§ 5117. Special permits and exclusions

(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 special permit has been filed and shall give the public an opportunity to inspect the safety analysis and comment on the application. 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 the special permit for which an application was filed or deny such issuance or renewal within 180 days after the first day of the month following the date of the filing of such application, or the Secretary shall publish a statement in the Federal Register of the reason why the Secretary’s decision on the special permit 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 (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.

(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.)

Historical And Revision

Historical and Revision Notes
Revised Section	Source (U.S. Code)	Source (Statutes at Large)
5117(a)	49 App.:1806(a) (1st, 2d sentences).	Jan. 3, 1975, Pub. L. 93–633, § 107, 88 Stat. 2158; Nov. 16, 1990, Pub. L. 101–615, § 9, 104 Stat. 3259.
5117(b)	49 App.:1806(a) (3d–last sentences).
5117(c)(1)	49 App.:1806(b).
5117(c)(2)	49 App.:1806(c).
5117(d)	49 App.:1806(d).

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.

References In Text

References in Text

The Ports and Waterways Safety Act of 1972, referred to in subsec. (d)(1)(C), is Pub. L. 92–340, July 10, 1972, 86 Stat. 424, as amended, which is classified generally to chapter 25 (§ 1221 et seq.) of Title 33, Navigation and Navigable Waters. For complete classification of this Act to the Code, see Short Title note set out under section 1221 of Title 33 and Tables.

Amendments

Amendments

2012—Subsec. (f). Pub. L. 112–141 added subsec. (f).

2005—Pub. L. 109–59, § 7115(a)(1), substituted “Special permits and exclusions” for “Exemptions and exclusions” in section catchline.

Subsec. (a). Pub. L. 109–59, § 7115(b), substituted “Issue Special Permits” for “Exempt” in heading.

Subsec. (a)(1). Pub. L. 109–59, § 7126, substituted “Secretary” for “Secretary of Transportation” in introductory provisions.

Pub. L. 109–59, § 7115(c), in introductory provisions, substituted “issue, modify, or terminate a special permit authorizing a variance” for “issue an exemption” and “performing a function regulated by the Secretary under section 5103(b)(1)” for “transporting, or causing to be transported, hazardous material”.

Subsec. (a)(2). Pub. L. 109–59, § 7115(d), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “An exemption under this subsection is effective for not more than 2 years and may be renewed on application to the Secretary.”

Subsec. (b). Pub. L. 109–59, § 7115(e), substituted “the special permit” for “the exemption” and substituted “a special permit” for “an exemption” wherever appearing.

Subsec. (c). Pub. L. 109–59, § 7115(f), substituted “the special permit” for “the exemption” in two places.

Subsec. (e). Pub. L. 109–59, § 7115(g), substituted “a special permit” for “an exemption” and “be granted a variance” for “be exempt”.

1994—Subsecs. (c) to (e). Pub. L. 103–311 added subsec. (c) and redesignated former subsecs. (c) and (d) as (d) and (e), respectively.

Effective Date Of Amendment

Effective Date of 2012 Amendment

Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of Title 23, Highways.

Miscellaneous

Special Permits, Approvals, and Exclusions

Pub. L. 112–141, div. C, title III, § 33012(a), (b), July 6, 2012, 126 Stat. 838, provided that:

“(a)Rulemaking.—Not later than 2 years after the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of Title 23, Highways], the Secretary [of Transportation], after providing notice and an opportunity for public comment, shall issue regulations that establish—

“(1) standard operating procedures to support administration of the special permit and approval programs; and

“(2) objective criteria to support the evaluation of special permit and approval applications.

“(b) Review of Special Permits.—

“(1)Review.—Not later than 1 year after the date of enactment of this Act, the Secretary shall conduct a review and analysis of special permits that have been in continuous effect for a 10-year period to determine which special permits 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), but not later than 3 years after the date of enactment of this Act, and after providing notice and opportunity for public comment, the Secretary shall issue regulations to incorporate into the hazardous materials regulations any special permits identified in the review under paragraph (1) that the Secretary determines are appropriate for incorporation, based on the factors identified in paragraph (2).”