[Federal Register: July 3, 2008 (Volume 73, Number 129)]
[Proposed Rules]
[Page 38164-38171]
[DOCID:fr03jy08-18]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 173 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: Advance notice of proposed rulemaking (ANPRM); reopening of
comment period and announcement of public meeting.

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

SUMMARY: PHMSA is concerned that current requirements may not
adequately address the risks associated with the storage of explosives
while they are in transportation. On November 16, 2005, we published an
advance notice of proposed rulemaking to solicit comments concerning
measures to reduce those risks. The comment period closed February 14,
2006. To ensure that our stakeholders are fully aware of the risks we
are addressing and given sufficient opportunity to comment, this ANPRM
re-opens the comment period, summarizes the comments already in the
docket, and announces a public meeting.

DATES: Written comments: Comments must be received by October 1, 2008.
    Public meeting: August 7, 2008, starting at 9 a.m. and ending at 1
p.m.

ADDRESSES:
    Public meeting: The meeting will be held at the U.S. DOT
headquarters 1200 New Jersey Ave., SE., Washington, DC 20590. The main
visitor's entrance is located in the West Building, on New Jersey
Avenue and M Street. For detailed directions please see Section IV. To
sign up for the meeting or to request special accommodations, please
contact Mr. Ben Supko or Ms. Susan Gorsky at the telephone number or
address listed under FOR FURTHER INFORMATION CONTACT below.
    Comments: 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 notice at the beginning of the comment. Note
that all comments received will be posted without change to the docket
management system, including any personal information provided.
    Docket: For access to the dockets to read background documents or
comments received, go to http://www.regulations.gov or DOT's Docket
Operations Office (see ADDRESSES).
    Privacy Act: Anyone is able to search the electronic form of any
written communications and comments received into any of our dockets by
the name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Pages 19477-78), which may also be found at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Susan Gorsky or Ben Supko, Office of
Hazardous Materials Standards, telephone<PHONE_NUMBER>, Pipeline and
Hazardous Materials Safety Administration, U.S. Department of
Transportation, East Building, PHH-10, 1200 New Jersey Avenue, SE.,
Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 16, 2005 PHMSA published an advance notice of proposed
rulemaking (ANPRM) under Docket HM-238 (70 FR 69493) to solicit
comments concerning measures to reduce the risks posed by the storage
of explosives while they are in transportation. For persons interested
in viewing the ANPRM, it is accessible by PHMSA docket number (PHMSA-
2005-22987) through the Federal eRulemaking Portal (http://
www.regulations.gov). The ANPRM focused primarily on the safe storage
of explosives. We also, however, invited commenters to address issues
related to security and storage of other types of high-hazard
materials.

    As indicated in the ANPRM, we are concerned that the current
regulations do not adequately address the safety and security risks
associated with the storage of explosives while they are in
transportation. Brief summaries of the Federal Motor Carrier Safety
Regulations (FMCSRs; 49 CFR parts 390-397) and Hazardous Materials
Regulations (HMR; 49 CFR parts 171-180), as discussed in the ANPRM, are
provided below:

A. FMCSRs

    The FMCSRs are administered by the Federal Motor Carrier Safety
Administration (FMCSA) to address 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 defined as 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 competent authority having jurisdiction over the area. The FMCSRs
do not include requirements for safety or security measures for safe
havens.
    The FMCSRs require any person who files a Motor Carrier
Identification Report Form (MCS-150) according to the schedule set
forth in Sec.  390.19(a) of the 49 CFR and 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 part
172 of the 49 CFR to hold a valid safety permit. A safety permit is a
document issued by FMCSA that contains a permit number and confers
authority to transport in commerce the hazardous materials listed in
Sec.  385.403 (49 CFR 385.402). 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. The
route plan requires carriers to establish a route that avoids heavily
populated areas, places where crowds are assembled, tunnels, narrow
streets, or alleys (49 CFR 397.67).
    In addition, a motor vehicle containing a Division 1.1, 1.2, or 1.3
explosive may not be parked on or within 5 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)).

B. HMR

    In accordance with the HMR, the same requirements apply to the
transportation of hazardous materials whether the materials are
incidentally stored or actually moving (e.g., shipping papers,
emergency response information, hazard communication, packaging, and
segregation). As a result, the HMR require each person who incidentally
stores explosives during transportation to have a security plan. The
security plan must be based on an assessment of possible security risks
and must include measures to address those risks. Otherwise, the HMR do
not provide standards or incorporate guidelines for facilities to
follow when storing explosives incidental to transportation.

C. ANPRM

    In the November 2005 ANPRM, we summarized government and industry
standards for explosives storage. The standards focus on explosives
storage, but vary greatly by mode of transportation, type of
explosives, and whether the explosive is in transportation. The
standards covered in the ANPRM are listed below. Detailed information
on the standards may be obtained by accessing the public docket for
this rulemaking.
     Hazardous Materials Regulations (49 CFR parts 171-180).
     Federal Motor Carrier Safety Regulations (49 CFR parts
350-399).
     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's 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.''
     Surface Deployment and Distribution Command, ``SDDC
Freight Traffic Rules Publication NO. 1C (MFTRP NO. 1C).''

II. Purpose and Scope of ANPRM

    The purpose of this ANPRM is to re-open the comment period, which
originally closed February 14, 2006, and to announce a public meeting
to solicit comments and discussion on the lack of uniform standards for
establishing, approving, and maintaining safe havens for the temporary
storage of explosives during motor vehicle transportation. As described
in the sections above, there are currently no minimum or uniform
criteria for federal, state, or local governments use when approving
the establishment and operation of safe havens. In addition, it is
likely that current, approved, safe havens do not comply with the very
minimum requirements established by Part 397 of the FMCSRs.
    One way to decrease the risk associated with motor vehicles
transporting explosives being left unattended at rest and truck stops
is to require explosives to be attended at all times through the use of
driver teams. However, historical experience indicates that this would
increase the potential risk to the general public. Enforcing an
``attendance'' requirement is difficult at best. There would be little
incentive for operators of vehicles to comply, they may even remove the
placards and other visible evidence of the explosive being transported
in order to leave the vehicles unattended at locations of their choice,
such as residential communities and business districts.
    Another way of decreasing risk is to ensure that explosives are
stored safely during transportation. Industry consensus standards, such
as those provided in NFPA 498, and other guidelines could be
incorporated into the HMR to establish a uniform baseline for safe
haven locations. This is also a complicated issue that may actually
reduce the number of safe havens. Owners of safe havens may be
unwilling to absorb the cost required to bring their property into
compliance. Development of new, less stringent standards may be an
alternative that will balance the risk of unattended explosives with
the cost of establishing and maintaining adequate safe haven locations.
    While our November 16, 2005 ANPRM focused primarily on safety
issues related to the temporary storage of explosives transported by
highway, we also discussed additional concerns

regarding: (1) Security; (2) storage by rail and vessel modes; and (3)
storage of other high-hazard materials. Since publication of the ANPRM
and after reviewing ongoing federal programs intended to enhance the
safety and security of hazardous materials stored during transportation
by all modes, we decided to narrow the scope of this rulemaking to
address the area posing the largest risk to the public--the development
of measures for ensuring the safety of explosives temporarily stored
during transportation by motor vehicle. The following sections of this
preamble detail some of the actions taken by PHMSA and other agencies
that promise to reduce risks in the areas of rail and motor carrier
security issues, storage during transportation by rail and vessel, and
storage of high-hazard materials.

A. PHMSA and TSA Rulemakings Related to Rail Security

    PHMSA and Transportation Security Administration (TSA) are working
cooperatively to address security issues related to the transportation
by rail of high-hazard materials--toxic-inhalation-hazard (TIH)
materials, radioactive materials, and explosives. On December 21, 2006,
PHMSA, in consultation with the Federal Railroad Administration (FRA)
and TSA, published a notice of proposed rulemaking (NPRM; 71 FR 76833)
proposing to revise the current requirements in the HMR applicable to
the safe and secure transportation of hazardous materials transported
in commerce by rail. Based on comments received in response to the NPRM
and the provisions of the 9/11 Commission Act, we are adopting the
following revisions to the security plan provisions:
     Rail carriers must compile information and data on the
commodities transported, including the routes over which these
commodities are transported.
     Rail carriers transporting the specified hazardous
materials must use the data they compile and relevant information from
state, local, and tribal officials, as appropriate, regarding security
risks to high-consequence targets along or in proximity to a route to
analyze the safety and security risks for each route used and
practicable alternative routes to the route used.
     Using these analyses, rail carriers must select the safest
and most secure practicable route for the specified hazardous
materials.
     In developing their security plans, rail carriers must
specifically address the security risks associated with shipments
delayed in transit or temporarily stored in transit.
     Rail carriers transporting the covered hazardous materials
must notify consignees of any significant unplanned delays affecting
the delivery of the hazardous material.
     Rail carriers must work with shippers and consignees to
minimize the time a rail car containing one of the specified hazardous
materials is placed on track awaiting pick-up, delivery, or transfer.
     Rail carriers must conduct security visual inspections at
ground level of rail cars containing hazardous materials that have been
accepted for transportation or placed in a train to check for signs of
tampering or the introduction of an improvised explosive device (IED).
    Also on December 21, 2006, TSA published an NPRM proposing
additional security requirements for rail transportation. The TSA
rulemaking would enhance security in the rail transportation mode by
proposing requirements on freight and passenger railroads, rail transit
systems, and on facilities with rail connections that ship, receive, or
unload certain hazardous materials. The TSA NPRM includes proposals
applicable to the transportation of TIH materials, radioactive
materials, and explosives by rail: (1) Location reporting of rail cars
upon request from TSA; (2) enhanced chain-of custody procedures to
ensure positive and secure change of physical custody when transferring
rail cars between carriers and between carriers and rail hazardous
materials shipper and receiver facilities; (3) enhanced physical
security measures for rail cars awaiting pick-up at shippers'
facilities; and (4) enhanced physical security measures for rail cars
awaiting unloading at consignee facilities in high-threat urban areas.

B. USCG Requirements Applicable to Explosives Storage

    The United States Coast Guard (USCG) issues regulations for the
safe and secure handling and storage of explosives and other dangerous
cargos that are within or contiguous to waterfront facilities. The
USCG's primary statutory authority is set forth in title 46, U.S. Code,
the Ports and Waterways Safety Act, 33 U.S.C. 1221, et seq., and the
Espionage Act of 1917, as amended by the Magnuson Act of 1950, 16
U.S.C. 1858, and most recently by the Maritime Transportation and
Security Act of 2002, 46 U.S.C. 70108, in addition to Executive Orders
and Coast Guard regulations implementing the statutory authorities.
    The USCG regulations at 33 CFR part 126 establish requirements for
designated waterfront facilities. Section 126.15 requires designated
waterfront facilities that handle, store, stow, load, discharge, or
transport dangerous cargo to meet specific conditions. These
requirements adequately address safety issues associated with the
temporary storage of explosives during transportation by vessel.

C. TSA Hazardous Materials Truck Security Pilot

    In August 2005, TSA initiated the ``TSA Hazardous Materials Truck
Security Pilot.'' This congressionally mandated pilot program was
designed to test the functionality and capabilities of a centralized
truck tracking system. The pilot utilized specific protocols capable of
interfacing with existing truck tracking systems, government
intelligence centers, and first responders. The goal was for TSA to
establish and test a prototype Truck Tracking Center that would allow
TSA to ``continually'' track truck locations and specific hazardous
materials load types in all 50 states. The tracking system also allowed
for automatic or manual notification of exception based events. The TSA
Hazardous Materials Truck Security Pilot, including the prototype Truck
Tracking Center, ended in 2007.
    As we indicated in a June 27, 2007 (72 FR 35211) notice withdrawing
Docket HM-232A, entitled Security Requirements for Motor Carriers
Transporting Hazardous Materials, any rulemaking to address motor
carrier security tracking should be carried out under TSA's legal
authority, rather than primarily as an amendment to the HMR. In the
notice we advised the public that the TSA has assumed the lead role
from PHMSA for rulemaking addressing the security of motor carrier
shipments of hazardous materials under the HM-232A docket. Accordingly,
we withdrew the ANPRM and closed the rulemaking proceeding. As
described in the withdrawal notice, the action was 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 the roles of TSA and
PHMSA as outlined in an Annex to that MOU signed August 7, 2006.
    In light of these ongoing efforts and extensive consultation and
coordination with TSA in several other areas to develop measures to
enhance transportation security and to identify high-risk materials for
which additional

enhanced security measures may be necessary, we have decided to limit
the focus of this rulemaking to the safe storage of explosives during
transportation by motor vehicle. Working with TSA, we will continue to
weigh security risks as we evaluate options for the safe storage of
explosives during transportation by motor vehicle.

III. Summary of Comments on the ANPRM

    We received 22 comments in response to the ANPRM, as follows:

------------------------------------------------------------------------
            Commenter                           Document No.
------------------------------------------------------------------------
Rex C. Railsback.................  PHMSA-2005-22987-002
Shell Chemical LP................  PHMSA-2005-22987-003
Institute of Makers of Explosives  PHMSA-2005-22987-004
 (IME).
North American Automotive Hazmat   PHMSA-2005-22987-006
 Action Committee (NAAHAC).
Department of Defense Explosive    PHMSA-2005-22987-007
 Safety Board.
Pacific Maritime Association       PHMSA-2005-22987-008
 (PMA).
Association of American Railroads  PHMSA-2005-22987-009
 (AAR).
Baker Petrolite Corporation (BPC)  PHMSA-2005-22987-0010
Boyle Transportation.............  PHMSA-2005-22987-0011
Air Transport Association........  PHMSA-2005-22987-0012
International Vessel Operators     PHMSA-2005-22987-0013
 Hazardous Materials Association,
 Inc. (VOHMA).
U.S. Department of Energy (DOE)..  PHMSA-2005-22987-0014
Onyx Environmental Services        PHMSA-2005-22987-0015
 L.L.C. (Onyx).
National Propane Gas Association   PHMSA-2005-22987-0016
 (NPGA).
PPG Industries, Inc. (PPG).......  PHMSA-2005-22987-0017
Council on Safe Transportation of  PHMSA-2005-22987-0018
 Hazardous Articles, Inc.
 (COSTHA).
American Trucking Associations     PHMSA-2005-22987-0019
 (ATA).
The Alliance of Special Effects &  PHMSA-2005-22987-0020
 Pyrotechnic Operators, Inc.
 (ASEPO).
Sporting Arms and Ammunition       PHMSA-2005-22987-0021
 Manufacturers Institute, Inc.
 (SAAMI).
Dangerous Goods Advisory Council   PHMSA-2005-22987-0022
 (DGAC).
ARKEMA, Inc. (ARKEMA)............  PHMSA-2005-22987-0023
Compressed Gas Association (CGA).  PHMSA-2005-22987-0024
------------------------------------------------------------------------

    The comments are available for review through the Federal
eRulemaking Portal (http://www.regulations.gov).
    Several of the commenters provided comments highlighting security
concerns including specific DHS security initiatives (e.g.,
transportation worker identity credential (TWIC), cargo security) that
are beyond the scope of this rulemaking. We support TSA efforts and
agree that the TWIC program, cargo chain security regulations, and the
truck security pilot will, when implemented, provide for a more
efficient and effective means of screening employees, securing cargo,
and ensuring hazardous materials are transported securely. It is not
our intention to propose requirements applicable to the storage of
explosives in transportation that will conflict with or duplicate DHS
regulations. If we determine to move forward with rulemaking, our goal
will be to enhance the safety of explosives stored during
transportation while providing additional flexibility for motor
carriers transporting these materials.
    Generally, commenters suggest that a lack of consistent regulations
for the storage of explosives during transportation creates a
significant safety concern. The commenters do not support a cookie-
cutter solution that could limit transportation or create an undue
burden for transportation by a particular mode. 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 ANPRM was to gather
information from commenters to help us determine if our stakeholders
support further regulatory action. Below we paraphrase the questions
asked in the ANPRM and provide a summary of the applicable comments.
1. Effectiveness of Different Types of Safety and Security Measures
    IME, NAAHAC, PMA, Boyle Transportation, VOHMA, Onyx , PPG, COSTHA,
ASEPO, AAR, and ARKEMA provided comments regarding the effectiveness of
different types of safety and security measures. Generally, these
commenters suggest that current safety measures are on target, but
could use some improvement.
    In its comments, ARKEMA outlines several issues that should be
addressed in a rulemaking proposal, such as a clear and consistent
definition of what constitutes a safe haven, attendance, and the Hours
of Service Rules when locating safe havens.
    ONYX suggests constant attendance to effectively secure higher-risk
explosives in Division 1.1, 1.2, and 1.3 during transportation. In
addition, for materials in Division 1.4, 1.5 and 1.6, ONYX indicates
adequate safety and security during transportation can be maintained by
(1) expediting delivery, (2) minimizing the time the materials are
located at a transfer facility, and (3) providing site-specific
security measures for any transfer facility.
    Boyle Transportation indicates handling and storage during
transportation is adequately addressed by NFPA 498. According to Boyle
Transportation, ``This standard should be the baseline for any
enhancements. And, if introduced into regulation, [NFPA 498] needs to
be applicable to all modes so that these materials are consistently
secured.''
    ATA, COSTHA, AAR, PMA, and VOHMA express concern regarding the
development of a one-size fits all rulemaking and provide support for
the adequacy of current requirements. ATA indicates the trucking
industry has already implemented measures to ensure the safe
transportation of hazardous materials.
2. The Costs Involved With Implementing Specific Safety and Security
Measures
    IME, PMA, Boyle Transportation, VOHMA, ONYX, ATA, and ARKEMA
provided comments regarding the costs of implementing enhanced safety
measures. Most comments revolve around the costs of physical security,
the impact of additional regulations on the explosives transportation
industry, and the cost of constructing and maintaining safe havens.
    Boyle Transportation, ONYX, and ATA express concern regarding the

dwindling number of carriers transporting explosives. According to
Boyle Transportation, implementation of SDDC MFTRP No. 1C eliminated 27
of 30 possible terminals as temporary storage facilities, representing
a more than 25% increase in carrier costs due to the inability to
perform logistics activities and maintenance at terminal facilities.
ATA indicates it is likely more requirements will lead to a niche
industry that transports these materials at a much greater cost. ATA
states requirements imposed upon this segment of the industry have led
to a significant contraction in the number of carriers willing to
transport explosives. Currently more than 500,000 carriers are
registered with the FMCSA, and approximately 19 transport ammunition
and explosives for DOD. Similarly, ONYX indicates it incurs
approximately a 15-20% increase over the typical expense of
transporting using a single driver when it uses dual drivers to
transport Division 1.1, 1.2 and 1.3 materials.
    Boyle Transportation and ARKEMA provide additional comments
regarding the number of safe havens and other storage locations for
explosives. Boyle Transportation notes that less-than-truckload
shipments were moved point-to-point as a result of carriers' inability
to use terminals, generating much more mileage than previously
consolidated shipments. ARKEMA indicates that, in an effort to meet
guidelines and secure capacity to move their goods, explosives
manufacturers might be forced to handle the transportation themselves
or hire specialized carriers to perform the transportation. According
to Boyle Transportation, a simple solution is to allow commercial
vehicles transporting explosives to stop at Federally designated safe
havens. In addition, Boyle Transportation states, ``Most carriers that
designed truck terminals for the handling and storage of explosives
used NFPA 498 as a guideline.''
3. The Related Safety or Productivity Benefits That Would Help Offset
Costs
    IME, PMA, Boyle Transportation, ONYX, and ATA provided comments in
regard to safety and productivity benefits available to offset the
costs of explosive storage standards. IME explains the key to
explosives safety is exposing the minimum amount of people to the
threat of an accidental explosion. Boyle Transportation states, ``The
safety benefit is insurance against the risk of a high consequence, low
probability event. Most of this benefit accrues to the general public
not the specific carrier.'' According to ATA, the hazardous materials
regulatory requirement to transport materials without undue delay has
tremendous safety and security benefits.
4. The Effect That Implementing Specific Safety and Security Measures
Will Have on the Human Environment
    IME, PMA, Boyle Transportation, ONYX, and ATA provided comments on
the impact of implementing safety and security measures on the human
environment. The comments were divided on this issue. IME expects
little impact on the human environment. Boyle Transportation and ONYX
indicate that reducing the safety and security risks associated with
the transportation of explosives will benefit the public and regulated
community. PMA and ATA suggest that disruptions in the flow of cargo
may cause significant environmental and land use issues.
5. Ways or Incentives That May Be Appropriate To Consider in Promoting
Adoption of Safety and Security Measures in Conjunction With or
Separate From General Regulatory Requirements
    IME, NAAHAC, PMA, Boyle Transportation, ONYX, and ATA provided
comments in response to this question. Generally, the commenters
indicate citizens will benefit from the safe transportation of
explosives and, therefore, it is beneficial for the government to
promote such regulations. Funding methods provided by the commenters
include reduced insurance rates, increased inspection protocols or
frequencies, new or increased fines, tax credits or direct grants,
surcharges or user fees on shipments, and research and education.
Commenters suggest that these types of measures could be utilized to
fund a more extensive safe haven program that accounts for the true
costs and benefits it imposes.
6. The Overall Safety and Security of Safe Havens for Temporary Storage
During Transportation, Including Suggestions for Improving Security at
Safe Havens or Alternatives to the Use of Safe Havens
    The comments are divided when it comes to the safety and security
of safe havens; however, commenters generally agree that the addition
of accessible storage locations aids in the safe and secure
transportation of explosives.
    PMA, Baker Hughes, VOHMA, ATA, and SAAMI express concern regarding
any mandated use of safe havens. Baker Hughes states, ``Restricting
shipments to major shipping lanes where safe havens would be located
would not allow us to efficiently service our customers. Shipments
would actually be in transit longer, thereby creating more risk rather
than less.'' VOHMA, ATA, and SAAMI indicate storing explosives and
other high-hazard materials in concentrated locations such as safe
havens may cause terrorist actions to be directed toward safe havens.
According to ATA, a driver's best defense may be to blend in with other
trucks on the road as well as in a rest area. ATA states, ``A standard
that allows trucks carrying extremely hazardous materials to be parked
in areas that meet Federal security standards may be more appropriate
than the use of designated safe havens.''
    IME, NAAHAC, Boyle Transportation, ASEPO, and DGAC support the use
of safe havens for the storage of explosives. ASEPO states, ``a
concerted effort on the part of the Federal government should be made
to use its vast resource, including its land, to facilitate the
creation of new safe havens in areas where those in private hands have
been closed.'' Boyle Transportation's comments indicate it agrees with
the incorporation of safe havens into the HMR; however, different
standards should be developed for temporary parking at truck stops and
carrier terminals (less than 4 hours) than for handling or storage
during transportation for up to 100 hours. IME and DGAC recommend the
incorporation of NFPA 498, Standard for Safe Havens and Interchange
Lots for Vehicles Transporting Explosives (2006 ed.) into the HMR. DGAC
goes on to state, to avoid frustration, ``DGAC believes that facilities
meeting NFPA 498, Standards for Safe Havens and Interchange Lots for
Vehicles Transporting Explosives (2006 ed.) should be recognized as
suitable safe havens.''
7. The Conditions and Circumstances Under Which Temporary Storage in
Safe Havens Should Be Required
    IME, NAAHAC, Boyle Transportation, and ONYX support the
performance-based standards provided in NFPA 498 and indicate they pave
that way for consistent reasonable requirements for in transit storage
facilities provided they are readily available. However, IME requests
``FMCSA strike its vague and arbitrary condition at 397.5(d)(3)'' which
indicates a safe haven is a location approved by state or local
government for the unattended parking of Division 1.1, 1.2, or 1.3
materials. In addition ONYX states, it would be ``unreasonable for the
other lower-hazard explosive materials, particularly when these
materials are present in

small quantities, as is most often the case (e.g., the less-than-
truckload (LTL) shipment of 2 flares classified as a Division 1.4 along
with other hazardous wastes)'' to comply with the safe haven
requirements. Similarly, NAAHAC states, ``Once established, temporary
storage should apply to placardable quantities of Class 1 materials . .
.''
    ATA, VOHMA, and DOE state their concerns regarding the mandated use
of safe havens. ATA indicates that the current number of safe havens
has been inadequate for years, and ``Until there is an extensive
network of safe havens, it is unreasonable to require carriers to use
safe havens in the transportation of highly hazardous materials.'' DOE
and VOHMA express concern regarding the spacing and accessibility of
safe havens. DOE indicates we must take into account a driver's ability
to reach a designated safe haven based on weather conditions,
emergencies, or other factors causing unanticipated delays. VOHMA's
concerns focus around the placement of safe havens and the likelihood
of frustrated shipments. VOHMA states, ``The cost associated with
frustrated cargoes for all goods is high, and certainly the costs
associated with frustrated high hazard shipments would be even
higher.''
8. Whether Specific Safety and Security Measures Should Be Limited to
Certain Explosives and, if so, Which Explosives Might Warrant Specific
Security or Safety Measures (i.e., to Which Explosives in Division 1
Through Division 6 and in What Quantity Should These Measures Apply)
    IME, NAAHAC, PMA, Boyle Transportation, ONYX, and ATA support
specific safety and security measures for certain explosives, but
differ on which measures should apply and which materials should be
subject. IME prefers the application of the safety and security
measures provided in SLP-27, which are applicable to explosives in
Division 1.1, 1.2, and 1.3. NAAHAC states, ``Specific safety and
security transportation measures should be limited to explosive
shipments that require placards.'' PMA recommends we follow the
standards provided in USCG requirements applicable to explosives
storage (33 CFR Part 126) as they apply to type and quantity of
materials. Boyle Transportation supports increased safety and security
measures for Division 1 through Division 1.4 explosives. In addition,
Boyle states, ``Shipments of explosives should require two drivers.''
ONYX indicates the use of safe havens for lower-hazard explosives
materials is not justified; however, it supports the current FMCSA
requirements for Division 1.1, 1.2, and 1.3 explosives to be attended
at all times. To limit extremely hazardous materials in one place, ATA
states, ``One concept that merits additional consideration is using the
concept of maximum net explosive mass as a means of limiting the
quantity of extremely hazardous materials that are allowed to be
present on any one transport vehicle, train, ship, or in any one
area.''
9. Whether We Should Consider Aggregation Limits on the Storage of
Explosives and Other High-Hazard Materials at a Single Facility During
Transportation
    Shell Chemical, NAAHAC, PMA, Baker Hughes, VOHMA, CGA, and AAR
oppose aggregation limits on the storage of explosives at a single
facility during transportation. Shell Chemical states, ``Limits on
storage would place a burden on certain locations and disrupt their
operational processes.'' NAAHAC expresses concern regarding the
likelihood of drivers being required to seek alternate safe haven due
to the fact that a facility had already reached its ``allowable''
quantity of Class 1 hazardous materials. NAAHAC indicates under such
circumstances the drivers may have to drive hundreds of miles to seek
an alternate parking location and possibly violate the FMCSA hours of
operation limit, providing for a greater risk.
    IME, Boyle Transportation, ONYX, and ATA indicate they may support
an aggregation limit on the amount of explosives stored at a single
facility while in transportation. IME states, ``Risk-based aggregation
limits on the storage of explosives and other high-hazard materials at
a single facility during transportation are appropriate.'' ATA supports
the concept of limiting the quantity based on a maximum net explosive
mass.
10. Whether We Should Consider Limits on the Time That a Shipment of
Explosives or Other High-Hazard Materials Could Be Stored During
Transportation
    Shell Chemical, IME, NAAHAC, PMA, ATA, and CGA indicate we should
not consider limits on the amount of time explosives or other high-
hazard materials may be stored during transportation. Shell Chemical
indicates time limits will have an enormous impact on the supply
systems for these materials and would do nothing more than shift the
risk from one jurisdiction to others. IME and CGA indicate the
requirement for materials to be transported without undue delay is
sufficient. CGA states ``DOT has also stated that anything should be
deliverable within 10 days. This was their reason to require a shipping
paper to be retained for 375 days before the recent change to the 2-
year retention period.''
11.Whether Shipping Documents Should Indicate That a Shipment Will Be
Stored at a Safe Haven or Other Facility During Transportation
    IME, Boyle Transportation, and ONYX agree that shipping documents
should provide the locations where a shipment will be stored during
transportation. IME states, ``Shipping documents, specifically the
route or trip plan, should indicate all stops which includes storage at
a safe haven or other facility during transportation.'' Boyle
Transportation states ``A documented route of travel (paper or
electronic) and tracking systems that detect out of route conditions
should be a requirement for all modes and stops for safe haven en route
should be identified. ONYX indicates it would support the addition of
storage locations on the route plan for Division 1.1, 1.2 or 1.3
materials but not for other explosives in Divisions 1.4, 1.5, and 1.6.
12. Whether There Are Additional Standards, Other Than Those Outlined
Above, That We Should Take Into Consideration
    NAAHAC, PMA, Boyle Transportation, and CGA indicated we may want to
review additional standards and programs for developing uniform storage
requirements for explosives during transportation. Those standards and
programs are listed below:
     Uniform Fire Code and International Fire Code;
     Requirements for a Declaration of Security under Coast
Guard regulations;
     Hazards of Electromagnetic Radiation to Ordnance (HERO)
certification required by DOD for any electronic system in a commercial
vehicle used to transport DOD munitions.
     Safety Permit regulation to transport highly toxic (Zone
A) and bulk quantities of dangerous goods
     Risk Management Programs--regulate the amounts of highly
toxic dangerous goods stored at a facility
     CDL hazmat endorsement
     Driver background checks
     State laws pertaining to dangerous goods transport

13. Whether Development of an Industry or Consensus Standard or
Regulation Should Be Pursued in This Area
    Shell Chemical, Boyle Transportation, and ATA highlight the
importance of involving industry representatives in the rulemaking
process. IME and NAAHAC support our development of a rulemaking in this
area. IME calls for the adoption of the consensus standard, NFPA 498.
PMA, ONYX, and CGA indicate they do not support regulatory action in
this area. ONYX indicates it supports the use and operation of safe
havens, but ``does not believe there is a need for PHMSA to pursue
regulations for the transportation of explosive materials.''

IV. Public Meeting

    We are holding a public meeting on Thursday, August 7, 2008 at U.S.
DOT headquarters located at 1200 New Jersey Ave, SE., Washington, DC
20590. The meeting will begin at 9 a.m. in conference room 6 of our
Conference Center, which is located in the atrium of the West Building.
The main visitor's entrance is located in the West Building, on New
Jersey Avenue and M Street. Upon entering the lobby, visitors must
report to the security desk. Visitors should indicate that they will be
attending the Explosives Storage Public Meeting and wait to be escorted
to the Conference Center. Due to the limited amount of parking around
DOT Headquarters, use of public transit is strongly advised. DOT is
served by the Navy Yard Metrorail Station (Green line). The closest
exit to DOT Headquarters is the Navy Yard exit. The West building is
located diagonally across M Street from the Navy Yard Metrorail
Station.
    The public meeting will focus on safety issues associated with the
temporary storage of explosives during transportation. PHMSA encourages
all interested persons, including state and local officials, emergency
response personnel, and explosives shippers and carriers, to
participate in this meeting. We would like to use this forum to promote
a dialogue among all interested stakeholders to help us identify the
most appropriate strategies for enhancing the safe storage of
explosives during transportation. Any person wishing to participate in
the public meeting should provide their name and organization to Ben
Supko or Susan Gorsky, by telephone or in writing no later than July
24, 2008. Providing this information will facilitate the security
screening process for entry into the building on the day of the
meeting. Participants do not need to prepare oral comments, but rather,
be prepared to take part in an open discussion on issues raised by the
comments summarized above. Some questions to consider before the
meeting include:
    1. Are safe havens currently available? How many? Where are they
located?
    2. Would a network of safe havens provide a safety benefit?
    3. What is the value of a rest stop for the vehicle and the driver?
    4. Would companies use safe havens or continue using driver teams?
Does one promote safety more than the other?
    5. Would the adoption of an industry consensus standard such as
NFPA 498 promote the development of safe havens?
    6. Do facilities that are being used as safe havens meet the
requirements of NFPA 498?
    7. Would you expect companies to convert existing facilities that
meet NFPA 498 into safe havens?
    8. How can we improve on the safety measures provided in NFPA 498?
Should we include aggregation limits, time limits, etc.?
    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?
    10. Would it be more appropriate to align safe havens with the SDDC
MFTRP No.1C than a consensus standard such as NFPA 498?
    11. What is the impact of eliminating the requirement for safe
havens to be approved by Federal, state, or local government officials?
    12. Would state and local governments allow the development of safe
havens without prior approval?
    13. Are zoning restrictions the primary force against the
development of safe havens?
    14. What emergency response needs must be taken into consideration
when selecting a location for a safe haven and how should they be
addressed?
    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?
    16. What costs apply to the operation of safe havens?
    17. Would safe haven operators charge a fee to carriers for
allowing them to use their safe haven?
    18. Is the concept of temporary parking (less than 4 hours) at
truck stops and carrier terminals a sufficient alternative to safe
havens?
    We also urge interested parties to identify issues we may have
overlooked in the ANPRM. For example, the ANPRM made no mention of a
final report entitled, ``Recommended National Criteria for the
Establishment and Operation of Safe Havens'' that was published in
November of 1990 by the Commercial Vehicle Safety Alliance (CVSA). The
CVSA report may be outdated, but it did address available safe havens,
future locations for safe havens, a national standard for safe havens,
and several other issues pertinent to this docket. For persons
interested in preparing comments or viewing the CVSA report, it is
accessible by PHMSA docket number (PHMSA-2005-22987) on the Federal
eRulemaking Portal (on the Web site http://www.regulations.gov).

V. Regulatory Analyses and Notices

A. Executive Order 12866: Regulatory Planning and Review

    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.'' We therefore
request comments, including specific data if possible, concerning the
costs and benefits that may be associated with adoption of specific
storage requirements for carriers that include explosives storage as
part of their transportation cycle.

B. Executive Order 13132: Federalism

    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 invite State and local governments
with an interest in this rulemaking to comment on the effect that
adoption of specific storage requirements for carriers that transport
and store explosives in commerce may have on State or local safety or
environmental protection programs.

C. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175 requires agencies to assure meaningful and
timely input from Indian tribal government representatives in the
development of rules that ``significantly or uniquely affect'' Indian
communities and that impose ``substantial and direct

compliance costs'' on such communities. We invite Indian tribal
governments to provide comments as to the effect that adoption of
specific storage requirements for explosives that are transported in
commerce may have on Indian communities.

D. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.), we must consider whether a proposed rule would have a
significant economic impact on a substantial number of small entities.
``Small entities'' include small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000. If your business or organization is a small
entity and if adoption of specific storage requirements applicable to
explosives transported in commerce could have a significant economic
impact on your operations, please submit a comment to explain how and
to what extent your business or organization could be affected.

E. 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. Interested parties are
invited to address the potential environmental impacts of regulations
applicable to the storage of explosives transported in commerce. We are
particularly interested in comments about safety measures that would
provide greater benefit to the human environment, or on alternative
actions the agency could take that would provide beneficial impacts.

F. 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.

G. Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier
number (RIN) 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
number contained in the heading of this document may be used to cross-
reference this action with the Unified Agenda.

H. Privacy Act

    Anyone is able to search the electronic form for all comments
received into any of our dockets by the name of the individual
submitting the comments (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 (65 FR 19477) or you may visit http://
www.regulations.gov.

    Issued in Washington, DC, on June 30, 2008, under authority
delegated in 49 CFR part 106.
Theodore L. Willke,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. E8-15119 Filed 7-2-08; 8:45 am]

BILLING CODE 4910-60-P