[Federal Register Volume 76, Number 3 (Wednesday, January 5, 2011)]
[Rules and Regulations]
[Pages 454-464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-33316]
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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: Final rule.
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SUMMARY: PHMSA is revising 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: Effective date: The effective date of these amendments is March
7, 2011. Voluntary compliance date: Voluntary compliance with the
provisions of this final rule is authorized January 5, 2011.
FOR FURTHER INFORMATION CONTACT: Mr. Steven Andrews or Mr. T. Glenn
Foster, Standards and Rulemaking Division, PHMSA, at (202) 366-8553 or
Mr. Ryan Paquet, Approvals and Permits Division, 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) 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. 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. In addition, 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 at Subpart B of 49 CFR
Part 107 (see Sec. Sec. 107.101-107.127). As currently specified in
Sec. 107.105(c), an 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)
specification of the proposed mode or modes of transportation; (3) a
detailed description of the proposed special permit (e.g., alternative
packaging, test, procedure or activity) 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; (6) if the applicant seeks emergency processing
specified in Sec. 107.117, a statement of supporting facts and
reasons; (7) identification and description 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; and (10)
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), certification by 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 that no person within the categories listed in 18 U.S.C. 842(i)
will participate in the transportation of the Class 1 material.
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 whether 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
[[Page 455]]
evaluation of the past compliance history of the applicant (including
incident history, enforcement actions, etc.), and coordination, as
applicable, with the Federal Motor Carrier Safety Administration
(FMCSA), Federal Railroad Administration (FRA), Federal Aviation
Administration (FAA), and the U.S. Coast Guard to gather additional
information relevant to the application and ensure the agency's
concurrence with PHMSA's conclusions.
II. Notice of Proposed Rulemaking
On July 27, 2010, PHMSA published a notice of proposed rulemaking
(NPRM; 75 FR 43898) 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 also proposed to
provide an on-line application option.
III. Overview of Amendments
In this final rule, PHMSA is revising 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 revisions
to the application procedures will allow PHMSA to more effectively
assess the level of safety that will be achieved under a special
permit. The revisions will also 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 further 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 removing
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 is inaccurate. Further,
Sec. 107.1 is being revised 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 final rule.
Finally, to increase flexibility and reduce the paperwork burden on
applicants, in this final rule, PHMSA is implementing an on-line
application capability for special permits, and is authorizing
electronic service for several administrative practices and procedures.
IV. Discussion of Comments
In response to the July 27, 2010 Notice of Proposed Rulemaking,
PHMSA received comments from the following individuals and
organizations:
Air Products
American Coatings Association
American Trucking Associations
Association of American Railroads
Association of HAZMAT Shippers
The Chlorine Institute
Commercial Vehicle Safety Alliance
Council on Safe Transportation of Hazardous Articles
Dangerous Goods Advisory Council
DELPHI
Gas and Welding Distributors Association
Industrial Packing Alliance of North America
Institute of Makers of Explosives
Matheson
National Propane Gas Association
Norris Cylinders
Northern Air Cargo
PPG Industries
Radiopharmaceutical Shippers and Carriers Conference
Stericycle, Inc.
Veolia Environmental Services
Most commenters express support for the Department's efforts to
revise the procedures for applying for a special permit and allow an
option for on-line application. However, many commenters question the
justification for PHMSA's proposals to require additional data
requirements such as the DUNS number, name of the company CEO, and
known locations of where a special permit will be used. We address
these comments under the heading entitled ``Section-by-Section Review''
in this rule. In addition, PHMSA also received three requests to extend
the period to allow for the public to submit comments. Further, we
received comments pertaining to fitness determinations discussed at a
public meeting held at DOT headquarters on August 8, 2010. However,
these comments are beyond the scope of this rulemaking and are not
being addressed in this rulemaking.
V. Section-by-Section Review
Following is a section-by-section review of the amendments in this
final rule.
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 the
NPRM, PHMSA proposed adding 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. PHMSA received comments from the Institute for Makers of
Explosives (IME) and the American Truckers Associations (ATA)
supporting the incorporation of electronic filing for special permit
applications. PHMSA did not receive any comments opposing this
requirement. Therefore, we are adopting this requirement as proposed.
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 the NPRM, we proposed several revisions pertaining to the
application of modification of a special permit that would affect this
section. For instance, to provide additional clarification, we proposed
to revise paragraph (a) to require that all supporting documentation be
written in English. PHMSA received no adverse comments to this proposed
requirement, and is adopting this revision as proposed.
PHMSA proposed to revise paragraph (a)(1) of this section to
require a table of contents be included in the application and to
remove the requirement that applications must be submitted in
duplicate. PHMSA received comments from PPG Industries, Dangerous Goods
Advisory Council (DGAC), COSTHA, American Coatings Association, and
DELPHI opposing the requirement to include a table of contents with a
special permit application. One commenter suggests requiring a table of
contents only for applications greater than 10 pages, while other
commenters suggest replacing the table of contents with a checklist.
While PHMSA appreciates the suggested alternatives, we believe a table
of contents is the most effective tool for providing an efficient
review of special permit applications, especially during the fitness
review process, and is therefore adopting this revision as proposed.
In paragraph (a)(1)(iii), PHMSA proposed to provide the option for
[[Page 456]]
applicants to submit applications on-line through the PHMSA Web site.
PHMSA received comments from Veolia Environmental Services, IME, ATA,
and COSTHA in support of providing applicants the option of submitting
special permit applications on-line. PHMSA did not receive any comments
opposing this requirement. Therefore, this requirement is being adopted
as proposed.
In paragraph (a)(2) PHMSA proposed to request additional
information about the applicant, including the physical address(es) of
all known locations where the applicant will use the special permit, 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 Data Universal Numbering System (D-U-N-S) identifier. PHMSA
received comments from Veolia Environmental Services, PPG Industries,
DGAC, IME, ATA, Norris Cylinders, COSTHA, Northern Air Caro,
Association of Hazmat Shippers, American Coatings Association,
Radiopharmaceutical Shippers and Carriers Conference (RSCC), Stericycle
Inc., DELPHI, Association of American Railroads, Matheson, and Air
Products objecting to some or all of these requirements. Many of these
commenters oppose requiring applicants to list the physical addressees
of all known locations where the special permit would be used, stating
that it would be impossible for applicants to correctly identify all of
the locations where a special permit might be utilized. Other
commenters express concern that such a list of known locations could
number in the hundreds or thousands. We reiterate that our intention is
to conduct as thorough a fitness evaluation of a company as possible.
However, we acknowledge that all future locations may not be known at
the time of the application. Therefore, for clarification, we stress
that we are requiring applicants to report all known facilities that
would use the special permit at the time of application. In addition,
commenters generally did not believe that providing PHMSA with the name
of the company CEO and a DUNS number should be necessary when applying
for a special permit. We disagree. PHMSA believes that requiring the
name of the company CEO and the DUNS number is necessary to ensure the
proper identification and a thorough fitness evaluation of the
location(s) where the special permit would be used. In addition, COSTHA
recommends that PHMSA use the Federal taxpayer ID number in lieu of a
DUNS number. PHMSA notes that the Federal taxpayer ID is often a
person's social security number, which could present unintended
consequences such as identify theft for companies, especially small
businesses. Therefore, PHMSA is incorporating this requirement as
proposed.
For clarification, we editorially revised the language in paragraph
(a)(3) to specify that if the applicant is not a resident of the United
States, the applicant must identify and designate an agent for service
in accordance with Sec. 105.40.
In paragraph (a)(4), for a manufacturing special permit, PHMSA
proposed to require the street address of each of the facilities of the
applicant where manufacturing under the special permit would occur,
and, if applicable, the symbol of the packaging manufacturer (``M''
number). PHMSA did not receive any comments opposing this requirement.
Therefore, we are adopting this revision as proposed.
PHMSA proposed adding 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. PHMSA also proposed to require applicants to provide a
statement that the registration requirements are not required when
these requirements do not apply. PHMSA received comments from the
Association of HAZMAT shippers and RSCC objecting to this requirement.
The commenter states that requiring a registration number for a special
permit application could encourage companies already out of compliance
with the registration requirement to decide against applying for a
special permit. The RSCC states that whether a company is registered
should have no bearing on applying for a special permit. While PHMSA
acknowledges the arguments of the commenters, we believe that the
requirement to include a registration number or statement that the
applicant does not require registration will provide PHMSA with the
necessary information to determine if the applicant is fit to ship
hazardous materials under a special permit. In addition, the current
requirement in Sec. 107.503(b) states that no person may engage in the
manufacture, assembly, certification, inspection, or repair of a cargo
tank vehicle under the terms of a DOT special permit unless the person
is registered with PHMSA. PHMSA believes that the vast majority of the
hazmat community is diligent in complying with the hazmat registration
requirement and providing a registration number or statement that the
applicant does not require registration at the time of the special
permit application has a minimal impact. Therefore, PHMSA is adopting
this revision as proposed.
In the NPRM, PHMSA proposed to revise, re-designate, and add
several new paragraphs to paragraphs (c) and (d) of Sec. 107.105 to
ensure that a special permit application includes sufficient
information on shipping and incident history, experience, and increased
safety risk relating to the initial application, modification or
renewal of a special permit. Specifically, in paragraph (c)(2), PHMSA
proposed to require a description of all operational controls that
would apply to the mode or modes of transportation that would 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. PHMSA
received comments from IME and the American Coatings Association
objecting to this proposal. IME expresses concern that the requirement
for a description of operational controls for all modes of
transportation was too vague. The American Coatings Association states
that the proposed requirement would be unfairly burdensome because the
information requested could potentially include a significant
investment of time to complete. While PHMSA understands the concerns of
the commenters, current regulations require operational controls be
established when applying for a special permit. The purpose of this
requirement is to provide us with further information so that we can
determine whether the proposed special permit meets the safety
equivalency standard set out in paragraph (d). Therefore, we are
incorporating this requirement as proposed.
PHMSA proposed to revise paragraph (c)(3) to require that
alternative hazard communication, including labeling and marking
requirements, be included in the detailed description of the proposed
special permit. PHMSA received comments from the Association of HAZMAT
Shippers and the American Coatings Association objecting to these
requirements. Specifically, both commenters indicate that such
requirements are already covered in part 172 of the HMR. While PHMSA
agrees that these requirements can be found in other sections of the
HMR, we believe it is necessary to require this information with
respect to specific special permit applications to ensure
[[Page 457]]
that these shipments are being transported in a safe manner. Therefore,
PHMSA is incorporating this requirement as proposed.
PHMSA proposed to revise paragraph (c)(5) to require, for
transportation by air, a statement outlining the reason(s) the
hazardous material would be transported by air if other modes are
available. PHMSA received comments from PPG Industries, DGAC, IME,
COSTHA, Association of HAZMAT Shippers, RSCC, and DELPHI objecting with
these proposed requirements. Commenters reasoned that if PHMSA believes
a shipment is safe for transportation under one mode, it should be
considered safe for all modes. Other commenters expressed concern that
they would no longer be able to make shipments by air. We disagree. We
believe that the transportation of hazardous materials by air presents
unique circumstances not found in transportation by rail, highway, or
water, and note that the HMR contain several air-specific requirements.
In addition, we emphasize that this requirement as proposed requests a
justification from applicants for shipments under a special permit by
air, but does not prohibit such shipments. Therefore, in this final
rule, we are adopting this requirement as proposed.
PHMSA proposed 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. PHMSA received comments from
PPG Industries, DGAC, American Coatings Association, and Stericycle
Inc. objecting to this proposed requirement. Commenters note that any
such quantity would be an estimate, and potentially inaccurate. PHMSA
acknowledges that the specific quantity of each hazardous material
planned for transportation under a special permit may not be known
during the application process. However, we believe an estimate based
on the applicant's best available information will enable PHMSA to
better evaluate the applicant's ability to safely transport hazardous
materials under the conditions of the special permit. Therefore, in
this final rule, PHMSA is adopting this requirement as proposed with
the additional clarification that an estimate of the quantity of each
shipment of the hazardous material planned for transportation is
required.
In addition, PHMSA proposed to re-designate paragraph (c)(10) as
new paragraph (c)(13), and 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. PHMSA received comments from DGAC,
IME, ATA, COSTHA, Association of HAZMAT Shippers, RSCC, and Stericycle
Inc. objecting to the proposed requirement that applicants estimate the
number of shipments expected to be transported under a special permit.
Some commenters believe that PHMSA failed to justify its request for
the quantity of hazardous materials or operations expected to be
conducted under a special permit. Other commenters expressed concern
that estimating the quantity of hazardous materials to be shipped under
a special permit will be too difficult to provide a reasonable
estimate. We disagree. For clarification, we expect applicants to
provide an estimate of the number of shipments based on the best
available knowledge, and are adopting this requirement as proposed.
In paragraph (c)(11) PHMSA proposed to require an estimate of the
number of packagings expected to be manufactured under the special
permit. PHMSA received comments on this proposal from IME and COSTHA.
IME states that it did not object to quantifying the number of packages
manufactured under a special permit, but acknowledged that it would be
an estimate. COSTHA states that there would be very little value in
PHMSA knowing the number of packages manufactured under a special
permit, and a true estimate would be very difficult to determine. As
previously stated, PHMSA expects applicants to provide an estimate of
the number of shipments based on the best available knowledge at the
time the application is submitted. Therefore, PHMSA is adopting this
requirement as proposed.
In paragraph (c)(12) PHMSA proposed to require a statement as to
whether the special permit being sought is related to a compliance
review, inspection activity, or enforcement action. PHMSA received
comments from IME, COSTHA, and the American Coatings Association
objecting to this requirement. IME states that it is unclear how PHMSA
is going to use this information. COSTHA indicates a belief that false
allegations against a company could preclude it from obtaining a
special permit. PHMSA believes it is relevant whether the applicant is
applying for the special permit in response to a compliance review,
inspection activity or enforcement action, and that this information
will assist us in the determination of the fitness of an applicant and
will help us to ensure that compliance data pertaining to an applicant
is accurate. Therefore, we are adopting this requirement as proposed.
In paragraph (d)(3)(i), PHMSA proposed to add the phrase ``failure
mode and effect analysis (FMEA)'' as an example of documentation that
is acceptable to substantiate that the proposed alternative sought in
the special permit application will achieve a level of safety that is
at least equal to that required by the regulation from which the
applicant is requesting relief. PHMSA received comments from COSTHA,
Northern Air Cargo, Association of HAZMAT Shippers, American Coatings
Association, DGAC, ATA and Stericycle Inc. expressing concerns about
the requirement to conduct a FMEA. For clarification, we stress that we
are not requiring applicants to conduct a FMEA. Rather, our intention
is to require that applicants substantiate the required level of safety
by using a risk assessment, with applicable analyses, data or test
results. We provided a FMEA as an example of a tool that can be used in
order to demonstrate such an equivalent level of safety, but emphasize
that it is not to be construed as a requirement. In addition, as
discussed in the NPRM, 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 potential failure of a cylinder due to
excessive hoop stress, fatigue, and corrosion. We believe the applicant
requesting a special permit is the most suitable party to perform a
``failure mode and effect analysis (FMEA)'' or other risk assessment
that identifies the associated risks and ways to control the risk for a
requested special permit. Therefore, PHMSA is incorporating this
requirement as proposed.
Section 107.107
In Sec. 107.107, PHMSA proposed to revise the requirements for
submitting an application for party status to an application or an
existing special permit. In paragraph (a), PHMSA proposed to
editorially revise the sentence ``Any person eligible to apply
[[Page 458]]
for a special permit may apply to be made a party'' by removing the
word ``made.''
In paragraph (b)(3), PHMSA proposed to require applicants to submit
the same information that would be required from an applicant for a
special permit, including the physical address(es) of all known
locations where the special permit would be used, a point of contact,
the name of the company president or CEO, and DUNS identifier. For
clarification, we editorially revised the language in paragraph (b)(4)
to specify that if the applicant is not a resident of the United
States, the applicant must identify and designate an agent for service
in accordance with Sec. 105.40. PHMSA also proposed 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 would follow
renewal procedures as specified in Sec. 107.109. PHMSA received
comments from PPG Industries, American Coatings Association, and
Stericycle Inc. repeating the previous concerns from the comments to
the proposed requirements for Sec. 107.105 regarding the requirement
to provide the CEO name and DUNS number. Stericycle Inc. expresses
concern that revealing a list of all known locations where a special
permit will be used would require them to reveal proprietary
information. We note that the HMR already has procedures in Sec.
105.30(a) for applicants who wish to protect proprietary information.
Under this section, information is submitted to PHMSA with
``confidential'' written on each page along with an explanation on why
the information should remain confidential. PHMSA then notifies the
applicant on whether or not its information will be treated as
confidential. PHMSA believes that requiring this information is
essential to ensuring that an applicant is fit to conduct business
under the guidelines of a special permit and is adopting this
requirement as proposed.
Section 107.109
Section 107.109 of the HMR 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 proposed 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 CEO and a DUNS identifier. PHMSA received comments from DGAC, Norris
Cylinder, American Coatings Association, and Stericycle Inc. again
questioning the proposed requirement that applicants report all known
locations where a special permit would be used. Commenters note this
proposed revision would require some applicants to list hundreds, or
perhaps thousands, of locations where the special permit will be used.
We addressed similar comments pertaining to this issue in the
discussion found under Sec. 107.105. However, we reiterate the
importance for applicants to list to the best of their knowledge all
known locations using the best available information when applying for
a special permit. Therefore, PHMSA is incorporating this requirement as
proposed.
In paragraph (a)(4), for clarification, PHMSA provides examples of
supporting documentation that may require updating when an application
for renewal of the special permit is submitted. PHMSA did not receive
any comments opposing this requirement. Therefore, in this final rule,
we are adopting this requirement as proposed.
In paragraph (a)(5), PHMSA proposed 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. The American
Coatings Association objects to this proposal stating that the current
application process already captures information on incidents, and the
additional information requirement would create a burden. PHMSA
believes it is imperative for the applicant to provide information
about operational controls in order to better assess that such
operational controls are in place and are being adhered to as we make a
determination whether the applicant can provide an equivalent level of
safety. Therefore, in this final rule, we are incorporating this
revision as proposed.
In the NPRM, PHMSA proposed to add new paragraphs (a)(7) and (a)(8)
to this section. In paragraph (a)(7), PHMSA proposed to require the
applicant to submit additional information for a renewal that is
requested after the expiration date of the special permit.
Specifically, we proposed 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. DGAC objects to
the proposed requirement stating its belief that such information
violates the Paperwork Reduction Act (PRA). We disagree. PHMSA
carefully reviewed this proposed requirement and determined that such a
scenario would likely be an infrequent occurrence and, therefore, would
require a minimal amount of time to add the required statements when it
does occur. In addition, we adjusted the information collection burden
to account for such an occasion and included it in the calculations
when a revised information collection was submitted to the Office of
Management and Budget (OMB). Therefore, in this final rule, PHMSA is
adopting this requirement as proposed.
In paragraph (a)(8), PHMSA proposed to require applicants 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. DGAC and Northern Air cargo objected
to including this requirement, with DGAC claiming that the requirement
was an unnecessary information collection under the PRA. As previously
stated, PHMSA reviewed this proposed requirement for PRA implications
and determined that such a scenario would also be an infrequent
occurrence and would require a minimal amount of time on the part of
the applicant when it does occur. Accordingly, we adjusted the
information collection burden to account for such an occurrence when a
revised information collection was submitted to OMB. Therefore, in this
final rule, PHMSA is adopting this requirement as proposed.
Sections 107.109; 107.113; 107.117; 107.121; 107.123; 107.125; and
171.8
In the NPRM, PHMSA proposed 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:
Sec. 107.113 Application processing and evaluation.
[[Page 459]]
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, and
(4) renewal of a special permit. In the NPRM, PHMSA proposed 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 under the special permit, we are
also specifying 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. PHMSA received
comments from IME and the American Coatings Association expressing
concerns about this proposed requirement. IME thinks that the
requirement is unclear. The American Coatings Association notes that
this requirement is a new element in the application process that has
not been submitted for notice and comment under the Administrative
Procedure Act (APA). PHMSA disagrees that this process is a violation
of the APA because it solicited comment on the provision in the NPRM,
as required by the APA, and because it already retains the authority to
conduct inspections under Sec. 107 during the special permit
application process. This requirement is being included under this
section to increase applicant's awareness of the ability of PHMSA to
conduct inspections specified under Sec. 107. PHMSA did not receive
any additional comments opposing this requirement, and is adopting this
requirement as proposed.
Section 107.117 specifies the requirements for submitting an
application for emergency processing. In paragraph (d)(5), PHMSA is
updating 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 for water transportation as the initial mode of
transport submitted on an emergency basis. PHMSA did not receive any
comments opposing this requirement and is adopting this requirement as
proposed.
PHMSA also proposed 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 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.'' COSTHA objects to the removal of
the word ``exemptions'' from the regulations because the term is still
used in international regulation and could cause confusion. PHSMA
disagrees with this comment and believes that removing the word
``exemption'' from the HMR is needed to keep terminology consistent
within the HMR. Therefore PHMSA is incorporating this revision as
proposed.
The affected sections are as follows:
Sec. 107.109
Sec. 107.113
Sec. 107.121
Sec. 107.123
Sec. 171.8
VI. Rulemaking Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This final rule 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. The final rule amends 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 final 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 final rule
is not considered a significant rule under the Regulatory Policies and
Procedures of the Department of Transportation (44 FR 11034). In this
final rule, PHMSA is revising 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 final 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 final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This
final rule would preempt State, local and Indian Tribe requirements but
does not contain 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.
D. Executive Order 13175
This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final 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.
[[Page 460]]
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. This final rule 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
final rule would not have a significant economic impact on a
substantial number of small entities.
F. Unfunded Mandates Reform Act of 1995
This final 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 final rule 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. Much of this increased burden will be
minimized because of changes to allow for electronic means for all
special permits and approvals actions, and 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. PHMSA developed burden
estimates to reflect changes in this final rule and submitted a revised
information collection request to OMB for approval based on the
requirements in this final rule. PHMSA estimates that the additional
information collection and recordkeeping burden in this rule will 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.
Requests for a copy of this information collection should be
directed to Deborah Boothe or T. Glenn Foster, Standards and Rulemaking
Division (PHH-11), Pipeline and Hazardous Materials Safety
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001,
Telephone (202) 366-8553.
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 requires additional, more
detailed information from applicants and strengthen agency oversight,
this change in regulation will increase safety and environmental
protections. There are no significant environmental impacts associated
with this final 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.
0
In consideration of the foregoing, 49 CFR part 105, 49 CFR part 107,
and 49 CFR part 171 are amended as follows:
PART 105--HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL
PROCEDURES
0
1. The authority citation for part 105 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
0
2. In Sec. 105.35, paragraph (a)(4) is added 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
0
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.
0
4. In Sec. 107.1, the definition for ``special permit'' is revised 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 subchapters 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).
* * * * *
0
5. Section 107.105 is revised to read as follows:
Sec. 107.105 Application for special permit.
(a) General. Each application for a special permit or modification
of a
[[Page 461]]
special permit and all supporting documents must be written in English
and submitted for timely consideration at least 120 days before the
requested 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: General Approvals and 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 electronically by 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 would 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 would 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 name of the company Chief Executive Officer (CEO) or
president; and the Dun and Bradstreet 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 that is a
permanent resident of the United States 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;
(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 an estimated quantity
of each shipment of the hazardous materials planned for transportation
under the special permit or;
(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; and
(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), a certification from 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 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.
0
6. Section 107.107 is revised 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:--
[[Page 462]]
(1) The application must:
(i) Be submitted to the Associate Administrator for Hazardous
Materials Safety (Attention: General Approvals and 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 electronically by 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 would 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 would 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 name of the company Chief Executive Officer (CEO) or
president, and the Dun and Bradstreet 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 that is a permanent
resident of the United States 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), a certification from 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 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.
0
7. Section 107.109 is revised 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: General Approvals and 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 electronically by 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 would 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 would
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 name of the company Chief
Executive Officer (CEO) or president, and the Dun and Bradstreet 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 ensure 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, and 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
[[Page 463]]
administrative action on the application for renewal has been taken.
0
8. In Sec. 107.113, paragraphs (a), (d), (f)(5), (g), and (h) are
revised to read as follows:
Sec. 107.113 Application processing and evaluation.
(a) The Associate Administrator reviews an application for a
special permit, modification of a special permit, party to a special
permit, or renewal of a special permit to determine if it is complete
and conforms with the requirements of this subpart. This determination
will be made within 30 days of receipt of the application for a special
permit, modification of a special permit, or party to a 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 deficiency.
* * * * *
(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.
* * * * *
0
9. In Sec. 107.117, paragraph (d)(5) is revised 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;
202-372-1420 (day); 1-800-424-8802 (night).
* * * * *
0
10. Section 107.121 is revised 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.
0
11. Section 107.123 is revised 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.
0
12. In Sec. 107.125, paragraphs (a)(1) and (c) are revised 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.
[[Page 464]]
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
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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.
0
14. In Sec. 171.8, the definition for ``Special permit'' is revised to
read as follows:
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 December 29, 2010 under authority
delegated in 49 CFR part 106.
Cynthia L. Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2010-33316 Filed 1-4-11; 8:45 am]
BILLING CODE 4910-60-P