Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Proposed Rules 51317 

Dated: August 8, 2011. 

Judith Enck, 

Regional Administrator, Region 2. 

[FR Doc. 2011–21122 Filed 8–17–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

46 CFR Part 28 

[Docket No. USCG–2010–0625] 

RIN 1625–AB50 

Waiver of Citizenship Requirements for 

Crewmembers on Commercial Fishing 

Vessels 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard proposes to 

add to its regulations a description of 

the procedures for requesting and 

processing waivers of citizenship 

requirements on commercial fishing 

vessels. The Coast Guard aims to 

improve its efforts to inform the 

commercial fishing industry of this 

opportunity by publishing the 

application procedure policy into the 

Code of Federal Regulations (CFR). 

DATES: Comments and related material 

must either be submitted to our online 

docket via http://www.regulations.gov 

on or before November 16, 2011 or reach 

the Docket Management Facility by that 

date. Comments sent to the Office of 

Management and Budget (OMB) on the 

collection of information must reach 

OMB on or before November 16, 2011. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2010–0625 using any one of the 

following methods: 

(1) Federal eRulemaking Portal: 

http://www.regulations.gov. 

(2) Fax: 202–493–2251. 

(3) Mail: Docket Management Facility 

(M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590– 

0001. 

(4) Hand delivery: Same as mail 

address above, between 9 a.m. and 

5 p.m., Monday through Friday, except 

Federal holidays. The telephone number 

is 202–366–9329. 

To avoid duplication, please use only 

one of these four methods. See the 

‘‘Public Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section 

below for instructions on submitting 

comments. 

Collection of Information Comments: 

If you have comments on the collection 

of information discussed in section V.D 

of this NPRM, you must also send 

comments to the Office of Information 

and Regulatory Affairs (OIRA), Office of 

Management and Budget. To ensure that 

your comments to OIRA are received on 

time, the preferred methods are by email to oira_submission@omb.eop.gov 

(include the docket number and 

‘‘Attention: Desk Officer for Coast 

Guard, DHS’’ in the subject line of the 

e-mail) or fax at 202–395–6566. An 

alternate, though slower, method is by 

U.S. mail to the Office of Information 

and Regulatory Affairs, Office of 

Management and Budget, 725 17th 

Street, NW., Washington, DC 20503, 

ATTN: Desk Officer, U.S. Coast Guard. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this proposed 

rule, call or e-mail Mr. David Belliveau, 

Office of Vessel Activities (CG–5433), 

Coast Guard; telephone 202–372–1247, 

e-mail David.J.Belliveau@uscg.mil. If 

you have questions on viewing or 

submitting material to the docket, call 

Ms. Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble 

I. Public Participation and Request for 

Comments 

A. Submitting Comments 

B. Viewing Comments and Documents 

C. Privacy Act 

D. Public Meeting 

II. Abbreviations 

III. Background 

IV. Discussion of Proposed Rule 

V. Regulatory Analyses 

A. Executive Order 12866 and Executive 

Order 13563 

B. Small Entities 

C. Assistance for Small Entities 

D. Collection of Information 

E. Federalism 

F. Unfunded Mandates Reform Act 

G. Taking of Private Property 

H. Civil Justice Reform 

I. Protection of Children 

J. Indian Tribal Governments 

K. Energy Effects 

L. Technical Standards 

M. Environment 

I. Public Participation and Request for 

Comments 

We encourage you to participate in 

this rulemaking by submitting 

comments and related materials. All 

comments received will be posted 

without change to http:// 

www.regulations.gov and will include 

any personal information you have 

provided. 

A. Submitting Comments 

If you submit a comment, please 

include the docket number for this 

rulemaking (USCG–2010–0625), 

indicate the specific section of this 

document to which each comment 

applies, and provide a reason for each 

suggestion or recommendation. You 

may submit your comments and 

material online or by fax, mail, or hand 

delivery, but please use only one of 

these means. We recommend that you 

include your name and a mailing 

address, an e-mail address, or a phone 

number in the body of your document 

so that we can contact you if we have 

questions regarding your submission. 

To submit your comment online, go to 

http://www.regulations.gov and type 

‘‘USCG–2010–0625’’ in the ‘‘Enter 

Keyword or ID’’ box. If you submit your 

comments by mail or hand delivery, 

submit them in an unbound format, no 

larger than 81⁄2 by 11 inches, suitable for 

copying and electronic filing. If you 

submit comments by mail and would 

like to know that they reached the 

Facility, please enclose a stamped, selfaddressed postcard or envelope. 

We will consider all comments and 

material received during the comment 

period and may change this proposed 

rule based on your comments. 

B. Viewing Comments and Documents 

To view comments, as well as 

documents mentioned in this preamble 

as being available in the docket, go to 

http://www.regulations.gov, click on the 

‘‘read comments’’ box, which will then 

become highlighted in blue. In the 

‘‘Enter Keyword or ID’’ box, insert 

‘‘USCG–2010–0625’’ and click 

‘‘Search.’’ Click the ‘‘Open Docket 

Folder’’ in the ‘‘Actions’’ column. If you 

do not have access to the Internet, you 

may view the docket online by visiting 

the Docket Management Facility in 

Room W12–140 on the ground floor of 

the Department of Transportation West 

Building, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. We have an 

agreement with the Department of 

Transportation to use the Docket 

Management Facility. 

C. Privacy Act 

Anyone can search the electronic 

form of comments received into any of 

our dockets by the name of the 

individual submitting the comment (or 

signing the comment, if submitted on 

behalf of an association, business, labor 

union, etc.). You may review a Privacy 

Act notice regarding our public dockets 

in the January 17, 2008, issue of the 

Federal Register (73 FR 3316). 

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51318 Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Proposed Rules 

1 In 2008, the Coast Guard received a total of six 

waiver requests. 

D. Public Meeting 

We do not now plan to hold a public 

meeting. But you may submit a request 

for one to the docket using one of the 

methods specified under ADDRESSES. In 

your request, explain why you believe a 

public meeting would be beneficial. If 

we determine that a public meeting 

would aid this rulemaking, we will hold 

one at a time and place announced by 

a later notice in the Federal Register. 

II. Abbreviations 

CFR Code of Federal Regulations. 

COMDTINST Commandant 

Instruction. 

DHS Department of Homeland 

Security. 

DOL Department of Labor. 

FR Federal Register. 

INA Immigration and Nationality Act, 

as amended (8 U.S.C. 1101 et seq.). 

§ Section symbol. 

U.S.C. United States Code. 

III. Background 

Under title 46 United States Code 

(U.S.C.) 8103(i)(1), each unlicensed 

seaman on a fishing, fish processing, or 

fish tender vessel that is engaged in the 

fisheries in the navigable waters of the 

United States or the exclusive economic 

zone must be— 

1. A citizen of the United States; 

2. An alien lawfully admitted to the 

United States for permanent residence; 

or 

3. Any other alien allowed to be 

employed under the Immigration and 

Nationality Act (8 U.S.C. 1101 et seq.) 

(INA). 

Furthermore, 46 U.S.C. 8103(i)(2) 

states that no more than 25 percent of 

the unlicensed seamen on these vessels 

may be non-permanent resident aliens 

authorized for employment in the 

United States under the Immigration 

and Nationality Act (INA), category 3 

above. 

Relief from these citizenship and 

permanent resident status requirements 

is provided in 46 U.S.C. 8103(b)(3)(C). If 

the Secretary of Homeland Security 

determines, after an investigation, that 

qualified seamen who are citizens of the 

United States are not available, the 

Secretary may waive these citizenship 

requirements. 

Congress did not specify a procedure 

for requesting the waiver allowed under 

section 8103(b)(3). To fill the need for 

a procedure, the Coast Guard published 

a policy letter in June 2001 titled 

‘‘Procedures for Waiver of Requirements 

for Citizenship Aboard Commercial 

Fishing Vessels’’ (2001 policy letter). 

This policy letter is available at http:// 

homeport.uscg.mil/mycg/portal/ep/ 

programView.do?channelId=- 

17679&programId=12861. This policy 

letter explains the steps involved in the 

request for a waiver process. The Coast 

Guard intended the letter to be the 

means of informing the fishing industry 

of the waiver opportunity and the 

application procedure. 

In past years, the Coast Guard 

received between 125 and 200 waiver 

requests annually. In 2008, that volume 

slowed appreciably.1 Through 

experience gained during the ten years 

since the publication of the policy letter 

and feedback received from the 

Commercial Fishing Industry Vessel 

Safety Advisory Committee, the Coast 

Guard believes that not all fishing vessel 

owners, operators, and employers are 

aware they can request a waiver from 

citizenship requirements. As a result, 

these vessels often either sail shorthanded, creating potential safety issues, 

or choose to exceed the 25 percent limit 

for non-permanent resident aliens 

authorized for employment in the 

United States under the INA without an 

approved waiver. This proposed rule 

mirrors the requirements that exist in 

the 2001 policy letter with the exception 

of the mandatory dockside examination. 

Despite the benefits of the waiver 

option for owners, operators, and 

employers, the Coast Guard is 

concerned that the continued practice of 

granting requests for waivers under this 

program gives rise to potential safety 

and emergency preparedness problems 

on fishing vessels for U.S. citizen and 

alien crewmembers. It is incumbent on 

owners, operators, and employers to 

ensure the vessel is in full compliance 

with all safety, survival equipment, and 

systems requirements. 

Therefore, in this proposed rule, the 

Coast Guard proposes to make 

satisfactory completion of a dockside 

safety examination under the Coast 

Guard’s Commercial Fishing Industry 

Vessel Safety program a condition for 

receiving a waiver from the citizenship 

requirements. (For more information on 

this program, see http:// 

www.fishsafe.info.) Section 604 of the 

Coast Guard Authorization Act of 2010 

(Pub. L. 111–281) mandates dockside 

examinations for commercial fishing 

vessels operating beyond 3 nautical 

miles from shore. For vessels operating 

inside of 3 nautical miles from shore, 

examinations would remain voluntary. 

Under these proposed rules, any 

commercial fishing vessel requesting a 

waiver would be required to show 

satisfactory completion of a dockside 

safety examination, regardless of its area 

of operation. 

IV. Discussion of Proposed Rule 

Through this rulemaking, the Coast 

Guard would amend 46 CFR part 28, 

Requirements for Commercial Fishing 

Industry Vessels, by adding a new 

subpart to specifically address the 

citizenship waiver program. This 

subpart would formally incorporate the 

2001 policy letter into the CFR and 

would also require that any vessel 

citizenship waiver request and approval 

be conditioned on the successful 

completion of a required dockside 

exam. 

In the proposed new subpart, the 

Coast Guard would explain that owners, 

operators, and employers must send to 

the Coast Guard a written citizenship 

waiver request, which would include 

the number of alien seamen to be 

employed who are not lawfully 

admitted for permanent residence but 

are otherwise authorized for 

employment in the United States under 

the INA, along with certification that the 

vessel(s) would comply with all other 

applicable citizenship requirements 

regarding the Master or other officers in 

charge of deck or engineering watches 

on a documented vessel. The owner, 

operator, or employer would also be 

required to provide a U.S. Citizenship 

and Immigration Services (USCIS) or 

other DHS-issued authorization for 

employment in the U.S. under the INA 

for each alien seaman it intends to 

employ who is not lawfully admitted for 

permanent residence, as well as 

information, as discussed below, 

demonstrating that there are no 

qualified U.S. seamen available for the 

position. 

If, within 30 days of receipt of a 

request for a waiver, the Coast Guard 

does not make a determination, or 

informs the employer that the Coast 

Guard needs more time for review, the 

waiver request would be provisionally 

approved for 90 days from the end of 

the original 30 days. If the Coast Guard 

grants a waiver, the term of the approval 

would be for the same period as 

specified by the USCIS or other DHSissued authorization for employment in 

the U.S. under the INA. 

Additionally, to help ensure the safe 

condition of the vessel, the Coast Guard 

would require the employer to submit 

documentation of a satisfactory 

dockside safety examination conducted 

by the Coast Guard. 

The written request for a waiver must 

contain the following: 

1. Vessel owner, operator, or 

employer’s contact information. This 

information is required to crossmstockstill on DSK4VPTVN1PROD with PROPOSALS

Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Proposed Rules 51319 

reference with the Marine Information 

for Safety and Law Enforcement 

database to verify vessel ownership; to 

facilitate contact with the owner, 

operator, or employer if any questions 

arise after reviewing the request for a 

waiver package; and to mail a waiver 

letter back to the owner, operator, or 

employer in an expeditious manner. 

2. List of fishing vessels and 

information on those vessels that the 

owner, operator, or employer wishes to 

exempt. The owner, operator, or 

employer would be asked to provide, for 

each vessel that he/she wants a waiver, 

the following: the fishing vessel’s name, 

official number, length (in feet), gross 

tonnage, and the types of fisheries the 

vessel will fish. This information would 

be used to verify the documentation of 

the vessel, to check the vessel’s safety 

history, and to ensure that the vessel 

belongs to the person who is making the 

request for citizenship waiver. 

3. A list of persons working on the 

vessel(s). The list would include: The 

total number of crewmembers; the 

number of seamen who are neither U.S. 

citizens nor lawful permanent residents; 

the name, nationality, birth place, 

position to be held, and basis for 

employment authorization in the U.S. 

under the INA of each seaman who is 

neither a U.S. citizen nor a lawful 

permanent resident; and the number of 

alien seamen who are neither U.S. 

citizens nor lawful permanent residents 

for whom the waiver is being requested. 

This requested information would allow 

the Coast Guard to ascertain what 

percentage of a vessel’s crew would be 

non-permanent resident aliens to ensure 

that non-U.S. citizens would only be 

used as seamen and not Watch Officers 

or Masters, and to ensure that the 

persons named on a waiver request 

would be non-permanent resident aliens 

who are authorized for employment in 

the United States under the INA. 

4. Identification of the time period 

over which the 25 percent limit would 

be exceeded: This information would 

include the start date (MM/DD/YYYY) 

and expiration date (MM/DD/YYYY) of 

the requested waiver. This information 

would be required to ensure the owner, 

operator, or employer is asking for an 

exemption that falls within the period of 

the named individuals’ authorization for 

employment in the U.S. under the INA. 

5. Demonstration that the vessel(s) is/ 

are in full compliance with all 

applicable safety and other regulatory 

requirements set forth in 46 CFR part 

28. In order to document compliance, 

the owner, operator, or employer would 

be required to submit documentation 

that shows that: a dockside safety 

examination was conducted; the 

examination was successfully passed; 

the vessel(s) received a safety 

examination decal (and include the 

serial number of the decal; the decal is 

displayed on the vessel; and that the 

decal will not expire during the entire 

time period of the requested waiver. 

Since commercial fishing vessels 

operating within 3 nautical miles from 

shore are generally not required to be 

examined, compliance with 46 CFR part 

28 requirements would usually be 

determined by a random boarding or by 

the vessel owner, operator, or employer 

requesting a dockside safety 

examination. Thus absent these rules, it 

is conceivable that a vessel could go to 

sea and fish for months, or even years, 

without being checked for its 

compliance with regulations. Through 

these examinations, we intend to 

identify and correct safety issues, 

eliminate preventable hazards, and 

minimize any problems that might exist 

prior to the Coast Guard approving a 

request for a waiver. Satisfactory 

completion of a dockside safety 

examination for all commercial fishing 

vessels requesting a waiver under this 

proposed rule would ensure all 

applicable vessels provide all 

emergency equipment and instruction 

for all crewmembers and otherwise 

comply with applicable laws and 

regulations. 

6. Owner, operator, or employer’s 

statement certifying that the vessel(s) 

would operate in compliance with all 

other applicable citizenship 

requirements regarding the Master or 

other Officers in Charge of deck or 

engineering watches on U.S. 

documented vessels. 

7. Documentation demonstrating 

satisfactory evidence of authorization 

for employment as a seaman with the 

owner, operator, or employer under the 

INA for aliens who are not lawful 

permanent residents but are otherwise 

authorized for employment in the 

United States under the INA; and that 

qualified seamen who are United States 

citizens are not available. 

The H–2B visa has proven to be the 

primary avenue for demonstrating 

compliance with these statutory 

requirements. The 2001 policy letter 

thus required a temporary labor 

certification from the Department of 

Labor (DOL) for the position in question 

in addition to DHS authorization for the 

alien’s employment with the owner, 

operator, or employer as an H–2B 

nonimmigrant. Together, the documents 

from DHS and DOL demonstrate that 

these prerequisites are met. In this 

proposed rulemaking, we plan on 

removing the requirement in the 2001 

policy letter that an alien authorized for 

employment with the owner, operator, 

or employer as a seaman pursuant to 

admission as H–2B nonimmigrant 

provide evidence of a DOL temporary 

labor certification; the owner, operator, 

or employer need only provide evidence 

of the alien’s authorization from DHS to 

work with the employer as a crewman 

in H–2B nonimmigrant status. The 

requirement to provide evidence of the 

DOL temporary labor certification is 

being removed because USCIS approval 

of an H–2B nonimmigrant visa petition 

is premised on DOL certification that 

there are no qualified and available U.S. 

workers (a term which includes U.S. 

citizens) to perform the respective 

temporary services or labor as a seaman. 

See 8 CFR 214.2(h)(6)(iii)(A); 20 CFR 

655.4 (defining ‘‘United States Worker’’ 

for H–2B purposes). 

Additionally, we seek comment on 

alternative documentation that may be 

submitted for our review and evaluation 

if an alien is not authorized for 

employment with the owner, operator, 

or employer as an H–2B nonimmigrant. 

H–2B nonimmigrant status is but one 

means by which a non-permanent 

resident alien might be authorized for 

employment in the U.S. under the INA. 

If an alien who is neither a lawful 

permanent resident nor an H–2B 

nonimmigrant is authorized for 

employment, the owner, operator, or 

employer must nevertheless establish 

that qualified seamen who are citizens 

of the United States are not available in 

order to qualify for a waiver. In this 

instance, the burden is upon the 

requestor of the waiver to provide 

satisfactory evidence (1) Of 

authorization for employment with the 

owner, operator, or employer as a 

seaman under the INA, as required by 

46 U.S.C. 8103(i)(1)(C), and (2) that 

qualified U.S. citizen seamen are not 

available as required by 46 U.S.C. 

8103(b)(3)(C). We seek comments on the 

type of documents that could possibly 

be submitted to establish compliance 

with the statutory requirements when 

an alien’s authorization for employment 

in the U.S. with the owner, operator, or 

employer is not derived from his or her 

classification as an H–2B nonimmigrant. 

VI. Regulatory Analyses 

We developed this proposed rule after 

considering numerous statutes and 

executive orders related to rulemaking. 

Below, we summarize our analyses 

based on 13 of these statutes or 

executive orders. 

A. Executive Order 12866 and Executive 

Order 13563 

This proposed rule is not a significant 

regulatory action under section 3(f) of 

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51320 Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Proposed Rules 

2Time estimates provided by Coast Guard Fishing 

Vessel Safety Division subject matter experts. 

3http://www.bls.gov/oes/2009/may/ 

oes535021.htm. This wage information is from May 

2009 and is the most recent figure from BLS. 

4The load factor is determined by dividing BLS 

total compensation by BLS wages. 

Executive Order 12866, Regulatory 

Planning and Review, as supplemented 

by Executive Order 13563, and does not 

require an assessment of potential costs 

and benefits under section 6(a)(3) of that 

Order. The Office of Management and 

Budget has not reviewed it under that 

Order. 

The following table summarizes the 

costs and benefits of this rule. We 

estimated annual and 10-year costs of 

the rule. And, based on data availability, 

we identified qualitative benefits of the 

proposed rule. 

TABLE 1—SUMMARY OF COSTS AND BENEFITS

Category Estimate 

Costs 

Annual Cost to Apply for Waiver .... $42,365. 

Cost of Dockside Examination * ...... $9,160. 

Ten Year Monetized Costs .............

(rounded values, 7% discount rate) 

$330,812. 

Benefits 

Qualitative Benefits ......................... This proposed rule would provide industry with greater visibility to the waiver application procedures. The 

inclusion of the dockside examination would ensure that all vessels granted waivers are in compliance 

with existing safety regulations. 

* The cost to apply for a waiver is an annual cost. The cost of the dockside exam occurs every two years. 

This proposed rule would create a 

regulatory burden for those owners and 

operators of commercial fishing vessels 

electing to request a waiver. From 2005 

to 2009, there was an average of 91 

requests for waivers sent to the Coast 

Guard per year. Note that applications 

for waivers have declined from a high 

of 203 in 2005 to 20 in 2009. The 

number of applications for waivers will 

vary from year to year based on many 

factors, such as national and regional 

economic conditions and management 

programs for specific fisheries. We use 

a 5-year average to reflect the range of 

conditions that may occur over the 10- 

year period of analysis. In addition, 

during the period of 2005 to 2009, Coast 

Guard issued an average of 108 

violations of 46 U.S.C. 8103, which 

would include violations related to the 

citizenship requirements for the crew of 

fishing vessels and the citizenship 

requirements for the Master and Officer 

in charge of deck or engineering 

watches. During 2009, 75 of these 

violations were issued. Based on the 

continuing level of violations of 

citizenship requirements for fishing 

vessels, the average over 5 years of 

requests for waivers, rather than the low 

number of recent requests, is more 

indicative of the future use of waivers 

once their use is established in the 

regulations. 

We estimate that it takes an owner or 

operator approximately 9.25 hours 2 to 

compile and submit the appropriate 

documentation to the Coast Guard per 

the 2001 policy letter. The Bureau of 

Labor Statistics provides a wage of 

$34.01 for captains, mates, and pilots of 

water vessels.3 We apply a load factor of 

1.48 to this wage to account for benefits, 

which makes the hourly wage for a 

captain, mate, or pilot approximately 

$50.33.4 At a cost of $50.33 per hour to 

the civilian sector, the cost is $465.55 

per request for a waiver ($50.33 per 

hour × 9.25 hours). The total annual 

burden would be approximately 842 

labor hours (9.25 hours per request × 91 

requests per year) for a cost to industry 

of $42,377 ($50.33 × 842 hours) to 

submit the request for a waiver. This 

cost is only borne if a vessel owner, 

operator, or employer chooses to seek 

relief of the citizenship requirement. 

The proposed rule would require that 

all vessels requesting a waiver undergo 

a dockside examination. 

As noted, the Coast Guard 

Authorization Act of 2010 added a 

requirement for mandatory dockside 

safety examinations once every 2 years 

for vessels that operate beyond 3 

nautical miles from the shoreline. Some 

of the vessels requesting citizenship 

waivers may be required to undergo the 

dockside examinations due to the 

Authorization Act. Since this proposal 

would make the dockside safety 

examination a requirement for obtaining 

a waiver, the total cost of these 

examinations is attributable to this 

proposed rule. 

According to Coast Guard Fishing 

Vessel Safety Division subject matter 

experts, the dockside safety examination 

takes, on average, 2 hours to complete, 

which would represent an opportunity 

cost to the vessel owner, operator, or 

employer equal to the time lost 

multiplied by the wage for a captain, 

mate or pilot. This opportunity cost 

would equal approximately $9,160 

(2 hours × $50.33 × 91 examinations). 

The dockside examination would 

serve as a check to ensure that the vessel 

is in full compliance with all applicable 

safety and other regulatory requirements 

set forth in 46 CFR part 28. Vessels may 

have to take corrective actions as a 

result of the dockside examinations. As 

the examinations focus on compliance 

with existing regulations, the costs of 

any corrective actions would not be 

attributable to this rulemaking, but 

instead is attributable to compliance 

with existing regulations. 

The total annual cost to industry 

associated with this proposal would be 

approximately $51,537. This includes 

the $42,365 cost for applying for a 

waiver per the 2001 policy letter and the 

$9,160 opportunity cost associated with 

the addition of the dockside 

examination to the current request for a 

waiver process. 

Reviewing a waiver application 

currently takes a Coast Guard employee 

approximately 3 hours, on average. We 

assume a wage rate equal to that of a 

GS–13 for the reviewer. Based on 

Commandant Instruction (COMDTINST) 

7310.1L, Coast Guard Reimbursable 

Standard Rates, (available at http:// 

uscg.mil/directives/ci/7000-7999/ 

CI_7310_1L.PDF), the hourly wage for 

the reviewer would be $67 per hour. 

The total annual projected cost to the 

Coast Guard to review applications 

would be $18,291 (3 hours × $67 × 91 

requests). The dockside examination 

portion of this proposal would also 

create additional government costs to 

perform the examinations. Civilian 

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Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Proposed Rules 51321 

5 COMDTINST 7310.1L lists reimbursable rates 

for government workers. 

examiners are usually GS–11 or GS–12 

positions while Coast Guard uniformed 

examiners are usually E–5 or E–6 

grades, which, according to 

COMDTINST 7310.1L, would lead to an 

average wage for examiners of $49.5

According to Coast Guard subject matter 

experts, a dockside examination, 

including travel time and administrative 

time, would take an examiner 4 hours 

to complete. The total cost to the 

government from this requirement 

would be $17,836 (4 hours per 

examination × $49 × 91 examinations). 

As with the costs to industry, 

government costs would only be 

incurred if owners or operators opt to 

apply for a waiver. 

By incorporating the current policy 

into regulation, the Coast Guard would 

promote greater awareness of the policy, 

and provide commercial fishermen with 

one location for all rules governing their 

operations. Greater visibility of the 

application procedures may help reduce 

the number of crew requirement 

violations. Also, the inclusion of the 

dockside examination would ensure 

that all vessels granted waivers are in 

compliance with existing safety 

regulations that apply to commercial 

fishing vessels. 

B. Small Entities 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), we have considered 

whether this proposed rule would have 

a significant economic impact on a 

substantial number of small entities. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. 

Based on 2007 data, we identified 

79,058 entities owning fishing vessels. 

Of these, a small number (13) were 

owned by government entities or nonprofits, all of which exceed the 

threshold for being classified as a small 

entity. The remaining owners are 

classified as businesses. Based on 

available revenue data, approximately 

99.8 percent (78,901) of the commercial 

fishing businesses fall below the Small 

Business Administration threshold for a 

small business based on their primary 

North American Industry Classification 

System designation. 

Based on historical data, we expect an 

average of 91 requests for a waiver per 

year. If we assume that all of these 

requests are from small commercial 

fishing businesses, we can assess the 

potential impacts of this proposal on the 

industry. Coast Guard records show that 

the majority of vessels requesting 

waivers in the period from 2006–2009 

are between 50 and 70 feet in length. By 

comparing the $566 cost per vessel of 

the proposal to the revenues for 

commercial fishing vessels in the 50–70 

ft. size range, we estimate that only 3 

percent of all commercial fishing vessels 

would have a revenue impact greater 

than 3 percent from this proposal. Table 

2 shows the percent of vessels by 

revenue impact. 

TABLE 2—REVENUE IMPACTS OF

PROPOSED RULE

Revenue impact Percent of 

vessels 

0% < Impact <= 1% ................. 62 

1% < Impact <= 3% ................. 35 

3% < Impact <= 5% ................. 1 

5% < Impact <= 10% ............... 2 

Above 10% ............................... 0 

The primary purpose of this proposed 

rule is to codify existing policy into 

regulation, although, there would be one 

new cost element introduced. We 

estimate 91 of approximately 80,000 

commercial fishing vessels apply for a 

waiver annually, which is not a 

substantial number. Furthermore, 

because the waiver process is voluntary, 

in that vessel owners, operators, or 

employers would only apply for a 

waiver if the benefits of doing so 

outweigh the costs, we can assume that 

if the approximate $566 per vessel cost 

of this rulemaking is prohibitive, vessel 

owners would choose to not pursue a 

waiver. Therefore, the Coast Guard 

certifies under 5 U.S.C. 605(b) that this 

proposed rule would not have a 

significant economic impact on a 

substantial number of small entities. If 

you think that your business, 

organization, or governmental 

jurisdiction qualifies as a small entity 

and that this rule would have a 

significant economic impact on it, 

please submit a comment to the Docket 

Management Facility at the address 

under ADDRESSES. In your comment, 

explain why you think it qualifies and 

how and to what degree this rule would 

economically affect it. 

C. Assistance for Small Entities 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

we want to assist small entities in 

understanding this proposed rule so that 

they can better evaluate its effects on 

them and participate in the rulemaking. 

If the proposed rule would affect your 

small business, organization, or 

governmental jurisdiction and you have 

questions concerning its provisions or 

options for compliance, please consult 

with the Coast Guard personnel listed 

under FOR FURTHER INFORMATION

CONTACT section of this proposed rule. 

The Coast Guard will not retaliate 

against small entities that question or 

complain about this rule or any policy 

or action of the Coast Guard. 

D. Collection of Information 

This proposed rule would call for a 

revision to an existing collection of 

information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3520). This revision is explained below 

under ESTIMATE OF TOTAL ANNUAL 

BURDEN. As defined in 5 CFR 

1320.3(c), ‘‘collection of information’’ 

comprises reporting, recordkeeping, 

monitoring, posting, labeling, and other, 

similar actions. The title and 

description of the information 

collections, a description of those who 

must collect the information, and an 

estimate of the total annual burden 

follow. The estimate covers the time for 

reviewing instructions, searching 

existing sources of data, gathering and 

maintaining the data needed, and 

completing and reviewing the 

collection. 

Title: Commercial Fishing Industry 

Vessel Safety Regulations. 

OMB Control Number: 1625–0061. 

Summary of the Collection of 

Information: This information collection 

is intended to improve safety on board 

vessels in the commercial fishing 

industry. The requirements apply to 

those vessels and to seamen on them. 

Need for Information: The Coast 

Guard needs to collect this information 

for all vessels requesting a waiver for 

relief of the citizenship requirements on 

a commercial fishing vessel. 

Proposed Use of Information: The 

Coast Guard would use this information 

solely to determine whether or not a 

vessel should be granted relief of the 

citizenship requirements on a 

commercial fishing vessel. 

Description of the Respondents: The 

respondents are vessel owners, 

operators, and employers of U.S. 

commercial fishing vessels who opt to 

seek relief of the citizenship 

requirements on a commercial fishing 

vessel. 

Number of Respondents: The existing 

OMB-approved number of respondents, 

as adjusted in May 2008, is 5,103. The 

proposed rule would not change that 

total. 

Frequency of Response: 91 

respondents, based on a five-year 

average. 

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51322 Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Proposed Rules 

Burden of Response: Those vessels 

that voluntarily choose to request a 

waiver bear the burden of this 

collection. We estimate that a request 

for a waiver would take about 9.25 

hours per response. 

Estimate of Total Annual Burden: The 

existing OMB-approved total annual 

burden, as adjusted in May 2008, is 

5,917 hours. The annual increase from 

the proposed rule would be 

approximately 842 hours to the public, 

assuming 91 waiver requests are 

submitted per year. 

As required by the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

3507(d)), we will submit a copy of this 

proposed rule to the Office of 

Management and Budget (OMB) for its 

review of the collection of information. 

We ask for public comment on the 

proposed collection of information to 

help us determine how useful the 

information is; whether it can help us 

perform our functions better; whether it 

is readily available elsewhere; how 

accurate our estimate of the burden of 

collection is; how valid our methods for 

determining the burden are; how we can 

improve the quality, usefulness, and 

clarity of the information; and how we 

can minimize the burden of collection. 

If you submit comments on the 

collection of information, submit them 

both to OMB and to the Docket 

Management Facility where indicated 

under ADDRESSES, by the date under 

DATES. 

You need not respond to a collection 

of information unless it displays a 

currently valid control number from 

OMB. Before the Coast Guard could 

enforce the collection of information 

requirements in this proposed rule, 

OMB would need to approve the Coast 

Guard’s request to collect this 

information. 

E. Federalism 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on State or local governments and 

would either preempt State law or 

impose a substantial direct cost of 

compliance on them. 

We have analyzed this proposed rule 

under that Order and have determined 

that it does not have implications for 

federalism because states may not 

regulate citizenship requirements 

onboard fishing, fish processing, or fish 

tender vessels engaged in the fisheries 

in the navigable waters of the United 

States or the exclusive economic zone. 

F. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 (adjusted for inflation) or 

more in any one year. Though this 

proposed rule would not result in such 

an expenditure, we do discuss the 

effects of this rule elsewhere in this 

preamble. 

G. Taking of Private Property 

This proposed rule would not cause a 

taking of private property or otherwise 

have taking implications under 

Executive Order 12630, Governmental 

Actions and Interference with 

Constitutionally Protected Property 

Rights. 

H. Civil Justice Reform 

This proposed rule meets applicable 

standards in sections 3(a) and 3(b)(2) of 

Executive Order 12988, Civil Justice 

Reform, to minimize litigation, 

eliminate ambiguity, and reduce 

burden. 

I. Protection of Children 

We have analyzed this proposed rule 

under Executive Order 13045, 

Protection of Children from 

Environmental Health Risks and Safety 

Risks. This rule is not an economically 

significant rule and would not create an 

environmental risk to health or risk to 

safety that might disproportionately 

affect children. 

J. Indian Tribal Governments 

This proposed rule does not have 

tribal implications under Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, because it would not have 

a substantial direct effect on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

K. Energy Effects 

We have analyzed this proposed rule 

under Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. 

L. Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

M. Environment 

We have analyzed this proposed rule 

under Department of Homeland 

Security Management Directive 023–01 

and Commandant Instruction 

M16475.lD, which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

that this action is one of a category of 

actions that do not individually or 

cumulatively have a significant effect on 

the human environment. A preliminary 

environmental analysis checklist 

supporting this determination is 

available in the docket where indicated 

under the ‘‘Public Participation and 

Request for Comments’’ section of this 

preamble. This rule involves the 

qualifying of maritime personnel and 

the manning of vessels and falls under 

§ 2.B.2, figure 2–1, paragraphs (c) and 

(d) of the Instruction. We seek any 

comments or information that may lead 

to the discovery of a significant 

environmental impact from this 

proposed rule. 

List of Subjects in 46 CFR Part 28 

Alaska, Fire prevention, Fishing 

vessels, Marine safety, Occupational 

safety and health, Reporting and 

recordkeeping requirements, Seamen. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 46 CFR Part 28 as follows: 

PART 28—REQUIREMENTS FOR 

COMMERCIAL FISHING INDUSTRY 

VESSELS 

1. The authority citation for part 28 is 

revised to read as follows: 

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Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Proposed Rules 51323 

Authority: 46 U.S.C. 4502, 4505, 4506, 

8103; Department of Homeland Security 

Delegation No. 0170.1. 

Subpart H—[Reserved] 

2. Amend part 28 by reserving subpart H. 

3. Amend part 28 by adding new subpart 

I to read as follows: 

Subpart I—Citizenship Waiver 

Procedures 

Sec. 

28.1100 General 

28.1105 Request for a waiver 

28.1110 Waiver approval 

28.1115 Waiver request and approval 

records 

Subpart I—Citizenship Waiver 

Procedures 

§ 28.1100 General. 

As set forth in 46 U.S.C. 8103, a 

citizenship requirement, other than a 

requirement that applies to the master of 

a documented vessel, on commercial 

fishing vessels may be waived for 

unlicensed seamen when qualified 

seamen who are citizens of the United 

States are not available. Under the 

provisions of this subpart, the Coast 

Guard approves or denies requests for a 

waiver of the citizenship requirement 

from owners, operators, or employers 

seeking to exceed the 25 percent limit 

applicable to unlicensed seamen aboard 

fishing industry vessels who are nonpermanent resident aliens authorized 

for employment in the United States 

under the Immigration and Nationality 

Act (INA) (8 U.S.C. 1101 et. seq.). 

§ 28.1105 Request for a waiver. 

(a) Vessel owners, operators, or 

employers who desire a waiver of 

citizenship requirements from the Coast 

Guard must submit a written request to 

the Commandant (CG–5433), United 

States Coast Guard, 2100 Second St., 

SW., Stop 7581, Washington, DC 20593– 

7581. 

(b) The written request required under 

paragraph (a) of this section must 

contain— 

(1) The vessel owner, operator, or 

employer’s contact information— 

(i) The vessel owner, operator, or 

employer’s full name (last, first, middle 

initial); 

(ii) Address; 

(iii) Work phone number; 

(iv) Fax number (if applicable); and 

(v) E-mail address (if applicable); 

(2) Information on fishing vessel(s) for 

which the owner, operator, or employer 

requests a citizenship waiver. For each 

listed vessel, the owner, operator, or 

employer must include— 

(i) Fishing vessel name; 

(ii) Fishing vessel official number; 

(iii) Fishing vessel length (in feet); 

(iv) Fishing vessel gross tonnage; and 

(v) Type(s) of fishery(ies) in which the 

vessel is engaged; 

(3) Information on persons who will 

work on the vessel(s). For each listed 

vessel, the owner, operator, or employer 

must include— 

(i) The total number of unlicensed 

crew normally employed; 

(ii) The name, nationality, birth place, 

position to be held, and basis for 

employment authorization in the United 

States of each alien who is not lawfully 

admitted for permanent residence but is 

otherwise authorized for employment in 

the United States under the INA; and 

(iii) The number of alien seamen who 

are not lawfully admitted for permanent 

residence but are otherwise authorized 

for employment in the United States 

under the INA for which the waiver is 

requested; and 

(4) The time period over which the 25 

percent limit will be exceeded— 

(i) Start date (MM/DD/YYYY); and 

(ii) Expiration date (MM/DD/YYYY). 

(c) The vessel owner, operator, or 

employer submitting a request for a 

waiver under paragraph (a) of this 

section is required to demonstrate that 

the vessel(s) is/are in full compliance 

with all applicable safety and other 

regulatory requirements set forth in 46 

CFR part 28. To that end, the owner, 

operator, or employer must submit 

documentation that shows— 

(1) A dockside safety examination was 

conducted; 

(2) The examination was successfully 

passed and a safety decal was issued 

and affixed to the vessel; 

(3) The serial number of the decal 

issued; and 

(4) The period of validity of the safety 

decal issued. 

(d) The owner, operator, or employer 

submitting a request for a waiver under 

paragraph (a) of this section must 

include a statement certifying that the 

vessel(s) will operate in compliance 

with all other applicable citizenship 

requirements regarding the Master or 

other Officers in Charge of deck or 

engineering watches on U.S. 

documented vessels. 

(e) The owner, operator, or employer 

submitting a request for a waiver under 

paragraph (a) of this section must 

provide evidence that aliens who are 

not lawfully admitted for permanent 

residence are authorized for 

employment with the owner, operator, 

or employer under the INA and 

evidence that qualified seamen who are 

U.S. citizens are not available for 

employment. The following 

documentation is satisfactory evidence 

both of authorization for employment 

with the owner, operator, or employer 

under the INA and that qualified 

seamen who are U.S. citizens are not 

available: 

Documentation for H–2B 

nonimmigrants. 

(1) U.S. Citizenship and Immigration 

Services (USCIS) Form I–797, ‘‘Notice of 

Action: Approval Notice’’ classifying 

the alien as an H–2B nonimmigrant for 

purposes of employment with the 

owner, operator, or employer submitting 

a request for a waiver under paragraph 

(a) of this section; and 

(2) USCIS Form I–94 indicating that 

the alien has been lawfully admitted to 

the United States (or has been lawfully 

granted a change of nonimmigrant status 

or extension of nonimmigrant stay in H– 

2B classification) for the dates covered 

by the proposed employment. 

(f) Upon receipt of a request 

submitted under paragraph (a) of this 

section and required information 

submitted in accordance with 

paragraphs (b)–(e) of this section, the 

Coast Guard (CG–5433) will evaluate the 

information and may investigate further, 

as necessary, to determine the validity 

of the information provided. 

§ 28.1110 Waiver approval. 

(a)(1) If, within 30 days of receipt of 

a properly submitted request for a 

waiver, the Coast Guard does not make 

a determination whether to approve the 

request or does not advise the owner, 

operator, or employer that additional 

time is needed for consideration, the 

request will be considered provisionally 

approved for 90 days from the end of 

that 30-day period. 

(2) If the Coast Guard does not make 

a determination whether to approve a 

properly submitted request for a waiver 

in writing within 30 days of receipt, the 

owner, operator, or employer must have 

a copy of the request and supporting 

documentation available onboard the 

vessel as proof of submission of a 

request for waiver of the citizenship 

requirement for unlicensed seamen for 

that vessel. 

(b)(1) If the Coast Guard determines, 

based on the waiver request, supporting 

documentation, and any other relevant 

information, that no qualified U.S. 

citizen seamen are available, the Coast 

Guard (CG–5433) will grant the waiver 

to exceed the 25 percent limit for 

employment of non-permanent resident 

alien seaman for the period of 

employment authorized for each alien 

under the INA. The Coast Guard will 

issue a letter of approval to the owner, 

operator, or employer for the applicable 

vessel(s). 

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51324 Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Proposed Rules 

(2) The owner, operator or employer 

must have a copy of the waiver approval 

letter available onboard the vessel as 

proof of waiver of the citizenship 

requirement for unlicensed seamen for 

that vessel. 

§ 28.1115 Waiver request and approval 

records. 

The Coast Guard will maintain a 

record of citizenship waiver requests 

and approvals. Approvals will be 

documented for the applicable vessel(s) 

in the Coast Guard’s vessel information 

database. 

Dated: August 9, 2011. 

James A. Watson, 

Rear Admiral, U.S. Coast Guard, Director of 

Prevention Policy. 

[FR Doc. 2011–21024 Filed 8–17–11; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR Parts 171, 172, 173, 174, 179, 

and 180 

[Docket No. PHMSA–2010–0018 (HM–216B)] 

RIN 2137–AE55 

Hazardous Materials: Incorporating 

Rail Special Permits Into the 

Hazardous Materials Regulations 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The Pipeline and Hazardous 

Materials Safety Administration is 

proposing to amend the Hazardous 

Materials Regulations to incorporate 

provisions contained in certain widely 

used or longstanding special permits 

that have general applicability and 

established safety records. Special 

permits allow a company or individual 

to package or ship a hazardous material 

in a manner that varies from the 

regulations provided that an equivalent 

level of safety is maintained. The 

revisions in this proposed rule are 

intended to provide wider access to the 

regulatory flexibility offered in special 

permits and eliminate the need for 

numerous renewal requests, thus 

reducing paperwork burdens and 

facilitating commerce while maintaining 

an appropriate level of safety. This 

rulemaking also proposes to respond to 

two petitions for rulemaking, P–1497 

concerning the use of electronic 

shipping papers, and P–1567 

concerning the removal of the 

Association of American Railroad’s 

(AAR’s) AAR–600 portable tank 

program for previously adopted 

standards that meet or exceed the AAR– 

600 requirements. 

DATES: Written comments should be 

submitted on or before October 17, 

2011. 

ADDRESSES: You may submit comments 

identified by the docket number 

(PHMSA–2010–0018 (HM–216B)) by 

any of the following methods: 

Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

Fax: 1–202–493–2251. 

Mail: Docket Operations, U.S. 

Department of Transportation, West 

Building, Ground Floor, Room W12– 

140, Routing Symbol M–30, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590. 

Hand Delivery: To Docket Operations, 

Room W12–140 on the ground floor of 

the West Building, 1200 New Jersey 

Avenue, SE., Washington, DC 20590, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

Instructions: All submissions must 

include the agency name and docket 

number for this notice at the beginning 

of the comment. All comments received 

will be posted without change to the 

Federal Docket Management System 

(FDMS), including any personal 

information. 

Docket: For access to the dockets to 

read background documents or 

comments received, go to http:// 

www.regulations.gov or DOT’s Docket 

Operations Office (see ADDRESSES). 

Privacy Act: Anyone is able to search 

the electronic form of any written 

communications and comments 

received into any of our dockets by the 

name of the individual submitting the 

document (or signing the document, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78). 

FOR FURTHER INFORMATION CONTACT: 

Eileen Edmonson or Steven Andrews, 

Standards and Rulemaking Division, 

Office of Hazardous Materials Safety, 

(202) 366–8553, Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), or Karl Alexy, Office of 

Safety Assurance and Compliance, (202) 

493–6247, Federal Railroad 

Administration (FRA), 1200 New Jersey 

Avenue, SE., Washington, DC 20590. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Overview of Proposed Amendments 

III. Regulatory Analyses and Notices 

I. Background 

Special Permits 

The Pipeline and Hazardous Materials 

Safety Administration (PHMSA) is 

proposing to amend the Hazardous 

Materials Regulations (HMR; 49 CFR 

parts 171–180) to incorporate certain 

requirements based on existing special 

permits for transportation by railroad 

issued by PHMSA under 49 CFR part 

107, subpart B (§§ 107.101 to 107.127). 

A special permit sets forth alternative 

requirements (variances) to the 

requirements in the HMR by means that 

achieve a safety level that at a minimum 

corresponds to the safety level required 

under the regulations and is consistent 

with the public interest. Congress 

expressly authorized DOT to issue these 

variances in the Hazardous Materials 

Transportation Act of 1975. 

The HMR generally are performanceoriented regulations that provide the 

regulated community 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 as well as innovative ways 

of transporting materials. Special 

permits enable the hazardous materials 

industry to quickly, effectively, and 

safely integrate new products and 

technologies into the production and 

transportation streams. Thus, special 

permits provide a mechanism for testing 

new technologies, promoting increased 

transportation efficiency and 

productivity, and ensuring global 

competitiveness. 

A special permit must achieve at least 

an equivalent level of safety to that 

specified in the HMR. Implementation 

of new technologies and operational 

techniques can enhance safety because 

the authorized operations or activities 

may achieve a greater level of safety 

than currently required under the 

regulations. 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. 

PHMSA conducts ongoing reviews of 

special permits to identify widely used 

and longstanding special permits having 

general applicability with established 

safety records for adoption into 

regulations for broader applicability. To 

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