Hazardous Materials Transportation: Revisions of Special Permits Procedures; Response to Appeals; Corrections, 44496-44501 [2011-18664]
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Federal Register / Vol. 76, No. 143 / Tuesday, July 26, 2011 / Rules and Regulations
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Commission’s rules (47 CFR 1.4(b)(1)).
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opposition must be filed August 22,
2011.
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Commission, 445 12th Street, SW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT:
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Bureau, 202–418–2403.
SUPPLEMENTARY INFORMATION: This is a
summary of Commission’s document,
Report No. 2931, released June 20, 2011.
The full text of this document is
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Subject: In the Matter of
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Marlene H. Dortch,
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[FR Doc. 2011–18090 Filed 7–25–11; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Part 107
[Docket Nos. PHMSA–2009–0410 (HM–
233B)]
RIN 2137–AE73
Hazardous Materials Transportation:
Revisions of Special Permits
Procedures; Response to Appeals;
Corrections
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Correcting Amendments.
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AGENCY:
On January 5, 2011, PHMSA
published a final rule under Docket
Number PHMSA–2009–0410 (HM–
233B) that amended the Hazardous
Materials Regulations to revise the
SUMMARY:
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application procedures for special
permits. Specifically, the revisions
required an applicant to provide
additional information about its
operation to enable the agency to better
evaluate the applicant’s ability to
demonstrate an equivalent level of
safety and the safety impact of
operations that would be authorized in
the special permit. In response to
appeals submitted by entities affected
by the January 5 final rule, this final
rule amends requirements and provides
additional clarification to the January 5
final rule.
DATES: Effective Date: The effective date
of these amendments is July 26, 2011.
FOR FURTHER INFORMATION CONTACT: Mr.
Steven Andrews or Mr. T. Glenn Foster,
Standards and Rulemaking Division,
(202) 366–8553, Pipeline and Hazardous
Materials Administration (PHMSA),
U.S. Department of Transportation, 1200
New Jersey Avenue, SE., East Building,
2nd Floor, PHH–12, Washington, DC
20590–0001 or Mr. Ryan Paquet,
Approvals and Permits Division, (202)
366–4511, PHMSA, U.S. Department of
Transportation, 1200 New Jersey
Avenue, SE., East Building, 2nd Floor,
PHH–30, Washington, DC 20590–0001.
SUPPLEMENTARY INFORMATION:
List of Topics
I. Supplementary Background
II. Appeals to the Final Rule
A. Council on Safe Transportation of
Hazardous Articles, Inc.
B. Institute of Makers of Explosives
C. Lawrence Bierlein
III. Corrections and Amendments
IV. Regulatory Analyses and Notices
A. Statutory/Legal Authority for
Rulemaking
B. Executive Order 12866, 13356 and DOT
Regulatory Policies and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive
Order 13272, and DOT Procedures and
Policies
F. Unfunded Mandates Reform Act of 1995
G. Paperwork Reduction Act
H. Regulation Identifier Number (RIN)
I. Privacy Act
I. Supplementary Background
On January 5, 2011, PHMSA issued a
final rule under Docket Number
PHMSA–2009–0410 (HM–233B) (76 FR
454) amending the Hazardous Materials
Regulations (HMR; 49 CFR parts 171–
180) by amending the Hazardous
Materials Regulations to revise the
application procedures for special
permits. Specifically, the revisions
required an applicant to provide
additional information about its
operation to enable the agency to better
evaluate the applicant’s ability to
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demonstrate an equivalent level of
safety and the safety impact of
operations that would be authorized in
the special permit. In addition, the
January 5 final rule made revisions to
the procedures for applying for a special
permit. Changes made to these
procedures include, but are not limited,
requiring applicants to provide: All
known locations where a special permit
is used; the name of the company Chief
Executive Officer (CEO) or president; a
Dun and Bradstreet Data Universal
Numbering System (DUNS) identifier;
an estimated quantity of the hazardous
material planned for transportation; an
estimate of the number of operations
expected to be conducted; a statement
outlining the reason(s) the hazardous
material is being transported by air if
other modes are available; and
substantiation 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.
II. Appeals to the Final Rule
The following organizations and one
individual submitted appeals to the
January 5 final rule, in accordance with
49 CFR part 107: The Council on Safe
Transportation of Hazardous Articles,
Inc. (COSTHA); The Institute for Makers
of Explosives (IME); and Lawrence
Bierlein on behalf of the Association of
Hazmat Shippers. The appellants based
their appeals on several aspects of the
January 5 final rule, most notably
objecting to the requirements that
applicants provide: A list of all known
locations where a special permit will be
used; a DUNS number; the name of the
CEO or President of the company; and
the quantity of hazardous materials to
be shipped.
The appeals and issues of the
appellants are discussed in detail below.
A. Council on Safe Transportation of
Hazardous Articles, Inc.
In its appeal, COSTHA states that it
recognizes the importance of requiring
applications for a special permit to
include relevant and usable information
in the special permit application. In
support of its appeal, COSTHA requests
that PHMSA re-evaluate several of the
changes made to the special permits and
procedures application process. These
changes include requirements to: List all
known locations where a special permit
will be used; provide estimates of the
number of operations expected to be
conducted under a special permit; list
the name of the CEO or president of the
company; and provide a DUNS
identifier.
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COSTHA also requests clarification
on why additional data is needed for the
application of a special permit.
Specifically, COSTHA notes that
PHMSA revised § 107.105(a)(2) to
require the name and physical
address(es) of all known locations
where the special permit would be used.
COSTHA indicates that many special
permits are utilized through a
company’s operational and distribution
operations, and that this requirement
may compel companies to report several
hundred locations where the special
permit may be used. In its appeal,
COSTHA expresses the opinion that by
requiring the reporting of all known
locations a special permit will be used,
PHMSA is suggesting that all locations
will be subject to a possible fitness
evaluation. COSTHA further states that
if PHMSA is requiring all known
locations for the purposes of
enforcement, PHMSA needs to clarify
whether updates must be made to the
list after the application for a special
permit has been submitted. For
clarification, PHMSA’s intent is for the
applicant to provide a list of the initial
locations a special permit is intended to
be used at the time of the application.
This list will help us track where
various special permits are being
utilized and assist the special permits
division in ensuring that a special
permit is being conducted in accordance
with its parameters. For additional
clarification, PHMSA is not requiring
applicants to resubmit an application
for those facilities using a special permit
after an application has been submitted.
Therefore, PHMSA is retaining the
requirement for reporting all known
locations where the special permit will
be used because we believe it is
necessary to adequately determine that
all facilities conducting business under
the special permit are able to
demonstrate an equivalent level of
safety as required by regulation. In
addition, PHMSA is only requiring
applicants for special permits to list
those facilities where a special permit
will be used that are known at the time
of an application and updated at the
time of renewal.
COSTHA also expresses concern that
PHMSA did not adequately address the
additional burden to industry when
adding the new requirements in the
January 5 final rule. We disagree.
PHMSA carefully examined the burden
that the new requirements would have
on special permit applicants and
determined that, although we are
requiring additional information, much
of the data is already readily available
to applicants. In addition, we believe
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that the additional time required to
gather the information is greatly offset
by the on-line application process
capability provided in the January 5
final rule.
In its appeal, COSTHA asks PHMSA
to reconsider the requirement for
applicants to provide the name of the
CEO or president of the company.
COSTHA notes that it is not uncommon
for CEOs and presidents to change
frequently due to the reorganization of
a company or other reasons, and asks
whether a special permit holder would
be required to amend its application to
reflect these changes. We agree. The
intent of this requirement is to provide
the identification of a senior official in
the company who has responsibility for
overseeing the overall hazardous
materials regulatory compliance of the
company, especially the operations
under the terms of the special permit.
Accordingly, we recognize that other
corporate officials may be more
appropriately identified. Therefore,
PHMSA is revising this requirement to
provide for the identification of a senior
corporate official with such oversight
duties.
COSTHA’s appeal asks PHMSA to
reconsider the requirement for
applicants to obtain and provide a
DUNS identifier. COSTHA states that
this number is typically used for credit
and business transactions. COSTHA
also adds that the adopted language
does not indicate whether the DUNS
identifier is optional. For clarification,
the DUNS number is a mandatory
requirement. PHMSA chose this
identifier as it does not impose a cost on
applicants to obtain it. The DUNS
identifier will then be used as the
identification number for a facility
when renewing a special permit or
applying for other new special permits.
For additional clarification, in the case
of companies who have multiple DUNS
identifier, PHMSA is requiring that
applicants provide only one DUNS
identifier that is most applicable to the
location for which the special permit is
being utilized.
Lastly, COSTHA asks PHMSA to
reconsider the requirements in
§ 107.105(c)(10) that requires an
estimate of the number of operations
expected to be conducted or the number
of shipments expected to be transported
under a special permit. COSTHA states
that it will be impossible for companies
to accurately prognosticate the number
of shipments offered. COSTHA also
indicates that it is not satisfied with
PHMSA’s explanation in the preamble
language in the January 5 final rule
regarding why it needs applicants to
provide an estimate of the number of
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shipments based on the best available
information. We disagree. Collecting
this additional information will help us
to better ensure an equivalent level of
safety is reached for each special permit
application. Applicants must make a
reasonable estimate of the amount of
shipments that will take place over the
duration of the special permit. PHMSA
expects applicants to provide an
estimate of the number of packages to be
shipped for the duration of the special
permit, based on the history of previous
shipments transported under the terms
of a special permit. In addition, if this
is the initial application for a special
permit, PHMSA believes that a
reasonable estimate of the amount of
shipments that will take place over the
duration of the special permit will be
sufficient when applying for a special
permit.
B. Institute for Makers of Explosives
In support of its appeal, IME requests
that PHMSA re-evaluate several of the
changes made to the special permits and
procedures application process. These
changes include the requirements to: list
all known locations where a special
permit will be used; provide a
description of operational controls; and
provide a statement outlining the
reason(s) the hazardous material is
being transported by air. IME also
questions whether PHMSA conducted
an adequate cost/benefit analysis in
support of this final rule.
In its appeal, IME questions why, in
light of the exceptional safety record of
the commercial explosive industry,
PHMSA is imposing additional
requirements without any stated
foundation in underlying safety
concerns, perceived risk, or incident
data. Although these requirements
apply to the commercial explosives
industry, they apply equally to all
entities applying for a special permit.
These additional requirements will
increase overall safety by providing us
with a more accurate description of how
an applicant has established a level of
safety at least equivalent to the
requirements of the HMR when
transporting its particular commodity.
IME also requests clarification of the
phrase ‘‘would be used’’ as it pertains to
the requirement in § 107.105(a)(2), that
‘‘applicants for a special permit list all
known locations where the special
permit would be used.’’ Specifically,
IME asks whether this language refers to
locations where vehicles are based, or to
all locations where such a vehicle
operates and/or delivers materials. For
clarification, PHMSA is not requesting a
list of facilities where hazardous
materials moving under a special permit
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are being delivered. Rather, we are
seeking a list of locations where the
special permit will initially be used at
the time of application. Under the
scenario of a truck operating under a
special permit, we are only seeking the
address of the location at which the
truck is based.
IME notes that in the January 5, 2011
final rule, we adopted new provision
§ 107.105(c)(2) to require a description
of all operational controls required for
the mode(s) of transportation. IME
asserts that this requirement is vague
and it is unclear what level of detail is
required of industry when reporting a
description of these operational
controls. For clarification, by requesting
that applicants provide a description of
operational controls, our intent is for
applicants to provide any relevant
schematics, diagrams, or description of
the means that would be utilized under
the conditions of a special permit, and
will vary, based on the individual
application. If an operational control is
not applicable to execute the conditions
of the special permit, such reasoning
should be stated in the application. For
example, an operational control would
be to limit transportation to private
motor carriers.
IME also states that, in response to
comments submitted to the Notice of
Proposed Rulemaking (NPRM), PHMSA
failed to illuminate the safety rationale
for the provision in § 107.105(c)(5) to
require applicants who propose to ship
via air to provide a statement outlining
the reason(s) the hazardous material is
being transported by air if other modes
are available. IME questions the safety
rationale for this requirement and
suggests that this requirement could
leave open the possibility that a special
permit application for air transportation
could be refused on non-safety related
rationales, including cost and
convenience. We disagree. PHMSA
stresses that we have no intention of
denying a special permit application
simply based on the shipment being
transported by air. PHMSA will
continue to review the applicants’
submission and approve those
applications, regardless of the particular
mode of transportation, that are
determined to provide an equivalent
level of safety.
IME also questions PHMSA’s analysis
for the additional cost and time that will
be incurred by applicants because of the
increased special permit application
requirements. IME adds that while it
supports a simplified electronic
application, the process of researching
and assembling the additional
information required will exceed
PHMSA’s estimate to complete the
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revised special permit application. We
disagree. PHMSA did conduct a review
of the information collection burden
with respect to this rulemaking, and
determined that while we expect some
increased burden from the collection of
additional information, the overall
application process will become less
burdensome, and therefore, less timeconsuming with the introduction of the
online application process.
C. Lawrence Bierlein, esq.
PHMSA also received an appeal to the
final rule from Lawrence W. Bierlein on
February 2, 2011. In support of his
appeal, Mr. Bierlein requests that
PHMSA re-evaluate several of the
changes made to the special permits and
procedures application process. These
changes include the requirements to:
List all known locations where a special
permit will be used; list the CEO or
president of the company; provide a
DUNS identifier; provide a hazardous
materials registration number; provide a
statement justifying shipments by air;
provide a quantity or number of
packages to be shipped; and provide a
failure mode and effect analysis to
justify a special permit proposal. In
addition, Mr. Bierlein also raises
questions pertaining to: Increased
regulations without a safety benefit;
compliance and inspection issues;
excessive paperwork; fitness
determinations; and the security of online applications.
Mr. Bierlein questions whether the
January 5 final rule has anything to do
with safety in transportation, and states
his belief that the goal of this final rule
is to ease the burden on compliance
inspectors and enforcement programs
without regard to cost. He further adds
that his clients do not believe any of the
additional requirements falls within the
ambit of the secretary’s authority to
regulate transportation under the
Hazardous Materials Transportation Act
(HMTA). We disagree. PHMSA is
confident that the additional
requirements in this final rule will help
us to better determine if an applicant is
meeting an equivalent of safety under a
special permit.
In his appeal, Mr. Bierlein adds that
the new requirements in this final rule
are outrageously excessive and will
overburden PHMSA with paperwork.
He adds that it will be impossible for
PHMSA or its modal administrations to
monitor substantially more locations
given its already limited field staff. In
addition, Mr. Bierlein states that
requiring additional information will
put a substantial burden on both
PHMSA and the regulated community.
We disagree. The additional information
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requested is vital to accurately assess an
equivalent level of safety and the
paperwork burden is greatly offset by
the on-line application capability.
Through the addition of an online
application system, PHMSA will be
dramatically reducing the amount of
time required by applicants to apply for
a special permit. In addition, the online
application system, through increased
automation, will dramatically reduce
the amount of time required by PHMSA
to review and process special permit
application. The overall effect of this
rulemaking will be a more efficient and
timely special permit application
process.
Mr. Bierlein also states that PHMSA is
putting too much emphasis on ‘‘fitness.’’
He contends that while seriously unfit
applicants should not hold a special
permit authorization, adding more
criteria to the fitness process is not
necessary to avoid such a situation.
While PHMSA acknowledges this
argument, collecting this additional
information will help us to better ensure
an equivalent level of safety is reached
for each special permit application.
In his appeal, Mr. Bierlein also notes
that in response to a public meeting
held in August, 2010 on fitness, Mr.
Bierlein filed a joint written statement
declaring that the criteria for which
field inspectors will determine safety
and fitness are both unspecified and
undefined. While PHMSA
acknowledges his comment, the fitness
criteria Mr. Bierlein describes is not
within the scope of this rulemaking.
In Mr. Bierlein’s appeal, he notes that
the new requirements in
§§ 107.105(a)(2), 107.107(b)(3), and
107.109(a)(3) ask for the physical
address(es) of all known locations
where the applicant will use the special
permit, and states that each downstream
distribution center, public warehouse,
and forwarder is considered a user of
the special permit. Mr. Bierlein
questions PHMSA’s need for such a
voluminous amount of information. We
disagree. The intent of this requirement
is to identify the initial location where
an applicant will use the special permit.
It is not intended that all downstream
entities that make subsequent shipments
be identified. For example, for a special
permit authorizing the use of a
packaging not otherwise authorized
under the HMR, the address of the
initial entity(ies) that prepares the
package under the special permit would
be identified. Persons who merely
receive and reship these packages are
not required to be identified in the
application or renewal.
Mr. Bierlein’s appeal asks us to
reconsider the requirement for
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applicants to provide the CEO or
president of the company. Mr. Bierlein
notes that in only the smallest
companies would the CEO be aware of
the hazardous materials transportation
functions executed by that company,
and communication should be between
PHMSA and the person with the most
knowledge about the special permit. We
agree, and as previously mentioned, are
revising this requirement to provide for
the identification of a senior corporate
official with such oversight duties.
Mr. Bierlein questions the
requirement to require the DUNS
identifier because it has no value. We
disagree. The DUNS identifier provides
applicants with a unique number that
will link all data for a particular
company. This will ensure that all data
on a company is identified with that
company and prevent companies from
being in the system with multiple
variations of that company’s spelling.
For example, company ABCD, Inc. may
be entered into these data systems in a
number of ways, (i.e., A,B.C.D., Inc.;
Alpha, Beta, Charlie, Delta, Inc.; ABCD
Company; etc.)
Mr. Bierlein also states that PHMSA
should not require applicants to report
their hazardous materials registration
number and notes that there are many
applicants for special permits who are
not required to have registration
numbers. Mr. Bierlein adds that the
greatest number of users comes from
government agencies such as the
Federal Aviation Administration (FAA),
the National Aeronautics and Space
Administration (NASA), and the
Department of Defense (DOD), and
requiring the registration numbers is
useless and discriminatory against
industry. We disagree. A large majority
of special permit applications come
from industry, not government. We also
note that we are requiring only those
facilities that already have a registration
number to report that registration
number as part of the application
process. This information is necessary
in order to ensure that applicants who
are required to register have actually
done so. For applicants not required to
be registered, we are requiring only a
simple statement indicating that
registration is not required.
Mr. Bierlein objects to the
requirement that a statement be
provided outlining the reason(s) the
hazardous material is being transported
by air if other modes are available. Mr.
Bierlein expresses a belief that the
implementation of this requirement is
intended to restrict or prohibit
hazardous materials air shipments being
transported under a special permit. Mr.
Bierlein also suggests that a more
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detailed, transparent, and substantive
safety rationale be provided in a new
rulemaking before air shipments are
banned under a special permit. We
disagree. A statement outlining the
reason(s) the hazardous material is
being transported is necessary to
determine that an equivalent level of
safety is being met for air transportation.
PHMSA will continue to review the
applicant’s submissions and approve
those applications based on a
determination that it meets an
equivalent level of safety. We stress that
we have no intention of denying special
permits simply based on the method of
transportation.
Mr. Bierlein objects to the
requirement for applicants to use a
failure mode and effect analysis
(FMEA), stating that it is excessive for
special permits pertaining to minor
variations from the hazardous materials
regulations. Mr. Bierlein recommends
we revise this requirement by limiting it
to a short list of high hazard materials,
or materials shipped in innovative
packages exceeding 3,000 liters water
capacity. We disagree. We maintain our
belief that this information, along with
the other required information, will
help establish whether an applicant has
met an equivalent level of safety for the
safe transportation of hazardous
materials under the guidelines of a
special permit. For clarification,
applicants are not required to use a
FMEA, they are only required to prove
with data or test results that they will
achieve an equivalent level of safety
equal to that required by regulation
when seeking a special permit.
Additionally, a FMEA was provided in
the final rule as an example of how to
meet this requirement.
Mr. Bierlein also states there is no
credible rationale for the requirement to
provide a quantity of material or
number of packages to be shipped, and
contends that PHMSA’s statement in the
final rule that this information will
enable us to better evaluate an
applicant’s ability to safely transport
hazardous materials is self-serving
without factual support. We disagree.
We maintain our belief that this
information, along with the other
required information, will help establish
whether an applicant has met an
equivalent level of safety for the safe
transportation of hazardous materials
under the guidelines of a special permit.
Lastly, Mr. Bierlein notes that
PHMSA’s on-line application process
found on the PHMSA website continues
to display the warning that it has been
penetrated by hackers. For clarification,
the statement on PHMSAs website
reads, ‘‘We have been alerted of a
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44499
potential phishing website not
associated with PHMSA collecting data
for Fireworks (EX) Number
Applications. It is highly advised that
you do not submit application data on
any other web site not sanctioned by
PHMSA.’’ This warning only advises
applicants to use the official link on the
PHMSA website to apply for special
permits and not third party links to
ensure applicants are submitting their
data correctly to PHMSA. PHMSA’s online application process has not been
hacked.
III. Corrections and Amendments
In this final rule, we are making
corrections to sections that were
amended by the January 5, 2011 final
rule by reinserting language that was
inadvertently deleted in the final rule
and clarifying that a table of contents is
only required for paper submissions.
None of the corrected sections are new
requirements. The corrections are as
follows:
Part 107
Section 107.105
This section outlines the procedures
for applying for a special permit. We are
revising this section to clarify that a
table of contents is only required for
paper submissions.
Section 107.107
This section outlines the procedures
for applying for party status to a special
permit. We are revising this section to
reinsert language that was inadvertently
removed in the January 5, 2011 final
rule.
Part 109
Section 109
This section outlines the procedures
for applying for a renewal of a special
permit. We are revising this section to
reinsert language that was inadvertently
removed in the January 5, 2011 final
rule.
IV. Regulatory 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
§§ 5103(b), 5104, 5110, or 5112 of the
Federal hazardous materials
transportation law to a person
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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.
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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).
Executive Orders 12866 and 13563
require agencies to regulate in the ‘‘most
cost-effective manner,’’ to make a
‘‘reasoned determination that the
benefits of the intended regulation
justify its costs,’’ and to develop
regulations that ‘‘impose the least
burden on society. As discussed in this
rulemaking, 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
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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.
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (Volume
65, Number 70; Pages 19477–78) or you
may visit https://dms.dot.gov.
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.
List of Subjects in 49 CFR Part 107
Administrative practice and
procedure, Hazardous materials
transportation.
In consideration of the foregoing, we
are amending 49 CFR part 107 as
follows:
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
This final rule imposes no new
information collection and
recordkeeping requirements.
H. Privacy Act
Anyone is able to search the
electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
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PART 107—HAZARDOUS MATERIALS
PROGRAM PROCEDURES
1. The authority citation for part 107
continues to read as follows:
■
Authority: 49 U.S.C. 5101–5128, 44701;
Public Law 101–410 section 4 (28 U.S.C.
2461 note); Public Law 104–121 sections
212–213; Public Law 104–134 section 31001;
49 CFR 1.45, 1.53.
2. In § 107.105, paragraphs (a)(1)(ii)
and (iii) are revised, and paragraph
(a)(1)(iv) is added, to read as follows:
■
§ 107.105
Application for special permit.
(a) * * *
(1) * * *
(ii) Be submitted with any attached
supporting documentation by facsimile
(fax) to: (202) 366–3753 or (202) 366–
3308;
(iii) Be submitted electronically by email to: Specialpermits@dot.gov; or
(iv) Be submitted using PHMSA’s
online system (table of contents
omitted) at: https://www.phmsa.dot.gov/
hazmat/regs/sp-a.
*
*
*
*
*
■ 3. In § 107.107, paragraph (b)(3) is
revised to read as follows:
§ 107.107
Application of party status.
*
*
*
*
*
(b) * * *
(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),
president, or ranking executive officer
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26JYR1
Federal Register / Vol. 76, No. 143 / Tuesday, July 26, 2011 / Rules and Regulations
and the Dun and Bradstreet Data
Universal Numbering System (D–U–N–
S) identifier. In addition, each applicant
must state why party status to the
special permit is needed and must
submit a certification of understanding
of the provisions of the special permit
to which party status is being requested.
*
*
*
*
*
DEPARTMENT OF COMMERCE
4. In § 107.109, paragraph (a)(3) is
revised to read as follows:
Atlantic Highly Migratory Species;
Inseason Action To Close the
Commercial Non-Sandbar Large
Coastal Shark Research Fishery
■
§ 107.109
Application for renewal.
(a) * * *
(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), president, or ranking executive
officer, and the Dun and Bradstreet Data
Universal Numbering System (D–U–N–
S) identifier. In addition, each applicant
for renewal of party status must state
why party status to the special permit is
needed and must submit a certification
of understanding of the provisions of
the special permit to which party status
is being requested.
*
*
*
*
*
Issued in Washington, DC on July 18, 2011
under authority delegated in 49 CFR part 1.
Cynthia Quarterman,
Administrator, Pipeline and Hazardous
Materials Safety Administration.
[FR Doc. 2011–18664 Filed 7–25–11; 8:45 am]
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BILLING CODE 4910–60–P
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National Oceanic and Atmospheric
Administration
50 CFR Part 635
[Docket No. 100622276–0569–02]
RIN 0648–XA580
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notification of fishery closure.
AGENCY:
NMFS is closing the
commercial shark research fishery for
non-sandbar large coastal sharks (LCS).
This action is necessary because
landings for the 2011 fishing season
have reached at least 80 percent of the
available quota.
DATES: The commercial shark research
fishery for non-sandbar LCS is closed
effective 11:30 p.m. local time July 26,
2011 until, and if, NMFS announces, via
a notice in the Federal Register, that
additional quota is available and the
season is reopened.
FOR FURTHER INFORMATION CONTACT:
Karyl Brewster-Geisz or Peter Cooper,
301–427–8503; fax 301–713–1917.
SUPPLEMENTARY INFORMATION: The
Atlantic shark fisheries are managed
under the 2006 Consolidated Atlantic
Highly Migratory Species (HMS) Fishery
Management Plan (FMP), its
amendments, and its implementing
regulations found at 50 CFR part 635
issued under authority of the
Magnuson-Stevens Fishery
Conservation and Management Act (16
U.S.C. 1801 et seq.).
Under § 635.5(b)(1), shark dealers are
required to report to NMFS all sharks
landed every two weeks. Dealer reports
for fish received between the 1st and
15th of any month must be received by
NMFS by the 25th of that month. Dealer
reports for fish received between the
16th and the end of any month must be
received by NMFS by the 10th of the
following month. Under § 635.28(b)(2),
when NMFS projects that fishing season
landings for a species group have
reached or are about to reach 80 percent
of the available quota, NMFS will file
for publication with the Office of the
Federal Register a notice of closure for
that shark species group that will be
effective no fewer than 5 days from the
date of filing. From the effective date
and time of the closure until NMFS
SUMMARY:
PO 00000
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Fmt 4700
Sfmt 4700
44501
announces, via a notice in the Federal
Register, that additional quota is
available and the season is reopened,
the fishery for that species group is
closed, even across fishing years.
On December 8, 2010 (75 FR 76302),
NMFS announced that the shark
research fishery for the 2011 fishing
year was open and the available nonsandbar LCS research fishery quota was
37.5 metric tons (mt) dressed weight
(dw) (82,673 lb dw). Dealer and observer
reports received through the July 14,
2011, indicate that 31.3 mt dw or 83
percent of the available shark research
fishery quota for non-sandbar LCS has
been landed. Dealer reports received to
date indicate that 5 percent of the quota
was landed from the opening of the
fishery on January 1, 2011, through
January 31, 2011; 21 percent of the
quota was landed in February; 15
percent of the quota was landed in
March; 10 percent of the quota was
landed in April; 19 percent of the quota
was landed in May; and 13 percent of
the quota was landed in June. The
fishery has reached 83 percent of the
quota, which exceeds the 80-percent
limit specified in the regulations.
Accordingly, NMFS is closing the
commercial non-sandbar LSC research
fishery as of 11:30 p.m. local time July
26, 2011. This closure does not affect
any other shark fishery.
During the closure, persons engaged
in a shark research fishery trip aboard
vessels issued a shark research permit
under 50 CFR 635.32(f) with a NMFSapproved observer onboard, may not
retain non-sandbar LCS. Vessels issued
a shark research permit that are engaged
in a commercial shark fishing trip
outside of the shark research fishery
may retain non-sandbar LCS caught in
the Atlantic region, as long as the
Atlantic region remains open for
commercial harvest of non-sandbar LCS
by Atlantic shark limited access permit
holders. A shark dealer issued a permit
pursuant to § 635.4 may not purchase or
receive non-sandbar LCS from a vessel
issued a shark research permit returning
from a shark research fishery trip with
a NMFS-approved observer on board.
Permitted shark dealers or processors
may possess non-sandbar LCS that were
harvested during a shark research
fishery trip, as long as the non-sandbar
LCS were off-loaded, and sold, traded,
or bartered, prior to the effective date of
the closure and were held in storage.
Classification
Pursuant to 5 U.S.C. 553(b)(B), the
Assistant Administrator for Fisheries,
NOAA (AA), finds that providing for
prior notice and public comment for
this action is impracticable and contrary
E:\FR\FM\26JYR1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 143 (Tuesday, July 26, 2011)]
[Rules and Regulations]
[Pages 44496-44501]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18664]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 107
[Docket Nos. PHMSA-2009-0410 (HM-233B)]
RIN 2137-AE73
Hazardous Materials Transportation: Revisions of Special Permits
Procedures; Response to Appeals; Corrections
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Correcting Amendments.
-----------------------------------------------------------------------
SUMMARY: On January 5, 2011, PHMSA published a final rule under Docket
Number PHMSA-2009-0410 (HM-233B) that amended the Hazardous Materials
Regulations to revise the application procedures for special permits.
Specifically, the revisions required an applicant to provide additional
information about its operation to enable the agency to better evaluate
the applicant's ability to demonstrate an equivalent level of safety
and the safety impact of operations that would be authorized in the
special permit. In response to appeals submitted by entities affected
by the January 5 final rule, this final rule amends requirements and
provides additional clarification to the January 5 final rule.
DATES: Effective Date: The effective date of these amendments is July
26, 2011.
FOR FURTHER INFORMATION CONTACT: Mr. Steven Andrews or Mr. T. Glenn
Foster, Standards and Rulemaking Division, (202) 366-8553, Pipeline and
Hazardous Materials Administration (PHMSA), U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., East Building, 2nd Floor,
PHH-12, Washington, DC 20590-0001 or Mr. Ryan Paquet, Approvals and
Permits Division, (202) 366-4511, PHMSA, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., East Building, 2nd Floor,
PHH-30, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
List of Topics
I. Supplementary Background
II. Appeals to the Final Rule
A. Council on Safe Transportation of Hazardous Articles, Inc.
B. Institute of Makers of Explosives
C. Lawrence Bierlein
III. Corrections and Amendments
IV. Regulatory Analyses and Notices
A. Statutory/Legal Authority for Rulemaking
B. Executive Order 12866, 13356 and DOT Regulatory Policies and
Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
F. Unfunded Mandates Reform Act of 1995
G. Paperwork Reduction Act
H. Regulation Identifier Number (RIN)
I. Privacy Act
I. Supplementary Background
On January 5, 2011, PHMSA issued a final rule under Docket Number
PHMSA-2009-0410 (HM-233B) (76 FR 454) amending the Hazardous Materials
Regulations (HMR; 49 CFR parts 171-180) by amending the Hazardous
Materials Regulations to revise the application procedures for special
permits. Specifically, the revisions required an applicant to provide
additional information about its operation to enable the agency to
better evaluate the applicant's ability to demonstrate an equivalent
level of safety and the safety impact of operations that would be
authorized in the special permit. In addition, the January 5 final rule
made revisions to the procedures for applying for a special permit.
Changes made to these procedures include, but are not limited,
requiring applicants to provide: All known locations where a special
permit is used; the name of the company Chief Executive Officer (CEO)
or president; a Dun and Bradstreet Data Universal Numbering System
(DUNS) identifier; an estimated quantity of the hazardous material
planned for transportation; an estimate of the number of operations
expected to be conducted; a statement outlining the reason(s) the
hazardous material is being transported by air if other modes are
available; and substantiation 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.
II. Appeals to the Final Rule
The following organizations and one individual submitted appeals to
the January 5 final rule, in accordance with 49 CFR part 107: The
Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA);
The Institute for Makers of Explosives (IME); and Lawrence Bierlein on
behalf of the Association of Hazmat Shippers. The appellants based
their appeals on several aspects of the January 5 final rule, most
notably objecting to the requirements that applicants provide: A list
of all known locations where a special permit will be used; a DUNS
number; the name of the CEO or President of the company; and the
quantity of hazardous materials to be shipped.
The appeals and issues of the appellants are discussed in detail
below.
A. Council on Safe Transportation of Hazardous Articles, Inc.
In its appeal, COSTHA states that it recognizes the importance of
requiring applications for a special permit to include relevant and
usable information in the special permit application. In support of its
appeal, COSTHA requests that PHMSA re-evaluate several of the changes
made to the special permits and procedures application process. These
changes include requirements to: List all known locations where a
special permit will be used; provide estimates of the number of
operations expected to be conducted under a special permit; list the
name of the CEO or president of the company; and provide a DUNS
identifier.
[[Page 44497]]
COSTHA also requests clarification on why additional data is needed
for the application of a special permit. Specifically, COSTHA notes
that PHMSA revised Sec. 107.105(a)(2) to require the name and physical
address(es) of all known locations where the special permit would be
used. COSTHA indicates that many special permits are utilized through a
company's operational and distribution operations, and that this
requirement may compel companies to report several hundred locations
where the special permit may be used. In its appeal, COSTHA expresses
the opinion that by requiring the reporting of all known locations a
special permit will be used, PHMSA is suggesting that all locations
will be subject to a possible fitness evaluation. COSTHA further states
that if PHMSA is requiring all known locations for the purposes of
enforcement, PHMSA needs to clarify whether updates must be made to the
list after the application for a special permit has been submitted. For
clarification, PHMSA's intent is for the applicant to provide a list of
the initial locations a special permit is intended to be used at the
time of the application. This list will help us track where various
special permits are being utilized and assist the special permits
division in ensuring that a special permit is being conducted in
accordance with its parameters. For additional clarification, PHMSA is
not requiring applicants to resubmit an application for those
facilities using a special permit after an application has been
submitted. Therefore, PHMSA is retaining the requirement for reporting
all known locations where the special permit will be used because we
believe it is necessary to adequately determine that all facilities
conducting business under the special permit are able to demonstrate an
equivalent level of safety as required by regulation. In addition,
PHMSA is only requiring applicants for special permits to list those
facilities where a special permit will be used that are known at the
time of an application and updated at the time of renewal.
COSTHA also expresses concern that PHMSA did not adequately address
the additional burden to industry when adding the new requirements in
the January 5 final rule. We disagree. PHMSA carefully examined the
burden that the new requirements would have on special permit
applicants and determined that, although we are requiring additional
information, much of the data is already readily available to
applicants. In addition, we believe that the additional time required
to gather the information is greatly offset by the on-line application
process capability provided in the January 5 final rule.
In its appeal, COSTHA asks PHMSA to reconsider the requirement for
applicants to provide the name of the CEO or president of the company.
COSTHA notes that it is not uncommon for CEOs and presidents to change
frequently due to the reorganization of a company or other reasons, and
asks whether a special permit holder would be required to amend its
application to reflect these changes. We agree. The intent of this
requirement is to provide the identification of a senior official in
the company who has responsibility for overseeing the overall hazardous
materials regulatory compliance of the company, especially the
operations under the terms of the special permit. Accordingly, we
recognize that other corporate officials may be more appropriately
identified. Therefore, PHMSA is revising this requirement to provide
for the identification of a senior corporate official with such
oversight duties.
COSTHA's appeal asks PHMSA to reconsider the requirement for
applicants to obtain and provide a DUNS identifier. COSTHA states that
this number is typically used for credit and business transactions.
COSTHA also adds that the adopted language does not indicate whether
the DUNS identifier is optional. For clarification, the DUNS number is
a mandatory requirement. PHMSA chose this identifier as it does not
impose a cost on applicants to obtain it. The DUNS identifier will then
be used as the identification number for a facility when renewing a
special permit or applying for other new special permits. For
additional clarification, in the case of companies who have multiple
DUNS identifier, PHMSA is requiring that applicants provide only one
DUNS identifier that is most applicable to the location for which the
special permit is being utilized.
Lastly, COSTHA asks PHMSA to reconsider the requirements in Sec.
107.105(c)(10) that requires an estimate of the number of operations
expected to be conducted or the number of shipments expected to be
transported under a special permit. COSTHA states that it will be
impossible for companies to accurately prognosticate the number of
shipments offered. COSTHA also indicates that it is not satisfied with
PHMSA's explanation in the preamble language in the January 5 final
rule regarding why it needs applicants to provide an estimate of the
number of shipments based on the best available information. We
disagree. Collecting this additional information will help us to better
ensure an equivalent level of safety is reached for each special permit
application. Applicants must make a reasonable estimate of the amount
of shipments that will take place over the duration of the special
permit. PHMSA expects applicants to provide an estimate of the number
of packages to be shipped for the duration of the special permit, based
on the history of previous shipments transported under the terms of a
special permit. In addition, if this is the initial application for a
special permit, PHMSA believes that a reasonable estimate of the amount
of shipments that will take place over the duration of the special
permit will be sufficient when applying for a special permit.
B. Institute for Makers of Explosives
In support of its appeal, IME requests that PHMSA re-evaluate
several of the changes made to the special permits and procedures
application process. These changes include the requirements to: list
all known locations where a special permit will be used; provide a
description of operational controls; and provide a statement outlining
the reason(s) the hazardous material is being transported by air. IME
also questions whether PHMSA conducted an adequate cost/benefit
analysis in support of this final rule.
In its appeal, IME questions why, in light of the exceptional
safety record of the commercial explosive industry, PHMSA is imposing
additional requirements without any stated foundation in underlying
safety concerns, perceived risk, or incident data. Although these
requirements apply to the commercial explosives industry, they apply
equally to all entities applying for a special permit. These additional
requirements will increase overall safety by providing us with a more
accurate description of how an applicant has established a level of
safety at least equivalent to the requirements of the HMR when
transporting its particular commodity.
IME also requests clarification of the phrase ``would be used'' as
it pertains to the requirement in Sec. 107.105(a)(2), that
``applicants for a special permit list all known locations where the
special permit would be used.'' Specifically, IME asks whether this
language refers to locations where vehicles are based, or to all
locations where such a vehicle operates and/or delivers materials. For
clarification, PHMSA is not requesting a list of facilities where
hazardous materials moving under a special permit
[[Page 44498]]
are being delivered. Rather, we are seeking a list of locations where
the special permit will initially be used at the time of application.
Under the scenario of a truck operating under a special permit, we are
only seeking the address of the location at which the truck is based.
IME notes that in the January 5, 2011 final rule, we adopted new
provision Sec. 107.105(c)(2) to require a description of all
operational controls required for the mode(s) of transportation. IME
asserts that this requirement is vague and it is unclear what level of
detail is required of industry when reporting a description of these
operational controls. For clarification, by requesting that applicants
provide a description of operational controls, our intent is for
applicants to provide any relevant schematics, diagrams, or description
of the means that would be utilized under the conditions of a special
permit, and will vary, based on the individual application. If an
operational control is not applicable to execute the conditions of the
special permit, such reasoning should be stated in the application. For
example, an operational control would be to limit transportation to
private motor carriers.
IME also states that, in response to comments submitted to the
Notice of Proposed Rulemaking (NPRM), PHMSA failed to illuminate the
safety rationale for the provision in Sec. 107.105(c)(5) to require
applicants who propose to ship via air to provide a statement outlining
the reason(s) the hazardous material is being transported by air if
other modes are available. IME questions the safety rationale for this
requirement and suggests that this requirement could leave open the
possibility that a special permit application for air transportation
could be refused on non-safety related rationales, including cost and
convenience. We disagree. PHMSA stresses that we have no intention of
denying a special permit application simply based on the shipment being
transported by air. PHMSA will continue to review the applicants'
submission and approve those applications, regardless of the particular
mode of transportation, that are determined to provide an equivalent
level of safety.
IME also questions PHMSA's analysis for the additional cost and
time that will be incurred by applicants because of the increased
special permit application requirements. IME adds that while it
supports a simplified electronic application, the process of
researching and assembling the additional information required will
exceed PHMSA's estimate to complete the revised special permit
application. We disagree. PHMSA did conduct a review of the information
collection burden with respect to this rulemaking, and determined that
while we expect some increased burden from the collection of additional
information, the overall application process will become less
burdensome, and therefore, less time-consuming with the introduction of
the online application process.
C. Lawrence Bierlein, esq.
PHMSA also received an appeal to the final rule from Lawrence W.
Bierlein on February 2, 2011. In support of his appeal, Mr. Bierlein
requests that PHMSA re-evaluate several of the changes made to the
special permits and procedures application process. These changes
include the requirements to: List all known locations where a special
permit will be used; list the CEO or president of the company; provide
a DUNS identifier; provide a hazardous materials registration number;
provide a statement justifying shipments by air; provide a quantity or
number of packages to be shipped; and provide a failure mode and effect
analysis to justify a special permit proposal. In addition, Mr.
Bierlein also raises questions pertaining to: Increased regulations
without a safety benefit; compliance and inspection issues; excessive
paperwork; fitness determinations; and the security of on-line
applications.
Mr. Bierlein questions whether the January 5 final rule has
anything to do with safety in transportation, and states his belief
that the goal of this final rule is to ease the burden on compliance
inspectors and enforcement programs without regard to cost. He further
adds that his clients do not believe any of the additional requirements
falls within the ambit of the secretary's authority to regulate
transportation under the Hazardous Materials Transportation Act (HMTA).
We disagree. PHMSA is confident that the additional requirements in
this final rule will help us to better determine if an applicant is
meeting an equivalent of safety under a special permit.
In his appeal, Mr. Bierlein adds that the new requirements in this
final rule are outrageously excessive and will overburden PHMSA with
paperwork. He adds that it will be impossible for PHMSA or its modal
administrations to monitor substantially more locations given its
already limited field staff. In addition, Mr. Bierlein states that
requiring additional information will put a substantial burden on both
PHMSA and the regulated community. We disagree. The additional
information requested is vital to accurately assess an equivalent level
of safety and the paperwork burden is greatly offset by the on-line
application capability. Through the addition of an online application
system, PHMSA will be dramatically reducing the amount of time required
by applicants to apply for a special permit. In addition, the online
application system, through increased automation, will dramatically
reduce the amount of time required by PHMSA to review and process
special permit application. The overall effect of this rulemaking will
be a more efficient and timely special permit application process.
Mr. Bierlein also states that PHMSA is putting too much emphasis on
``fitness.'' He contends that while seriously unfit applicants should
not hold a special permit authorization, adding more criteria to the
fitness process is not necessary to avoid such a situation. While PHMSA
acknowledges this argument, collecting this additional information will
help us to better ensure an equivalent level of safety is reached for
each special permit application.
In his appeal, Mr. Bierlein also notes that in response to a public
meeting held in August, 2010 on fitness, Mr. Bierlein filed a joint
written statement declaring that the criteria for which field
inspectors will determine safety and fitness are both unspecified and
undefined. While PHMSA acknowledges his comment, the fitness criteria
Mr. Bierlein describes is not within the scope of this rulemaking.
In Mr. Bierlein's appeal, he notes that the new requirements in
Sec. Sec. 107.105(a)(2), 107.107(b)(3), and 107.109(a)(3) ask for the
physical address(es) of all known locations where the applicant will
use the special permit, and states that each downstream distribution
center, public warehouse, and forwarder is considered a user of the
special permit. Mr. Bierlein questions PHMSA's need for such a
voluminous amount of information. We disagree. The intent of this
requirement is to identify the initial location where an applicant will
use the special permit. It is not intended that all downstream entities
that make subsequent shipments be identified. For example, for a
special permit authorizing the use of a packaging not otherwise
authorized under the HMR, the address of the initial entity(ies) that
prepares the package under the special permit would be identified.
Persons who merely receive and reship these packages are not required
to be identified in the application or renewal.
Mr. Bierlein's appeal asks us to reconsider the requirement for
[[Page 44499]]
applicants to provide the CEO or president of the company. Mr. Bierlein
notes that in only the smallest companies would the CEO be aware of the
hazardous materials transportation functions executed by that company,
and communication should be between PHMSA and the person with the most
knowledge about the special permit. We agree, and as previously
mentioned, are revising this requirement to provide for the
identification of a senior corporate official with such oversight
duties.
Mr. Bierlein questions the requirement to require the DUNS
identifier because it has no value. We disagree. The DUNS identifier
provides applicants with a unique number that will link all data for a
particular company. This will ensure that all data on a company is
identified with that company and prevent companies from being in the
system with multiple variations of that company's spelling. For
example, company ABCD, Inc. may be entered into these data systems in a
number of ways, (i.e., A,B.C.D., Inc.; Alpha, Beta, Charlie, Delta,
Inc.; ABCD Company; etc.)
Mr. Bierlein also states that PHMSA should not require applicants
to report their hazardous materials registration number and notes that
there are many applicants for special permits who are not required to
have registration numbers. Mr. Bierlein adds that the greatest number
of users comes from government agencies such as the Federal Aviation
Administration (FAA), the National Aeronautics and Space Administration
(NASA), and the Department of Defense (DOD), and requiring the
registration numbers is useless and discriminatory against industry. We
disagree. A large majority of special permit applications come from
industry, not government. We also note that we are requiring only those
facilities that already have a registration number to report that
registration number as part of the application process. This
information is necessary in order to ensure that applicants who are
required to register have actually done so. For applicants not required
to be registered, we are requiring only a simple statement indicating
that registration is not required.
Mr. Bierlein objects to the requirement that a statement be
provided outlining the reason(s) the hazardous material is being
transported by air if other modes are available. Mr. Bierlein expresses
a belief that the implementation of this requirement is intended to
restrict or prohibit hazardous materials air shipments being
transported under a special permit. Mr. Bierlein also suggests that a
more detailed, transparent, and substantive safety rationale be
provided in a new rulemaking before air shipments are banned under a
special permit. We disagree. A statement outlining the reason(s) the
hazardous material is being transported is necessary to determine that
an equivalent level of safety is being met for air transportation.
PHMSA will continue to review the applicant's submissions and approve
those applications based on a determination that it meets an equivalent
level of safety. We stress that we have no intention of denying special
permits simply based on the method of transportation.
Mr. Bierlein objects to the requirement for applicants to use a
failure mode and effect analysis (FMEA), stating that it is excessive
for special permits pertaining to minor variations from the hazardous
materials regulations. Mr. Bierlein recommends we revise this
requirement by limiting it to a short list of high hazard materials, or
materials shipped in innovative packages exceeding 3,000 liters water
capacity. We disagree. We maintain our belief that this information,
along with the other required information, will help establish whether
an applicant has met an equivalent level of safety for the safe
transportation of hazardous materials under the guidelines of a special
permit. For clarification, applicants are not required to use a FMEA,
they are only required to prove with data or test results that they
will achieve an equivalent level of safety equal to that required by
regulation when seeking a special permit. Additionally, a FMEA was
provided in the final rule as an example of how to meet this
requirement.
Mr. Bierlein also states there is no credible rationale for the
requirement to provide a quantity of material or number of packages to
be shipped, and contends that PHMSA's statement in the final rule that
this information will enable us to better evaluate an applicant's
ability to safely transport hazardous materials is self-serving without
factual support. We disagree. We maintain our belief that this
information, along with the other required information, will help
establish whether an applicant has met an equivalent level of safety
for the safe transportation of hazardous materials under the guidelines
of a special permit.
Lastly, Mr. Bierlein notes that PHMSA's on-line application process
found on the PHMSA website continues to display the warning that it has
been penetrated by hackers. For clarification, the statement on PHMSAs
website reads, ``We have been alerted of a potential phishing website
not associated with PHMSA collecting data for Fireworks (EX) Number
Applications. It is highly advised that you do not submit application
data on any other web site not sanctioned by PHMSA.'' This warning only
advises applicants to use the official link on the PHMSA website to
apply for special permits and not third party links to ensure
applicants are submitting their data correctly to PHMSA. PHMSA's on-
line application process has not been hacked.
III. Corrections and Amendments
In this final rule, we are making corrections to sections that were
amended by the January 5, 2011 final rule by reinserting language that
was inadvertently deleted in the final rule and clarifying that a table
of contents is only required for paper submissions. None of the
corrected sections are new requirements. The corrections are as
follows:
Part 107
Section 107.105
This section outlines the procedures for applying for a special
permit. We are revising this section to clarify that a table of
contents is only required for paper submissions.
Section 107.107
This section outlines the procedures for applying for party status
to a special permit. We are revising this section to reinsert language
that was inadvertently removed in the January 5, 2011 final rule.
Part 109
Section 109
This section outlines the procedures for applying for a renewal of
a special permit. We are revising this section to reinsert language
that was inadvertently removed in the January 5, 2011 final rule.
IV. Regulatory 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
[[Page 44500]]
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).
Executive Orders 12866 and 13563 require agencies to regulate in
the ``most cost-effective manner,'' to make a ``reasoned determination
that the benefits of the intended regulation justify its costs,'' and
to develop regulations that ``impose the least burden on society. As
discussed in this rulemaking, 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.
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
This final rule imposes no new information collection and
recordkeeping requirements.
H. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
https://dms.dot.gov.
List of Subjects in 49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation.
In consideration of the foregoing, we are amending 49 CFR part 107
as follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
0
1. The authority citation for part 107 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; Public Law 101-410
section 4 (28 U.S.C. 2461 note); Public Law 104-121 sections 212-
213; Public Law 104-134 section 31001; 49 CFR 1.45, 1.53.
0
2. In Sec. 107.105, paragraphs (a)(1)(ii) and (iii) are revised, and
paragraph (a)(1)(iv) is added, to read as follows:
Sec. 107.105 Application for special permit.
(a) * * *
(1) * * *
(ii) Be submitted with any attached supporting documentation by
facsimile (fax) to: (202) 366-3753 or (202) 366-3308;
(iii) Be submitted electronically by e-mail to:
Specialpermits@dot.gov; or
(iv) Be submitted using PHMSA's online system (table of contents
omitted) at: https://www.phmsa.dot.gov/hazmat/regs/sp-a.
* * * * *
0
3. In Sec. 107.107, paragraph (b)(3) is revised to read as follows:
Sec. 107.107 Application of party status.
* * * * *
(b) * * *
(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),
president, or ranking executive officer
[[Page 44501]]
and the Dun and Bradstreet Data Universal Numbering System (D-U-N-S)
identifier. In addition, each applicant must state why party status to
the special permit is needed and must submit a certification of
understanding of the provisions of the special permit to which party
status is being requested.
* * * * *
0
4. In Sec. 107.109, paragraph (a)(3) is revised to read as follows:
Sec. 107.109 Application for renewal.
(a) * * *
(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), president, or ranking executive officer, and
the Dun and Bradstreet Data Universal Numbering System (D-U-N-S)
identifier. In addition, each applicant for renewal of party status
must state why party status to the special permit is needed and must
submit a certification of understanding of the provisions of the
special permit to which party status is being requested.
* * * * *
Issued in Washington, DC on July 18, 2011 under authority
delegated in 49 CFR part 1.
Cynthia Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2011-18664 Filed 7-25-11; 8:45 am]
BILLING CODE 4910-60-P
