PHMSA Publishes Final Rule for Special Permit Approvals

Yesterday DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a final rule in the Federal Register (80 FR 54418-54440) outlining its internal procedures for reviewing and approving special permits and approvals. The notice of proposed rulemaking (NPRM) for this rule was published in August 2014.

The new rule establishes definitions for a number of new terms and revises some old definitions. The definitions include:

∙ Applicant fitness;

∙ Approval;

∙ Fit or fitness;

∙ Fitness coordinator;

∙ Insufficient corrective actions;

∙ Special permit; and

∙ Sufficient corrective action.

The final rule makes revisions to the following existing paragraphs in 49 CFR Part 107:

Section 107.113 Application processing and evaluation;

Section 107.117 Emergency processing;

Section 107.705 Registrations, reports, and applications for approval;

Section 107.709 Processing of an application for approval, including an application for renewal or modification.

The new rule also adds a new Appendix A to the Part 107. This appendix establishes the standard operating procedures that PHMSA will use to review, evaluate and publish special permits and approvals. It addresses the following general areas:

∙ Completeness of application;

∙ Publication in Federal Register;

∙ Evaluation of application, including technical evaluation and safety profile evaluation; and

∙ Disposition of application, including approval, denial and appeal;

While Appendix A is written as an internal PHMSA SOP, a clear understanding of the provisions of Appendix A by applicants for special permits or approvals will go a long way to making the application and approval process more effective.

This final rule becomes effective on November 9^th, 2015.

PHMSA Publishes Special Permit Incorporation NPRM

Today the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) in the Federal Register (80 FR 5339-5449). This rulemaking addresses the MAP 21 (PL 112-141; §33012) requirement to review current Special Permits (SP) issued by PHMSA that are more than 10 years old to determine if they should be incorporated into the current hazardous materials regulations (HMR).

This proposed rule:

● Sets forth the methodology developed to conduct the required review (and the annual reviews to be conducted in the future);

● Identifies those SPs that can be incorporated and the proposed language for that incorporation;

● Identifies those SPs that cannot be reasonably incorporated and explains why the incorporation is not feasible; and

● Responds to rule making petitions related to existing SPs.

SPs Evaluated

PHMSA evaluated 1,168 SPs that were active and over 10 years old on January 1, 2013. Of those only 98 were deemed to be appropriate for adoption into the HRM. There is a lengthy table that lists those permits. It shows the permit number, the general category (six categories were established for the purpose of this review), a summary of the permit and the number of permit holders affected.

If only 98 permits were adopted for incorporation, it only stands to reason that there would be 1,070 permits that were not considered suitable for incorporation. As required by MAP-21 the preamble to this rule also lists each of those SPs. That table lists the same information described above along with a code that describes the general reason that the SP was not considered suitable. Those codes are:

2 – These SPs were not considered suitable for adoption because of their application; i.e., they were not widely-used, were too technical in nature, or were too specific to a SP holder; 

3 – These SPs were not considered suitable for adoption because of the specificity of the SP;

4 – These SPs were being addressed in other rulemakings; and

5 – These SPs were already adopted or authorizations were already specified in the current HMR.

Response to Petitions

Four petitions were considered during this rulemaking development:

P-1607 – To adopt the provisions of DOT SP-11458 that authorizes display packs of consumer commodity packages that exceed the 30 kg gross weight limitation;

P-1608 – To adopt standards for the construction and use of Fiber Reinforced Plastic (FRP) Cargo Tanks under DOT-SP 11903 and used under party status in DOT SP-9166;

P-1610 – To adopt the provisions of DOT-SP 11110 into the HMR that authorizes cargo aircraft operators to load division 1.4S and Class 8, PG III materials in inaccessible cargo locations in excess of the limitations specified in § 175.75(c); and

P-1611 – To adopt the provisions of DOT-SP 11470 into the HMR that authorizes the transportation in commerce of shrink-wrapped pallets containing boxes of waste ORM-D materials with the word “WASTE” marked on the outside of the pallet instead of the individual box.

Petitions P1607 and P1611 were accepted and incorporated into this rulemaking.

Summary of Incorporations

The preamble to the rule provides a brief overview of the changes that were made to the HMR by providing a brief description of the SPs that were accepted for incorporation. To make it easier to follow those changes there is a separate discussion of each of the six categories of SPs identified by PHMSA. Those discussion categories are:

● Cylinders – general;

● Cylinders – NDT/Aerosols;

● Cargo Tanks/Rail Cars/Portable Tanks;

● Operational Air/Vessel;

● Operational Highway/Rail/Shipper/Other; and

● Non-Bulk Packaging Specifications/IBCs

Public Comments

PHMSA is soliciting public comments on this NPRM. Comments may be submitted via the Federal eRulemaking Portal {www.Regulations.gov; Docket: PHMSA-2013-0042 (HM-233F)}. Comments should be submitted by March 31^st, 2015.

PHMSA Dealing with Syrian Chemical Weapons Issues

The DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice in today’s Federal Register (79 FR 33802-33803) announcing the availability of an environmental assessment concerning a special permit request covering the truck transportation of various chemical weapons precursor chemicals from the port facilities at Port Arthur, TX 15 miles to a hazardous waste treatment facility for destruction. This operation is being conducted as part of the OPCW’s operation to remove chemical weapons and their precursors from Syria.

The chemicals in these shipments (sixteen sealed ISO maritime shipping containers) include:

• UN1052, hydrogen fluoride, anhydrous (five containers);

• UN1340, diphosphorus pentasulfide (one container);

• UN1809, phosphorus trichloride (two containers);

• UN1810, phosphorus oxychloride (two containers); and

• UN1789, Hydrochloric acid (six containers).

The chemicals involved are all packaged in smaller packagings within shipping containers. The packagings for the hydrogen fluoride are not marked with UN markings indicating that they are designed and inspected for the safe transportation of HF, but they were inspected upon loading by a team including:

• A representative of the  OPCW Technical Secretariat;

• An independent IMDG expert, contracted by the Secretariat for this purpose;

• A Norwegian IMDG expert; and

• Danish and Finish representatives from the Danish cargo vessel Ark Futura.

Those inspectors determined that the material was appropriately and safely packaged for transportation.

PHMSA is now caught between a rock and a political hard place. They can forbid the transportation of the HF because it is not properly packaged under the US rules, it can put its collective head in the sand and ignore the situation, or it can issue a special permit with appropriate mitigation measures in place for the transport. It looks like PHMSA will take the last option; good for them.

PHMSA is soliciting public comments on its environmental assessment. Comments may be filed using the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2014-0085). Comments need to be submitted by June 23^rd, 2014. The ship has sailed.

PHMSA Publishes Final Rule on Adoption of SP into HMR

Today DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a final rule in the Federal Register (79 FR 15033-15046) adopting selected Special Permits and Competent Authority listings into the Hazardous Materials Regulations (HMR). This action changes certain exceptions to the rules to being part of the rules.

PHMSA is incorporating all of the Special Permits (SP) listed in the NPRM into the HMR with only one change:

SP 9275 - Shipments of ethyl alcohol in quantities of 8 ounces or less are not required to be marked with the words `contains ethyl alcohol'.

PHMSA also adopted the proposed change to §175.34 that will make the following Special Permits unnecessary: 14903, 14908, 15062, 15075, 15076, 15077, 15078, 15079, 15092, 15094, 15095, and 15143.

The four Competent Authority approvals of packagings proposed in the NPRM are being adopted into the HMR without change.

Finally the proposed revision to §107.705(c) that would allow SP approval holders to continue to use an expired SP while PHMSA continues to review the extension application if the holder applied for an extension at least 60-days prior to the expiration of the SP has been incorporated into the HMR.

The effective date for this rule is April 17^th, 2014.

PHMSA NPRM to Convert SPs to Regulation

Monday’s Federal Register (available on line yesterday) contains a notice of proposed rulemaking (77 FR 64450-64461) from the Pipeline and Hazardous Material Safety Administration. The NPRM proposes to amend the Hazardous Materials Regulations (HMR) to incorporate provisions contained in certain widely used or longstanding special permits (SP) and certain competent authority (CA) approvals that have established safety records.

SPs and CAs to Incorporate

The NPRM would incorporate the following special permits into the HMR:

DOT-SP 9275 authorized the transportation in commerce of certain limited quantities of liquids and solids containing ethyl alcohol and exempts these shipments from the provisions of HMR.

DOT-SP 11263 authorizes the transportation of solid coal tar pitch compounds, Class 9, in open-top and closed-top sift-proof metal cans or fiber drums.

DOT-SP 11836 authorizes the transportation of specific ammonia solutions in specification UN1H1drums, UN3H1 jerricans, and UN6HA1 composite packagings that do not meet the provisions in Sec. Sec.  173.24 and 173.24a.

DOT-SP 12134 authorizes the transportation of spent bleaching earth as a Division 4.2, solid, PG III, exempt from the provisions of the HMR, except as specifically required by the special permit.

DOT-SP 12825 authorizes the transportation of life-saving appliances, self-inflating, that contain non-DOT specification steel cylinders for the purpose of movement between a vessel and a U.S. Coast Guard approved inflatable life raft servicing facility in conjunction with the servicing of such life-saving appliances.

DOT-SP 14479 authorizes the continued use of regulated medical waste containers manufactured before October 1, 2006 and marked with an alternative shipping name for UN 3291 and orientation arrows that deviate from prescribed specifications.

The following Competent Authority Authorizations would also be incorporated into the HMR by this NPRM:

CA2006060005 authorizes the manufacture, mark, and sale of UN5M1 and UN5M2 multi-wall paper bags with individual paper wall basis weights that vary by not more than plus or minus 5% from the nominal basis weights reported in the initial design qualification test report.

CA2006060006 authorizes the manufacture, mark, and sale of UN4G combination packagings with outer fiberboard components that have individual containerboard basis weights that vary by not more than plus or minus 5% from the nominal basis weight reported in the initial design

CA2006010012 authorizes the manufacture, mark, and sale of UN4G combination packagings with outer fiberboard boxes and with inner fiberboard components that have individual containerboard basis weight that vary by not more than plus or minus 5% from the nominal basis weight reported in the initial design qualification test report.

FAA Modernization and Reform Act of 2012

Section 824 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95 126 Stat 130) provided specific exemptions from portions of the HMR for the transportation of certain oxidizing gasses in cylinders aboard aircraft in Alaska to communities with limited transportation access. This NPRM would add §175.34 to 49 CFR to implement this legislative exemption. In practice this eliminates the need for the following current Special Permits: 14903, 14908, 15062, 15075, 15076, 15077, 15078, 15079, 15092, 15094, 15095, and 15143. It does not, however, directly address these SPs.

Special Permit ICR

The incorporation of these Special Permits and Competent Authority Authorizations will eliminate the need for the holders of these exemptions and authorizations from periodically having to renew these actions. As a result PHMSA notes that the information collection request (ICR) supporting the applications (OMB # 2137-0051) will have a net decrease in the number of respondents, responses, burden hours (decrease of 434 for each) and burden costs (a decrease of $17,143). PHMSA will submit a request for a revision to this ICR to OMB based upon these decreased.

Public Comments

PHMSA is soliciting public comments on both the NPRM and the ICR revision. Comments on both can be submitted via the Federal eRulemaking Portal {www.Regulations.gov; Docket #PHMSA-2011-0158 (HM-233C)}. Written comments should be submitted by December 21^st, 2012.