On February 29, 2012, the Pipeline and Hazardous Materials Safety Administration (PHMSA) conducted a public meeting to discuss Special Permit and Approval applicant fitness determinations. PHMSA has the primary responsibility for the issuance of Department of Transportation (DOT) special permits, a document authorizing a person to perform a function that is not otherwise permitted under the Hazardous Materials Regulations (HMR), and approvals, a written consent to perform a function requiring prior consent under the HMR, under the 49 CFR parts 100-185.
Applicants are required by the HMR to request an approval from PHMSA: for the classification of explosives, fireworks, organic peroxides, and self-reactive materials; when package design types vary from the design or test standards specified in the regulations; and for persons performing certain activities requiring approval (e.g., visual cylinder re-qualifiers). PHMSA may determine applicant fitness via information in the application, prior compliance history of the applicant, and other information available.
Since a public meeting held on August 19, 2010 to provide for public participation in the discussion concerning the criteria used to determine an applicant minimum level of fitness, PHMSA has been working to obtain the necessary fitness data to conduct accurate and efficient fitness determinations and deliver quantitative data that can be used to further develop an automated fitness review process.
In the last two years since PHMSA invested extensive resources to meet the increased process review and accountability within the program, over 45,000 special permits and approvals applications have been processed. In total, 99% of applicants were determined to be fit to conduct the activity authorized in the special permit or approval application.
The majority of the comments presented during the meeting pertained to the fact that most applicants who applied for Special Permits and Approvals are already fit to do so. There is an excessive focus on fitness that is impeding progress. Rather than conduct fitness determinations on a case by case basis, there should be an assumption that individual entities are already fit. Fitness reviews should be periodically performed across the board to find those that are unfit. Less effort should be placed on fitness; furthermore technical merit should carry more weight in determination. Special Permit and Approval standards should be placed directly into the HMR. Comments also reflected issues with accuracy of data and concerns over unregulated materials.
Many of the comments reflected, in hindsight, concern that the current process did not go through a traditional notice and comment period as stipulated in the Administrative Procedure Act (APA).
For further information or questions regarding the Special Permit applications or fitness determinations, contact Glenn Wicks at (202) 457-7790.