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Hazardous Materials Transportation: Revisions of Special Permits Procedures
Jul 27, 2010 (Transportation Department Documents and Publications/ContentWorks via COMTEX) --
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.
EFFECTIVE DATE: 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: 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 SUBSEC 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 at Subpart B of 49 CFR part 107 (See SUBSEC 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.
--This is a summary of a Federal Register article originally published on the page number listed below--
Notice of proposed rulemaking (NPRM).
CFR Part: "49 CFR Parts 105, 107, and 171"
RIN Number: "RIN 2137-AE57"
Citation: "75 FR 43898"
Document Number: "Docket No. PHMSA-2009-0410 (HM-233B)"
Federal Register Page Number: "43898"
"Proposed Rules"
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