
[Federal Register: July 27, 2010 (Volume 75, Number 143)]
[Proposed Rules]               
[Page 43906-43914]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jy10-33]                         

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171 and 177

[Docket No. PHMSA-2005-22987 (HM-238)]
RIN 2137-AE06

 
Hazardous Materials: Requirements for the Storage of Explosives 
During Transportation

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: PHMSA, in coordination with the Federal Motor Carrier Safety 
Administration (FMCSA), is proposing to enhance existing attendance 
requirements for explosives stored during transportation by designating 
the National Fire Protection Association (NFPA) standard 498 as the 
Federally approved standard for the construction and maintenance of 
safe havens used for unattended storage of Division 1.1, 1.2, and 1.3 
explosives.

DATES: Comments must be received by September 27, 2010.

ADDRESSES: You may submit comments identified by the docket number 
PHMSA-2005-22987 by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations; Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this rule. Note that all comments received will be 
posted without change, including any personal information provided. 
Please see the discussion of the Privacy Act below.
    Docket: For access to the docket to read background documents and 
comments received, go to http://www.regulations.gov at any time or to 
Room W12-140, Ground Level, Washington, DC between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ben Supko, Office of Hazardous 
Materials Standards, (202) 366-8553, Pipeline and Hazardous Materials 
Safety Administration, U.S. Department of Transportation, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Current Federal Requirements Applicable to Explosives Stored During 
Transportation

A. Hazardous Materials Regulations (HMR), 49 CFR Parts 171-180

    Transportation includes the storage of materials ``incident to 
the[ir] movement.'' (49 U.S.C. 5102(13)). The HMR require hazardous 
materials stored incidental to movement to meet all applicable 
requirements for packaging, hazard communication (including shipping 
papers and emergency response information), and handling that apply 
when shipments are actually moving in transportation. The HMR include 
specific carrier requirements for transportation of hazardous materials 
by rail, air, vessel, and highway, including requirements for loading 
and unloading, blocking and bracing, stowage, segregation, and 
compatibility (49 CFR parts 174, 175, 176, and 177, respectively).
    Explosive (Class 1) materials are among the most stringently 
regulated hazardous materials under the HMR. The HMR define a Class 1 
material as any substance or article that is designed to function by 
explosion--that is, an extremely rapid release of gas or heat--or one 
that, by chemical reaction within itself, functions in a similar manner 
even if not designed to do so (49 CFR 173.50(a)). Class 1 materials are 
divided into six divisions depending on the degree and nature of the 
explosive hazard, as shown in the following table (49 CFR 173.50(b)).

----------------------------------------------------------------------------------------------------------------
            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 the other hand, act as a ban when 
practically no risk exists. PHMSA should revise 49 CFR 397.5(d)(3), to 
include performance standards for safe havens. Requirements based on 
Chapter 4 of NFPA 498--Standard for Safe Havens and Interchange Lots 
for Vehicles Transporting Explosives, edition 2006, National Fire 
Protection Association

[[Page 43912]]

would provide an adequate performance standard for safe havens.
    2. There currently is no mechanism under the HMR for reporting 
thefts or losses. The HMR should either incorporate the ATF requirement 
on how to report thefts and losses at 27 CFR 555.30(d), or adopt its 
own theft/loss reporting requirement.
    3. The requirement to have an ``unobstructed field of view'' of the 
vehicle being attended, set forth in Sec.  397.5(b)(3), should be 
revised to allow for either in-person or electronic monitoring at safe 
havens.
    IME indicates the risk assessment for a safe haven should take into 
consideration the probability of an incident on-site (both accidental 
and intentional), the consequences of such an incident, and the 
exposure of personnel. There are many acceptable ways in which the risk 
assessment could be conducted, but IME encourages PHMSA to recognize 
the software model IMESAFR (Institute of Makers of Explosives Safety 
Analysis for Risk; IMESAFR was developed by IME in conjunction with APT 
Research, Inc.) is a probabilistic risk assessment tool used to 
calculate risk to personnel from explosives facilities, as one, not the 
only, acceptable means of arriving at a quantitative assessment of the 
risk. An advantage of quantitative assessment of risk is that it can 
easily be factored with other risks, options, and alternatives during a 
system-wide assessment of risk. IME believes that PHMSA should ensure 
that any information generated, or records maintained, from risk or 
vulnerability assessments performed in order to meet performance-based 
standards at safe havens, be protected as security sensitive 
information pursuant to 49 CFR 1520.7(r). (See 49 CFR 15.11).

IV. Discussion of Proposals

    PHMSA continues to believe that the lack of Federal standards for 
safe havens poses a safety concern. Commenters to this rulemaking 
generally support this view and recommend incorporation of NFPA 498 
into the HMR. A summary NFPA 498 is provided below:
    1. A safe haven must be located in a secured area that is no closer 
than 300 ft (91.5m) to a bridge, tunnel, dwelling, building, or place 
where people work, congregate, or assemble. The perimeter of the safe 
haven must be cleared of weeds, underbrush, vegetation, or other 
combustible materials for a distance of 25 ft (7.6 m). The safe haven 
must be protected from unauthorized persons by warning signs, gates, 
and patrols. NFPA 498 sections 4.1.1, 4.1.2, 4.1.3, and 4.1.4.
    2. When vehicles carrying Class 1 materials are parked in a safe 
haven, the entrance to the safe haven must be marked with this warning 
sign:

DANGER
NO SMOKING
    NEVER FIGHT EXPLOSIVE FIRES
    VEHICLES ON THIS SITE CONTAIN EXPLOSIVES
CALL-------------------------------------------------------------------

    The sign must be weatherproof with reflective printing, and the 
letters must be at least 2 in. high. NFPA 498 sections 4.1.4.1 and 
4.1.4.2.
    3. Watch personnel must be made aware of the explosives, 
corresponding emergency response procedures, and NFPA 601. NFPA 498 
sections 4.1.5 4.1.5.1.
    4. A stand-by vehicle in good operating condition that is capable 
of moving the explosives trailers must be kept at the safe haven. NFPA 
498 section 4.1.5.2.
    5. Fire protection equipment must be provided--to include portable 
fire extinguishers and a dependable water supply source. NFPA 498 
section 4.1.6
    6. Vehicles will be inspected before they enter the safe haven. Any 
risks (e.g., hot tires, hot wheel bearings, hot brakes, any 
accumulation of oil or grease, any defects in the electrical system, or 
any apparent physical damage to the vehicle that could cause or 
contribute to a fire) that are identified by the inspector must be 
corrected before the vehicle is permitted to enter the safe haven. NFPA 
498 section 4.2.1.1, 4.2.1.2, and 4.2.1.3.
    7. Trailers are to be positioned in the safe haven with spacing of 
not less than 5ft (1.5m) maintained in all directions between parked 
trailers. Additionally, trailers may not be parked in a manner that 
would require their movement to move another vehicle. Immediately upon 
correctly positioning a loaded trailer the tractor must be disconnected 
and removed from the safe haven. NFPA 498 sections 4.2.2, 4.2.3, and 
4.2.4.
    8. Trailers in the safe haven must be maintained in the same 
condition as is required for highway transportation, including 
placarding. NFPA 498 section 4.2.5.
    9. Where a self-propelled vehicle loaded with explosives is stored 
in a safe haven it must be parked at least 25 ft (7.6 m) from any other 
vehicles containing explosives, and must be in operable condition, 
properly placarded, and in a position and condition where it can be 
moved easily in case of necessity or emergency. NFPA 498 section 4.2.6.
    10. No explosives may be transferred from one vehicle to another in 
a safe haven except in case of necessity or emergency. NFPA 498 section 
4.2.7.
    11. No vehicle transporting other hazardous materials may be stored 
in a safe haven unless the materials being transported are compatible 
with explosives. NFPA 498 section 4.2.8.
    12. Except for minor repairs, no repair work involving cutting or 
welding, operation of the vehicle engine, or the electrical wiring may 
be performed on any vehicle parked in a safe haven that is carrying 
explosives. NFPA 498 sections 4.3.1.1 and 4.3.1.2.
    13. Except for firearms carried by law enforcement and security 
personnel where specifically authorized by the authority having 
jurisdiction, smoking, matches, open flames, spark-producing devices, 
and firearms are not permitted inside or within 50 ft (15.3 m) of the 
safe haven, loading dock, or interchange lot. NFPA 498 section 4.3.2 
and 4.3.3.
    14. Electric lines must not be closer than the length of the lines 
between the poles, unless an effective means to prevent vehicles from 
contact with broken lines is employed. NFPA498 section 4.3.4.
    15. When any vehicle transporting explosives is stored in a safe 
haven, at least one trained person, 21 years of age or older, must be 
assigned to patrol the safe haven on a dedicated basis. Safe havens 
located on explosives manufacturing facilities or at motor vehicle 
terminals must employ other means of acceptable security such as 
existing plant or terminal protection systems or electronic 
surveillance devices. NFPA 498 section 4.4.1 and 4.4.2.
    16. The safe haven operator must maintain an active safety training 
program in emergency response procedures for all employees working at 
the safe haven. NFPA 498 section 4.5.
    17. Training in accordance with 49 CFR Part 172, Subpart H is 
required for employees involved with the loading, shipping, or 
transportation of explosives. NFPA 498 section 4.5.2.
    18. The safe haven operator must notify in writing the local law 
enforcement, fire department, and other emergency response agencies of 
the safe haven and the maximum quantity of Class 1 materials authorized 
for the safe haven. The operator must maintain copies of any approval 
documentation and notifications. NFPA 498 sections 4.6.1 and 4.6.2.
    In this NPRM, PHMSA proposes to incorporate NFPA 498 into the HMR. 
NFPA 498 is an accepted standard that imposes rigorous safety 
requirements on facilities at which explosives are temporarily stored 
during transportation. The standard is tailored

[[Page 43913]]

to the risks posed by commercially transported explosives. As proposed 
in this NPRM, any facility that conforms to the safe haven requirements 
specified in NFPA 498 would be authorized for use as a safe haven. By 
specifically identifying a standard for safe havens PHMSA is enhancing 
the current level of safety. Note that nothing in this NPRM is intended 
to preempt State and local zoning ordinances, building permits, land 
use restrictions, or other similar requirements that may apply to 
construction and operation of a safe haven.
    In addition, we urge safe haven owners to utilize available 
explosive distancing tables or risk assessment tools when selecting 
locations for safe havens. Further, we encourage owners to share this 
information with State and local officials to support safe haven 
development. In all cases, owners must fully consider the risk to 
persons and the surrounding area from the explosives facility.

V. Summary of Changes by Section

    In accordance with the comments received and public meeting 
discussion this NPRM proposes the following changes by section:

Part 171

    Section 171.7. We propose to amend paragraph (a)(3) by adding a 
reference to NFPA 498--Standard for Safe Havens and Interchange Lots 
for Vehicles.

Part 177

    Section 177.835. We propose to add a new paragraph (k) to clearly 
indicate that Division 1.1, 1.2, and 1.3 explosives may be left 
unattended by the carrier in a safe haven that meets NFPA 498. This 
addition would provide a clear, consistent, and measurable Federal 
requirement for the development and operation of safe havens.

VI. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This rulemaking is issued under authority of the Federal hazardous 
materials transportation law (49 U.S.C. 5101 et seq.), which authorizes 
the Secretary of Transportation to prescribe regulations for the safe 
transportation, including security, of hazardous materials in 
interstate, intrastate, and foreign commerce.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule is not considered a significant regulatory 
action under section 3(f) of Executive Order 12866 and, therefore, was 
not reviewed by the Office of Management and Budget (OMB). This rule is 
not significant under the Regulatory Policies and Procedures of the 
Department of Transportation (44 FR 11034).
    Executive Order 12866 requires agencies to regulate in the ``most 
cost-effective manner,'' to make a ``reasoned determination that the 
benefits of the intended regulation justify its costs,'' and to develop 
regulations that ``impose the least burden on society.'' The 
incorporation of standards for safe havens into the HMR does not impose 
significant burden on the explosive industry. The adoption of existing 
standards applicable to the safe storage of Division 1.1, 1.2, and 1.3 
explosives in safe havens provides a clear and specific mechanism for 
the construction and maintenance of safe havens. This change would 
provide a Federally approved standard for safe havens in place of the 
existing arbitrary requirement that allows for State, local, or Federal 
approval of safe havens.
    The industry, as described in the ANPRM comments and during an 
August 7, 2008 public meeting, indicates that it does not rely on safe 
havens for the attendance of explosives in transportation. Generally, 
industry relies on team drivers to move explosives shipments. In most 
instances team drivers are a safe, efficient, and cost effective means 
of transporting explosives. The proposed changes would provide 
explosives carriers with an optional means of compliance; therefore, 
any increased compliance costs associated with the proposals in this 
NPRM would be incurred voluntarily by the explosives industry. 
Ultimately, we expect each company to make reasonable decisions based 
on its own business operations and future goals. Thus, costs incurred 
if a company elects to rely on a safe haven to fulfill attendance 
requirements would be balanced by the safety and security benefits 
accruing from the decision.

C. Executive Order 13132

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. We invited State and local governments 
with an interest in this rulemaking to comment on the effect that 
adoption of specific requirements for carriers that transport and store 
explosives in commerce may have on State or local safety or 
environmental protection programs. State representatives participating 
in the public meeting expressed support for the proposed incorporation 
of safe haven standards into the HMR. The proposed rule provides an 
option for safe havens to be developed and operated based on existing 
safety standards. It does not preempt State requirements (e.g., State 
and local zoning ordinances, building permits, land use restrictions, 
or other similar requirements). Safe haven owners must continue to 
follow State and local requirements as applicable.

D. Executive Order 13175

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13175 
(``Consultation and Coordination with Indian Tribal Governments''). 
Because this proposed rule does not significantly or uniquely affect 
the communities of the Indian Tribal governments and does not impose 
substantial direct compliance costs, the funding and consultation 
requirements of Executive Order 13175 do not apply.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant impact on a substantial number of small entities. The 
proposed rule will not impose increased compliance costs on the 
regulated industry. Rather, the proposed rule incorporates current 
standards for the construction and maintenance of safe havens. Overall, 
this proposed rule should reduce the compliance burden on the regulated 
industry without compromising transportation safety. Therefore, I 
certify that this rule will not have a significant economic impact on a 
substantial number of small entities.

F. Executive Order 13272 and DOT Regulatory Policies and Procedures

    This notice has been developed in accordance with Executive Order 
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'') 
and DOT's procedures and policies to promote compliance with the 
Regulatory Flexibility Act to ensure that potential impacts of draft 
rules on small entities are properly considered.

G. Paperwork Reduction Act

    There are no new information collection requirements in this 
proposed rule.

[[Page 43914]]

H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

I. Unfunded Mandates Reform Act of 1995

    This proposed rule does not impose unfunded mandates, under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$141.3 million or more to either State, local, or Tribal governments, 
in the aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objective of the rule.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://www.dot.gov.

K. National Environmental Policy Act

    The National Environmental Policy Act of 1969 (NEPA) requires 
Federal agencies to consider the consequences of major Federal actions 
and that they prepare a detailed statement on actions significantly 
affecting the quality of the human environment. We requested comments 
on the potential environmental impacts of regulations applicable to the 
storage of explosives transported in commerce. We asked for comments on 
specific safety and security measures that would provide greater 
benefit to the human environment, or on alternative actions the agency 
could take that would provide beneficial impacts. No commenters 
addressed the potential environmental impacts of the proposals in the 
ANPRM.
    Safe havens promote the safe storage of hazardous materials in 
transportation. Safe havens ensure that explosives are stored in a 
manner that protects them from release into the environment. This 
proposed rule does not prohibit or promote the development of safe 
havens; rather, it ensures that existing and future safe havens meet 
minimum design and safety criteria. The impact on the environment if 
any would be a reduction in the environmental risks associated with the 
unattended storage of explosives in transportation. As a result, we 
have preliminarily determined that there are no significant 
environmental impacts associated with this proposed rule. We request 
comment on this determination.

List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

49 CFR Part 177

    Hazardous materials transportation, Motor carriers, Radioactive 
materials, Reporting and recordkeeping requirements.

    In consideration of the foregoing, 49 CFR Chapters I and III are 
proposed to be amended as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

    1. The authority citation for part 171 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53; 
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub L. 104-134 
section 31001.

    2. In Sec.  171.7, in the paragraph (a)(3) table, under the entry 
``National Fire Protection Association,'' the organization's mailing 
address is revised and the entry ``NFPA 498--Standard for Safe Havens 
and Interchange Lots for Vehicles Transporting Explosives, 2006 
Edition'' is added.
    The revision and addition read as follows:


Sec.  171.7  Reference material.

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

------------------------------------------------------------------------
            Source and name of material               49 CFR reference
------------------------------------------------------------------------

                              * * * * * * *
National Fire Protection Association, 1
 Batterymarch Park, Quincy, MA, 1-617-770-3000,
 www.nfpa.org.....................................

                              * * * * * * *
NFPA 498-Standard for Safe Havens and Interchange                177.835
 Lots for Vehicles Transporting Explosives, 2006
 Edition..........................................

                              * * * * * * *
------------------------------------------------------------------------

PART 177--CARRIAGE BY PUBLIC HIGHWAY

    3. The authority citation for part 177 would continue to read as 
follows:

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

    4. In Section 177.835 a new paragraph (k) is added to read as 
follows:


Sec.  177.835  Class 1 materials.

* * * * *
    (k) Attendance of Class 1 (explosive) materials. Division 1.1, 1.2, 
or 1.3 materials that are stored during transportation in commerce must 
be attended and afforded surveillance in accordance with 49 CFR 397.5. 
An area that conforms to NFPA 498 (IBR, see Sec.  171.7 of the 
subchapter) constitutes a Federally approved safe haven for the 
unattended storage of vehicles containing Division 1.1, 1.2, or 1.3 
materials.

    Issued in Washington, DC, on July 22, 2010 under authority 
delegated in 49 CFR Part 106.
R. Ryan Posten,
Senior Director for Hazardous Materials Safety.
[FR Doc. 2010-18368 Filed 7-26-10; 8:45 am]
BILLING CODE 4910-60-P

