§ 5117. Special permits and exclusions

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(a)Authority To Issue Special Permits.—

(1)As provided under procedures prescribed by regulation, the Secretary may issue, modify, or terminate a special permit authorizing a variance from this chapter or a regulation prescribed under section 5103(b), 5104, 5110, or 5112 of this title to a person performing a function regulated by the Secretary under section 5103(b)(1) in a way that achieves a safety level—

(A)at least equal to the safety level required under this chapter; or

(B)consistent with the public interest and this chapter, if a required safety level does not exist.

(2)A special permit issued under this section shall be effective for an initial period of not more than 2 years and may be renewed by the Secretary upon application for successive periods of not more than 4 years each or, in the case of a special permit relating to section 5112, for an additional period of not more than 2 years.

(b)Applications.— When applying for a special permit or renewal of a special permit under this section, the person must provide a safety analysis prescribed by the Secretary that justifies the special permit. The Secretary shall publish in the Federal Register notice that an application for a new special permit or a modification to an existing special permit has been filed and shall give the public an opportunity to inspect the safety analysis and comment on the application. The Secretary shall make available to the public on the Department of Transportation’s Internet Web site any special permit other than a new special permit or a modification to an existing special permit and shall give the public an opportunity to inspect the safety analysis and comment on the application for a period of not more than 15 days. This subsection does not require the release of information protected by law from public disclosure.

(c)Applications To Be Dealt With Promptly.— The Secretary shall issue or renew a special permit or approval for which an application was filed or deny such issuance or renewal within 120 days after the first day of the month following the date of the filing of such application, or the Secretary shall make available to the public a statement of the reason why the Secretary’s decision on a special permit or approval is delayed, along with an estimate of the additional time necessary before the decision is made.

(d)Exclusions.—

(1)The Secretary shall exclude, in any part, from this chapter and regulations prescribed under this chapter—

(A)a public vessel (as defined in section 2101 of title 46);

(B)a vessel exempted under section 3702 of title 46 from chapter 37 of title 46; and

(C)a vessel to the extent it is regulated under the Ports and Waterways Safety Act of 1972 1 (33 U.S.C. 1221 et seq.).

(2)This chapter and regulations prescribed under this chapter do not prohibit—

(A)or regulate transportation of a firearm (as defined in section 232 of title 18), or ammunition for a firearm, by an individual for personal use; or

(B)transportation of a firearm or ammunition in commerce.

(e)Limitation on Authority.— Unless the Secretary decides that an emergency exists, a special permit or renewal granted under this section is the only way a person subject to this chapter may be granted a variance from this chapter.

(f)Incorporation Into Regulations.—

(1)In general.— Not later than 1 year after the date on which a special permit has been in continuous effect for a 10-year period, the Secretary shall conduct a review and analysis of that special permit to determine whether it may be converted into the hazardous materials regulations.

(2)Factors.— In conducting the review and analysis under paragraph (1), the Secretary may consider—

(A)the safety record for hazardous materials transported under the special permit;

(B)the application of a special permit;

(C)the suitability of provisions in the special permit for incorporation into the hazardous materials regulations; and

(D)rulemaking activity in related areas.

(3)Rulemaking.— After completing the review and analysis under paragraph

(1)and after providing notice and opportunity for public comment, the Secretary shall either institute a rulemaking to incorporate the special permit into the hazardous materials regulations or publish in the Federal Register the Secretary’s justification for why the special permit is not appropriate for incorporation into the regulations.

(g)Disclosure of Final Action.— The Secretary shall periodically, but at least every 120 days—

(1)publish in the Federal Register notice of the final disposition of each application for a new special permit, modification to an existing special permit, or approval during the preceding quarter; and

(2)make available to the public on the Department of Transportation’s Internet Web site notice of the final disposition of any other special permit during the preceding quarter.

(Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 776; Pub. L. 103–311, title I, § 120(a), Aug. 26, 1994, 108 Stat. 1680; Pub. L. 109–59, title VII, §§ 7115(a)(1), (b)–(g), 7126, Aug. 10, 2005, 119 Stat. 1901, 1909; Pub. L. 112–141, div. C, title III, § 33012(c), July 6, 2012, 126 Stat. 839; Pub. L. 114–94, div. A, title VII, § 7204, Dec. 4, 2015, 129 Stat. 1592.)

In subsection (a)(1), before clause (A), the words “or renew” and “subject to the requirements of this chapter” are omitted as surplus. In clause (A), the words “at least equal to the safety level required under this chapter” are substituted for “which is equal to or exceeds that level of safety which would be required in the absence of such exemption” to eliminate unnecessary words.

In subsection (a)(2), the words “issued or renewed” are omitted as surplus.

In subsection (b), the words “upon application” and “grant of such” are omitted as surplus. The words “give the public an opportunity to inspect” are substituted for “afford access to . . . public” for clarity. The words “described by subsection

(b)of section 552 of title 5, or which is otherwise” are omitted as surplus.

In subsection (c)(1), clauses

(A)and

(B)are substituted for “any vessel which is excepted from the application of section 201 of the Ports and Waterways Safety Act of 1972 by paragraph

(2)of such section”. Section 201 of that Act amended section 4417a of the Revised Statutes (classified at 46:391a prior to its repeal and reenactment as part of the codification of subtitle II of title 46 in 1983). Clauses

(A)and

(B)restate the exceptions provided by section 201 of that Act and by section 4417a of the Revised Statutes as subsequently amended. Clause

(C)is substituted for “any other vessel regulated under such Act, to the extent of such regulation” because of the restatement.

In subsection (c)(2), before clause (A), the word “prescribed” is substituted for “issued” for consistency in the revised title and with other titles of the United States Code.

In subsection (d), the words “by which”, “the requirements of”, and “or relieved of the obligation to meet any requirements imposed under” are omitted as surplus.

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