April 2013

If you’re planning on a Special Permit … plan early!

 

Many years ago, I worked at U.S. Coast Guard Headquarters in Washington, D.C. I was Letter-imagepart of a small group that was responsible, in part, for reviewing special permit applications for those applicants that wanted to offer dangerous goods all or in part by vessel, but whom could not comply with the regulatory requirements for one reason or another. Actually, back then, they were referred to as Dept. of Transportation (DOT) Exemptions. We processed approximately six applications a week, and provided our comments and recommendations to the Research & Special Programs Administration (RSPA), now known as the Pipeline & Hazardous Materials Safety Administration (PHMSA). Our charge was fairly straightforward—would the applicant’s proposal provide an equivalency of safety or not? If so, we offered our recommendation for approval. If not, we recommended that the application be denied and returned to the applicant to be reworked. It might have taken us a few hours to review each application and the applicant would receive an approval or denial from RSPA generally within thirty days or less.

Delays in Processing

Over the course of 20 years, I may have authored three hundred or more applications for permit or approval, but it seems that within the past three to four years, the application process has become increasingly more difficult and much lengthier. What would have been expected in 60 days is now taking six months or more. In fact, I just received an approval for a client who had submitted a request for special permit more than 18 month ago!  

Therefore, if you are planning on obtaining a special permit or Competent Authority Approval, you are cautioned to begin the planning process early. Do not wait until the last minute to file an application and then request emergency (expedited) processing because you failed to plan properly.

 

Useful Tips

Here are some useful tips to help you plan more effectively: 

  • Read the regulatory requirements very carefully. Be thoroughly familiar with the applicable provisions of the U.S. DOT’s Hazardous Materials Regulations (HMR) and the international standards that may apply. If you intend to ship within the U.S. only, you will need a DOT Special Permit. If you intend to ship internationally as well, you will need both a DOT Special Permit and a Competent Authority Approval. There are different application requirements for each. Applicants outside the U.S. must have a U.S. Agent for the service of process. Instructions and online application web app are found on the U.S. DOT website at https://hazmatonline.phmsa.dot.gov/Online%20Approvals/pages/welcome.aspx

 

  • Thoroughly review the U.S. DOT PHMSA website for letters of interpretation that may exist. You may find that a DOT special permit is not required because there might have been a previous ruling issued on the subject. An approval or special permit search can be made by accessing the following webpage: http://www.phmsa.dot.gov/hazmat/regs/sp-a

 

  • Carefully review the U.S. DOT PHMSA website for other permits or approvals. You can conduct a search on one or more companies that manufacture or offer similar products. If a special permit or approval exists, you may become a party to that special permit (if it is allowed). Becoming a party to an existing special permit is a lot quicker than applying for a new permit.

 

  • Read and be thoroughly familiar with the requirements for completing and submitting an application for permit and/or approval. You must submit all relevant information at the same time. If you fail to submit a complete application, it will generally be denied and you must start the process all over again. Pay careful attention to the requirements for information required for a corporate officer (e.g., President, CEO) and a technical contact. Be certain to include the Dun & Bradstreet (DUNS) number in the application and indicate whether or not the applicant will act as a shipper, carrier or both.

 

  • Submit the application in writing and via e-mail. Follow-up with a phone call to ensure that your application has been received and that all of the required information was included in the application. Allow at least one week for the Office of Special Permits & Approvals to receive and process the application. Allow at least 4–6 weeks for PHMSA to begin its review of the application.

 

  • Give careful consideration to using packaging that may already be approved or permitted. This is particularly true of aerosol manufacturers and distributors. Often aerosol manufacturers will seek a permit for a new type of container when an existing container that has already been approved may suffice. Although there might be a modest increase in unit price when selecting a different container, this might be an acceptable alternative given that the applicant may not be able to bring their product to market for six months or more.

 

  • Do not apply for an emergency application, unless it is actually an emergency, e.g. a matter of life or health, military or national security interest, or significant economic loss. Loss of revenue because a product was not brought to market on time is not economic loss!  An example of economic loss would be failure to fulfill a contractual obligation, or where a significant penalty clause might be included in the contract.