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PHMSA Responds to Petitions, Revises Special Permit Application Procedures

Posted on 7/26/2011 by James Griffin

On January 5, 2011 (76 FR 454), the U.S. Department of Transportation (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) published amendments to the application procedures for hazardous material special permits. These amendments required applicants for special permits to provide more information about their operations so that PHMSA could better evaluate the safety impact of special permits in the future.
 
Soon after publication, the Council on Safe Transportation of Hazardous Articles Inc. (COSTHA), the Institute for Makers of Explosives (IME), and Lawrence Bierlein on behalf of the Association of Hazmat Shippers filed petitions with the DOT objecting to some of the new application procedures in the January 5 final rule. Some, but not all, of the objections were that the applicant:
 
  • Provide the list of all known locations where a special permit would be used,
  • Provide a “DUNS” number,
  • Provide the name of the CEO or President of the company,
  • Describe the quantity of hazardous materials to be shipped under a special permit.
 
On July 26, 2011 (76 FR 44496), PHMSA published its reply to these objections, rejecting most of them, but providing clarification on some of the requirements in a non-regulatory preamble.
 
PHMSA has responded to these objections as follows:
 
Locations of Use
An application for a special permit, party status, or permit renewal, “…must state the name, mailing address, and physical address(es) of all known locations where the special permit would be used…” [49 CFR 107.105(a)(2), 107.107(b)(3), 107.109(a)(3)]. COSTHA and the IME both requested that PHMSA clarify exactly what information is covered by this requirement.
 
In the July 26, 2011, Federal Register, PHMSA clarified that the intent was “…for the applicant to provide a list of the initial locations where a special permit is intended to be used at the time of the application,” and not to require “…applicants to resubmit an application for those facilities using a special permit after an application has been submitted.” However, applicants must update the list of facilities using the permit whenever they apply for a renewal.
 
PHMSA also clarified that it does not want a list of facilities where hazardous materials moving under a special permit would be delivered to or reshipped from. So, for a vehicle operating under a special permit, the application must provide the address of the vehicle’s home base. For packagings authorized by special permits, the application must provide the address of the locations at which the package will be prepared. Persons who receive and reship these packages do not need to be identified in the special permit application.
 
Naming the CEO or President
An application for a special permit, party status, or permit renewal, “…must state the… name of the company Chief Executive officer (CEO), president, or ranking executive officer…” [49 CFR 107.107(b)(3), 107.109(a)(3)].
 
COSTHA and Mr. Bierlein both pointed out to PHMSA that a requirement to name the CEO or president on an application may not be effective, as the position has a high turnover rate and the officer may not have direct oversight of hazardous materials shipping operations. PHMSA agreed with this argument and said it would revise this requirement to provide the identification of a senior corporate official with oversight over hazmat shipping.
 
While PHMSA did add the term “or ranking executive officer” to the procedures for party-to or renewal applications, the July 26 rulemaking did not amend the procedures for initial permit applications at 49 CFR 107.105(a)(2). I suspect this is an oversight and may be corrected shortly.
 
“DUNS” Number
An application for a special permit, party status, or permit renewal, “… must state the… Dun and Bradstreet Data Universal Numbering System (DUNS) identifier….”
 
COSTHA and Mr. Bierlein questioned PHMSA’s decision to require corporate applicants for special permits to provide a DUNS identifier. PHMSA is retaining this requirement to “…ensure that all data on a company is identified with that company and prevent companies from being in the system with multiple variations of a company’s name’s spelling.” PHMSA chose the DUNS identifier over other possible unique identifiers because there is no cost to aquire one.
 
Quantity of Materials
An application for a special permit, party status, or permit renewal, must include “…an estimate of the number of operations expected to be conducted or number of shipments to be transported under the special permit” [49 CFR 107.105(c)(10)].
 
COSTHA and Mr. Bierlein questioned PHMSA’s need for this information, and the regulated community’s ability to provide it. PHMSA maintains that it requires this information to establish whether an applicant has met or will provide an equivalent level of safety under a special permit. PHMSA does clarify that for initial applications, a “reasonable estimate” of the amount of shipments will be sufficient.
 

Tags: DOT, hazmat shipping, new rules

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