[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)).
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Description of
Division Hazard hazard Examples
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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.
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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