SUPPLEMENTARY INFORMATION:

I. PHMSA Action

A. What action is PHMSA taking in this final rule?

PHMSA is revising the Hazardous Materials Program Procedures (49 CFR part 107) to simplify the renewal process for special permits and approvals. Instead of requiring applicants to file for a renewal at least 60 days in advance of the expiration date, this final rule allows for submittal at any time on or before the expiration date. This revision ensures that the special permit or approval remains active while PHMSA completes its administrative review.

B. Does this action apply to me?

The action applies to holders of special permits or approvals with an expiration date. Effective 30 days after publication of this final rule, persons will be able to apply for the renewal of a special permit or approval at any time on or before its expiration date.

C. Why is PHMSA taking this action?

PHMSA is taking this action because the agency no longer needs the 60-day lead time to process renewal applications. PHMSA established the 60-day requirement when the application process relied on paper filings submitted by mail. PHMSA has transitioned to an electronic system since that time and can process renewal applications far more efficiently. PHMSA has determined there is no safety case supporting the need for a special permit to expire if a special permit holder fails to submit a renewal application less than 60 days prior to the expiration date and the application is not approved before the expiration date.

II. Summary of Comments Received in Response to the Notice of Proposed Rulemaking

PHMSA published a notice of proposed rulemaking (NPRM), cited as HM-268G, to gather feedback on PHMSA amending the timeframe for filing of a renewal application.^[1] Please refer to the NPRM for background and discussion of the proposed changes.

The following table alphabetically lists commenters to the NPRM:

PHMSA received widespread support for the proposal from a diverse range of industry stakeholders, including trade associations representing shippers, carriers, and packaging manufacturers. Commenters such as the APA, NTTC, and RIPA strongly endorsed the rulemaking, agreeing with PHMSA's assessment that the 60-day advance filing requirement is antiquated given the transition from mail-based paper correspondence to electronic filing systems. Supporters, including COSTHA and IVODGA, emphasized that the current rigid deadline creates unnecessary operational risks, noting that inadvertent lapses can lead to halted production, refused cargo, and supply chain disruptions. Furthermore, entities such as IPANA and AAR concurred that streamlining these ( printed page 49292) renewal procedures would reduce administrative burdens and costs without having any adverse impact on transportation safety. Collectively, these commenters—which also included the ACA, CGA, and ACD—urged PHMSA to finalize the amendments to 49 CFR 107.109(b) and 107.705(c) as written to provide greater regulatory flexibility and certainty.

However, some commenters had additional questions or concerns regarding PHMSA oversight and transparency. In addition, two commenters requested clarification of implementation. PHMSA addresses the concerns and requests below.

A. Comments on Accountability

PHMSA received comments from BLET, Smart TD, TTD, and the Delaware Riverkeeper Network stating that the proposals increase the burden on agency personnel and undermine accountability by reducing the time available for review. Commenters further argued that eliminating the 60-day advance filing requirement would create administrative ambiguity and could allow unsafe special permits to remain in effect longer than allowed under the current system.

PHMSA appreciates these comments but disagrees that allowing grantees to file a renewal application at any time on or before expiration would impose undue burdens on agency personnel or create additional ambiguity. PHMSA established the 60-day timeframe when applicants submitted paper filings by mail to help ensure that the process for renewal could play out prior to expiration. However, the modern electronic system allows applications to be received, processed, and evaluated far more quickly, eliminating the need for 60-days of additional lead time. Regarding commenter concerns about the unsafe use of special permits beyond its expiration date, PHMSA disagrees. The underlying safety of a special permit is considered at the outset with the initial application based on a determination by the Associate Administrator,^[2] and there is no need to terminate a special permit based solely on the failure to make a filing 60 days in advance, particularly with the transition from a mail-based to an electronic system. Furthermore, the administrative process and evaluation of applications for renewal is not the sole mechanism for safety oversight. PHMSA uses incident reporting, inspections and fitness determinations to help identify and address safety issues during the lifespan of a special permit. The legacy 60-day advance notice should not be misunderstood as necessary to determine safety of a special permit but rather was used as a marker to initiate renewal applications.

B. Comments on Continued Use

PHMSA received comments from CVSA and William Forbes stating that allowing grantees to file an application at any time on or before expiration of the special permit may cause confusion regarding timely submission and whether a special permit has indeed expired, possibly frustrating shipments made under a special permit that is in process under renewal application.

PHMSA appreciates these comments and notes that persons submitting a special permit renewal application via the PHMSA portal will automatically receive a timely filing letter. This letter will verify the submission of the renewal application, alleviating any confusion about the validity of the special permit and preventing frustration of shipments operating under the special permit in question. As stated in 49 CFR 107.109(b), if the application for renewal is received on or before the expiration date, the special permit will not expire prior to final administrative action on the application being taken. This will allow applicants to continue to operate with a special permit that would otherwise have been terminated unnecessarily.

C. Comments on Transparency

PHMSA received comments from BLET, Smart TD, and TTD stating that eliminating the 60-day renewal notice requirement undermines transparency by effectively limiting the time stakeholders have to evaluate special permit renewals. The commenters also argued that the 60-day requirement ensures that decisions regarding the extension of special permits are made with complete visibility and input from those most directly impacted.

PHMSA appreciates these comments and notes that, under the current regulations, new special permit applications—and applications for a modification—are docketed and published in the Federal Register under a notice for public comment. Renewals are not. PHMSA further notes that, as under the current process, stakeholders may publicly inspect special permit renewals via the PHMSA portal or request information associated with special permit renewals.^[3] This transparency should alleviate commenters' concerns.

D. Additional PHMSA Clarification

PHMSA is making a conforming revision to 49 CFR 107.109(b) to mirror the language in 49 CFR 107.705(c) and clearly state that the use of an expired special permit not filed on or before the expiration date is prohibited. PHMSA notes that hazardous material placed into transportation on or before expiration of a special permit (or an approval) with timely filing for renewal may continue in transportation to its destination.

For these reasons, PHMSA is revising 49 CFR 107.109(b) and 49 CFR 107.705(c) to remove the requirement that renewal applications be filed at least 60 days prior to expiration. The text is revised to state that applications must simply be filed “on or before” the expiration date. PHMSA notes this is modified from simply “before” in the proposed rule to read “on or before” in order to make clear the date by which the renewal must be submitted and that it includes the day on which the PHMSA-issued document expires. In addition, language regarding late filings in 49 CFR 107.705(c) is updated to reflect that applications are timely if filed on or before the expiration date. PHMSA has determined that these revisions will not have any adverse impact on safety.

III. Regulatory Analysis and Notices

A. Legal Authority

This final rule is published under the authority of the Secretary of Transportation as set forth in the Federal Hazardous Materials Transportation Laws (49 U.S.C. 5101 et seq.) and delegated to the PHMSA Administrator pursuant to 49 CFR 1.97.

B. Executive Order 12866; Regulatory Planning and Review

Executive Order (E.O.) 12866 ( Regulatory Planning and Review), as implemented by 49 CFR part 5, subpart B, requires agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” ^[4] In arriving at those conclusions, E.O. 12866 requires that agencies should consider “both quantifiable measures . . . and qualitative measures of costs and benefits that are difficult to quantify” ( printed page 49293) and “maximize net benefits . . . unless a statute requires another regulatory approach.” E.O. 12866 also requires that “agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating.” Pursuant to 49 CFR part 5, subpart B, PHMSA and other Operating Administrations must generally choose the “least costly regulatory alternative that achieves the relevant objectives” unless required by law or compelling safety need. In addition, 49 CFR part 5, subpart B specifies that regulations should generally “not be issued unless their benefits are expected to exceed their costs.”

E.O. 12866 and 49 CFR part 5, subpart B also require that PHMSA submit “significant regulatory actions” to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President's Office of Management and Budget (OMB) for review. This final rule is not a significant regulatory action pursuant to E.O. 12866 and has not been designated as a “major rule” as defined by the Congressional Review Act (5 U.S.C. 801 et seq.).

PHMSA has complied with the requirements in E.O. 12866 as implemented by 49 CFR part 5, subpart B and determined that this final rule will result in cost savings by reducing regulatory burdens and regulatory uncertainty for affected entities by simplifying the special permit and approval renewal procedures. PHMSA finds those cost savings will also result in reduced costs for the public to whom those entities generally transfer a portion of their compliance costs.

C. Executive Orders 14192 and 14219

PHMSA has determined that this final rule is an E.O. 14192 ( Unleashing Prosperity Through Deregulation ) deregulatory action.^[5] PHMSA finds the total costs of the rule on the regulated community will be less than zero. This final rule does not implicate any of the factors identified in section 2(a) of E.O. 14219 ( Ensuring Lawful Governance ) indicative of a regulation that is “unlawful . . . [or] that undermine[s] the national interest.” ^[6]

D. Energy-Related Executive Orders 13211, 14154, and 14156

PHMSA has analyzed this final rule in accordance with the principles and criteria contained in E.O. 14156 ( Declaring a National Energy Emergency) and E.O. 14154 ( Unleashing American Energy ).^[7] The President has declared a national emergency to address America's inadequate energy development production, transportation, refining, and generation capacity and asserted a Federal policy to unleash American energy by ensuing access to abundant supplies of reliable, affordable energy from (inter alia) the removal of “undue burden[s]” on the identification, development, or use of domestic energy resources. PHMSA finds this final rule is consistent with E.O. 14156 and E.O. 14154 because it will not hinder or unduly burden the transportation or production of energy or energy-related products and will give affected entities greater flexibility for renewing and continued use special permits and approvals.

In addition, this final rule is not a “significant energy action” under E.O. 13211 ( Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use ), which requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” ^[8] Because this final rule is not a significant action under E.O. 12866, it will not have a significant adverse effect on supply, distribution, or energy use; accordingly, OIRA has not designated this final rule as a significant energy action.

E. Executive Order 13132; Federalism

PHMSA analyzed this final rule in accordance with the principles and criteria contained in E.O. 13132 ( Federalism) and the Presidential Memorandum ( Preemption) published in the Federal Register on May 22, 2009.^[9] E.O. 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may have “substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.” The Federal Hazardous Materials Transportation laws contain an express preemption provision at 49 U.S.C. 5125(b) that preempts State, local, and Tribal requirements on certain covered subjects, unless the non-Federal requirements are “substantively the same” as the Federal requirements, including the following:

(1) The designation, description, and classification of hazardous material;

(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous material;

(3) The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents;

(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; and

(5) The design, manufacture, fabrication, inspection, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.

This final rule addresses items that may be covered in Paragraphs 2 and 5 above and would preempt State, local, and Tribal requirements not meeting the “substantively the same” standard. Though the final rule may operate to preempt some State requirements, it would not impose any regulation that has substantial direct effects on the States, the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of government. The preemptive effect of the regulatory amendments in this final rule is limited to the minimum level necessary to achieve the objectives of the Federal Hazardous Materials Transportation laws. Therefore, the consultation and funding requirements of E.O. 13132 do not apply.

F. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires Federal agencies to conduct a Final Regulatory Flexibility Analysis (FRFA) for a final rule that has been subject to notice-and-comment rulemaking under the APA unless the agency head certifies that the final rule will not have a significant economic impact on a substantial number of small entities. E.O. 13272 ( Proper Consideration of Small Entities in Agency Rulemaking ) obliges agencies to establish procedures promoting compliance with the Regulatory Flexibility Act.^[10] DOT posts information on a dedicated web page to help small businesses understand and navigate Federal regulatory processes.^[11] This final rule was developed in accordance with E.O. 13272 and DOT implementing guidance to ensure compliance with the Regulatory Flexibility Act. The final ( printed page 49294) rule will reduce burdens on special permit and approval holders looking to renew these government-issued documents. PHMSA finds the final rule will not impact safety as the timing for submittal of a renewal application has changed but the processing and evaluation of a renewal application remains unchanged. Therefore, PHMSA certifies the final rule does not have a significant impact on a substantial number of small entities.

G. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act (UMRA, 2 U.S.C. 1501 et seq.) requires agencies to assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector. For any proposed or final rule that includes a Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate of $100 million or more (in 1996 dollars) in any given year, the agency must prepare, among other things, a written statement that qualitatively and quantitatively assesses the costs and benefits of the Federal mandate.

This final rule does not impose unfunded mandates under UMRA because it does not result in costs of $100 million or more (in 1996 dollars) per year for either State, local, or Tribal governments, or to the private sector.

H. National Environmental Policy Act

PHMSA has analyzed this rule pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and has determined it is categorically excluded under 23 CFR 771.117(c)(20), which applies to the promulgation of rules, regulations, and directives. Under Section 9 of DOT Order 5610.1D, PHMSA may apply a categorical exclusion (CE) established in another Operating Administration's procedures. PHMSA followed the requirements outlined in DOT Order 5610.1D to apply the Federal Highway Administration's CE to this deregulatory action. PHMSA has determined no unusual circumstances are present under 23 CFR 771.117(b). PHMSA's Categorical Exclusion Determination memo for this action is available on PHMSA's website.^[12]

I. Executive Order 13175

PHMSA analyzed this final rule according to the principles and criteria in E.O. 13175 ( Consultation and Coordination with Indian Tribal Governments) and DOT Order 5301.1A ( Department of Transportation Tribal Consultation Policies and Procedures ).^[13] E.O. 13175 requires agencies to assure meaningful and timely input from Tribal government representatives in the development of rules that significantly or uniquely affect Tribal communities by imposing “substantial direct compliance costs” or “substantial direct effects” on such communities or the relationship or distribution of power between the Federal Government and Tribes.

PHMSA assessed the impact of the final rule and determined it will not significantly or uniquely affect Tribal communities or Indian Tribal governments. The rulemaking's regulatory amendments have a broad, national scope; therefore, this final rule will not significantly or uniquely affect Tribal communities, much less impose substantial compliance costs on Tribal governments or mandate Tribal action. For these reasons, PHMSA has concluded that the funding and consultation requirements of E.O. 13175 and DOT Order 5301.1A do not apply.

J. Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR 1320.8(d) requires that PHMSA provide interested members of the public and affected agencies with an opportunity to comment on information collection and recordkeeping requests. This rulemaking will not create, amend, or rescind any existing information collections.

K. Executive Order 13609 and International Trade Analysis

E.O. 13609 ( Promoting International Regulatory Cooperation ) requires agencies consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American business to export and compete internationally.^[14] In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.

Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

PHMSA engages with international standards setting bodies to protect the safety of the American public. PHMSA has assessed the effects of the final rule and has determined that its regulatory amendments will not cause unnecessary obstacles to foreign trade.

L. Cybersecurity and Executive Order 14028

Executive Order 14028 ( Improving the Nation's Cybersecurity) directed the Federal Government to improve its efforts to identify, to deter, and to respond to “persistent and increasingly sophisticated malicious cyber campaigns.” ^[15] PHMSA has considered the effects of the final rule and has determined that its regulatory amendments would not materially affect the cybersecurity risk profile for affected entities.

M. Privacy Act Statement

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to inform its rulemaking process better. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at https://www.dot.gov/​privacy. DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000, or on DOT's website at https://www.dot.gov/​privacy.

( printed page 49295)

In consideration of the foregoing, PHMSA amends 49 CFR Chapter I as follows:

91 FR 49291