Notice2024-05250
Hazardous Materials: Clarification of Applications for Special Permits Submitted in the Public Interest
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 13, 2024
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
PHMSA is publishing this notice to inform interested parties on how PHMSA evaluates and determines whether a special permit can be considered consistent with the public interest. This notice outlines the criteria PHMSA used to evaluate special permit applications on the basis of public interest.
Full Text
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<title>Federal Register, Volume 89 Issue 50 (Wednesday, March 13, 2024)</title>
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[Federal Register Volume 89, Number 50 (Wednesday, March 13, 2024)]
[Notices]
[Pages 18482-18484]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-05250]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-2022-0127 (Notice No. 2023-09)]
Hazardous Materials: Clarification of Applications for Special
Permits Submitted in the Public Interest
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Notice.
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SUMMARY: PHMSA is publishing this notice to inform interested parties
on how PHMSA evaluates and determines whether a special permit can be
considered consistent with the public interest. This notice outlines
the criteria PHMSA used to evaluate special permit applications on the
basis of public interest.
FOR FURTHER INFORMATION CONTACT: Don Burger, Standards and Rulemaking
Division, 202-366-4314, Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
PHMSA is responsible for regulations to ensure the safe transport
of hazardous materials. The Hazardous Materials Regulations (HMR) have
many performance-oriented regulations that provide the regulated
community some flexibility in meeting safety requirements. Even so, not
every transportation situation can be anticipated and addressed by the
current regulations. The hazardous materials community develops new
materials, technologies, and innovative ways to move hazardous
materials safely. Such innovation strengthens our economy, and some new
technologies and operational techniques may enhance safety.
In order to accommodate and encourage continued development and
innovation in the safe transport of hazardous materials, PHMSA is
authorized to issue variances from the HMR via special permits, which
set forth alternative requirements to those currently in the HMR.
Special permits provide a mechanism for applying new technologies,
promoting increased transportation efficiency and productivity, and
ensuring global competitiveness without compromising safety. In
addition, special permits enable the hazardous materials industry to
integrate new products and technologies into production and the
transportation stream safely, quickly, and effectively.
The Department of Transportation (DOT), through PHMSA, issues
special permits under the Hazardous Materials Program Procedures (49
CFR part 107, subpart B). By issuing a special permit, PHMSA is in
effect waiving requirements of the HMR and often imposing alternative
requirements, i.e., a special permit may allow a person to perform a
function not otherwise permitted under the HMR.\1\ PHMSA's Approvals
and Permits Branch issues the special permits on behalf of the
Associate Administrator.
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\1\ <a href="https://www.govinfo.gov/content/pkg/USCODE-2011-title49/html/USCODE-2011-title49-subtitleIII-chap51.htm">https://www.govinfo.gov/content/pkg/USCODE-2011-title49/html/USCODE-2011-title49-subtitleIII-chap51.htm</a>.
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The HMR requires that special permits must achieve a level of
safety that is at least equal to that required by the regulation from
which the special permit is sought; or, if a required safety level does
not exist, is consistent with the public interest.\2\
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\2\ 49 CFR 107.105(d).
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Various stakeholders have inquired about the criteria for
evaluating special permits consistent with the public interest, as well
as how these special permits are evaluated. PHMSA is publishing this
guidance to inform stakeholders and interested parties seeking a
special permit in the public interest of the types of information PHMSA
requires when it reviews a special permit application, and to provide
examples of previous approved
[[Page 18483]]
applications for a special permit in the public interest.
PHMSA guidance--such as this notice--is not substantive rules
themselves and does not create legally enforceable rights, assign
duties, or impose new obligations not otherwise contained in the
existing regulations and standards. Instead, PHMSA guidance is intended
as an aid to demonstrate compliance with the relevant regulations. An
individual who can demonstrate compliance with PHMSA guidance is likely
to demonstrate compliance with the relevant regulations. If a different
course of action is taken by an individual, the individual must be able
to demonstrate that its conduct is in accordance with the regulations.
II. Examples of Special Permits Consistent With the Public Interest
In the past, PHMSA has considered a special permit consistent with
the public interest if the special permit provides a positive net
benefit to the welfare or well-being of the public; i.e., the benefit
to society from the waiver authorized in the special permit will
outweigh potential harms. For example, while the transport of an
unapproved explosive substance is forbidden under the HMR, it would be
in the public interest to allow for a one-time transport of the
substance to remove it from a location that creates higher risk for the
public--such as removal of a seized explosive from a port--provided the
risk to the public can be minimized through operational controls.\3\
Similarly, while movement of a certain hazardous material by passenger
aircraft might be forbidden under the HMR, the movement might be
justified if it is the only mode of transport available to a remote
location and sufficient operational controls are in place to minimize
risk to the public to the extent possible (e.g., limiting only to a
specific carrier with defined route).\4\ Other examples of public
interest special permits have supported responses to public health
crises. For example, in response to the Ebola outbreak, PHMSA allowed
specialized packaging to transport waste for disposal, subject to
operational controls.\5\ Prior to issuance of the special permit, there
were no packagings authorized under the HMR that could have handled the
large quantities of waste, so it was in the public interest to
authorize an alternative means to transport the waste for incineration
and disposal.
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\3\ See DOT-SP 21357, Special Permit for Gateway Pyrotechnic
Productions, LLC. PHMSA's Office of Hazardous Materials Safety
maintains a searchable database of issued special permits on its
website at <a href="https://www.phmsa.dot.gov/approvals-and-permits/hazmat/special-permits-search">https://www.phmsa.dot.gov/approvals-and-permits/hazmat/special-permits-search</a>.
\4\ See DOT-SP 16392, Special Permit for Gem Air, LLC; DOT-SP
12674, Special Permit for G & S Aviation, LLC; DOT-SP 15243, Special
Permit for Katmailand, Inc.
\5\ See DOT-SP 16279; DOT-SP 16278 & DOT-SP 16266, Special
Permits for Stericycle, Inc.
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III. Justification for Special Permit Applications
Section 107.105(d) \6\ outlines the information the applicant must
provide when requesting a special permit application. An applicant
seeking a special permit, whether on the basis of an equal level of
safety required by the HMR or as consistent with the public interest,
must provide:
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\6\ 49 CFR 107.105(d).
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<bullet> Information describing all relevant shipping and incident
experience of which the applicant is aware that relates to the
application.
<bullet> 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.
<bullet> Either one of the following:
[cir] 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
[cir] 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 by the provisions of the
prospective permit.
Without the applicant providing information outlined in Sec.
107.105(d), PHMSA may not be able to complete its evaluation of the
application as required by Sec. 107.113(f). Further, in providing the
above information and analysis, the applicant should demonstrate that
the proposed alternative will achieve a level of safety that is
consistent with the public interest and will adequately protect against
the risks to life and property inherent in the transportation of
hazardous materials in commerce.
IV. Adequate Protection Against the Risks to Life and Property
As discussed above, an applicant seeking a special permit
consistent with public interest must demonstrate that their proposed
alternative to the HMR will achieve a level of safety that adequately
protects against risks to life and property.\7\ This is often achieved
by proposing various operational controls for a special permit in the
application. A determination by PHMSA that an application and the
proposed operational controls provide ``adequate protection'' against
risks to life and property does not indicate such operational controls
provide a lower level of safety than a special permit that was
determined to have at least an ``equivalent level of safety'' to the
HMR. Rather it is a safety determination in the absence of a standard
to compare against the proposed approach in the special permit
application.
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\7\ 49 CFR 107.113(f)(2).
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A special permit application seeking to show it is consistent with
the public interest must include information on how the applicant will
minimize any safety risk to the maximum extent practicable. Applicants
should include explanations of: (1) the hazardous material and how it
is contained; (2) known risks of the hazardous material; (3) mitigation
of the risks posed by the hazardous material via packaging, hazard
communication, and/or operational controls; and (4) any other relevant
factors to support mitigation of any safety risks.
Operational controls to help minimize transportation risks are also
important features of permits issued in the public interest.
Operational controls are requirements designed to enhance safety and
oversight when transporting hazardous materials under special permits.
Though special permits may waive some regulatory requirements due to
unusual circumstances, operational controls allow permit holders to
improve safety through policies, procedures, and communication.
Operational controls in special permits have included selecting and
training specific personnel; implementing additional equipment
inspections and maintenance; limiting transport to certain times,
routes, or conditions; using tracking and communication systems;
documenting the permitted shipment; and other measures tailored to the
situation. Operational controls may also limit the movement of the
hazardous material to specific modes of transportation.
V. Supporting Documentation and Duration for Public Interest Special
Permits
Providing detailed supporting documentation is key to supporting
PHMSA's decision-making process. PHMSA evaluates all information and
data outlined in this notice in reviewing and issuing a special permit
application
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in the public interest. If the information outlined in the HMR and
described in this notice is not provided in a special permit request,
it is unlikely that a special permit would be issued in the public
interest as the application would not be sufficient.
Finally, PHMSA will consider the length of time that the special
permit issued in the public interest should remain in effect. New
special permits are limited to a maximum of two years in duration by 49
U.S.C. 5117(a)(2). Emergencies--e.g., natural disasters, failure of
containment of a hazardous material in transport, etc.--require quick
decision-making by PHMSA to mitigate the potential hazards to the
public and the environment. Special permits issued in the public
interest, such as in the case of emergencies, typically are only issued
for an amount of time expected to be sufficient to address the
emergency.
VI. Future Actions
This notice serves as guidance for interested parties looking to
obtain special permits in the public interest. PHMSA encourages
applicants seeking a special permit in the public interest to ensure
applications include all necessary information to address the
requirements of the HMR as outlined in this notice.
Issued in Washington, DC, on March 7, 2024.
William S. Schoonover,
Associate Administrator of Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2024-05250 Filed 3-12-24; 8:45 am]
BILLING CODE 4910-60-P
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</html>Indexed from Federal Register on March 13, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.