Sep 30, 2015

PHMSA Publishes Final Rule on Fitness and SOPs for Special Permits and Approvals (HM-233E)

On Sept. 10, the U.S. Department of Transportation's (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule that incorporates standard operating procedures and criteria for "fitness to perform" in the evaluation of applications for special permits and approvals.  The effective date of this final rule is Nov. 9, 2015. This rulemaking was required under the 2012 adopted reauthorization bill, Moving Ahead for Progress in the 21st Century (MAP-21).

ACA and a broader coalition of industries, had petitioned PHMSA to address the standard operating procedures for determining fitness and the fitness criteria upon which such decisions are made. While PHMSA declined to initiate such a rulemaking, ACA and the coalition successfully advocated for language in the reauthorization bill that would force PHMSA to do so. 

PHMSA's Special Permits program was created to allow companies to transport and package hazardous materials in domestic transport in a manner not specifically authorized by the Hazardous Materials Regulations (HMR). Special Permits authorize, for example, the movement of a new substance or allow the use of a new or unique packaging. Approximately 4,500 special permits are maintained in PHMSAs current database. Many paint companies require Special Permits in order to ship raw materials, finished products or waste materials. ACA and its Transportation and Distribution Committee has spent considerable energy and resources responding to the changing policies and procedures of the Special Permits program over the last several years.

One of real impacts of this final rule is that standard operating procedures for review of applications for Special Permits, Emergency Special Permits and Approvals has now been incorporated into the HMR and is easily accessible by applicants. Prior to this rulemaking, these standard operating procedures were impossible or near-difficult to find on PHMSA website and consequently, the internal process for considering applications and the fitness criteria were not well-understood. PHMSA's internal process is complex and involves several layers of review. This rulemaking did not significantly change PHMSA's process, but for now, it is a bit more transparent and is regulatory language.

The final amendments in HM-233E add the following provisions to the HMR:

  • Section 105.5, revised definitions for "approval" and "special permit" and clarifies who may issue them;
  • Section 107.1, new definitions for "applicant fitness", "fit or fitness", "fitness coordinator," and "insufficient corrective action";
  • Section 107.113/117/709, requires that the Associate Administrator review all applications in conformance with newly adopted standard operating procedures in Appendix A to Part 107;
  • Part 107, Appendix A, incorporates Appendix A into the HMR.  Appendix A are the standard operating procedures that PHMSA has been using to process applications for special permits, emergency special permits and approvals and make decisions about fitness; and
  • Section 171.8, revised definitions for approval and special permit.

While ACA did not file comments on this proposed rule, its concerns were expressed by the Dangerous Good Advisory Council (DGAC). DGAC had requested that PHMSA develop an expedited procedure to accomplish minor changes to a Special Permit, such as company name changes or change of address. PHMSA declined to develop such an expedited process, indicating that making such modifications to a Special Permit is not a significant burden to them, particularly if the application to do so is complete. In addition, PHMSA maintains that there is an added safety benefit in that screening of an application will reveal any profile changes for the applicant. 

Read on: