[Federal Register Volume 79, Number 135 (Tuesday, July 15, 2014)]
[Proposed Rules]
[Pages 41185-41211]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[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 (202) 366-8553, 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.

[[Page 41186]]

    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.

----------------------------------------------------------------------------------------------------------------
                                                                                     Recurring     Cost savings
                              Item                                One-time costs   annual costs      per year
----------------------------------------------------------------------------------------------------------------
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

[[Page 41187]]

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

[[Page 41188]]

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

[[Page 41189]]

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

[[Page 41190]]

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

[[Page 41191]]

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

[[Page 41192]]

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

[[Page 41193]]

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

[[Page 41194]]

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

[[Page 41195]]

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).

[[Page 41196]]

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

[[Page 41197]]

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.

[[Page 41198]]

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

[[Page 41199]]

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 (202) 366-8553.
    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

[[Page 41200]]

the information collection burden to the PHMSA Desk Officer, Office of 
Management and Budget, at fax number (202) 395-6974.

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

[[Page 41201]]

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

[[Page 41202]]

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
    This would not be the preferred alternative. 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. This alternative will not 
have beneficial environmental effects beyond the status quo.
Alternative 5: Incorporate SLP-23 into the HMR With Additional Features
    This option is the preferred alternative, because it would provide 
regulatory flexibility without imposing burdensome costs. 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 would 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 proposed requirements are more 
comprehensive and have stricter standards than the nine special 
permits, and 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, PHMSA would require 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. There are beneficial effects 
with the proposed action that are superior to those achieved by the 
other alternatives, and these environmental benefits (direct, indirect, 
and cumulative) are discussed below.
Analysis of Environmental Impacts
    Routes used to transport bulk explosives traverse a variety of 
environments--from highly populated urban sites to remote, unpopulated 
rural areas. PHMSA manages the transportation of specific hazardous 
materials, including bulk explosives, with special permits that must 
achieve a level of safety at least equal to the level of safety 
achieved when transported under the HMR.
    The physical environment potentially affected by the proposed rule 
includes the airspace, water resources (e.g., oceans, streams, lakes), 
cultural and historical resources (e.g., properties listed on the 
National Register of Historic Places), biological and ecological 
resources (e.g., coastal zones, wetlands, plant and animal species and 
their habitat, forests, grasslands, offshore marine ecosystems), and 
special ecological resources (e.g., threatened and endangered plant and 
animal species and their habitat, national and state parklands, 
biological reserves, Wild and Scenic Rivers) that exist directly 
adjacent to and within the vicinity of roads and routes used in the 
transportation of bulk explosives.
    The proposed rule incorporates SLP-23 into the HMR and eliminates 
nine special permits. SLP-23 is more comprehensive and has stricter 
standards than the nine special permits, and it may eliminate some 
duplicative functions covered by other industry standards.
    Direct Effects: The proposed rule will not increase and may 
decrease the frequency or severity of motor carrier incidents involving 
bulk explosives, as SLP-23 is more comprehensive and has stricter 
standards than the existing special permits. PHMSA assessment suggests 
that there are no adverse significant environmental impacts associated 
with the proposed rule.
    Indirect Effects: The proposed rule will not increase and may 
decrease the frequency or severity of motor carrier incidents involving 
bulk explosive, and thus will not have an adverse indirect effect on 
the environment. PHMSA assessment suggests that there are no adverse 
significant environmental impacts associated with the proposed rule.
    Cumulative Effects: The proposed rule will not increase and may 
decrease the frequency or severity of motor carrier incidents involving 
bulk explosives, as SLP-23 is more comprehensive and has stricter 
standards than the existing special permits. PHMSA assessment suggests 
that there are no adverse significant environmental impacts associated 
with the proposed rule.
Comments From Agencies and Public
    In considering the potential environmental impacts of the proposed 
action, PHMSA does not anticipate that permitting the new alternative 
would result in any significant impact on the human environment because 
the process through which special permits for bulk explosives are 
developed and certified has historically demonstrated an equivalent 
level of safety of the HMR.
Conclusion
    Given that this rulemaking proposes to amend the HMR to permit an 
alternative with equivalent and established safety records, these 
proposed changes in regulation have the potential to increase safety 
and environmental protections. However, PHMSA welcomes and will 
consider and address comments about foreseeable environmental impacts 
or risk that commenters believe PHMSA might have overlooked in this 
NPRM. As such, PHMSA solicits comments about potential environmental 
impacts associated with this rulemaking from other agencies, 
stakeholders, and citizens.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the

[[Page 41203]]

comments (or signing the comment, if submitted on behalf of an 
association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) which may be 
viewed at: http://www.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8505.pdf.

K. Executive Order 13609 and International Trade Analysis

    Under E.O. 13609, agencies must consider whether the impacts 
associated with significant variations between domestic and 
international regulatory approaches are unnecessary or may impair the 
ability of American business to export and compete internationally. In 
meeting shared challenges involving health, safety, labor, security, 
environmental, and other issues, international regulatory cooperation 
can identify approaches that are at least as protective as those that 
are or would be adopted in the absence of such cooperation. 
International regulatory cooperation can also reduce, eliminate, or 
prevent unnecessary differences in regulatory requirements.
    Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as 
amended by the Uruguay Round Agreements Act (Pub. L. 103-465), 
prohibits Federal agencies from establishing any standards or engaging 
in related activities that create unnecessary obstacles to the foreign 
commerce of the United States. For purposes of these requirements, 
Federal agencies may participate in the establishment of international 
standards, so long as the standards have a legitimate domestic 
objective, such as providing for safety, and do not operate to exclude 
imports that meet this objective. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards.
    PHMSA participates in the establishment of international standards 
in order to protect the safety of the American public, and we have 
assessed the effects of the proposed rule to ensure that it does not 
cause unnecessary obstacles to foreign trade. Accordingly, this 
rulemaking is consistent with E.O. 13609 and PHMSA's obligations under 
the Trade Agreement Act, as amended.

L. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act of 1995 (15 
U.S.C. 272 note) directs federal agencies to use voluntary consensus 
standards in their regulatory activities unless doing so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g. specification of 
materials, test methods, or performance requirements) that are 
developed or adopted by voluntary consensus standard bodies.
    This proposed rulemaking involves one technical standard: IME 
Safety Library Publication No. 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, October 2011 version. This consensus technical 
standard is proposed to be listed in 49 CFR 171.7.

List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements, Definitions and abbreviations.

49 CFR Part 172

    Education, Hazardous materials transportation, Hazardous waste, 
Incorporation by reference, Labeling, Markings, Packaging and 
containers, Reporting and recordkeeping requirements.

49 CFR Part 173

    Hazardous materials transportation, Incorporation by reference, 
Packaging and containers, Radioactive materials, Reporting and 
recordkeeping requirements, Uranium.

49 CFR Part 177

    Hazardous materials transportation, Loading and Unloading, 
Segregation and Separation.

    In consideration of the foregoing, PHMSA is proposing to amend 49 
CFR Chapter I as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
1. The authority citation for part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81 and 1.97; 
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134, 
section 31001.

0
2. In Sec.  171.7, paragraph (r)(2) is revised to read as follows:


Sec.  171.7  Reference material.

* * * * *
    (r) * * *
    (2) IME Standard 23, IME Safety Library Publication No. 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, October 2011, into 
Sec. Sec.  173.66; 177.835.
* * * * *

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING 
REQUIREMENTS, AND SECURITY PLANS

0
3. The authority citation for part 172 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128; 44701; 49 CFR 1.97.

0
4. In Sec.  172.101, the Hazardous Materials Table is amended by 
revising the following entries to read as follows:


Sec.  172.101  Purpose and use of hazardous materials table.

* * * * *
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* * * * *
0
5. In Sec.  172.102(c)(1), special provision 148 is added as follows:


Sec.  172.102  Special provisions.

* * * * *
    (c) * * *
    (1) * * *
    148 For domestic transportation, this entry directs to Sec.  173.66 
for: (1) the standards for transporting a single bulk hazardous 
material for blasting by cargo tank motor vehicles; and (2) the 
standards for cargo tank motor vehicles capable of transporting 
multiple hazardous materials for blasting in bulk and non-bulk 
packagings.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

0
6. The authority citation for part 173 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.97.

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7. In Subpart C, Sec.  173.66 is added to read as follows:


Sec.  173.66  Requirements for Bulk Explosives.

    When Sec.  172.101 of this subchapter specifies that Class 1 
(explosive) materials may be transported in accordance with this 
section (per special provision 148 in Sec.  172.102(c)(1)), only the 
bulk packagings specified for these materials in IME SLP-23 (IBR, see 
Sec.  171.7 of this subchapter) are 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. In addition, the 
requirements in paragraphs (a), (b), and (c) of this section apply to: 
a new multipurpose bulk truck constructed after December 31, 2014 
(i.e., a motor vehicle authorized to transport the Class 1 (explosive) 
materials, Division 5.1 (oxidizing) materials, Class 8 (corrosive) 
materials, and Combustible Liquid, n.o.s., NA1993, III, as specified in 
IME SLP-23 (see Sec.  177.835(d) of this subchapter)); and a modified 
existing multipurpose bulk truck (see Sec.  173.66(d)).
    (a) Fire Suppression Systems--(1) Requirements. 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 
Section 393.95(a) and the applicable NFPA codes and standards.
    (2) Qualification. 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.
    (3) Periodic inspection. 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.
    (4) Recordkeeping requirements. Following the verification and 
certification of the vehicle's Fire Suppression System by the DCE of 
the vehicle, the DCE must prepare a test report and provide the test 
report to the manufacturer of the vehicle. At a minimum, the test 
report must contain the information and be maintained as follows:
    (i) Name and address of the DCE and the DCE facility;
    (ii) Name and address of the vehicle manufacturer. For a foreign 
manufacturer, the U.S. agent or importer must be identified;
    (iii) A test report number, drawing(s) of the vehicle design, and 
description of the vehicle in sufficient detail to ensure that the test 
report is traceable (e.g. a unique product identifier) to a specific 
vehicle design;
    (iv) The tests conducted through engineering analysis or physical 
testing and the results;
    (v) A certification that the design was tested through engineering 
analysis or physical testing to verify the initial design or 
modification(s) to the current fire suppression system; and
    (vi) For at least ten (10) years after testing, a copy of each test 
report must be maintained by the DCE. For as long as the vehicle design 
is being manufactured, and for at least ten (10) years thereafter, a 
copy of each test report must be maintained by the manufacturer of the 
vehicle. The manufacturer must provide a copy of the test report to the 
owner of the vehicle. The owner of the vehicle must maintain a copy of 
the test report for as long as the vehicle is owned. Test reports must 
be made available to a representative of the Department upon request.
    (b) Emergency shut-off/battery disconnect. (1) The battery on the 
motor vehicle 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.
    (2) 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.
    (c) Federal Motor Vehicle Safety Standard (FMVSS). Multipurpose 
bulk trucks 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, in accordance with the 
certification requirements found in 49 CFR part 567. These 
certification records must be made available to DOT representatives 
upon request.
    (d) Modification. The term modification means any change to the 
original design and construction of a multipurpose bulk truck (MBT) 
that affects its structural integrity or lading retention capability, 
(e.g. rechassising, etc.). Excluded from this category are the 
following:
    (1) A change to the MBT equipment such as lights, truck or tractor 
power train components, steering and brake systems, and suspension 
parts, and changes to appurtenances, such as fender attachments, 
lighting brackets, ladder brackets; and
    (2) Replacement of components such as valves, vents, and fittings 
with a component of a similar design and of the same size.

PART 177--CARRIAGE BY PUBLIC HIGHWAY

0
8. The authority citation for part 177 continues to read as follows:

    Authority:  49 U.S.C. 5101-5127; 49 CFR 1.97.

0
9. In Sec.  177.835, paragraph (a) is revised and paragraph (d) is 
added to read as follows:


Sec.  177.835  Class 1 materials.

* * * * *
    (a) Engine stopped. 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

[[Page 41211]]

truck (see paragraph (d) of this section) may be used for the operation 
of the pumping equipment of the vehicle during loading or unloading.
* * * * *
    (d) Multipurpose bulk trucks. When Sec.  172.101 of this subchapter 
specifies that Class 1 (explosive) materials may be transported in 
accordance with Sec.  173.66 of this subchapter (per special provision 
148 in Sec.  172.102(c)(1)), these materials may 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. In 
addition, the segregation requirements in Sec.  177.848 do not apply.
* * * * *

    Issued in Washington, DC on July 8, 2014, under authority 
delegated in 49 CFR 1.97.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety, Pipeline and 
Hazardous Materials Safety Administration.
[FR Doc. 2014-16382 Filed 7-14-14; 8:45 am]
BILLING CODE 4910-60-P