vehicle is permitted to enter the safe haven. NFPA
498 section 4.2.1.1, 4.2.1.2, and 4.2.1.3.
7. Trailers are to be positioned in the safe haven with spacing of
not less than 5ft (1.5m) maintained in all directions between parked
trailers. Additionally, trailers may not be parked in a manner that
would require their movement to move another vehicle. Immediately upon
correctly positioning a loaded trailer the tractor must be disconnected
and removed from the safe haven. NFPA 498 sections 4.2.2, 4.2.3, and
4.2.4.
8. Trailers in the safe haven must be maintained in the same
condition as is required for highway transportation, including
placarding. NFPA 498 section 4.2.5.
9. Where a self-propelled vehicle loaded with explosives is stored
in a safe haven it must be parked at least 25 ft (7.6 m) from any other
vehicles containing explosives, and must be in operable condition,
properly placarded, and in a position and condition where it can be
moved easily in case of necessity or emergency. NFPA 498 section 4.2.6.
10. No explosives may be transferred from one vehicle to another in
a safe haven except in case of necessity or emergency. NFPA 498 section
4.2.7.
11. No vehicle transporting other hazardous materials may be stored
in a safe haven unless the materials being transported are compatible
with explosives. NFPA 498 section 4.2.8.
12. Except for minor repairs, no repair work involving cutting or
welding, operation of the vehicle engine, or the electrical wiring may
be performed on any vehicle parked in a safe haven that is carrying
explosives. NFPA 498 sections 4.3.1.1 and 4.3.1.2.
13. Except for firearms carried by law enforcement and security
personnel where specifically authorized by the authority having
jurisdiction, smoking, matches, open flames, spark-producing devices,
and firearms are not permitted inside or within 50 ft (15.3 m) of the
safe haven, loading dock, or interchange lot. NFPA 498 section 4.3.2
and 4.3.3.
14. Electric lines must not be closer than the length of the lines
between the poles, unless an effective means to prevent vehicles from
contact with broken lines is employed. NFPA498 section 4.3.4.
15. When any vehicle transporting explosives is stored in a safe
haven, at least one trained person, 21 years of age or older, must be
assigned to patrol the safe haven on a dedicated basis. Safe havens
located on explosives manufacturing facilities or at motor vehicle
terminals must employ other means of acceptable security such as
existing plant or terminal protection systems or electronic
surveillance devices. NFPA 498 section 4.4.1 and 4.4.2.
16. The safe haven operator must maintain an active safety training
program in emergency response procedures for all employees working at
the safe haven. NFPA 498 section 4.5.
17. Training in accordance with 49 CFR Part 172, Subpart H is
required for employees involved with the loading, shipping, or
transportation of explosives. NFPA 498 section 4.5.2.
18. The safe haven operator must notify in writing the local law
enforcement, fire department, and other emergency response agencies of
the safe haven and the maximum quantity of Class 1 materials authorized
for the safe haven. The operator must maintain copies of any approval
documentation and notifications. NFPA 498 sections 4.6.1 and 4.6.2.
In this NPRM, PHMSA proposes to incorporate NFPA 498 into the HMR.
NFPA 498 is an accepted standard that imposes rigorous safety
requirements on facilities at which explosives are temporarily stored
during transportation. The standard is tailored
[[Page 43913]]
to the risks posed by commercially transported explosives. As proposed
in this NPRM, any facility that conforms to the safe haven requirements
specified in NFPA 498 would be authorized for use as a safe haven. By
specifically identifying a standard for safe havens PHMSA is enhancing
the current level of safety. Note that nothing in this NPRM is intended
to preempt State and local zoning ordinances, building permits, land
use restrictions, or other similar requirements that may apply to
construction and operation of a safe haven.
In addition, we urge safe haven owners to utilize available
explosive distancing tables or risk assessment tools when selecting
locations for safe havens. Further, we encourage owners to share this
information with State and local officials to support safe haven
development. In all cases, owners must fully consider the risk to
persons and the surrounding area from the explosives facility.
V. Summary of Changes by Section
In accordance with the comments received and public meeting
discussion this NPRM proposes the following changes by section:
Part 171
Section 171.7. We propose to amend paragraph (a)(3) by adding a
reference to NFPA 498--Standard for Safe Havens and Interchange Lots
for Vehicles.
Part 177
Section 177.835. We propose to add a new paragraph (k) to clearly
indicate that Division 1.1, 1.2, and 1.3 explosives may be left
unattended by the carrier in a safe haven that meets NFPA 498. This
addition would provide a clear, consistent, and measurable Federal
requirement for the development and operation of safe havens.
VI. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This rulemaking is issued under authority of the Federal hazardous
materials transportation law (49 U.S.C. 5101 et seq.), which authorizes
the Secretary of Transportation to prescribe regulations for the safe
transportation, including security, of hazardous materials in
interstate, intrastate, and foreign commerce.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule is not considered a significant regulatory
action under section 3(f) of Executive Order 12866 and, therefore, was
not reviewed by the Office of Management and Budget (OMB). This rule is
not significant under the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034).
Executive Order 12866 requires agencies to regulate in the ``most
cost-effective manner,'' to make a ``reasoned determination that the
benefits of the intended regulation justify its costs,'' and to develop
regulations that ``impose the least burden on society.'' The
incorporation of standards for safe havens into the HMR does not impose
significant burden on the explosive industry. The adoption of existing
standards applicable to the safe storage of Division 1.1, 1.2, and 1.3
explosives in safe havens provides a clear and specific mechanism for
the construction and maintenance of safe havens. This change would
provide a Federally approved standard for safe havens in place of the
existing arbitrary requirement that allows for State, local, or Federal
approval of safe havens.
The industry, as described in the ANPRM comments and during an
August 7, 2008 public meeting, indicates that it does not rely on safe
havens for the attendance of explosives in transportation. Generally,
industry relies on team drivers to move explosives shipments. In most
instances team drivers are a safe, efficient, and cost effective means
of transporting explosives. The proposed changes would provide
explosives carriers with an optional means of compliance; therefore,
any increased compliance costs associated with the proposals in this
NPRM would be incurred voluntarily by the explosives industry.
Ultimately, we expect each company to make reasonable decisions based
on its own business operations and future goals. Thus, costs incurred
if a company elects to rely on a safe haven to fulfill attendance
requirements would be balanced by the safety and security benefits
accruing from the decision.
C. Executive Order 13132
Executive Order 13132 requires agencies to assure meaningful and
timely input by State and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. We invited State and local governments
with an interest in this rulemaking to comment on the effect that
adoption of specific requirements for carriers that transport and store
explosives in commerce may have on State or local safety or
environmental protection programs. State representatives participating
in the public meeting expressed support for the proposed incorporation
of safe haven standards into the HMR. The proposed rule provides an
option for safe havens to be developed and operated based on existing
safety standards. It does not preempt State requirements (e.g., State
and local zoning ordinances, building permits, land use restrictions,
or other similar requirements). Safe haven owners must continue to
follow State and local requirements as applicable.
D. Executive Order 13175
This proposed 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 proposed 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. 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. The
proposed rule will not impose increased compliance costs on the
regulated industry. Rather, the proposed rule incorporates current
standards for the construction and maintenance of safe havens. Overall,
this proposed rule should reduce the compliance burden on the regulated
industry without compromising transportation safety. Therefore, I
certify that this rule will not have a significant economic impact on a
substantial number of small entities.
F. Executive Order 13272 and DOT Regulatory Policies and Procedures
This notice has been developed in accordance with Executive Order
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'')
and DOT's procedures and policies to promote compliance with the
Regulatory Flexibility Act to ensure that potential impacts of draft
rules on small entities are properly considered.
G. Paperwork Reduction Act
There are no new information collection requirements in this
proposed rule.
[[Page 43914]]
H. 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.
I. Unfunded Mandates Reform Act of 1995
This proposed rule does not impose unfunded mandates, under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$141.3 million or more to either State, local, or Tribal governments,
in the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.
J. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, 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 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://www.dot.gov.
K. National Environmental Policy Act
The National Environmental Policy Act of 1969 (NEPA) requires
Federal agencies to consider the consequences of major Federal actions
and that they prepare a detailed statement on actions significantly
affecting the quality of the human environment. We requested comments
on the potential environmental impacts of regulations applicable to the
storage of explosives transported in commerce. We asked for comments on
specific safety and security measures that would provide greater
benefit to the human environment, or on alternative actions the agency
could take that would provide beneficial impacts. No commenters
addressed the potential environmental impacts of the proposals in the
ANPRM.
Safe havens promote the safe storage of hazardous materials in
transportation. Safe havens ensure that explosives are stored in a
manner that protects them from release into the environment. This
proposed rule does not prohibit or promote the development of safe
havens; rather, it ensures that existing and future safe havens meet
minimum design and safety criteria. The impact on the environment if
any would be a reduction in the environmental risks associated with the
unattended storage of explosives in transportation. As a result, we
have preliminarily determined that there are no significant
environmental impacts associated with this proposed rule. We request
comment on this determination.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 177
Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR Chapters I and III are
proposed to be amended as follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
1. The authority citation for part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53;
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub L. 104-134
section 31001.
2. In Sec. 171.7, in the paragraph (a)(3) table, under the entry
``National Fire Protection Association,'' the organization's mailing
address is revised and the entry ``NFPA 498--Standard for Safe Havens
and Interchange Lots for Vehicles Transporting Explosives, 2006
Edition'' is added.
The revision and addition read as follows:
Sec. 171.7 Reference material.
(a) * * *
(3) Table of material incorporated by reference. * * *
------------------------------------------------------------------------
Source and name of material 49 CFR reference
------------------------------------------------------------------------
* * * * * * *
National Fire Protection Association, 1
Batterymarch Park, Quincy, MA, 1-617-770-3000,
www.nfpa.org.....................................
* * * * * * *
NFPA 498-Standard for Safe Havens and Interchange 177.835
Lots for Vehicles Transporting Explosives, 2006
Edition..........................................
* * * * * * *
------------------------------------------------------------------------
PART 177--CARRIAGE BY PUBLIC HIGHWAY
3. The authority citation for part 177 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.
4. In Section 177.835 a new paragraph (k) is added to read as
follows:
Sec. 177.835 Class 1 materials.
* * * * *
(k) Attendance of Class 1 (explosive) materials. Division 1.1, 1.2,
or 1.3 materials that are stored during transportation in commerce must
be attended and afforded surveillance in accordance with 49 CFR 397.5.
An area that conforms to NFPA 498 (IBR, see Sec. 171.7 of the
subchapter) constitutes a Federally approved safe haven for the
unattended storage of vehicles containing Division 1.1, 1.2, or 1.3
materials.
Issued in Washington, DC, on July 22, 2010 under authority
delegated in 49 CFR Part 106.
R. Ryan Posten,
Senior Director for Hazardous Materials Safety.
[FR Doc. 2010-18368 Filed 7-26-10; 8:45 am]
BILLING CODE 4910-60-P