# Hazardous Materials: Requirements for the Safe Transportation of Bulk Explosives (RRR)

- **operation:** document
- **citation:** 80 FR 79424
- **title:** Hazardous Materials: Requirements for the Safe Transportation of Bulk Explosives (RRR)
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2015-12-21
- **effective on:** 2016-01-20
- **summary:** The Pipeline and Hazardous Materials Safety Administration (PHMSA) is amending the Hazardous Materials Regulations by establishing standards for the safe transportation of explosives on cargo tank motor vehicles and multipurpose bulk trucks transporting materials for blasting operations. This rulemaking is responsive to two petitions for rulemaking submitted by industry representatives: P-1557, concerning the continued use of renewal applications, and P-1583, concerning the incorporation of an industry standard publication. Further, developing these requirements provides wider access to the regulatory flexibility currently only offered by special permits and competent authorities. The requirements of this final rule mirror the majority of provisions contained in nine widely-used longstanding special permits that have established safety records. These requirements eliminate the need for future renewal requests, thus reducing paperwork burdens and facilitating commerce while maintaining a commensurate level of safety. This final rule authorizes the transportation of certain explosives, ammonium nitrates, ammonium nitrate emulsions, and other specific hazardous materials in both non-bulk and bulk packagings, which are not otherwise authorized under current regulations. These hazardous materials are used in blasting operations on cargo tank motor vehicles and specialized vehicles, known as multipurpose bulk trucks, which are used as mobile work platforms to create blends of explosives that are unique to each blast site. Finally, this rulemaking addresses the construction of new multipurpose bulk trucks.
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Federal Register, Volume 80 Issue 244 (Monday, December 21, 2015) [Federal Register Volume 80, Number 244 (Monday, December 21, 2015)] [Rules and Regulations] [Pages 79424-79453] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2015-31880] [[Page 79423]] Vol. 80 Monday, No. 244 December 21, 2015 Part II Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 171, 172, 173, et al. Hazardous Materials: Requirements for the Safe Transportation of Bulk Explosives (RRR); Final Rule Federal Register / Vol. 80 , No. 244 / Monday, December 21, 2015 / Rules and Regulations [[Page 79424]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, and 177 [Docket No. PHMSA-2011-0345 (HM-233D)] RIN 2137-AE86 Hazardous Materials: Requirements for the Safe Transportation of Bulk Explosives (RRR) AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Pipeline and Hazardous Materials Safety Administration (PHMSA) is amending the Hazardous Materials Regulations by establishing standards for the safe transportation of explosives on cargo tank motor vehicles and multipurpose bulk trucks transporting materials for blasting operations. This rulemaking is responsive to two petitions for rulemaking submitted by industry representatives: P-1557, concerning the continued use of renewal applications, and P-1583, concerning the incorporation of an industry standard publication. Further, developing these requirements provides wider access to the regulatory flexibility currently only offered by special permits and competent authorities. The requirements of this final rule mirror the majority of provisions contained in nine widely-used longstanding special permits that have established safety records. These requirements eliminate the need for future renewal requests, thus reducing paperwork burdens and facilitating commerce while maintaining a commensurate level of safety. This final rule authorizes the transportation of certain explosives, ammonium nitrates, ammonium nitrate emulsions, and other specific hazardous materials in both non-bulk and bulk packagings, which are not otherwise authorized under current regulations. These hazardous materials are used in blasting operations on cargo tank motor vehicles and specialized vehicles, known as multipurpose bulk trucks, which are used as mobile work platforms to create blends of explosives that are unique to each blast site. Finally, this rulemaking addresses the construction of new multipurpose bulk trucks. DATES: Effective Date: This final rule is effective January 20, 2016. Incorporation by reference date: The incorporation by reference of the publication listed in this rule is approved by the Director of the Federal Register as of January 20, 2016. ADDRESSES: You may find information on this rulemaking (Docket No. PHMSA-2011-0345) at Federal eRulemaking Portal: http://www.regulations.gov . FOR FURTHER INFORMATION CONTACT: Matthew Nickels, (202) 366-8553, Standards and Rulemaking Division, Office of Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590. SUPPLEMENTARY INFORMATION: Table of Contents of Supplementary Information I. Executive Summary II. Background A. Special Permits B. Petitions for Rulemaking III. Incorporation by Reference Discussion Under 1 CFR Part 51 IV. List of Commenters V. Summary and Discussion of Public Comments A. Incorporation by Reference B. Hazardous Materials Table and Special Provision 148 C. New Section 173.66 on the Requirements for Bulk Explosives D. Loading and Unloading Language for Class 1 (Explosive) Materials VI. Section-by-Section Review of Amendments A. Part 171 B. Part 172 C. Part 173 D. Part 177 VII. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking B. Executive Order 13610, Executive Order 13563, Executive Order 12866, and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Paperwork Reduction Act G. Regulatory Identifier Number (RIN) H. Unfunded Mandates Reform Act I. Environmental Assessment and Finding of No Significant Impact J. Privacy Act K. Executive Order 13609 and International Trade Analysis L. National Technology Transfer and Advancement Act M. Executive Order 13211 I. Executive Summary The Pipeline and Hazardous Materials Safety Administration (PHMSA) is issuing this final rule, titled ``Hazardous Materials: Requirements for the Safe Transportation of Bulk Explosives (RRR),'' in order to establish standards for the safe transportation of explosives on cargo tank motor vehicles (CTMV) and multipurpose bulk trucks (MBTs) transporting materials for blasting operations. This final rule is responsive to two petitions for rulemaking submitted by industry representatives: P-1557, concerning the continued use of renewal applications, and P-1583, concerning the incorporation of an industry standard publication. Further, codifying these new requirements provides wider access to the regulatory flexibility currently offered only by special permits and competent authority approvals. This final rule will eliminate the need for future renewal requests of nine special permits (the transportation of certain explosives, ammonium nitrates, ammonium nitrate emulsions, and other specific hazardous materials in bulk packaging) that have established safety records. These amendments will reduce paperwork burdens and facilitate commerce while maintaining an appropriate level of safety. PHMSA published a notice of proposed rulemaking (NPRM) on July 15, 2014, under Docket HM-233D (PHMSA-2011-0345). See 79 FR 41185.\1\ This final rule addresses comments to the NPRM and amends the existing hazardous materials regulations (HMR; 49 CFR parts 171-180) pertaining to the following: --------------------------------------------------------------------------- \1\ https://www.federalregister.gov/articles/2014/07/15/2014-16382/hazardous-materials-requirements-for-the-safe-transportation-of-bulk-explosives-rrr . --------------------------------------------------------------------------- Incorporating by reference (IBR) the Institute of Makers of Explosives' (IME) Safety Library Publication No. 23 ``Recommendations for the Transportation of Explosives, Division 1.5, Ammonium Nitrate Emulsions, Division 5.1, Combustible Liquids, Class 3 and Corrosives, Class 8 in Bulk Packaging'' (referred to as IME Standard 23). Establishing requirements directing manufacturers of newly constructed or modified MBTs to comply with certain National Highway Traffic Safety Administration (NHTSA) requirements known as the Federal Motor Vehicle Safety Standards (FMVSS) found in 49 CFR part 571. PHMSA is confident that this final rule is of benefit to both the public and the industry, as it will: (1) Eliminate the need for firms to apply individually for the transportation of certain classes of bulk materials in MBTs, (2) provide regulatory flexibility and relief while maintaining a high level of safety, (3) promote safer transportation practices, (4) facilitate commerce, (5) reduce paperwork burdens, (6) protect the [[Page 79425]] public health, welfare, safety, and environment, and (7) eliminate unnecessary regulatory requirements. In the NPRM, PHMSA encouraged all interested parties, particularly the holders of the nine currently active special permits (discussed in Section II. Background), to submit comments on the proposals discussed. Additionally, we asked that commenters give feedback on the NPRM's preliminary Regulatory Impact Analysis \2\ (RIA) and the underlying proposed benefit-cost estimates, and provide additional recommendations to improve the final rule language and increase regulatory flexibility. --------------------------------------------------------------------------- \2\ See http://www.regulations.gov and insert PHMSA-2011-0345- 0004 into the ``Search for:'' box. --------------------------------------------------------------------------- II. Background A. Special Permits In this final rule, PHMSA is amending the HMR by establishing standards for the safe transportation of explosives on CTMVs and MBTs transporting materials for blasting operations. These standards for bulk explosives mirror the majority of provisions contained in nine widely-used longstanding special permits issued by PHMSA under 49 CFR part 107, subpart B (Sec. Sec. 107.101 to 107.127). A special permit sets forth alternative requirements (variances) to the requirements in the HMR in a way that achieves a safety level at least equal to that required under the regulations or that is consistent with the public interest. Congress expressly authorized DOT to issue these variances in the Hazardous Materials Transportation Act of 1975 as amended. For an in-depth discussion on what special permits are and why incorporating them into the HMR is necessary, please review the Section II. Background preamble discussion in the NPRM (July 15, 2014; 79 FR 41185; 41187).\3\ --------------------------------------------------------------------------- \3\ http://www.gpo.gov/fdsys/pkg/FR-2014-07-15/pdf/2014-16382.pdf . --------------------------------------------------------------------------- This final rule incorporates elements of nine special permits (by way of incorporating IME Standard 23) that authorize multipurpose bulk truck operations not specifically permitted under the HMR. These amendments eliminate the need for hundreds of current grantees to reapply for renewal of nine special permits every four years and for PHMSA to process those renewal applications. These nine special permits are: DOT-SP 4453: Authorizes the transportation in commerce of certain Division 1.5D explosives contained in non-DOT specification bulk, hopper-type tanks. This special permit was issued in 1980 and is utilized by 22 grantees with acceptable safety performance. DOT-SP 5206: Authorizes the transportation in commerce of certain Division 1.5D explosives contained in privately operated bulk hopper-type units. This special permit has been in effect since 1980 and is utilized by one grantee with acceptable safety performance. DOT-SP 8453: Authorizes the transportation in commerce of certain Division 1.5D explosives and Division 5.1 materials contained in DOT specification cargo tanks and certain non-DOT specification cargo tanks and portable tanks. This special permit has been in effect since 1980 and is utilized by 33 grantees with acceptable safety performance. DOT-SP 8554: Authorizes the transportation in commerce of certain Division 1.5D explosives and/or Division 5.1 oxidizers in the bulk motor vehicles described in the special permit. This special permit has been in effect since 1981 and is utilized by at least 38 grantees with acceptable safety performance. DOT-SP 8723: Authorizes the transportation in commerce of certain Division 1.5 explosives and/or Division 5.1 oxidizers, in bulk, in DOT specification and non DOT specification packagings described in the special permit. This special permit has been in effect since 1981 and has been utilized by at least 31 grantees with acceptable safety performance. DOT-SP 9623: Authorizes the transportation in commerce of certain Division 1.5D explosives and Division 5.1 oxidizers in a cargo tank with a dromedary compartment (cargo compartments) containing Division 1.1 explosives mounted directly behind the trailer cab subject to the limitations specified in the special permit. This special permit was issued in 1986 and is utilized by seven grantees with acceptable safety performance. DOT-SP 10751: Authorizes the transportation in commerce of certain Division 1.1, 1.4, and 1.5 explosives, Division 5.1 oxidizers, and Class 3 combustible liquids in separate containers mounted on the same vehicle frame structure. This special permit was issued in 1994 and is utilized by 16 grantees with acceptable safety performance. DOT-SP 11579: Authorizes the transportation in commerce of certain Division 1.1B, 1.1D, 1.4B, 1.4D, 1.4S, and 1.5D explosives, Division 5.1 oxidizers, Class 8 materials, and Class 3 combustible liquids in separate containers secured on the same vehicle frame structure. This special permit was issued in 1996 and is utilized by 65 grantees with acceptable safety performance. DOT-SP 12677: Authorizes the transportation in commerce of certain Division 1.1, 1.4, and 1.5D explosives, Division 5.1 oxidizers, Class 8 corrosive liquids, and Class 3 combustible liquids in separate containers secured on the same vehicle frame structure. This special permit was issued in 2001 and is utilized by eight grantees with acceptable safety performance. This final rule benefits the regulated community by incorporating into the HMR these nine special permits (221 grantees) with well- established safety records \4\ thus reducing paperwork burdens and facilitating commerce while maintaining an appropriate level of safety. --------------------------------------------------------------------------- \4\ Over the past 10 years, there have been 43 reported transportation incidents in the U.S. involving multipurpose bulk trucks. During this same period, there has never been a death or major injury attributed to the hazardous materials while in transportation when there was compliance with the regulations. While there has been one incident that resulted in a fatality in that 10 year period, it involved a vehicular crash and human error, and was not attributed to the transportation of the hazardous materials. Overall most incidents (90 percent) resulted in spillage; fewer incidents resulted in vapor dispersion (3 percent), environmental damage (0.5 percent), fire (0.5 percent), waterway infringement (0.4 percent), and explosion (0.1 percent.) Most of the time, the closures or covers in portable tanks failed, causing leaks. Detailed hazardous materials incident reports for hazardous materials incidents specified in Sec. 171.16 may be found at the PHMSA Web site at the following URL: https://hazmatonline.phmsa.dot.gov/IncidentReportsSearch/Search.aspx . --------------------------------------------------------------------------- B. Petitions for Rulemaking Two components in this final rule were presented to PHMSA in petitions for rulemaking. 1. Petition No. P-1557 The petition from R&R (P-1557) dated March 23, 2010, asked PHMSA to eliminate the need to operate under the terms and conditions of a special permit for deliveries of certain types of bulk explosives, and to develop bulk explosive requirements in the HMR. R&R Trucking stated that ``the request is limited to Explosives, blasting, type E, 1.5D, UN0332, PG [Packing Group] II and Ammonium nitrate emulsion, 5.1, UN3375, PG II, transported on articulated DOT specification CTMVs.'' Further, the petition stated that ``no other hazardous material may be loaded into or carried on the vehicle or any vehicle in a combination of vehicles when transporting either of these materials in the approved bulk packaging.'' A more detailed description [[Page 79426]] of P-1557 is available in the Section II. Background preamble discussion in the NPRM (July 15, 2014; 79 FR 41185; 41188).\5\ --------------------------------------------------------------------------- \5\ http://www.gpo.gov/fdsys/pkg/FR-2014-07-15/pdf/2014-16382.pdf . --------------------------------------------------------------------------- PHMSA agrees with the petitioner on the merit of establishing requirements for the transportation of bulk explosives in commerce. With the incorporation of IME Standard 23 in this final rule, PHMSA is establishing all relevant and appropriate requirements set out in the current multipurpose bulk transportation special permits,\6\ including the special permits under which R&R Trucking operates. It should be noted that while we are not incorporating every provision in all nine special permits, we have established criteria to transport these commodities in conformance with the HMR. --------------------------------------------------------------------------- \6\ DOT-SP 4453, DOT-SP 5206, DOT-SP 8453, DOT-SP 8554, DOT-SP 8723, DOT-SP 9623, DOT-SP 10751, DOT-SP 11579, and DOT-SP 12677. --------------------------------------------------------------------------- 2. Petition No. P-1583 The petition from IME (P-1583) dated May 13, 2011, asked PHMSA to develop bulk explosive requirements in the HMR by incorporating by reference IME Safety Library Publication No. 23, Recommendations for the Transportation of Explosives Division 1.5, Ammonium Nitrate Emulsions Division 5.1, Combustible Liquids Class 3, and Corrosives Class 8 in Bulk Packagings. IME's petition stated that: (1) The long- term, ubiquitous, and safe transport of explosives in bulk form, including the use of MBT technology, warrant expansion of the HMR to include established requirements of general applicability governing these transportation practices; and (2) the recommendations included in IME Standard 23 represent industry-wide best practices that, collectively, prescribe a higher standard of safety than the requirements included in the special permits currently used to authorize this transportation. A more detailed description of P-1583 is available in the Section II. Background preamble discussion in the NPRM (July 15, 2014; 79 FR 41185; 41189).\7\ --------------------------------------------------------------------------- \7\ http://www.gpo.gov/fdsys/pkg/FR-2014-07-15/pdf/2014-16382.pdf . --------------------------------------------------------------------------- PHMSA agrees with the petitioner's request to develop bulk explosive requirements in the HMR by proposing to incorporate by reference IME Standard 23. Codifying these new requirements in this final rule and incorporating IME Standard 23 into the HMR provides wider access to the regulatory flexibility currently offered only by special permits and competent authority approvals. Access to the petitions referenced in this final rule can be found at http://www.regulations.gov under Docket Numbers ``PHMSA-2010-0101'' (P-1557), and ``PHMSA-2011-0137'' (P-1583).\8\ --------------------------------------------------------------------------- \8\ http://www.regulations.gov/ . --------------------------------------------------------------------------- III. Incorporation by Reference Discussion Under 1 CFR Part 51 The Institute of Makers of Explosives' (IME) Safety Library Publication No. 23 ``Recommendations for the Transportation of Explosives, Division 1.5, Ammonium Nitrate Emulsions, Division 5.1, Combustible Liquids, Class 3 and Corrosives, Class 8 in Bulk Packaging'' (referred to as IME Standard 23) is free and easily accessible to the public via the Web site provided by the parent organization. Access to the IME Standard 23 publication incorporated by reference is also available for public download and review at: http://www.ime.org/ . Under the ``Publications & Products'' tab, click the ``Safety Library Publications'' link \9\ and either order a physical copy or download a free PDF copy via email. Also, a copy of the IME Standard 23 publication has been added to the Docket \10\ under ``PHMSA-2011-0345'' at http://www.regulations.gov . IME Standard 23 is discussed in VI. Section-by-section Review of Amendments (A. Part 171- Section 171.7) of this final rule. --------------------------------------------------------------------------- \9\ https://www.ime.org/products/category/safety_library_publications_slps . \10\ http://www.regulations.gov/ . --------------------------------------------------------------------------- IV. List of Commenters In response to PHMSA's July 15, 2014 NPRM (79 FR 41185), PHMSA received comments from various stakeholders. The organizations who commented are listed in Table 1: Table 1--List of Organizations Commenting on the HM-233D NPRM ------------------------------------------------------------------------ Assigned docket Number Name Docket URL ------------------------------------------------------------------------ PHMSA-2011-0345-0005........ Institute of Makers http:// of Explosives (IME). www.regulations.gov/ #!documentDetail;D= PHMSA-2011-0345- 0005. PHMSA-2011-0345-0006........ Dangerous Goods http:// Advisory Council www.regulations.gov/ (DGAC). #!documentDetail;D= PHMSA-2011-0345- 0006. PHMSA-2011-0345-0007........ R&R Trucking (R&R).. http://www.regulations.gov/#!documentDetail ;D= PHMSA-2011-0345- 0007. PHMSA-2011-0345-0008........ Council on Safe http:// Transportation of www.regulations.gov/ Hazardous Articles #!documentDetail;D= (COSTHA). PHMSA-2011-0345- 0008. PHMSA-2011-0345-0009........ Council on Safe http:// Transportation of www.regulations.gov/ Hazardous Articles #!documentDetail;D= (COSTHA) IME PHMSA-2011-0345- Support. 0009. PHMSA-2011-0345-0010........ IME Supplemental http:// Comments. www.regulations.gov/ #!documentDetail;D= PHMSA-2011-0345- 0010. ------------------------------------------------------------------------ V. Summary and Discussion of Public Comments Discussed in the following sections is a list of the major amendments PHMSA proposed for adoption into the HMR in the NPRM, a brief synopsis of the comments we received in response to those proposals, and our position regarding those comments received to the NPRM. Furthermore, the amendments we are finalizing in this final rule are addressed in Section VI. Section-by-section Review of Amendments. A. Incorporation by Reference In the NPRM, PHMSA proposed to incorporate by reference the latest edition of the technical standard published by IME, known as ``Safety Library Publication No. 23 Recommendations for the Transportation of Explosives, Division 1.5, Ammonium Nitrate Emulsions, Division 5.1, Combustible Liquids, Class 3 and Corrosives, Class 8 in Bulk Packaging'' (referred to as IME Standard 23). The intent behind proposing to incorporate by reference IME Standard [[Page 79427]] 23 was to establish general requirements of: (1) A single bulk hazardous material for blasting by CTMV; and (2) CTMVs capable of transporting multiple hazardous materials for blasting in bulk and non- bulk packagings. PHMSA received general support from the commenters on the principle of utilizing industry consensus standards as a necessary and effective approach, with IME, Dangerous Goods Advisory Council (DGAC), and R&R specifically, endorsing IME Standard 23. We did not receive any comments that opposed our proposals to incorporate this standard and we are adopting it as proposed. B. Hazardous Materials Table and Special Provision 148 As previously discussed, in the NPRM PHMSA proposed to incorporate IME Standard 23 into the HMR and establish requirements of general applicability governing the transportation of: (1) A single bulk hazardous material for blasting by CTMV; and (2) CTMVs capable of transporting multiple hazardous materials for blasting in bulk and non- bulk packagings. However, as noted in the NPRM, the HMR does not permit the transportation in bulk packaging of certain Class 1 and Class 5 hazardous materials that are used in commercial blasting operations. This type of transportation is only permitted under a PHMSA special permit. In the NPRM, we proposed that a new Special Provision 148 be added to each entry under Column 7 of the Hazardous Materials Table (HMT) for HMT entries that are listed in IME Standard 23. These HMT entries include certain hazardous materials from the following hazard classes and divisions: Divisions 1.1B, 1.1D, 1.4B, 1.4D, 1.4S and 1.5D explosives; Division 5.1 oxidizers; Class 8 corrosive liquids; and Class 3 combustible liquids. In the NPRM, Special Provision 148 was proposed in order to direct readers to Sec. 173.66, therefore only specific explosives, oxidizers, etc. will be eligible. PHMSA received general support from the commenters on the principle of revising the HMT and adding a new Special Provision 148 to appropriate HMT entries, with IME offering one suggestion. IME stated that: ``IME inadvertently included `Detonator assemblies, non-electric, for blasting, Division 1.1B, UN0360' in a pre-publication version of IME Standard 23, but removed it from the final copy. This should be removed from the HMT changes in the final rule.'' We reviewed the comment and agree with IME's suggestion and will revise the regulatory text in this final rule as needed. We did not receive any comments that opposed our proposals to revise the appropriate HMT entries and add new Special Provision 148. Therefore, in this final rule, we are amending the regulatory text and also removing the HMT entry IME noted in its comments. C. New Section 173.66 on the Requirements for Bulk Explosives In the NPRM, PHMSA proposed to add a new section to 49 CFR part 173 (Sec. 173.66), which included specific requirements for newly constructed MBTs and modifications to existing trucks. 1. Section 173.66 Preamble In the preamble of the new section, prior to paragraph (a), PHMSA proposed requirements for MBTs. We proposed that when Sec. 172.101 allowed that a Class 1 (explosive) material may be packaged in accordance with this section, only the bulk packagings specified for these materials in IME Standard 23 (IBR, see Sec. 171.7 of this subchapter) would be authorized, subject to the requirements of subparts A and B of this part and the special provisions in Column 7 of the Sec. 172.101 table. Therefore, as proposed in the NPRM, an entity operating a MBT under current conditions, such as a special permit, would be subject to operating under the IME Standard 23 document. Furthermore, as proposed in the NPRM, the additional requirements in paragraphs (a), (b), and (c) would apply to: (1) A new MBT constructed after December 31, 2014, or (2) an old MBT that requires modifications due to wear and tear (i.e., re-chassis, etc.). PHMSA received general support from the commenters on the principle of establishing a new Sec. 173.66 that outlined the requirements for bulk explosives, but the commenters had concerns with specific aspects of the regulations. Regarding compliance dates, IME commented that: Compliance Date: PHMSA proposes to trigger requirements for compliance with the FMVSS, FSS, and EBDD standards for newly constructed MBTs after December 31, 2014. While we can hope that HM- 233D is finalized by December 31, 2014, we request that the mandatory compliance date be triggered by a threshold such as 120 days after the rule is finalized. Additionally, we note that no future effective date is specified for MBTs that are modified. We would suggest that the mandatory compliance date be the same. Additionally, COSTHA echoed those thoughts in its comment ``We would also like to encourage PHMSA to grant the IME request that the mandatory compliance date with the standards for newly constructed MBTs be transitioned with a threshold such as 120 days after the rule is finalized and that it be aligned with the effective date for MBTs that are modified.'' In regards to the compliance dates issue, we reviewed the comments and agree with IME's suggestion and will revise the regulatory text in this final rule as needed. Regarding the overall structure and language prior to paragraph (a) of the new section, R&R commented that: R&R supports the need for differentiation between transport of: (1) A single bulk hazardous material for blasting by cargo tank motor vehicles and (2) transport by MBT capable of transporting multiple hazmats for blasting in bulk and non-bulk packaging. Two distinctly different types of transportation. Distinction between the two types of transport must be clearly maintained. SLP-23 makes the distinction by having separate sections. In the NPRM, Special Provision 148 makes this distinction, but Sec. 173.66 is vague on the distinction. For clarification Sec. 173.66 should refer to Section 1 of SLP-23 for the standards for transporting a single bulk hazardous material for blasting by cargo tank motor vehicle and to Section 2 of SLP-23 for the standards for cargo tank motor vehicles capable of transporting multiple hazardous materials for blasting in bulk and non-bulk packagings. In regards to the clarification of single bulk CTMVs differing from MBTs, we reviewed the comments and agree with R&R's suggestion and will revise the regulatory text in this final rule as needed. 2. Fire Suppression Systems In the NPRM, in paragraph (a) of Sec. 173.66, we proposed additional requirements regarding fire suppression systems (FSS) for newly constructed and modified MBTs. In addition to complying the usual requirements of the HMR (e.g., placarding, shipping papers, etc.), and the IME Standard 23 per Sec. 171.7 of the HMR, the NPRM proposed that these vehicles would be required to have a FSS that is an engineered system connected to the engine and transmission compartments. The system would be activated by manual switch or passive means in the event of a fire. Additionally, all fire extinguishers used as components of the system would be required to meet the requirements of 49 CFR 393.95(a) and the applicable National Fire Protection Association (NFPA) codes and standards. Further, the NPRM proposed that the FSS's design would be required to be verified and certified by the Design Certifying Engineer (DCE) of the vehicle, and the design would have to be tested through engineering analysis or physical testing to verify the initial design or future modification(s) to the current FSS. The NPRM proposed that the FSS would be [[Page 79428]] visually inspected annually for defects, flaws, damage, etc., to ensure none are present, and the system would be pneumatically tested every five years to ensure the system is free of debris, leaks, and damage, and to ensure the system will function properly. Finally, the NPRM proposed the DCE must prepare a test report and provide it to the manufacturer of the vehicle and the manufacturer must provide a copy to the owner of the vehicle. Commenters generally did not support the additional requirements regarding FSS for newly constructed and modified MBTs proposed in the NPRM. For example, IME commented that: PHMSA acknowledges that ``there are too few incident data to estimate and monetize the benefits from a fire suppression system.'' Unaware of any death or serious injury attributable to hazmat carried on MBTs since this technology was introduced in the 1970s. There is no off-the-shelf FSS technology; IME isn't supportive of allowing MBTs to be guinea pigs for field testing FSS technology. SLP-23 already provides a FSS which far exceeds that required for other commercial motor vehicles, including trucks transporting hazmat for which fire is an inherent risk. SLP-23 requires that MBTs be equipped with two fire extinguishers with an Underwriters' Laboratories (UL) rating of at least 4-A:40-B:C. Current federal regulations require that trucks used to transport placarded quantities of hazmat be equipped with one fire extinguisher having an UL rating of 10B:C. There is no assurance, in an accident where the driver is incapacitated and unable to use the fire extinguishers on the vehicle, that the FSS will have survived the crash and be operational. Every ounce of unnecessary weight added to a vehicle is an ounce of lost payload, this adds up to more trucks on the road to carry the same volume of material, increasing crash risk and generate other societal impacts such as wasted fuel and more air emissions. PHMSA's requirement is similar to but not the same as the NRCan standard. Given the lack of incident data to show that such systems would increase safety commensurate with the cost, we do not support the NRCan standard or the more onerous PHMSA proposal. IME questions whether PHMSA, instead of NHTSA, is the agency to propose such a vehicle modification. NHTSA is responsible for setting and enforcing safety performance standards for motor vehicles and motor vehicle equipment. Furthermore, in a set of supplemental comments, IME commented that: Safety: Safety benefits of MBTs have long been demonstrated. There has never been a death or a major injury attributed to blasting agents and oxidizers transported in bulk. We have not been able to identify a single instance where a FSS would have made a difference to the outcome of the incident. No one would guarantee that such a system would be operational in a crash. A FSS would be of no value in suppressing an engine fire fueled by a tire fire. In a non-crash situation, the driver will already have access to at least two fire extinguishers with a 4-A:40-B:C rating, a standard of safety already surpassing that required on any other commercial motor vehicle operating in the United States. Insurance Rates: The largest insurer of MBTs in the US told IME that adding FSSs to MBTs would have no effect on rates because there is no statistically significant loss experience. FSSs in Canada: We discussed the evolution of and experience with FSSs in Canada. First, industry had little involvement in the FSS standard imposed by Natural Resources Canada (NRCan) through its Mobile Process Unit (MPU) permit system. Thus, it is not correct to represent Canadian industry as ``supporting'' this standard. Second, it is not correct to represent the PHMSA FSS proposal as being aligned or harmonized with the NRCan standard. The NRCan standard is vastly different than that proposed in HM-233D. The NRCan standard reads in full, ``MPUs are also required to have an engineered fire suppression system for the engine compartment. . . . [E]ngineered fire suppression systems must be inspected every 6 months (or sooner if required by other jurisdiction). These systems must be inspected by a qualified and approved facility or person (reg.: NFPA 17, Chap. 11).'' NFPA 17 is the National Fire Protection Association's standard on ``Dry Chemical Extinguishing Systems'', and chapter 11, covers the inspection, maintenance and recharging of such systems. While not referenced, chapter 9 of this standard states that ``only pre-engineered systems . . . shall be installed on mobile equipment.'' PHMSA's standard is paragraphs long requiring vehicle specific designs that have been verified and certified by a Design Certifying Engineer, including physical testing or engineering analysis. Pre-engineered systems are not allowed. Additionally, PHMSA requires periodic inspections and detailed recordkeeping and retention requirements that differ from the NRCan standard. Based on the NRCan requirement, we can report that installation costs of FSSs in Canada run between $4,000 and $6,000, and add between 300-500 pounds to the weight of the vehicle. A typical payload on an MBT is 25,000 pounds, and the cost of a new MBT ranges from $250,000 to $500,000. Thus, a NRCan-type FSS would reduce payload between 1.2% and 2%, and would add between 1.2% and 1.6% to the cost of a new MBT. Costs of periodic inspections average $800 in remote areas and $150 in more populated areas. NRCan allows companies to obtain NFPA certification for their own employees to conduct inspections. PHMSA's position in the NPRM was that fire was a potential hazard in an MBT incident. IME has highlighted the safety record of MBTs which indicates that fire is not typically common with an incident involving these vehicles.\11\ PHMSA's engineered FSS as proposed was more stringent and cost prohibitive than a pre-engineered FSS or the NRCan requirement. PHMSA agrees with IME that the FSS proposed in the NPRM exceeded the level of safety established. However, we disagree that PHMSA does not have the authority to include a FSS. --------------------------------------------------------------------------- \11\ Over the past 10 years, there have been 43 reported transportation incidents in the U.S. involving multipurpose bulk trucks. During this same period, there has never been a death or major injury attributed to the hazardous materials while in transportation when there was compliance with the regulations. While there has been 1 incident that resulted in a fatality in that 10 year period, it involved a vehicular crash and human error, and was not attributed to the transportation of the hazardous materials themselves. Overall most incidents (90 percent) resulted in spillage; fewer incidents resulted in vapor dispersion (3 percent), environmental damage (0.5 percent), fire (0.5 percent), waterway infringement (0.4 percent), and explosion (0.1 percent.) Most of the time, the closures or covers in portable tanks failed, causing leaks. Detailed hazardous materials incident reports for hazardous materials incidents specified in Sec. 171.16 may be found at the PHMSA Web site at the following URL: https://hazmatonline.phmsa.dot.gov/IncidentReportsSearch/Search.aspx --------------------------------------------------------------------------- PHMSA acknowledges that the proposed FSS would add weight to the MBT, and that the increased weight would decrease the payload, thereby increasing the number of MBTs on the road. Furthermore, we do agree that the established safety record of MBTs stand for itself and that IME Standard 23 does exceed the federal requirements for fire extinguishers. As such, we have reviewed the comments regarding FSS for newly constructed and modified MBTs and agree with IME's position. We will revise the regulatory text in this final rule as needed. In addition, PHMSA may revisit the FSS requirement in the future, if a future review of incident data indicates a need. 3. Emergency Shut-Off/Battery Disconnect Devices In the NPRM, in paragraph (b) of Sec. 173.66, we proposed additional requirements for emergency shut-off/battery disconnect for newly constructed and modified MBTs. The NPRM proposed that for these trucks, the batteries for the chassis would be required to have three easily accessible manual disconnect switches. One manual disconnect switch would be located inside the driver's cab and would not include the ignition; the remaining two manual disconnect switches would be located on each side of the vehicle. Further, the NPRM proposed all three switches would be connected to the positive battery terminal and the line of the switch would be protected from rubbing and abrasion that could cause a short circuit. Finally, the NPRM proposed that the battery disconnect would be required to isolate all manufacturing equipment [[Page 79429]] except critical instrumentation that requires the maintenance of the electrical supply, and that the battery disconnect is tested monthly to ensure proper operation. Commenters generally did not support the additional requirements of emergency shut-off/battery disconnect devices (EBDD) for newly constructed and modified MBTs. For example, IME commented that: We agree that any EBDD standard included in a final rule promulgated under this docket should apply only to newly constructed or modified MBTs. However, we disagree with the EBDD standard as proposed. PHMSA's proposal would require MBTs to be equipped with three manual EBDDs, not to include the ignition switch. The cost/ benefit of this standard cannot be justified. First, MBT's are the only type of specialized vehicle that is already required to have a manual EBDD in addition to the ignition switch. Yet, PHMSA provides no data to support the need to triple the current EBDD requirement. In fact, PHMSA acknowledges that no death or major injury has been attributed to hazardous materials car
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