PHMSA Codifies Special Permit and Approvals Standard Operating Procedures
The Final Rule, mandated by the Moving Ahead for Progress in the 21st Century Act (MAP 21) and first proposed in August 2014, makes the following changes to the 49 CFR hazmat special permit and approval procedures:
- Adds a new Appendix A to 49 CFR Part 107, called "Standard Operating Procedures for Special Permits and Approvals"; and
- Revises definitions of "approval," "special permit", and other terms in 49 CFR 171.8 to clarify and codify the procedures PHMSA uses to evaluate special permit and approval applications.
In the new 49 CFR 107 Appendix A, PHMSA breaks down its procedures for evaluating special permits into five phases:
Phase 1: Completeness. PHMSA reviews special permits to make sure they include all information required by the HMR. For Special Permit applications, what's required is found at 49 CFR 107.105. For approvals, the rules are found at 107.705.
Phase 2: Federal Register publication. PHMSA notifies the public via the Federal Register that it has received new applications for special permits and/or approvals.
Phase 3: Evaluation. PHMSA evaluates applications by performing two assessments: a "technical evaluation" and a "safety profile evaluation".
The "technical evaluation" consists of determining whether the special permit will achieve a safety level at least equal to the HMR. For approvals, the technical evaluation determines whether the application meets the requirements of the HMR.
To complete the "safety evaluation" PHMSA reviews available information on accidents, hazmat violations, and more to ensure the applicant is "fit" to operate under the special permit or approval. More details about the safety evaluation and review process can be found below.
Phase Four: Disposition. If a special permit is issued, PHMSA provides the applicant with the special permit and/or authorization letter. For approvals, PHMSA may provide the applicant with an "EX" approval number, or other approval numbers like an RIN, VIN, M number, or a CA.
If the special permit or approval is denied, PHMSA will provide a brief written statement to the applicant, citing reasons for denial and outlining reconsideration procedures.
Phase Five: Reconsideration. When PHMSA denies a special permit or approval, the applicant may request reconsideration under the rules at 49 CFR 107.123 for special permits, and 107.715 for approvals. If reconsideration is denied, the applicant can appeal this decision as well.
The Permit/Approval Safety Review Process
All special permit and approval applications submitted to PHMSA go through an initial automated review that checks the applicant's hazmat safety record and other information against DOT databases. If a certain number of safety "triggers" are discovered in the automated review, PHMSA will carry out a more comprehensive "safety review" or an on-site inspection to further evaluate the applicant.
Trigger events for safety review are as follows:
- Any incident that involved a death or injury;
- Two or more incidents involving a 172.504(e) Table 1 hazardous material;
- Three or more incidents involving bulk packaging, or an applicant that is acting as an interstate carrier of hazmat under the terms of the special permit or approval; or
- Any incident that involved:
- incorrect package selection;
- leaking packages;
- not following closure instructions;
- failure to test packages if applicable; or
- failure to secure packages; including incorrect blocking and/or bracing.
- Any incident on the "safety review" trigger list that is attributable to the applicant or package, other than driver error;
- Evidence that an applicant is at risk of being unable to comply with the terms of an application;
- The applicant has not taken sufficient corrective action for violations discovered within the last four years, or is determined to be unable to comply with the terms of the special permit, approval, existing special permit or approval, or the HMR.
- Incorrect or missing markings, labels, placards, or shipping papers.
Today's rulemaking also includes a discussion between PHMSA and industry groups about what types of violations should or should not result in PHMSA denying a special permit or approval application.
Notable commenters on this rulemaking include: the American Trucking Associations, The Chlorine Institute, Dangerous Goods Advisory Council, Institute of Makers of Explosives, Reusable Industrial Packaging Association, and the Sporting Arms and Ammunition Manufacturer's Institute, Inc.
While this rulemaking simply codifies PHMSA procedures already in place, it is important that hazmat shippers and carriers understand the process for applying for special permits and approvals. Officially codifying these standard operating procedures in the HMR will hopefully make the review process more transparent. The Final Rule is set to take effect on November 9, 2015.
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