SUPPLEMENTARY INFORMATION:

I. Purpose

PHMSA is publishing this notice to HAZMAT shippers to determine, based on their experience, what small quantities or low concentrations of explosives they offer for transport that appear to present a low risk ( e.g., negligible severity, remote probability, etc.) to life, property, and the environment. The information will be used to define the focus of a research project investigating the risk of small and/or de minimis quantities of explosive substances and in selecting test samples for PHMSA research and development Contract# 693JK322C00003.

II. Background

HAZMAT is comprised of substances or materials capable of posing an unreasonable risk to life, property, and the environment when transported in commerce. PHMSA issues the Hazardous Materials Regulations (HMR), contained in title 49 of the Code of Federal Regulations (CFR) parts 171-180, for the safe and secure transportation of HAZMAT. When packaged in inner and outer packagings that do not exceed small threshold quantities, specific classes of HAZMAT can be offered for transport without being subject to many or all of the HMR requirements. Exceptions for small quantities of HAZMAT in transport include the following:

• Small quantities for highway and rail within the U.S. (49 CFR 173.4).
• Excepted quantities (49 CFR 173.4a).
• De minimis exceptions (49 CFR 173.4b).

Currently there are no small quantity exceptions for Class 1 explosives. Rather, the HMR requires that any change in the formulation, design, or process that alters any of the properties of a Class 1 explosive means it is now considered a “new explosive” and must be examined, classed, and approved for transport. Obtaining a U.S. DOT PHMSA explosives (EX) approval requires significant commitments of time, effort, and financial resources by the prospective shipper, examining agent, and PHMSA. Establishing a small quantity and/or de minimis exception for explosives presenting a low hazard in transport would reduce the time, effort, and financial investments required by all affected parties in order to authorize its transport, while maintaining the safety of the transportation system.

Although there are no small quantity exceptions for Class 1 explosives with a general scope that might apply to broad categories of small quantity or low concentration explosives, there are a few narrowly defined exceptions that authorize the transport of specific explosive substances that have been desensitized to impact, friction, and/or flame initiation, such as:

• UN2555, Nitrocellulose with water [with not less than 25% water, by mass], 4.1, II (≤75% explosives content, 1.1D when undiluted); UN3357, Nitroglycerin mixture, desensitized, liquid, n.o.s. with not more than 30% nitroglycerin, by mass, 3, II (30% explosives content, forbidden from transport when undiluted); or UN1204, Nitroglycerin solution in alcohol [with not more than 1% nitroglycerin], 3, II (1% explosives content, forbidden from transport when undiluted).

○ Each can be offered for transport in inner packagings containing up to 30 grams per 49 CFR 173.4 or 173.4a or 1 gram per 49 CFR 173.4b.

• UN1571, Barium azide, wetted [with not less than 50% water], by mass, 4.1, I (≤50% explosives content, 1.1A when undiluted); UN1322, Dinitroresorcinol, wetted [with not less than 15% water, by mass], 4.1, I (≤85% explosives content, 1.1D when undiluted); UN3366, Trinitrotoluene (TNT), wetted, [with not less than 10% water by mass], 4.1, I (≤90% explosives content, 1.1D when undiluted); or UN3370, Urea nitrate, wetted, [with not less than 10% water by mass], 4.1, I (≤90% explosives content, 1.1D when undiluted). ( printed page 54159)

○ Each can be offered for transport in inner packagings containing up to 30 grams per 49 CFR 173.4.

Therefore, although the small quantity exceptions authorize the transport of specific and narrowly defined desensitized explosives, the current quantity exceptions do not have allowances for broader categories of small quantity or low concentration explosives defined by lower concentration without individual testing/examination, nor allowances that define when a diluted explosive might be excepted from the HMR requirements.

III. PHMSA's Exceptions for Desensitized Explosives

There are currently no small quantity or de minimis exceptions for Class 1 explosive substances or articles in the United States. However, the following exceptions permit the transport of various desensitized explosives that have been excluded from Class 1 (summarized by the following bullets; refer to the regulatory text for the full requirements and allowances):

• 49 CFR 173.4 (Small quantities for highway and rail within the U.S.) authorizes inner packagings containing up to 30 g of authorized solids or 30 mL of authorized liquids in an outer packaging not exceeding a gross mass of 29 kg.
• 49 CFR 173.4a (Excepted quantities) authorizes inner packagings containing up to 30 g of authorized solids or 30 mL of authorized liquids in an outer packaging not exceeding a net mass 300 g or 300 mL for PG I solids or liquids; 500 g or 500 mL for solids or liquids of PG II; and 1 kg or 1 L for PG III solids or liquids/gases.
• 49 CFR 173.4b (De minimis exceptions) authorizes inner packagings containing up to 1 g of authorized solids or 1 mL of authorized liquids with an aggregate quantity of HAZMAT not exceeding 100 g or 100 mL in an outer packaging not exceeding a gross mass of 29 kg.

IV. Request for Feedback

We are interested in understanding what small quantities or low concentrations of explosives are offered for transport that appear to present a low risk to life, property, and the environment. For this inquiry, an explosive meets the definition of 49 CFR 173.50(a) and United Nations Recommendations on the Transport of Dangerous Goods section 2.1.1 and 2.1.1.3. The phrase “low risk to life, property, and the environment” means a risk comprised of a negligible severity and a remote probability (as defined in MIL-STD-882E, “Department of Defense Standard Practice, System Safety”, 11 May 2012) for the worst-case scenario related to transportation, including preparation for transport, storage, and/or handling incidental to movement. From MIL-STD-882E, negligible severity and remote probability are defined as:

• Negligible severity —Could result in one or more of the following: injury or occupational illness not resulting in a lost work day, minimal environmental impact (air/water/solid waste pollutant emissions, inadvertent hazardous releases, or adverse change upon resources/ecosystems), or monetary loss less than $100K.
• Remote probability —Unlikely, but possible for an incident to occur in the life of the item.

The information will be used to define the focus of a research project investigating the risk of small and/or de minimis quantities of explosive substances, and in selecting test samples for PHMSA Research & Development Contract #693JK322C00003. PHMSA requests comment on the following questions:

1. Which of the following items do you encounter that a) are to be offered for transport, and b) contain small quantities and/or low concentrations of explosives? Examples could include, but are not limited to: analytical standards, canine training aids, residues in packaging (bags, boxes, drums, etc.), residues on tooling or equipment, contaminated lubricants, residues in piping, residues from processing (wipes, swabs, paper/plastic/textile sheets or covers, absorbent pads, filter media, etc.), residues from handling (gloves, aprons, masks, respirator cartridges, clothing, etc.), manufacturing residues, floor sweepings, residues in solvent or water washes, contaminated soil, and/or other.

2. How frequently does your facility offer small quantities or low concentrations of explosives as a HAZMAT shipper that appear to present a low risk to life, property, and the environment?

• Never [skip to question 8]
• Rarely [continue to next question]
• Yearly [continue to next question]
• Monthly [continue to next question]
• Weekly [continue to next question]
• Daily [continue to next question]

3. Please provide responses to the following sub-questions (3.1 to 3.10) for the top five examples of small quantities or low concentrations of explosives encountered by your facility that present a low risk to life, property, and the environment. Please focus on examples at your facility that: (a) are most frequently encountered; (b) represent the greatest mass/volume; (c) have the highest net explosives weight; (d) have the highest explosives concentration; and/or e) have the greatest amount of explosives.

3.1. What is the composition of the HAZMAT (constituents, concentration, quantity, etc.)?

3.2. What is the packaging configuration of the HAZMAT (inner, intermediate, and outer packagings)?

3.3. What is the average net explosives weight of the inner package (in grams)?

3.4. What is the average net explosives weight of the outer package (in grams)?

3.5. What is this HAZMAT's UN identification number?

3.6. On average, how many packages of this HAZMAT are in one shipment?

3.7. On average, how many shipments of this HAZMAT are made in one year?

3.8. What mode(s) of transport is/are utilized for these shipments ( e.g., motor vehicle, passenger or cargo-only rail/aircraft, vessel, etc.)?

3.9. Where is this HAZMAT typically shipped? Specify all that apply: another facility for further manufacturing; customer or end user; recycling (reclamation, reuse/use, etc.); hazardous waste facility for chemical/thermal/biological/physical treatment; hazardous waste facility for disposal (dumpsite, landfill, etc.); public landfill; and/or other.

3.10. Is the HAZMAT offered for transport internationally or domestically in intrastate (within the same state) or interstate (between states) commerce?

3.11. What type of approval is currently being utilized to offer the HAZMAT for shipment? ( e.g., EX-approval, Special Permit, or Competent Authority).

3.12. What tests were performed to characterize the hazard of the HAZMAT?

3.13. Are you willing to share more detailed information ( e.g., the test report, recommended classification, and EX-approval) with Safety Management Services, Inc. (SMS) of West Jordan, Utah? SMS is willing to sign non-disclosure agreements to protect proprietary information; further details can be securely transmitted to them.

4. As applicable, please list up to five examples of small quantities and/or low concentrations of explosives presenting more than a low risk to life, property, and the environment.

5. All materials containing explosives, including small quantities or dilute concentrations, require a PHMSA approval prior to transport; it can take ( printed page 54160) up to 180 days to examine, classify, and approve a regulated explosives-containing material for transport. What impact does waiting for PHMSA approval of your small quantities and/or dilute explosives have upon your facility, in your efforts to comply with the requirements of other regulatory agencies?

6. What threshold quantity and/or concentration of explosives, if any, presents a low risk to life, property, and the environment, and should, in your opinion, be considered for exception from regulation by PHMSA?

7. What is the technical basis for your opinion ( e.g., testing, experience, data, etc.)?

8. Why, in your opinion, should a threshold quantity and/or concentration of explosives not be considered for exception from regulation by PHMSA?

Your efforts to comment on the above questions are appreciated; your responses will be used to better inform decisions in determining small quantity and/or de minimis exceptions for explosive substances and in selecting test samples for Contract #693JK322C00003.

89 FR 54157