[Federal Register Volume 79, Number 135 (Tuesday, July 15, 2014)]
[Proposed Rules]
[Pages 41185-41211]
[FR Doc No: 2014-16382]

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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: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration is
proposing to amend the Hazardous Materials Regulations by establishing
standards for the safe transportation of bulk explosives. This
rulemaking would be 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 would provide wider access to the regulatory flexibility
currently only offered by special permit and competent authorities.
    The requirements of this proposed rule would mirror the majority of
provisions contained in nine widely used or longstanding special
permits that have established safety records. These proposed revisions
are intended to eliminate the need for future renewal requests, thus
reducing paperwork burdens and facilitating commerce while maintaining
an appropriate level of safety. As proposed, the requirements would
authorize the transportation of certain explosives, ammonium nitrates,
ammonium nitrate emulsions, and other specific hazardous materials in
bulk packagings, which are not otherwise authorized under the
regulations. These hazardous materials are used in blasting operations
on specialized vehicles, known as multipurpose bulk trucks, which are
used as mobile work platforms to create blends of explosives that are
unique for each blast site. Finally, this rulemaking addresses the
construction of new multipurpose bulk trucks.

DATES: Comments must be submitted by September 15, 2014. To the extent
possible, PHMSA will consider late-filed comments as a final rule is
developed.

ADDRESSES: You may submit comments by identification of the docket
number (PHMSA-2011-0345 (HM-233D)) by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations, Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
    Instructions: All submissions must include the agency name and
docket number for this notice at the beginning of the comment. All
comments received will be posted without change to the Federal Docket
Management System (FDMS), including any personal information.
    Docket: For access to the dockets to read background documents
(including the Regulatory Impact Analysis (RIA)) or comments received,
go to http://www.regulations.gov or DOT's Docket Operations Office (see
ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Matthew Nickels, Standards and
Rulemaking Division, Office of Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration, U.S. Department of
Transportation, telephone<PHONE_NUMBER>, 1200 New Jersey Avenue SE.,
Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
III. Summary Review of Proposed Amendments
IV. 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
V. List of Subjects

I. Executive Summary

    In this notice of proposed rulemaking (NPRM), the Pipeline and
Hazardous Materials Safety Administration (PHMSA) proposes to amend the
Hazardous Materials Regulations (HMR) by establishing standards for the
safe transportation of bulk explosives. This rulemaking would be
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 would
provide wider access to the regulatory flexibility currently offered
only by special permit and competent authority approvals. These
proposed revisions are intended to 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. The revisions would reduce paperwork burdens and
facilitate commerce while maintaining a appropriate level of safety.

    This rulemaking specifically proposes to adopt a combination of
features, including: 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 SLP-23);
requiring fire suppression systems in heat containing compartments
(e.g., engine, transmission, etc.) and emergency shut-off/battery
disconnect of newly constructed or modified multipurpose bulk trucks
(MBTs); and complying with certain National Highway Traffic Safety
Administration (NHTSA) requirements. PHMSA believes this NPRM will be
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 an high
level of safety, (3) promote safer transportation practices, (4)
facilitate commerce, (5) reduce paperwork burdens, (6) protect the
public health, welfare, safety, and environment, and (7) eliminate
unnecessary regulatory requirements. Finally, with this rulemaking
amending the HMR by incorporating IME publication SLP-23, the majority
of provisions from nine special permits will be incorporated since
those permits were used as the basis to create the SLP-23 document.
    This NPRM affects the following entities and proposes the following
requirements:

------------------------------------------------------------------------
           Affected entities                        Proposals
------------------------------------------------------------------------
 Manufacturers of newly           Permits existing
 constructed Multipurpose Bulk Trucks     Multipurpose Bulk Trucks to
 complying with Part 173.                 operate under IME Safety
                                          Library Publication No. 23
                                          (SLP-23) instead of Special
                                          Permits
 Persons utilizing Multipurpose   Establishes
 Bulk Trucks under nine current and       regulations and permits new
 active special permits complying with    construction and modifications
 Part 173.                                of Multipurpose Bulk Trucks
                                          provided that they:
                                         --operate under SLP-23.
                                         --install fire suppression
                                          systems.
                                         --install emergency shut-off/
                                          battery disconnects.
                                         --comply with the Federal Motor
                                          Vehicle Safety Standards.
 Drivers of Multipurpose Bulk
 Trucks complying with Part 173.
 Manufacturers, assemblers,
 repairers, testers and design
 certifying engineers certifying
 compliance with the requirements for
 Multipurpose Bulk Trucks.
------------------------------------------------------------------------

    The overall costs and benefits of the proposed regulations are
dependent on the level of preexisting compliance with the nine special
permits and the overall effectiveness of the proposed regulations
(e.g., flexibility provided when incorporating portions or whole
special permits). Additionally, we believe the net benefits of these
proposals will be attractive to the explosives industry as it will
allow them to do business in a faster manner, and consequently provide
significant cost savings.
    The costs associated with the proposed rule are primarily driven by
the one-time cost of equipping newly constructed or modified MBTs with
fire suppression systems. The other costs associated with this NPRM are
estimated to be much smaller. The primary driver for the benefits from
this NPRM is the cost savings associated with the incorporation by
reference of SLP-23. PHMSA estimates that the positive economic effects
of this rulemaking, once finalized and adopted, will be sustained
indefinitely. The table below summarizes the calculated costs and
benefits associated with this NPRM.\1\
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    \1\ For further discussion regarding the individual NPRM
provisions, please see Section IV of this document and the
regulatory impact assessment available in the public docket for this
rulemaking.

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                                                                                Recurring     Cost savings
                              Item                                One-time costs   annual costs      per year
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Industry Applications for SP....................................              $0               0         $62,700
PHMSA Review of SP Applications.................................              $0               0          31,464
Tire-Pressure Checks............................................               0               0      14,800,000
Fire Extinguishers..............................................         408,750               0               0
Working Pressure Limit..........................................         450,000               0               0
Caking..........................................................               0               0          90,000
Periodic Inspections/Tests......................................               0       1,300,000               0
Nameplate.......................................................         187,500               0               0
Accident Investigations.........................................               0          20,000               0
Driver Training.................................................               0           9,000               0
Maintaining/Updating SLP-23.....................................               0          50,000       1,300,000
Reduced Paperwork Burden........................................               0               0           3,420
Cost of Fire-Suppression Systems................................       9,375,000               0               0
                                                                 -----------------------------------------------
    Total.......................................................      10,421,250       1,379,000      16,287,584
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    Under the NPRM, the one-time costs are approximately $10.4 million;
the recurring annual costs are approximately $1.4 million. The net
present value of these costs discounted at 3 percent and 7 percent over
the 10 years is approximately $22 million and $19 million,
respectively. The annualized cost of the rule discounted

at 3 percent is $2.2 million and at 7 percent is approximately $1.9
million.
    The present values of the $16.3 million in annual cost savings
(which represent the major benefits of the proposed rule) discounted at
3 percent and 7 percent over 10 years are approximately $143 million
and $122 million, respectively. The annualized benefits at 3 percent
are $14.3 million and at 7 percent are $12.2 million.
    The annualized net benefits of the proposed rule at 3 percent are
approximately $12.1 million ($14.3 million in annualized benefits--$2.2
million in annualized costs) and at 7 percent are approximately $10.3
million ($12.2 million in annualized benefits--$1.9 million in
annualized costs). As such, PHMSA has concluded that the aggregate
benefits justify the aggregate costs. A summary of the expected
annualized costs and benefits is provided in the table below.

------------------------------------------------------------------------

------------------------------------------------------------------------
Annualized Benefit (in 2013 $)............  $12.2-14.3 million
Annualized Cost (in 2013 $)...............  $1.9-2.2 million
Benefit-Cost Ratio.                         6.4-6.5
Annualized Net Benefit....................  $10.3-12.1 million
------------------------------------------------------------------------

    PHMSA requests comments on the analysis underlying these estimates,
as well as possible approaches to reduce the costs of this rule while
maintaining or increasing the benefits. Additionally, PHMSA seeks
comments on possible changes that might improve the rule and increase
regulatory flexibility.

II. Background

Special Permits

    The Pipeline and Hazardous Materials Safety Administration (PHMSA)
is proposing to amend the Hazardous Materials Regulations (HMR; 49 CFR
Parts 171-180) by establishing standards for the safe transportation of
bulk explosives. These proposed standards for bulk explosives will
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 the safety level
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.
    The HMR generally are performance oriented regulations, which
provide the regulated community with a certain amount of flexibility in
meeting safety requirements. Even so, not every transportation
situation can be anticipated and built into the regulations. Innovation
is the strength of our economy and the hazardous materials community is
particularly strong at developing new materials and technologies and
innovative ways of moving materials. Special permits enable the
hazardous materials industry to quickly, effectively, and safely
integrate new products and technologies into production and the
transportation stream. Thus, special permits provide a mechanism for
testing new technologies, promoting increased transportation efficiency
and productivity, and ensuring global competitiveness.
    Hazardous materials transported under the terms of a special permit
must achieve a level of safety at least equal to the level of safety
achieved when transported under the HMR. Implementation of new
technologies and operational techniques enhances safety because the
authorized operations or activities may achieve a greater level of
safety than that currently required under the regulations. Special
permits also reduce the volume and complexity of the HMR by addressing
unique or infrequent transportation situations that would be difficult
to accommodate in regulations intended for use by a wide range of
shippers and carriers.
    PHMSA conducts ongoing reviews of special permits to identify
widely used and longstanding special permits with an established safety
record for conversion (fully or in part) into regulations of broader
applicability. To obtain a special permit, interested parties must
prepare and submit a detailed application that PHMSA reviews
extensively. If granted and its use is needed after the expiration date
assigned, the person authorized to use the special permit must submit
an application to continue their use of it and undergo another
extensive PHMSA renewal process. Converting the provisions (fully or in
part) of these special permits into regulations reduces paperwork
burdens and facilitates commerce while maintaining an acceptable level
of safety. Additionally, adoption of special permits as rules of
general applicability provides wider access to the benefits and
regulatory flexibility of the provisions granted in the special
permits. Factors that influence whether a specific special permit is a
candidate for regulatory action include: the safety record for
hazardous materials transported, or the transport operations conducted,
under a special permit; the potential for broad application of a
special permit; suitability of provisions in the special permit for
incorporation (fully or in part) into the HMR; rulemaking activity in
related areas; and agency priorities. Special permits involving
packaging used by a large number of persons--such as those issued to
many persons with party status or issued to a manufacturer as a
``manufacture, mark, and sell''--are potentially among the most
suitable types of special permits for adoption into the HMR. Such
special permits have broad applicability; moreover, many of them have
been in effect for a number of years and have demonstrated safety
records.
    Further, although we make every effort to stay as true as possible
to the conditions prescribed in each special permit when converting it
to proposed regulatory text, PHMSA recognizes that sometimes, due to
existing regulations or historical interpretations, provisions in a
special permit may require revision to convert them into regulations of
general applicability. In addition, when converting special permits we
often have to modify the language to describe documents and procedures
that are authorized under the special permit but not specifically
described in it or to modify the language to comply with requirements
for proposed regulatory text prescribed by PHMSA, by other agencies in
the Department of Transportation (DOT), and potentially by federal
agencies outside of DOT.
    The special permits addressed in this NPRM have hundreds of party-
to status grantees. Party-to status is granted to a person who would
like to offer for transport or transport a hazardous material, or
perform an operation in association with a hazardous material in the
same manner as the original applicant.
    This NPRM proposes to incorporate elements of nine special permits
(by way of incorporating SLP-23) that authorize multipurpose bulk truck
operations not specifically permitted under the HMR. The proposed
amendments will eventually 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
proposals will also apply to any special permits PHMSA issues during
the development of this rulemaking whose provisions are identical in
every respect to those described in the rulemakings issued under this
docket. To emphasize this, we preface the description of the affected
special permits with the wording ``include'' or ``includes'' to clarify
that additional special permits

other than those specifically listed in this NPRM may have elements of
them incorporated under these amendments. These special permits were
initially issued to members of industry associations or similar
organizations. These nine petitions 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 142 grantees with acceptable safety performance.
     DOT-SP 5206: Authorizes the transportation in commerce of
Division 1.5D explosives contained in privately operated bulk hopper-
type units. Specific operational controls are specified in lieu of
compliance with these two requirements. This special permit has been in
effect since 1980 and is utilized by 44 grantees 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 64 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 182
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 motor vehicles and portable tanks described in the special permit.
This special permit has been in effect since 1981 and has been utilized
by at least 109 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 42 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 38 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 72
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 15 grantees with
acceptable safety performance.
    PHMSA has included discussion of these nine special permits in this
NPRM because we have determined these special permits have well
established safety records and the regulated industry would benefit
from the HMR mirroring the majority of provisions contained in them.\2\
These proposed revisions are intended to eliminate the need for future
renewal requests, thus reducing paperwork burdens and facilitating
commerce while maintaining an appropriate level of safety.
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    \2\ Over the past 10 years, there have been 35 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
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    Further, developing standards for the transportation of bulk
explosives into the HMR eliminates a significant paperwork burden. As a
condition of those special permits issued by PHMSA and depending on the
provisions of the special permit, a copy of each special permit must
be: (1) Maintained at each facility where an operation is conducted or
packaging is manufactured under a special permit; (2) maintained at
each facility where a package is offered or re-offered for
transportation under a special permit; and (3) in some cases, carried
aboard each transport vehicle used to transport a hazardous material
under a special permit.

Petitions for Rulemaking

    Two elements in this proposed rulemaking were presented to PHMSA in
petitions for rulemaking. A more detailed description of each is
provided below.

Petition No. P-1557

    The petition from R&R Trucking, Inc. (P-1557) dated March 23, 2010,
asks 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 develop bulk explosive requirements in the HMR. R&R
Trucking states that ``the request is limited to Explosives, blasting,
type E, 1.5D, UN0332, PG II and Ammonium nitrate emulsion, 5.1, UN3375,
PG II, transported on articulated DOT specification cargo tank motor
vehicles.'' Further, the petition states 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.''
    In support of their petition, R&R Trucking states that:

    R&R and other carriers, private and common, have transported
these materials in specification cargo tank trailers under the terms
and provisions of special permits since the early 1980s. R&R has
transported these materials for over ten years without any loss of
product during transportation. Annually, R&R handles about 2,150
shipments and travels over two million miles delivering these
materials. Under the special permits articulated cargo tank motor
vehicles (i.e., similar to tractor trailers) transporting only one
material, either explosive 1.5D or oxidized 5.1, are subjected to
the same requirements as MBTs transporting all the materials
(explosives 1.1D, 1.1B, l.4B, 1.5D and ingredient to manufacture
additional explosives) necessary to conduct a blast. The MBT
encounters a significantly different transportation challenge due to
the off road use, multiple products, and higher than normal center-
of-gravity, as compared to the single product articulated cargo tank
delivery vehicle.

    As for a specific case of why the petition is needed, R&R Trucking
states that:

    The transport of bulk 1.5D explosives and Ammonium nitrate
emulsion, 5.1, in cargo tank trailers under the terms and provisions
of the special permits is more restrictive than

the transport of packaged 1.lA explosives. This is because of the
recent modifications to the special permits addressing issues
involving MBTs. The transport vehicles and conditions encountered
are different and should be regulated accordingly. The requirements
for a dry freight van trailer are different than for a cargo tank
trailer or a flat bed trailer. The MBTs are designed for local
deliveries, off road use and to mix, blend, manufacture and load
explosive materials into blast holes. The articulated cargo tank
motor vehicle is designed for a single purpose--to transport one
bulk product safely over public highways. The fact that cargo tank
trailers have safely transported over public highway bulk Class l.5D
emulsion blasting agents for over twenty-five years under the terms
and provisions of special permits should be sufficient to justify
including requested bulk packaging in the Hazardous Material
Regulations.

    P-1557 requests two regulatory changes, both of them contained in
the Hazardous Materials Table (HMT), in 49 CFR 172.101. For ``Ammonium
nitrate emulsion, 5.1, UN3375'', R&R Trucking petitions us to change:

    Column 8--Packaging (173***), Bulk, from ``214'' to ``242'', and
to add to Column 7--Special Provisions--Transport restricted to
articulated DOT specification cargo tank motor vehicles (road
tractor semi trailer). Cargo tank must be constructed of stainless
steel. No other hazardous material may be loaded into or carried on
the cargo tank motor vehicle or on any vehicle of a combination of
vehicles when transporting this material. The product must be
approved by the Associate Administrator for transport in bulk
packaging.

    For ``Explosive, blasting, type E, l.5D, UN0332'', R&R Trucking
petitions us to change:

    Column 8--Packaging (173***), Bulk, from ``none'' to ``242'',
and to add to Column 7--Special Provisions--``Transport restricted
to articulated DOT specification cargo tank motor vehicles (road
tractor semi trailer). Cargo tank must be constructed of stainless
steel. No other hazardous material may be loaded into or carried on
the cargo tank motor vehicle or on any vehicle of a combination of
vehicles when transporting this material. The product must be
approved by the Associate Administrator for transport in bulk
packaging.

    Finally, these two revisions would be permitted for motor vehicle
and cargo vessel modes of transportation.
    Lastly, R&R Trucking states that ``the impact of the proposal
should not be substantial. The impact of governing transport of these
materials by regulation rather than by special permit should be
minimal.''
    PHMSA agrees with the petitioner on the merit of establishing
requirements for the transportation of bulk explosives in commerce.
With the incorporation of IME SLP-23, PHMSA will be establishing all
relevant and appropriate requirements set out in the current
multipurpose bulk transportation special permits,\3\ including the
special permits R&R Trucking operates under. While we are not
incorporating every provision in all nine special permits, we will have
established criteria by which to transport these commodities in
conformance with the HMR.
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    \3\ 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.
---------------------------------------------------------------------------

Petition No. P-1583

    The petition from the Institute of Makers of Explosives (IME) (P-
1583) dated May 13, 2011, asks 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
(``SLP-23''). Per IME's petition, IME is a non-profit association
founded in 1913 to provide accurate information and comprehensive
recommendations concerning the safety and security of commercial
explosive materials. IME represents U.S. manufacturers and distributors
of commercial explosive materials and oxidizers as well as other
companies that provide related services, and the majority of IME
members are ``small businesses'' as determined by the U.S. Small
Business Administration.
    In support of their petition, IME states that:

    Approximately 95% of all explosives and blasting agents used in
the U.S. are transported in bulk. This transportation is
accomplished using two vehicle configurations: Multipurpose bulk
trucks (``MBTs''), and articulated vehicles (i.e., cargo tanks). In
the many decades that bulk explosives have been widely used, there
have been zero deaths or injuries during transportation attributable
to the transported materials themselves. Currently, the HMR operates
to prohibit the transportation of explosive materials in bulk form.
Consequently, these materials have been transported pursuant to
special permits since the promulgation of the HMR and the inception
of the Special Permits Program. MBT technology was introduced in the
late 1970's, and makes possible the transport of millions of pounds
of blasting materials in a non-explosive, waterproof form that is
mixed to acquire its explosive properties after it is loaded in
boreholes at the site of use. MBTs employ technologies that meet
strict engineering and design standards. These vehicles serve as a
mobile work platform in some of the harshest conditions imaginable.
MBTs are capable of going from paved interstate, to unpaved mine
roads, to blast sites. Today, the vast majority of bulk high
explosives, blasting agents, and oxidizers are transported to work
sites by MBTs. We estimate that there are about 1,500 MBTs on
highways in any given year. Annually, we estimate these vehicles
average 350,000 trips covering tens of millions of miles.

    In the petition, IME states that it submitted P-1583 for two
reasons:

    (1) the long-term, ubiquitous, and safe transport of explosives
in bulk form, including the use of MBT technology, warrant expansion
of the HMRs to include established requirements of general
applicability governing these transportation practices; and (2) the
recommendations included in SLP-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.

    PHMSA agrees with the petitioners request to develop bulk explosive
requirements in the HMR by proposing to incorporate by reference IME
SLP-23. A more in-depth review of the SLP-23 (including its
recommendations, its differences with the nine special permits, etc.)
is discussed in Section III below.
    Access to the IME SLP-23 publication discussed in this NPRM is
available for public download and review at: http://www.ime.org/. Under
the ``Publications'' tab, click the ``Safety Library Publications''
link and either order a physical copy or download a free PDF copy via
email. Also, a copy of the IME SLP-23 publication has been added to the
Docket under ``PHMSA-2011-0345'' at http://www.regulations.gov.
Additionally, access to the petitions referenced in this NPRM can be
found at http://www.regulations.gov under Docket Numbers ``PHMSA-2010-
0101'' (P-1557), and ``PHMSA-2011-0137'' (P-1583), or at DOT's Docket
Operations Office (see ADDRESSES).

III. Summary Review of Proposed Amendments

    In this NPRM, PHMSA is proposing to revise the HMR by amending the
regulations to establish standards for the safe transportation of bulk
explosives. These proposals are further described below.

A. Proposed Incorporation of SLP-23 Into the HMR

    In 1999, PHMSA requested IME to assist the Agency in preparing a
set of standards that would incorporate bulk explosives transportation
requirements into the HMR. Between 1999 and early 2001, PHMSA and IME
worked cooperatively to prepare an acceptable document. The result of
this effort was SLP-23, first published in 2001. At that

point in time, PHMSA was considering incorporating the document into
the HMR. Unfortunately, the events of September 11th 2001 intervened,
and it was determined to be a difficult time to pursue the development
of a rule dealing with explosives.
    The SLP-23 document itself is structured into four main sections:
Section I, Section II, Appendix A, and Appendix B.
     Section I (Standards for Transporting a Single Bulk
Hazardous Material for Blasting by Cargo Tank Motor Vehicles) includes
parts on: General requirements; modes of transportation; additional
provisions; qualifications, maintenance, and repair of packagings;
qualifications of individuals certifying non-DOT specification bulk
packaging; placarding and marking requirements; and security and safety
of the bulk hazardous materials transported.
     Section II (Standards for Cargo Tank Motor Vehicles
Capable of Transporting Multiple Hazardous Materials for Blasting in
Bulk and Non-Bulk Packaging) includes parts on: Purpose and
limitations; hazardous materials covered under Section II; packagings;
operational controls; qualifications, maintenance, and repair of
packagings; special provisions; and emergency response, reporting, and
training requirements.
     Appendix A is comprised of information on the vented pipe
test (apparatus and materials, procedure, and test criteria and method
of assessing results) including a diagram.
     Appendix B is comprised of information on the
qualification, maintenance, and repair for non-DOT specification cargo
tanks, for pressure capable sift-proof closed vehicles, and for
pressure-capable closed bulk bins (periodic qualification, external
visual inspection and testing, internal visual inspection, leakage
test, pressure tests, test and inspection markings, repairs,
modifications or alterations).
    In 2011, IME updated and revised SLP-23 in direct response to
concerns expressed by PHMSA regarding bulk transportation of
explosives. IME used a team that was comprised of a broad group of
experts (including both IME members and non-members) with extensive
experience in hazardous materials transportation generally and the bulk
transportation of explosives in particular.
    The 2011 edition of SLP-23 includes all relevant and appropriate
requirements set out in the bulk transportation special permits. In
addition, because SLP-23 is a comprehensive standard, the
recommendations are broader in scope than the combined special permits
and the document succeeds in avoiding certain inconsistencies that
inevitably exist between the current special permits. In addition to
providing a clear and consolidated framework for the regulation of bulk
transportation of explosives, SLP-23 recommends certain practices that
exceed the requirements of the current special permits. These
recommendations are as follows:
     SLP-23 requires at least two fire extinguishers, each with
a rating of at least 4-A:40-B:C to be carried on MBTs.
     SLP-23 incorporates the United Nations (UN) requirement
that no closed bulk packaging may have a maximum allowable working
pressure exceeding 35 psi. This is a recommendation of the UN and
reduces the probability of a deflagration to detonation transition of
the cargo.
     SLP-23 provides that materials shall not be allowed to
remain in the vehicle for any period of time that might result in
caking. In certain environments with certain products, caking occurs
relatively easily. This is a situation that is easily preventable, and
is not currently addressed in special permits.
     Any non-DOT specification cargo tanks, portable tanks,
sift-proof closed vehicles and closed bulk bins must be qualified,
inspected, and maintained essentially the same as a DOT-specification
bulk container (set out in Appendix B of SLP-23).
     Inspectors conducting inspections of non-DOT non-
specification tanks (see above) must meet training qualifications
outlined in Appendix B for the MBTs. DOT specification cargo tanks must
still be inspected by registered inspectors.
     Each non-DOT non-specification bulk packaging must display
a nameplate with a certification that the packaging meets SLP-23
standards and must include additional technical information. The
nameplate must be visible for inspection. This helps users stay within
the design parameters of the vehicle and inspectors verify compliance
with manufacturer specifications.
     SLP-23 addresses security comprehensively. The
recommendations specifically address the security of 1.5 and 5.1
materials when in transit, including locking mechanisms for all
openings and elimination of any material spillage and/or residue in
hoses and other access points. In addition, the recommendations address
the safety of process delivery vehicles in general, including: Battery
enclosure and disconnect specifications and tire specifications.
     Drivers must meet stringent qualifications and undergo
extensive safety training, in addition to the training required to
obtain a commercial driver's license with the hazmat endorsement under
the Federal Motor Carrier Safety Administration (FMCSA). Furthermore,
in addition to meeting the training requirements specified in 49 CFR
172, Subpart H, new drivers must also have a driving record without any
preventable accidents in the past year and no moving violations in the
previous three years. Drivers must also complete additional classroom
training and pass a road test in a vehicle similar to the vehicle the
driver will be operating.
    In addition to the recommendations above, SLP-23 provides increased
clarity compared to the current special permits in the following areas:
     SLP-23 clearly delineates the different transportation
risks between single bulk commodities transported by articulated
tractor-trailers (cargo tanks), and MBTs. Currently, all the special
permits cover both articulated tractor-trailer vehicles carrying one
hazmat and MBT straight trucks carrying many.
     All DOT-specification tanks appropriate for transportation
of covered materials are clearly identified.
     All standards are consolidated into one document. Further,
tanks are required to be marked ``IME SLP23.''
    Therefore, in this NPRM, PHMSA proposes to incorporate SLP-23 and
establish requirements of general applicability governing the
transportation of bulk explosive materials. As such, PHMSA proposes to
revise the 49 CFR 171.7 table of material incorporated by reference to
include SLP-23, and establish a new Sec.  173.66 (to be discussed
further below) for the bulk explosives requirements.

B. Revising the Hazardous Materials Table and Adding Special Provision
148

    PHMSA's proposal to incorporate SLP-23 into the HMR and establish
requirements of general applicability governing the transportation of
bulk explosive materials requires an update to the Hazardous Materials
Table (HMT). Currently, the 49 CFR does not include a provision for the
transportation in bulk packaging of certain Class 1 and Class 5
hazardous materials that are used in commercial blasting operations.
When reviewing the HMT under the bulk packaging section, those types of
commodities will have a ``None'' in Column (8C) meaning bulk packagings
are not authorized, except as may be provided by special provisions in
Column (7). With the proposed incorporation of SLP-23, the affected

hazardous materials require a new special provision 148 added to each
entry under Column 7 of the HMT. These HMT entry revisions range from
Divisions 1.1B, 1.1D, 1.4B, 1.4D, 1.4S and 1.5D Explosives, Division
5.1 Oxidizers, Class 8 Corrosives, and Combustible liquids.
    Special Provision 148 is being proposed in order to allow for the
transportation of certain hazardous materials in bulk quantities, or
with materials normally not permitted to be transported with such
commodities. This Special Provision 148 will direct readers to Section
173.66 in order to comply with the bulk explosives requirements. No
other hazardous materials entries will be directed to Section 173.66
and therefore, only certain explosives, oxidizers, etc. will be
eligible for bulk explosives transportation.

C. Proposed New Section on the Requirements for MBTs

    PHMSA is proposing to add a new section to 49 CFR part 173 (Sec.
173.66), which would specify the requirements for MBTs. This includes
existing MBTs, future newly constructed MBTs, and future modified MBTs.
    In the preamble of the new section, prior to paragraph (a), we
propose the requirements for multipurpose bulk trucks as follows. When
Sec.  172.101 specifies that a Class 1 (explosive) material may be
packaged in accordance with this section, only the bulk packagings
specified for these materials in IME SLP-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. Thus, an entity operating a MBT under current
conditions, such as a Special Permit, would be subject to operating
under the IME SLP-23 document. Additional requirements in paragraphs
(a), (b), and (c) apply to: (1) A new multipurpose bulk truck
constructed after December 31, 2014, or (2) an old multipurpose bulk
truck that requires modifications due to wear and tear (i.e., re-
chassis, etc.).
    In paragraph (a), we propose additional requirements regarding fire
suppression systems for newly constructed and modified MBTs. In
addition to complying with the applicable requirements of the HMR
(e.g., placarding, shipping papers, etc.) and the applicable
requirements in IME Safety Library Publication No. 23 (SLP-23) per
Sec.  171.7 of the HMR, these vehicles would be required to have a fire
suppression system 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. Also, 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 NFPA codes
and standards. Further, the fire suppression system's design would be
required to be verified and certified by the Design Certifying Engineer
(DCE) of the vehicle, and the design would need to be tested through
engineering analysis or physical testing to verify the initial design
or future modification(s) to the current fire suppression system. The
fire suppression system would be required to be visually inspected
annually for defects, flaws, damage, etc., to ensure none are present.
The system would need to 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 DCE would need to
prepare a test report and provide it to the manufacturer of the vehicle
and the manufacturer would need to provide a copy to the owner of the
vehicle.
    In paragraph (b), we propose additional requirements of emergency
shut-off/battery disconnect for newly constructed and modified MBTs.
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, and that the remaining two manual disconnect
switches would be located on each side of the vehicle. Further, 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 battery disconnect would
be required to isolate all manufacturing equipment except critical
instrumentation that requires the maintenance of the electrical supply,
and that the battery disconnect is tested monthly to ensure proper
operation.
    In paragraph (c), we propose that for newly constructed and
modified MBTs, those trucks would need to be in compliance with the
applicable Federal Motor Vehicle Safety Standard (FMVSS) found in 49
CFR part 571. Furthermore, the multipurpose bulk truck manufacturer
would need to maintain a certification record ensuring the final
manufacturing is in compliance with the FMVSS, per the certification
requirements found in 49 CFR Part 567, and these certification records
would need to be available to DOT representatives upon request.
    By proposing these requirements, PHMSA is echoing the majority of
provisions contained in nine widely used or longstanding special
permits that have established safety records. These proposed revisions
are intended to eliminate the need for future renewal requests, thus
reducing paperwork burdens and facilitating commerce while maintaining
an appropriate level of safety.

D. Revising the Loading and Unloading Language for Class 1 (Explosive)
Materials

    In Sec.  177.835, we propose to revise paragraph (a) to state that
no Class 1 (explosive) materials may be loaded into or on or be
unloaded from any motor vehicle with the engine running, except that
the engine of a multipurpose bulk truck may be used for the operation
of the pumping equipment of the vehicle during loading or unloading.
    Furthermore, we propose a new paragraph (d) which discusses
multipurpose bulk trucks and specifies that Class 1 (explosive)
materials may be packaged in accordance with Sec.  173.66 of this
subchapter. However, these materials would be permitted to be
transported on the same vehicle with Division 5.1 (oxidizing)
materials, or Class 8 (corrosive) materials, and/or Combustible Liquid,
n.o.s., NA1993 only under the conditions and requirements set forth in
SLP-23 (IBR, see Sec.  171.7 of this subchapter) and paragraph (g) of
this section (177.835).

IV. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This NPRM is published under the authority of 49 U.S.C. 5103(b)
which authorizes the Secretary to prescribe regulations for the safe
transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce. 49 U.S.C. 5117(a)
authorizes the Secretary of Transportation to issue a special permit
from a regulation prescribed in 5103(b), 5104, 5110, or 5112 of the
Federal Hazardous Materials Transportation Law to a person
transporting, or causing to be transported, hazardous material in a way
that achieves a safety level at least equal to the safety level
required under the law, or consistent with the public interest, if a
required safety level does not exist. The proposed rule would amend the
regulations by incorporating SLP-23 and provisions from certain widely
used and longstanding special permits that have established a history
of safety and which may, therefore, be

converted into the regulations for general use.

B. Executive Order 13610, Executive Order 13563, Executive Order 12866,
and DOT Regulatory Policies and Procedures

    This proposed rulemaking is not considered a significant regulatory
action under Executive Order (E.O.) 12866 (``Regulatory Planning and
Review''), as supplemented and reaffirmed by E.O. 13563 (``Improving
Regulation and Regulatory Review''), stressing that, to the extent
permitted by law, an agency rulemaking action must be based on benefits
that justify its costs, impose the least burden, consider cumulative
burdens, maximize benefits, use performance objectives, and assess
available alternatives, and the Regulatory Policies and Procedures of
the Department of Transportation (44 FR 11034). However, due to the
specific issues related to the transportation of explosive materials in
MBTs, a regulatory impact assessment is available for review in the
public docket for this rulemaking (filed under ``PHMSA-2011-0345'' at
http://www.regulations.gov).
    Executive Order 13563 is supplemental to and reaffirms the
principles, structures, and definitions governing regulatory review
that were established in Executive Order 12866 Regulatory Planning and
Review of September 30, 1993. Executive Order 13563, issued January 18,
2011, notes that our nation's current regulatory system must not only
protect public health, welfare, safety, and our environment but also
promote economic growth, innovation, competitiveness, and job
creation.\4\ Further, this executive order urges government agencies to
consider regulatory approaches that reduce burdens and maintain
flexibility and freedom of choice for the public. In addition, Federal
agencies are asked to periodically review existing significant
regulations, retrospectively analyze rules that may be outmoded,
ineffective, insufficient, or excessively burdensome, and modify,
streamline, expand, or repeal regulatory requirements in accordance
with what has been learned.
---------------------------------------------------------------------------

    \4\ See http://www.whitehouse.gov/the-press-office/2011/01/18/improving-regulation-and-regulatory-review-executive-order.
---------------------------------------------------------------------------

    Executive Order 13610, issued May 10, 2012, urges agencies to
conduct retrospective analyses of existing rules to examine whether
they remain justified and whether they should be modified or
streamlined in light of changed circumstances, including the rise of
new technologies.\5\
---------------------------------------------------------------------------

    \5\ See http://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf.
---------------------------------------------------------------------------

    By building off of each other, these three Executive Orders require
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.''
    In this notice, PHMSA proposes to amend the HMR to incorporate
alternatives this agency has permitted under widely used and
longstanding special permits and competent authority approvals with
established safety records that we have determined meet the safety
criteria for inclusion in the HMR. Incorporation of SLP-23 into the
regulations of general applicability will provide shippers and carriers
with additional flexibility to comply with established safety
requirements, thereby reducing transportation costs and increasing
productivity. In addition, the proposed rule will reduce the paperwork
burden on industry and this agency resulting from putting an end to the
need for renewal applications for special permits. Taken together, the
provisions of this proposed rule will promote the continued safe
transportation of hazardous materials while reducing transportation
costs for the industry and administrative costs for the agency.
    PHMSA considered five potential regulatory alternatives.
     Alternative 1: No Action. Under this option, PHMSA would
continue existing requirements for Special Permits to transport bulk
explosives by taking no action. However, PHMSA believes that there are
considerable benefits to taking action provided that a high level of
safety is maintained. Furthermore, all costs and benefits are relative
to this option.
     Alternative 2: PHMSA Defers to Voluntary Standards. Under
this option, PHMSA will defer to voluntary standards developed through
organizations or trade associations. PHMSA will likely participate in
standard-setting to develop standards that meet safety criteria that
are in the interest of the United States. While compliance with
voluntary standards is thought to be high by industry participants,
firms do not have to comply with them, since they are voluntary. This
creates some concern since the non-adoption may mean that those firms
may not comply with minimum safety standards.
     Alternative 3: Incorporate Special Permits That Have a
Good Safety Record into the HMR. Under this option, PHMSA will
incorporate seven of the nine special permits into the HMR. These seven
special permits have very good safety records. By incorporating these
special permits, PHMSA will need to work through the Federal rulemaking
process to modify the HMR in response to technological enhancements and
other matters relating to the transportation of the bulk explosives
covered under the seven special permits. It may be more advantageous to
incorporate standards developed by industry than for PHMSA to develop
its own standards and incorporate them into the HMR.
     Alternative 4: Adopt Other National or International
Standards. Under this option, PHMSA would adopt other national or
international standards, such as those used by Canada, Australia, or
the United Nations. These other standards do not conform well to
existing U.S. law and to the nine special permits. For example, the
U.S. Bridge Law (USBL) provides known standards for bridge
construction, by, among other requirements, placing restrictions on the
overall size of MBTs in service in the United States. Other standards
do not conform to the USBL. Also, these standards are implemented in
ways that may not be possible within the regulatory framework in the
United States.
     Alternative 5: Incorporate SLP-23 into the HMR with
Additional Features. SLP-23 recommends standards for MBT straight
trucks that typically transport multiple hazardous materials in support
of blasting operations and articulated cargo tanks that carry a single
bulk blasting agent or oxidizer. Under this option, PHMSA will
incorporate SLP-23 into the HMR with additional features. This
rulemaking specifically proposes to adopt a combination of features,
including 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 SLP-23), requiring fire
suppression systems in heat-containing compartments (e.g., engine,
transmission) and emergency shut-off/battery disconnect of newly
constructed or modified MBTs, and complying with certain National
Highway Traffic Safety Administration (NHTSA) requirements. The NPRM
requirements are more comprehensive and have stricter standards than
the

nine special permits, and it may eliminate some duplicative functions
covered by other industry standards. While SLP-23 may need to be re-
evaluated and changed to keep pace with technological enhancements and
other matters, IME will perform this and publish the revised standards
free of charge. SLP-23 was developed with input of IME members,
stakeholders, and PHMSA. In addition to incorporating SLP-23, under
this option, we would add fire suppressions systems to the vehicles
similar to the designs authorized under the Canadian requirements. The
fire suppression requirements would strengthen the performance
standards, and further accomplish PHMSA's objective of enhancing
safety. For all of these reasons, alternative five was PHMSA's chosen
alternative for this NPRM.
    The proposed rule adopts Alternative 5, ``Incorporate SLP-23 into
the HMR with Additional Features.'' By proposing these requirements,
PHMSA will be echoing the majority of provisions contained in nine
widely used or longstanding special permits that have established
safety records. These proposed revisions are intended to eliminate the
need for future renewal requests, thus reducing paperwork burdens and
facilitating commerce while maintaining an appropriate level of safety.

Costs To Comply With the NPRM

    The costs to comply with the NPRM are the sum of the costs of
incorporating SLP-23 into the HMR as estimated for Alternative 5 plus
costs for existing and new trucks to meet the additional requirements
described in section III above (Proposed New Section on the
Requirements for MBTs). Below is an analysis of costs associated with
the various provisions under SLP-23 that affect its incorporation into
the HMR, followed by an analysis of costs associated with some
additional features.
    Costs associated with tire-pressure checks. SLP-23 contains a
requirement to check tire pressure before the initial trip of the day.
This would be part of a routine pre-trip inspection and should not add
any costs.
    Costs associated with fire extinguishers. SLP-23 requires a minimum
of two fire extinguishers rated 4-A:40B:C. Current Federal regulations
require a minimum of one fire extinguisher rated 10B:C. IME makes the
following estimates:
     Fire extinguishers could be affixed in 8 hours.
     The cost for two fire extinguishers is approximately $250.
     The labor costs for installing the fire extinguishers are
estimated at $280.
     The cost associated with the MBT downtime is approximately
$560.
     Approximately 25 percent of the MBTs (or 375 of the 1,500
MBTs in service) would need to acquire and affix the extinguishers.
    Using IME's data, it's estimated that the cost to equip 375 MBTs
with fire extinguishers would be approximately $408,750 ($250 for the
fire extinguishers + $280 labor costs + $560 vehicle downtime * 375
MBTs). This is expected to be a one-time cost. There will be annual
maintenance costs, but it's believed these costs will be negligible
(somewhere between $0 and $5 per MBT over a 10-year period). Each
vehicle should already have at least one fire extinguisher on board per
DOT regulations. IME's data estimates that the fire extinguisher has a
longer life than the MBT; therefore, it's estimated that there would be
no annual costs to industry resulting from this requirement.
    Costs associated with working pressure limit. SLP-23 limits the
maximum allowable working pressure of an MBT cargo tank to 35 psi.\6\
This measure is intended to help prevent a build-up of pressure in the
tank, which could result in a detonation of the contents in a fire. IME
data estimates that most MBTs already meet this standard. IME data
estimates that at most 10 percent of the MBTs (or 150 MBTs) would need
a retrofit. IME data estimates the cost of retrofitting each MBT would
be approximately $3,000. The cost to industry to retrofit 150 MBTs
would be approximately $450,000. This is a one-time cost.
---------------------------------------------------------------------------

    \6\ This does not have an effect on the capacity of an MBT.
---------------------------------------------------------------------------

    Costs associated with periodic tests and inspections of non-DOT
specification cargo tanks. SLP-23 requires that non-DOT-specification
cargo tanks be inspected essentially the same way as specification
tanks. This requires competence training of inspectors and physical
inspections as described in Appendix B of SLP-23. IME data estimates
that 75 percent of the MBTs with non-specification tanks are in
substantial compliance with SLP-23 in this regard and 25 percent are
not. IME data estimates that the annual cost of performing inspections
and test for non-compliant vehicles is $3,500 per vehicle. Assuming
that 25 percent of MBTs (or 375 vehicles) would need to comply, the
annual cost of complying is approximately $1.3 million (375 MBTs not in
compliance * $3,500 for inspection and tests per vehicle).
    Costs associated with the nameplate. SLP-23 requires a nameplate be
affixed to the vehicle describing its design characteristics. According
to IME data, virtually all MBTs will need a retrofit, costing an
average of about $125 per truck for a total cost of $187,500 ($125 *
1,500 MBTs). This is a one-time cost.
    Costs associated with accident investigations. SLP-23 requires
companies to provide PHMSA an incident investigation report of all MBT
crashes. This report may be an internal investigation because: (1) Some
companies are self-insured and (2) some insurance companies will not
allow their reports to be released. An independent accident
investigation of an MBT crash would be conducted only if PHMSA requests
it. IME data estimates that under SLP-23 this would be necessary once a
year. An independent accident investigation of an MBT crash costs about
$10,000. The annual cost associated with accident investigations could
reach $20,000 per year.
    Driver training after preventable accidents. SLP-23 requires that
drivers involved in preventable accidents (as defined in 49 CFR Section
385.3) while operating an MBT be retrained if the driver remains
employed by the motor carrier. The SLP-23 requirement is similar to the
requirement in the current applicable SPs, although SLP-23 clarifies
that the carrier does not have a responsibility to continue to employ
the driver. Driver training costs are variable, depending on the amount
of training needed and required by the rule. New driver training is in
the vicinity of $3,000 per driver.\7\ As noted earlier, there are on
average approximately three incidents per year under SPs. If the trend
continues under SLP-23, the cost of driver training to the industry is
expected to be approximately $9,000 per year.
---------------------------------------------------------------------------

    \7\ Data from the Draft Regulatory Flexibility Analysis
completed in February 2011 of the Final Rule Minimum Training
Requirements for Entry-Level Commercial Motor Vehicle Operators.
---------------------------------------------------------------------------

    Maintaining and updating SLP-23. The cost of standard development
is spread amongst many standards that IME makes available to the
public. Some standards require more resources than others. IME
estimates that annual cost for maintaining and updating SLP-23 is
approximately $50,000. IME is prepared to bear the cost of maintaining
SLP-23 and updating it at no cost to PHMSA, once it is incorporated
into the HMRs. This cost is not included in the total cost to industry,
as this not a new cost but an ongoing expenditure that is

currently an integral part of industry's management and operation.
    Fire suppression system. The cost of equipping an MBT with a fire
suppression system is approximately $10,000 to $15,000 per vehicle (or
on average $12,500). This is a one-time cost for newly constructed
vehicles or trucks undergoing modifications (i.e., re-chassis).
Assuming that approximately 750 new vehicles are constructed (per the
analysis under Alternative 5), it would on average cost industry
approximately $9.4 million ($12,500 average cost of a fire suppression
system * 750 new vehicles).
    In addition, compliance with the NPRM would involve the cost of
inspection of fire suppression systems every 6 months by a qualified
and approved facility or person as described in the National Fire
Protection Association (NFPA) Standard.\8\ Should there be any
additional costs beyond those included under the incorporation of SLP-
23 for the testing of fire suppression systems, the cost is uncertain.
PHMSA seeks comment. Finally, there are no additional marginal costs
associated with NHTSA requirements in the NPRM.
---------------------------------------------------------------------------

    \8\ The NFPA standard covers all aspects of the design,
installation, operation, testing, and maintenance of the systems.
The costs associated with this requirement are undetermined at this
time. The standards can be purchased from NFPA for under $100.
---------------------------------------------------------------------------

    The following table shows the cost associated with the NPRM.

------------------------------------------------------------------------
                                                             Recurring
               Cost items                 One-time costs   annual costs
------------------------------------------------------------------------
Fire Extinguishers......................        $408,750              $0
Work Pressure Limit.....................         450,000               0
Periodic Inspections....................               0       1,300,000
Nameplate...............................         187,500               0
Accident Investigation..................               0          20,000
Driver Training.........................               0           9,000
Maintaining/Updating SLP-23.............               0          50,000
Cost of Fire-Suppression Systems........       9,375,000               0
                                         -------------------------------
    Total...............................      10,421,250       1,379,000
------------------------------------------------------------------------

    The total one-time costs to comply with the requirements in the
NPRM are estimated at $10.4 million; the recurring annual costs are
estimated at approximately $1.4 million.

Benefits and Cost Savings To Comply With the NPRM

    The benefits associated with the NPRM are the sum of the benefits
of incorporating SLP-23 into the HMR as estimated for Alternative 5
plus any benefits that may accrue from existing and new trucks meeting
the additional requirements. There will be some cost savings associated
with reduced paperwork burdens (see Section IV. Regulatory Analyses and
Notices, Part F--Paperwork Reduction Act). Below is an analysis of the
benefits provided by incorporating SLP-23 into the HMR, along with the
cost savings provided to both stakeholders and PHMSA.
    Cost savings to industry from no longer having to apply for the
nine SPs. According to PHMSA data, from 2005 through 2011 there were
534 requests for SPs submitted.\9\ There were no requests for new
permits; all 534 were party to SPs, modifications, or renewals. This
translates to approximately 76 requests for permits per year. According
to IME data, the industry spends approximately $825.00 for each
renewal, party to, or modification; the cost to industry of applying
for new permits is $50,000. Since none of the applications involved new
permits, the annual cost to industry would be $62,700 (76 permit
applications per year * $825 per renewal, party to, or modification).
---------------------------------------------------------------------------

    \9\ Data file provided by the COR, transmitted via email on June
15, 2012.
---------------------------------------------------------------------------

    Cost savings to PHMSA from no longer having to review and approve
applications for the nine SPs. PHMSA spends approximately $414.00 per
application.\10\ The annual total cost to PHMSA for the application and
review process is $31,464 [($414.00 per application * 76 (the average
number of permits processed per year)].
---------------------------------------------------------------------------

    \10\ Estimate provided by Special Permits and Approvals Division
via email on July 17, 2012.
---------------------------------------------------------------------------

    Costs savings to industry associated with not having to check tire
pressure before each departure onto the public roads. Currently, the
nine special permits may require the tire pressure to be checked
multiple times each day. The proposed rule would only require one tire
check a day. It is possible that there are multiple times that the MBT
is running back and forth to the blast site in a day, therefore, a
significant costs savings is accrued with the potential incorporation
of SLP-23. For the calculation of costs ensuing from the requirement to
check tire pressure (based on information from IME), PHMSA assumed the
following:
     There are approximately 1,500 MBTs in service and 500
ACTVs in service.
     Drivers of MBTs earn approximately $35.00 per hour,
including overhead.\11\
---------------------------------------------------------------------------

    \11\ According to the Department of Labor (DOL), Bureau of Labor
Statistics (BLS) occupational May 2011 wage statistics for ``53-3032
Heavy and Tractor-Trailer Truck Drivers,'' the mean hourly wage is
$19.15 per hour or $28.72 per hour, including overhead. See: http://www.bls.gov/oes/current/oes533032.htm. The BLS wage estimate is less
than that estimated by IME because the BLS estimate includes drivers
of all tractor trailers and trucks with a capacity of 26,000 pounds
not only MBTs. PHMSA is using IME's wage estimate for this cost
analysis as the IME wage estimate relates to MBT drivers considered
under this NPRM. PHMSA seeks comments on this estimate.
---------------------------------------------------------------------------

     Drivers perform work-related activities approximately 250
days per year (14-hour days). The 14-hour day consists of driving
(which, under current U.S. regulations, is restricted to 11 driving
hours during a 14-hour workday), non-driving (such as loading,
unloading, performing required tire checks, and doing paperwork), and
rest breaks. According to a DOT study, commercial motor vehicle (CMV)
drivers spend approximately 66 percent of their workday driving; 23
percent performing non-driving activities; and the remaining 11 percent
resting, eating, and sleeping while on duty.\12\
---------------------------------------------------------------------------

    \12\ Source: The Center for Truck and Bus Safety, Virginia tech
Transportation Institute ``The Impact of Driving, Non-Driving Work,
and Rest Breaks on Driving Performance in Commercial Motor Vehicle
Operations,'' May 2011.
---------------------------------------------------------------------------

     A gallon of diesel fuel as of December 2012 is
approximately $4.00.\13\
---------------------------------------------------------------------------

    \13\ See: http://www.eia.gov/petroleum/gasdiesel/ (accessed
December 25, 2012).
---------------------------------------------------------------------------

     It costs $560.00 per day to operate an MBT in compliance
with SPs.
     Time to check the tire pressure is on average
approximately 30 minutes

per day.\14\ PHMSA believes this may be an overestimation but has
included it in the absence of an alternative value.
---------------------------------------------------------------------------

    \14\ IME estimate.
---------------------------------------------------------------------------

    PHMSA seeks comments on these estimates and assumptions.
    Under the above assumptions the cost per year for the tire checks
is approximately $4,375 per year ($17.50 driver wage per half hour of
work * 250 work days). Vehicles idle during the tire check and consume
1 gallon of fuel per hour. The fuel costs per year are $500 ($2.00 per
half gallon * 250 workdays).
    Additionally, industry estimates that the time needed to comply
with tire checks translates to approximately 0.036 days (0.5 hours/14-
hour workday) in lost time. Thus the additional MBT trips required
annually cost approximately $5,000 (.036 lost time * 250 workdays *
$560 to operate MBT per day). Below is a table demonstrating this
entire calculation.

----------------------------------------------------------------------------------------------------------------
                                               Labor cost per   Fuel cost per       Vehicle
       Average amount of time per day             year per         year per       downtime per    Total per year
                                                  vehicle          vehicle            year         per vehicle
----------------------------------------------------------------------------------------------------------------
30 minutes..................................          $4,375             $500           $5,000      \15\ $9,875
----------------------------------------------------------------------------------------------------------------

    The annual cost per vehicle associated with the tire-pressure check
requirement is $9,875, which works out to an annual cost to industry
from the tire-pressure test requirement of approximately $14.8 million
($9,875 total cost per vehicle per year * 1,500 MBTs).
---------------------------------------------------------------------------

    \15\ The total cost per day to operate an MBT is equal to
$560.00. The $9,875 associated with time lost per year for tire
checks represents approximately 7 percent of the total cost of the
operation of a vehicle [$9, 875/($560.00 * 250)].
---------------------------------------------------------------------------

    Costs savings to industry associated with caking. There is a cost
savings from the requirements relating to caking. If left sitting for
several days, ammonium nitrate (AN), can absorb moisture from the air,
allowing it to cake into a solid mass, which is extremely difficult to
break up. AN is highly hygroscopic; that is, it readily absorbs water
from the atmosphere. AN is also highly water soluble. If AN sits
undisturbed in a bulk container long enough, it will absorb water, and
the prills will dissolve slightly around the edges. A drop in
temperature will then cause the prills to solidify into a solid mass.
SLP-23 counteracts this by unloading the transport container. Almost
all bulk trucks will have AN prill in them at some point, making them
susceptible to caking. Routine maintenance requirements under SLP-23 do
not permit caking of the contents of an MBT to occur. SLP-23 specifies
that if the interior surfaces of bulk packaging are not smooth and free
of obstructions, the bulk packaging is to be inspected and cleaned ``to
prevent caking and/or drying-out of the bulk hazardous material.'' SLP-
23 further specifies that bulk hazardous material not be allowed to
remain in the bulk packaging for any period of time that could result
in caking. SLP-23 recommends that the equipment be cleaned as needed to
minimize the accumulation and packing of the bulk hazardous material in
the bulk packaging. IME data notes that instances of caking currently
occur 5 to 10 times annually and cost about $12,000 to remediate each
time caking occurs. There is no additional cost to industry to comply
with the requirement in SLP-23 that helps prevent caking. Thus, this
preventive requirement represents a savings to industry on average of
$90,000 per year (7.5 caking incidents per year * $12,000 per incident
for remediation).
    Costs savings to the public associated with IBR of SLP-23. In
addition, IME will make the standard available at no charge, which
represents a cost saving to the public of approximately $1.3 million.
Based on IME's experience with standards, we conclude that the total
annual costs for the development and maintenance of standards would
likely be over $1.3 million ($1 million for staff and equipment +
$100,000 for meetings + $50,000 to maintain the standard + $100,000 for
videos and posters, etc. + an undetermined licensing fee).
    Benefits of fire suppression on new construction and trucks
undergoing modifications. The benefits of fire suppression systems are
many, including that they stand up under the heavy vibration and shock
conditions common to MBTs, are designed to protect human life and
property by quickly and efficiently suppressing a fire before it can
reach the operator or passenger areas, help to prevent extensive
vehicle damage, and curtail the damage that threatens adjacent areas.
The system can be water based or chemical based. If a suppressant is
water based, it is--without question--environmentally safe. If the
suppressants are chemical based, the environment can be remediated.\16\
There is evidence (noted in a study that examined the effects of fire
suppressant agents on art artifacts) that the fire may cause more harm
to the environment than the agent used to extinguish it and that the
``heat from the fire would help to vaporize the agent.'' \17\ There are
too few incident data to estimate and monetize the benefits from a fire
suppression system, but given that the cost is in the range of $1,000
to $1,500 per year over the life of a truck, the benefits are likely to
justify those low costs. PHMSA seeks comment on this analysis.
---------------------------------------------------------------------------

    \16\ For example, an anaerobic bioremediation product has been
specifically manufactured for environmental applications such as
remediation of soils and associated groundwater. See: http://www.caruscorporation.com/content.cfm/cap18-me (accessed December 19,
2012).
    \17\ See http://www.nfpa.org/~/media/Files/Research/
Research%20Foundation/Research%20Foundation%20reports/Suppression/
extinguishentsculturalresourcecollections.pdf, p. 17 (accessed
December 19, 2012).
---------------------------------------------------------------------------

    Benefits of NHTSA requirements on new construction and trucks
undergoing modifications. NHTSA is the U.S. Government agency
responsible for implementing and enforcing the National Traffic and
Motor Vehicle Safety Act of 1966, as amended, 49 U.S.C. Chapter 301
(the Vehicle Safety Act), and certain other laws relating to motor
vehicle safety. Under that authority, NHTSA issues and enforces Federal
motor vehicle safety standards (FMVSS) that apply to motor vehicles and
to certain items of motor vehicle equipment. The Vehicle Safety Act
requires that motor vehicles and regulated items of motor vehicle
equipment manufactured for sale in the United States be certified to
comply with all applicable FMVSS. Before offering a motor vehicle or
motor vehicle equipment item for sale in the United States, the
fabricating manufacturer must: (1) Designate a permanent resident of
the United States as its agent for service of process if the
fabricating manufacturer is not located in the United States (49 CFR
part 551, Subpart D Service of Process on Foreign Manufacturers and
Importers) and (2) submit to NHTSA identifying information on itself
and on the products it manufactures to the FMVSS, not later than 30
days after the manufacturing process begins (49 CFR part 566
Manufacturer Identification).

This requirement is expected to reduce regulatory and administrative
burden, without negatively affecting transportation safety. There are
likely to be no significant marginal costs or benefits associated with
this requirement. PHMSA seeks comment on this analysis.
    The following table shows the benefits and cost savings associated
with the NPRM.

------------------------------------------------------------------------
                                                           Cost savings
                   Cost savings items                        per year
------------------------------------------------------------------------
Industry savings from no longer having to submit SP              $62,700
 applications...........................................
PHMSA savings from SP application review................          31,464
Industry savings from no longer having to do tire checks      14,800,000
 prior to departures across public roads................
Savings to industry from remediation resulting from               90,000
 caking incidents experienced under current operations
 under SPs..............................................
Savings to the public from making SLP-23 available to          1,300,000
 the public at no-cost, updating and maintaining the
 publication............................................
Reduced paperwork burden................................           3,420
                                                         ---------------
    Total...............................................      16,287,584
------------------------------------------------------------------------

    The annual total cost savings are approximately $16.3 million. The
quantified annual benefits of approximately $16.3 million arise mainly
from the incorporation of SLP-23 into the HMR. There are other benefits
from the other requirements (e.g., from the installation of fire
suppression systems and the NHTSA requirements) but these benefits are
not quantified.

Summary of Costs, Benefits, and Cost Savings for Adopting the NPRM

    Under the NPRM, the one-time costs are approximately $10.4 million;
the recurring annual costs are approximately $1.4 million. The net
present value of these costs discounted at 3 percent and 7 percent over
the 10 years is approximately $22 million and $19 million,
respectively. The annualized cost of the rule discounted at 3 percent
is $2.2 million and at 7 percent is approximately $1.9 million.
    The present value of the $16.3 million in annual cost savings
(which represent the major benefits of the proposed rule) discounted at
3 percent and 7 percent over 10 years is approximately $143 million and
$122 million, respectively. The annualized benefits at 3 percent are
approximately $14.3 million and at 7 percent $12.2 million.
    The annualized net benefits of the proposed rule at 3 percent are
approximately $12.1 million and at 7 percent approximately $10.3
million.

C. Executive Order 13132

    This proposed rule was analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''), and
the President's memorandum on ``Preemption'' published in the Federal
Register on May 22, 2009 (74 FR 24693). This proposed rule would
preempt state, local and Indian tribe requirements but does not propose
any regulation that has substantial direct effects on the states, the
relationship between the national government and the states, or the
distribution of power and responsibilities among the various levels of
governments. Therefore, the consultation and funding requirements of
Executive Order 13132 do not apply. Federal hazardous material
transportation law, 49 U.S.C. 5101-5128, contains an express preemption
provision (49 U.S.C 5125(b)) preempting state, local and Indian tribe
requirements on certain covered subjects. Covered subjects are:
    (1) The designation, description, and classification of hazardous
materials;
    (2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous materials; or
    (5) The designing, manufacturing, fabricating, inspecting, marking,
maintaining, reconditioning, repairing, or testing a package, container
or packaging component that is represented, marked, certified, or sold
as qualified for use in transporting hazardous material in commerce.
    This proposed rule addresses covered subject items (2), (3), and
(5) and would preempt any State, local, or Indian tribe requirements
concerning these subjects unless the non-Federal requirements are
``substantively the same'' as the Federal requirements. Furthermore,
this proposed rule is necessary to update, clarify, and provide relief
from regulatory requirements.
    Federal hazardous materials transportation law provides at 49
U.S.C. 5125(b)(2) that if PHMSA issues a regulation concerning any of
the covered subjects, PHMSA must determine and publish in the Federal
Register the effective date of Federal preemption. The effective date
may not be earlier than the 90th day following the date of issuance of
the final rule and not later than two years after the date of issuance.
PHMSA proposes the effective date of federal preemption will be 90 days
from publication of the final rule in this matter in the Federal
Register.

D. Executive Order 13175

    This proposed rule was analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this proposed
rule does not have tribal implications and does not impose substantial
direct compliance costs on Indian tribal governments, the funding and
consultation requirements of Executive Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies

    The Regulatory Flexibility Act of 1980 (RFA), as amended, requires
Federal agencies to conduct a separate analysis of the economic impact
of rules on small entities, taking into account small entities'
particular concerns when developing, writing, publicizing,
promulgating, and enforcing regulations. Under Section 603(b) of the
RFA, each initial regulatory flexibility analysis is required to
address: (1) The reasons why the agency is considering the action; (2)
the objectives and legal basis for the proposed rule; (3) the kind and
number of small entities to which the proposed rule will apply; (4) the
projected reporting, recordkeeping and other compliance requirements of
the proposed rule; and (5) all federal rules that may duplicate,
overlap, or conflict with the proposed rule.\18\ Furthermore, under
Section 603(c) of the RFA, each initial regulatory flexibility analysis
shall also contain a description of any

significant alternatives to the proposed rule which accomplish the
stated objectives of applicable statutes and which minimize any
significant economic impact of the proposed rule on small entities. A
discussion of the significant alternatives is provided first, and then
a discussion of the requirements follows afterward.
---------------------------------------------------------------------------

    \18\ See: http://www.fws.gov/policy/library/rgSBAGuide.pdf
(accessed December 10, 2012).
---------------------------------------------------------------------------

Alternatives Considered
    The goal of this rulemaking is to facilitate the safe
transportation of explosives in domestic commerce. In developing this
proposed rulemaking, PHMSA considered five alternatives:
Alternative 1: No Action
    Under this option, PHMSA would continue existing requirements for
Special Permits to transport bulk explosives by taking no action.
However, PHMSA believes that there are considerable benefits to
utilizing a codified standard, provided that a high level of safety is
maintained. With this rationale, alternative one was not selected in
this NPRM.
Alternative 2: PHMSA Defers to Voluntary Standards
    Under this option, PHMSA would defer to voluntary standards
developed through organizations or trade associations. PHMSA would
likely participate in standard-setting to develop standards that meet
safety criteria that are in the interest of the United States. While
compliance with voluntary standards is thought to be high by industry
participants, firms do not have to comply with them, since they are
voluntary. This creates some concern since the non-adoption may mean
that those firms may not comply with minimum safety standards. For
these reasons, alternative two was not selected in this NPRM.
Alternative 3: Incorporate Special Permits That Have a Good Safety
Record Into the HMR
    Under this option, PHMSA would incorporate seven of the nine
special permits into the HMR. These seven special permits have very
good safety records. By incorporating these special permits, PHMSA
would need to work through the Federal rulemaking process to modify the
HMR in response to technological enhancements and other matters
relating to the transportation of the bulk explosives covered under the
seven special permits. It would be more advantageous to incorporate
standards developed by industry than for PHMSA to develop its own
standards and incorporate them into the HMR. Therefore, alternative
three was not selected in this NPRM.
Alternative 4: Adopt Other National or International Standards
    Under this option, PHMSA would adopt other national or
international standards, such as those used by Canada, Australia, or
the United Nations. These other standards do not conform well to
existing U.S. law and to the nine special permits. For example, the
U.S. Bridge Law (USBL) provides known standards for bridge
construction, by, among other requirements, placing restrictions on the
overall size of MBTs in service in the United States. Other standards
do not conform to the USBL. Also, these standards are implemented in
ways that may not be possible within the regulatory framework in the
United States. For these reasons, alternative four was not selected in
this NPRM.
Alternative 5: Incorporate SLP-23 into the HMR With Additional Features
    SLP-23 recommends standards for MBT straight trucks that typically
transport multiple hazardous materials in support of blasting
operations and articulated cargo tanks that carry a single bulk
blasting agent or oxidizer. Under this option, PHMSA will incorporate
SLP-23 into the HMR with additional features. This rulemaking
specifically proposes to adopt a combination of features, including
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 SLP-23), requiring fire suppression
systems in heat-containing compartments (e.g., engine, transmission)
and emergency shut-off/battery disconnect of newly constructed or
modified MBTs, and complying with certain National Highway Traffic
Safety Administration (NHTSA) requirements. The NPRM requirements are
more comprehensive and have stricter standards than the nine special
permits, and it may eliminate some duplicative functions covered by
other industry standards. While SLP-23 may need to be re-evaluated and
changed to keep pace with technological enhancements and other matters,
IME will perform this and publish the revised standards free of charge.
SLP-23 was developed with input of IME members, stakeholders, and
PHMSA. In addition to incorporating SLP-23, under this option, we would
add fire suppressions systems to the vehicles similar to the designs
authorized under the Canadian requirements. The fire suppression
requirements would strengthen the performance standards, and further
accomplish PHMSA's objective of enhancing safety. For all of these
reasons, alternative five was PHMSA's chosen alternative for this NPRM.
Reasons Why PHMSA Is Considering the Action
    In this notice of proposed rulemaking, PHMSA proposes to amend the
HMR to establish standards for the safe transportation of bulk
explosives. Developing such provisions of the HMR is intended to
provide wider access to the regulatory flexibility that is currently
only offered by way of obtaining a special permit. For example, the
adoption of a regulatory standard in the HMR would eliminate the need
for persons who hold a special permit to apply for renewal in the
future.
    This rulemaking specifically focuses on reviewing the Institute of
Makers of Explosives (IME) Safety Library Publication 23 (SLP-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) and special permits related
to multipurpose bulk trucks (MBTs) used to transport various
explosives, oxidizers, flammable liquids, and corrosive liquids on the
same transport vehicle. The objective of this rulemaking is to develop
a set of standards related to the safe transportation of these
materials in MBTs that will no longer require the need to apply for a
special permit as the standard will be in the HMR.
    This rulemaking action is necessary to provide regulatory
flexibility and relief while protecting public health, welfare, safety,
and the environment. This NPRM will be beneficial to stakeholders by
reducing paperwork for industry and government while maintaining an
appropriate level of safety which promotes safer transportation
practices. Finally, this rulemaking action facilitates commerce and
eliminates unnecessary regulatory requirements. The intended effects of
this rulemaking action would provide enhanced flexibility for industry
transporting hazardous materials in commerce while maintaining an
appropriate level of safety. The rulemaking would amend the HMR by
incorporating IME publication SLP-23 with some additional requirements
discussed above.

The Objectives and Legal Basis for the Proposed Rule
    PHMSA is proposing to amend the HMR by establishing standards for
the safe transportation of bulk explosives. By proposing these
requirements, PHMSA will be mirroring the majority of provisions
contained in nine widely used or longstanding special permits that have
established safety records. These proposed revisions are intended to
eliminate the need for future modifications, or renewal requests, thus
reducing paperwork burdens and facilitating commerce while maintaining
an appropriate level of safety. As proposed, the requirements would
authorize the transportation of certain explosives, ammonium nitrates,
ammonium nitrate emulsions, and other specific hazardous materials in
bulk packaging, which are not otherwise authorized under the
regulations. These hazardous materials are used in blasting operations
on specialized vehicles, known as multipurpose bulk trucks, which are
used as mobile work platforms to create blends of explosives that are
unique for each blast site. Finally, this rulemaking addresses the
construction of new and modified multipurpose bulk trucks.
    This NPRM is published under 49 U.S.C. 5103(b) which authorizes the
Secretary to prescribe regulations for the safe transportation,
including security, of hazardous material in intrastate, interstate,
and foreign commerce. 49 U.S.C. 5117(a) authorizes the Secretary of
Transportation to issue a special permit from a regulation prescribed
in 5103(b), 5104, 5110, or 5112 of the Federal Hazardous Materials
Transportation Law to a person transporting, or causing to be
transported, hazardous material in a way that achieves a safety level
at least equal to the safety level required under the law, or
consistent with the public interest, if a required safety level does
not exist. If adopted, the final rule would amend the regulations by
incorporating provisions from certain widely used and longstanding
special permits that have established a history of safety and which
may, therefore, be converted into the regulations for general use.
Description and Estimate of the Number of Small Entities To Which the
Proposed Rule Will Apply
    By amending the HMR, this proposed action could affect any firm
operating under the HMR. In practice, this action will likely affect
only existing holders of the nine special permits. Firms newly engaged
in the transportation of bulk explosives will benefit from the
elimination of the special permit application process. Manufacturers of
MBTs will also be affected by the proposed rule.
    PHMSA data detailing the application from firms for the nine
special permits under consideration show that (from 2005 through 2011)
115 firms were involved in obtaining permits. All were applications for
renewals, party to, or modifications; there have been no new applicant
firms since at least 2005. Based on PMHSA's registration data files, 72
percent of the 115 firms \19\ are small businesses. There may be other
small firms for which we do not have information that may be affected
in the future. PHMSA does not expect but a few in this category, since
the industry operates in a mature market with multiple established
players. However, PHMSA seeks comments on this estimate.
---------------------------------------------------------------------------

    \19\ 25 firms holding one or more of the nine special permits
could not be found in PHMSA's registration data files. Three of
these 25 firms are well-known large companies (Daikin Industries,
Honeywell, and DuPont), and another permit holder is PHMSA. All four
are included in this calculation as large businesses.
---------------------------------------------------------------------------

Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule
    An analysis of the compliance costs for the proposed rule can be
found in the Regulatory Impact Analysis (RIA) for Hazardous Materials:
Requirements for the Safe Transportation of Bulk Explosives (RRR)
[Docket No. PHMSA-2011-0345 (HM-233D)] [RIN: 2137-AE86]. A
discussion of the impacts of the proposed regulation on small
businesses is included below.
Costs to Small Businesses
    IME data estimates that there are approximately 1,500 MBTs in
service, and PHMSA concurs with this estimate.\20\ PHMSA conservatively
assumes a uniform distribution of MBTs among small and large firms,
even though large firms operate a significant proportion of the MBTs in
service.\21\ Thus PHMSA assumes that small firms operate 1,080 MBTs
(1,500 MBTs in service * 0.72 small business entities).
---------------------------------------------------------------------------

    \20\ See the RIA, Section 2.3, for a discussion of the number of
MBTs in service.
    \21\ Based on 1992 Vehicle Inventory and Use Survey (VIUS) data,
at least six firms have 100 or more MBTs in their fleet, so a more
complex analysis would remove those six large firms and 600 MBTs
from the calculations. Thus the analysis presented in this Initial
Regulatory Flexibility Analysis (IRFA) may overstate the impact on
small businesses.
---------------------------------------------------------------------------

    Costs associated with tire-pressure checks. SLP-23 contains a
requirement to check tire pressure before the initial trip of the day.
This would be part of a routine pre-trip inspection and should not add
any costs.
    Costs associated with fire extinguishers. SLP-23 requires a minimum
of two fire extinguishers rated 4-A:40B:C. Approximately 25 percent of
the MBTs in service would need to acquire and affix the fire
extinguishers. Assuming these MBTs are distributed uniformly across all
1,500 MBTs in service, small businesses will need to acquire and affix
fire extinguishers to 270 MBTs (1,080 MBTs * 0.25 MBTs in service would
need to acquire and affix the fire extinguishers) at a total cost of
$294,300 [($250 for the fire extinguishers + $280 labor costs + $560
vehicle downtime) * 270 MBTs]. This is expected to be a one-time cost.
    Costs associated with working pressure limit. SLP-23 limits the
maximum allowable working pressure of an MBT cargo tank to 35 psi. IME
estimates that at most 10 percent of the MBTs would need a retrofit to
meet this standard. Assuming these MBTs are distributed uniformly
across all 1,500 MBTs in service, small businesses will need to
retrofit 108 MBTs (1,080 MBTs * 10 percent), leading to a total cost of
$324,000 ($3,000 for the retrofit * 108 MBTs). This is a one-time cost.
    Costs associated with periodic tests and inspections of non-DOT
specification cargo tanks. SLP-23 requires that non-DOT specification
cargo tanks be inspected identical to specification tanks. This
requires competence training of inspectors and physical inspections as
described in Appendix B of SLP-23. IME data estimates that 25 percent
of the MBTs with non-specification tanks are not in compliance with
SLP-23 in this regard. Assuming these MBTs are distributed uniformly
across all 1,500 MBTs in service, small businesses will need to conduct
tests and inspections on 270 MBTs (1,080 MBTs * 0.25 MBTs with non-
specification tanks are not in compliance with SLP-23 in this regard)
at an annual cost of $945,000 ($3,500 per inspection and test * 270
MBTs). This is a recurring cost.
    Costs associated with the nameplate. SLP-23 requires a nameplate be
affixed to the vehicle describing its design characteristics. PHMSA
assumes that all MBTs will need to affix a nameplate. For small
businesses, the total cost associated with the nameplate is $135,000
($125 per nameplate * 1,080 MBTs). This is a one-time cost.
    Costs associated with accident investigations and driver training
after preventable accidents. SLP-23 requires companies to provide PHMSA
an incident investigation report of all MBT

crashes. This report may be an internal investigation because: (1) Some
companies are self-insured and (2) some insurance companies will not
allow their reports to be released. An independent accident
investigation of an MBT crash would be conducted only if PHMSA requests
it. IME estimates that under SLP-23 this would be necessary once a
year. An independent accident investigation of an MBT crash costs about
$10,000. In addition three incidents per year will require driver
training at the cost of $9,000 ($3,000 per training * 3 incidents).
Assuming incidents over time are distributed uniformly among all firms,
small businesses will have an expected annual cost of $13,680 per year
[($10,000 for investigations + $9,000 for training) * 0.72 small
entities].
    The total one-time cost borne by small businesses associated with
the NPRM requirements is $753,300. The total recurring cost borne by
small businesses is expected to be $958,680 per year.
Benefits to Small Businesses
    Savings from applications of special permits. Incorporating SLP-23
into the HMR will eliminate nine special permits and the costs
associated with preparing and submitting applications for these special
permits. Assuming the 76 special permit applications per year are
distributed uniformly among small and large firms, small businesses
account for approximately 55 (76 * 0.72 small entities) applications
per year. Thus small businesses will save $45,375 (55 special permit
applications * $825 per special permit party to or renewal application)
per year.
    Savings from tire pressure checks. The special permits require that
tires must be checked and the pressure of each tire recorded before
each departure onto or across a public road, which adds a cost of $14.8
million annually to operating requirements for the 1,500 MBTs in
service, a cost not incurred by any other hazardous materials trucking
operation. Under the incorporation of SLP-23 into the HMR, the mandate
to check and record tire pressures before each on-road departure would
no longer apply. This will represent a cost saving of $10.7 million
($14.8 million for operating requirements * 0.72 small entities) per
year to small businesses.
    Savings from caking remediation. The requirements relating to
caking in SLP-23 will eliminate the cost of remediating caking in the
bulk packaging. Assuming the 7.5 caking incidents per year are
distributed uniformly among small and large firms, the requirements
will lead to a cost savings of $64,800 ($12,000 to remediate caking *
7.5 caking incidents per year * 0.72 small entities) per year.
    The total cost savings for small businesses associated with the
NPRM are estimated at approximately $10.8 million ($45,375 savings from
applications + $10.7 million savings from tire pressure checks +
$64,800 savings from caking remediation) per year. The benefits far
outweigh the costs. PHMSA seeks comments on the estimated costs and
benefits.
An Identification of All Federal Rules That May Duplicate, Overlap, or
Conflict With the Proposed Rule
    PHMSA is proposing to revise the HMR by amending the regulations to
establish standards for the safe transportation of bulk explosives. The
NPRM has a detailed explanation of all the proposed requirements. None
of the existing Federal rules duplicate, overlap, or conflict with the
proposed rule.
Conclusion
    This proposed rule has been developed in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act to ensure that potential impacts of
draft rules on small entities are properly considered. In summary, the
proposed rule provides substantial benefits to small entities as
demonstrated above.

F. Paperwork Reduction Act

    PHMSA currently has an approved information collections under
Office of Management and Budget (OMB) Control Number 2137-0014,
entitled ``Cargo Tank Specification Requirements.'' This NPRM may
result in a slight increase in the annual burden and costs under OMB
Control Number 2137-0014 due to proposed changes to the recordkeeping
requirements following the verification and certification of the MBTs
Fire Suppression System by the Design Certifying Engineer (DCE). The
slight increase is due to the fact that the DCE must prepare a test
report and provide the test report to the manufacturer of the vehicle,
and both must keep the records for ten years. Further, the manufacturer
must provide a copy of the report to the owner of the vehicle, and the
owner maintains it while he/she owns the vehicle.
    PHMSA currently has an approved information collection under OMB
Control Number 2137-0051, entitled ``Rulemaking, Special Permits, and
Preemption Requirements.'' This NPRM may result in a decrease in the
annual burden and costs under OMB Control Number 2137-0051 due to
proposed changes to incorporate SLP-23 and certain provisions contained
in certain widely-used or longstanding special permits that have an
established safety record.
    Under the Paperwork Reduction Act of 1995, no person is required to
respond to an information collection unless it has been approved by OMB
and displays a valid OMB control number. Section 1320.8(d), title 5,
Code of Federal Regulations requires that PHMSA provide interested
members of the public and affected agencies an opportunity to comment
on information and recordkeeping requests.
    This notice identifies revised information collection requests that
PHMSA will submit to OMB for approval based on the requirements in this
proposed rule. PHMSA has developed burden estimates to reflect changes
in this proposed rule and estimates that the information collection and
recordkeeping burdens would be revised as follows:
    OMB Control No. 2137-0014:
    Net Increase in Annual Number of Respondents: 1.
    Net Increase in Annual Responses: 1.
    Net Increase in Annual Burden Hours: 2.
    Net Increase in Annual Burden Costs: $200.
    OMB Control No. 2137-0051:
    Net Decrease in Annual Number of Respondents: 76.
    Net Decrease in Annual Responses: 76.
    Net Decrease in Annual Burden Hours: 76.
    Net Decrease in Annual Burden Costs: $1,900.
    PHMSA specifically requests comments on the information collection
and recordkeeping burdens associated with developing, implementing, and
maintaining these requirements for approval under this proposed rule.
    Requests for a copy of this information collection should be
directed to Steven Andrews or T. Glenn Foster, Office of Hazardous
Materials Standards (PHH-12), Pipeline and Hazardous Materials Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001,
Telephone<PHONE_NUMBER>.
    Address written comments to the Dockets Unit as identified in the
ADDRESSES section of this rulemaking. We must receive comments
regarding information collection burdens prior to the close of the
comment period identified in the DATES section of this rulemaking. In
addition, you may submit comments specifically related to

the information collection burden to the PHMSA Desk Officer, Office of
Management and Budget, at fax number<PHONE_NUMBER>.

G. Regulation Identifier Number (RIN)

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

H. Unfunded Mandates Reform Act of 1995

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

I. Environmental Assessment and Finding of No Significant Impact

    The National Environmental Policy Act, 42 U.S.C. 4321-4375,
requires that federal agencies consider the consequences of major
Federal actions and prepare a detailed statement on actions
significantly affecting the quality of the human environment. The
Council on Environmental Quality (CEQ) regulations require federal
agencies to conduct an environmental review considering: (1) The need
for the action; (2) alternatives to the action; (3) probable
environmental impacts of the action and alternatives; and (4) the
agencies and persons consulted during the consideration process (40 CFR
1508.9(b)).
Introduction
    PHMSA is proposing to amend the HMR by establishing standards for
the safe transportation of bulk explosives. This rulemaking
specifically focuses on reviewing the Institute of Makers of Explosives
(IME) Safety Library Publication (SLP) 23 (SLP-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) and nine special permits related to
multipurpose bulk trucks (MBTs) used to transport various explosives,
oxidizers, flammable liquids, and corrosive liquids on the same
transport vehicle. The objective of this rulemaking is to develop a set
of standards related to the safe transportation of these materials in
MBTs that will no longer require a special permit because the standard
will be in the HMR.
    Through this notice of proposed rulemaking (NPRM) PHMSA is
proposing to incorporate SLP-23 and establish requirements of general
applicability governing the transportation of bulk explosive materials.
In addition, PHMSA is proposing requirements for new construction and
MBTs undergoing modifications, including fire suppression systems,
emergency shut-off/battery disconnect, and compliance with Federal
Motor Vehicle Safety Standard (FMVSS).
Background
    This rulemaking is responsive to two petitions for rulemaking
submitted by industry representatives, P-1557 concerning the
elimination of the need to operate under special permits by
incorporating them into the HMR, and P-1583 concerning the
incorporation of an industry standard publication. Further, developing
these requirements would provide wider access to the regulatory
flexibility currently only offered by special permit and competent
authorities.
    This rulemaking specifically focuses on reviewing IME SLP-23 (SLP-
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) and nine special permits
related to MBTs used to transport various explosives, oxidizers,
flammable liquids, and corrosive liquids on the same transport vehicle.
The objective of this rulemaking is to develop a set of standards
related to the safe transportation of these materials in MBTs that will
no longer require the need to apply for a special permit as the
standard will be in the HMR.
    This NPRM is published under the authority of 49 U.S.C. 5103(b),
which authorizes the Secretary to prescribe regulations for the safe
transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce. 49 U.S.C. 5117(a)
authorizes the Secretary of Transportation to issue a special permit
from a regulation prescribed in 5103(b), 5104, 5110, or 5112 of the
Federal Hazardous Materials Transportation Law to a person
transporting, or causing to be transported, hazardous material in a way
that achieves a safety level at least equal to the safety level
required under the law, or consistent with the public interest, if a
required safety level does not exist. If adopted, the final rule would
amend the regulations by incorporating provisions from certain widely
used and longstanding special permits that have established a history
of safety and that may, therefore, be converted into the regulations
for general use.
Purpose and Need
    PHMSA proposes to amend the HMR to establish standards for the safe
transportation of bulk explosives. Developing such provisions of the
HMR is intended to provide wider access to the regulatory flexibility
that currently only is offered by way of obtaining a special permit.
For example, the adoption of a regulatory standard in the HMR would
eliminate the need for persons who hold a special permit to apply for
renewal in the future.
    In this NPRM, PHMSA is proposing to revise the HMR by amending the
regulations to establish standards for the safe transportation of bulk
explosives. The following is a description of the action and the need
for the action.

A. Incorporation of SLP-23 Into the HMR

    Action: PHMSA proposes to incorporate SLP-23 and establish
requirements of general applicability governing the transportation of
bulk explosive materials. As such, PHMSA proposes to revise the 49 CFR
171.7 table of material incorporated by reference to include SLP-23,
and establish a new section for the bulk explosives requirements.
    Need: PHMSA has concluded that the incorporation of SLP-23 into the
HMR will provide wider access to the regulatory flexibility currently
only offered by special permit and competent authorities. PHMSA
believes this will benefit the government and the industry, as it will
eliminate the need for firms to apply individually to transport certain
classes of bulk materials in MBTs, provide regulatory flexibility and
relief while maintaining an high level of safety, promote safer
transportation practices, facilitate commerce, reduce paperwork
burdens, and eliminate unnecessary regulatory requirements.

B. Requirements for Fire Suppression Systems in New Construction and
Modified Multipurpose Bulk Trucks

    Action: All new construction and modified MBTs must include a Fire
Suppression System conforming to the following specifications. The Fire
Suppression System must be an engineered system connected to the

engine and transmission compartments. The system shall be activated by
manual switch or passive means in the event of a fire. All fire
extinguishers used as components of the system must meet the
requirements of 49 CFR 393.95(a) and the applicable National Fire
Protection Association (NFPA) codes and standards. The Fire Suppression
System's design must be verified and certified by the Design Certifying
Engineer (DCE) of the vehicle. The design must be tested through
engineering analysis or physical testing to verify the initial design
or future modification(s) to the current fire suppression system. The
Fire Suppression System must be visually inspected annually for
defects, flaws, damage, etc., and ensure none are present. The system
must 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.
    Need: This specifies that all new construction and modified MBTs
must conform to the requirements in the HMR and SLP-23 with respect to
the Fire Suppression System. This proposed action also provides
specific details as to the functionality, design, certification, and
inspection of the Fire Suppression System.

C. Requirements for Emergency Shut-Off/Battery Disconnect in New
Construction and Modified Multipurpose Bulk Trucks

    Action: All new construction and modified MBTs must include an
Emergency Shut-Off/Battery Disconnect system conforming to the
following specifications. The batteries for the chassis must be
equipped with three easily accessible manual disconnect switches. One
manual disconnect switch must be located inside the driver's cab and
does not include the ignition. The remaining two manual disconnect
switches must be located on each side of the vehicle. All three
switches must be connected to the positive battery terminal and the
line of the switch must be protected from rubbing and abrasion that
could cause a short circuit. The battery disconnect must isolate all
manufacturing equipment except critical instrumentation which requires
the maintenance of the electrical supply. The battery disconnect shall
be tested monthly to ensure proper operation.
    Need: This specifies that all new construction and modified MBTs
must conform to the requirements in the HMR and SLP-23 with respect to
Emergency Shut-Off and Battery Disconnect systems. This proposed action
also provides specific details as to the functionality, design, and
testing of the Emergency Shut-Off/Battery Disconnect system.

D. Federal Motor Vehicle Safety Standards for New Construction and
Modified Multipurpose Bulk Trucks

    Action: New or modified multipurpose bulk trucks constructed after
the effective date of the Final Rule must be in compliance with the
FMVSS found in 49 CFR part 571, as applicable. Furthermore, the
multipurpose bulk truck manufacturer must maintain a certification
record ensuring the final manufacturing is in compliance with the
FMVSS, per the certification requirements found in 49 CFR part 567.
These certification records must be made available to DOT
representatives upon request.
    Need: This specifies that all new construction and modified MBTs
must conform to the FMVSS requirements.
Public Involvement
    This rulemaking is responsive to two petitions for rulemaking
submitted by industry representatives, P-1557 concerning the
elimination of the need to operate under special permits by
incorporating them into the HMR, and P-1583 concerning the
incorporation of an industry standard publication. Developing these
requirements would provide wider access to the regulatory flexibility
currently only offered by special permit and competent authorities.
    PHMSA is actively seeking public comment on this NPRM.
Market Segments Affected and Requirements of the Proposed Rule
    This proposed rule proposes to incorporate elements of nine special
permits that authorize multipurpose bulk truck operations not
specifically permitted under the HMR. The proposed amendments will
eventually eliminate the need for current grantees to reapply for
renewal of special permits every four years and for PHMSA to process
those renewal applications. It will also allow other operators to
transport bulk explosives without a special permit, provided that the
operators conform to the requirements of this rule, including those
explicitly stated in SLP-23.
Alternatives Considered
Alternative 1: No Action
    This would not be the preferred alternative. Under this option,
PHMSA would continue existing requirements for Special Permits to
transport bulk explosives by taking no action. However, PHMSA believes
that there are considerable benefits (both environmental and economic)
to taking action provided that a high level of safety is maintained. If
no action is taken there will be no beneficial or adverse environmental
effects compared to the status quo. Finally, this alternative would not
impose any costs, but it would prevent the opportunity to realize any
efficiency benefits.
Alternative 2: PHMSA Defers to Voluntary Standards
    This would not be the preferred alternative. Under this option,
PHMSA will defer to voluntary standards developed through organizations
or trade associations. PHMSA will likely participate in standard-
setting to develop standards that meet safety criteria that are in the
interest of the United States. While compliance with voluntary
standards is thought to be high by industry participants, firms do not
have to comply with them, since they are voluntary. This creates some
concern since the non-adoption may mean that those firms may not comply
with minimum safety standards. A review of this alternative leads to a
possibility that important environmental safety measures would not be
implemented as completely as they would under proposed alternative (5).
For example, the provisions: (1) Any non-DOT specification cargo tanks,
portable tanks, sift-proof closed vehicles and closed bulk bins must be
qualified, inspected, and maintained essentially the same as a DOT-
specification bulk container (as set out in Appendix B of SLP-23); and
(2) inspectors conducting inspections of non-DOT non-specification
tanks must meet training qualifications outlined in Appendix B, would
not be implemented if this alternative (2: PHMSA Defers to
Voluntary Standards) was selected. While there may be certain
beneficial environmental effects with this alternative, there are
certainly drawbacks too. Furthermore, this alternative does not ensure
the level of safety that alternative (5) would because firms may not
comply with a voluntary standard.
Alternative 3: Incorporate Special Permits That Have a Good Safety
Record Into the HMR
    This would not be the preferred alternative. Under this option,
PHMSA would incorporate seven of the nine special permits into the HMR.
These seven special permits have very good safety records. By
incorporating these special permits, PHMSA would need to work through
the Federal rulemaking

process to modify the HMR in response to technological enhancements and
other matters relating to the transportation of the bulk explosives
covered under the seven special permits. It may be more advantageous to
incorporate standards developed by industry than for PHMSA to develop
its own standards and incorporate them into the HMR. There may be
beneficial environmental effects with this alternative, but not to the
extent of the proposed action proposed in the NPRM because this
alternative is not as comprehensive.
Alternative 4: Adopt Other National or International Standards