[Federal Register Volume 89, Number 50 (Wednesday, March 13, 2024)]
[Notices]
[Pages 18482-18484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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\ https://www.govinfo.gov/content/pkg/USCODE-2011-title49/html/USCODE-2011-title49-subtitleIII-chap51.htm.
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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 https://www.phmsa.dot.gov/approvals-and-permits/hazmat/special-permits-search.
    \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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     Information describing all relevant shipping and incident 
experience of which the applicant is aware that relates to the 
application.
     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.
     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

[[Page 18484]]

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