November 2015

PHMSA publishes special permits and approvals application rule

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The U.S. Department of Transportation’s (DOT) Pipeline & Hazardous Materials Safety Administration (PHMSA) announced on Sept. 10 its final rule (HM-233E) detailing the agency’s new approach to processing hazardous materials transportation special permits and approvals. The intent of the rule is to streamline the hazmat special permits and approvals application process by incorporating new procedures for evaluating applications into the Hazardous Materials Regulations.

The rulemaking attempts to provide clarity on the application requirements for obtaining a hazardous material special permit and describes an online application process that is available to submit applications, all designed to ensure completeness of the applications submitted. The amendments to the Hazardous Materials Regulations (Part 107) include: (a) standard operating procedures to support the administration of the special permit and approval programs; and (b) criteria to support the evaluation of applications for special permits and/or approvals.

However, upon closer inspection, it is clear that the final rule does not change the requirements that apply to the petitioner. Rather, this administrative rule change simply describes the procedure the agency will take when reviewing applications for new approvals, requests for modification to existing permits and approvals and petitions for reconsideration for applications that have been denied.

PHMSA Administrator Marie Therese Dominguez stated that “…these changes are consistent with PHMSA’s agency-wide initiative to identify opportunities to modernize, clarify and reduce burdens associated with our regulations while continuing to raise the bar on safety…”

It appears to me, however, that the only burden PHMSA’ Special Permits & Approvals Division will be reducing is its own.
PHMSA states in the preamble to the Final Rule:
“…[although the agency] continuously strives to improve the efficiency of its special permit and approval processing operations, it is the applicant’s responsibility to ensure his or her application is correct and complete. PHMSA receives approximately 30,000 special permit and approval applications annually. One of the most effective ways to ensure efficient processing of an application is that it is complete. Past attempts by PHMSA to delay processing incomplete applications until it received the missing or corrected information from applicants resulted in significant application processing delays. If applicants are permitted to submit incomplete applications without any negative consequences, there is no incentive for applicants to submit complete and conforming applications. Requiring applications to be complete prior to processing will enhance PHMSA’s ability to process the applications in a timely manner.”

Clearly, PHMSA intends to reduce its backlog simply by denying applications, marking them as “incomplete.” Consequently, this will have a significant impact on applicants whose applications are deemed “incomplete,” for they will have to start all over again. This will result in further delays as it typically takes 180 days or more to process a routine request for a Special Permit. If the process must be started again, it may take a year or more to obtain the regulatory relief required.
In one of the many comments submitted by the Sporting Arms & Ammunition Manufacturers’ Institute, Inc. (SAAMI), it recommended that existing approvals be permitted to be modified slightly without having to “…go to the bottom of the stack with an additional 180-day waiting period,’’ as is currently required. They recommended that PHMSA resolve its recordkeeping problems ‘‘…rather than making companies resubmit complete data packages’’ as described in the Notice of Proposed Rulemaking (NPRM) preamble. PHMSA responded that it does not currently have the resources to institute a separate processing method for routine and editorial revisions but would consider changes of this type as resources become available.
In several articles previously published (see “If You’re Planning on a Special Permit…Plan Early,” Spray, April 2013; and “Changes in the Approval Process,” Spray, June 2015), I warned that companies should be vigilant, plan accordingly and then submit only applications that are complete.
It’s probably appropriate to reiterate what the requirements for a complete application are: [reprinted from SPRAY, June 2015]

For Special Permits, applicants should provide the following:

  • Table of Contents;
  • Attached supporting documentation;
  • The Individual’s or Company’s 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 for the Technical Point of Contact;
  • Name of the company’s Chief Executive Officer (CEO) or President, or ranking officer;
    The Dun & Bradstreet Data Universal Numbering System (D-U-N-S) identifier;
  • A signed letter (on company letterhead) from foreign applicants designating a U.S. agent, which includes the full contact information for the agent;
  • For manufacturing permits, 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.
  •  For companies requiring registration with PHMSA, the registration number, or the name of the company to which the registration number is assigned, if it is different from the applicant.

The application must also include information required in sections 49 CFR §107.105(c) and (d) including a description of special permit proposal and a detailed justification of special permit proposal.
Competent Authority Approvals
For Competent Authority Approval application, consider providing all of the information described herein for special permits, as well as the following:

  • Identify the section of the chapter under which the registration, report or application is made;
  • If a report is required by an approval, a registration or a special permit, identify the approval, registration or special permit number;
  • Provide the name, street and mailing addresses, e-mail address optional, and telephone number of the person on whose behalf the registration, report or application is made and, if different, the person making the filing;
  • If the person on whose behalf the filing is made is not a resident of the United States, provide a designation of agent for service in accordance with 49 CFR §105.40;
  • Provide a description of the activity for which the registration or report is required; and
  • Provide additional information as requested by the Associate Administrator, if the Associate Administrator determines that a filing lacks pertinent information or otherwise does not comply with applicable requirements.
  • In addition, the applicant must provide the following:
    A description of the activity for which the approval is required;
  • The proposed duration of the approval;
  • The transport mode or modes affected, as applicable;
  • Any additional information specified in the section containing the approval; and

For an approval which provides exceptions from regulatory requirements or prohibitions:

  • Identification of any increased risk to safety or property that may result if the approval is granted, and specification of the measures that the applicant considers necessary or appropriate to address that risk; and
  • Substantiation, with applicable analyses or evaluations, if appropriate, demonstrating that the proposed activity will achieve a level of safety that is at least equal to that required by the regulation.

The final rule can be viewed at the Federal Register link here:
https://goo.gl/NbEC1K Spray