February 14, 2006
Docket Management System
US Department of Transportation
400 7th St. SW
Nassif Building, Room PL-402
Washington, DC 20590-0001
HM-238 Comments on Docket No. PHMSA – 2005-22987 (HM-238); Requirements for the Storage of Explosives and Other High-Hazard
Materials During Transportation
DGAC is a non-profit educational organization that promotes hazmat transportation safety by providing classroom training,
seminars and conferences, and participation in domestic and international regulatory activities in its promotion of not
only safe, but also efficient transportation of hazardous materials/dangerous goods in commerce.
PHMSA’s intent with respect to requiring the use of safe havens is unclear. The preamble provides a detailed discussion
of relevant industry explosive safety practices and regulations that are already applicable, including a description of
the FMCSA regulation §397.5 authorizing parking a vehicle in a safe haven in lieu of attendance of a vehicle transporting
Class 1.1, 1.2 and 1.3 explosives. We note that FMCSA on its website identifies other means of attending a vehicle other
than presence of the driver. A fuel stop operator may be a "qualified representative" for purposes of the attendance and
surveillance requirements under specified conditions and a video monitor may also be used to satisfy the attendance
requirements. With these interpretations as well as other available alternatives (e.g., dual drivers) in mind, DGAC agrees
with the FMCSA website stated belief that “the safe haven concept is becoming increasingly obsolete due to readily available
alternatives for providing "attendance at all times" for vehicles laden with explosives.” This raises the question of how
frequently a safe haven would actually be needed and whether it is practicable to provide a robust nationwide system of safe
havens for those limited times they are required.
Given the vastness of the highway transportation system, the limited financial resources of carriers, the wide pattern of travel
by even “small business” carriers, it is clear that if safe havens are to be provided on a wide scale they would have to be
provided by Federal, state or local governments. At present only a limited number of facilities are available, generally in
support of DOD shipments. Depending on the extent to which the requirement for the use of safe havens is applied, the number of
facilities needed could be substantial. The 500 mile spacing along major routes quoted in the preamble may not be sufficient
given the need to move hazardous materials throughout the country, limits on driver hours of service and variations in
distribution patterns. Provision of safe havens to a greater extent than already provided would likely require Congressional
action to establish a funding program similar to the Motor Carrier Safety Assistance Program. Even with sufficient funding,
establishment of safe havens in many localities would likely prove impracticable in the face of legal challenges on the local
level in light of FMCSA’s current requirement in §397.5(d)(3) that the safe haven must be approved by a governmental body.
Further, even with a comprehensive system of safe havens in place, DGAC questions the security benefit actually gained. Safety
and/or security could be diminished through extensive use of safe havens in that it would lead to greater predictability of the
routes taken and the location of hazmat shipments in storage incident to transportation and would tend to result in concentrating
hazmat shipments in a single location thus increasing the possible severity of an incident occurring at a safe haven facility.
Intransit storage of a vehicle in a safe haven is identified by regulation as an alternative to vehicle attendance of a stopped
vehicle in a publicly accessible location such as a rest area. On this basis, a safe haven providing a level of safety and security
equivalent to vehicle attendance should be considered acceptable. DGAC believes that written approval of a safe haven by a
governmental authority as currently required by §397.5(d)(3) unnecessarily frustrates establishment of safe havens and considers
the requirement inappropriate. DGAC favors deleting this requirement and substituting requirements identifying minimum standards
for safe havens. DGAC believes that facilities meeting NFPA 498, Standards for Safe Havens and Interchange Lots for Vehicles
Transporting Explosives (2006 ed.) should be recognized as suitable safe havens.
A requirement for wider use of safe havens will likely further frustrate the transport of affected hazardous materials. For example,
stepped up security for LTL shipments of 1.3C explosives may cause some LTL carriers to withdraw from transporting these materials
which already incur higher costs due to attendance, insurance and FMCSA permit requirements.
For air transport, 49 CFR 1542 addresses the security at airport facilities. We see no need for PHMSA to apply additional security
measures to these areas.
The Dangerous Goods Advisory Council (DGAC) appreciates the opportunity to comments on the HM-238 ANPRM.
Sincerely,
Michael Morrissette
President
