Notice2022-26808
Hazardous Materials: Frequently Asked Questions-Applicability of the Hazardous Material Regulations
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Published
December 9, 2022
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
On March 22, 2022, PHMSA announced an initiative to convert historical letters of interpretation (LOI) applicable to the Hazardous Materials Regulations that have been issued to specific stakeholders into broadly applicable frequently asked questions (FAQ). As such, PHMSA requested comment on the initiative and for input on the prioritization of future sets of FAQ. During the initial comment period, several commenters requested that PHMSA further clarify the future disposition of the LOI process and address commenters' initial concerns. In response to this feedback, PHMSA published a second notice on June 13, 2022, extending the comment period to July 22, 2022, and announcing that a webinar would be held on June 27, 2022. In this final notice, PHMSA is responding to comments received from stakeholders, summarizing the webinar event, finalizing the first set of FAQ, and announcing the topic for future FAQ.
Full Text
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<title>Federal Register, Volume 87 Issue 236 (Friday, December 9, 2022)</title>
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[Federal Register Volume 87, Number 236 (Friday, December 9, 2022)]
[Notices]
[Pages 75694-75696]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-26808]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-2021-0109; Notice No. 2022-13]
Hazardous Materials: Frequently Asked Questions--Applicability of
the Hazardous Material Regulations
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Notice; response to comments and publication of finalized FAQ.
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SUMMARY: On March 22, 2022, PHMSA announced an initiative to convert
historical letters of interpretation (LOI) applicable to the Hazardous
Materials Regulations that have been issued to specific stakeholders
into broadly applicable frequently asked questions (FAQ). As such,
PHMSA requested comment on the initiative and for input on the
prioritization of future sets of FAQ. During the initial comment
period, several commenters requested that PHMSA further clarify the
future disposition of the LOI process and address commenters' initial
concerns. In response to this feedback, PHMSA published a second notice
on June 13, 2022, extending the comment period to July 22, 2022, and
announcing that a webinar would be held on June 27, 2022. In this final
notice, PHMSA is responding to comments received from stakeholders,
summarizing the webinar event, finalizing the first set of FAQ, and
announcing the topic for future FAQ.
FOR FURTHER INFORMATION CONTACT: Arthur Pollack, Standards and
Rulemaking Division, (202) 366-8553, Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue SE, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
The March 22, 2022,\1\ notice announced an initiative to convert
historical LOI applicable to the Hazardous Materials Regulations (HMR)
\2\ that have been issued to specific stakeholders into broadly
applicable FAQ to facilitate better public understanding and awareness
of the HMR. PHMSA also requested comment on the initiative and
solicited input on the prioritization of future sets of FAQ. FAQ are
not substantive rules, themselves, and do not create legally
enforceable rights, assign duties, or impose new obligations not
otherwise contained in the existing regulations and standards. Instead,
the FAQ are intended as an aid to demonstrate compliance with the
relevant regulations.
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\1\ Hazardous Materials: Frequently Asked Questions--
Applicability of the Hazardous Material Regulations, 87 FR 16308
(March 22, 2022), available at, <a href="https://www.federalregister.gov/documents/2022/03/22/2022-05958/hazardous-materials-frequently-asked-questions-applicability-of-the-hazardous-material-regulations">https://www.federalregister.gov/documents/2022/03/22/2022-05958/hazardous-materials-frequently-asked-questions-applicability-of-the-hazardous-material-regulations</a>;
PHMSA-2021-0109-0001.
\2\ 49 CFR parts 171-180.
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The comment period for the March 22, 2022, notice closed on May 23,
2022; however, on June 13, 2022, PHMSA published a second notice
extending the comment period until July 22, 2022, and announcing a
public webinar to clarify the FAQ initiative and address concerns
expressed by commenters that PHMSA may eliminate the LOI process.
II. Purpose of the FAQ Initiative
This initiative will provide additional value to PHMSA's Online
Code of Federal Regulations (oCFR) tool.\3\ The oCFR tool is an
interactive web-based application that allows users to navigate with a
single click between all content, including LOI, connected to an HMR
citation. The oCFR tool includes the ability to sort, filter, and
export search results. Upon completion of this initiative, PHMSA's
Office of Hazardous Materials Safety (OHMS) will be able to achieve
efficiencies for other more complex or novel requests for LOI and
devote resources to other hazardous materials transportation safety
projects.
[[Page 75695]]
This initiative will allow resources to be made available for other
improvement-related operations such as petitions for rulemakings,
public outreach and engagement, and economically beneficial regulatory
and policy improvements. In the section of this notice titled ``V.
Frequently Asked Questions: Applicability of Hazardous Materials
Regulations to Persons and Functions,'' PHMSA is finalizing the first
set of FAQ developed under this initiative.
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\3\ The oCFR tool is available at. <a href="https://www.phmsa.dot.gov/standards-rulemaking/hazmat/phmsas-online-cfr-ocfr">https://www.phmsa.dot.gov/standards-rulemaking/hazmat/phmsas-online-cfr-ocfr</a>.
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III. Response to Notice Comments
PHMSA received 10 sets of comments to the aforementioned FAQ
notices from the following individuals and organizations:
Table 1--Commenter Docket Table
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Commenter ID No.
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International Longshoremen's PHMSA-2021-0109-0002
Association ~ United States
Maritime Alliance Coastwide Joint
Safety Committee.
Anonymous......................... PHMSA-2021-0109-0003
L'Gena Shaffer, Director, PHMSA-2021-0109-0004
Regulatory Compliance,
International Vessel Operators
Dangerous Goods Association
(IVODGA).
L'Gena Shaffer, Director, PHMSA-2021-0109-0005
Regulatory Compliance, Council on
Safe Transportation of Hazardous
Articles (COSTHA).
Bruce Grimm....................... PHMSA-2021-0109-0006
Patty Long, President, Railway PHMSA-2021-0109-0007
Supply Institute.
Paul Rankin, Chair, Interested PHMSA-2021-0109-0008
Parties for Hazardous Materials
Transportation.
Kathy Hahn........................ PHMSA-2021-0109-0010
Delmer F. Billings, Technical PHMSA-2021-0109-0011
Director, Dangerous Goods
Advisory Council (DGAC).
Jennifer Fletcher, Senior Manager, PHMSA-2021-0109-0012
Transportation Compliance, Veolia
North America.
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The comments received express general support for the FAQ
initiative and several commenters included suggestions for future topic
areas. Commenters also suggest strategies for selecting topics and
specific FAQ. In addition, many of the commenters express a concern
that PHMSA may eliminate the LOI process and rescind the existing LOI.
As a result, PHMSA held a public webinar on June 27, 2022, to clarify
the initiative's intent and address commenters' questions and concerns.
In its comment, the International Longshoremen's Association
expressed concern that ``PHMSA should not be overly selective in its
choices of which particular [LOI] rise to the level of interest'' for
FAQ development. Although the process of FAQ development is subjective,
PHMSA acknowledges the request for detailed and specific FAQ and
intends to continue the process with an inclusive approach.
Two groups of commenters, IVODGA and COSTHA, submitted potential
revisions to Questions 3, 4, and 8 of the initial set of FAQ.
Specifically, IVODGA and COSTHA both suggest that Question 3 and
Question 4 either be combined or reference each other, as both
questions are related to private roads and may be less clear to a
reader if the questions are not read together. Additionally, IVODGA and
COSTHA both suggest an editorial revision to clarify Question 8's
answer pertaining to hazardous materials being transported for
``personal use.'' PHMSA agrees with both suggestions and is revising
the FAQ in this notice to reflect these minor editorial changes to
Questions 3, 4, and 8. Commenters also provide several suggestions for
future topics including combustible liquids, lithium batteries,
materials of trade, miscellaneous hazardous materials (i.e., Class 9)
and placarding. PHMSA appreciates the suggestions and will consider
them as it prioritizes its next set of FAQ.
IV. Webinar Summary
During the comment period, DGAC requested--on behalf of its
members--that PHMSA host a webinar to present the objectives of the FAQ
initiative and answer questions from concerned parties. The overarching
concern expressed in comments to the March 22, 2022, notice and during
the June 27, 2022, webinar was that PHMSA may eliminate the LOI process
and rescind its existing LOI. During the public webinar, PHMSA
clarified that the FAQ initiative compliments the LOI process and that
PHMSA has no intention of discontinuing the process to request LOI,
rescinding the nearly 7,000 LOI in its database, or limiting the scope
of questions PHMSA will answer in the future. The recording of the June
27, 2022, webinar can be found at <a href="https://www.youtube.com/watch?v=R1fCnNRK2d0">https://www.youtube.com/watch?v=R1fCnNRK2d0</a>.
Based on comments and input PHMSA received, PHMSA is publishing the
following series of FAQ in the Federal Register and on its website to
facilitate better understanding of the HMR applicability requirements
and avoid the need for responding to frequent and recurring questions
already addressed in accordance with 49 CFR 105.20 (Guidance and
Interpretations).
V. Frequently Asked Questions: Applicability of Hazardous Materials
Regulations to Persons and Functions
Section 171.1 addresses the applicability of the HMR for the safe
and secure transportation of hazardous materials in commerce.
(1) Question: Is a federal, state, or local government agency
subject to the HMR?
Answer: Pursuant to Sec. 171.1(d)(5), a federal, state, or local
government that transports hazardous materials for non-commercial
governmental purposes using its own personnel is not engaged in
transportation in commerce and, therefore, is not subject to the HMR.
As specified in Sec. 171.1, the HMR governs the safe transportation of
hazardous materials in intrastate, interstate, and foreign commerce.
The term ``in commerce'' does not include a federal, state, or local
government that transports hazardous materials for its own use, using
its own personnel, and motor vehicles, aircraft, or vessel under its
control.
(2) Question: Are state universities subject to the HMR when
transporting hazardous materials?
Answer: A state agency--such as a state university--that transports
hazardous materials for its own non-commercial use, using its own
personnel and vehicles, is not engaged in transportation in commerce
and, therefore, is not subject to the HMR.
(3) Question: Is a hazardous material transported on private roads
subject to the HMR?
Answer: Section 171.1(d)(4) states that the transportation of
hazardous materials entirely on private roads with restricted public
access is not subject to the HMR. Please see Q4.
[[Page 75696]]
(4) Question: Is a hazardous material subject to the HMR that only
crosses a road with public access?
Answer: The transportation of hazardous materials that takes place
by motor vehicle and within a contiguous plant boundary is not subject
to the HMR. However, intra-plant transport that utilizes or crosses a
public road is subject to the HMR during that portion of the
transportation unless access to the public road is restricted by gates,
traffic signals, guard stations, or similar controls, in accordance
with Sec. 171.1(d)(4). Please see Q3.
(5) Question: Are hazardous materials installed or used in or on a
motor vehicle (e.g., gasoline in the motor vehicle's fuel tank) subject
to the HMR?
Answer: Hazardous materials that are installed or used in or on a
motor vehicle such as the motor vehicle's fuel, suspension, or safety
systems are not subject to the HMR. Fuel systems and safety equipment
may be subject to the Federal Motor Carrier Safety Regulations (FMCSR)
and National Highway Traffic Safety Administration (NHTSA)
requirements.
(6) Question: Is the filling of a package with a hazardous material
subject to the HMR if it is not being offered for transportation in
commerce?
Answer: The answer is no. However, if there is a chance of future
transportation in commerce, the stakeholder should consider placing
that hazardous material in packagings suitable for transportation of
that material in commerce to minimize safety risks associated with its
re-packaging.
(7) Question: Are stationary (storage) tanks containing a hazardous
material such as propane subject to the HMR?
Answer: The answer is no, unless the tank is transported in
commerce containing a hazardous material or its residue or if it is
represented and maintained as a DOT packaging usable for hazmat
transportation.
(8) Question: Are hazardous materials being transported for
personal use subject to the HMR? For example, are pesticides that are
transported from a store by individuals to treat their garden subject
to the HMR?
Answer: The answer is no. Under part 171, the phrase ``in
commerce'' means in furtherance of a commercial enterprise.
Transportation in a private motor vehicle for personal use is not
considered in furtherance of a commercial enterprise even when
transported in a leased or rented vehicle.
(9) Question: Are privately-owned Department of Transportation
(DOT) cylinders used for SCUBA diving subject to the HMR even when not
transported in commerce?
Answer: A SCUBA tank that is represented as conforming to HMR
requirements-- i.e., marked with a DOT specification marking--must be
maintained by the owner of said SCUBA tank in accordance with the
applicable specification requirements whether or not it is in
transportation in commerce.
(10) Question: Are government-owned hazardous materials transported
for government purposes by contractor personnel subject to the HMR?
Answer: The answer is yes. As provided in Sec. 171.1(d)(5), the
HMR do not apply to transportation of a hazardous material in a motor
vehicle, aircraft, or vessel operated by a federal, state, or local
government employee solely for noncommercial federal, state, or local
government purposes. However, contractor personnel are not considered
government employees and the provisions of the HMR apply.
(11) Question: Are gasoline cans transported by a landscaping
company by motor vehicle subject to the HMR?
Answer: Commercial businesses--such as landscaping, swimming pool
services, or construction companies--transporting hazardous materials
are considered ``in commerce'' and subject to the HMR. However, when
used in support of a business, the HMR provides an exception in Sec.
173.6 for the transport of ``materials of trade.''
(12) Question: Are household hazardous wastes transported by a
private person to a county drop-off facility subject to the HMR?
Answer: The answer is no, provided the household hazardous wastes
are the individual's personal property and he or she is not engaged in
a commercial activity, such as a landscaping company or carpentry
service.
VI. Future FAQ Topics
With the completion of the first set of FAQ specific to HMR
Applicability, PHMSA has begun compiling its next set of FAQ. As such,
the next set of FAQ will pertain to LOIs addressing questions regarding
the incident reporting requirements specified in Sec. Sec. 171.15 and
171.16. In addition, PHMSA will continue concurrent work on future FAQ
notices and, in response to the comments received, subsequent topics
may include FAQ pertaining to batteries, classification, hazard
communication, hazardous substances, hazardous wastes, modal-specific
requirements, or packaging.
Signed in Washington, DC on December 6, 2022, under authority
delegated in 49 CFR 1.97.
William A. Quade,
Deputy Associate Administrator of Hazardous Materials Safety, Pipeline
and Hazardous Materials Safety Administration.
[FR Doc. 2022-26808 Filed 12-8-22; 8:45 am]
BILLING CODE 4910-60-P
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</html>Indexed from Federal Register on December 9, 2022.
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