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a second copy of the document from which has been deleted the information for which confidential treatment is claimed. The person shall indicate in the original document that it is confidential or contains confidential information and may file a statement specifying the justification for which confidential treatment is claimed. If the person states that the information comes within the exception in 5 U.S.C. 522(b)(4) for trade secrets and commercial or financial information. that person must include a statement as to why the information is privileged or confidential. If the person filing a document does not submit a second copy of the document with the confidential information deleted, the OHMO may assume that there is no objection to public disclosure of the document in its entirety.

(b) The OHMO retains the right to make its own determination with regard to any claim of confidentiality. Notice of a decision by the OHMO to deny the claim, in whole or in part, and an opportunity to respond shall be given to a person claiming confidentiality of information no less than five days prior to its public disclosure.

SUBPART B-EXEMPTIONS

$107.101 Purpose and scope.

This subpart prescribes procedures by which persons who are subject to the requirements of this subchapter, Subchapter C of this chapter, 14 CFR Part 103, or 46 CFR Part 64 or Part 146 may obtain administrative relief therefrom on the basis of equivalent levels of safety or levels of safety consistent with the public interest and the policy of the Hazardous Materials Transportation Act.

$107.103 Application for exemption.

(a) Any person who is subject to the requirements of this subchapter, Subchapter C of this chapter, 14 CFR Part 103, or 46 CFR Part 64 or Part 146 may apply to the Director, OHMO, for an exemption from those requirements.

(b) Each application filed under this section for an exemption must(1) Be submitted in triplicate to: Office of Hazardous Materials Operations, U.S. Department of Transportation, Washington, D.C. 20590, Attention: Exemptions Branch;

(2) Set forth the text or substance of the regulation from which the exemption is sought;

(3) State the name, address, and telephone number of the applicant;

(4) Include a detailed description of the proposal, including when appropriate, drawings, plans, calculations, procedures, test results, previous exemptions, approvals or permits, a list of specification containers, if any, to be used, a list of modified specification containers, if any, to be used, and a description of the modifications, and any other supporting information;

(5) State the chemical name, common name, hazard classification, form, quantity, properties and characteristics of the material covered by the proposal, including composition and percentage (specified by volume or weight) of each chemical, if a solution or mixture;

(6) Describe all relevant shipping and accident experience;

(7) Specify the proposed mode of transportation, identfiy any increased risks that are likely to result if the exemption is granted, and specify the safety control measures which the applicant considers necessary or appropriate to compensate for those increased risks;

(8) Specify the proposed duration or describe the proposed schedule of events for which the exemption is sought;

(9) State why the applicant believes the proposal including any safety control measures specified by the applicant will achieve a level of safety which(i) Is at least equal to that specified in the regulation from which the exemption is sought or

(ii) If the regulations do not contain a specified level of safety, will be consistent with the public interest and will adequately protect against the risks of life and property which are inherent in the transportation of hazardous materials in commerce;

(10) If the applicant seeks to have the application processed on a priority basis, set forth the supporting facts and reasons.

(c) Unless the Director, OHMO, finds that there is good reason for priority processing of an application, each application is processed in the order in which it is received. To permit timely consideration, an application should be submitted at least 120 days before the requested effective date.

(d) If the applicant wishes to claim confidential treatment for any information contained in the application, the procedures set forth in § 107.5 apply.

§ 107.105 Application for renewal.

(a) Each application for the renewal of an exemption issued under this subpart must

(1) Be submitted in triplicate to: Office of Hazardous Materials Operations, U.S. Department of Transportation, Washington, D.C. 20590, Attention: Exemptions Branch;

(2) Identify the exemption for which a renewal is requested;

(3) State the name, address, and telephone number of the applicant;

(4) Include (i) a certification by the applicant that the descriptions, technical information and safety assessment submitted in the original application, or as may have been updated by any subsequent application for renewal, remain accurate and correct, or (ii) such amendments to the previously submitted descriptions, technical information and safety assessment as is necessary to update them and assure their accuracy and correctness;

(5) A statement describing all relevant shipping and all accident experience that has occurred in connection with the exemption since its issuance or most recent renewal or, if no accidents have been experienced, a certification to that effect. This statement must include the approximate number of shipmates made or packages shipped, as the case may be, and the number of shipments or packages involved in any loss of contents, including loss by venting when transporting a compressed or cold temperature gas.

(b) To permit timely consideration, an application for renewal should be submitted at least 60 days before the expiration date of the exemption.

(c) If, at least 60 days prior to the expiration of an existing exemption of a continuing nature, the holder files an application for renewal which is complete and conforms with the requirements of this section, the exemption will not be considered to have expired until the application for renewal has been finally determined.

(d) Paragraphs (a) and (b) of this section notwithstanding, an application received after October 15, 1975, and before December 16, 1975, seeking the renewal of a special permit, exemption, waiver, deviation or any other similar form of administrative relief from the requirements of Subchapter C of this chapter, 14 CFR Part 103, or 46 CFR Part 64 or Part 146 issued under procedures superseded by this subpart will be processed in the manner prescribed in this subpart if that application contains all of the information that would have been required for renewal under the superseded procedure. An application received after December 15, 1975, seeking renewal of administrative relief granted under procedures superseded by this subpart, must contain the information required by paragraph (a) of this section.

§ 107.107 Administrative review.

In the case of a written application for an exemption submitted as provided in § 107.103 (b) or the renewal of an exemption submitted as provided in § 107.105, the Director, OHMO, reviews it to determine whether it is complete and conforms with the requirements of this subpart. This determination will be made within 30 days of the receipt of an exemption application and within 15 days of the receipt of a renewal application. If it is not returned to the applicant by the end of that period, it will be processed as provided in § 107.109. If an application is returned, the applicant will be informed in what respects the application is incomplete.

§ 107.109 Processing of application.

(a) After an application for an exemption or renewal of an exemption is determined to be complete, the Director, OHMO, dockets the application and publishes a notice in the FEDERAL REGISTER affording an opportunity for interested persons to comment. All comments received before the close of the comment period are considered before final action is taken on an application.

(b) No public hearing, argument, or other formal processing is held directly on an application filed under this subpart before its disposition under this section. However, during the processing of an application the Director, OHMO, may require the applicant to supply additional information.

(c) If the Director, OHMO, determines that the application does not contain adequate justification, he denies it and notifies the applicant in writing, to

gether with the reasons therefor. He also publishes in the FEDERAL REGISTER а notice of the denial.

(d) If the Director, OHMO, determines that the application contains adequate justification, he grants it subject to the conditions set forth in Appendix B to this subpart and such other terms as he considers necessary, and notifies the applicant in writing. He also publishes in the FEDERAL REGISTER a notice of the grant. (e) If the Director, OHMO, determines that an application concerns a matter of such general applicability and future effect as to warrant being made the subject of rule making, he may initiate rule making under Part 102 of this chapter in addition to or in lieu of granting or denying the application.

§ 107.111 Party to an exemption.

(a) Any person who is eligible to apply under § 107.103 for an exemption may apply to the Director, OHMO, to be made a party to an application filed under that section or to an exemption granted under § 107.109 (d).

(b) Each application filed under this section must

(1) Be submitted to: Office of Hazardous Materials Operations, U.S. Department of Transportation, Washington, D.C. 20590, Attention Exemptions Branch; (2) Identify the exemption application or exemption to which the applicant seeks to become a party; and

(3) State the name, address, and telephone number of the applicant.

(c) The applicant becomes a party to an exemption application or exemption if the Director, OHMO, determines that

(1) The applicant is a person who is eligible to apply under § 107.103 for an exemption; and

(2) The exemption application or exemption to which the applicant seeks to become a party concerns a matter of a continuing nature and does not depend upon information entitled to confidential treatment.

(d) The Director, OHMO, publishes in the FEDERAL REGISTER a notice of each application received, each initial determination made and each renewal granted under this section.

(e) A person who becomes a party to an exemption under this section is subject to terms of that exemption, including the expiration date stated therein. If a party to an exemption wishes to renew his status as a party to an exemption, the procedures set forth in §§ 107.105 through 107.109 with respect to an application for renewal of an exemption apply.

§ 107.113 Application for and processing of emergency exemption.

(a) Any person who is subject to the requirements of this subchapter, Subchapter C of this chapter, 14 CFR Part 103, or 46 CFR Part 64 or Part 146 who seeks an exemption for many of those requirements on the basis of an existing emergency shall apply for that exemption through the appropriate Department of Transportation official listed in Appendix A to this subpart.

(b) An application submitted under this section must include such supporting information with respect to each of the topics specified in § 107.103 (2) through (11) as the receiving Department of Transportation official considers necessary for processing the application.

(c) Upon receipt of all of the information necessary for processing the application, the receiving Department of Transportation official shall transmit to the Director, OHMO, by the most rapid available means of communication, his evaluation as to whether an emergency exists and his recommendations with respect to the conditions to be included in the exemption. If the Director, OHMO, determines that an emergency exists and that there is adequate justification for the exemption, he grants the exemption subject to the applicable conditions set forth in Appendix B to this subpart and such other terms as he considers necessary, and immediately notifies the applicant. If the Director, OHMO, cannot determine that an emergency exists or that there is not adequate justification for the exemption, he immediately so notifies the applicant.

§ 107.115 Determination of existing emergency.

(a) The Director, OHMO, shall determine that an emergency exists if, on the basis of information submitted in the application and his own investigation, he finds that

(1) Existing conditions require the hazardous material concerned to be transported in commerce for the protection of life or property (other than the hazardous material to be transported); and

(2) The protection of life or property to be provided by the hazardous material would not be possible if the application is processed on a routine basis.

(b) The Director, OHMO, may determine that an emergency exists if, on the basis of information submitted in the application, he finds that

(1) Existing conditions require the hazardous material concerned to be transported in commerce to prevent or minimize serious economic loss; and

(2) The prevention or minimizing of serious economic loss to be provided by the hazardous material would not be possible if the application is processed on a routine basis.

(c) In determining what constitutes serious economic loss under paragraph (b) of this section, the Director, OHMO, considers the nature and extent of the expected loss.

§ 107.117 Withdrawal.

(a) An applicant may withdraw an application at any time prior to it being finally determined. When an application is withdrawn after publication of the notice of application in the FEDERAL REGISTER, the Director, OHMO, publishes a notice of withdrawal in the FEDERAL REGISTER.

(b) Except for documents for which confidential treatment was requested by the applicant, withdrawal of an application does not authorize the removal of any related records from the dockets or files of the OHMO.

§ 107.119 Termination.

(a) An exemption and any renewal thereof terminates according to its terms but not later than two years after the date of issuance unless terminated sooner pursuant to paragraph (b) or (c) of this section.

(b) The Director, OHMO, may suspend an exemption if he determines that(1) An activity under the exemption is not being performed in accordance with the terms of the exemption; or

(2) On the basis of information not available at the time it was granted, an amendment to the terms of the exemption is necessary to adequately protect against risks to life and property.

(c) The Director, OHMO, terminates an exemption if he determines that(1) The exemption is no longer consistent with the public interest;

(2) The exemption is no longer necessary because of an amendment to the regulations; or

(3) The exemption was granted on the basis of false, fradulent, or misleading representations or information.

(d) Unless the Director, OHMO, believes that immediate suspension or termination is necessary to abate the risk of an imminent hazard, he notifies the holder in writing of the reasons therefor and provides the holder an opportunity to show why the exemption should not be suspended or terminated, before he suspends or terminates an exemption under paragraph (b) or (c) of this section. § 107.121 Appeal.

Any applicant for an exemption or the renewal of an exemption aggrieved by an action taken by the Director, OHMO, under this subpart and any holder of an exemption suspended or terminated by the Director, OHMO, under § 107.119 (b) or (c) may file an appeal with the Director, MTB. The appeal must be filed within 30 days of service of notification of that action, suspension or termination. There has not been an exhaustion of administrative remedies until an appeal has been filed and the appellate process is completed by the issuance of an order by the Director, MTB, granting or denying the appeal.

§ 107.123 Availability for public inspection.

(a) Information relevant to an application under this part, including the application and supporting data. memoranda of any informal meetings with the applicant, and the grant or denial of the application is available for public inspection, except as specified in paragraph (b) of this section, at the Office of Hazardous Materials Operations, Trans Point Building, 2100 2nd Street, SW., Washington, D.C. 20590. Copies of available information may be obtained, as provided in Part 7 of this title.

(b) Information made available for inspection does not include materials which the Director, OHMO, determines should be withheld from public disclosure under $107.5 and in accordance with the applicable provisions of section 552 (b) of title 5, United States Code, and Part 7 of this title.

§ 107.125 Transition period and procedures for certain air commerce situations in Alaska.

(a) Notwithstanding any other provision of this subpart, an application for an exemption from a requirement of 14 CFR Part 103 which—

(1) Does not involve radioactive materials;

(2) Is for one or more flights of civil aircraft to or between places in the State of Alaska to be completed before January 16, 1976; and

(3) Seeks priority treatment on the basis of an existing emergency or because other forms of transportation are impracticable

may be initiated through the appropriate Federal Aviation Administration official specified in Appendix A to this subpart. That official, upon receiving the information necessary for processing the application, will transmit to the official designated by the Director, OHMO, for that purpose in Alaska his evaluation as to whether an emergency exists or other forms of transportation are impracticable and his recommendations with respect to whether the exemption should be granted and any conditions that should be included therein. If the official designated by the Director, OHMO, determines that an emergency exists or that other forms of transportation are impracticable, and that the proposed flight or flights can be made safely, he grants the exemption subject to such conditions as he considers necessary and immediately notifies the applicant. APPENDIX A.-LIST OF DEPARTMENT OF TRANSPORTATION OFFICIALS THROUGH WHOM APPLICATIONS FOR EXEMPTIONS SEEKING PRIORITY TREATMENT ON THE BASIS OF EXISTING EMERGENCIES MAY BE INITIATED BY TELEPHONE

AIR CARRIERS

The Federal Aviation Administration Flight Standards District Office or Air Carrier District Office which serves the place where the flight[s] concerned will originate or which is responsible for overall inspection of the carriers' operations.

AIR TAXI OPERATORS AND COMMERCIAL OPERATORS OF SMALL AIRCRAFT The Federal Aviation Administration Flight Standards District Office or General Aviation District Office which serves the place where the flight[s] concerned will originate or which is responsible for overall inspection of the operator's operations.

MOTOR CARRIERS

Chief, Regulations Division, Bureau of Motor Carrier Safety, Federal Highway Administration, Department of Transportation, Washington, D.C. 20590. Day 202/426-1700 and Night 202/426-1830.

RAIL CARRIERS

Associate Administrator for Safety, Federal Railroad Administration, Department of Transportation, Washington, D.C. 20590. Day 202/426-0897 or 426-2748 and Night 202/426-1830.

WATER CARRIERS

Chief, Packaged Cargo Branch, Cargo and Hazardous Materials Division, United States Coast Guard, Washington, D.C. 20590. Day or Night 202/426-1830. APPENDIX B-STANDARD CONDITIONS APPLICABLE TO EXEMPTIONS

PACKAGES, CONTAINERS, SHIPMENTS

Exemptions from the regulations governing packages, containers, and the preparation and offering of hazardous materials for shipment are subject to the following conditions:

(1) The outside of each package must be plainly and durably marked “DOTE" followed by the number assigned. On portable tanks, cargo tanks and tank cars, the markings must be in letters at least two inches high on a contrasting background.

(2) Each shipping paper issued in connection with any shipment made under an exemption must bear the notation "DOT-E" followed by the numbers assigned and the entries required by § 173.427 of this chapter.

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