454 Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Rules and Regulations 

misapplies benefits in a dedicated 

account, we will reduce future benefits 

payable to that recipient (or to that 

recipient and his or her spouse) by an 

amount equal to the total amount of the 

misapplied funds. 

* * * * * 

[FR Doc. 2010–33272 Filed 1–4–11; 8:45 am] 

BILLING CODE 4191–02–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR Parts 105, 107, and 171 

[Docket No. PHMSA–2009–0410 (HM–233B)] 

RIN 2137–AE57 

Hazardous Materials Transportation: 

Revisions of Special Permits 

Procedures 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Final rule. 

SUMMARY: PHMSA is revising its 

procedures for applying for a special 

permit to require an applicant to 

provide sufficient information about its 

operations to enable the agency to 

evaluate the applicant’s fitness and the 

safety impact of operations that would 

be authorized in the special permit. In 

addition, PHMSA is providing an online application option. 

DATES: Effective date: The effective date 

of these amendments is March 7, 2011. 

Voluntary compliance date: Voluntary 

compliance with the provisions of this 

final rule is authorized January 5, 2011. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Steven Andrews or Mr. T. Glenn Foster, 

Standards and Rulemaking Division, 

PHMSA, at (202) 366–8553 or Mr. Ryan 

Paquet, Approvals and Permits Division, 

PHMSA, at (202) 366–4511. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Federal hazardous material 

transportation law (Federal hazmat law), 

49 U.S.C. 5101 et seq., directs the 

Secretary of Transportation to prescribe 

regulations for the safe transportation of 

hazardous material in commerce. (49 

U.S.C. 5103) Section 5117(a) authorizes 

the Secretary of Transportation to issue 

a special permit from a regulation 

prescribed in §§ 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 performanceoriented regulations that provide the 

regulated community with a certain 

amount of flexibility in meeting safety 

requirements. Even so, not every 

transportation situation can be 

anticipated and built into the 

regulations. Innovation is a strength of 

our economy and the hazardous 

materials community is particularly 

strong at developing new materials and 

technologies and innovative ways of 

moving materials. Special permits 

enable the hazardous materials industry 

to quickly, effectively, and safely 

integrate new products and technologies 

into the production and transportation 

stream. Thus, special permits provide a 

mechanism for testing new 

technologies, promoting increased 

transportation efficiency and 

productivity, and ensuring global 

competitiveness. Implementation of 

new technologies and operational 

techniques can enhance safety because 

the authorized operations or activities 

often provide a greater level of safety 

than required under the regulations. In 

addition, each applicant granted a 

special permit undergoes a safety fitness 

evaluation, further assuring the safety of 

transportation under the special permit. 

Special permits also reduce the volume 

and complexity of the HMR by 

addressing unique or infrequent 

transportation situations that would be 

difficult to accommodate in regulations 

intended for use by a wide range of 

shippers and carriers. 

The procedures governing the 

application, issuance, modification, and 

termination of special permits are found 

at Subpart B of 49 CFR Part 107 (see 

§§ 107.101–107.127). As currently 

specified in § 107.105(c), an application 

must include the following information 

that is relevant to the special permit 

proposal: (1) A citation of the specific 

regulation from which the applicant 

seeks relief; (2) specification of the 

proposed mode or modes of 

transportation; (3) a detailed description 

of the proposed special permit (e.g., 

alternative packaging, test, procedure or 

activity) including, as appropriate, 

written descriptions, drawings, flow 

charts, plans and other supporting 

documents; (4) a specification of the 

proposed duration or schedule of events 

for which the special permit is sought; 

(5) a statement outlining the applicant’s 

basis for seeking relief from compliance 

with the specified regulations and, if the 

special permit is requested for a fixed 

period, a description of how compliance 

will be achieved at the end of that 

period; (6) if the applicant seeks 

emergency processing specified in 

§ 107.117, a statement of supporting 

facts and reasons; (7) identification and 

description of the hazardous materials 

planned for transportation under the 

special permit; (8) description of each 

packaging, including specification or 

special permit number, as applicable, to 

be used in conjunction with the 

requested special permit; (9) for 

alternative packagings, documentation 

of quality assurance controls, package 

design, manufacture, performance test 

criteria, in-service performance and 

service-life limitations; and (10) when a 

Class 1 material is forbidden for 

transportation by aircraft except under a 

special permit (see Columns 9A and 9B 

in the table in 49 CFR 172.101), 

certification by an applicant for a 

special permit to transport such Class 1 

material on passenger-carrying or cargoonly aircraft with a maximum 

certificated takeoff weight of less than 

12,500 pounds that no person within 

the categories listed in 18 U.S.C. 842(i) 

will participate in the transportation of 

the Class 1 material. 

In addition, the applicant must 

demonstrate that a special permit 

achieves a level of safety at least equal 

to that required by regulation or, if the 

required safety level does not exist, that 

the special permit is consistent with the 

public interest. To this end, at a 

minimum, the application must include: 

(1) Information on shipping and 

incident history and experience relating 

to the application; (2) identification of 

increased risks to safety or property that 

may result if the special permit is 

granted and a description of measures 

that will be taken to mitigate that risk; 

and (3) analyses, data, or test results 

demonstrating that the level of safety 

expected under the special permit is 

equal to the level of safety achieved by 

the regulation from which the applicant 

seeks relief. 

PHMSA independently reviews and 

evaluates the information provided in 

the special permit application to 

determine whether the special permit 

will achieve an equal level of safety as 

provided by the HMR or, if a required 

level of safety does not exist, that the 

special permit is consistent with the 

public interest. This review includes a 

technical analysis of the alternative 

proposed in the application, an 

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Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Rules and Regulations 455 

evaluation of the past compliance 

history of the applicant (including 

incident history, enforcement actions, 

etc.), and coordination, as applicable, 

with the Federal Motor Carrier Safety 

Administration (FMCSA), Federal 

Railroad Administration (FRA), Federal 

Aviation Administration (FAA), and the 

U.S. Coast Guard to gather additional 

information relevant to the application 

and ensure the agency’s concurrence 

with PHMSA’s conclusions. 

II. Notice of Proposed Rulemaking 

On July 27, 2010, PHMSA published 

a notice of proposed rulemaking 

(NPRM; 75 FR 43898) proposing to 

revise its procedures for applying for a 

special permit to require an applicant to 

provide sufficient information about its 

operations to enable the agency to 

evaluate the applicant’s fitness and the 

safety impact of operations that would 

be authorized in the special permit. In 

addition, PHMSA also proposed to 

provide an on-line application option. 

III. Overview of Amendments 

In this final rule, PHMSA is revising 

the special permits application 

procedures by clarifying existing 

requirements and requiring additional, 

more detailed information to enable the 

agency to strengthen its oversight of the 

special permits program. The revisions 

to the application procedures will allow 

PHMSA to more effectively assess the 

level of safety that will be achieved 

under a special permit. The revisions 

will also enable PHMSA to better 

evaluate the fitness of an applicant, 

including its ability to safely conduct 

the operations that may be authorized 

under a special permit. The additional 

information will further enhance 

PHMSA’s ability to monitor operations 

conducted under a special permit and to 

take corrective actions if necessary to 

ensure safety. In addition, PHMSA is 

removing the word ‘‘exemption’’ from 

Part 107 and from the definition of a 

‘‘special permit’’ in § 107.1, Definitions, 

and § 171.8, Definitions and 

Abbreviation because the term is 

inaccurate. Further, § 107.1 is being 

revised following the publication of a 

final rule entitled ‘‘Hazardous Materials: 

Incorporation of Special Permits Into 

Regulations,’’ published on May 14, 

2010 (75 FR 27205) under Docket No. 

PHMSA–2009–0289 (HM–233A). The 

May 14, 2010 final rule revised the 

definition for ‘‘special permit’’ in 49 CFR 

part 107 to permit the Associate 

Administrator of Hazardous Materials 

Safety to designate signature authority 

at the Office Director level. The same 

revision to the definition for ‘‘special 

permit’’ was made in § 171.8. Both 

revisions are reflected in this final rule. 

Finally, to increase flexibility and 

reduce the paperwork burden on 

applicants, in this final rule, PHMSA is 

implementing an on-line application 

capability for special permits, and is 

authorizing electronic service for several 

administrative practices and 

procedures. 

IV. Discussion of Comments 

In response to the July 27, 2010 

Notice of Proposed Rulemaking, 

PHMSA received comments from the 

following individuals and organizations: 

Air Products 

American Coatings Association 

American Trucking Associations 

Association of American Railroads 

Association of HAZMAT Shippers 

The Chlorine Institute 

Commercial Vehicle Safety Alliance 

Council on Safe Transportation of Hazardous 

Articles 

Dangerous Goods Advisory Council 

DELPHI 

Gas and Welding Distributors Association 

Industrial Packing Alliance of North America 

Institute of Makers of Explosives 

Matheson 

National Propane Gas Association 

Norris Cylinders 

Northern Air Cargo 

PPG Industries 

Radiopharmaceutical Shippers and Carriers 

Conference 

Stericycle, Inc. 

Veolia Environmental Services 

Most commenters express support for 

the Department’s efforts to revise the 

procedures for applying for a special 

permit and allow an option for on-line 

application. However, many 

commenters question the justification 

for PHMSA’s proposals to require 

additional data requirements such as the 

DUNS number, name of the company 

CEO, and known locations of where a 

special permit will be used. We address 

these comments under the heading 

entitled ‘‘Section-by-Section Review’’ in 

this rule. In addition, PHMSA also 

received three requests to extend the 

period to allow for the public to submit 

comments. Further, we received 

comments pertaining to fitness 

determinations discussed at a public 

meeting held at DOT headquarters on 

August 8, 2010. However, these 

comments are beyond the scope of this 

rulemaking and are not being addressed 

in this rulemaking. 

V. Section-by-Section Review 

Following is a section-by-section 

review of the amendments in this final 

rule. 

Part 105 

Section 105.35 

Section 105.35 specifies the methods 

by which PHMSA may serve documents 

during the course of its proceedings, 

such as registered mail, certified mail, 

or publication in the Federal Register. 

In an effort to provide an additional 

alternative to these methods, in the 

NPRM, PHMSA proposed adding a new 

paragraph (a)(4) to authorize electronic 

service if consented to in writing by the 

party to be served, and electronic 

service for all special permit and 

approval actions. PHMSA received 

comments from the Institute for Makers 

of Explosives (IME) and the American 

Truckers Associations (ATA) supporting 

the incorporation of electronic filing for 

special permit applications. PHMSA did 

not receive any comments opposing this 

requirement. Therefore, we are adopting 

this requirement as proposed. 

Part 107 

Section 107.105 

Section 107.105 specifies the 

requirements for submitting an 

application for a special permit or a 

modification of a special permit. In the 

NPRM, we proposed several revisions 

pertaining to the application of 

modification of a special permit that 

would affect this section. For instance, 

to provide additional clarification, we 

proposed to revise paragraph (a) to 

require that all supporting 

documentation be written in English. 

PHMSA received no adverse comments 

to this proposed requirement, and is 

adopting this revision as proposed. 

PHMSA proposed to revise paragraph 

(a)(1) of this section to require a table of 

contents be included in the application 

and to remove the requirement that 

applications must be submitted in 

duplicate. PHMSA received comments 

from PPG Industries, Dangerous Goods 

Advisory Council (DGAC), COSTHA, 

American Coatings Association, and 

DELPHI opposing the requirement to 

include a table of contents with a 

special permit application. One 

commenter suggests requiring a table of 

contents only for applications greater 

than 10 pages, while other commenters 

suggest replacing the table of contents 

with a checklist. While PHMSA 

appreciates the suggested alternatives, 

we believe a table of contents is the 

most effective tool for providing an 

efficient review of special permit 

applications, especially during the 

fitness review process, and is therefore 

adopting this revision as proposed. 

In paragraph (a)(1)(iii), PHMSA 

proposed to provide the option for 

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456 Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Rules and Regulations 

applicants to submit applications online through the PHMSA Web site. 

PHMSA received comments from Veolia 

Environmental Services, IME, ATA, and 

COSTHA in support of providing 

applicants the option of submitting 

special permit applications on-line. 

PHMSA did not receive any comments 

opposing this requirement. Therefore, 

this requirement is being adopted as 

proposed. 

In paragraph (a)(2) PHMSA proposed 

to request additional information about 

the applicant, including the physical 

address(es) of all known locations 

where the applicant will use the special 

permit, a point of contact for 

information about the special permit, 

the name of the company president or 

Chief Executive Officer (CEO), and a 

Dun and Bradstreet Data Universal 

Numbering System (D–U–N–S) 

identifier. PHMSA received comments 

from Veolia Environmental Services, 

PPG Industries, DGAC, IME, ATA, 

Norris Cylinders, COSTHA, Northern 

Air Caro, Association of Hazmat 

Shippers, American Coatings 

Association, Radiopharmaceutical 

Shippers and Carriers Conference 

(RSCC), Stericycle Inc., DELPHI, 

Association of American Railroads, 

Matheson, and Air Products objecting to 

some or all of these requirements. Many 

of these commenters oppose requiring 

applicants to list the physical 

addressees of all known locations where 

the special permit would be used, 

stating that it would be impossible for 

applicants to correctly identify all of the 

locations where a special permit might 

be utilized. Other commenters express 

concern that such a list of known 

locations could number in the hundreds 

or thousands. We reiterate that our 

intention is to conduct as thorough a 

fitness evaluation of a company as 

possible. However, we acknowledge that 

all future locations may not be known 

at the time of the application. Therefore, 

for clarification, we stress that we are 

requiring applicants to report all known 

facilities that would use the special 

permit at the time of application. In 

addition, commenters generally did not 

believe that providing PHMSA with the 

name of the company CEO and a DUNS 

number should be necessary when 

applying for a special permit. We 

disagree. PHMSA believes that requiring 

the name of the company CEO and the 

DUNS number is necessary to ensure 

the proper identification and a thorough 

fitness evaluation of the location(s) 

where the special permit would be used. 

In addition, COSTHA recommends that 

PHMSA use the Federal taxpayer ID 

number in lieu of a DUNS number. 

PHMSA notes that the Federal taxpayer 

ID is often a person’s social security 

number, which could present 

unintended consequences such as 

identify theft for companies, especially 

small businesses. Therefore, PHMSA is 

incorporating this requirement as 

proposed. 

For clarification, we editorially 

revised the language in paragraph (a)(3) 

to specify that if the applicant is not a 

resident of the United States, the 

applicant must identify and designate 

an agent for service in accordance with 

§ 105.40. 

In paragraph (a)(4), for a 

manufacturing special permit, PHMSA 

proposed to require the street address of 

each of the facilities of the applicant 

where manufacturing under the special 

permit would occur, and, if applicable, 

the symbol of the packaging 

manufacturer (‘‘M’’ number). PHMSA 

did not receive any comments opposing 

this requirement. Therefore, we are 

adopting this revision as proposed. 

PHMSA proposed adding a new 

paragraph (a)(5) to require an applicant 

who must register in accordance with 

Subpart F or G of Part 107 to provide its 

registration number or the name of the 

company to which the registration 

number is assigned if different from the 

applicant. PHMSA also proposed to 

require applicants to provide a 

statement that the registration 

requirements are not required when 

these requirements do not apply. 

PHMSA received comments from the 

Association of HAZMAT shippers and 

RSCC objecting to this requirement. The 

commenter states that requiring a 

registration number for a special permit 

application could encourage companies 

already out of compliance with the 

registration requirement to decide 

against applying for a special permit. 

The RSCC states that whether a 

company is registered should have no 

bearing on applying for a special permit. 

While PHMSA acknowledges the 

arguments of the commenters, we 

believe that the requirement to include 

a registration number or statement that 

the applicant does not require 

registration will provide PHMSA with 

the necessary information to determine 

if the applicant is fit to ship hazardous 

materials under a special permit. In 

addition, the current requirement in 

§ 107.503(b) states that no person may 

engage in the manufacture, assembly, 

certification, inspection, or repair of a 

cargo tank vehicle under the terms of a 

DOT special permit unless the person is 

registered with PHMSA. PHMSA 

believes that the vast majority of the 

hazmat community is diligent in 

complying with the hazmat registration 

requirement and providing a registration 

number or statement that the applicant 

does not require registration at the time 

of the special permit application has a 

minimal impact. Therefore, PHMSA is 

adopting this revision as proposed. 

In the NPRM, PHMSA proposed to 

revise, re-designate, and add several 

new paragraphs to paragraphs (c) and 

(d) of § 107.105 to ensure that a special 

permit application includes sufficient 

information on shipping and incident 

history, experience, and increased safety 

risk relating to the initial application, 

modification or renewal of a special 

permit. Specifically, in paragraph (c)(2), 

PHMSA proposed to require a 

description of all operational controls 

that would apply to the mode or modes 

of transportation that would be utilized 

under the special permit. For example, 

for a shipment of ammonia solutions, 

the operational controls may include the 

driver of a transport vehicle and the 

consignee being trained not to enter the 

transport vehicle until the ammonia 

vapors have dissipated. PHMSA 

received comments from IME and the 

American Coatings Association 

objecting to this proposal. IME 

expresses concern that the requirement 

for a description of operational controls 

for all modes of transportation was too 

vague. The American Coatings 

Association states that the proposed 

requirement would be unfairly 

burdensome because the information 

requested could potentially include a 

significant investment of time to 

complete. While PHMSA understands 

the concerns of the commenters, current 

regulations require operational controls 

be established when applying for a 

special permit. The purpose of this 

requirement is to provide us with 

further information so that we can 

determine whether the proposed special 

permit meets the safety equivalency 

standard set out in paragraph (d). 

Therefore, we are incorporating this 

requirement as proposed. 

PHMSA proposed to revise paragraph 

(c)(3) to require that alternative hazard 

communication, including labeling and 

marking requirements, be included in 

the detailed description of the proposed 

special permit. PHMSA received 

comments from the Association of 

HAZMAT Shippers and the American 

Coatings Association objecting to these 

requirements. Specifically, both 

commenters indicate that such 

requirements are already covered in part 

172 of the HMR. While PHMSA agrees 

that these requirements can be found in 

other sections of the HMR, we believe 

it is necessary to require this 

information with respect to specific 

special permit applications to ensure 

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Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Rules and Regulations 457 

that these shipments are being 

transported in a safe manner. Therefore, 

PHMSA is incorporating this 

requirement as proposed. 

PHMSA proposed to revise paragraph 

(c)(5) to require, for transportation by 

air, a statement outlining the reason(s) 

the hazardous material would be 

transported by air if other modes are 

available. PHMSA received comments 

from PPG Industries, DGAC, IME, 

COSTHA, Association of HAZMAT 

Shippers, RSCC, and DELPHI objecting 

with these proposed requirements. 

Commenters reasoned that if PHMSA 

believes a shipment is safe for 

transportation under one mode, it 

should be considered safe for all modes. 

Other commenters expressed concern 

that they would no longer be able to 

make shipments by air. We disagree. We 

believe that the transportation of 

hazardous materials by air presents 

unique circumstances not found in 

transportation by rail, highway, or 

water, and note that the HMR contain 

several air-specific requirements. In 

addition, we emphasize that this 

requirement as proposed requests a 

justification from applicants for 

shipments under a special permit by air, 

but does not prohibit such shipments. 

Therefore, in this final rule, we are 

adopting this requirement as proposed. 

PHMSA proposed to revise paragraph 

(c)(7) to require the quantity of each 

hazardous material be indicated in 

addition to the identification and 

description of the hazardous materials 

planned for transportation under the 

special permit. PHMSA received 

comments from PPG Industries, DGAC, 

American Coatings Association, and 

Stericycle Inc. objecting to this 

proposed requirement. Commenters 

note that any such quantity would be an 

estimate, and potentially inaccurate. 

PHMSA acknowledges that the specific 

quantity of each hazardous material 

planned for transportation under a 

special permit may not be known during 

the application process. However, we 

believe an estimate based on the 

applicant’s best available information 

will enable PHMSA to better evaluate 

the applicant’s ability to safely transport 

hazardous materials under the 

conditions of the special permit. 

Therefore, in this final rule, PHMSA is 

adopting this requirement as proposed 

with the additional clarification that an 

estimate of the quantity of each 

shipment of the hazardous material 

planned for transportation is required. 

In addition, PHMSA proposed to redesignate paragraph (c)(10) as new 

paragraph (c)(13), and add new 

paragraphs (c)(10), (c)(11) and (c)(12) to 

require the applicant to submit: (1) An 

estimate of the number of operations 

expected to be conducted or the number 

of shipments expected to be transported 

under the special permit; (2) an estimate 

of the number of packagings expected to 

be manufactured under the special 

permit; and (3) a statement as to 

whether the special permit being sought 

is related to a compliance review, 

inspection activity, or enforcement 

action. PHMSA received comments 

from DGAC, IME, ATA, COSTHA, 

Association of HAZMAT Shippers, 

RSCC, and Stericycle Inc. objecting to 

the proposed requirement that 

applicants estimate the number of 

shipments expected to be transported 

under a special permit. Some 

commenters believe that PHMSA failed 

to justify its request for the quantity of 

hazardous materials or operations 

expected to be conducted under a 

special permit. Other commenters 

expressed concern that estimating the 

quantity of hazardous materials to be 

shipped under a special permit will be 

too difficult to provide a reasonable 

estimate. We disagree. For clarification, 

we expect applicants to provide an 

estimate of the number of shipments 

based on the best available knowledge, 

and are adopting this requirement as 

proposed. 

In paragraph (c)(11) PHMSA proposed 

to require an estimate of the number of 

packagings expected to be manufactured 

under the special permit. PHMSA 

received comments on this proposal 

from IME and COSTHA. IME states that 

it did not object to quantifying the 

number of packages manufactured 

under a special permit, but 

acknowledged that it would be an 

estimate. COSTHA states that there 

would be very little value in PHMSA 

knowing the number of packages 

manufactured under a special permit, 

and a true estimate would be very 

difficult to determine. As previously 

stated, PHMSA expects applicants to 

provide an estimate of the number of 

shipments based on the best available 

knowledge at the time the application is 

submitted. Therefore, PHMSA is 

adopting this requirement as proposed. 

In paragraph (c)(12) PHMSA proposed 

to require a statement as to whether the 

special permit being sought is related to 

a compliance review, inspection 

activity, or enforcement action. PHMSA 

received comments from IME, COSTHA, 

and the American Coatings Association 

objecting to this requirement. IME states 

that it is unclear how PHMSA is going 

to use this information. COSTHA 

indicates a belief that false allegations 

against a company could preclude it 

from obtaining a special permit. PHMSA 

believes it is relevant whether the 

applicant is applying for the special 

permit in response to a compliance 

review, inspection activity or 

enforcement action, and that this 

information will assist us in the 

determination of the fitness of an 

applicant and will help us to ensure that 

compliance data pertaining to an 

applicant is accurate. Therefore, we are 

adopting this requirement as proposed. 

In paragraph (d)(3)(i), PHMSA 

proposed to add the phrase ‘‘failure 

mode and effect analysis (FMEA)’’ as an 

example of documentation that is 

acceptable to substantiate that the 

proposed alternative sought in the 

special permit application will achieve 

a level of safety that is at least equal to 

that required by the regulation from 

which the applicant is requesting relief. 

PHMSA received comments from 

COSTHA, Northern Air Cargo, 

Association of HAZMAT Shippers, 

American Coatings Association, DGAC, 

ATA and Stericycle Inc. expressing 

concerns about the requirement to 

conduct a FMEA. For clarification, we 

stress that we are not requiring 

applicants to conduct a FMEA. Rather, 

our intention is to require that 

applicants substantiate the required 

level of safety by using a risk 

assessment, with applicable analyses, 

data or test results. We provided a 

FMEA as an example of a tool that can 

be used in order to demonstrate such an 

equivalent level of safety, but emphasize 

that it is not to be construed as a 

requirement. In addition, as discussed 

in the NPRM, we believe it is essential 

to understand and analyze the risks of 

a special permit application, and the 

analysis should include potential failure 

modes and consequences. For example, 

a special permit application that 

includes Part 178 requirements for 

design and manufacturing of DOT 

specification cylinders should include 

an analysis that addresses potential 

failure of a cylinder due to excessive 

hoop stress, fatigue, and corrosion. We 

believe the applicant requesting a 

special permit is the most suitable party 

to perform a ‘‘failure mode and effect 

analysis (FMEA)’’ or other risk 

assessment that identifies the associated 

risks and ways to control the risk for a 

requested special permit. Therefore, 

PHMSA is incorporating this 

requirement as proposed. 

Section 107.107 

In § 107.107, PHMSA proposed to 

revise the requirements for submitting 

an application for party status to an 

application or an existing special 

permit. In paragraph (a), PHMSA 

proposed to editorially revise the 

sentence ‘‘Any person eligible to apply 

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458 Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Rules and Regulations 

for a special permit may apply to be 

made a party’’ by removing the word 

‘‘made.’’ 

In paragraph (b)(3), PHMSA proposed 

to require applicants to submit the same 

information that would be required from 

an applicant for a special permit, 

including the physical address(es) of all 

known locations where the special 

permit would be used, a point of 

contact, the name of the company 

president or CEO, and DUNS identifier. 

For clarification, we editorially revised 

the language in paragraph (b)(4) to 

specify that if the applicant is not a 

resident of the United States, the 

applicant must identify and designate 

an agent for service in accordance with 

§ 105.40. PHMSA also proposed to add 

a new (b)(6) to require a certification 

that the applicant has not previously 

been granted party status to the special 

permit. If the applicant has previously 

been granted party status, the applicant 

would follow renewal procedures as 

specified in § 107.109. PHMSA received 

comments from PPG Industries, 

American Coatings Association, and 

Stericycle Inc. repeating the previous 

concerns from the comments to the 

proposed requirements for § 107.105 

regarding the requirement to provide the 

CEO name and DUNS number. 

Stericycle Inc. expresses concern that 

revealing a list of all known locations 

where a special permit will be used 

would require them to reveal 

proprietary information. We note that 

the HMR already has procedures in 

§ 105.30(a) for applicants who wish to 

protect proprietary information. Under 

this section, information is submitted to 

PHMSA with ‘‘confidential’’ written on 

each page along with an explanation on 

why the information should remain 

confidential. PHMSA then notifies the 

applicant on whether or not its 

information will be treated as 

confidential. PHMSA believes that 

requiring this information is essential to 

ensuring that an applicant is fit to 

conduct business under the guidelines 

of a special permit and is adopting this 

requirement as proposed. 

Section 107.109 

Section 107.109 of the HMR specifies 

the requirements for submitting an 

application for renewal of a special 

permit or party status to a special 

permit. In paragraph (a)(3), PHMSA 

proposed to require the applicant to 

submit the same information that would 

be required from an applicant for the 

special permit including the applicant’s 

physical address(es) of all known new 

locations not previously identified in 

the application where the special permit 

will be used and all locations not 

previously identified where the special 

permit was used, a point of contact, the 

name of the company president or CEO 

and a DUNS identifier. PHMSA received 

comments from DGAC, Norris Cylinder, 

American Coatings Association, and 

Stericycle Inc. again questioning the 

proposed requirement that applicants 

report all known locations where a 

special permit would be used. 

Commenters note this proposed revision 

would require some applicants to list 

hundreds, or perhaps thousands, of 

locations where the special permit will 

be used. We addressed similar 

comments pertaining to this issue in the 

discussion found under § 107.105. 

However, we reiterate the importance 

for applicants to list to the best of their 

knowledge all known locations using 

the best available information when 

applying for a special permit. Therefore, 

PHMSA is incorporating this 

requirement as proposed. 

In paragraph (a)(4), for clarification, 

PHMSA provides examples of 

supporting documentation that may 

require updating when an application 

for renewal of the special permit is 

submitted. PHMSA did not receive any 

comments opposing this requirement. 

Therefore, in this final rule, we are 

adopting this requirement as proposed. 

In paragraph (a)(5), PHMSA proposed 

to add the term ‘‘operational experience’’ 

to the current requirement that a 

statement be included in the application 

describing all relevant shipping and 

incident experience of which the 

applicant is aware in connection with 

the special permit since its issuance or 

most recent renewal. The American 

Coatings Association objects to this 

proposal stating that the current 

application process already captures 

information on incidents, and the 

additional information requirement 

would create a burden. PHMSA believes 

it is imperative for the applicant to 

provide information about operational 

controls in order to better assess that 

such operational controls are in place 

and are being adhered to as we make a 

determination whether the applicant 

can provide an equivalent level of 

safety. Therefore, in this final rule, we 

are incorporating this revision as 

proposed. 

In the NPRM, PHMSA proposed to 

add new paragraphs (a)(7) and (a)(8) to 

this section. In paragraph (a)(7), PHMSA 

proposed to require the applicant to 

submit additional information for a 

renewal that is requested after the 

expiration date of the special permit. 

Specifically, we proposed to require: (1) 

The reason the special permit 

authorization was allowed to expire; (2) 

a certification statement that no 

shipments were transported after the 

expiration date of the special permit, or 

a statement describing any 

transportation under the terms of the 

special permit after the expiration date, 

if applicable; and (3) a statement 

describing the action(s) the applicant 

will take to ensure future renewal is 

requested before the expiration date. 

DGAC objects to the proposed 

requirement stating its belief that such 

information violates the Paperwork 

Reduction Act (PRA). We disagree. 

PHMSA carefully reviewed this 

proposed requirement and determined 

that such a scenario would likely be an 

infrequent occurrence and, therefore, 

would require a minimal amount of 

time to add the required statements 

when it does occur. In addition, we 

adjusted the information collection 

burden to account for such an occasion 

and included it in the calculations when 

a revised information collection was 

submitted to the Office of Management 

and Budget (OMB). Therefore, in this 

final rule, PHMSA is adopting this 

requirement as proposed. 

In paragraph (a)(8), PHMSA proposed 

to require applicants to provide a 

specific justification why the special 

permit should be renewed if no 

operations or shipments have been 

made since the issuance or renewal of 

the special permit. DGAC and Northern 

Air cargo objected to including this 

requirement, with DGAC claiming that 

the requirement was an unnecessary 

information collection under the PRA. 

As previously stated, PHMSA reviewed 

this proposed requirement for PRA 

implications and determined that such 

a scenario would also be an infrequent 

occurrence and would require a 

minimal amount of time on the part of 

the applicant when it does occur. 

Accordingly, we adjusted the 

information collection burden to 

account for such an occurrence when a 

revised information collection was 

submitted to OMB. Therefore, in this 

final rule, PHMSA is adopting this 

requirement as proposed. 

Sections 107.109; 107.113; 107.117; 

107.121; 107.123; 107.125; and 171.8 

In the NPRM, PHMSA proposed to 

revise certain sections in Part 107— 

‘‘Hazardous Materials Program Procedures’’ to 

authorize the use of ‘‘electronic service’’ or 

‘‘electronic means’’ to provide greater 

flexibility in the procedures for the 

issuance, modification, and termination 

of special permits. The affected sections 

are as follows: 

§ 107.113 Application processing and 

evaluation. 

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§ 107.121 Modification, suspension or 

termination of special permit or grant of 

party status. 

§ 107.123 Reconsideration. 

§ 107.125 Appeal. 

Section 107.113 specifies the 

requirements for the application and 

processing of: (1) An application for a 

special permit; (2) modification of a 

special permit, (3) party to a special 

permit, and (4) renewal of a special 

permit. In the NPRM, PHMSA proposed 

to require that, during the processing 

and evaluation of an application, the 

Associate Administrator may request 

additional information from the 

applicant, including during an on-site 

review. To enable the agency to better 

evaluate the applicant’s fitness and the 

safety impact of operations that would 

be authorized under the special permit, 

we are also specifying that a failure on 

the part of the applicant to cooperate 

with an on-site review may result in the 

application being deemed incomplete 

and subsequently being denied. PHMSA 

received comments from IME and the 

American Coatings Association 

expressing concerns about this proposed 

requirement. IME thinks that the 

requirement is unclear. The American 

Coatings Association notes that this 

requirement is a new element in the 

application process that has not been 

submitted for notice and comment 

under the Administrative Procedure Act 

(APA). PHMSA disagrees that this 

process is a violation of the APA 

because it solicited comment on the 

provision in the NPRM, as required by 

the APA, and because it already retains 

the authority to conduct inspections 

under § 107 during the special permit 

application process. This requirement is 

being included under this section to 

increase applicant’s awareness of the 

ability of PHMSA to conduct 

inspections specified under § 107. 

PHMSA did not receive any additional 

comments opposing this requirement, 

and is adopting this requirement as 

proposed. 

Section 107.117 specifies the 

requirements for submitting an 

application for emergency processing. In 

paragraph (d)(5), PHMSA is updating 

the telephone number for the Chief, 

Hazardous Materials Standards 

Division, Office of Operating and 

Environmental Standards, U.S. Coast 

Guard, U.S. Department of Homeland 

Security, Washington, DC for an 

application for water transportation as 

the initial mode of transport submitted 

on an emergency basis. PHMSA did not 

receive any comments opposing this 

requirement and is adopting this 

requirement as proposed. 

PHMSA also proposed to remove the 

word ‘‘exemption(s)’’ from various 

sections in Part 107 and from the 

definition of a ‘‘special permit’’ in 

§ 171.8, Definitions and Abbreviation. 

These amendments are necessary 

because use of the term ‘‘exemption(s)’’ 

has been replaced with ‘‘special 

permit(s)’’ following the publication of a 

final rule entitled ‘‘Hazardous Materials: 

Incorporation of Statutorily Mandated 

Revisions to the Hazardous Materials 

Regulations,’’ published on December 9, 

2005 (70 FR 73156) under Docket No. 

PHMSA–2005–22208 (HM–240). The 

December 9, 2005 final rule changed the 

term ‘‘exemption’’ to ‘‘special permit.’’ 

COSTHA objects to the removal of the 

word ‘‘exemptions’’ from the regulations 

because the term is still used in 

international regulation and could cause 

confusion. PHSMA disagrees with this 

comment and believes that removing the 

word ‘‘exemption’’ from the HMR is 

needed to keep terminology consistent 

within the HMR. Therefore PHMSA is 

incorporating this revision as proposed. 

The affected sections are as follows: 

§ 107.109 

§ 107.113 

§ 107.121 

§ 107.123 

§ 171.8 

VI. Rulemaking Analyses and Notices 

A. Statutory/Legal Authority for This 

Rulemaking 

This final rule is published under the 

authority of 49 U.S.C. 5103(b), which 

authorizes the Secretary to prescribe 

regulations for the safe transportation, 

including security, of hazardous 

material in intrastate, interstate, and 

foreign commerce. 49 U.S.C. 5117(a) 

authorizes the Secretary of 

Transportation to issue a special permit 

from a regulation prescribed in 

§§ 5103(b), 5104, 5110, or 5112 of the 

Federal hazardous materials 

transportation law to a person 

transporting, or causing to be 

transported, hazardous material in a 

way that achieves a safety level at least 

equal to the safety level required under 

the law, or consistent with the public 

interest, if a required safety level does 

not exist. The final rule amends the 

regulations to revise the special permit 

application requirements and provide 

an on-line capability for applications. 

B. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This final rule is not considered a 

significant regulatory action under 

section 3(f) of Executive Order 12866 

and, therefore, was not reviewed by the 

Office of Management and Budget 

(OMB). This final rule is not considered 

a significant rule under the Regulatory 

Policies and Procedures of the 

Department of Transportation (44 FR 

11034). In this final rule, PHMSA is 

revising the special permits application 

procedures by requiring additional, 

more detailed information to enable the 

agency to strengthen its oversight of the 

special permits program. PHMSA 

recognizes there may be additional costs 

related to the proposals to require 

additional information in the special 

permits application procedures. 

However, we believe these costs are 

minimized by the proposals to allow for 

electronic means for all special permits 

and approvals actions, and the 

proposals to authorize electronic means 

as an alternative to written means of 

communication. Taken together, the 

provisions of this final rule will 

promote the continued safe 

transportation of hazardous materials 

while reducing paperwork burden on 

applicants and administrative costs for 

the agency. 

C. Executive Order 13132 

This final rule was analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’). This final rule 

would preempt State, local and Indian 

Tribe requirements but does not contain 

any regulation that has substantial 

direct effects on the States, the 

relationship between the national 

government and the States, or the 

distribution of power and 

responsibilities among the various 

levels of governments. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

Federal hazardous material 

transportation law, 49 U.S.C. 5101– 

5128, contains an express preemption 

provision (49 U.S.C. 5125(b)) 

preempting State, local and Indian Tribe 

requirements on certain covered 

subjects. 

D. Executive Order 13175 

This final rule was analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13175 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’). 

Because this final rule does not have 

Tribal implications and does not impose 

substantial direct compliance costs on 

Indian Tribal governments, the funding 

and consultation requirements of 

Executive Order 13175 do not apply. 

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E. Regulatory Flexibility Act, Executive 

Order 13272, and DOT Procedures and 

Policies 

The Regulatory Flexibility Act (5 

U.S.C. 601–611) requires each agency to 

analyze regulations and assess their 

impact on small businesses and other 

small entities to determine whether the 

rule is expected to have a significant 

impact on a substantial number of small 

entities. This final rule proposes 

revisions to current special permit 

application requirements that may 

increase the time that would be required 

to complete such an application. 

Although many of the applicants may be 

small businesses or other small entities, 

PHMSA believes that the addition of an 

on-line application option will 

significantly reduce the burden imposed 

by the application requirements. 

Therefore, PHMSA certifies that the 

provisions of this final rule would not 

have a significant economic impact on 

a substantial number of small entities. 

F. Unfunded Mandates Reform Act of 

1995 

This final rule does not impose 

unfunded mandates under the 

Unfunded Mandates Reform Act of 

1995. It does not result in costs of 

$141.3 million or more, in the aggregate, 

to any of the following: State, local, or 

Native American Tribal governments, or 

the private sector. 

G. Paperwork Reduction Act 

PHMSA has an approved information 

collection under OMB Control Number 

2137–0051, ‘‘Rulemaking, Special 

Permits, and Preemption Requirements.’’ 

This final rule may result in a slight 

increase in the annual burden and costs 

under this information collection due to 

proposed changes to require an 

applicant to provide additional 

information about its operations to 

enable the agency to evaluate the 

applicant’s fitness and the safety impact 

of operations that would be authorized 

in the special permit. Much of this 

increased burden will be minimized 

because of changes to allow for 

electronic means for all special permits 

and approvals actions, and to authorize 

electronic means as an alternative to 

written means of communication. 

Under the Paperwork Reduction Act 

of 1995, no person is required to 

respond to an information collection 

unless it has been approved by OMB 

and displays a valid OMB control 

number. Section 1320.8(d), Title 5, Code 

of Federal Regulations requires that 

PHMSA provide interested members of 

the public and affected agencies an 

opportunity to comment on information 

and recordkeeping requests. PHMSA 

developed burden estimates to reflect 

changes in this final rule and submitted 

a revised information collection request 

to OMB for approval based on the 

requirements in this final rule. PHMSA 

estimates that the additional 

information collection and 

recordkeeping burden in this rule will 

be as follows: 

OMB Control No. 2137–0051: 

Affected Number of Annual 

Respondents: 3,500. 

Affected Number of Annual 

Responses: 3,500. 

Net Increase in Annual Burden Hours: 

865. 

Net Increase in Annual Burden Costs: 

$34,600. 

Requests for a copy of this 

information collection should be 

directed to Deborah Boothe or T. Glenn 

Foster, Standards and Rulemaking 

Division (PHH–11), Pipeline and 

Hazardous Materials Safety 

Administration, 1200 New Jersey 

Avenue, SE., Washington, DC 20590– 

0001, Telephone (202) 366–8553. 

H. Regulation Identifier Number (RIN) 

A regulation identifier number (RIN) 

is assigned to each regulatory action 

listed in the Unified Agenda of Federal 

Regulations. The Regulatory Information 

Service Center publishes the Unified 

Agenda in April and October of each 

year. The RIN number contained in the 

heading of this document may be used 

to cross-reference this action with the 

Unified Agenda. 

I. Environmental Assessment 

The National Environmental Policy 

Act of 1969 (NEPA), as amended (42 

U.S.C. 4321–4347), requires Federal 

agencies to consider the consequences 

of major Federal actions and prepare a 

detailed statement on actions 

significantly affecting the quality of the 

human environment. Given that this 

rulemaking requires additional, more 

detailed information from applicants 

and strengthen agency oversight, this 

change in regulation will increase safety 

and environmental protections. There 

are no significant environmental 

impacts associated with this final rule. 

List of Subjects 

49 CFR Part 105 

Administrative practice and 

procedure, Hazardous materials 

transportation. 

49 CFR Part 107 

Administrative practice and 

procedure, Hazardous materials 

transportation, Penalties, Reporting and 

recordkeeping requirements. 

49 CFR Part 171 

Exports, Hazardous materials 

transportation, Hazardous waste, 

Imports, Incorporation by reference, 

Reporting and recordkeeping 

requirements. 

■ In consideration of the foregoing, 49 

CFR part 105, 49 CFR part 107, and 49 

CFR part 171 are amended as follows: 

PART 105—HAZARDOUS MATERIALS 

PROGRAM DEFINITIONS AND 

GENERAL PROCEDURES 

■ 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 § 105.35, paragraph (a)(4) is 

added to read as follows: 

§ 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 § 107.1, the definition for 

‘‘special permit’’ is revised to read as 

follows: 

§ 107.1 Definitions. 

* * * * * 

Special permit means a document 

issued by the Associate Administrator, 

or other designated Department official, 

under the authority of 49 U.S.C. 5117 

permitting a person to perform a 

function that is not otherwise permitted 

under subchapters A or C of this 

chapter, or other regulations issued 

under 49 U.S.C. 5101 et seq. (e.g., 

Federal Motor Carrier Safety routing 

requirements). 

* * * * * 

■ 5. Section 107.105 is revised to read 

as follows: 

§ 107.105 Application for special permit. 

(a) General. Each application for a 

special permit or modification of a 

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special permit and all supporting 

documents must be written in English 

and submitted for timely consideration 

at least 120 days before the requested 

effective date and conform to the 

following requirements: 

(1) The application, including a table 

of contents, must: 

(i) Be submitted to the Associate 

Administrator for Hazardous Materials 

Safety (Attention: General Approvals 

and Permits, PHH–31), Pipeline and 

Hazardous Materials Safety 

Administration, U.S. Department of 

Transportation, East Building, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590–0001; 

(ii) Be submitted with any attached 

supporting documentation by facsimile 

(fax) to: (202) 366–3753 or (202) 366– 

3308; or 

(iii) Be submitted electronically by email to: Specialpermits@dot.gov or online at: http://www.phmsa.dot.gov/ 

hazmat/regs/sp-a. 

(2) The application must state the 

name, mailing address, physical 

address(es) of all known locations 

where the special permit would be used, 

e-mail address (if available), and 

telephone number of the applicant. If 

the applicant is not an individual, the 

application must state the company 

name, mailing address, physical 

address(es) of all known locations 

where the special permit would be used, 

e-mail address (if available), and 

telephone number of an individual 

designated as the point of contact for the 

applicant for all purposes related to the 

application, the name of the company 

Chief Executive Officer (CEO) or 

president; and the Dun and Bradstreet 

Data Universal Numbering System 

(D–U–N–S) identifier. 

(3) If the applicant is not a resident of 

the United States, in addition to the 

information listed in paragraph (a)(2) of 

this section, the application must 

identify and designate an agent that is 

a permanent resident of the United 

States for service in accordance with 

§ 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 § 105.30(a). 

(c) Description of special permit 

proposal. The application must include 

the following information that is 

relevant to the special permit proposal: 

(1) A citation of the specific 

regulation from which the applicant 

seeks relief; 

(2) The proposed mode or modes of 

transportation, including a description 

of all operational controls required; 

(3) A detailed description of the 

proposed special permit (e.g., 

alternative packaging, test, procedure, 

activity, or hazard communication, 

including marking and labeling 

requirements) including, as appropriate, 

written descriptions, drawings, flow 

charts, plans and other supporting 

documents; 

(4) A specification of the proposed 

duration or schedule of events for which 

the special permit is sought; 

(5) A statement outlining the 

applicant’s basis for seeking relief from 

compliance with the specified 

regulations and, if the special permit is 

requested for a fixed period, a 

description of how compliance will be 

achieved at the end of that period. For 

transportation by air, a statement 

outlining the reason(s) the hazardous 

material is being transported by air if 

other modes are available; 

(6) If the applicant seeks emergency 

processing specified in § 107.117, a 

statement of supporting facts and 

reasons; 

(7) Identification and description, 

including an estimated quantity of each 

shipment of the hazardous materials 

planned for transportation under the 

special permit or; 

(8) Description of each packaging, 

including specification or special permit 

number, as applicable, to be used in 

conjunction with the requested special 

permit; 

(9) For alternative packagings, 

documentation of quality assurance 

controls, package design, manufacture, 

performance test criteria, in-service 

performance and service-life limitations; 

(10) An estimate of the number of 

operations expected to be conducted or 

number of shipments to be transported 

under the special permit; 

(11) An estimate of the number of 

packagings expected to be manufactured 

under the special permit, if applicable; 

(12) A statement as to whether the 

special permit being sought is related to 

a compliance review, inspection 

activity, or enforcement action; and 

(13) When a Class 1 material is 

forbidden for transportation by aircraft 

except under a special permit (see 

Columns 9A and 9B in the table in 49 

CFR 172.101), a certification from an 

applicant for a special permit to 

transport such Class 1 material on 

passenger-carrying or cargo-only aircraft 

with a maximum certificated takeoff 

weight of less than 12,500 pounds that 

no person within the categories listed in 

18 U.S.C. 842(i) will participate in the 

transportation of the Class 1 material. 

(d) Justification of special permit 

proposal. The application must 

demonstrate that a special permit 

achieves a level of safety at least equal 

to that required by regulation, or if a 

required safety level does not exist, is 

consistent with the public interest. At a 

minimum, the application must provide 

the following: 

(1) Information describing all relevant 

shipping and incident experience of 

which the applicant is aware that relates 

to the application; and 

(2) A statement identifying any 

increased risk to safety or property that 

may result if the special permit is 

granted, and a description of the 

measures to be taken to address that 

risk; and 

(3) Either: 

(i) Substantiation, with applicable 

analyses, data or test results (e.g., failure 

mode and effect analysis), that the 

proposed alternative will achieve a level 

of safety that is at least equal to that 

required by the regulation from which 

the special permit is sought; or 

(ii) If the regulations do not establish 

a level of safety, an analysis that 

identifies each hazard, potential failure 

mode and the probability of its 

occurrence, and how the risks 

associated with each hazard and failure 

mode are controlled for the duration of 

an activity or life-cycle of a packaging. 

■ 6. Section 107.107 is revised to read 

as follows: 

§ 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:— 

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462 Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Rules and Regulations 

(1) The application must: 

(i) Be submitted to the Associate 

Administrator for Hazardous Materials 

Safety (Attention: General Approvals 

and Permits, PHH–31), Pipeline and 

Hazardous Materials Safety 

Administration, U.S. Department of 

Transportation, East Building, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590–0001; 

(ii) Be submitted with any attached 

supporting documentation by facsimile 

(fax) to: (202) 366–3753 or (202) 366– 

3308; or 

(iii) Be submitted by electronically by 

e-mail to: Specialpermits@dot.gov, or 

on-line at: http://www.phmsa.dot.gov/ 

hazmat/regs/sp-a. 

(2) The application must identify by 

number the special permit application 

or special permit to which the applicant 

seeks to become a party. 

(3) The application must state the 

name, mailing address, physical 

address(es) of all known locations 

where the special permit would be used, 

e-mail address (if available), and 

telephone number of the applicant. If 

the applicant is not an individual, the 

application must state the company 

name, mailing address, physical 

address(es) of all known locations 

where the special permit would be used, 

e-mail address (if available), and 

telephone number of an individual 

designated as the point of contact for the 

applicant for all purposes related to the 

application, the name of the company 

Chief Executive Officer (CEO) or 

president, and the Dun and Bradstreet 

Data Universal Numbering System (D– 

U–N–S) identifier. 

(4) If the applicant is not a resident of 

the United States, the application must 

identify and designate an agent that is 

a permanent resident of the United 

States for service in accordance with 

§ 105.40 of part. 

(5) For a Class 1 material that is 

forbidden for transportation by aircraft 

except under a special permit (see 

Columns 9A and 9B in the table in 49 

CFR 172.101), a certification from an 

applicant for party status to a special 

permit to transport such Class 1 material 

on passenger-carrying or cargo-only 

aircraft with a maximum certificated 

takeoff weight of less than 12,500 

pounds that no person within the 

categories listed in 18 U.S.C. 842(i) will 

participate in the transportation of the 

Class 1 material. 

(6) The applicant must certify that the 

applicant has not previously been 

granted party status to the special 

permit. If the applicant has previously 

been granted party status, the applicant 

must follow renewal procedures as 

specified in § 107.109. 

(c) The Associate Administrator may 

grant or deny an application for party 

status in the manner specified in 

§ 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 

§ 107.109 apply. 

■ 7. Section 107.109 is revised to read 

as follows: 

§ 107.109 Application for renewal. 

(a) Each application for renewal of a 

special permit or party status to a 

special permit must conform to the 

following requirements: 

(1) The application must: 

(i) Be submitted to the Associate 

Administrator for Hazardous Materials 

Safety (Attention: General Approvals 

and Permits, PHH–31), Pipeline and 

Hazardous Materials Safety 

Administration, U.S. Department of 

Transportation, East Building, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590–0001; 

(ii) Be submitted with any attached 

supporting documentation submitted in 

an appropriate format by facsimile (fax) 

to: (202) 366–3753 or (202) 366–3308; or 

(iii) Be submitted electronically by email to: Specialpermits@dot.gov; or online at: http://www.phmsa.dot.gov/ 

hazmat/regs/sp-a. 

(2) The application must identify by 

number the special permit for which 

renewal is requested. 

(3) The application must state the 

name, mailing address, physical 

address(es) of all known new locations 

not previously identified in the 

application where the special permit 

would be used and all locations not 

previously identified where the special 

permit was used, e-mail address (if 

available), and telephone number of the 

applicant. If the applicant is not an 

individual, the application must state 

the name, mailing address, physical 

address(es) of all known new locations 

not previously identified in the 

application where the special permit 

would be used and all locations not 

previously identified where the special 

permit was used, e-mail address (if 

available), and telephone number of an 

individual designated as the point of 

contact for the applicant for all purposes 

related to the application, the name of 

the company Chief Executive Officer 

(CEO) or president, and the Dun and 

Bradstreet Data Universal Numbering 

System (D–U–N–S) identifier. 

(4) The application must include 

either a certification by the applicant 

that the original application, as it may 

have been updated by any application 

for renewal, remains accurate (e.g., all 

section references, shipping 

descriptions, etc.) and complete; or 

include an amendment to the previously 

submitted application as is necessary to 

update and ensure the accuracy and 

completeness of the application, with 

certification by the applicant that the 

application as amended is accurate and 

complete. 

(5) The application must include a 

statement describing all relevant 

operational, shipping, and incident 

experience of which the applicant is 

aware in connection with the special 

permit since its issuance or most recent 

renewal. If the applicant is aware of no 

incidents, the applicant must so certify. 

When known to the applicant, the 

statement must indicate the 

approximate number of shipments made 

or packages shipped, as applicable, and 

the number of shipments or packages 

involved in any loss of contents, 

including loss by venting other than as 

authorized in subchapter C. 

(6) When a Class 1 material is 

forbidden for transportation by aircraft, 

except under a special permit (see 

Columns 9A and 9B in the table in 49 

CFR 172.101), an application to renew 

a special permit to transport such Class 

1 material on passenger-carrying or 

cargo-only aircraft with a maximum 

certificated takeoff weight of less than 

12,500 pounds must certify that no 

person within the categories listed in 18 

U.S.C. 842(i) will participate in the 

transportation of the Class 1 material. 

(7) If the renewal is requested after the 

expiration date of the special permit, the 

following information is required: 

(i) The reason the special permit 

authorization was allowed to expire; 

(ii) A certification statement that no 

shipments were transported after the 

expiration date of the special permit, or 

a statement describing any 

transportation under the terms of the 

special permit after the expiration date, 

if applicable; and 

(iii) A statement describing the 

action(s) the applicant will take to 

ensure future renewal is requested 

before the expiration date. 

(8) If no operations or shipments have 

been made since the issuance or 

renewal of the special permit, the 

applicant must provide specific 

justification as to why the special 

permit should be renewed. 

(b) If, at least 60 days before an 

existing special permit expires the 

holder files an application for renewal 

that is complete and conforms to the 

requirements of this section, the special 

permit will not expire until final 

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Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Rules and Regulations 463 

administrative action on the application 

for renewal has been taken. 

■ 8. In § 107.113, paragraphs (a), (d), 

(f)(5), (g), and (h) are revised to read as 

follows: 

§ 107.113 Application processing and 

evaluation. 

(a) The Associate Administrator 

reviews an application for a special 

permit, modification of a special permit, 

party to a special permit, or renewal of 

a special permit to determine if it is 

complete and conforms with the 

requirements of this subpart. This 

determination will be made within 30 

days of receipt of the application for a 

special permit, modification of a special 

permit, or party to a special permit, and 

within 15 days of receipt of an 

application for renewal of a special 

permit. If an application is determined 

to be incomplete, the applicant is 

informed of the deficiency. 

* * * * * 

(d) During the processing and 

evaluation of an application, the 

Associate Administrator may conduct 

an on-site review or request additional 

information from the applicant. A 

failure to cooperate with an on-site 

review may result in the application 

being deemed incomplete and 

subsequently being denied. If the 

applicant does not respond to a written 

or electronic request for additional 

information within 30 days of the date 

the request was received, the 

application may be deemed incomplete 

and denied. However, if the applicant 

responds in writing or by electronic 

means within the 30-day period 

requesting an additional 30 days within 

which it will gather the requested 

information, the Associate 

Administrator may grant the 30-day 

extension. 

* * * * * 

(f) * * * 

(5) The applicant is fit to conduct the 

activity authorized by the special 

permit. This assessment may be based 

on information in the application, prior 

compliance history of the applicant, and 

other information available to the 

Associate Administrator. 

* * * * * 

(g) An applicant is notified in writing 

or by electronic means whether the 

application is granted or denied. A 

denial contains a brief statement of 

reasons. 

(h) The initial special permit 

terminates according to its terms or, if 

not otherwise specified, 24 months from 

the date of issuance. A subsequent 

renewal of a special permit terminates 

according to its terms or, if not 

otherwise specified, 48 months after the 

date of issuance. A grant of party status 

to a special permit, unless otherwise 

stated, terminates on the date that the 

special permit expires. 

* * * * * 

■ 9. In § 107.117, paragraph (d)(5) is 

revised to read as follows: 

§ 107.117 Emergency processing. 

* * * * * 

(d) * * * 

(5) Water Transportation: Chief, 

Hazardous Materials Standards 

Division, Office of Operating and 

Environmental Standards, U.S. Coast 

Guard, U.S. Department of Homeland 

Security, Washington, DC 20593–0001; 

202–372–1420 (day); 1–800–424–8802 

(night). 

* * * * * 

■ 10. Section 107.121 is revised to read 

as follows: 

§ 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 § 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. Section 107.123 is revised to read 

as follows: 

§ 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 

§ 107.113(g), § 107.117(e) or § 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 § 107.125, paragraphs (a)(1) and 

(c) are revised to read as follows: 

§ 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. 

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464 Federal Register / Vol. 76, No. 3 / Wednesday, January 5, 2011 / Rules and Regulations 

PART 171—GENERAL INFORMATION, 

REGULATIONS, AND DEFINITIONS 

■ 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. In § 171.8, the definition for 

‘‘Special permit’’ is revised to read as 

follows: 

§ 171.8 Definitions and abbreviations. 

* * * * * 

Special permit means a document 

issued by the Associate Administrator, 

or other designated Department official, 

under the authority of 49 U.S.C. 5117 

permitting a person to perform a 

function that is not otherwise permitted 

under subchapter A or C of this chapter, 

or other regulations issued under 49 

U.S.C. 5101 et seq. (e.g., Federal Motor 

Carrier Safety routing requirements). 

* * * * * 

Issued in Washington, DC, on December 

29, 2010 under authority delegated in 49 CFR 

part 106. 

Cynthia L. Quarterman, 

Administrator, Pipeline and Hazardous 

Materials Safety Administration. 

[FR Doc. 2010–33316 Filed 1–4–11; 8:45 am] 

BILLING CODE 4910–60–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

RIN 0648–XA125 

Notification of U.S. Fish Quotas and an 

Effort Allocation in the Northwest 

Atlantic Fisheries Organization (NAFO) 

Regulatory Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; notification of U.S. 

fish quotas. 

SUMMARY: NMFS announces that fish 

quotas are available for harvest by U.S. 

fishermen in the Northwest Atlantic 

Fisheries Organization (NAFO) 

Regulatory Area. This action is 

necessary to make available to U.S. 

fishermen a fishing privilege on an 

equitable basis. 

DATES: Effective January 1, 2011, 

through December 31, 2011. Expressions 

of interest regarding U.S. fish quota 

allocations for all species except 

Division 3L shrimp and Division 3M 

redfish will be accepted throughout 

2011. Expressions of interest regarding 

the U.S. 3L shrimp and 3M redfish 

quota allocations and the 3LNO 

yellowtail flounder to be transferred by 

Canada will be accepted through 

January 20, 2011. 

ADDRESSES: Expressions of interest 

regarding U.S. quota allocations should 

be made in writing to Patrick E. Moran 

in the NMFS Office of International 

Affairs, at 1315 East-West Highway, 

Silver Spring, MD 20910 (phone: 301– 

713–2276, fax: 301–713–2313, e-mail: 

Pat.Moran@noaa.gov). 

Information relating to NAFO fish 

quotas, NAFO Conservation and 

Enforcement Measures, and the High 

Seas Fishing Compliance Act (HSFCA) 

Permit is available from Allison 

McHale, at the NMFS Northeast 

Regional Office at 55 Great Republic 

Drive, Gloucester, MA 01930 (phone: 

978–281–9103, fax: 978–281–9135, 

e-mail: allison.mchale@noaa.gov) and 

from NAFO on the World Wide Web at 

http://www.nafo.int. 

FOR FURTHER INFORMATION CONTACT: 

Patrick E. Moran, 301–713–2276. 

SUPPLEMENTARY INFORMATION: 

Background 

NAFO has established and maintains 

conservation measures in its Regulatory 

Area that include one effort limitation 

fishery as well as fisheries with total 

allowable catches (TACs) and member 

nation quota allocations. The principal 

species managed are cod, flounder, 

redfish, American plaice, halibut, hake, 

capelin, shrimp, skates and squid. At 

the 2010 NAFO Annual Meeting, the 

United States received fish quota 

allocations for three NAFO stocks to be 

fished during 2011. Please note that 

NAFO has eliminated the Division 3M 

shrimp effort allocation for 2011 due to 

conservation concerns. Fishing 

opportunities for this stock will be reopened when the NAFO Scientific 

Council advice estimates that the stock 

is showing signs of recovery. 

The species, location, and allocation 

(in metric tons) of 2011 U.S. fishing 

opportunities, as found in Annexes I.A, 

I.B, and I.C of the 2011 NAFO 

Conservation and Enforcement 

Measures, are as follows: 

(1) Redfish ........ NAFO Division 

3M.

69 mt. 

(2) Squid (Illex) NAFO Subareas 

3 & 4.

453 mt. 

(3) Shrimp ......... NAFO Division 

3L.

334 mt. 

Additionally, the United States may 

be transferred up to 1,000 mt of 3LNO 

yellowtail flounder from Canada’s quota 

allocation for express use by U.S. 

vessels if the United States requests a 

transfer before January 1 of 2011, or any 

succeeding year through 2017. If such a 

request is made, an additional 500 mt of 

3LNO yellowtail flounder could be 

made available on the condition that the 

United States transfers its 3L shrimp 

allocation to Canada or through some 

other arrangement. Participants in this 

fishery will be restricted to an overall 

bycatch harvest limit for American 

plaice equal to 15% of the total 

yellowtail fishery. 

Further, U.S. vessels may be 

authorized to fish any available portion 

of the 385 mt allocation of oceanic 

redfish in NAFO Subarea 2 and 

Divisions 1F and 3K available to NAFO 

members that are not also members of 

the Northeast Atlantic Fisheries 

Commission. Fishing opportunities may 

also be authorized for U.S. fishermen in 

the ‘‘Others’’ category for: Division 

3LNO yellowtail flounder (85 mt); 

Division 3NO white hake (353 mt); 

Division 3LNO skates (444 mt); Division 

3M cod (40 mt), 3LN redfish (35 mt) and 

Division 3O redfish (100 mt). 

Procedures for obtaining NMFS 

authorization are specified below. 

U.S. Fish Quota Allocations 

Expressions of interest to fish for any 

or all of the 2011 U.S. fish quota 

allocations, including the up to 1,500 mt 

of yellowtail flounder to be transferred 

by Canada under the circumstances 

described above, and ‘‘Others’’ category 

allocations in NAFO will be considered 

from U.S. vessels in possession of, or 

eligible for, a valid HSFCA permit, 

which is available from the NMFS 

Northeast Regional Office (see 

ADDRESSES). All expressions of interest 

should be directed in writing to Patrick 

E. Moran (see ADDRESSES). Letters of 

interest from U.S. vessel owners should 

include the name, registration, and 

home port of the applicant vessel as 

required by NAFO in advance of fishing 

operations. In addition, any available 

information on intended target species 

and dates of fishing operations should 

be included. To ensure equitable access 

by U.S. vessel owners, NMFS may 

promulgate regulations designed to 

choose one or more U.S. applicants from 

among expressions of interest. 

Note that vessels issued valid HSFCA 

permits under 50 CFR part 300 are 

exempt from multispecies permit, mesh 

size, effort-control, and possession limit 

restrictions, specified in 50 CFR 648.4, 

648.80, 648.82 and 648.86, respectively, 

while transiting the U.S. exclusive 

economic zone (EEZ) with multispecies 

on board the vessel, or landing 

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