2011-15956. Notification of Anticipated Delay in Administrative Appeal Decisions

AGENCY:

Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.

ACTION:

Notice.

SUMMARY:

This notice advises the public that PHMSA is currently reviewing numerous administrative appeals (i.e., petitions for reconsideration) on recently issued final rules. In accordance with applicable regulatory requirements, this notice provides notification to parties having brought certain administrative appeals of the anticipated delay in processing these administrative appeals.

FOR FURTHER INFORMATION CONTACT:

Charles E. Betts, Director, Standards and Rulemaking Division, Office of Hazardous Materials Safety, [phone], PHMSA, 1200 New Jersey Avenue, SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

I. Appeals

The Pipeline and Hazardous Materials Safety Administration's (PHMSA) Office of Hazardous Materials Standards recently received a number of petitions for reconsideration of several recent PMHSA final rules, which are known as “administrative appeals” under PHMSA's applicable regulations, 49 CFR 106.110 et seq. The administrative appeals that are the subject of this Federal Register notice focus on four recently published final rules. Key information on the administrative appeals, including the rulemaking docket number, are provided below. Interested persons may go to http://www.regulations.gov and search by the rulemaking docket number to view rulemakings, administrative appeals, comments, and other rulemaking related documentation. The administrative appeals now being considered by PHMSA, organized by final rule, are as follows:

HM-231 (Docket No. PHMSA-2006-25736)

Hazardous Materials; Miscellaneous Packaging Amendments (September 30, 2010; 75 FR 60333)

Appeal from	Issue
Dangerous Goods Advisory Council (DGAC)	Appeal focuses on the miscellaneous packaging requirements final rule pertaining to PHMSA's responsiveness to the request to extend the effective date of the final rule and revisions to the final rule in a manner not previously proposed or requested.

HM-233B (Docket No. PHMSA-2009-0410)

Hazardous Materials; Revisions of Special Permits Procedures (January 5, 2011; 76 FR 454)

Appeals from	Issue
Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA)	Appeal focuses on the special permit procedures final rule provisions addressing: • Estimating operations to be conducted under a special permit. • Listing the CEO or president of the company. • Providing a Dun and Bradstreet Data Universal Numbering System (DUNS) identifier.
Institute of Makers of Explosives (IME)	Appeal focuses on the special permit procedures final rule provisions addressing: • Listing all known locations where a special permit will be used. • Providing a description of operational controls. • Providing a statement outlining the reason(s) the hazardous material is being transported by air.
Association of Hazmat Shippers, Inc. (AHS)	Appeal focuses on the special permit procedures final rule provisions addressing: • Listing all known locations where a special permit will be used. • Providing estimates of the number of operations expected to be conducted under a special permit. • Providing a hazardous materials registration number. • Providing a statement justifying shipments by air. • Listing the CEO or president of the company. • Providing a DUNS identifier. • Providing a quantity or number of packages to be shipped.

HM-215K (Docket No. PHMSA-2009-0126)

Hazardous Materials; Harmonization With the United Nations Recommendations on the Transport of Dangerous Goods, International Maritime Dangerous Goods Code, International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (January 19, 2011; 76 FR 3308)

Appeals from	Issue
American Coatings Association (ACA)	Appeal focuses on the international harmonization final rule pertaining to PHMSA's decision to eliminate the ORM-D system “without any [PHMSA] debate or consideration of [1] the type of materials that use this exception; [2] the costs incurred by the regulated community; and [3] the safety benefits.” ACA also requests, based on a denial of their request to address the elimination of the ORM-D system in a separate rulemaking that PHMSA extend the transition period for use of the ORM-D system until January 1, 2016.
AHS	Appeal focuses on the international harmonization final rule pertaining to the limited quantity exception for the material “Self-reactive solid, Type F, UN3230.”
Dangerous Goods Transport Consulting, Inc. (DGTC) on behalf of DGAC	Appeal focuses on the international harmonization final rule provisions addressing: • UN3334 (Aviation regulated liquid, n.o.s.) and UN3335 (Aviation regulated solid, n.o.s.) be added to the list of excepted Class 9 (miscellaneous hazard) material on the basis that the material is authorized for limited quantity exceptions under the HMR and is consistent with the ICAO TI. • The one-year transition period does not allow sufficient time to deplete stock(s) of pre-printed packagings.
Fuel Cell and Hydrogen Energy Association (FHEA)	Appeal focuses on the international harmonization final rule pertaining to the prohibition on air transportation of fuel cell cartridges as ORM-D material and the deviation from the ICAO TI and the UN Model Regulations.
Lilliputian Systems, Inc., (LSI)	Appeal focuses on the international harmonization final rule pertaining to 49 CFR 175.10(a)(19) to align with the ICAO TI and allow spare fuel cell cartridges containing Division 2.1 flammable gas to be carried in checked baggage.
PPG Industries (PPG)	Appeal focuses on the international harmonization final rule pertaining to the one-year transition period for depletion of stock(s) of pre-printed packagings.
Sporting Arms & Ammunition Manufacturer's Institute (SAAMI)	Appeal focuses on the international harmonization final rule provisions addressing: • The list of prohibited hazardous material and articles. • Exceptions from the air prohibition for Table 3 in 49 CFR 173.27(f) pertaining to limited quantities of Class 1 (explosive) material conforming to 49 CFR 173.63(b) and Class 7 (radioactive) material conforming to 49 CFR 173.421 through 173.425.

PHM-7 (Docket No. PHMSA-2005-22356)

Hazardous Materials: Enhanced Enforcement Authority Procedures (March 2, 2011; 76 FR 11570)

Appeals from	Issue
COSTHA	Appeal focuses on the enhanced enforcement authority procedures final rule provisions addressing: • Package opening and reclosing by carrier vs. enforcement personnel. • Removing a package from transportation and ordering carrier personnel to transport the package for testing.
American Trucking Associations (ATA)	Appeal focuses on the enhanced enforcement authority procedures final rule provisions addressing: • Implementation of the authority to direct carriers to transport materials suspected of being hazardous materials to a facility for further examination. • Resumption of transportation for a package that violates the HMR, but does not present an imminent safety hazard.
United Parcel Service (UPS)	Appeal focuses on the enhanced enforcement authority procedures final rule provisions addressing: • Package opening at facilities vs. road side. • Department of Homeland Security's responsibility to open packages in pursuit of security related issues and possible treats.

II. Notification of Anticipated Delay in Appeal Decisions

49 CFR 106.130(a)(4) provides that if PHMSA does not issue a decision on whether to grant or deny an administrative appeal within 90 days after the date that the final rule is published in the Federal Register and that we anticipate a substantial delay in making a decision, PHMSA will notify parties having brought administrative appeals directly and provide an expected decision date. In addition, PHMSA will publish a notice of the delay in the Federal Register. Due to the volume of appeals received, as indicated above, we anticipate delays in making administrative appeal decisions. As a result, in accordance with 49 CFR 106.130(a)(4), we are publishing this notice in the Federal Register to notify the public, and we anticipate directly contacting parties having brought these administrative appeals shortly.

Issued in Washington, DC on June 21, 2011.

Magdy El-Sibaie,

Associate Administrator for Hazardous Materials Safety.