[Federal Register Volume 76, Number 109 (Tuesday, June 7, 2011)]
[Rules and Regulations]
[Pages 32867-32873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13837]


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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 Storage of Explosives 
During Transportation

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Final rule.

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SUMMARY: In this final rule, PHMSA, in coordination with the Federal 
Motor Carrier Safety Administration (FMCSA), is approving the use of 
the National Fire Protection Association Standard (NFPA) 498--Standard 
for Safe Havens and Interchange Lots for Vehicles Transporting 
Explosives (2010 Edition) for the construction and maintenance of safe 
havens used for unattended storage of Division 1.1, 1.2, and 1.3 
explosives.

DATES: Effective Date: July 7, 2011.
    Voluntary Compliance Date: Compliance with the requirements adopted 
herein is authorized as of June 7, 2011. However, persons voluntarily 
complying with these regulations should be aware that appeals may be 
received and as a result of PHMSA's evaluation of these appeals, the 
amendments adopted in this final rule may be revised accordingly.
    Incorporation by reference date: The incorporation by reference of 
certain publications listed in this rule is approved by the Director of 
the Federal Register as of July 7, 2011.

FOR FURTHER INFORMATION CONTACT: Ben Supko or Steven Andrews, Standards 
and Rulemaking Division, (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 
assigned to six divisions depending on the degree and nature of the 
explosive hazard, as shown in the following table (49 CFR 173.50(b)).

------------------------------------------------------------------------
                                       Description of
     Division            Hazard            hazard           Examples
------------------------------------------------------------------------
1.1...............  Mass explosion    Instantaneous     grenades, mines,
                     hazard.           explosion of      and
                                       virtually the     nitroglycerin.
                                       entire package
                                       or shipment.
1.2...............  Projection        Fragments         rockets and
                     hazard without    projected         warheads.
                     a mass            outward at some
                     explosion         distance.
                     hazard.
1.3...............  Fire hazard and   Fire and          projectiles,
                     either a minor    possible          signal smoke,
                     projection        projection of     and tracers for
                     hazard or minor   fragments         ammunition.
                     blast hazard or   outward at some
                     both but not a    distance.
                     mass explosion
                     hazard.
1.4...............  Minor explosion   Explosion         ammunition,
                     hazard.           largely           airbags, and
                                       confined to the   model rocket
                                       package and no    motors.
                                       projection of
                                       fragments of
                                       any appreciable
                                       size or range
                                       is expected.
1.5...............  Very insensitive  Mass explosion    blasting agents
                     explosive.        hazard, but low   and ammonia-
                                       probability of    nitrate fuel
                                       initiation or     oil mixture.
                                       detonation
                                       while in
                                       transportation.

[[Page 32868]]

 
1.6...............  Extremely         Negligible        insensitive
                     insensitive       probability of    article and
                     article.          accidental        military.
                                       initiation or
                                       propagation.
------------------------------------------------------------------------

    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 
American Pyrotechnics Association Standard 87-1 (49 CFR 173.56). Each 
approval granted by the Associate Administrator contains packaging and 
other transportation provisions (e.g., shipping paper requirements, 
labeling, marking, etc.) 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 (1) register with PHMSA and (2) develop 
and adhere to a security plan (49 CFR 172.800(b)).\1\ 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.
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    \1\ When transported by highway, placards must be affixed to the 
transport vehicle or freight container when (1) any quantity of 
Division 1.1, 1.2, or 1.3 explosive materials are present, and (2) 
more than 1,000 pounds of Division 1.4, 1.5 or 1.6 materials are 
present. 49 CFR 172.504.
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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 Federal Motor Carrier Safety Regulations (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. FMCSA and RSPA 
requested comments on a variety of security measures including: 
escorts, vehicle tracking and monitoring systems, emergency warning 
systems, remote shut-offs, direct short-range communications, and 
notification to State and local authorities. The ANPRM also addressed 
the issue of explosives storage in safe havens. We received 
approximately 80 comments in response to the ANPRM.
    On March 19, 2003, FMCSA published a further notice (68 FR 13250) 
that RSPA had assumed the lead role for this rulemaking proceeding. Due 
to the complexity of the issues raised in Docket HM-232A and the number 
of comments received on the ANPRM, RSPA decided to consider the storage 
of explosives in a separate rulemaking. RSPA indicated its intentions 
in the October 30, 2003 final rule published under Docket HM-223 (68 FR 
61906) entitled ``Applicability of the Hazardous Materials Regulations 
to Loading, Unloading, and Storage.'' In the final rule, which became 
effective on June 1,

[[Page 32869]]

2005 (see 69 FR 70902; December 8, 2004), RSPA clarified the 
applicability of the HMR to specific functions and activities related 
to the transportation of hazardous materials in commerce. In the 
preamble to the HM-223 final rule, RSPA identified issues related to 
the storage of hazardous materials during transportation that need to 
be addressed (68 FR 61906; 61931). RSPA noted that the current HMR 
requirements applicable to the storage of explosives during 
transportation need to be reevaluated to ensure that they adequately 
account for potential safety and security risks. For example, the 
agency has concerns regarding the lack of Federal standards for safe 
havens and inconsistent State requirements.
    Consistent with and supportive of the respective transportation 
security roles and responsibilities of the DOT and DHS as delineated in 
a Memorandum of Understanding (MOU) signed September 28, 2004, and of 
Transportation Security Administration (TSA) and PHMSA as outlined in 
an Annex to that MOU signed August 7, 2006 PHMSA published a withdrawal 
of HM-232A on June 27, 2007 (72 FR 35211). In the withdrawal we advised 
the public that the TSA assumed the lead role from PHMSA for rulemaking 
addressing the security of motor carrier shipments of hazardous 
materials under Docket HM-232A. Accordingly, PHMSA withdrew the ANPRM 
issued and closed its rulemaking proceeding. PHMSA also indicated it 
would continue to consider alternatives for enhancing the safety of 
explosives stored during transportation.

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 in this docket and the comments are accessible through the 
Federal eRulemaking Portal (http://www.regulations.gov).
    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 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.''
     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.

D. July 27, 2010 NPRM

    On July 27, 2010, PHMSA published a NPRM in coordination with FMCSA 
to propose regulations to enhance existing attendance requirements for 
explosives stored during transportation by designating the National 
Fire Protection Association (NFPA) standard 498. In the NPRM PHMSA 
proposed that an existing standard--NFPA 498--be designated as a 
federally approved standard for the construction and maintenance of 
safe havens used for unattended storage of 1.1, 1.2, and 1.3 
explosives. As summarized in the NPRM, NFPA provides as follows:
    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

[[Page 32870]]

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. NFPA 498 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.

III. Comments on July 27, 2010 NPRM

    PHMSA received comments on the NPRM, from the following individuals 
and organizations:
    (1) Boyle Transportation (Boyle).
    (2) American Trucking Associations, Inc. (ATA).
    (3) Institute of Makers of Explosives (IME).
    (4) National Fire Protection Association (NFPA).
    (5) Paul Melander, an employee of FMCSA.
    (6) Leigh Fabbri, an individual.
    IME, NFPA, and Mr. Melander recommend the incorporation by 
reference of the 2010 edition of NFPA 498 as opposed to the 2006 
edition as included in this NPRM. The commenter is correct, since the 
July 27, 2010 publication of the NPRM, NFPA has made a new version of 
the NFPA 498 Standard available. PHMSA has reviewed the 2010 edition of 
the Standard for consistency with the 2006 edition, as applicable to 
safe havens. PHMSA did not identify any significant difference between 
the two editions. Therefore, PHMSA agrees with the commenter and is 
incorporating the 2010 edition of the NFPA 498 standard.
    In its comments IME expresses support for PHMSA's proposal not to 
impose material quantity and/or interim storage time limits and states 
that existing rules for the transportation of hazardous materials 
without unnecessary delay, and commercial expectations for the timely 
delivery of shipments by consignees mitigate the need for additional 
arbitrary limitations. PHMSA agrees with this comment and is not 
incorporating material quantities and/or interim storage limits in this 
final rule.
    IME also supports PHMSA's proposal not to impose in transit storage 
standards used by the US Department of Defense or the ATF for permanent 
storage of explosives. It states that no justification has been made to 
warrant the application of such standards to commercial shipments given 
existing FMCSA/PHMSA requirements and the new standards that will 
result from this rulemaking. PHMSA agrees with the commenter and is not 
incorporating transit storage standards in this final rule.
    ATA expresses concern about the level of participation by FMCSA in 
this rulemaking. It notes that the docket has been substantially 
narrowed in scope from what PHMSA initially proposed and that PHMSA 
proposed to use the scope established by FMCSA's attendance rules. ATA 
states it anticipated that PHMSA would invite FMCSA to join as an 
author of this proposal since ``safe havens'' are given a definition by 
the FMCSRs. ATA indicates that PHMSA's coordination with FMCSA is not 
sufficient to address related safe haven issues stemming from the 
FMCSRs and that these issues can only be addressed by amendment to the 
FMCSRs as well and the HMR. It recommends that 49 CFR 397.5 be amended: 
(1) To reference the edition of ``safe haven'' standards that will be 
incorporated by reference into the HMR; (2) to eliminate the 
requirement for written Federal approval; and (3) to accommodate other 
recommended changes to the safe haven attendance standard, such as 
replacing the requirement in 49 CFR 397.5(d)(1), that bailees have an 
``unobstructed field of view'' of a vehicle during in-transit storage, 
with a requirement that allows vehicle monitoring by electronic 
surveillance as well as physical observation.
    Boyle and Mr. Melander suggest that the FMCSR Sec.  397.5 should be 
changed to reflect the updated definition of safe haven (see Sec.  
397.5(d)(3)). In each of these regards, FMCSA has advised PHMSA that 
changes to 49 CFR Part 397 may occur in a future rulemaking.
    Boyle also suggests that although the term ``safe haven'' is 
defined in the standard, the full title ``Standard for Safe Havens and 
Interchange Lots for Vehicles Transporting Explosives'' better 
encompasses the fact that a safe haven area may be co-located or 
contained within a truck terminal. Therefore, the commenter suggests 
modifying Sec.  177.835(k) to read more precisely: ``A facility that 
conforms to NFPA 498 ``Standard for Safe Havens and Interchange Lots 
for Vehicles Transporting Explosive'' (IBR, see Sec.  171.7 of the 
subchapter) constitutes a Federally approved safe haven for the storage 
of vehicles containing Division 1.1, 1.2 or 1.3 materials.'' PHMSA 
disagrees with the commenter and the full title of NFPA 498 will not be 
added to the regulatory language. Section 171.7(a) provides the full 
title of the standard. This is consistent with current

[[Page 32871]]

practices for referencing IBR materials throughout the HMR.
    IME recommends several other requirements for safe havens that are 
not currently specified in NFPA 498. These include requirements for 
operational plans, communications, and recordkeeping. The commenter 
adds that the PHMSA proposal does not address the merits of these 
additional operational and administrative conditions at all. PHMSA 
believes that adopting NFPA 498, which includes the incorporation of 
PHMSA training requirements, adequately address the concerns expressed 
by the commenter.
    IME also suggests that PHMSA address theft and loss of explosives 
by referencing the theft/loss reporting standards of the Bureau of 
Alcohol, Tobacco, Firearms and Explosives (ATF) in the HMR. The 
commenter indicates that this standard has a security benefit as well. 
In this regard, IME requests the presence of a robust risk assessment 
of the safe havens in the final rule. A risk assessment is a component 
of the security plan requirement in the current HMR. It questions 
whether security plan risk assessments are sufficient for safe havens, 
and suggests that risk assessments at safe havens should consider both 
safety and security risks to exposed populations. IME asks PHMSA not to 
propose a ``safety'' rule for safe haven operations without considering 
``security'' needs at such sites. PHMSA has reviewed NFPA 498 and 
concluded that the standard provides adequate measures to ensure that 
unattended explosives are stored safely during transportation. NFPA 498 
provides safety based requirements for the construction and maintenance 
of safe havens including standards for vehicle parking, control of 
ignition sources, security against trespassers, employee training, and 
notification of authority having jurisdiction. Section 4.5 of NFPA 498 
requires operators of all safe havens to maintain an active safety 
training program that includes:
    1. Emergency instructions;
    2. Training for employees involved in the loading, shipping, or 
transportation of explosives that covers 49 CFR 172.700-172.704 
(including security training); and
    3. Familiarity with the Emergency Response Guidebook (ERG).
    Separately, persons performing shipper or carrier functions are 
required to assess security risks in transportation in accordance with 
49 CFR part 172, subpart I. This specifically includes measures to 
address en route security during transportation, which includes interim 
storage at a safe haven. At the same time, any decision to use a safe 
haven as compared to other options (e.g., driver teams) is part of an 
individual carrier's assessment. It is the carrier's responsibility to 
fully assess the safety and security risks along the route. Separately, 
adding theft or loss reporting requirement is outside of the scope of 
this rulemaking. ATF requirements indicate that any person who has 
knowledge of the theft or loss of any explosive materials from their 
stock must report such theft or loss within 24 hours of discovery to 
ATF and to appropriate local authorities. (27 CFR 55.30, implementing 
18 U.S.C. 842(k), requires that the report of theft or loss be made by 
telephone and in writing to ATF). The requirements for safe havens 
contained in NFPA 498 coupled with the carrier's assessment of safety 
and security risks along routes will enable carriers to make more 
uniform and risk-based decisions regarding the use of safe havens. Mr. 
Melander expresses concern with NFPA 498, Section 4.1.4.1 which 
requires signage warning of explosive danger. Specifically, the 
commenter suggests advertising to the public the location of explosives 
may present some security risks. The commenter questions whether, in 
accordance with NFPA 498, Section 4.2.1.1 and 4.2.1.2, the inspection 
for hot tires, hot wheel bearing, hot brakes will require infra-red 
devices and who will establish these inspection methods. Based on NFPA 
498, Section 4.2.8 which states ``No vehicle transporting other 
hazardous materials shall be parked in a safe haven unless the 
materials being transported are compatible with explosives'' the 
commenter asks how will compatibility be determined (i.e., will it be 
based on Sec.  177.848). Mr. Melander also asks for clarification on 
what authority will have jurisdiction in granting law enforcement 
permission to carry firearms in safe havens in accordance with Section 
4.3.3.
    Based on NFPA 498, Section 4.3.3 ``the authority having 
jurisdiction'' will decide which law enforcement and security personnel 
will be permitted to carry firearms within a safe haven. As stated 
above, PHMSA considers that NFPA 498 adequately balances safety and 
security. We also believe that incorporating NFPA 498 as written will 
promote a consistent understanding of the safe haven standards.
    Boyle suggests that, if the intent of PHMSA is to improve the 
safety and security conditions under which vehicles with explosives 
Division 1.1, 1.2 and 1.3 are parked while in-transit then all 
facilities where these vehicles are parked for extended periods (e.g., 
more than 2 hours) should be mandated to comply with NFPA 498. IME also 
raises concerns about preemption. It states that, by issuing these 
standards under the HMR, the preemptive effect of Federal hazardous 
materials transportation law is triggered. The commenter expresses 
disappointment by PHMSA's statement that the proposed new standard 
``does not preempt state [and local] requirements.'' IME recommends 
that PHMSA ask FMCSA to strike 397.5(d)(3) and replace the condition 
for state and local government approval with the national consensus 
standard for safe havens, NFPA 498. It states that absent such 
regulatory change, PHMSA perpetuates the ability of local interests to 
arbitrarily deny the location of safe havens and that the current 
regulatory default to state and local written approval is a primary 
reason why so few safe havens currently exist. It also states that the 
definition is consistent with Federal hazmat law, which clearly 
recognizes the critical safety impact of activities performed in 
advance of transportation by persons who cause the transportation of 
hazardous materials in commerce.
    Leigh Fabbri indicates that the HMR should provide the state or 
local community the ability to prohibit a safe haven in a location 
where appropriate safety cannot be provided, for example in high 
population areas and near unprotected buildings. The commenter suggests 
that local authorities that have knowledge of planned future 
development for an area should make the decision on the location of 
safe havens based on the conditions at the time the transportation 
company seeks the safe haven designation and existing community 
planning.
    PHMSA sees no need to preempt or preclude State or local 
requirements for a safe haven, and considers that any specific non-
Federal requirements regarding the ``handling'' of explosive materials 
at a safe haven can better be dealt with in a separate proceeding. In 
this final rule, PHMSA is adopting NFPA 498 as a Federally approved 
standard that may be used to construct, maintain, or evaluate a safe 
haven, but we are not mandating the use of the standard.

IV. Discussion of Requirements

    In this final rule, PHMSA is incorporating 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 to the risks posed by 
commercially transported explosives. In this final rule, any facility 
that conforms to the safe

[[Page 32872]]

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 final rule 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.
    In accordance with the comments received and public meeting 
discussion this final rule adopts the following specific changes:
    Section 171.7. We are amending paragraph (a)(3) by adding a 
reference to NFPA 498--Standard for Safe Havens and Interchange Lots 
for Vehicles.
    Section 177.835. We are adding 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.

V. 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, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    This final 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 Orders 12866 and 13563 require 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 provides 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.
    As described in the ANPRM comments and during the August 7, 2008 
public meeting, the explosives industry indicates that it does not 
generally rely on safe havens for the attendance of explosives in 
transportation, but rather on team drivers to move explosives 
shipments. In most instances team drivers are a safe, efficient, and 
cost effective means of transporting explosives. These changes will 
provide explosives carriers with an optional means of compliance; 
therefore, any increased compliance costs associated with the proposals 
in this final rule 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. State representatives participating in 
the public meeting expressed support for the proposed incorporation of 
safe haven standards into the HMR. The final 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 final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination With Indian Tribal Governments''). Because this final rule 
does not significantly or uniquely affect the communities of the Indian 
tribal governments and does not impose substantial direct compliance 
costs, the funding and consultation requirements of Executive Order 
13175 do not apply.

E. 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 final 
rule will not impose increased compliance costs on the regulated 
industry. Rather, the final rule incorporates current standards for the 
construction and maintenance of safe havens. Overall, this final 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.

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.

[[Page 32873]]

I. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates, under the 
Unfunded Mandates Reform Act of 1995. It does not result in 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 or NPRM.
    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 final 
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 determined that there are no significant environmental impacts 
associated with this rule.

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, Incorporation by reference, 
Motor carriers, Radioactive materials, Reporting and recordkeeping 
requirements.

    In consideration of the foregoing, 49 CFR Chapter I is amended as 
follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
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.


0
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, 2010 
Edition'' is added.
    The revision and addition read as follows:


Sec.  171.7  Reference material.

    (a) * * *
    (3) Table of material incorporated by reference. * * *

------------------------------------------------------------------------
                                                              49 CFR
               Source and name of material                   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 Lots           177.835
 for Vehicles Transporting Explosives, 2010 Edition.....
 
                              * * * * * * *
------------------------------------------------------------------------

PART 177--CARRIAGE BY PUBLIC HIGHWAY

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

    Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.


0
4. In Sec.  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. 
A safe haven 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 May 27, 2011, under authority 
delegated in 49 CFR part 106.
Cynthia L. Quarterman,
Administrator.
[FR Doc. 2011-13837 Filed 6-6-11; 8:45 am]
BILLING CODE 4910-60-P