[Federal Register Volume 76, Number 3 (Wednesday, January 5, 2011)]
[Rules and Regulations]
[Pages 454-464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-33316]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 105, 107, and 171

[Docket No. PHMSA-2009-0410 (HM-233B)]
RIN 2137-AE57


Hazardous Materials Transportation: Revisions of Special Permits 
Procedures

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Final rule.

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SUMMARY: PHMSA is revising its procedures for applying for a special 
permit to require an applicant to provide sufficient information about 
its operations to enable the agency to evaluate the applicant's fitness 
and the safety impact of operations that would be authorized in the 
special permit. In addition, PHMSA is providing an on-line application 
option.

DATES: Effective date: The effective date of these amendments is March 
7, 2011. Voluntary compliance date: Voluntary compliance with the 
provisions of this final rule is authorized January 5, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. Steven Andrews or Mr. T. Glenn 
Foster, Standards and Rulemaking Division, PHMSA, at (202) 366-8553 or 
Mr. Ryan Paquet, Approvals and Permits Division, PHMSA, at (202) 366-
4511.

SUPPLEMENTARY INFORMATION:

I. Background

    The Federal hazardous material transportation law (Federal hazmat 
law), 49 U.S.C. 5101 et seq., directs the Secretary of Transportation 
to prescribe regulations for the safe transportation of hazardous 
material in commerce. (49 U.S.C. 5103) Section 5117(a) authorizes the 
Secretary of Transportation to issue a special permit from a regulation 
prescribed in Sec. Sec.  5103(b), 5104, 5110, or 5112 of the Federal 
hazardous materials transportation law to a person transporting, or 
causing to be transported, hazardous material in a way that achieves a 
safety level at least equal to the safety level required under the law, 
or consistent with the public interest, if a required safety level does 
not exist. The Pipeline and Hazardous Materials Safety Administration 
(PHMSA) is the administration within the Department of Transportation 
(DOT) primarily responsible for implementing the Federal hazmat law and 
issuing special permits.
    The HMR generally are performance-oriented regulations that provide 
the regulated community with a certain amount of flexibility in meeting 
safety requirements. Even so, not every transportation situation can be 
anticipated and built into the regulations. Innovation is a strength of 
our economy and the hazardous materials community is particularly 
strong at developing new materials and technologies and innovative ways 
of moving materials. Special permits enable the hazardous materials 
industry to quickly, effectively, and safely integrate new products and 
technologies into the production and transportation stream. Thus, 
special permits provide a mechanism for testing new technologies, 
promoting increased transportation efficiency and productivity, and 
ensuring global competitiveness. Implementation of new technologies and 
operational techniques can enhance safety because the authorized 
operations or activities often provide a greater level of safety than 
required under the regulations. In addition, each applicant granted a 
special permit undergoes a safety fitness evaluation, further assuring 
the safety of transportation under the special permit. Special permits 
also reduce the volume and complexity of the HMR by addressing unique 
or infrequent transportation situations that would be difficult to 
accommodate in regulations intended for use by a wide range of shippers 
and carriers.
    The procedures governing the application, issuance, modification, 
and termination of special permits are found at Subpart B of 49 CFR 
Part 107 (see Sec. Sec.  107.101-107.127). As currently specified in 
Sec.  107.105(c), an application must include the following information 
that is relevant to the special permit proposal: (1) A citation of the 
specific regulation from which the applicant seeks relief; (2) 
specification of the proposed mode or modes of transportation; (3) a 
detailed description of the proposed special permit (e.g., alternative 
packaging, test, procedure or activity) including, as appropriate, 
written descriptions, drawings, flow charts, plans and other supporting 
documents; (4) a specification of the proposed duration or schedule of 
events for which the special permit is sought; (5) a statement 
outlining the applicant's basis for seeking relief from compliance with 
the specified regulations and, if the special permit is requested for a 
fixed period, a description of how compliance will be achieved at the 
end of that period; (6) if the applicant seeks emergency processing 
specified in Sec.  107.117, a statement of supporting facts and 
reasons; (7) identification and description of the hazardous materials 
planned for transportation under the special permit; (8) description of 
each packaging, including specification or special permit number, as 
applicable, to be used in conjunction with the requested special 
permit; (9) for alternative packagings, documentation of quality 
assurance controls, package design, manufacture, performance test 
criteria, in-service performance and service-life limitations; and (10) 
when a Class 1 material is forbidden for transportation by aircraft 
except under a special permit (see Columns 9A and 9B in the table in 49 
CFR 172.101), certification by an applicant for a special permit to 
transport such Class 1 material on passenger-carrying or cargo-only 
aircraft with a maximum certificated takeoff weight of less than 12,500 
pounds that no person within the categories listed in 18 U.S.C. 842(i) 
will participate in the transportation of the Class 1 material.
    In addition, the applicant must demonstrate that a special permit 
achieves a level of safety at least equal to that required by 
regulation or, if the required safety level does not exist, that the 
special permit is consistent with the public interest. To this end, at 
a minimum, the application must include: (1) Information on shipping 
and incident history and experience relating to the application; (2) 
identification of increased risks to safety or property that may result 
if the special permit is granted and a description of measures that 
will be taken to mitigate that risk; and (3) analyses, data, or test 
results demonstrating that the level of safety expected under the 
special permit is equal to the level of safety achieved by the 
regulation from which the applicant seeks relief.
    PHMSA independently reviews and evaluates the information provided 
in the special permit application to determine whether the special 
permit will achieve an equal level of safety as provided by the HMR or, 
if a required level of safety does not exist, that the special permit 
is consistent with the public interest. This review includes a 
technical analysis of the alternative proposed in the application, an

[[Page 455]]

evaluation of the past compliance history of the applicant (including 
incident history, enforcement actions, etc.), and coordination, as 
applicable, with the Federal Motor Carrier Safety Administration 
(FMCSA), Federal Railroad Administration (FRA), Federal Aviation 
Administration (FAA), and the U.S. Coast Guard to gather additional 
information relevant to the application and ensure the agency's 
concurrence with PHMSA's conclusions.

II. Notice of Proposed Rulemaking

    On July 27, 2010, PHMSA published a notice of proposed rulemaking 
(NPRM; 75 FR 43898) proposing to revise its procedures for applying for 
a special permit to require an applicant to provide sufficient 
information about its operations to enable the agency to evaluate the 
applicant's fitness and the safety impact of operations that would be 
authorized in the special permit. In addition, PHMSA also proposed to 
provide an on-line application option.

III. Overview of Amendments

    In this final rule, PHMSA is revising the special permits 
application procedures by clarifying existing requirements and 
requiring additional, more detailed information to enable the agency to 
strengthen its oversight of the special permits program. The revisions 
to the application procedures will allow PHMSA to more effectively 
assess the level of safety that will be achieved under a special 
permit. The revisions will also enable PHMSA to better evaluate the 
fitness of an applicant, including its ability to safely conduct the 
operations that may be authorized under a special permit. The 
additional information will further enhance PHMSA's ability to monitor 
operations conducted under a special permit and to take corrective 
actions if necessary to ensure safety. In addition, PHMSA is removing 
the word ``exemption'' from Part 107 and from the definition of a 
``special permit'' in Sec.  107.1, Definitions, and Sec.  171.8, 
Definitions and Abbreviation because the term is inaccurate. Further, 
Sec.  107.1 is being revised following the publication of a final rule 
entitled ``Hazardous Materials: Incorporation of Special Permits Into 
Regulations,'' published on May 14, 2010 (75 FR 27205) under Docket No. 
PHMSA-2009-0289 (HM-233A). The May 14, 2010 final rule revised the 
definition for ``special permit'' in 49 CFR part 107 to permit the 
Associate Administrator of Hazardous Materials Safety to designate 
signature authority at the Office Director level. The same revision to 
the definition for ``special permit'' was made in Sec.  171.8. Both 
revisions are reflected in this final rule.
    Finally, to increase flexibility and reduce the paperwork burden on 
applicants, in this final rule, PHMSA is implementing an on-line 
application capability for special permits, and is authorizing 
electronic service for several administrative practices and procedures.

IV. Discussion of Comments

    In response to the July 27, 2010 Notice of Proposed Rulemaking, 
PHMSA received comments from the following individuals and 
organizations:

Air Products
American Coatings Association
American Trucking Associations
Association of American Railroads
Association of HAZMAT Shippers
The Chlorine Institute
Commercial Vehicle Safety Alliance
Council on Safe Transportation of Hazardous Articles
Dangerous Goods Advisory Council
DELPHI
Gas and Welding Distributors Association
Industrial Packing Alliance of North America
Institute of Makers of Explosives
Matheson
National Propane Gas Association
Norris Cylinders
Northern Air Cargo
PPG Industries
Radiopharmaceutical Shippers and Carriers Conference
Stericycle, Inc.
Veolia Environmental Services

    Most commenters express support for the Department's efforts to 
revise the procedures for applying for a special permit and allow an 
option for on-line application. However, many commenters question the 
justification for PHMSA's proposals to require additional data 
requirements such as the DUNS number, name of the company CEO, and 
known locations of where a special permit will be used. We address 
these comments under the heading entitled ``Section-by-Section Review'' 
in this rule. In addition, PHMSA also received three requests to extend 
the period to allow for the public to submit comments. Further, we 
received comments pertaining to fitness determinations discussed at a 
public meeting held at DOT headquarters on August 8, 2010. However, 
these comments are beyond the scope of this rulemaking and are not 
being addressed in this rulemaking.

V. Section-by-Section Review

    Following is a section-by-section review of the amendments in this 
final rule.

Part 105

Section 105.35
    Section 105.35 specifies the methods by which PHMSA may serve 
documents during the course of its proceedings, such as registered 
mail, certified mail, or publication in the Federal Register. In an 
effort to provide an additional alternative to these methods, in the 
NPRM, PHMSA proposed adding a new paragraph (a)(4) to authorize 
electronic service if consented to in writing by the party to be 
served, and electronic service for all special permit and approval 
actions. PHMSA received comments from the Institute for Makers of 
Explosives (IME) and the American Truckers Associations (ATA) 
supporting the incorporation of electronic filing for special permit 
applications. PHMSA did not receive any comments opposing this 
requirement. Therefore, we are adopting this requirement as proposed.

Part 107

Section 107.105
    Section 107.105 specifies the requirements for submitting an 
application for a special permit or a modification of a special permit. 
In the NPRM, we proposed several revisions pertaining to the 
application of modification of a special permit that would affect this 
section. For instance, to provide additional clarification, we proposed 
to revise paragraph (a) to require that all supporting documentation be 
written in English. PHMSA received no adverse comments to this proposed 
requirement, and is adopting this revision as proposed.
    PHMSA proposed to revise paragraph (a)(1) of this section to 
require a table of contents be included in the application and to 
remove the requirement that applications must be submitted in 
duplicate. PHMSA received comments from PPG Industries, Dangerous Goods 
Advisory Council (DGAC), COSTHA, American Coatings Association, and 
DELPHI opposing the requirement to include a table of contents with a 
special permit application. One commenter suggests requiring a table of 
contents only for applications greater than 10 pages, while other 
commenters suggest replacing the table of contents with a checklist. 
While PHMSA appreciates the suggested alternatives, we believe a table 
of contents is the most effective tool for providing an efficient 
review of special permit applications, especially during the fitness 
review process, and is therefore adopting this revision as proposed.
    In paragraph (a)(1)(iii), PHMSA proposed to provide the option for

[[Page 456]]

applicants to submit applications on-line through the PHMSA Web site. 
PHMSA received comments from Veolia Environmental Services, IME, ATA, 
and COSTHA in support of providing applicants the option of submitting 
special permit applications on-line. PHMSA did not receive any comments 
opposing this requirement. Therefore, this requirement is being adopted 
as proposed.
    In paragraph (a)(2) PHMSA proposed to request additional 
information about the applicant, including the physical address(es) of 
all known locations where the applicant will use the special permit, a 
point of contact for information about the special permit, the name of 
the company president or Chief Executive Officer (CEO), and a Dun and 
Bradstreet Data Universal Numbering System (D-U-N-S) identifier. PHMSA 
received comments from Veolia Environmental Services, PPG Industries, 
DGAC, IME, ATA, Norris Cylinders, COSTHA, Northern Air Caro, 
Association of Hazmat Shippers, American Coatings Association, 
Radiopharmaceutical Shippers and Carriers Conference (RSCC), Stericycle 
Inc., DELPHI, Association of American Railroads, Matheson, and Air 
Products objecting to some or all of these requirements. Many of these 
commenters oppose requiring applicants to list the physical addressees 
of all known locations where the special permit would be used, stating 
that it would be impossible for applicants to correctly identify all of 
the locations where a special permit might be utilized. Other 
commenters express concern that such a list of known locations could 
number in the hundreds or thousands. We reiterate that our intention is 
to conduct as thorough a fitness evaluation of a company as possible. 
However, we acknowledge that all future locations may not be known at 
the time of the application. Therefore, for clarification, we stress 
that we are requiring applicants to report all known facilities that 
would use the special permit at the time of application. In addition, 
commenters generally did not believe that providing PHMSA with the name 
of the company CEO and a DUNS number should be necessary when applying 
for a special permit. We disagree. PHMSA believes that requiring the 
name of the company CEO and the DUNS number is necessary to ensure the 
proper identification and a thorough fitness evaluation of the 
location(s) where the special permit would be used. In addition, COSTHA 
recommends that PHMSA use the Federal taxpayer ID number in lieu of a 
DUNS number. PHMSA notes that the Federal taxpayer ID is often a 
person's social security number, which could present unintended 
consequences such as identify theft for companies, especially small 
businesses. Therefore, PHMSA is incorporating this requirement as 
proposed.
    For clarification, we editorially revised the language in paragraph 
(a)(3) to specify that if the applicant is not a resident of the United 
States, the applicant must identify and designate an agent for service 
in accordance with Sec.  105.40.
    In paragraph (a)(4), for a manufacturing special permit, PHMSA 
proposed to require the street address of each of the facilities of the 
applicant where manufacturing under the special permit would occur, 
and, if applicable, the symbol of the packaging manufacturer (``M'' 
number). PHMSA did not receive any comments opposing this requirement. 
Therefore, we are adopting this revision as proposed.
    PHMSA proposed adding a new paragraph (a)(5) to require an 
applicant who must register in accordance with Subpart F or G of Part 
107 to provide its registration number or the name of the company to 
which the registration number is assigned if different from the 
applicant. PHMSA also proposed to require applicants to provide a 
statement that the registration requirements are not required when 
these requirements do not apply. PHMSA received comments from the 
Association of HAZMAT shippers and RSCC objecting to this requirement. 
The commenter states that requiring a registration number for a special 
permit application could encourage companies already out of compliance 
with the registration requirement to decide against applying for a 
special permit. The RSCC states that whether a company is registered 
should have no bearing on applying for a special permit. While PHMSA 
acknowledges the arguments of the commenters, we believe that the 
requirement to include a registration number or statement that the 
applicant does not require registration will provide PHMSA with the 
necessary information to determine if the applicant is fit to ship 
hazardous materials under a special permit. In addition, the current 
requirement in Sec.  107.503(b) states that no person may engage in the 
manufacture, assembly, certification, inspection, or repair of a cargo 
tank vehicle under the terms of a DOT special permit unless the person 
is registered with PHMSA. PHMSA believes that the vast majority of the 
hazmat community is diligent in complying with the hazmat registration 
requirement and providing a registration number or statement that the 
applicant does not require registration at the time of the special 
permit application has a minimal impact. Therefore, PHMSA is adopting 
this revision as proposed.
    In the NPRM, PHMSA proposed to revise, re-designate, and add 
several new paragraphs to paragraphs (c) and (d) of Sec.  107.105 to 
ensure that a special permit application includes sufficient 
information on shipping and incident history, experience, and increased 
safety risk relating to the initial application, modification or 
renewal of a special permit. Specifically, in paragraph (c)(2), PHMSA 
proposed to require a description of all operational controls that 
would apply to the mode or modes of transportation that would be 
utilized under the special permit. For example, for a shipment of 
ammonia solutions, the operational controls may include the driver of a 
transport vehicle and the consignee being trained not to enter the 
transport vehicle until the ammonia vapors have dissipated. PHMSA 
received comments from IME and the American Coatings Association 
objecting to this proposal. IME expresses concern that the requirement 
for a description of operational controls for all modes of 
transportation was too vague. The American Coatings Association states 
that the proposed requirement would be unfairly burdensome because the 
information requested could potentially include a significant 
investment of time to complete. While PHMSA understands the concerns of 
the commenters, current regulations require operational controls be 
established when applying for a special permit. The purpose of this 
requirement is to provide us with further information so that we can 
determine whether the proposed special permit meets the safety 
equivalency standard set out in paragraph (d). Therefore, we are 
incorporating this requirement as proposed.
    PHMSA proposed to revise paragraph (c)(3) to require that 
alternative hazard communication, including labeling and marking 
requirements, be included in the detailed description of the proposed 
special permit. PHMSA received comments from the Association of HAZMAT 
Shippers and the American Coatings Association objecting to these 
requirements. Specifically, both commenters indicate that such 
requirements are already covered in part 172 of the HMR. While PHMSA 
agrees that these requirements can be found in other sections of the 
HMR, we believe it is necessary to require this information with 
respect to specific special permit applications to ensure

[[Page 457]]

that these shipments are being transported in a safe manner. Therefore, 
PHMSA is incorporating this requirement as proposed.
    PHMSA proposed to revise paragraph (c)(5) to require, for 
transportation by air, a statement outlining the reason(s) the 
hazardous material would be transported by air if other modes are 
available. PHMSA received comments from PPG Industries, DGAC, IME, 
COSTHA, Association of HAZMAT Shippers, RSCC, and DELPHI objecting with 
these proposed requirements. Commenters reasoned that if PHMSA believes 
a shipment is safe for transportation under one mode, it should be 
considered safe for all modes. Other commenters expressed concern that 
they would no longer be able to make shipments by air. We disagree. We 
believe that the transportation of hazardous materials by air presents 
unique circumstances not found in transportation by rail, highway, or 
water, and note that the HMR contain several air-specific requirements. 
In addition, we emphasize that this requirement as proposed requests a 
justification from applicants for shipments under a special permit by 
air, but does not prohibit such shipments. Therefore, in this final 
rule, we are adopting this requirement as proposed.
    PHMSA proposed to revise paragraph (c)(7) to require the quantity 
of each hazardous material be indicated in addition to the 
identification and description of the hazardous materials planned for 
transportation under the special permit. PHMSA received comments from 
PPG Industries, DGAC, American Coatings Association, and Stericycle 
Inc. objecting to this proposed requirement. Commenters note that any 
such quantity would be an estimate, and potentially inaccurate. PHMSA 
acknowledges that the specific quantity of each hazardous material 
planned for transportation under a special permit may not be known 
during the application process. However, we believe an estimate based 
on the applicant's best available information will enable PHMSA to 
better evaluate the applicant's ability to safely transport hazardous 
materials under the conditions of the special permit. Therefore, in 
this final rule, PHMSA is adopting this requirement as proposed with 
the additional clarification that an estimate of the quantity of each 
shipment of the hazardous material planned for transportation is 
required.
    In addition, PHMSA proposed to re-designate paragraph (c)(10) as 
new paragraph (c)(13), and add new paragraphs (c)(10), (c)(11) and 
(c)(12) to require the applicant to submit: (1) An estimate of the 
number of operations expected to be conducted or the number of 
shipments expected to be transported under the special permit; (2) an 
estimate of the number of packagings expected to be manufactured under 
the special permit; and (3) a statement as to whether the special 
permit being sought is related to a compliance review, inspection 
activity, or enforcement action. PHMSA received comments from DGAC, 
IME, ATA, COSTHA, Association of HAZMAT Shippers, RSCC, and Stericycle 
Inc. objecting to the proposed requirement that applicants estimate the 
number of shipments expected to be transported under a special permit. 
Some commenters believe that PHMSA failed to justify its request for 
the quantity of hazardous materials or operations expected to be 
conducted under a special permit. Other commenters expressed concern 
that estimating the quantity of hazardous materials to be shipped under 
a special permit will be too difficult to provide a reasonable 
estimate. We disagree. For clarification, we expect applicants to 
provide an estimate of the number of shipments based on the best 
available knowledge, and are adopting this requirement as proposed.
    In paragraph (c)(11) PHMSA proposed to require an estimate of the 
number of packagings expected to be manufactured under the special 
permit. PHMSA received comments on this proposal from IME and COSTHA. 
IME states that it did not object to quantifying the number of packages 
manufactured under a special permit, but acknowledged that it would be 
an estimate. COSTHA states that there would be very little value in 
PHMSA knowing the number of packages manufactured under a special 
permit, and a true estimate would be very difficult to determine. As 
previously stated, PHMSA expects applicants to provide an estimate of 
the number of shipments based on the best available knowledge at the 
time the application is submitted. Therefore, PHMSA is adopting this 
requirement as proposed.
    In paragraph (c)(12) PHMSA proposed to require a statement as to 
whether the special permit being sought is related to a compliance 
review, inspection activity, or enforcement action. PHMSA received 
comments from IME, COSTHA, and the American Coatings Association 
objecting to this requirement. IME states that it is unclear how PHMSA 
is going to use this information. COSTHA indicates a belief that false 
allegations against a company could preclude it from obtaining a 
special permit. PHMSA believes it is relevant whether the applicant is 
applying for the special permit in response to a compliance review, 
inspection activity or enforcement action, and that this information 
will assist us in the determination of the fitness of an applicant and 
will help us to ensure that compliance data pertaining to an applicant 
is accurate. Therefore, we are adopting this requirement as proposed.
    In paragraph (d)(3)(i), PHMSA proposed to add the phrase ``failure 
mode and effect analysis (FMEA)'' as an example of documentation that 
is acceptable to substantiate that the proposed alternative sought in 
the special permit application will achieve a level of safety that is 
at least equal to that required by the regulation from which the 
applicant is requesting relief. PHMSA received comments from COSTHA, 
Northern Air Cargo, Association of HAZMAT Shippers, American Coatings 
Association, DGAC, ATA and Stericycle Inc. expressing concerns about 
the requirement to conduct a FMEA. For clarification, we stress that we 
are not requiring applicants to conduct a FMEA. Rather, our intention 
is to require that applicants substantiate the required level of safety 
by using a risk assessment, with applicable analyses, data or test 
results. We provided a FMEA as an example of a tool that can be used in 
order to demonstrate such an equivalent level of safety, but emphasize 
that it is not to be construed as a requirement. In addition, as 
discussed in the NPRM, we believe it is essential to understand and 
analyze the risks of a special permit application, and the analysis 
should include potential failure modes and consequences. For example, a 
special permit application that includes Part 178 requirements for 
design and manufacturing of DOT specification cylinders should include 
an analysis that addresses potential failure of a cylinder due to 
excessive hoop stress, fatigue, and corrosion. We believe the applicant 
requesting a special permit is the most suitable party to perform a 
``failure mode and effect analysis (FMEA)'' or other risk assessment 
that identifies the associated risks and ways to control the risk for a 
requested special permit. Therefore, PHMSA is incorporating this 
requirement as proposed.
Section 107.107
    In Sec.  107.107, PHMSA proposed to revise the requirements for 
submitting an application for party status to an application or an 
existing special permit. In paragraph (a), PHMSA proposed to 
editorially revise the sentence ``Any person eligible to apply

[[Page 458]]

for a special permit may apply to be made a party'' by removing the 
word ``made.''
    In paragraph (b)(3), PHMSA proposed to require applicants to submit 
the same information that would be required from an applicant for a 
special permit, including the physical address(es) of all known 
locations where the special permit would be used, a point of contact, 
the name of the company president or CEO, and DUNS identifier. For 
clarification, we editorially revised the language in paragraph (b)(4) 
to specify that if the applicant is not a resident of the United 
States, the applicant must identify and designate an agent for service 
in accordance with Sec.  105.40. PHMSA also proposed to add a new 
(b)(6) to require a certification that the applicant has not previously 
been granted party status to the special permit. If the applicant has 
previously been granted party status, the applicant would follow 
renewal procedures as specified in Sec.  107.109. PHMSA received 
comments from PPG Industries, American Coatings Association, and 
Stericycle Inc. repeating the previous concerns from the comments to 
the proposed requirements for Sec.  107.105 regarding the requirement 
to provide the CEO name and DUNS number. Stericycle Inc. expresses 
concern that revealing a list of all known locations where a special 
permit will be used would require them to reveal proprietary 
information. We note that the HMR already has procedures in Sec.  
105.30(a) for applicants who wish to protect proprietary information. 
Under this section, information is submitted to PHMSA with 
``confidential'' written on each page along with an explanation on why 
the information should remain confidential. PHMSA then notifies the 
applicant on whether or not its information will be treated as 
confidential. PHMSA believes that requiring this information is 
essential to ensuring that an applicant is fit to conduct business 
under the guidelines of a special permit and is adopting this 
requirement as proposed.
Section 107.109
    Section 107.109 of the HMR specifies the requirements for 
submitting an application for renewal of a special permit or party 
status to a special permit. In paragraph (a)(3), PHMSA proposed to 
require the applicant to submit the same information that would be 
required from an applicant for the special permit including the 
applicant's physical address(es) of all known new locations not 
previously identified in the application where the special permit will 
be used and all locations not previously identified where the special 
permit was used, a point of contact, the name of the company president 
or CEO and a DUNS identifier. PHMSA received comments from DGAC, Norris 
Cylinder, American Coatings Association, and Stericycle Inc. again 
questioning the proposed requirement that applicants report all known 
locations where a special permit would be used. Commenters note this 
proposed revision would require some applicants to list hundreds, or 
perhaps thousands, of locations where the special permit will be used. 
We addressed similar comments pertaining to this issue in the 
discussion found under Sec.  107.105. However, we reiterate the 
importance for applicants to list to the best of their knowledge all 
known locations using the best available information when applying for 
a special permit. Therefore, PHMSA is incorporating this requirement as 
proposed.
    In paragraph (a)(4), for clarification, PHMSA provides examples of 
supporting documentation that may require updating when an application 
for renewal of the special permit is submitted. PHMSA did not receive 
any comments opposing this requirement. Therefore, in this final rule, 
we are adopting this requirement as proposed.
    In paragraph (a)(5), PHMSA proposed to add the term ``operational 
experience'' to the current requirement that a statement be included in 
the application describing all relevant shipping and incident 
experience of which the applicant is aware in connection with the 
special permit since its issuance or most recent renewal. The American 
Coatings Association objects to this proposal stating that the current 
application process already captures information on incidents, and the 
additional information requirement would create a burden. PHMSA 
believes it is imperative for the applicant to provide information 
about operational controls in order to better assess that such 
operational controls are in place and are being adhered to as we make a 
determination whether the applicant can provide an equivalent level of 
safety. Therefore, in this final rule, we are incorporating this 
revision as proposed.
    In the NPRM, PHMSA proposed to add new paragraphs (a)(7) and (a)(8) 
to this section. In paragraph (a)(7), PHMSA proposed to require the 
applicant to submit additional information for a renewal that is 
requested after the expiration date of the special permit. 
Specifically, we proposed to require: (1) The reason the special permit 
authorization was allowed to expire; (2) a certification statement that 
no shipments were transported after the expiration date of the special 
permit, or a statement describing any transportation under the terms of 
the special permit after the expiration date, if applicable; and (3) a 
statement describing the action(s) the applicant will take to ensure 
future renewal is requested before the expiration date. DGAC objects to 
the proposed requirement stating its belief that such information 
violates the Paperwork Reduction Act (PRA). We disagree. PHMSA 
carefully reviewed this proposed requirement and determined that such a 
scenario would likely be an infrequent occurrence and, therefore, would 
require a minimal amount of time to add the required statements when it 
does occur. In addition, we adjusted the information collection burden 
to account for such an occasion and included it in the calculations 
when a revised information collection was submitted to the Office of 
Management and Budget (OMB). Therefore, in this final rule, PHMSA is 
adopting this requirement as proposed.
    In paragraph (a)(8), PHMSA proposed to require applicants to 
provide a specific justification why the special permit should be 
renewed if no operations or shipments have been made since the issuance 
or renewal of the special permit. DGAC and Northern Air cargo objected 
to including this requirement, with DGAC claiming that the requirement 
was an unnecessary information collection under the PRA. As previously 
stated, PHMSA reviewed this proposed requirement for PRA implications 
and determined that such a scenario would also be an infrequent 
occurrence and would require a minimal amount of time on the part of 
the applicant when it does occur. Accordingly, we adjusted the 
information collection burden to account for such an occurrence when a 
revised information collection was submitted to OMB. Therefore, in this 
final rule, PHMSA is adopting this requirement as proposed.
Sections 107.109; 107.113; 107.117; 107.121; 107.123; 107.125; and 
171.8
    In the NPRM, PHMSA proposed to revise certain sections in Part 
107--``Hazardous Materials Program Procedures'' to authorize the use of 
``electronic service'' or ``electronic means'' to provide greater 
flexibility in the procedures for the issuance, modification, and 
termination of special permits. The affected sections are as follows:

Sec.  107.113 Application processing and evaluation.

[[Page 459]]

Sec.  107.121 Modification, suspension or termination of special 
permit or grant of party status.
Sec.  107.123 Reconsideration.
Sec.  107.125 Appeal.

    Section 107.113 specifies the requirements for the application and 
processing of: (1) An application for a special permit; (2) 
modification of a special permit, (3) party to a special permit, and 
(4) renewal of a special permit. In the NPRM, PHMSA proposed to require 
that, during the processing and evaluation of an application, the 
Associate Administrator may request additional information from the 
applicant, including during an on-site review. To enable the agency to 
better evaluate the applicant's fitness and the safety impact of 
operations that would be authorized under the special permit, we are 
also specifying that a failure on the part of the applicant to 
cooperate with an on-site review may result in the application being 
deemed incomplete and subsequently being denied. PHMSA received 
comments from IME and the American Coatings Association expressing 
concerns about this proposed requirement. IME thinks that the 
requirement is unclear. The American Coatings Association notes that 
this requirement is a new element in the application process that has 
not been submitted for notice and comment under the Administrative 
Procedure Act (APA). PHMSA disagrees that this process is a violation 
of the APA because it solicited comment on the provision in the NPRM, 
as required by the APA, and because it already retains the authority to 
conduct inspections under Sec.  107 during the special permit 
application process. This requirement is being included under this 
section to increase applicant's awareness of the ability of PHMSA to 
conduct inspections specified under Sec.  107. PHMSA did not receive 
any additional comments opposing this requirement, and is adopting this 
requirement as proposed.
    Section 107.117 specifies the requirements for submitting an 
application for emergency processing. In paragraph (d)(5), PHMSA is 
updating the telephone number for the Chief, Hazardous Materials 
Standards Division, Office of Operating and Environmental Standards, 
U.S. Coast Guard, U.S. Department of Homeland Security, Washington, DC 
for an application for water transportation as the initial mode of 
transport submitted on an emergency basis. PHMSA did not receive any 
comments opposing this requirement and is adopting this requirement as 
proposed.
    PHMSA also proposed to remove the word ``exemption(s)'' from 
various sections in Part 107 and from the definition of a ``special 
permit'' in Sec.  171.8, Definitions and Abbreviation. These amendments 
are necessary because use of the term ``exemption(s)'' has been 
replaced with ``special permit(s)'' following the publication of a 
final rule entitled ``Hazardous Materials: Incorporation of Statutorily 
Mandated Revisions to the Hazardous Materials Regulations,'' published 
on December 9, 2005 (70 FR 73156) under Docket No. PHMSA-2005-22208 
(HM-240). The December 9, 2005 final rule changed the term 
``exemption'' to ``special permit.'' COSTHA objects to the removal of 
the word ``exemptions'' from the regulations because the term is still 
used in international regulation and could cause confusion. PHSMA 
disagrees with this comment and believes that removing the word 
``exemption'' from the HMR is needed to keep terminology consistent 
within the HMR. Therefore PHMSA is incorporating this revision as 
proposed.
    The affected sections are as follows:

Sec.  107.109
Sec.  107.113
Sec.  107.121
Sec.  107.123
Sec.  171.8

VI. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of 49 U.S.C. 
5103(b), which authorizes the Secretary to prescribe regulations for 
the safe transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce. 49 U.S.C. 5117(a) 
authorizes the Secretary of Transportation to issue a special permit 
from a regulation prescribed in Sec. Sec.  5103(b), 5104, 5110, or 5112 
of the Federal hazardous materials transportation law to a person 
transporting, or causing to be transported, hazardous material in a way 
that achieves a safety level at least equal to the safety level 
required under the law, or consistent with the public interest, if a 
required safety level does not exist. The final rule amends the 
regulations to revise the special permit application requirements and 
provide an on-line capability for applications.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action 
under section 3(f) of Executive Order 12866 and, therefore, was not 
reviewed by the Office of Management and Budget (OMB). This final rule 
is not considered a significant rule under the Regulatory Policies and 
Procedures of the Department of Transportation (44 FR 11034). In this 
final rule, PHMSA is revising the special permits application 
procedures by requiring additional, more detailed information to enable 
the agency to strengthen its oversight of the special permits program. 
PHMSA recognizes there may be additional costs related to the proposals 
to require additional information in the special permits application 
procedures. However, we believe these costs are minimized by the 
proposals to allow for electronic means for all special permits and 
approvals actions, and the proposals to authorize electronic means as 
an alternative to written means of communication. Taken together, the 
provisions of this final rule will promote the continued safe 
transportation of hazardous materials while reducing paperwork burden 
on applicants and administrative costs for the agency.

C. Executive Order 13132

    This final rule was analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism''). This 
final rule would preempt State, local and Indian Tribe requirements but 
does not contain any regulation that has substantial direct effects on 
the States, the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of governments. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply. Federal hazardous 
material transportation law, 49 U.S.C. 5101-5128, contains an express 
preemption provision (49 U.S.C. 5125(b)) preempting State, local and 
Indian Tribe requirements on certain covered subjects.

D. Executive Order 13175

    This final rule was analyzed in accordance with the principles and 
criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final rule 
does not have Tribal implications and does not impose substantial 
direct compliance costs on Indian Tribal governments, the funding and 
consultation requirements of Executive Order 13175 do not apply.

[[Page 460]]

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each 
agency to analyze regulations and assess their impact on small 
businesses and other small entities to determine whether the rule is 
expected to have a significant impact on a substantial number of small 
entities. This final rule proposes revisions to current special permit 
application requirements that may increase the time that would be 
required to complete such an application. Although many of the 
applicants may be small businesses or other small entities, PHMSA 
believes that the addition of an on-line application option will 
significantly reduce the burden imposed by the application 
requirements. Therefore, PHMSA certifies that the provisions of this 
final rule would not have a significant economic impact on a 
substantial number of small entities.

F. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$141.3 million or more, in the aggregate, to any of the following: 
State, local, or Native American Tribal governments, or the private 
sector.

G. Paperwork Reduction Act

    PHMSA has an approved information collection under OMB Control 
Number 2137-0051, ``Rulemaking, Special Permits, and Preemption 
Requirements.'' This final rule may result in a slight increase in the 
annual burden and costs under this information collection due to 
proposed changes to require an applicant to provide additional 
information about its operations to enable the agency to evaluate the 
applicant's fitness and the safety impact of operations that would be 
authorized in the special permit. Much of this increased burden will be 
minimized because of changes to allow for electronic means for all 
special permits and approvals actions, and to authorize electronic 
means as an alternative to written means of communication.
    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to an information collection unless it has been approved by OMB 
and displays a valid OMB control number. Section 1320.8(d), Title 5, 
Code of Federal Regulations requires that PHMSA provide interested 
members of the public and affected agencies an opportunity to comment 
on information and recordkeeping requests. PHMSA developed burden 
estimates to reflect changes in this final rule and submitted a revised 
information collection request to OMB for approval based on the 
requirements in this final rule. PHMSA estimates that the additional 
information collection and recordkeeping burden in this rule will be as 
follows:
    OMB Control No. 2137-0051:
    Affected Number of Annual Respondents: 3,500.
    Affected Number of Annual Responses: 3,500.
    Net Increase in Annual Burden Hours: 865.
    Net Increase in Annual Burden Costs: $34,600.
    Requests for a copy of this information collection should be 
directed to Deborah Boothe or T. Glenn Foster, Standards and Rulemaking 
Division (PHH-11), Pipeline and Hazardous Materials Safety 
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001, 
Telephone (202) 366-8553.

H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number contained in the heading 
of this document may be used to cross-reference this action with the 
Unified Agenda.

I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), requires Federal agencies to consider the 
consequences of major Federal actions and prepare a detailed statement 
on actions significantly affecting the quality of the human 
environment. Given that this rulemaking requires additional, more 
detailed information from applicants and strengthen agency oversight, 
this change in regulation will increase safety and environmental 
protections. There are no significant environmental impacts associated 
with this final rule.

List of Subjects

49 CFR Part 105

    Administrative practice and procedure, Hazardous materials 
transportation.

49 CFR Part 107

    Administrative practice and procedure, Hazardous materials 
transportation, Penalties, Reporting and recordkeeping requirements.

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

0
In consideration of the foregoing, 49 CFR part 105, 49 CFR part 107, 
and 49 CFR part 171 are amended as follows:

PART 105--HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL 
PROCEDURES

0
1. The authority citation for part 105 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.


0
2. In Sec.  105.35, paragraph (a)(4) is added to read as follows:


Sec.  105.35  Serving documents in PHMSA proceedings.

    (a) * * *
* * * * *
    (4) Electronic service.
    (i) Service by electronic means if consented to in writing by the 
party to be served.
    (ii) For all special permits and approvals actions, electronic 
service is authorized.
* * * * *

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

0
3. The authority citation for part 107 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 4 
(28 U.S.C. 2461 note); Pub. L. 104-121 sections 212-213; Pub. L. 
104-134 section 31001; 49 CFR 1.45, 1.53.


0
4. In Sec.  107.1, the definition for ``special permit'' is revised to 
read as follows:


Sec.  107.1  Definitions.

* * * * *
    Special permit means a document issued by the Associate 
Administrator, or other designated Department official, under the 
authority of 49 U.S.C. 5117 permitting a person to perform a function 
that is not otherwise permitted under subchapters A or C of this 
chapter, or other regulations issued under 49 U.S.C. 5101 et seq. 
(e.g., Federal Motor Carrier Safety routing requirements).
* * * * *

0
5. Section 107.105 is revised to read as follows:


Sec.  107.105  Application for special permit.

    (a) General. Each application for a special permit or modification 
of a

[[Page 461]]

special permit and all supporting documents must be written in English 
and submitted for timely consideration at least 120 days before the 
requested effective date and conform to the following requirements:
    (1) The application, including a table of contents, must:
    (i) Be submitted to the Associate Administrator for Hazardous 
Materials Safety (Attention: General Approvals and Permits, PHH-31), 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, East Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590-0001;
    (ii) Be submitted with any attached supporting documentation by 
facsimile (fax) to: (202) 366-3753 or (202) 366-3308; or
    (iii) Be submitted electronically by e-mail to: 
<a href="/cdn-cgi/l/email-protection#184b687d7b717974687d6a75716c6b587c776c367f776e"><span class="__cf_email__" data-cfemail="e8bb988d8b818984988d9a85819c9ba88c879cc68f879e">[email protected]</span></a> or on-line at: http://www.phmsa.dot.gov/hazmat/regs/sp-a.
    (2) The application must state the name, mailing address, physical 
address(es) of all known locations where the special permit would be 
used, e-mail address (if available), and telephone number of the 
applicant. If the applicant is not an individual, the application must 
state the company name, mailing address, physical address(es) of all 
known locations where the special permit would be used, e-mail address 
(if available), and telephone number of an individual designated as the 
point of contact for the applicant for all purposes related to the 
application, the name of the company Chief Executive Officer (CEO) or 
president; and the Dun and Bradstreet Data Universal Numbering System 
(D-U-N-S) identifier.
    (3) If the applicant is not a resident of the United States, in 
addition to the information listed in paragraph (a)(2) of this section, 
the application must identify and designate an agent that is a 
permanent resident of the United States for service in accordance with 
Sec.  105.40 of this part.
    (4) For a manufacturing special permit, in addition to the 
information listed in paragraph (a)(2) of this section, the application 
must state the name and street address of each of the facilities of the 
applicant where manufacturing under the special permit will occur, and 
the symbol of the packaging manufacturer (``M'' number), if applicable.
    (5) For persons required to be registered in accordance with 
Subpart F or G of this part, in addition to the information listed in 
paragraph (a)(2) of this section, the application must provide the 
registration number or the name of the company to which the 
registration number is assigned if different from the applicant. For 
persons not required to be registered in accordance with Subpart F or G 
of this part, in addition to the information listed in paragraph (a)(2) 
of this section, the application must provide a statement indicating 
that registration is not required.
    (b) Confidential treatment. To request confidential treatment for 
information contained in the application, the applicant must comply 
with Sec.  105.30(a).
    (c) Description of special permit proposal. The application must 
include the following information that is relevant to the special 
permit proposal:
    (1) A citation of the specific regulation from which the applicant 
seeks relief;
    (2) The proposed mode or modes of transportation, including a 
description of all operational controls required;
    (3) A detailed description of the proposed special permit (e.g., 
alternative packaging, test, procedure, activity, or hazard 
communication, including marking and labeling requirements) including, 
as appropriate, written descriptions, drawings, flow charts, plans and 
other supporting documents;
    (4) A specification of the proposed duration or schedule of events 
for which the special permit is sought;
    (5) A statement outlining the applicant's basis for seeking relief 
from compliance with the specified regulations and, if the special 
permit is requested for a fixed period, a description of how compliance 
will be achieved at the end of that period. For transportation by air, 
a statement outlining the reason(s) the hazardous material is being 
transported by air if other modes are available;
    (6) If the applicant seeks emergency processing specified in Sec.  
107.117, a statement of supporting facts and reasons;
    (7) Identification and description, including an estimated quantity 
of each shipment of the hazardous materials planned for transportation 
under the special permit or;
    (8) Description of each packaging, including specification or 
special permit number, as applicable, to be used in conjunction with 
the requested special permit;
    (9) For alternative packagings, documentation of quality assurance 
controls, package design, manufacture, performance test criteria, in-
service performance and service-life limitations;
    (10) An estimate of the number of operations expected to be 
conducted or number of shipments to be transported under the special 
permit;
    (11) An estimate of the number of packagings expected to be 
manufactured under the special permit, if applicable;
    (12) A statement as to whether the special permit being sought is 
related to a compliance review, inspection activity, or enforcement 
action; and
    (13) When a Class 1 material is forbidden for transportation by 
aircraft except under a special permit (see Columns 9A and 9B in the 
table in 49 CFR 172.101), a certification from an applicant for a 
special permit to transport such Class 1 material on passenger-carrying 
or cargo-only aircraft with a maximum certificated takeoff weight of 
less than 12,500 pounds that no person within the categories listed in 
18 U.S.C. 842(i) will participate in the transportation of the Class 1 
material.
    (d) Justification of special permit proposal. The application must 
demonstrate that a special permit achieves a level of safety at least 
equal to that required by regulation, or if a required safety level 
does not exist, is consistent with the public interest. At a minimum, 
the application must provide the following:
    (1) Information describing all relevant shipping and incident 
experience of which the applicant is aware that relates to the 
application; and
    (2) A statement identifying any increased risk to safety or 
property that may result if the special permit is granted, and a 
description of the measures to be taken to address that risk; and
    (3) Either:
    (i) Substantiation, with applicable analyses, data or test results 
(e.g., failure mode and effect analysis), that the proposed alternative 
will achieve a level of safety that is at least equal to that required 
by the regulation from which the special permit is sought; or
    (ii) If the regulations do not establish a level of safety, an 
analysis that identifies each hazard, potential failure mode and the 
probability of its occurrence, and how the risks associated with each 
hazard and failure mode are controlled for the duration of an activity 
or life-cycle of a packaging.


0
6. Section 107.107 is revised to read as follows:


Sec.  107.107  Application for party status.

    (a) Any person eligible to apply for a special permit may apply to 
be a party to an application or an existing special permit, other than 
a manufacturing special permit.
    (b) Each application filed under this section must conform to the 
following requirements:--

[[Page 462]]

    (1) The application must:
    (i) Be submitted to the Associate Administrator for Hazardous 
Materials Safety (Attention: General Approvals and Permits, PHH-31), 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, East Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590-0001;
    (ii) Be submitted with any attached supporting documentation by 
facsimile (fax) to: (202) 366-3753 or (202) 366-3308; or
    (iii) Be submitted by electronically by e-mail to: 
<a href="/cdn-cgi/l/email-protection#5d0e2d383e343c312d382f3034292e1d393229733a322b"><span class="__cf_email__" data-cfemail="a2f1d2c7c1cbc3ced2c7d0cfcbd6d1e2c6cdd68cc5cdd4">[email protected]</span></a>, or on-line at: http://www.phmsa.dot.gov/hazmat/regs/sp-a.
    (2) The application must identify by number the special permit 
application or special permit to which the applicant seeks to become a 
party.
    (3) The application must state the name, mailing address, physical 
address(es) of all known locations where the special permit would be 
used, e-mail address (if available), and telephone number of the 
applicant. If the applicant is not an individual, the application must 
state the company name, mailing address, physical address(es) of all 
known locations where the special permit would be used, e-mail address 
(if available), and telephone number of an individual designated as the 
point of contact for the applicant for all purposes related to the 
application, the name of the company Chief Executive Officer (CEO) or 
president, and the Dun and Bradstreet Data Universal Numbering System 
(D-U-N-S) identifier.
    (4) If the applicant is not a resident of the United States, the 
application must identify and designate an agent that is a permanent 
resident of the United States for service in accordance with Sec.  
105.40 of part.
    (5) For a Class 1 material that is forbidden for transportation by 
aircraft except under a special permit (see Columns 9A and 9B in the 
table in 49 CFR 172.101), a certification from an applicant for party 
status to a special permit to transport such Class 1 material on 
passenger-carrying or cargo-only aircraft with a maximum certificated 
takeoff weight of less than 12,500 pounds that no person within the 
categories listed in 18 U.S.C. 842(i) will participate in the 
transportation of the Class 1 material.
    (6) The applicant must certify that the applicant has not 
previously been granted party status to the special permit. If the 
applicant has previously been granted party status, the applicant must 
follow renewal procedures as specified in Sec.  107.109.
    (c) The Associate Administrator may grant or deny an application 
for party status in the manner specified in Sec.  107.113(e) and (f) of 
this subpart.
    (d) A party to a special permit is subject to all terms of that 
special permit, including the expiration date. If a party to a special 
permit wishes to renew party status, the special permit renewal 
procedures set forth in Sec.  107.109 apply.


0
7. Section 107.109 is revised to read as follows:


Sec.  107.109  Application for renewal.

    (a) Each application for renewal of a special permit or party 
status to a special permit must conform to the following requirements:
    (1) The application must:
    (i) Be submitted to the Associate Administrator for Hazardous 
Materials Safety (Attention: General Approvals and Permits, PHH-31), 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, East Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590-0001;
    (ii) Be submitted with any attached supporting documentation 
submitted in an appropriate format by facsimile (fax) to: (202) 366-
3753 or (202) 366-3308; or
    (iii) Be submitted electronically by e-mail to: 
<a href="/cdn-cgi/l/email-protection#74270411171d1518041106191d000734101b005a131b02"><span class="__cf_email__" data-cfemail="e8bb988d8b818984988d9a85819c9ba88c879cc68f879e">[email protected]</span></a>; or on-line at: http://www.phmsa.dot.gov/hazmat/regs/sp-a.
    (2) The application must identify by number the special permit for 
which renewal is requested.
    (3) The application must state the name, mailing address, physical 
address(es) of all known new locations not previously identified in the 
application where the special permit would be used and all locations 
not previously identified where the special permit was used, e-mail 
address (if available), and telephone number of the applicant. If the 
applicant is not an individual, the application must state the name, 
mailing address, physical address(es) of all known new locations not 
previously identified in the application where the special permit would 
be used and all locations not previously identified where the special 
permit was used, e-mail address (if available), and telephone number of 
an individual designated as the point of contact for the applicant for 
all purposes related to the application, the name of the company Chief 
Executive Officer (CEO) or president, and the Dun and Bradstreet Data 
Universal Numbering System (D-U-N-S) identifier.
    (4) The application must include either a certification by the 
applicant that the original application, as it may have been updated by 
any application for renewal, remains accurate (e.g., all section 
references, shipping descriptions, etc.) and complete; or include an 
amendment to the previously submitted application as is necessary to 
update and ensure the accuracy and completeness of the application, 
with certification by the applicant that the application as amended is 
accurate and complete.
    (5) The application must include a statement describing all 
relevant operational, shipping, and incident experience of which the 
applicant is aware in connection with the special permit since its 
issuance or most recent renewal. If the applicant is aware of no 
incidents, the applicant must so certify. When known to the applicant, 
the statement must indicate the approximate number of shipments made or 
packages shipped, as applicable, and the number of shipments or 
packages involved in any loss of contents, including loss by venting 
other than as authorized in subchapter C.
    (6) When a Class 1 material is forbidden for transportation by 
aircraft, except under a special permit (see Columns 9A and 9B in the 
table in 49 CFR 172.101), an application to renew a special permit to 
transport such Class 1 material on passenger-carrying or cargo-only 
aircraft with a maximum certificated takeoff weight of less than 12,500 
pounds must certify that no person within the categories listed in 18 
U.S.C. 842(i) will participate in the transportation of the Class 1 
material.
    (7) If the renewal is requested after the expiration date of the 
special permit, the following information is required:
    (i) The reason the special permit authorization was allowed to 
expire;
    (ii) A certification statement that no shipments were transported 
after the expiration date of the special permit, or a statement 
describing any transportation under the terms of the special permit 
after the expiration date, if applicable; and
    (iii) A statement describing the action(s) the applicant will take 
to ensure future renewal is requested before the expiration date.
    (8) If no operations or shipments have been made since the issuance 
or renewal of the special permit, the applicant must provide specific 
justification as to why the special permit should be renewed.
    (b) If, at least 60 days before an existing special permit expires 
the holder files an application for renewal that is complete and 
conforms to the requirements of this section, the special permit will 
not expire until final

[[Page 463]]

administrative action on the application for renewal has been taken.


0
8. In Sec.  107.113, paragraphs (a), (d), (f)(5), (g), and (h) are 
revised to read as follows:


Sec.  107.113  Application processing and evaluation.

    (a) The Associate Administrator reviews an application for a 
special permit, modification of a special permit, party to a special 
permit, or renewal of a special permit to determine if it is complete 
and conforms with the requirements of this subpart. This determination 
will be made within 30 days of receipt of the application for a special 
permit, modification of a special permit, or party to a special permit, 
and within 15 days of receipt of an application for renewal of a 
special permit. If an application is determined to be incomplete, the 
applicant is informed of the deficiency.
* * * * *
    (d) During the processing and evaluation of an application, the 
Associate Administrator may conduct an on-site review or request 
additional information from the applicant. A failure to cooperate with 
an on-site review may result in the application being deemed incomplete 
and subsequently being denied. If the applicant does not respond to a 
written or electronic request for additional information within 30 days 
of the date the request was received, the application may be deemed 
incomplete and denied. However, if the applicant responds in writing or 
by electronic means within the 30-day period requesting an additional 
30 days within which it will gather the requested information, the 
Associate Administrator may grant the 30-day extension.
* * * * *
    (f) * * *
    (5) The applicant is fit to conduct the activity authorized by the 
special permit. This assessment may be based on information in the 
application, prior compliance history of the applicant, and other 
information available to the Associate Administrator.
* * * * *
    (g) An applicant is notified in writing or by electronic means 
whether the application is granted or denied. A denial contains a brief 
statement of reasons.
    (h) The initial special permit terminates according to its terms 
or, if not otherwise specified, 24 months from the date of issuance. A 
subsequent renewal of a special permit terminates according to its 
terms or, if not otherwise specified, 48 months after the date of 
issuance. A grant of party status to a special permit, unless otherwise 
stated, terminates on the date that the special permit expires.
* * * * *


0
9. In Sec.  107.117, paragraph (d)(5) is revised to read as follows:


Sec.  107.117  Emergency processing.

* * * * *
    (d) * * *
    (5) Water Transportation: Chief, Hazardous Materials Standards 
Division, Office of Operating and Environmental Standards, U.S. Coast 
Guard, U.S. Department of Homeland Security, Washington, DC 20593-0001; 
202-372-1420 (day); 1-800-424-8802 (night).
* * * * *

0
10. Section 107.121 is revised to read as follows:


Sec.  107.121  Modification, suspension or termination of special 
permit or grant of party status.

    (a) The Associate Administrator may modify a special permit or 
grant of party status on finding that:
    (1) Modification is necessary so that the special permit reflects 
current statutes and regulations; or
    (2) Modification is required by changed circumstances to meet the 
standards of Sec.  107.113(f).
    (b) The Associate Administrator may modify, suspend or terminate a 
special permit or grant of party status, as appropriate, on finding 
that:
    (1) Because of a change in circumstances, the special permit or 
party status no longer is needed or no longer would be granted if 
applied for;
    (2) The application contained inaccurate or incomplete information, 
and the special permit or party status would not have been granted had 
the application been accurate and complete;
    (3) The application contained deliberately inaccurate or incomplete 
information; or
    (4) The holder or party knowingly has violated the terms of the 
special permit or an applicable requirement of this chapter in a manner 
demonstrating the holder or party is not fit to conduct the activity 
authorized by the special permit.
    (c) Except as provided in paragraph (d) of this section, before a 
special permit or grant of party status is modified, suspended, or 
terminated, the Associate Administrator notifies the holder or party in 
writing or by electronic means of the proposed action and the reasons 
for it, and provides an opportunity to show cause why the proposed 
action should not be taken.
    (1) Within 30 days of receipt of notice of the proposed action, the 
holder or party may file a response in writing or by electronic means 
that shows cause why the proposed action should not be taken.
    (2) After considering the holder's or party's response, or after 30 
days have passed without response since receipt of the notice, the 
Associate Administrator notifies the holder or party in writing or by 
electronic means of the final decision with a brief statement of 
reasons.
    (d) The Associate Administrator, if necessary to avoid a risk of 
significant harm to persons or property, may, in the notification, 
declare the proposed action immediately effective.


0
11. Section 107.123 is revised to read as follows:


Sec.  107.123  Reconsideration.

    (a) An applicant for special permit, a special permit holder, or an 
applicant for party status to a special permit may request that the 
Associate Administrator reconsider a decision under Sec.  107.113(g), 
Sec.  107.117(e) or Sec.  107.121(c) of this part. The request must--
    (1) Be in writing or by electronic means and filed within 20 days 
of receipt of the decision;
    (2) State in detail any alleged errors of fact and law;
    (3) Enclose any additional information needed to support the 
request to reconsider; and
    (4) State in detail the modification of the final decision sought.
    (b) The Associate Administrator grants or denies, in whole or in 
part, the relief requested and informs the requesting person in writing 
or by electronic means of the decision. If necessary to avoid a risk of 
significant harm to persons or property, the Associate Administrator 
may, in the notification, declare the action immediately effective.


0
12. In Sec.  107.125, paragraphs (a)(1) and (c) are revised to read as 
follows:


Sec.  107.125  Appeal.

    (a) * * *
    (1) Be in writing or by electronic means and filed within 30 days 
of receipt of the Associate Administrator's decision on 
reconsideration; (2) state in detail any alleged errors of fact and 
law;
* * * * *
    (c) The Administrator grants or denies, in whole or in part, the 
relief requested and informs the appellant in writing or by electronic 
means of the decision. The Administrator's decision is the final 
administrative action.

[[Page 464]]

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
13. The authority citation for part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53; 
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134 
section 31001.


0
14. In Sec.  171.8, the definition for ``Special permit'' is revised to 
read as follows:


Sec.  171.8  Definitions and abbreviations.

* * * * *
    Special permit means a document issued by the Associate 
Administrator, or other designated Department official, under the 
authority of 49 U.S.C. 5117 permitting a person to perform a function 
that is not otherwise permitted under subchapter A or C of this 
chapter, or other regulations issued under 49 U.S.C. 5101 et seq. 
(e.g., Federal Motor Carrier Safety routing requirements).
* * * * *

    Issued in Washington, DC, on December 29, 2010 under authority 
delegated in 49 CFR part 106.
Cynthia L. Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2010-33316 Filed 1-4-11; 8:45 am]
BILLING CODE 4910-60-P


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