Hazardous Materials: Requirements for the Storage of Explosives and Other High-Hazard Materials During Transportation, 69493-69502 [05-22751]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 70, Number 220 (Wednesday, November 16, 2005)]
[Proposed Rules]
[Pages 69493-69502]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-22751]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 173 and 177

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


Hazardous Materials: Requirements for the Storage of Explosives 
and Other High-Hazard Materials During Transportation

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

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: PHMSA is considering requirements to address the current 
safety and security risks associated with the storage of explosives 
during transportation. In this notice, we are soliciting 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 also invite comments as to whether enhanced 
requirements for storage incidental to movement should apply to other 
hazardous materials (e.g., materials toxic by inhalation).

DATES: Comments must be received by February 14, 2006.

ADDRESSES: Comments. You may submit comments identified by the docket 
number (PHMSA-2005-22987) by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Web Site: https://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management System; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-402, 
Washington, DC 20590-0001.
     Hand Delivery: To the Docket Management System; Room PL-
402 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC 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 or Regulatory Identification Number (RIN) for this 
notice. Note that all comments received will be posted without change 
to https://dms.dot.gov including any personal information provided. 
Please see the Privacy Act heading under SUPPLEMENTARY INFORMATION.
    Docket: For access to the docket to read background documents or 
comments received, go to https://dms.dot.gov at any time or to the 
Docket Management System (see ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Ben Supko, Office of Hazardous 
Materials Standards, telephone (202) 366-8553, Pipeline and Hazardous 
Materials Safety Administration, U.S. Department of Transportation, 400 
Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    On July 16, 2002, the Federal Motor Carrier Safety Administration 
(FMCSA) and the Research and Special Programs Administration (RSPA, the 
predecessor

[[Page 69494]]

agency to the Pipeline and Hazardous Materials Safety Administration 
(PHMSA, we)) published an Advance Notice of Proposed Rulemaking (ANPRM) 
under Docket HM-232A (67 FR 46622) entitled ``Security Requirements for 
Motor Carriers Transporting Hazardous Materials.'' In the ANPRM, FMCSA 
and RSPA examined the need for enhanced security requirements for motor 
carrier transportation of hazardous materials. FMCSA and RSPA requested 
comments on a variety of security measures including: escorts, vehicle 
tracking and monitoring systems, emergency warning systems, remote 
shut-offs, direct short-range communications, and notification to State 
and local authorities. The ANPRM also addressed the issue of explosives 
storage in safe havens. We received approximately 80 comments in 
response to the ANPRM.
    On March 19, 2003, FMCSA published a further notice (68 FR 13250) 
that RSPA had assumed the lead role for this rulemaking proceeding. Due 
to the complexity of the issues raised in Docket HM-232A and the number 
of comments received on the ANPRM, RSPA decided to consider the storage 
of explosives in a separate rulemaking. RSPA indicated its intentions 
in the October 30, 2003 final rule published under Docket HM-223 (68 FR 
61906) entitled ``Applicability of the Hazardous Materials Regulations 
to Loading, Unloading, and Storage.'' In the final rule, which became 
effective on June 1, 2005 (see 69 FR 70902; December 8, 2004), RSPA 
clarified the applicability of the HMR to specific functions and 
activities related to the transportation of hazardous materials in 
commerce. In the preamble to the HM-223 final rule, RSPA identified 
issues related to the storage of hazardous materials during 
transportation that need to be addressed (68 FR 61906; 61931). RSPA 
noted that the current HMR requirements applicable to the storage of 
explosives during transportation need to be reevaluated to ensure that 
they adequately account for potential safety and security risks. For 
example, the agency has concerns regarding the lack of Federal 
standards for safe havens and inconsistent State requirements.

II. Comments Received for HM-232A Rulemaking on Storage and Safe Havens

    Twenty-one commenters on the HM-232A ANPRM provided specific 
information on safe havens. In general, commenters support the 
continued use of safe havens. However, commenters also suggest that the 
term ``safe haven'' lacks a cohesive definition among Federal 
regulatory agencies, most notably the U.S. DOT and the Nuclear 
Regulatory Commission. The commenters indicate that the lack of a 
consistent definition for the term ``safe haven'' has led to confusion 
and questions regarding the level of protection provided at these 
locations. Commenters request that standards be developed to provide 
details on the construction, maintenance, availability, and use of safe 
havens. Without clearly defined standards to follow, commenters state 
that any future reliance on safe havens may actually make the hazardous 
materials stored there more susceptible to safety and security threats 
than if they were stored at other locations.
    Commenters suggest that until an infrastructure of secure safe 
havens is developed across the country (e.g., a system that includes 
federally regulated safe havens that are strategically located on major 
chemical and explosive shipping lanes at convenient 500 mile intervals) 
they should be able to use their own discretion to determine if a safe 
haven is sufficiently secure. In addition, commenters state that in 
many instances a driver's best defense against security threats is to 
blend in with other trucks on the road and at rest stops. Therefore, 
some commenters stated that a standard that allows shipments to be 
parked in secure areas that provide an adequate level of security may 
be more appropriate then a standard that only allows the use of 
designated safe havens. These secure areas may consist of well-lit 
private property that is protected by a fence and equipped with a 
controlled-access gate, monitored parking in an industrial area, or a 
truck stops that has been modified to meet ``safe haven'' standards.
    One commenter notes that safe havens are often small and difficult 
to maneuver, a safety problem that will be compounded by any increase 
in the transportation industry's dependence on safe havens. The 
majority of commenters agree that safe havens and secured on-site areas 
are effective security measures for the temporary storage of explosives 
in transportation, provided those areas meet the National Fire 
Protection Association's document 498 Standard for Safe Havens and 
Interchange Lots for Vehicles Transporting Explosives or an equivalent 
standard. Commenters recommend that we adopt NFPA 498 in the Hazardous 
Materials Regulations (HMR; 49 CFR parts 171-180).

III. Purpose of This ANPRM

    As discussed in more detail below, the HMR require shipments stored 
during transportation to conform to the same requirements that apply 
when the shipments are actually moving (e.g., shipping papers, 
emergency response information, hazard communication, packaging, and 
segregation). The HMR also require facilities at which explosives and 
other high-hazard materials are offered or stored during transportation 
to have security plans. The security plan must be based on an 
assessment of possible security risks and must include measures to 
address those risks. Otherwise, the HMR do not include specific 
requirements for facilities at which explosives or other high-hazard 
materials are stored during transportation. The HMR do not establish 
specific standards for storage facilities nor do they limit the amount 
of material that may be stored in a single location.
    We are concerned that current HMR requirements may not adequately 
address the safety and security risks associated with the storage 
during transportation of explosives and other high-hazard materials. 
Thus, we are seeking comments and information on the adequacy of 
existing regulatory requirements and the need for additional, more 
specific requirements.
    This ANPRM is focused primarily on explosives storage; however, we 
invite commenters to address issues related to the storage of other 
types of high-hazard materials as well. We note in this regard that, in 
another proceeding (Docket HM-232E (69 FR 50988; August 16, 2004)), 
PHMSA and the Department of Homeland Security are examining the need 
for enhanced security requirements for the rail transportation of 
hazardous materials that pose a toxic inhalation hazard. Security 
measures being considered include improvements to security plans, 
modification of methods used to identify shipments, enhanced 
requirements for temporary storage, and implementation of tracking and 
communication systems.
    Provided below is a list of government and industry standards for 
explosives storage that are based on a variety of factors, including 
but not limited to, the mode of transportation, the type of explosives, 
and whether the explosive is in transportation.
     Hazardous Materials Regulations (49 CFR parts 171-180).
     Federal Motor Carrier Safety Regulations (49 CFR parts 
350-399).
     United States Coast Guard Requirements applicable to 
explosives storage (33 CFR parts 101-126).
     Bureau of Alcohol, Tobacco, Firearms, and Explosives 
Regulations for explosives in commerce (27 CFR part 555).

[[Page 69495]]

     National Fire Protection Association's NFPA 498, 
``Standard for Safe Havens and Interchange Lots for Vehicles 
Transporting Explosives Standard for Safe Havens and Interchange Lots 
for Vehicles Transporting Explosives''.
     Institute of Makers of Explosives Safety Library 
Publication No. 27, ``Security in Manufacturing, Transportation, 
Storage and use of Commercial Explosives''.
     Surface Deployment and Distribution Command, ``SDDC 
Freight Traffic Rules Publication NO. 1C (MFTRP NO. 1C)''.
    In the sections that follow we provide brief descriptions of these 
standards and their applicability to the transportation and storage of 
explosives.

IV. HMR Requirements Applicable to Explosives Storage

    General. The HMR require hazardous materials stored incidental to 
movement to meet all the applicable requirements for hazard 
communication (including shipping papers and emergency response 
information), packaging, and handling that apply when shipments are 
actually moving in transportation. The HMR include specific carrier 
requirements for transportation of hazardous materials by air, highway, 
rail, and vessel.
    Explosives, or Class 1 materials, are one of 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 (49 CFR 173.50(b)). As provided in the 
following table, assignment of an explosive to a division depends on 
the degree and nature of the explosive hazard.

------------------------------------------------------------------------
   Division          Hazard       Description of hazard      Examples
------------------------------------------------------------------------
1.1             Mass explosion    This explosive will    Grenades,
                 hazard.           affect almost the      mines, and
                                   entire load            nitroglycerin.
                                   instantaneously.
1.2             Projection        This explosive will    Rockets and
                 hazard without    project fragments      warheads.
                 a mass            outward at some
                 explosion         distance.
                 hazard.
1.3             Fire hazard and   This explosive will    Projectiles,
                 either a minor    cause fire and may     signal smoke,
                 projection        or may not project     and tracers
                 hazard or minor   fragments outward at   for
                 blast hazard or   some distance.         ammunition.
                 both but not a
                 mass explosion
                 hazard.
1.4             Minor explosion   The explosive affects  Ammunition,
                 hazard.           of this material are   airbags, and
                                   largely confined to    model rocket
                                   the package and no     motors.
                                   projection of
                                   fragments of any
                                   appreciable size or
                                   range is expected.
1.5             Very insensitive  This explosive has a   Blasting agents
                 explosive.        mass explosion         and ammonia-
                                   hazard, but is         nitrate fuel
                                   represented by a low   oil mixture.
                                   probability of
                                   detonation while in
                                   transportation.
1.6             Extremely         This explosive is an   Insensitive
                 insensitive       article that           article and
                 article.          contains only          military.
                                   extremely
                                   insensitive
                                   detonating
                                   substances which
                                   demonstrate a
                                   negligible
                                   probability of
                                   accidental
                                   initiation or
                                   propagation.
------------------------------------------------------------------------

    The HMR prohibit transportation of an explosive unless it has been 
examined, classed, and approved by PHMSA's Associate Administrator for 
Hazardous Materials Safety, with separate provisions covering 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). The approval granted by the Associate 
Administrator specifies packaging and other transportation provisions 
that must be followed by the person who offers or transports the 
explosive material. In addition to packaging requirements, 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. In 
addition, Parts 174, 175, 176, and 177 of the HMR specify modal 
requirements for loading and unloading, blocking and bracing, stowage, 
segregation, and compatibility.
    Security plans. In accordance with Subpart I of Part 172 of the 
HMR, persons who offer for transportation and persons who transport 
certain hazardous materials for transportation in commerce, including 
shipments of explosives for which placarding is required under the HMR, 
must develop and implement security plans. 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. 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. Thus, a facility at which a shipment subject to 
the security plan requirements is stored during transportation must 
itself be covered by a security plan. The HMR requirement for a 
security plan sets forth general requirements for a security plan's 
components rather than a prescriptive list of specific items that must 
be included. The regulation establishes a performance standard that 
provides shippers and carriers with the flexibility necessary to 
develop plans that address their individual circumstances and 
operational environment.

V. FMCSA Requirements Applicable to Explosives Storage

    Motor carriers that transport hazardous materials in commerce must 
comply with both the HMR and the Federal Motor Carrier Safety 
Regulations (FMCSRs; 49 CFR parts 390-397), administered by the FMCSA. 
The FMCSRs address driver qualifications; vehicle parts and 
accessories; driving requirements and hours of service; vehicle 
inspection, repair and maintenance; and driving and parking rules for 
the transportation of hazardous materials. 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

[[Page 69496]]

storage, unless the motor vehicle is located on the motor carrier's 
property, the shipper or consignee's property, or at a ``safe haven'' 
(49 CFR 397.5).
    Under the FMCSRs, a ``safe haven'' is defined as an area 
specifically approved in writing by Federal, State, or local government 
authorities for the parking of unattended vehicles containing Division 
1.1, 1.2, and 1.3 explosive materials (49 CFR 397.5(d)(3)). The 
decision as to what constitutes a safe haven is generally made by the 
local competent authority having jurisdiction over the area. The FMCSRs 
do not include requirements for safety or security measures for safe 
havens.
    In addition, a motor vehicle containing a Division 1.1, 1.2, or 1.3 
explosive may not be parked on or within 5 feet of the traveled portion 
of a public highway or street; on private property without the consent 
of the person in charge of the property; or within 300 feet of a 
bridge, tunnel, dwelling, or place where people work or congregate 
unless for brief periods when parking in such locations is unavoidable 
(49 CFR 397.7(a)).

VI. USCG Requirements Applicable to Explosives Storage

    The United States Coast Guard (USCG) issues regulations for the 
safe and secure handling and storage of explosives and other dangerous 
cargos that are within or contiguous to waterfront facilities. The 
USCG's primary statutory authority is set forth in Title 46, U.S. Code, 
the Ports and Waterways Safety Act, 33 U.S.C. 1221, et seq., and the 
Espionage Act of 1917, as amended by the Magnuson Act of 1950, 16 
U.S.C. 1858, and most recently by the Maritime Transportation and 
Security Act of 2002, 46 U.S.C. 70108, in addition to Executive Orders 
and Coast Guard regulations implementing the statutory authorities.
    USCG Safety Regulations. The USCG regulations at 33 CFR part 126 
establish requirements for designated waterfront facilities. Section 
126.15 requires designated waterfront facilities that handle, store, 
stow, load, discharge, or transport dangerous cargo to meet specific 
conditions. The term ``dangerous cargo'' is defined in Sec.  126.3; it 
includes all of the hazardous materials subject to the HMR except for 
those subject to regulation only when transported by air. The 
conditions for designated waterfront facilities include:
    1. Fire extinguishing equipment, such as automatic sprinklers, 
hydrants, hose connections, and firefighting water supplies must be 
available and maintained in adequate quantities and locations. Fire 
extinguishing equipment must meet State and local laws. In the absence 
of applicable State and local laws, fire extinguishing equipment must 
meet NFPA 10, 13, 14, and 307. 33 CFR 126.15(a)(1).
    2. Hydrants, standpipes, hose stations, fire extinguishers, and 
fire alarm boxes must be conspicuously marked and readily accessible 
according to NFPA 10, 13, 14, and 307. 33 CFR 126.15(a)(2).
    3. Warning signs must be constructed and installed according to 
NFPA 307, chapter 7-8.7. 33 CFR 126.15(a)(3).
    4. If the facility transfers dangerous cargo between sunset and 
sunrise, it must have outdoor lighting that adequately illuminates the 
transfer work area. The lighting must be installed and maintained 
according to NFPA 70 and must be located or shielded so that it cannot 
be mistaken for an aid to navigation and does not interfere with 
navigation on waterways. 33 CFR 126.15(a)(4).
    5. If the facility conducts cargo operations involving foreign-flag 
vessels, the facility must have an international shore connection 
meeting ASTM F-1121. 33 CFR 126.15(a)(5).
    6. Whenever dangerous cargo is transferred or stored on the 
facility, access to the facility must be limited to authorized 
personnel including: persons working on the facility or vessel; 
authorized delivery and service personnel; Coast Guard and other 
Federal, State, and local officials; local emergency personnel; and 
other persons authorized by the owner or operator of the facility. 33 
CFR 126.15(a)(6).
    7. Guards must be stationed, or equivalent controls acceptable to 
the COTP must be used, to deter and detect unlawful entrance; to detect 
and report fire hazards, fires, and releases of dangerous cargoes and 
hazardous materials; to check the readiness of protective equipment; 
and to report other emergency situations at the facility. 33 CFR 
126.15(a)(7).
    8. Coast Guard personnel must be allowed to enter the facility to 
conduct inspections or board vessels moored at the facility. 33 CFR 
126.15(a)(8).
    9. When dangerous cargo is being transferred or stored on the 
facility, material handling equipment, trucks, and other motor vehicles 
operated by internal combustion engines must meet the requirements of 
NFPA 307, chapter 9. 33 CFR 126.15(a)(9).
    10. Smoking is allowed on the facility where permitted under State 
or local law. Signs must be posted marking authorized smoking areas. 
``No Smoking'' signs must be conspicuously posted elsewhere on the 
facility. 33 CFR 126.15(a)(10).
    11. All rubbish, debris, and waste materials must be placed in 
adequate receptacles. 33 CFR 126.15(a)(11).
    12. The COTP may determine that any equipment, material, or 
standard is not reasonably adequate under the circumstances. If so, the 
COTP informs the owner or operator in writing and provides an 
opportunity for the owner or operator to have the deficiency corrected. 
33 CFR 126.15(a)(12).
    13. When dangerous cargo is not in transport units, all cargo, 
freight, merchandise, and other items or material on the facility must 
be arranged to provide access for firefighting and clearance for fire 
prevention according to NFPA 307, chapter 8-5. 33 CFR 126.15(b)(1).
    14. When dangerous cargo is not in transport units, the facility 
must have and maintain, in adequate quantities and locations, portable 
fire extinguishers that meet the requirements of NFPA 10. These 
extinguishers must be inspected and maintained in accordance with NFPA 
10. 33 CFR 126.15(b)(2).
    15. When dangerous cargo is not in transport units, all new 
electrical equipment and wiring installed on the facility must be of 
the same type and installed as specified under NFPA 70. All defective 
or dangerous electrical equipment and wiring must be promptly repaired, 
replaced, or permanently disconnected. 33 CFR 126.15(b)(3).
    16. When dangerous cargo is not in transport units, all open fires 
and open-flame lamps are prohibited on the facility. Heating equipment 
must meet NFPA 307, chapter 9-4. 33 CFR 126.15(b)(4).
    17. When dangerous cargo is not in transport units, hazardous 
material(s) used in the operation or maintenance of the facility may be 
stored only in amounts necessary for normal operating conditions. These 
materials must be stored in compartments that are remote from 
combustible material; constructed to provide safe storage; and kept 
clean and free of scrap materials, empty containers, soiled wiping 
rags, waste, and other debris. Flammable liquids must be stored 
according to NFPA 30, chapter 4. 33 CFR 126.15(b)(5).
    18. When dangerous cargo is in transport units, terminal yards must 
conform to the standards in NFPA 307, chapter 5. 33 CFR 126.15(c)(1).
    19. When dangerous cargo is in transport units, containers packed 
with dangerous cargo that are vertically stacked must be stacked no 
more than four high. 33 CFR 126.15(c)(2).
    A general permit for handling, storing, stowing, loading, 
discharging or transporting dangerous cargo (other than

[[Page 69497]]

designated dangerous cargo) is granted by regulation to those 
waterfront facilities that comply with these conditions (33 CFR 
126.27). The Captain of the Port is authorized to terminate or suspend 
the general permit for a facility whenever he deems that the security 
or safety of the port or vessels or facility requires it (33 CFR 
126.31). Division 1.1 and 1.2 explosive materials, further identified 
as ``designated dangerous cargos,'' may only be handled, loaded, 
discharged, or transported at waterfront facilities authorized by a 
permit issued by the Captain of the Port (33 CFR 126.17). These 
Division 1.1 and 1.2 explosive materials and certain other high-hazard 
materials may only be handled at a ``facility of a particular hazard,'' 
which must meet additional conditions for warning alarms (33 CFR 
126.16(b)).
    Anchorage Regulations. Another area of Coast Guard regulations that 
is related to the topic of storage of Class 1 explosive materials in 
transportation is the Anchorage Regulations set forth in 33 CFR part 
110. In particular, Subpart B of Part 110 prescribes permitted 
explosives anchorage grounds for certain ports and places in the United 
States as well as conditions that may pertain to explosives laden 
vessels using those anchorage areas.
    USCG Security Requirements. On October 22, 2003 the United States 
Coast Guard published six final maritime security rules (68 FR 60448) 
applicable to certain vessels and facilities. The rules establish 
regulations for domestic maritime security that are based on the 
international maritime security standards in the International 
Convention for Safety of Life at Sea, 1974, (SOLAS) and the new 
International Ship and Port Facility Security Code (ISPS Code). An 
important objective of the ISPS Code is to ensure that countries adopt 
compatible requirements so that a vessel's compliance with one 
country's standards does not prevent it from meeting the standards of 
another country.
    The Coast Guard's final rules require owners and operators of 
certain classes of vessels and facilities to perform security 
assessments, develop security plans, and implement security measures 
and procedures to address the risk or mitigate the potential results of 
an act that results in a significant loss of life, environmental 
damage, transportation system disruption, or economic disruption in a 
particular area (33 CFR parts 104 and 105, respectively). These 
requirements apply to about 10,000 vessels and about 5,000 facilities, 
including facilities that handle hazardous material. Foreign and 
domestic commercial and cargo vessels as well as barges transporting 
petroleum, other hazardous liquids, and certain other dangerous cargoes 
in bulk are covered by these rules. Vessel security plans must include 
measures for access control, restricted areas, handling cargo, delivery 
of vessel stores and bunkering, and monitoring. Security measures for 
each activity must be scaled to provide for increased levels of 
security at increased threat levels.
    For purposes of the USCG regulations, a ``facility'' is any 
structure or facility of any kind located in, on, under, or adjacent to 
any waters of the United States and used by a public or private entity, 
including any contiguous or adjoining property under common ownership 
or operation (33 CFR 101.105). Facility security plans must include 
measures for access control, restricted areas, handling cargo, delivery 
of vessel stores and bunkering, and monitoring (33 CFR 105.405). 
Security measures for each activity must be scaled to provide for 
increased levels of security at increased threat levels (33 CFR 
105.230). Some additional security measures are prescribed for 
facilities that handle ``certain dangerous cargoes'' including Division 
1.1, 1.2, and 1.5D explosives (33 CFR 105.295).
    In addition, the October 22, 2003 final rules: (1) Establish USCG 
Captains of the Ports as Federal Maritime Security Coordinators (33 CFR 
103.200); (2) require the establishment of Area Maritime Security 
Committees (33 CFR 103.300); and (3) mandate the development and 
implementation of Area Maritime Security Plans to address security of 
the infrastructure and operations of a port (33 CFR 103.500). The Area 
Maritime Security Plan is primarily a communication and coordination 
document. Core elements of the Area Maritime Security Plan include, but 
are not limited to: (1) Details of operational and physical measures 
that must be in place at all threat levels (33 CFR 103.505(a)); (2) 
expected timeframes for responding to security threats and changes to 
threat levels (33 CFR 103.505(g)); (3) communications procedures (33 
CFR 103.505(q)); (4) measures to enhance the security of vessels, 
facilities, and operations that are not covered by other security plan 
regulations or requirements (33 CFR 103.505(n)); (5) measures to 
protect the plan and related information (33 CFR 103.505(m)); (6) 
periodic review, audit, and updating procedures (33 CFR 103.505(j)); 
and (7) procedures for reporting security incidents (33 CFR 
103.505(k)).

VII. ATF Regulations

    Congress enacted Title XI of the Organized Crime Control Act of 
1970 to protect interstate and foreign commerce against interference 
and interruption by reducing the hazard to persons and property arising 
from misuse and unsafe or insecure storage of explosive materials. 
Chapter 40 of the 1970 Act is entitled Importation, Manufacture, 
Distribution and Storage of Explosive Materials. The Bureau of Alcohol, 
Tobacco, Firearms, and Explosives (ATF) U.S. Department of Justice has 
been delegated the authority to enforce Chapter 40. ATF has promulgated 
regulations contained in 27 CFR part 555 to implement its provisions.
    ATF regulations contain detailed provisions governing the storage 
of explosive materials. These storage regulations address numerous 
issues including: (1) A requirement to inspect storage facilities at 
least every seven days (27 CFR 555.204); (2) where magazines may be 
located (27 CFR 555.206); (3) construction requirements of magazines, 
including locking mechanisms (27 CFR 555.207-211); (4) quantity 
restrictions and restrictions on the items that may be stored together 
(27 CFR 555.213); and (5) distance restrictions (27 CFR 555.218-224). 
In addition, all theft or loss of explosive materials by licensees, 
permittees, carriers of explosives materials, and other persons must be 
reported to ATF within 24 hours of discovery (27 CFR 555.30).
    Below we provide information on the explosives storage regulations 
found in 27 CFR part 555, subpart K. For a thorough understanding of 
the regulatory requirements, we recommend you review the complete ATF 
regulations.
    1. Explosive materials fall into one of three classes--high 
explosives (i.e., Dynamite, Flash Powder, Bulk Salutes), low explosives 
(i.e., Black Powder, safety fuses, igniters, igniter cords, fuse 
lighters, and display fireworks), or blasting agents (i.e., Ammonium 
nitrate fuel oil and certain water gels). 27 CFR 555.202.
    2. There are 5 types of explosives magazines. Type 1 magazines are 
permanent magazines for the storage of high explosives and all other 
classes of explosive materials. Type 2 magazines are mobile and 
portable indoor and outdoor magazines for the storage of high 
explosives and all other classes of explosive materials. Type 3 
magazines are portable outdoor magazines for the temporary storage of 
high explosives while attended (for example, a ``daybox'') and all 
other classes of

[[Page 69498]]

explosives materials. Type 4 magazines are magazines for the storage of 
low explosives. Blasting agents and detonators that will not mass 
detonate may be stored in type 4 magazines. Type 5 magazines are for 
the storage of blasting agents. Type 4 and 5 magazines can be in the 
form of a trailer or semi-trailer; however, they must be immobilized by 
removing the wheels or installing a kingpin locking device or other ATF 
approved method if they are left unattended. 27 CFR 555.203, 207-211.
    3. The regulations specify magazine construction requirements 
including, but not limited to, walls, floors, foundations, roofs, 
bullet-resistant ceilings, doors, locks, and ventilation systems. 27 
CFR 555.207-211.
    4. Any person who stores explosive materials must notify the 
authority having jurisdiction for fire and safety in the locality where 
the explosive materials are being stored of the type, magazine 
capacity, and location of each site where such explosives are being 
stored. 27 CFR 555.201(f).
    5. Smoking, matches, open flames, and spark producing devices are 
not permitted in any magazine, within 50 feet of any outdoor magazine, 
or within any room containing an indoor magazine. 27 CFR 555.212.
    6. Magazines must be clean, dry, and free of grit, paper, empty 
packaging and containers, and rubbish. Cleaning utensils, which may be 
left in the magazines, cannot have spark-producing metal parts. The 
surrounding area must be kept clear of rubbish, brush, dry grass, or 
trees for 25 feet in all directions. 27 CFR 555.215.
    7. Lighting in any explosives storage magazine must comply with the 
National Electrical Code (NFPA 70-81). Battery-activated safety lights 
may be used in explosive storage magazines. 27 CFR 555.217.
    8. Explosive materials must be stored in accordance with the table 
of distances contained in the ATF regulations. 27 CFR 555.218-224.

VIII. NFPA 498, Standard for Safe Havens and Interchange Lots for 
Vehicles Transporting Explosives

    The National Fire Protection Association (NFPA) has published 
standards for safe havens under NFPA 498, Standard for Safe Havens and 
Interchange Lots for Vehicles Transporting Explosives. NFPA 498 was 
specifically designed to handle cargoes of explosive materials in a 
transportation setting. The standard is widely used and accepted by the 
explosives transportation industry and by Federal, State, and local 
governments. It addresses fire, theft, and explosion hazards of 
explosive materials in parked vehicles at safe havens and interchange 
lots. Detailed information on the provisions contained in NFPA 498 is 
provided below:
    1. The term ``explosives interchange lot'' is defined as a 
specially designed safe area of a motor vehicle terminal where less-
than-truckload lots of explosives can be held for transfer from one 
vehicle to another for continuance in transportation. The term 
``explosives motor vehicle facility'' is defined as a designated area 
where motor vehicles transporting explosives can be parked, pending 
further movement in transportation. Such a facility can be a safe haven 
or interchange lot and can include maintenance shops, driver rest 
services, or any combination of these conveniences. The term ``safe 
haven'' is defined as a secured area specifically designated and 
approved in writing by local, State, or Federal governmental 
authorities for the parking of vehicles containing Division 1.1, 
Division 1.2, or Division 1.3 materials. NFPA 498 section 1-3.
    2. 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 trespassers by warning signs, gates, and 
patrols. NFPA 498 sections 2-1.1, 2-1.2, 2-1.3, and 2-1.4.
    3. When vehicles carrying Division 1.1, Division 1.2, or Division 
1.3 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 section 2-1.4.
    4. The shipping paper for all 1.1, 1.2, and 1.3 materials and 
corresponding emergency response information must be presented to the 
guard patrolling the safe haven. NFPA 498 section 2-1.5.1.
    5. Vehicles will be inspected before they enter the safe haven. Any 
safety (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) or security threats that are identified by the 
inspector must be corrected before the vehicle is permitted to enter 
the safe haven. NFPA 498 section 2-2.1.
    6. Trailers are to be positioned in the safe haven with spacing of 
not less than 5 ft (1.5 m) 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 2-2.2 and 2-2.3.
    7. The explosives transport vehicles, including trailers, in the 
interchange lot must be maintained in the same condition as is required 
for highway transportation, including placarding. NFPA 498 section 2-
2.4.
    8. Where a self-propelled vehicle loaded with explosives is parked 
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 2-2.5.
    9. No explosives may be transferred from one vehicle to another in 
a safe haven except in case of necessity or emergency. NFPA 498 section 
2-2.6.
    10. No vehicle transporting other hazardous materials may be parked 
in a safe haven unless the materials being transported are compatible 
with explosives. NFPA 498 section 2-2.7.
    11. 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 section 2-3.1.
    12. 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 2-3.2.
    13. When any vehicle transporting explosives is parked 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 2-4.1.

[[Page 69499]]

    14. Where an area at the loading dock is designated for the 
temporary holding of explosives in a trailer, it must not be located 
within 50 ft (15.3 m) of a fire hazard such as an area where smoking is 
permitted, where hot work is being done, or where combustible or 
flammable materials are present. NFPA 498 section 3-1.3.
    15. Explosives delivered to the interchange lot by a connecting 
carrier must be retained in the trailer at a designated section of the 
loading dock, or the trailer must be parked in an isolated area of the 
interchange lot, or the explosives must be placed in the holding 
facility. NFPA 498 section 3-2.2.
    16. Explosives may not be retained on the lot, either in a trailer 
or holding facility, for a period longer than necessary, but in no case 
for more than 100 hours. NFPA 498 section 3-2.4.

IX. Institute of Makers of Explosives Safety Library Publication No. 
27, ``Security in Manufacturing, Transportation, Storage and Use of 
Commercial Explosives''

    In January of 2005 the Institute of Makers of Explosives (IME) 
published recommended guidelines (SLP-27) for the manufacture, sale and 
distribution, transportation, storage, and use of Class 1 materials. 
SLP-27 establishes a best practices guideline for the transportation of 
explosives by highway and vessel. Specifically, it provides detailed 
transportation information on security plans, training, loading, and 
unloading requirements as they apply to shipments of explosives 
transported by highway or vessel. Following is a list of the 
significant transportation related requirements contained in the IME 
publication, ``Security in Manufacturing, Transportation, Storage and 
Use of Commercial Explosives.''

Transportation by Highway or Vessel

    1. Those persons transporting explosives must be properly trained 
and shipments must comply with DOT security plan requirements, as 
applicable. SLP-27 section 3.1.
    2. Loading of stored materials or materials that are manufactured 
and immediately transported should be done as conspicuously as possible 
and without undue delay. SLP-27 section 3.2.
    3. Unloading and placement of explosives in proper storage should 
be completed upon arrival at the final destination. SLP-27 section 3.3.

Transportation by Highway

    1. For international shipments carriers should participate in the 
U.S. Customs and Boarder Protection Free and Secure Trade (FAST) 
program. In addition, carriers should plan to avoid any unnecessary 
delays at border crossings. SLP-27 section 3.4.1.
    2. Cross docking and trailer transfers should be done in secure 
areas. SLP-27 section 3.4.1.2.
    3. Safe havens should be operated in accordance with the current 
edition of NFPA 498 and be reviewed by each carrier's safety department 
prior to use. SLP-27 section 3.4.2.
    4. If at all possible congested areas and rush hour traffic should 
be avoided. SLP-27 section 3.4.3.
    5. Parking or stopping of the vehicle should be kept to a minimum, 
but if necessary must conform to the requirements in 49 CFR part 397. 
SLP-27 section 3.4.4.
    6. For Division 1.1, 1.2, and 1.3 materials, a trained and 
authorized person that is capable of moving the vehicle must be in 
attendance at all times. SLP-27 section 3.4.5.
    7. Cargo compartments should be locked and sealed with the 
corresponding seal numbers recorded on the shipping paper. SLP-27 
section 3.4.6.
    8. A route plan, that includes all stops, must be prepared for 
Division 1.1, 1.2, and 1.3 materials in accordance with 49 CFR 
397.67(d). SLP-27 section 3.4.7.
    9. A dual driver program should be used for certain materials if 
the shipment cannot be completed within a single driver's hours-of-
service. SLP-27 section 3.4.8.
    10. Only vehicles capable of two way communication or those 
equipped with a two-way GPS system should be used for the 
transportation of Class 1 materials. In addition, shipments that are 
longer than 11 hours in duration should be monitored by GPS or by an 
equivalent tracking system. SLP-27 section 3.1.9.
    11. A battery disconnect switch or steering wheel lock should be 
installed on vehicles transporting Class 1 materials. SLP-27 section 
3.4.10.
    12. If mechanical problems occur the driver should contact 
dispatch, proceed to the safest possible location, and always stay with 
the vehicle. SLP-27 section 3.4.11.
    13. The driver should not stop to render aid to others. SLP-27 
section 3.4.11.3.
    14. If an incident occurs the driver should contact dispatch and 
State law enforcement officials immediately. SLP-27 section 3.4.11.2.

Transportation by Vessel

    1. Division 1.1, 1.2, and 1.3 materials should be staged in a safe 
haven or area designated by the Captain of the Port (COTP). SLP-27 
section 3.5.1.
    2. A qualified individual should serve as the Responsible Safety 
and Security Individual (RSSI). The RSSI should be present when 
Division 1.1, 1.2, or 1.3 materials are handled at the berth. SLP-27 
section 3.5.2.
    3. Emergency response plans should be consistent with those 
described in 29 CFR 1910.120(q) and 33 CFR. SLP-27 section 3.5.3.1.
    4. The facility operator should develop an emergency response plan 
for the facility, a copy of which should be distributed to the RSSI, 
port authority, regulatory authority, and master of the ship. In 
addition, the facility operator should notify the local authorities of 
the net explosive quantity at least 24-hours in advance of the expected 
handling dates. SLP-27 section 3.5.3.4.
    5. The vessel operator should maintain the vessel in a manner that 
would allow for immediate departure, should the need arise. SLP-27 
section 3.5.3.5.
    6. The emergency response plans for the ship and waterfront 
facility should be consistent. SLP-27 section 3.5.3.6.
    7. The RSSI should ensure that the shipping papers accurately 
indicate the total amount of Class 1 materials on the vessel. SLP-27 
section 3.5.6.
    8. For loading and unloading the RSSI should have a list of each 
container or trailer and confirm that each is on the list. SLP-27 
sections 3.5.7.1 and 3.5.8.1.
    9. Loading and unloading should be done in a manner that does not 
cause undue delay and minimizes the amount of time explosives are in 
the berth. SLP-27 sections 3.5.7.4 and 3.5.8.5.
    10. The facility operator should inspect packages of Class 1 
material for evidence of unauthorized entry. If such evidence exists 
the facility operator should contact the RSSI. SLP-27 section 3.5.8.6.
    11. Only the motor vehicles required to load or unload the 
explosives are allowed in the berth or inside the warehouse. The 
drivers should stay in the immediate vicinity of their vehicles. 
Division 1.1, 1.2, and 1.3 materials should be attended at all times. 
SLP-27 section 3.5.9.
    12. To maintain safety and security Division 1.1, 1.2, and 1.3 
shipments that involve the use of multiple shippers and carriers should 
be planned in advance and coordinated with facility operator. SLP-27 
section 3.5.11.
    13. The RSSI should maintain contact with the U.S. Coast Guard, 
master of the

[[Page 69500]]

ship and facility operator, and the motor carrier when Class 1 
materials are being handled. SLP-27 section 3.5.12.
    14. When Class 1 materials are in the berth only the personnel 
needed to do the job in a safe and secure manner should be present. 
SLP-27 section 3.5.13.3.
    15. Waterfront facilities that handle explosives should meet the 
standards for interchange lots found in NFPA 498. SLP-27 section 
3.5.13.4.

X. SDDC Freight Traffic Rules Publication No. 1C

    The Department of Defense (DOD) has published standards for non-
government safe havens used for commercial shipments of DOD munitions 
made under the provisions of Surface Deployment and Distribution 
Command (SDDC) Freight Traffic Rules Publication No. 1C (MFTRP No. 1C). 
The rules apply to DOD shipments of explosives. Following is a list of 
key requirements in MFTRP No. 1C that apply to explosives stored during 
transportation:
    1. The rules outlined in Section 4, Part A apply to explosives 
classified as Division 1.1, 1.2, 1.3, and 1.4. MFTRP No. 1C--Item 300.
    2. When a shipment arrives at an installation during other than 
consignee designated hours a temporary holding area will be provided 
for shipments. The installation will provide safety and security 
protection as outlined in Part II, Chapter 205 of the Defense 
Transportation Regulation (DTR). MFTRP No. 1C--Item 305.
    3. Secure holding in the event of emergencies, such as when 
shipments of Class 1, Division 1.1, 1.2, 1.3, or 1.4 (A, B, or C) 
materials are endangered by civil disturbance or natural disaster or 
prevented from proceeding to destinations by circumstances beyond the 
control of the carrier. Secure holding requirements:
    a. The carrier will notify the consignor and consignee of the 
delay.
    b. Shipments must be removed from secure holding as soon as the 
shipment is no longer endangered.
    c. Vehicles in a secure holding will be parked inside an 
appropriate security area (fenced area).
    d. Installation security will be extended when required to provide 
reasonable protection.
    e. Shipping documents will be examined to prevent surreptitious 
entry of any unauthorized shipments into the installation.
    f. Installation personnel will determine if carrier personnel will 
remain with the vehicle for constant surveillance.
    g. Inspection provisions will be applied.
    h. For parking lots and rail yards the compatibility restrictions 
and quantity-distance requirements of DOD Manual 6055.9 STD must be 
applied. MFTRP No. 1C--Item 310.
    4. Terminal Security Standards. The carrier must maintain a 
comprehensive security plan including facility security. Diagram of the 
terminal that shows controlled and restricted areas, security force 
locations, surveillance equipment locations, and implementation 
procedures for the plan. Included in the plan are the following:
    a. Access Control.
    b. Guard Force standards, qualification, training, equipment.
    c. Fencing.
    d. Lighting.
    e. Barriers (e.g., jersey concrete barriers, etc.).
    f. Key and lock control.
    g. Emergency communications.
    h. Emergency power.
    i. Emergency response forces.
    j. Procedures for response to terrorism/criminal threats or other 
emergencies.
    Small arms, ammunition and explosives must be afforded double 
barrier protection. General terminal areas will be designated 
``controlled areas'' and surrounded by a perimeter fence to limit 
access. Secure trailer and/or drom parking areas will be designated 
``restricted areas'' and will be located within the established 
controlled area. The restricted area will be located in a revetment 
area protected by an earth-graded berm a minimum of 20 feet in height. 
The restricted area will also be protected by its own perimeter fence 
located on top of the earth-graded berm. The entrance into the 
restricted area will be constructed in such a way that it prevents a 
straight drive/view into the parking area. Since the guards do not have 
direct unobstructed view of the entire area, the restricted area will 
have a color Closed Circuit Television (CCTV) system to provide 
enhanced security over the parking area. Administrative buildings that 
are located within the terminal, maintenance facilities and terminal 
guard stations will be included within the controlled area and provided 
CCTV coverage. Structures used by security forces will be of 
substantial construction (i.e. masonry or shielded) to mitigate any 
threat from small arms fire. Warning signs must be posted at each entry 
point and along the terminal perimeter where they can be easily seen 
and understood by anyone approaching the terminal facility. In areas 
where English is one of two or more languages commonly spoken, warning 
signs will contain the local language in addition to English. The 
wording of the signs will denote warning of a restricted area. Warning 
signs will be posted at intervals not to exceed 100 feet. MFTRP No. 
1C--Item 312.
    5. These provisions are very similar to the safe haven requirements 
found in NFPA 498. They provide the minimum required safety standards 
for commercial carrier terminals to handle Division 1 ammunition and 
explosives. This Item requires carriers to have a comprehensive site 
plan. The terminal must be approved by a State or local HAZMAT 
approving authority. The terminal must have a clear zone of 20 feet 
inside and 20 feet outside of the perimeter that is clear of weeds, 
brush, vegetation or other combustible material. No smoking signs that 
include the emergency response number to call in the event of a fire. 
Terminal employees must be informed of the hazard classification of 
explosives and the danger posed to them. Vehicle that can move 
explosive trailers must be kept in terminal at all times. Fire 
protection equipment must be provided.
    Vehicles must undergo a safety inspection. Spacing of 5 feet is 
required between parked trailers. The trailers must be maintained in 
highway condition. No vehicle transporting other hazardous materials, 
including commercial explosives, must be parked in a terminal unless 
the materials being transported are compatible with explosives. No 
repair work, no smoking or spark producing devices, and no electrical 
lines closer then the length of the lines. MFTRP No. 1C--Item 314.

XI. Comments

    Shippers and carriers of explosives and other high-hazard materials 
are urged to carefully consider the implications of incorporating these 
governmental and industry standards into the HMR. We urge you to 
consider the effects on transportation safety and security at 
explosives storage facilities and the effects on the intermodal 
transportation of explosives. Commenters should be aware that the 
information and data generated in response to this ANPRM could result 
in a notice of proposed rulemaking that would apply more generally to 
shippers and carriers of explosives and other high-hazard materials. We 
invite commenters to submit data and information on:
    1. The effectiveness of different types of safety and security 
measures.
    2. The costs involved with implementing specific safety and 
security measures.

[[Page 69501]]

    3. The related safety or productivity benefits that would help 
offset costs.
    4. The effect that implementing specific safety and security 
measures will have on the human environment.
    5. Ways or incentives that may be appropriate to consider in 
promoting adoption of safety and security measures in conjunction with 
or separate from general regulatory requirements.
    6. The overall safety and security of safe havens for temporary 
storage during transportation, including suggestions for improving 
security at safe havens or alternatives to the use of safe havens.
    7. The conditions and circumstances under which temporary storage 
in safe havens should be required.
    8. Whether specific safety and security measures should be limited 
to certain explosives and, if so, which explosives might warrant 
specific security or safety measures (i.e., to which explosives in 
Division 1 through Division 6 and in what quantity should these 
measures apply).
    9. Whether enhanced safety or security requirements for storage 
during transportation should also apply to other types of hazardous 
materials (e.g., materials toxic by inhalation) and, if so, which 
hazardous materials.
    10. Whether enhanced safety or security requirements for storage 
during transportation should apply to transportation by all modes or 
only certain specified forms of transportation (e.g., railroad, 
highway, etc.).
    11. Whether we should consider aggregation limits on the storage of 
explosives and other high-hazard materials at a single facility during 
transportation.
    12. Whether we should consider limits on the time that a shipment 
of explosives or other high-hazard materials could be stored during 
transportation.
    13. Whether shipping documents should indicate that a shipment will 
be stored at a safe haven or other facility during transportation.
    14. Whether the regulations and standards outlined in this ANPRM 
can be transformed into multimodal storage requirements for the 
transportation of explosives.
    15. Whether there are additional standards, other than those 
outlined above, that we should take into consideration.
    16. Whether development of an industry or consensus standard or 
regulation should be pursued in this area.
    We are particularly interested in comments from explosives shippers 
and carriers and State governments regarding their experiences with 
safe havens. We would like to know if State and local governments have 
concerns regarding the use of safe havens in and around their 
communities, including possible economic impacts of terrorist 
activities or accidents. We would like information on the benefits 
realized, the costs incurred, any technical or practical difficulties 
encountered, and other real-world experience gained from transporting 
or regulating the transportation of explosives as it relates to safe 
havens.

XII. Regulatory Notices

A. Executive Order 12866: Regulatory Planning and Review

    Executive Order 12866 requires agencies to regulate in the ``most 
cost-effective manner,'' to make a ``reasoned determination that the 
benefits of the intended regulation justify its costs,'' and to develop 
regulations that ``impose the least burden on society.'' We therefore 
request comments, including specific data if possible, concerning the 
costs and benefits that may be associated with adoption of specific 
security and storage requirements for carriers that include explosives 
storage as part of their transportation cycle.

B. Executive Order 13132: Federalism

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. We invite State and local governments 
with an interest in this rulemaking to comment on the effect that 
adoption of specific storage and security requirements for carriers 
that transport and store explosives in commerce may have on State or 
local safety or environmental protection programs.

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

    Executive Order 13175 requires agencies to assure meaningful and 
timely input from Indian tribal government representatives in the 
development of rules that ``significantly or uniquely affect'' Indian 
communities and that impose ``substantial and direct compliance costs'' 
on such communities. We invite Indian tribal governments to provide 
comments as to the effect that adoption of specific storage and 
security requirements for explosives that are transported in commerce 
may have on Indian communities.

D. Regulatory Flexibility Act

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

E. National Environmental Policy Act

    The National Environmental Policy Act of 1969 (NEPA) requires 
Federal agencies to consider the consequences of major Federal actions 
and that they prepare a detailed statement on actions significantly 
affecting the quality of the human environment. Interested parties are 
invited to address the potential environmental impacts of regulations 
applicable to the storage of explosives transported in commerce. We are 
particularly interested in comments about safety 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.

F. Statutory/Legal Authority for This Rulemaking

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

G. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rulemaking is considered a significant regulatory action under 
section 3(f) of Executive Order 12866 and the Regulatory Policies and 
Procedures of the Department of Transportation (44 FR 11032). This 
ANPRM was reviewed by the Office of Management and Budget.

[[Page 69502]]

    E.O. 12866 requires agencies to regulate in the ``most cost-
effective manner,'' to make a ``reasoned determination that the 
benefits of the intended regulation justify its costs,'' and to develop 
regulations that ``impose the least burden on society.'' We therefore 
request comments, including specific data if possible, concerning the 
costs and benefits of incorporating requirements for the storage of 
explosives and other high-hazard materials during transportation into 
the HMR.

H. Regulation Identifier Number (RIN)

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

I. Privacy Act

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

    Issued in Washington, DC, on November 10, 2005, under authority 
delegated in 49 CFR part 106.
Robert McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 05-22751 Filed 11-15-05; 8:45 am]
BILLING CODE 4910-60-P