Hazardous Materials Transportation: Revisions of Special Permits Procedures, 43898-43906 [2010-18142]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 75, Number 143 (Tuesday, July 27, 2010)]
[Proposed Rules]
[Pages 43898-43906]
From the Federal Register Online via the Government Printing 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 https://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 https://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: 
Specialpermits@dot.gov; or on-line at: https://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: 
Specialpermits@dot.gov, or on-line at: https://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: 
Specialpermits@dot.gov; or on-line at: https://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