Special Permits, Enforcement Top DOT Agenda

The Pipeline and Hazardous Materials Safety Administration (PHMSA) of the U.S. Department of Transportation (DOT) has issued two recent final rules that may affect GAWDA distributor operations. The first is a new rule on special permit applications. Special permits, formerly known as exemptions, are alternative methods for complying with the Hazardous Materials Regulations (HMRs). When a company has a new product, procedure or technology that does not fit precisely within the requirements of the HMRs, the company may apply for a special permit for alternative compliance as long as the applicant can show that the new product, process or technology will afford an equivalent level of safety.

PHMSA published new procedures for special permit applications in August 2009. The agency will coordinate with the DOT modal administration for the type of transportation involved. For example, if an applicant seeks a special permit for transportation of hazardous materials by truck, PHMSA will look at the applicant’s record with the Federal Motor Carrier Safety Administration. If the applicant’s driver or vehicle out-of-service percentage is worse than the industry average, PHMSA will do additional scrutiny of the application. Moreover, PHMSA reserves the right to conduct an on-site inspection of the applicant’s facility and every location where the special permit will be in effect in order to evaluate the applicant’s safety fitness.

To further these objectives, PHMSA now requires each special permit application to include the name of the corporate CEO of the applicant, a point of contact for information about the special permit, a Dun & Bradstreet Data Universal Numbering System identification number, and the address of every physical location where the special permit will be used (this might include multiple applicant locations and even customer facilities) that are known at the time of the application.

As these new requirements will increase the time and effort needed to evaluate an applicant’s fitness, PHMSA has requested 38 new staff positions in the fiscal year 2012 budget; 30 of those employees would be used for special permits evaluations and enforcement. To pay for this effort, PHMSA has requested Congressional authority to impose user fees. PHMSA wants to impose a fee of $3,000 for each new special permit application and $1,000 for each renewal. It is not known at present whether Congress will grant this authority to the agency.

Effective May 1, 2011 applicants were able to apply for special permits online at the PHMSA website, however, and the information on an applicant’s locations may be saved in the data fields and reused for renewals or other SP applications. In addition, PHMSA has issued a new rule on procedures for issuing emergency orders (restrictions, prohibitions, recalls and out-of-service orders) to address unsafe conditions or practices posing an imminent hazard; opening packages to identify undeclared or non-compliant shipments when the person in possession of the package refuses a request to open it; and the temporary detention and inspection of potentially non-compliant packages. This new authority went into effect May 2, 2011.

These inspection and enforcement procedures will not change the current inspection procedures for DOT. But they do give the agency broad new powers to stop a shipment of hazardous materials in transit and open the outer packaging to determine if the shipment is in compliance with the HMRs. PHMSA officials may also divert a hazmat shipment from its transportation route to a facility for testing to ensure that the shipment complies with regulatory requirements. Although this rule-making was initially applicable to just undeclared shipments (i.e., no shipping papers, placards, labels or other markings) containing hazardous materials, it now applies to all shipments not fully in compliance with the HMRs. Thus, your delivery trucks may now be stopped, held and diverted to a testing facility to ensure that you have properly complied with the HMRs. If there are several shipments on a vehicle and only one shipment invokes regulatory scrutiny, all of the shipments may be held up until the issue is resolved.

Amazingly, PHMSA’s regulatory analysis concluded that this rulemaking will impose no additional compliance costs on industry.

Gases and Welding Distributors Association
Richard P. Schweitzer Meet the Author
GAWDA’s Government Affairs & Human Resources Legal Consultant Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC in Washington, D.C. Members can reach him at 202-223-3040 and rpschweitzer@rpslegal.com.