[Federal Register Volume 75, Number 143 (Tuesday, July 27, 2010)]
[Proposed Rules]
[Pages 43898-43906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18142]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 105, 107, and 171
[Docket No. PHMSA-2009-0410 (HM-233B)]
RIN 2137-AE57
Hazardous Materials Transportation: Revisions of Special Permits
Procedures
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: PHMSA is proposing to revise its procedures for applying for a
special permit to require an applicant to provide sufficient
information about its operations to enable the agency to evaluate the
applicant's fitness and the safety impact of operations that would be
authorized in the special permit. In addition, PHMSA is providing an
on-line application option.
DATES: Submit comments by August 26, 2010.
ADDRESSES: You may submit comments identified by the docket number
(PHMSA-2009-0410) 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 or comments received, go to http://www.regulations.gov or
DOT's Docket Operations Office (see ADDRESSES).
Privacy Act: Anyone is able to search the electronic form
of any written communications and comments received into any of our
dockets by the name of the individual submitting the document (or
signing the document, 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).
FOR FURTHER INFORMATION CONTACT: Mr. Steven Andrews or Mr. T. Glenn
Foster, Office of Hazardous Materials Standards, PHMSA, at (202) 366-
8553 or Mr. Don Burger, Office of Hazardous Materials Special Permits
and Approvals, PHMSA, at (202) 366-4511.
SUPPLEMENTARY INFORMATION:
I. Background
The Federal hazardous material transportation law (Federal hazmat
law), 49 U.S.C. 5101 et seq., directs the Secretary of Transportation
to prescribe regulations for the safe transportation of hazardous
material in commerce. (49 U.S.C. 5103) Federal hazmat law authorizes
the Secretary to issue variances--termed special permits--from the
Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) only if a
special permit provides for a safety level at least equal to the safety
level required under Federal hazmat law/regulations or consistent with
the public interest and Federal hazmat law, if a required safety level
does not exist. Section 5117(a) authorizes the Secretary of
Transportation to issue a special permit from a regulation prescribed
in Sec. Sec. 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 Pipeline and Hazardous Materials Safety Administration
(PHMSA) is the administration within the Department of Transportation
(DOT) primarily responsible for implementing the Federal hazmat law and
issuing special permits.
The HMR generally are performance-oriented regulations that 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 a 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 the production and transportation stream. Thus,
special permits provide a mechanism for testing new technologies,
promoting increased transportation efficiency and productivity, and
ensuring global competitiveness. A special permit must achieve at least
an equivalent level of safety to that specified in the HMR, or be
consistent with the public interest and Federal hazmat law, if a
required safety level does not exist. Implementation of new
technologies and operational techniques can enhance safety because the
authorized operations or activities often provide a greater level of
safety than required under the regulations. And each applicant granted
a special permit undergoes a safety fitness evaluation further assuring
the safety of transportation under the special permit. 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.
The procedures governing the application, issuance, modification,
and termination of special permits are found
[[Page 43899]]
at Subpart B of 49 CFR part 107 (see Sec. Sec. 107.101-107.127). An
application must include: (1) A citation of the specific regulation or
regulations from which the applicant seeks relief; (2) the hazardous
materials planned for transportation under the special permit; (3) the
mode or modes of transportation that will be utilized; (4) a detailed
description of the operation for which the special permit is requested
(e.g., alternative ways to qualify packagings for hazardous materials
transportation; alternative packagings; alternative hazard
communication; alternative stowage or segregation plans; or other
alternative procedures or activities) and written description,
drawings, flow charts, plans, and supporting documentation; (5) the
time period for which the special permit is requested; (6) a statement
outlining the reasons for requesting the special permit; and (7) a
description of the packaging that will be used under the special
permit. Further, PHMSA must review an applicant's safety fitness (i.e.,
previous incidents, citations) to assure that the applicant will carry
out its responsibilities in a safe manner.
In addition, the applicant must demonstrate that a special permit
achieves a level of safety at least equal to that required by
regulation or, if the required safety level does not exist, that the
special permit is consistent with the public interest. To this end, at
a minimum, the application must include: (1) Information on shipping
and incident history and experience relating to the application; (2)
identification of increased risks to safety or property that may result
if the special permit is granted and a description of measures that
will be taken to mitigate that risk; and (3) analyses, data, or test
results demonstrating that the level of safety expected under the
special permit is equal to the level of safety achieved by the
regulation from which the applicant seeks relief.
PHMSA independently reviews and evaluates the information provided
in the special permit application to determine that the special permit
will achieve an equal level of safety as provided by the HMR or, if a
required level of safety does not exist, that the special permit is
consistent with the public interest. This review includes a technical
analysis of the alternative proposed in the application, an evaluation
of the past compliance history of the applicant (including incident
history, enforcement actions, and the like), and coordination, as
applicable, with the Federal Motor Carrier Safety Administration
(FMCSA), Federal Railroad Administration (FRA), Federal Aviation
Administration (FAA), and/or the U.S. Coast Guard to gather additional
information relevant to the application and ensure the agency's
concurrence with PHMSA's conclusions.
II. Proposals in This NPRM
In this NPRM, PHMSA is proposing to revise the special permits
application procedures by clarifying existing requirements and
requiring additional, more detailed information to enable the agency to
strengthen its oversight of the special permits program. The proposed
revisions to the application procedures will allow PHMSA to more
effectively assess the level of safety that will be achieved under the
special permit. In addition, the proposed revisions will enable PHMSA
to better evaluate the fitness of an applicant, including its ability
to safely conduct the operations that may be authorized under a special
permit. The additional information will also enhance PHMSA's ability to
monitor operations conducted under a special permit and to take
corrective actions if necessary to ensure safety. In addition, PHMSA is
proposing to remove the word ``exemption'' from Part 107 and from the
definition of a ``special permit'' in Sec. 107.1, Definitions, and
Sec. 171.8, Definitions and Abbreviation because the term has become
obsolete. Further, Sec. 107.1 was amended following the publication of
a final rule entitled ``Hazardous Materials: Incorporation of Special
Permits Into Regulations,'' published on May 14, 2010 [75 FR 27205]
under Docket No. PHMSA-2009-0289 (HM-233A). The May 14, 2010 final rule
revised the definition for ``special permit'' in 49 CFR part 107 to
permit the Associate Administrator of Hazardous Materials Safety to
designate signature authority at the Office Director level. The same
revision to the definition for ``special permit'' was made in Sec.
171.8. Both revisions are reflected in this NPRM.
Finally, to increase flexibility and reduce the paperwork burden on
applicants, in this NPRM, PHMSA is proposing to implement an on-line
application capability for special permits, and to authorize electronic
service for several administrative practices and procedures.
III. Section-by-Section Review
Following is a section-by-section review of the amendments proposed
in this NPRM.
Part 105
Section 105.35
Section 105.35 specifies the methods by which PHMSA may serve
documents during the course of its proceedings, such as registered
mail, certified mail, or publication in the Federal Register. In an
effort to provide an additional alternative to these methods, in this
NPRM, we are proposing to add a new paragraph (a)(4) to authorize
electronic service if consented to in writing by the party to be
served, and electronic service for all special permit and approval
actions.
Part 107
Section 107.105
Section 107.105 specifies the requirements for submitting an
application for a special permit or a modification of a special permit.
In this NPRM, for clarification, we propose to revise paragraph (a) to
require that all supporting documentation be written in English. We
propose to revise (a)(1) to require that a table of contents be
included in the application and to remove the requirement that
applications must be submitted in duplicate. In (a)(1)(iii), we also
propose to provide the option for applicants to submit applications on-
line through the PHMSA website.
In paragraph (a)(2), PHMSA is proposing to request additional
information about the applicant, including the applicant's physical
address(es) of all known locations where the special permit will be
used, a point of contact for information about the special permit, the
name of the company president or Chief Executive Officer (CEO), and a
Dun and Bradstreet's Data Universal Numbering System (D-U-N-S)
identifier.
In paragraph (a)(4), for a manufacturing special permit, PHMSA is
proposing to require the street address of each of the facilities of
the applicant where manufacturing under the special permit will occur,
and, if applicable, the symbol of the packaging manufacturer (``M''
number). PHMSA also is proposing to add a new paragraph (a)(5) to
require an applicant who must register in accordance with Subpart F or
G of Part 107 to provide its registration number or the name of the
company to which the registration number is assigned if different from
the applicant. Likewise, in the same paragraph, PHMSA is proposing to
require an applicant to provide a statement that the registration
requirements are not required when these requirements do not apply.
[[Page 43900]]
PHMSA is also proposing to revise, re-designate, and add several
new paragraphs in paragraphs (c) and (d) of Sec. 107.105 to ensure
that a special permit application includes sufficient information on
shipping and incident history and experience relating to the initial
application, modification or renewal of a special permit, and
identification of increased risks to safety or property that may result
if a special permit is granted or renewed.
In paragraph (c)(2), PHMSA is proposing to require a description of
all operational controls that would apply to the mode or modes of
transportation that will be utilized under the special permit. For
example, for a shipment of ammonia solutions, the operational controls
may include the driver of a transport vehicle and the consignee being
trained not to enter the transport vehicle until the ammonia vapors
have dissipated.
In paragraph (c)(3), PHMSA is proposing to require alternative
hazard communication, including labeling and marking requirements, be
included within the detailed description of the proposed special
permit. PHMSA is proposing to revise paragraph (c)(5) to require, for
transportation by air, a statement outlining the reason(s) the
hazardous material is being transported by air if other modes are
available. PHMSA is also proposing to revise paragraph (c)(7) to
require the quantity of each hazardous material be indicated in
addition to the identification and description of the hazardous
materials planned for transportation under the special permit.
In addition, PHMSA is proposing to re-designate paragraph (c)(10)
as new paragraph (c)(13), and to add new paragraphs (c)(10), (c)(11)
and (c)(12) to require the applicant to submit: (1) An estimate of the
number of operations expected to be conducted or the number of
shipments expected to be transported under the special permit; (2) an
estimate of the number of packagings expected to be manufactured under
the special permit; and (3) a statement as to whether the special
permit being sought is related to a compliance review, inspection
activity, or enforcement action, respectively.
Finally, we believe it is essential to understand and analyze the
risks of a special permit application, and the analysis should include
potential failure modes and consequences. For example, a special permit
application that includes Part 178 requirements for design and
manufacturing of DOT specification cylinders should include an analysis
that addresses failure of a cylinder due to excessive hoop stress,
fatigue, and corrosion. The hoop stress may result from inadequate
tensile strength, exposure of a cylinder to high temperature,
overfilling, and other factors. We believe that the applicant
requesting a special permit is the most suitable party to perform a
``failure mode and effect analysis (FMEA)'' FMEA or a risk assessment
that identifies the associated risks and ways to control the risk for a
requested special permit. Therefore, in paragraph (d)(3)(i), PHMSA is
proposing to add the phrase ``failure mode and effect analysis (FMEA)''
as an example of documentation that is acceptable to substantiate that
the proposed alternative will achieve a level of safety that is at
least equal to that required by the regulation from which the special
permit is being sought.
Section 107.107
Section 107.107 specifies the requirements for submitting an
application for party status to an application or an existing special
permit. In paragraph (a), PHMSA is proposing to editorially revise the
sentence ``Any person eligible to apply for a special permit may apply
to be made a party * * *'' by removing the word ``made.'' In paragraph
(b)(3), PHMSA is proposing to require the applicant to submit the same
information that would be required from an applicant for a special
permit, including the applicant's physical address(es) of all known
locations where the special permit will be used, a point of contact,
the name of the company president or Chief Executive Officer (CEO), and
a Dun and Bradstreet's Data Universal Numbering System (D-U-N-S)
identifier. We also propose to add a new (b)(6) to require a
certification that the applicant has not previously been granted party
status to the special permit. If the applicant has previously been
granted party status, the applicant must follow renewal procedures as
specified in Sec. 107.109.
Section 107.109
Section 107.109 specifies the requirements for submitting an
application for renewal of a special permit or party status to a
special permit. In paragraph (a)(3), PHMSA is proposing to require the
applicant to submit the same information that would be required from an
applicant for the special permit, including the applicant's physical
address(es) of all known new locations not previously identified in the
application where the special permit will be used and all locations not
previously identified where the special permit was used, a point of
contact, the name of the company president or Chief Executive Officer
(CEO), and a Dun and Bradstreet's Data Universal Numbering System (D-U-
N-S) identifier. In paragraph (a)(4), for clarification, PHMSA is
proposing to provide examples of supporting documentation that may
require updating when an application for renewal of the special permit
is submitted. In paragraph (a)(5), to more fully capture events that
may have occurred throughout the life-cycle of the special permit,
PHMSA is proposing to add the term ``operational'' experience to the
current requirement that a statement be included in the application
describing all relevant shipping and incident experience of which the
applicant is aware in connection with the special permit since its
issuance or most recent renewal.
PHMSA is also proposing to add new paragraphs (a)(7) and (a)(8). In
paragraph (a)(7), PHMSA is proposing to require the applicant to submit
additional information for a renewal that is requested after the
expiration date of the special permit. Specifically, PHMSA proposes to
require: (1) The reason the special permit authorization was allowed to
expire; (2) a certification statement that no shipments were
transported after the expiration date of the special permit, or a
statement describing any transportation under the terms of the special
permit after the expiration date, if applicable; and (3) a statement
describing the action(s) the applicant will take to ensure future
renewal is requested before the expiration date. In paragraph (a)(8),
PHMSA is proposing to require the applicant to provide a specific
justification why the special permit should be renewed if no operations
or shipments have been made since the issuance or renewal of the
special permit.
Sections 107.109; 107.113; 107.117; 107.121; 107.123; 107.125; and
171.8
In this NPRM, PHMSA is proposing to revise certain sections in Part
107--``Hazardous Materials Program Procedures'' to authorize the use of
``electronic service'' or ``electronic means'' to provide greater
flexibility in the procedures for the issuance, modification, and
termination of special permits. The affected sections are as follows:
[[Page 43901]]
Sec. 107.113 Application processing and evaluation.
Sec. 107.121 Modification, suspension or termination of special
permit or grant of party status.
Sec. 107.123 Reconsideration.
Sec. 107.125 Appeal.
Section 107.113 specifies the requirements for the application and
processing of: (1) An application for a special permit; (2)
modification of a special permit, (3) party to a special permit, or (4)
renewal of a special permit to determine if it is complete and conforms
to the requirements of the HMR. In paragraph (d), PHMSA is proposing to
require that during the processing and evaluation of an application,
the Associate Administrator may request additional information from the
applicant, including during an on-site review. To enable the agency to
better evaluate the applicant's fitness and the safety impact of
operations that would be authorized in the special permit, we are also
proposing to specify that a failure on the part of the applicant to
cooperate with an on-site review may result in the application being
deemed incomplete and subsequently being denied.
Section 107.117 specifies the requirements for submitting an
application for emergency processing. In paragraph (d)(5), PHMSA is
proposing to update the telephone number for the Chief, Hazardous
Materials Standards Division, Office of Operating and Environmental
Standards, U.S. Coast Guard, U.S. Department of Homeland Security,
Washington, DC for an application submitted on an emergency basis and
to be utilized by water transportation for the initial mode of
transportation.
PHMSA is also proposing to remove the word ``exemption(s)'' from
various sections in part 107 and from the definition of a ``special
permit'' in Sec. 171.8, Definitions and Abbreviation. These proposed
amendments are necessary because use of the term ``exemption(s)'' has
been replaced with ``special permit(s)'' following the publication of a
final rule entitled ``Hazardous Materials: Incorporation of Statutorily
Mandated Revisions to the Hazardous Materials Regulations,'' published
on December 9, 2005 [70 FR 73156] under Docket No. PHMSA-2005-22208
(HM-240). The December 9, 2005 final rule changed the term
``exemption'' to ``special permit'' and provided for a two-year period
when the special permit is first granted, and a four-year period for
renewals.
The affected sections are as follows:
Sec. 107.109
Sec. 107.113
Sec. 107.121
Sec. 107.123
Sec. 171.8
III. Rulemaking 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 Sec. Sec. 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 as proposed, the final
rule would amend the regulations to revise the special permit
application requirements and provide an on-line capability for
applications.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule is not considered a significant regulatory
action under section 3(f) of Executive Order 12866 and, therefore, was
not reviewed by the Office of Management and Budget (OMB). This
proposed rule is not considered a significant rule under the Regulatory
Policies and Procedures of the Department of Transportation (44 FR
11034). In this NPRM, PHMSA is proposing to revise the special permits
application procedures by requiring additional, more detailed
information to enable the agency to strengthen its oversight of the
special permits program. PHMSA recognizes there may be additional costs
related to the proposals to require additional information in the
special permits application procedures. However, we believe these costs
are minimized by the proposals to allow for electronic means for all
special permits and approvals actions, and the proposals to authorize
electronic means as an alternative to written means of communication.
Taken together, the provisions of this proposed rule will promote the
continued safe transportation of hazardous materials while reducing
paperwork burden on applicants and administrative costs for the agency.
C. Executive Order 13132
This proposed rule was analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). 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 government. 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.
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 (5 U.S.C. 601-611) requires each
agency to analyze regulations and assess their impact on small
businesses and other small entities to determine whether the rule is
expected to have a significant impact on a substantial number of small
entities. The NPRM proposes revisions to current special permit
application requirements that may increase the time that would be
required to complete such an application. Although many of the
applicants may be small businesses or other small entities, PHMSA
believes that the addition of an on-line application option will
significantly reduce the burden imposed by the application
requirements. Therefore, PHMSA certifies that the provisions of this
NPRM would not have a significant economic impact on a substantial
number of small entities.
[[Page 43902]]
F. 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, in the aggregate, to any of the following:
State, local, or Native American tribal governments, or the private
sector.
G. Paperwork Reduction Act
PHMSA has an approved information collection under OMB Control
Number 2137-0051, ``Rulemaking, Special Permits, and Preemption
Requirements.'' This NPRM may result in a slight increase in the annual
burden and costs under this information collection due to proposed
changes to require an applicant to provide additional information about
its operations to enable the agency to evaluate the applicant's fitness
and the safety impact of operations that would be authorized in the
special permit. Some of this increased burden will be minimized because
of proposed changes to allow for electronic means for all special
permits and approvals actions, and the proposals to authorize
electronic means as an alternative to written means of communication.
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 a
revised information collection request, including a new form, 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. PHMSA estimates that the additional information
collection and recordkeeping burden as proposed in this rule would be
as follows:
OMB Control No. 2137-0051:
Affected Number of Annual Respondents: 3,500.
Affected Number of Annual Responses: 3,500.
Net Increase in Annual Burden Hours: 865.
Net Increase in Annual Burden Costs: $34,600.
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 Deborah Boothe or T. Glenn Foster, Office of Hazardous
Materials Standards (PHH-11), 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 the information collection burden to the PHMSA
Desk Officer, Office of Management and Budget, at fax number 202-395-
6974.
H. 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 number contained in the heading
of this document may be used to cross-reference this action with the
Unified Agenda.
I. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4347), requires Federal agencies to consider the
consequences of major federal actions and prepare a detailed statement
on actions significantly affecting the quality of the human
environment. Given that this rulemaking proposes to require additional,
more detailed information from applicants and strengthen agency
oversight, this proposed change in regulation would increase safety and
environmental protections. There are no significant environmental
impacts associated with this proposed rule.
List of Subjects
49 CFR Part 105
Administrative practice and procedure, Hazardous materials
transportation.
49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation, Penalties, Reporting and recordkeeping requirements.
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
In consideration of the foregoing, PHMSA proposes to amend 49 CFR
Parts 105, 107, and 171 as follows:
PART 105--HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL
PROCEDURES
1. The authority citation for part 105 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
2. In Sec. 105.35, add paragraph (a)(4) to read as follows:
Sec. 105.35 Serving documents in PHMSA proceedings.
(a) * * *
* * * * *
(4) Electronic service. (i) Service by electronic means if
consented to in writing by the party to be served.
(ii) For all special permits and approvals actions, electronic
service is authorized.
* * * * *
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
3. The authority citation for part 107 continues to read as
follows:
Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 4
(28 U.S.C. 2461 note); Pub. L. 104-121 sections 212-213; Pub. L.
104-134 section 31001; 49 CFR 1.45, 1.53.
4. In Sec. 107.1, revise the definition of ``special permit'' to
read as follows:
Sec. 107.1 Definitions.
* * * * *
Special permit means a document issued by the Associate
Administrator, or other designated Department official, under the
authority of 49 U.S.C. 5117 permitting a person to perform a function
that is not otherwise permitted under subchapter A or C of this
chapter, or other regulations issued under 49 U.S.C. 5101 et seq.
(e.g., Federal Motor Carrier Safety routing requirements).
* * * * *
5. Revise Sec. 107.105 to read as follows:
Sec. 107.105 Application for special permit.
(a) General. Each application for a special permit or modification
of a special permit and all supporting documents must be written in
English and submitted for timely consideration at least 120 days before
the requested
[[Page 43903]]
effective date and conform to the following requirements:
(1) The application, including a table of contents must:
(i) Be submitted to the Associate Administrator for Hazardous
Materials Safety (Attention: Special Permits, PHH-31), Pipeline and
Hazardous Materials Safety Administration, U.S. Department of
Transportation, East Building, 1200 New Jersey Avenue, SE., Washington,
DC 20590-0001;
(ii) Be submitted with any attached supporting documentation by
facsimile (fax) to: (202) 366-3753 or (202) 366-3308; or
(iii) Be submitted by electronic mail (e-mail) to:
[email protected]; or on-line at: http://www.phmsa.dot.gov/hazmat/regs/sp-a.
(2) The application must state the name, mailing address, physical
address(es) of all known locations where the special permit will be
used, e-mail address (if available), and telephone number of the
applicant. If the applicant is not an individual, the application must
state the company name, mailing address, physical address(es) of all
known locations where the special permit will be used, e-mail address
(if available), and telephone number of an individual designated as the
point of contact for the applicant for all purposes related to the
application; the company Chief Executive Officer (CEO) or president;
and the Dun and Bradstreet's Data Universal Numbering System (D-U-N-S)
identifier.
(3) If the applicant is not a resident of the United States, in
addition to the information listed in paragraph (a)(2) of this section,
the application must identify and designate an agent for service in
accordance with Sec. 105.40 of this part.
(4) For a manufacturing special permit, in addition to the
information listed in paragraph (a)(2) of this section, the application
must state the name and street address of each of the facilities of the
applicant where manufacturing under the special permit will occur, and
the symbol of the packaging manufacturer (``M'' number), if applicable.
(5) For persons required to be registered in accordance with
subpart F or G of this part, in addition to the information listed in
paragraph (a)(2) of this section, the application must provide the
registration number or the name of the company to which the
registration number is assigned if different from the applicant. For
persons not required to be registered in accordance with Subpart F or G
of this part, in addition to the information listed in paragraph (a)(2)
of this section, the application must provide a statement indicating
that registration is not required.
(b) Confidential treatment. To request confidential treatment for
information contained in the application, the applicant must comply
with Sec. 105.30(a).
(c) Description of special permit proposal. The application must
include the following information that is relevant to the special
permit proposal:
(1) A citation of the specific regulation from which the applicant
seeks relief;
(2) The proposed mode or modes of transportation, including a
description of all operational controls required for the mode or modes
of transportation;
(3) A detailed description of the proposed special permit (e.g.,
alternative packaging, test, procedure, activity, or hazard
communication, including marking and labeling requirements) including,
as appropriate, written descriptions, drawings, flow charts, plans and
other supporting documents;
(4) A specification of the proposed duration or schedule of events
for which the special permit is sought;
(5) A statement outlining the applicant's basis for seeking relief
from compliance with the specified regulations and, if the special
permit is requested for a fixed period, a description of how compliance
will be achieved at the end of that period. For transportation by air,
a statement outlining the reason(s) the hazardous material is being
transported by air if other modes are available;
(6) If the applicant seeks emergency processing specified in Sec.
107.117, a statement of supporting facts and reasons;
(7) Identification and description, including the quantity, of the
hazardous materials planned for transportation under the special
permit;
(8) Description of each packaging, including specification or
special permit number, as applicable, to be used in conjunction with
the requested special permit;
(9) For alternative packagings, documentation of quality assurance
controls, package design, manufacture, performance test criteria, in-
service performance and service-life limitations;
(10) An estimate of the number of operations expected to be
conducted or number of shipments to be transported under the special
permit;
(11) An estimate of the number of packagings expected to be
manufactured under the special permit, if applicable;
(12) A statement as to whether the special permit being sought is
related to a compliance review, inspection activity, or enforcement
action;
(13) When a Class 1 material is forbidden for transportation by
aircraft except under a special permit (see Columns 9A and 9B in the
table in 49 CFR 172.101), an applicant for a special permit to
transport such Class 1 material on passenger-carrying or cargo-only
aircraft with a maximum certificated takeoff weight of less than 12,500
pounds must certify that no person within the categories listed in 18
U.S.C. 842(i) will participate in the transportation of the Class 1
material.
(d) Justification of special permit proposal. The application must
demonstrate that a special permit achieves a level of safety at least
equal to that required by regulation, or if a required safety level
does not exist, is consistent with the public interest. At a minimum,
the application must provide the following:
(1) Information describing all relevant shipping and incident
experience of which the applicant is aware that relates to the
application; and
(2) A statement identifying any increased risk to safety or
property that may result if the special permit is granted, and a
description of the measures to be taken to address that risk; and
(3) Either:
(i) Substantiation, with applicable analyses, data or test results
(e.g., failure mode and effect analysis), that the proposed alternative
will achieve a level of safety that is at least equal to that required
by the regulation from which the special permit is sought; or
(ii) If the regulations do not establish a level of safety, an
analysis that identifies each hazard, potential failure mode and the
probability of its occurrence, and how the risks associated with each
hazard and failure mode are controlled for the duration of an activity
or life-cycle of a packaging.
6. Revise Sec. 107.107 to read as follows:
Sec. 107.107 Application for party status.
(a) Any person eligible to apply for a special permit may apply to
be a party to an application or an existing special permit, other than
a manufacturing special permit.
(b) Each application filed under this section must conform to the
following requirements:--
(1) The application must:
(i) Be submitted to the Associate Administrator for Hazardous
Materials Safety (Attention: Special Permits, PHH-31), Pipeline and
Hazardous Materials Safety Administration, U.S. Department of
Transportation, East
[[Page 43904]]
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001;
(ii) Be submitted with any attached supporting documentation by
facsimile (fax) to: (202) 366-3753 or (202) 366-3308; or
(iii) Be submitted by electronic mail (e-mail) to:
[email protected], or on-line at: http://www.phmsa.dot.gov/hazmat/regs/sp-a.
(2) The application must identify by number the special permit
application or special permit to which the applicant seeks to become a
party.
(3) The application must state the name, mailing address, physical
address(es) of all known locations where the special permit will be
used, e-mail address (if available), and telephone number of the
applicant. If the applicant is not an individual, the application must
state the company name, mailing address, physical address(es) of all
known locations where the special permit will be used, e-mail address
(if available), and telephone number of an individual designated as the
point of contact for the applicant for all purposes related to the
application; the company Chief Executive Officer (CEO) or president;
and the Dun and Bradstreet's Data Universal Numbering System (D-U-N-S)
identifier.
(4) If the applicant is not a resident of the United States, the
application must identify and designate an agent for service in
accordance with Sec. 105.40 of part.
(5) For a Class 1 material that is forbidden for transportation by
aircraft except under a special permit (see Columns 9A and 9B in the
table in 49 CFR 172.101), an applicant for party status to a special
permit to transport such Class 1 material on passenger-carrying or
cargo-only aircraft with a maximum certificated takeoff weight of less
than 12,500 pounds must certify that no person within the categories
listed in 18 U.S.C. 842(i) will participate in the transportation of
the Class 1 material.
(6) The applicant must certify that the applicant has not
previously been granted party status to the special permit. If the
applicant has previously been granted party status, the applicant must
follow renewal procedures as specified in Sec. 107.109.
(c) The Associate Administrator may grant or deny an application
for party status in the manner specified in Sec. 107.113(e) and (f) of
this subpart.
(d) A party to a special permit is subject to all terms of that
special permit, including the expiration date. If a party to a special
permit wishes to renew party status, the special permit renewal
procedures set forth in Sec. 107.109 apply.
7. Revise Sec. 107.109 to read as follows:
Sec. 107.109 Application for renewal.
(a) Each application for renewal of a special permit or party
status to a special permit must conform to the following requirements:
(1) The application must:
(i) Be submitted to the Associate Administrator for Hazardous
Materials Safety (Attention: Special Permits, PHH-31), Pipeline and
Hazardous Materials Safety Administration, U.S. Department of
Transportation, East Building, 1200 New Jersey Avenue, SE., Washington,
DC 20590-0001;
(ii) Be submitted with any attached supporting documentation
submitted in an appropriate format by facsimile (fax) to: (202) 366-
3753 or (202) 366-3308; or
(iii) Be submitted by electronic mail (e-mail) to:
[email protected]; or on-line at: http://www.phmsa.dot.gov/hazmat/regs/sp-a.
(2) The application must identify by number the special permit for
which renewal is requested.
(3) The application must state the name, mailing address, physical
address(es) of all known new locations not previously identified in the
application where the special permit will be used and all locations not
previously identified where the special permit was used, e-mail address
(if available), and telephone number of the applicant. If the applicant
is not an individual, the application must state the name, mailing
address, physical address(es) of all known new locations not previously
identified in the application where the special permit will be used and
all locations not previously identified where the special permit was
used, e-mail address (if available), and telephone number of an
individual designated as the point of contact for the applicant for all
purposes related to the application; the company Chief Executive
Officer (CEO) or president; and the Dun and Bradstreet's Data Universal
Numbering System (D-U-N-S) identifier.
(4) The application must include either a certification by the
applicant that the original application, as it may have been updated by
any application for renewal, remains accurate (e.g. all section
references, shipping descriptions, etc.) and complete; or include an
amendment to the previously submitted application as is necessary to
update and assure the accuracy and completeness of the application,
with certification by the applicant that the application as amended is
accurate and complete.
(5) The application must include a statement describing all
relevant operational, shipping, and incident experience of which the
applicant is aware in connection with the special permit since its
issuance or most recent renewal. If the applicant is aware of no
incidents, the applicant must so certify. When known to the applicant,
the statement must indicate the approximate number of shipments made or
packages shipped, as applicable, the number of shipments or packages
involved in any loss of contents, including loss by venting other than
as authorized in subchapter C.
(6) When a Class 1 material is forbidden for transportation by
aircraft, except under a special permit (see Columns 9A and 9B in the
table in 49 CFR 172.101), an application to renew a special permit to
transport such Class 1 material on passenger-carrying or cargo-only
aircraft with a maximum certificated takeoff weight of less than 12,500
pounds must certify that no person within the categories listed in 18
U.S.C. 842(i) will participate in the transportation of the Class 1
material.
(7) If the renewal is requested after the expiration date of the
special permit, the following information is required:
(i) The reason the special permit authorization was allowed to
expire;
(ii) A certification statement that no shipments were transported
after the expiration date of the special permit, or a statement
describing any transportation under the terms of the special permit
after the expiration date, if applicable; and
(iii) A statement describing the action(s) the applicant will take
to ensure future renewal is requested before the expiration date.
(8) If no operations or shipments have been made since the issuance
or renewal of the special permit, the applicant must provide specific
justification as to why the special permit should be renewed.
(b) If at least 60 days before an existing special permit expires
the holder files an application for renewal that is complete and
conforms to the requirements of this section, the special permit will
not expire until final administrative action on the application for
renewal has been taken.
8. In Sec. 107.113, revise paragraphs (a), (d), (f)(5), (g), and
(h) to read as follows:
Sec. 107.113 Application processing and evaluation.
(a) The Associate Administrator reviews an application for special
permit, modification of special permit, party to special permit, or
renewal of a special permit to determine if it is
[[Page 43905]]
complete and conforms with the requirements of this subpart. This
determination will be made within 30 days of receipt of the application
for special permit, modification of special permit, or party to special
permit, and within 15 days of receipt of an application for renewal of
a special permit. If an application is determined to be incomplete, the
applicant is informed of the reasons.
* * * * *
(d) During the processing and evaluation of an application, the
Associate Administrator may conduct an on-site review or request
additional information from the applicant. A failure to cooperate with
an on-site review may result in the application being deemed incomplete
and subsequently being denied. If the applicant does not respond to a
written or electronic request for additional information within 30 days
of the date the request was received, the application may be deemed
incomplete and denied. However, if the applicant responds in writing or
by electronic means within the 30-day period requesting an additional
30 days within which it will gather the requested information, the
Associate Administrator may grant the 30-day extension.
* * * * *
(f) * * *
(5) The applicant is fit to conduct the activity authorized by the
special permit. This assessment may be based on information in the
application, prior compliance history of the applicant, and other
information available to the Associate Administrator.
* * * * *
(g) An applicant is notified in writing or by electronic means
whether the application is granted or denied. A denial contains a brief
statement of reasons.
(h) The initial special permit terminates according to its terms
or, if not otherwise specified, 24 months from the date of issuance. A
subsequent renewal of a special permit terminates according to its
terms or, if not otherwise specified, 48 months after the date of
issuance. A grant of party status to a special permit, unless otherwise
stated, terminates on the date that the special permit expires.
* * * * *
9. In Sec. 107.117, revise paragraph (d)(5) to read as follows:
Sec. 107.117 Emergency processing.
* * * * *
(d) * * *
(5) Water Transportation: Chief, Hazardous Materials Standards
Division, Office of Operating and Environmental Standards, U.S. Coast
Guard, U.S. Department of Homeland Security, Washington, DC 20593-0001;
(202) 372-1426 (day); 1-800-424-8802 (night).
* * * * *
10. Revise Sec. 107.121 to read as follows:
Sec. 107.121 Modification, suspension or termination of special
permit or grant of party status.
(a) The Associate Administrator may modify a special permit, or
grant of party status on finding that:
(1) Modification is necessary so that the special permit reflects
current statutes and regulations; or
(2) Modification is required by changed circumstances to meet the
standards of Sec. 107.113(f).
(b) The Associate Administrator may modify, suspend or terminate a
special permit or grant of party status, as appropriate, on finding
that:
(1) Because of a change in circumstances, the special permit, or
party status no longer is needed or no longer would be granted if
applied for;
(2) The application contained inaccurate or incomplete information,
and the special permit, or party status would not have been granted had
the application been accurate and complete;
(3) The application contained deliberately inaccurate or incomplete
information; or
(4) The holder or party knowingly has violated the terms of the
special permit or an applicable requirement of this chapter, in a
manner demonstrating the holder or party is not fit to conduct the
activity authorized by the special permit.
(c) Except as provided in paragraph (d) of this section, before a
special permit, or grant of party status is modified, suspended or
terminated, the Associate Administrator notifies the holder or party in
writing or by electronic means of the proposed action and the reasons
for it, and provides an opportunity to show cause why the proposed
action should not be taken.
(1) Within 30 days of receipt of notice of the proposed action, the
holder or party may file a response in writing or by electronic means
that shows cause why the proposed action should not be taken.
(2) After considering the holder's or party's response, or after 30
days have passed without response since receipt of the notice, the
Associate Administrator notifies the holder or party in writing or by
electronic means of the final decision with a brief statement of
reasons.
(d) The Associate Administrator, if necessary to avoid a risk of
significant harm to persons or property, may in the notification
declare the proposed action immediately effective.
11. Revise Sec. 107.123 to read as follows:
Sec. 107.123 Reconsideration.
(a) An applicant for special permit, a special permit holder, or an
applicant for party status to a special permit may request that the
Associate Administrator reconsider a decision under Sec. 107.113(g),
Sec. 107.117(e) or Sec. 107.121(c) of this part. The request must--
(1) Be in writing or by electronic means and filed within 20 days
of receipt of the decision;
(2) State in detail any alleged errors of fact and law;
(3) Enclose any additional information needed to support the
request to reconsider; and
(4) State in detail the modification of the final decision sought.
(b) The Associate Administrator grants or denies, in whole or in
part, the relief requested and informs the requesting person in writing
or by electronic means of the decision. If necessary to avoid a risk of
significant harm to persons or property, the Associate Administrator
may, in the notification, declare the action immediately effective.
12. In Sec. 107.125, revise paragraphs (a)(1) and (c) to read as
follows:
Sec. 107.125 Appeal.
(a) * * *
(1) Be in writing or by electronic means and filed within 30 days
of receipt of the Associate Administrator's decision on
reconsideration; (2) State in detail any alleged errors of fact and
law;
* * * * *
(c) The Administrator grants or denies, in whole or in part, the
relief requested and informs the appellant in writing or by electronic
means of the decision. The Administrator's decision is the final
administrative action.
* * * * *
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIOINS
13. The authority citation for part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53;
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134
section 31001.
14. Revise the definition for ``Special permit'' to read as
follows:
[[Page 43906]]
Sec. 171.8 Definitions and abbreviations.
* * * * *
Special permit means a document issued by the Associate
Administrator, or other designated Department official, under the
authority of 49 U.S.C. 5117 permitting a person to perform a function
that is not otherwise permitted under subchapter A or C of this
chapter, or other regulations issued under 49 U.S.C. 5101 et seq.
(e.g., Federal Motor Carrier Safety routing requirements).
* * * * *
Issued in Washington, DC, on July 19, 2010, under authority
delegated in 49 CFR part 106.
R. Ryan Posten,
Senior Director for Hazardous Materials Safety.
[FR Doc. 2010-18142 Filed 7-26-10; 8:45 am]
BILLING CODE 4910-60-P