# Hazardous Materials: Requirements for the Storage of Explosives During Transportation

- **operation:** document
- **citation:** 75 FR 43906
- **title:** Hazardous Materials: Requirements for the Storage of Explosives During Transportation
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** proposed
- **official:** true
- **published on:** 2010-07-27
- **effective on:** Not available
- **summary:** PHMSA, in coordination with the Federal Motor Carrier Safety Administration (FMCSA), is proposing to enhance existing attendance requirements for explosives stored during transportation by designating the National Fire Protection Association (NFPA) standard 498 as the Federally approved standard for the construction and maintenance of safe havens used for unattended storage of Division 1.1, 1.2, and 1.3 explosives.
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- **source url:** https://www.federalregister.gov/documents/2010/07/27/2010-18368/hazardous-materials-requirements-for-the-storage-of-explosives-during-transportation
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Federal Register, Volume 75 Issue 143 (Tuesday, July 27, 2010) [Federal Register Volume 75, Number 143 (Tuesday, July 27, 2010)] [Proposed Rules] [Pages 43906-43914] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2010-18368] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171 and 177 [Docket No. PHMSA-2005-22987 (HM-238)] RIN 2137-AE06 Hazardous Materials: Requirements for the Storage of Explosives During Transportation AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: PHMSA, in coordination with the Federal Motor Carrier Safety Administration (FMCSA), is proposing to enhance existing attendance requirements for explosives stored during transportation by designating the National Fire Protection Association (NFPA) standard 498 as the Federally approved standard for the construction and maintenance of safe havens used for unattended storage of Division 1.1, 1.2, and 1.3 explosives. DATES: Comments must be received by September 27, 2010. ADDRESSES: You may submit comments identified by the docket number PHMSA-2005-22987 by any of the following methods: Federal eRulemaking Portal: Go to http://www.regulations.gov . Follow the online instructions for submitting comments. Fax: 1-202-493-2251. Mail: Docket Operations, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590. Hand Delivery: To Docket Operations; Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Instructions: All submissions must include the agency name and docket number for this rule. Note that all comments received will be posted without change, including any personal information provided. Please see the discussion of the Privacy Act below. Docket: For access to the docket to read background documents and comments received, go to http://www.regulations.gov at any time or to Room W12-140, Ground Level, Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Ben Supko, Office of Hazardous Materials Standards, (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: I. Current Federal Requirements Applicable to Explosives Stored During Transportation A. Hazardous Materials Regulations (HMR), 49 CFR Parts 171-180 Transportation includes the storage of materials ``incident to the[ir] movement.'' (49 U.S.C. 5102(13)). The HMR require hazardous materials stored incidental to movement to meet all applicable requirements for packaging, hazard communication (including shipping papers and emergency response information), and handling that apply when shipments are actually moving in transportation. The HMR include specific carrier requirements for transportation of hazardous materials by rail, air, vessel, and highway, including requirements for loading and unloading, blocking and bracing, stowage, segregation, and compatibility (49 CFR parts 174, 175, 176, and 177, respectively). Explosive (Class 1) materials are among the most stringently regulated hazardous materials under the HMR. The HMR define a Class 1 material as any substance or article that is designed to function by explosion--that is, an extremely rapid release of gas or heat--or one that, by chemical reaction within itself, functions in a similar manner even if not designed to do so (49 CFR 173.50(a)). Class 1 materials are divided into six divisions depending on the degree and nature of the explosive hazard, as shown in the following table (49 CFR 173.50(b)). ---------------------------------------------------------------------------------------------------------------- Division Hazard Description of hazard Examples ---------------------------------------------------------------------------------------------------------------- 1.1............................. Mass explosion hazard....... Instantaneous explosion of grenades, mines, virtually the entire and package or shipment. nitroglycerin. 1.2............................. Projection hazard without a Fragments projected outward rockets and mass explosion hazard. at some distance. warheads. 1.3............................. Fire hazard and either a Fire and possible projection projectiles, minor projection hazard or of fragments outward at signal smoke, and minor blast hazard or both some distance. tracers for but not a mass explosion ammunition. hazard. 1.4............................. Minor explosion hazard...... Explosion largely confined ammunition, to the package and no airbags, and projection of fragments of model rocket any appreciable size or motors. range is expected. 1.5............................. Very insensitive explosive.. Mass explosion hazard, but blasting agents low probability of and ammonia- initiation or detonation nitrate fuel oil while in transportation. mixture. 1.6............................. Extremely insensitive Negligible probability of insensitive article. accidental initiation or article and propagation. military. ---------------------------------------------------------------------------------------------------------------- [[Page 43907]] The HMR prohibit transportation of an explosive unless it has been examined, classed, and approved by PHMSA's Associate Administrator for Hazardous Materials Safety (49 CFR 173.51). Separate provisions apply to the transportation of new explosives for examination or developmental testing, explosives approval by a foreign government, small arms cartridges, and fireworks manufactured in accordance with APA Standard 87-1 (49 CFR 173.56). Each approval granted by the Associate Administrator contains packaging and other transportation provisions that must be followed by a person who offers or transports the explosive material. In addition to the specific requirements in the approval, the HMR require explosives to be marked and labeled and/or placarded to indicate the explosive hazard. Explosives shipments generally must be accompanied by shipping papers and emergency response information. The same requirements apply to the transportation of hazardous materials whether the materials are incidentally stored or actually moving. In addition, any person who offers for transportation in commerce or transports in commerce a shipment of explosives for which placarding is required under the HMR must develop and implement security plans (49 CFR 172.800(b)). A security plan must include an assessment of possible transportation security risks for the covered shipments and appropriate measures to address the identified risks. At a minimum, a security plan must include measures to prevent unauthorized access to shipments and to address personnel and en route security (49 CFR 172.802(a)). The en route security element of the plan must include measures to address the security risks of the shipment while it is moving from its origin to its destination, including shipments stored incidental to movement (49 CFR 172.802(a)(3)). Thus, a facility at which a shipment subject to the security plan requirements is stored during transportation must itself be covered by the security plan. Security plan requirements are performance-based to provide shippers and carriers with the flexibility necessary to develop a plan that addresses a person's individual circumstances and operational environment. B. Federal Motor Carrier Safety Regulations (FMCSRs), 49 CFR Parts 350- 397 Motor carriers that transport hazardous materials in commerce must also comply with the FMCSRs addressing driver qualifications; vehicle parts and accessories; driving requirements and hours of service; vehicle inspection, repair and maintenance; driving and parking rules for the transportation of hazardous materials; hazardous materials safety permits; and written route plans. The FMCSRs include requirements for storage of explosives incidental to movement. In accordance with the FMCSRs, a motor vehicle that contains Division 1.1, 1.2, or 1.3 explosives must be attended at all times, including during incidental storage, unless the motor vehicle is located on the motor carrier's property, the shipper or consignee's property, or at a safe haven (49 CFR 397.5). Under the FMCSRs, a safe haven is an area specifically approved in writing by Federal, State, or local government authorities for the parking of unattended vehicles containing Division 1.1, 1.2, and 1.3 explosive materials (49 CFR 397.5(d)(3)). The decision as to what constitutes a safe haven is generally made by the local authority having jurisdiction over the area. The FMCSRs do not include requirements for safety or security measures for safe havens. In addition, the FMCSRs require any person who transports more than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3 material or an amount of a Division 1.5 (explosive) material that requires placarding under Subpart F of Part 172 of the HMR to hold a valid safety permit (49 CFR 385.403(b)). Persons holding a safety permit and transporting Division 1.1, 1.2, and 1.3 materials must prepare a written route plan that meets the requirements of Sec. 397.67(d), which avoids heavily populated areas, places where crowds are assembled, tunnels, narrow streets, or alleys. Finally, a motor vehicle containing a Division 1.1, 1.2, or 1.3 explosive may not be parked on or within five feet of the traveled portion of a public highway or street; on private property without the consent of the person in charge of the property; or within 300 feet of a bridge, tunnel, dwelling, or place where people work or congregate unless for brief periods when parking in such locations is unavoidable (49 CFR 397.7(a)). II. Previous Rulemaking Activity in This Matter A. July 16, 2002 ANPRM (HM-232A) On July 16, 2002, FMCSA and PHMSA's predecessor agency (the Research and Special Programs Administration) published an advance notice of proposed rulemaking under Docket HM-232A (67 FR 46622) entitled ``Security Requirements for Motor Carriers Transporting Hazardous Materials.'' In the ANPRM, we examined the need for enhanced security requirements for motor carrier transportation of hazardous materials. We requested comments on the issue of storage of explosives at safe havens, as well as a variety of security measures generally applicable to a broader range of hazardous materials. B. November 16, 2005 ANPRM (HM-238) Some of the comments submitted in response to the July 16, 2002 ANPRM contained recommendations that the current requirements applicable to the storage of explosives during transportation should be reevaluated to ensure that they adequately account for potential safety and security risks. As a result, PHMSA and FMCSA initiated this rulemaking to evaluate current standards for the storage of explosives in transportation. We published a new ANPRM on November 16, 2005 (70 FR 69493), in which we summarized government and industry standards for explosives storage (which vary greatly by mode of transportation, type of explosives, and whether the explosive is in transportation) and requested comments on a list of concerns regarding the risks posed by the storage of explosives while in transportation. The November 16, 2005 ANPRM is accessible through the Federal eRulemaking Portal ( http://www.regulations.gov ), at docket number PHMSA-2005-22987). In the ANPRM, PHMSA solicited comments concerning measures to reduce the risks posed by the storage of explosives while they are in transportation and whether regulatory action is warranted. We invited commenters to address issues related to security and storage of other types of high-hazard materials. In addition, the ANPRM provided detailed information addressing the following regulations and industry standards: United States Coast Guard Requirements applicable to explosives storage (33 CFR Parts 101-126) Bureau of Alcohol, Tobacco, Firearms, and Explosives Regulations for explosives in commerce (27 CFR Part 555) National Fire Protection Association (NFPA) 498, ``Standard for Safe Havens and Interchange Lots for Vehicles Transporting Explosives'' (NFPA 498) Institute of Makers of Explosives Safety Library Publication No. 27, ``Security in Manufacturing, Transportation, Storage and Use of Commercial Explosives'' [[Page 43908]] Surface Deployment and Distribution Command, ``SDDC Freight Traffic Rules Publication NO. 1C (MFTRP NO. 1C)'' C. July 3, 2008 ANPRM and Public Meeting On July 3, 2008 PHMSA published a further ANPRM under this docket to re-open the comment period, and announce a public meeting (73 FR 38164) to provide an additional opportunity for interested persons to submit more focused comments on safety issues associated with the storage of explosives transported by highway and standards for establishing, approving, and maintaining safe havens for the temporary storage of explosives during motor vehicle transportation. As discussed above, there are currently no minimum or uniform criteria for Federal, State, or local governments to rely on for the approval of safe havens. III. Comments on the July 3, 2008 ANPRM A. Public Meeting Representatives of the following organizations and government agencies attended the public meeting held on August 7, 2008 (a transcript of the public meeting is accessible through the Federal eRulemaking Portal ( http://www.regulations.gov ): National Volunteer Fire Council, Commercial Vehicle Safety Alliance (CVSA), BNA Daily Environmental Report, Baker Hughes Corporation, Sporting Arms and Ammunition Manufacturers Association, Institute of Makers of Explosives (IME), Orica, USA, Science Applications International Corporation, Automotive Occupant Restraint Council (Autoliv Inc.), Delphi Corporation, National Fire Protection Association, Bureau of Alcohol, Tobacco, Firearms & Explosives, Department of Justice (ATF), Explosives Safety Board, Department of Defense (DDESB), Office of Packaging and Transportation Safety, Department of Energy, Surface Deployment and Distribution Command. Under FMCSA regulations a motor vehicle which contains a Division 1.1, 1.2, or 1.3 material must be attended at all times by the driver or a qualified representative of the motor carrier that operates it or be parked in a safe haven. A safe haven is an area specifically approved in writing by Federal, State, or local government authorities for the parking of unattended vehicles containing Division 1.1, 1.2, or 1.3 explosive materials. Except for the fact that States select and approve locations where safe havens can be placed, there are no specific safety standards provided in the FMCSRs for safe havens. Participants at the public meeting generally noted that safe havens are not generally available for use by commercial carriers of explosives and that the State/local government approval process can be difficult, and supported adoption of an industry consensus standard, such as NFPA 498. One solution discussed in the public meeting is the incorporation by reference of an existing, widely used, and accepted standard--such as NFPA 498. According to public meeting participants, NFPA 498 is straightforward, designed for highway transportation, and intended to enhance FMCSA standards. The key focus of NFPA 498 is to provide safety guidelines, such as vehicle inspection, five feet space between trailers, notification of local emergency response of the type and quantity of materials authorized, and no cutting or welding repairs, firearms, or smoking allowed. In addition, NFPA 498 provides some very general security requirements such as a requirement for a security guard or surveillance equipment to protect a safe haven from trespassers. During the meeting, CVSA noted that its 1990 report entitled ``Recommended National Criteria for Establishment and Operation of Safe Havens'' (a copy is in the docket) was the most recent effort to catalogue safe havens in the United States. In a brief summary of that report, CVSA stated that the approval process for a safe haven varied greatly between States and even towns of a single State. Further, CVSA indicated that the system in place at the time of the report was susceptible to arbitrary and opaque decisions concerning the designation of safe havens, with little or no provision for public participation or comment. CVSA suggested that relying on State or local governments to designate and operate safe havens has not been a successful strategy. Instead, private entities use their own facilities to safely store explosives during transportation, but do not make those facilities generally available because of liability concerns. CVSA stated that DOD operates safe havens for military shipments, but that these facilities are not available to commercial carriers. IME pointed out that the sensitivity of DOD munitions dictates stringent storage standards, but the same standards would likely be excessive for commercial products. IME also suggested that because the explosives industry has implemented a variety of measures to address storage and attendance issues, such as dual drivers, a nationwide network of safe havens is not necessary. Rather, there appears to be a need for safe havens near port locations or transportation end points, such as Seattle, Washington; Savannah, Georgia; Louisville, Kentucky; anywhere in West Virginia; and Morgan, Louisiana. ATF emphasized that the location of a safe haven is critical to ensure both safety and security, noting that a facility should be removed to the extent possible from populated areas and suggesting that minimum distances should be considered. In response, IME recommended a risk analysis approach for locating safe havens, using tools such as the Institute of Makers of Explosives Safety Analysis for Risk (IMESAFR) software developed by IME. According to IME, IMESAFR is a probabilistic risk assessment tool used to calculate risk to personnel from explosives facilities. As detailed by IME, the system provides a sophisticated methodology for determining appropriate safety measures, because it assesses the unique characteristics of a particular site. DDESB suggested the use of a risk assessment approach that considers ATF quantity distances. IME discussed the differences between transportation storage and permanent storage and suggested that while the ATF requirements for the permanent storage of explosives have proven to be effective in ensuring the protection of the general public, those requirements may not be necessary or practical for temporary storage facilities. B. Written Comments We received written comments in response to the July 3, 2008 ANPRM from the following five entities (available for review through the Federal eRulemaking Portal ( http://www.regulations.gov ): ------------------------------------------------------------------------ Commenter Document No. ------------------------------------------------------------------------ R & R Trucking, Inc. (R & R Trucking).. PHMSA-2005-22987-0027 [[Page 43909]] Surface Deployment and Distribution PHMSA-2005-22987-0028 Command, (SDDC). Sporting Arms and Ammunition PHMSA-2005-22987-0030 Manufacturers Institute, Inc (SAAMI). Boyle Transportation................... PHMSA-2005-22987-0031 Institute of Makers of Explosives (IME) PHMSA-2005-22987-0032 ------------------------------------------------------------------------ Generally, the comments indicate that a lack of consistent regulations for the storage of explosives creates a safety concern. However, the comments do not support a prescriptive solution that could limit transportation options or create an undue burden on a particular mode of transportation. Commenters suggest that an effective approach would be one that promotes flexibility and provides several storage options for explosives while they are in transportation. As indicated above, the intention of the July 3, 2008 ANPRM was to gather information from commenters to help us make a determination regarding further regulatory action. The ANPRM posed several questions and solicited commenter response. Below we paraphrase the 18 questions asked in the ANPRM, provide a summary of the comments applicable to the safe transportation of explosives, and provide our response. (1) Are safe havens currently available? How many? Where are they located? Boyle Transportation indicates that there are no commercial safe havens that are available to any motor carrier or transporter of explosives. Boyle Transportation notes that the Department of Defense (DOD) provides secure holding areas at military facilities (some sites require attendance by drivers while parked) but only for motor carriers that are transporting DOD explosives shipments, and that a few motor carriers and explosives manufacturers have facilities for temporary parking of trailers loaded with explosives. IME states that it has only anecdotal information on the location and operational state of third-party safe havens. IME indicates that given the absence of standards for these sites, this information is likely not reliable, with the exception of sites meeting DOD standards. R&R Trucking states that public safe havens are not currently available. The safe havens utilized by R&R Trucking are private facilities owned and operated by R&R Trucking. Sporting Arms and Ammunition Manufacturers Institute, Inc. (SAAMI) indicates that safe havens generally do not exist and references the report CVSA prepared as supporting documentation. (2) Would a network of safe havens provide a safety benefit? Boyle Transportation indicates that a network of safe havens would provide a safety benefit. IME suggests safe havens provide a benefit if they are operated in accordance with risk-based performance standards and located at cargo delivery chokepoints, such as ports. R&R Trucking states that safe havens would provide a safety benefit for emergency situations and hours-of-service relief. SAAMI agrees that a network of safe havens would provide a safety benefit, but notes that there are other options that would obviate the need for such network, including short distance hauling or the use of dual drivers. SAAMI states that safe havens are intended as one alternative to satisfy the applicable attendance requirements for Division 1.1, 1.2, and 1.3 explosives, but suggests that establishment of an extensive safe havens network for routine use by commercial motor carriers likely would not provide a sufficient safety benefit to offset associated costs. (3) What is the value of a rest stop for the vehicle and the driver? Boyle Transportation states that safe havens are necessary since most shippers and consignees do not operate 24 hours a day, seven days a week and suggests that without a safe haven either en route or at the destination for arrival during non-working hours, even team drivers would eventually run out of available hours of service when complying with 49 CFR 397.5. IME and R&R Trucking note rest stops enable a driver to comply with hours-of-service requirements and to address fuel, food, rest, and other personal needs. According to IME, the main benefit of a safe haven, given the safety and security preference for team drivers of Division 1.1, 1.2, and 1.3 materials to meet attendance requirements for long-haul (greater than hours-of-service) trips, is to serve as a buffer between shipping time, transit time and delivery time. IME suggests that a safe haven can be used to stage vehicles prior to delivery, thereby avoiding situations where vehicles must remain on highways or parked at various locations with unknown risk and response capabilities. SAAMI suggests that existing attendance requirements should be modified to allow short absences, e.g. for fueling, eating or using a restroom. (4) Would companies use safe havens or continue using driver teams? Does one promote safety more than the other? Boyle Transportation notes that safe havens are not a replacement for team drivers since team drivers are required to provide constant attendance and surveillance and suggests that the use of team drivers promotes safety since it is impractical to expect that a single driver would always be able to reach a safe haven without having to stop en route and temporarily leave the motor vehicle unattended. IME agrees that companies will continue to prefer team drivers to meet attendance requirements for Division 1.1, 1.2, and 1.3 materials for trips greater than one driver's hours-of-service period because teams provide faster delivery, better use of equipment, less fuel consumption and enhanced security while the vehicle is in motion or temporarily parked at a rest stop. Additionally, driver teams are healthier and less likely to have accidents than driving alone. IME suggests that there is a need for incidental storage locations as a buffer between shipping time, transit time, and delivery time. R&R Trucking states that generally motor carriers use a single driver for local deliveries without a required layover; for longer deliveries, whether a single driver or a team driver is used. R&R Trucking suggests that the value of a safe haven with single or team drivers is based on its location and availability and further that providing relief from current attendance requirements would promote safety. SAAMI agrees that motor carriers will continue to utilize team drivers and short-haul deliveries to comply with hours-of-service and attendance requirements. In addition, SAAMI contends that there are significant liability issues associated with the use of safe havens open to all operators; SAAMI does not consider the concept viable. [[Page 43910]] (5) Would the adoption of standards such as NFPA 498 promote the development of safe havens? Boyle Transportation answers ``possibly.'' However, it indicates that DOD accounts for a majority of explosives shipments and suggests that PHMSA should work with DOD and the Transportation Security Administration to establish consistent transport rules for explosives and criteria for safe havens. IME indicates that to enable motor carriers to meet the attendance requirement of 49 CFR 397.5, it supports inclusion in the HMR of performance standards based on those contained in Chapter 4 of NFPA 498 as a replacement for the current requirement for a location approved by State, local, or Federal authorities. IME indicates that it supports providing notice to States and localities that explosives will temporarily be stored at a safe haven in their jurisdiction and requiring a safe haven to conform with local zoning ordinances, provided such requirements would not act as de facto bans on explosives storage in a given jurisdiction. IME suggests that PHMSA-adopted HMR standards that are backed by the agency's preemption authority in 49 U.S.C. 5125 would inject a degree of certainty into the process and could encourage investment in such properties. R&R Trucking agrees that adoption of a DOT standard could encourage some States to designate safe havens. Similarly, SAAMI indicates that safe havens might expand to a limited degree, e.g., near high volume areas of mining or ports, if the requirements for authorization, operation and site selection were standardized and suggests that performance standards could be added to PHMSA regulations to aid those interested in establishing a safe haven. (6) Do facilities that are being used as safe havens meet the requirements of NFPA 498? Boyle Transportation, R&R Trucking, and SAAMI all state that some safe havens may meet the NFPA 498 standards, while others conform with DOD standards, or local standards or requirements. IME suggests that DOD-approved safe havens exceed the standard provided in NFPA 498. (7) Would you expect companies to convert existing facilities that meet NFPA 498 into safe havens? Boyle Transportation answered ``yes,'' if PHMSA issues regulations that incorporate NFPA 498. IME and R&R Trucking suggest that the decision to convert existing facilities to meet NFPA 498 requirements would be driven by market considerations. (8) How can PHMSA improve on the safety measures provided in NFPA 498? Should a regulation for safe havens include aggregation limits, time limits, etc.? R&R Trucking states that the NFPA 498 standard is satisfactory, but that a carrier or safe haven operator should be permitted to improve on these standards as they see fit. SAAMI suggests that a safe haven regulation should include both time and aggregation limits with some flexibility for the facility to accept vehicles that would exceed the aggregation limits if refusing entry would increase a safety risk. IME opposes per vehicle aggregation limits, suggesting that such limits would have the effect of putting more vehicles on the road, adding to congestion, wasting fuel, and increasing the opportunity for accident or mischief. According to IME, the ability to fully load a truck means fewer trucks, fewer trips, fewer miles traveled, and less exposure to accidents or incidents. Further, IME suggests that any site aggregation and/or time limits should be flexible in terms of system- wide impact--turning vehicles away because of the aggregation limits, when they need a place to stop, or pushing vehicles out when time limits expire when they cannot make a delivery will just put vehicles on the road, adding more miles, more exposure, more pressure to remove placards, or other undesirable outcomes. IME concludes that if time/ aggregation limits are established and exceeded, local emergency response authorities should be notified. (9) If we incorporate by reference NFPA 498 into the HMR, should we expect a drop in the number of carriers similar to what occurred when DOD implemented SDDS MFTRP No. 1C? The commenters generally do not expect that the number of carriers transporting explosives would drop if PHMSA adopted a safe haven standard based on NFPA 498 because carriers primarily rely on dual drivers or short hauls to meet attendance requirements. IME indicates that the only way PHMSA would see a drop in carriers would be if a carrier relied on a ``safe haven'' as the only means to meet attendance requirements for the transportation of Division 1.1, 1.2, and 1.3 materials and the safe haven was eliminated because the site did not meet the new requirement. IME suggests that the drop in carriers that occurred with the implementation of SDDS MFTRP No. 1C resulted because the DOD standard is more than a site standard; it requires operational controls for the vehicles and drivers that carriers were unwilling or (unable) to meet. According to IME, adopting NFPA performance-standards would only affect the condition of the site and could result in fewer available safe haven sites rather than fewer carriers. (10) Would it be more appropriate to align safe havens with the Surface Deployment and Distribution Command (SDDC) MFTRP No. 1C than a consensus standard such as NFPA 498? The commenters generally agree that the NFPA 498 standard is more appropriate for commercial safe havens and note that it is the standard of choice for fire marshals and fire departments throughout the United States. The commenters suggest that the DOD standard is more stringent than required for commercial shipments and that it would be cost prohibitive to operate a commercial safe haven under the MFTRP. IME suggests that in times of heightened security, DOD should open its military sites to commercial shipments looking for a secure harbor. (11) What is the impact of eliminating the requirement for safe havens to be approved by Federal, State, or local government officials? IME indicates that this requirement is arbitrary and subjective and recommends that it should be replaced (not eliminated) with performance standards based on Chapter 4 of NFPA 498. R&R Trucking indicates that it would support a well written regulation that would allow carriers to make a sound business decision to operate safe havens; however, R&R asserts that State and local laws should still prevail on safe haven approval. (12) Would State and local governments allow the development of safe havens without prior approval? Commenters are uncertain whether State and local governments would allow the designation of safe havens with prior approval. SAAMI suggests that even without a formal approval process, State and local requirements related to zoning, building permits, and the like would still apply. IME recommends a number of measures to provide State and local governments a role in the process that would attract investment in safe havens while ensuring that State or local requirements do not result in de facto bans on the storage of explosives within a given jurisdiction. [[Page 43911]] (13) Are zoning restrictions the primary factor restricting the development of safe havens? All of the commenters agree that zoning restrictions are not insurmountable. Boyle Transportation indicates the initial investment and on-going operating expenses are the primary impediments to safe havens. IME contends that local officials take a ``NIMBY'' approach to this kind of investment and simply do not approve sites. IME also suggests that another factor inhibiting safe havens investment is the infrequent use of sites as opposed to other uses for such property. SAAMI notes that the primary factors are need and liability, and that an extensive safe haven network is not generally needed. SAAMI states that when there is a local need, it may be related to the operations of a particular company or group of companies in a high volume area. According to SAAMI, a company or group that wishes to establish a safe haven can calculate the cost versus benefit, estimate the risk of the operations for which they are responsible, and work with local governments to obtain building permits in an appropriate location. (14) What emergency response needs must be taken into consideration when selecting a location for a safe haven and how should they be addressed? Commenters generally agree that emergency response needs must be considered as part of the process for designating a safe haven. R & R Trucking notes that emergency response needs would vary depending on the location of the safe haven and the type and quantity of explosives authorized at the site. Access to the site, location of local fire department, capability of the local fire department, area to be evacuated in case of a fire, and the effect on the community (including traffic and businesses) in case of a fire or emergency should be considered. (15) Are areas that house carrier facilities (close proximity to transportation arteries, industrial parks, etc.) sufficient locations for safe havens in terms of emergency response capabilities? Boyle Transportation, R & R Trucking, and SAAMI all indicate that it would depend on several factors, including: Location of carrier facilities; quantity of explosives involved; and separation distances. According to the commenters each situation would need to be evaluated. IME indicates that carrier facilities would be sufficient locations. IME indicates also that performance standards based on Chapter 4 of NFPA 498 would minimize the possibility that fire (accidental or intentional) would propagate from one vehicle to another on the site. According to IME, fire is the biggest safety concern for in-transit explosives. (16) What costs apply to the operation of safe havens? Commenters generally agree that the costs would include those related to the acquisition of land for the facility, building permits and approvals, construction, and insurance. In addition, commenters note that operating costs would include salaries and training for personnel, taxes and fees, communication, fire suppression materials, office supplies, account auditing, buffer zone maintenance, and overhead (maintenance, electricity, water/sewer, etc.) (17) Would safe haven operators charge a fee to carriers for allowing them to use their safe haven? Boyle Transportation indicates that the primary issue would be the liability associated with the explosives shipments and suggests that third-party operators would require liability limitations from carriers. IME recommends that a safe haven regulation not include restrictions or limits on fees that would be charged and suggests that the market should dictate the amount of any such fees. R & R Trucking expresses concern that the costs could be prohibitive. SAAMI notes that operators of safe havens likely would be private rather than government entities and would operate a safe haven to support their own operations and not for industry at large due to liability issues. (18) Is the concept of temporary parking (less than 4 hours) at truck stops and carrier terminals a sufficient alternative to safe havens? Boyle Transportation indicates that temporary parking at truck stops and carrier terminals is a necessity. In most instances, a long- distance truckload shipment will need to stop at truck stops along the route (for example, the average transportation distance for DOD explosives shipments is nearly 1,000 miles). Carrier terminals are preferable to truck stops since hazardous materials workers at the terminals are trained and familiar with the hazards of the material being transported; also, fueling, change of drivers, and maintenance can be prioritized and accomplished in much less time than if these activities were to be completed at truck stops. Boyle Transportation recommends that carriers that transport explosives should be required to operate at least one safe haven so that there is a safe location for shipments that may exceed temporary parking limits or are frustrated due to the inability of the consignee to receive the freight. IME indicates that safe havens are an alternative to driver attendance. Explosives vehicles parked temporarily at a truck stop should be attended in accordance with current requirements, and drivers should notify the truck stop operator that the truck is present. IME further states that temporary parking should be permitted only for reasons of food, fuel, and other personal needs. If a truck stop is used as a staging facility, IME recommends that it should meet performance requirements based on those in Chapter 4 of NFPA 498. SAAMI indicates that in the absence of an extensive safe haven network, drivers must be permitted to use truck stops for rest, fueling, and to meet personal needs. SAAMI recommends that the current attendance requirements should be modified to allow drivers time at a rest stop for such purposes. General Comments In addition to answering the specific questions raised in the ANPRM, IME provided additional comments. IME suggests that given the intermodal nature of transportation and distances traveled by some shipments, a system of safe havens, especially where explosives are staged pending intermodal transfers, would provide a useful alternative to other forms of attendance. IME indicates that it does not believe that the current requirement for authorizing safe havens--simply obtaining the approval of a local, State, or Federal authority--is sufficient to ensure that safety and security precautions are in place or to ensure that the safe haven storage option is not arbitrarily denied. IME expresses concern with existing requirements applicable to explosives storage during transportation: 1. State or local approval of safe havens can, on the one hand, lead to approval of sites without adequate operational, administrative, or engineering controls, and on th
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