A 2009 investigation into PHMSA’s management of its Special Permits and Approvals program into paperwork omissions and errors resulted in a wholesale overhaul of the program with new standard operating procedures (SOP) and a focus on the need to assess the “fitness” of applicants to hold these authorizations. Since that time, IME has urged the agency to initiate rulemaking to establish its safety fitness standards. PHMSA resisted this recommendation, claiming that these decisions were internal to the agency’s administrative functions. Congress disagreed and, in the 2012 amendments to the Hazardous Materials Transportation Act, required PHMSA to establish its SOPs and fitness standards by rulemaking. In August, PHMSA published a request for comments on its SOPs and safety fitness standards. While IME welcomes the opportunity to submit comments, the rulemaking was not initiated in time to meet the statutory deadline for promulgating final rules by October 1, 2014.
IME’s comments support a number of the proposed enhancements to the SOPs including a limitation on the “look back” period to assess fitness and discontinuing the practice of requiring applicants for classification approvals to submit to fitness evaluations when applications for these approvals are required by regulation. However, IME remains concerned that the original three-tiered, multiple-signoff regimen has not been sufficiently streamlined and that it contributes to the chronic application backlog pending at the agency. Most concerning is the concentration of decision-making in the hands of field enforcement staff and the lack of objective standards of performance that would render an applicant “fit” following a tier 3 review.