Proposed Rule2025-12081
Hazardous Materials: Reducing Burdens by Allowing Continued Use of Department of Transportation Special Permit Packagings
Primary source
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Published
July 1, 2025
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
This NPRM proposes to revise the Hazardous Materials Regulations (HMR) to allow for the continued use of packagings authorized under a manufacturing special permit for duration of the useful life of the package. The current HMR provisions require an otherwise safe and usable package to be discontinued solely because the original special permit has expired or was not renewed.
Full Text
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<title>Federal Register, Volume 90 Issue 124 (Tuesday, July 1, 2025)</title>
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[Federal Register Volume 90, Number 124 (Tuesday, July 1, 2025)]
[Proposed Rules]
[Pages 28574-28577]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12081]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 173
[Docket No. PHMSA-2025-0094 (HM-268F)]
RIN 2137-AG08
Hazardous Materials: Reducing Burdens by Allowing Continued Use
of Department of Transportation Special Permit Packagings
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This NPRM proposes to revise the Hazardous Materials
Regulations (HMR) to allow for the continued use of packagings
authorized under a manufacturing special permit for duration of the
useful life of the package. The current HMR provisions require an
otherwise safe and usable package to be discontinued solely because the
original special permit has expired or was not renewed.
DATES: Comments must be received on or before September 2, 2025.
[[Page 28575]]
ADDRESSES: You may submit comments identified by the Docket Number
PHMSA-2025-0094 using any of the following methods:
E-Gov Web: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This site allows the public
to enter comments on any Federal Register notice issued by any agency.
Follow the online instructions for submitting comments.
Mail: Docket Management System: U.S. Department of Transportation,
1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140,
Washington, DC 20590-0001.
Hand Delivery: U.S. DOT Docket Management System: West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays.
Fax: 1-202-493-2251.
Instructions: Please include the docket number PHMSA-2025-0094 at
the beginning of your comments. If you submit your comments by mail,
submit two copies. If you wish to receive confirmation that PHMSA
received your comments, include a self-addressed stamped postcard.
Internet users may submit comments at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Note: Comments are posted without changes or edits to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information provided.
There is a privacy statement published on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to inform its rulemaking process. DOT posts
these comments, without edit, including any personal information the
commenter provides, to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
<a href="https://www.dot.gov/privacy">https://www.dot.gov/privacy</a>.
Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and actually treated as private by its owner. Under the
Freedom of Information Act (FOIA, 5 U.S.C. 552), CBI is exempt from
public disclosure. It is important that you clearly designate the
comments submitted as CBI if: your comments responsive to this document
contain commercial or financial information that is customarily treated
as private; you actually treat such information as private; and your
comment is relevant or responsive to this notice. You may ask PHMSA to
provide confidential treatment to information you give to the agency by
taking the following steps: (1) mark each page of the original document
submission containing CBI as ``Confidential''; (2) send PHMSA, along
with the original document, a second copy of the original document with
the CBI deleted; and (3) explain why the information that you are
submitting is CBI. Submissions containing CBI should be sent to Steven
Andrews, Standards and Rulemaking Division, Pipeline and Hazardous
Materials Safety Administration (PHMSA), 2nd Floor, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001, or by email at
<a href="/cdn-cgi/l/email-protection#7407001102111a5a151a100611030734101b005a131b02"><span class="__cf_email__" data-cfemail="fd8e89988b9893d39c93998f988a8ebd999289d39a928b">[email protected]</span></a>. Any materials PHMSA receives that is not
specifically designated as CBI will be placed in the public docket.
Docket: For access to the docket to read background documents or
comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the online
instructions for accessing the docket. Alternatively, you may review
the documents in person at the street address listed above.
FOR FURTHER INFORMATION CONTACT: Steven Andrews, Transportation
Regulations Specialist, 1200 New Jersey Avenue SE, Washington, DC
20590, 202-366-6199, <a href="/cdn-cgi/l/email-protection#4b383f2e3d2e25652a252f392e3c380b2f243f652c243d"><span class="__cf_email__" data-cfemail="9ae9eeffecfff4b4fbf4fee8ffede9dafef5eeb4fdf5ec">[email protected]</span></a>.
I. General Discussion
PHMSA is proposing to revise 49 CFR 173.23, ``Previously authorized
packaging,'' to allow for the continued use of a Department of
Transportation (DOT) special permit (SP) packaging for which the
special permit has expired. The current requirements impose an
unnecessary burden on the regulated community, wherein a packaging
manufactured, marked, and sold under the terms of a DOT-SP may no
longer be authorized solely based on the original manufacturer going
out of business, ceasing manufacture of a product under the condition
of the original DOT-SP, or choosing to not renew a DOT-SP. Authorizing
the continued use of such packagings for the life of the package,
provided the package continues to be in conformance with the terms of
the DOT-SP, eliminates that burden without compromising public safety.
For these reasons, PHMSA is proposing to add a new exception to Sec.
173.23 in paragraph (j) to allow approved packagings to be used for the
duration of the usable life of the DOT-SP packaging, regardless of the
status of the grantee (i.e., such as when the original grantee has gone
out of business but some of their packagings remain in commerce because
they have not yet completed shipment to their end consumer, or when the
original grantee has gone out of business and their assets have been
purchased by another company) and whether the special permit was
renewed.\1\
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\1\ However, PHMSA notes that even with this revision, a carrier
may still choose to not accept a package where the manufacturing
DOT-SP is not renewed by the grantee.
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II. Regulatory Analysis and Notices
A. Legal Authority
This proposed rule is published under the authority of the
Secretary of Transportation set forth in the Federal Hazardous
Materials Transportation Laws (49 U.S.C. 5101 et seq.) and delegated to
the PHMSA Administrator pursuant to 49 CFR 1.97.
B. Executive Order 12866; Regulatory Planning and Review
Executive Order (E.O.) 12866 (``Regulatory Planning and
Review''),\2\ as implemented by DOT Order 2100.6B (``Policies and
Procedures for Rulemaking''), requires agencies to regulate in the
``most cost-effective manner,'' to make a ``reasoned determination that
the benefits of the intended regulation justify its costs,'' and to
develop regulations that ``impose the least burden on society.'' DOT
Order 2100.6B specifies that regulations should generally ``not be
issued unless their benefits are expected to exceed their costs.'' In
arriving at those conclusions, E.O. 12866 requires that agencies should
consider ``both quantifiable measures . . . and qualitative measures of
costs and benefits that are difficult to quantify'' and ``maximize net
benefits . . . unless a statute requires another regulatory approach.''
E.O. 12866 also requires that ``agencies should assess all costs and
benefits of available regulatory alternatives, including the
alternative of not regulating.'' DOT Order 2100.6B directs that PHMSA
and other Operating Administrations must generally choose the ``least
costly regulatory alternative that achieves the relevant objectives''
unless required by law or compelling safety need.
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\2\ 58 FR 51735 (Oct. 4, 1993).
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E.O. 12866 and DOT Order 2100.6B also require that PHMSA submit
``significant regulatory actions'' to the Office of Information and
Regulatory Affairs (OIRA) within the Executive Office of the
President's Office of Management and Budget (OMB) for review. This
proposed rule is a not significant regulatory action pursuant to E.O.
12866; it also has not designated this rule as a ``major rule'' as
defined by the Congressional Review Act (5 U.S.C. 801 et seq.).
[[Page 28576]]
PHMSA has complied with the requirements in E.O. 12866 as
implemented by DOT Order 2100.6B and preliminarily determined that this
proposed rule may result in cost savings by reducing regulatory burdens
and regulatory uncertainty for affected entities by allowing for the
use of packages manufactured under a special permit for the useful life
of the package beyond the original permit's expiration date. PHMSA
expects those cost savings will also result in reduced costs for the
public to whom those entities generally transfer a portion of their
compliance costs.
C. Executive Orders 14192 and 14219
This proposed rule, if finalized as proposed, is expected to be an
E.O. 14192 deregulatory action.\3\ PHMSA seeks data that would be
helpful to generate an estimate of the cost savings from this rule.
PHMSA's initial estimates are that the total costs of the rule on the
regulated community will be less than zero. Nor does this proposed rule
does implicate any of the factors identified in section 2(a) of E.O.
14219 indicative of a regulation that is ``unlawful . . . [or] that
undermine[s] the national interest.'' \4\
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\3\ 90 FR 9065 (Jan. 31, 2025).
\4\ 90 FR 10583 (Feb. 19, 2025).
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D. Energy-Related Executive Orders 13211, 14154, and 14156
The President has declared in E.O. 14156 (``Declaring a National
Energy Emergency'') \5\ a national emergency to address the United
States's inadequate energy development production, transportation,
refining, and generation capacity. Similarly, E.O. 14154 (``Unleashing
American Energy'') \6\ asserts a Federal policy to unleash American
energy by ensuing access to abundant supplies of reliable, affordable
energy from (inter alia) the removal of ``undue burden[s]'' on the
identification, development, or use of domestic energy resources such
as PHMSA-jurisdictional shippers and carriers of hazardous materials.
PHMSA preliminarily finds this proposed rule is consistent with each of
E.O. 14156 and E.O. 14154. The proposed rule will give affected
entities regulatory flexibility by allowing for the continued use of
expired DOT-SP packages, some of which may be used to transport energy
related products, or products that are otherwise used in supply chains
related to energy production. PHMSA therefore expects the regulatory
amendments in this proposed rule will in turn assist shipper and
carriers of hazardous materials ability to provide abundant, reliable,
affordable energy products in response to residential, commercial, and
industrial demand.
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\5\ 90 FR 8353 (Jan. 29, 2025).
\6\ 90 FR 8353 (Jan. 29, 2025).
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However, this proposed rule is not a ``significant energy action''
under E.O. 13211 (``Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use''),\7\ which requires
Federal agencies to prepare a Statement of Energy Effects for any
``significant energy action.'' Because this proposed rule is not a
significant action under E.O. 12866, it will not have a significant
adverse effect on supply, distribution, or energy use; OIRA has
therefore not designated this proposed rule as a significant energy
action.
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\7\ 66 FR 28355 (May 22, 2001).
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E. Executive Order 13132: Federalism
PHMSA analyzed this proposed rule in accordance with the principles
and criteria contained in E.O. 13132 (``Federalism'') \8\ and the
Presidential Memorandum (``Preemption'') published in the Federal
Register on May 22, 2009.\9\ E.O. 13132 requires agencies to assure
meaningful and timely input by State and local officials in the
development of regulatory policies that may have ``substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' The Federal
Hazardous Materials Transportation Laws contain an express preemption
provision at 49 U.S.C. 5125(b) that preempts state, local, and tribal
requirements on certain covered subjects, unless the non-federal
requirements are ``substantively the same'' as the federal
requirements, including the following:
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\8\ 64 FR 43255 (Aug. 10, 1999).
\9\ 74 FR 24693 (May 22, 2009).
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(1) The designation, description, and classification of hazardous
material;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(3) The preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; and
(5) The design, manufacture, fabrication, inspection, marking,
maintenance, recondition, repair, or testing of a packaging or
container represented, marked, certified, or sold as qualified for use
in transporting hazardous material in commerce.
This proposed rule addresses covered subject items paragraph I
above and would preempt state, local, and Tribal requirements not
meeting the ``substantively the same'' standard. While the proposed
rule may operate to preempt some State requirements, it would not
impose any regulation that has substantial direct effects on the
States, the relationship between the National Government and the
States, or the distribution of power and responsibilities among the
various levels of government. The preemptive effect of the regulatory
amendments in this proposed rule is limited to the minimum level
necessary to achieve the objectives of the Federal Hazardous Materials
Transportation Laws. Therefore, the consultation and funding
requirements of E.O. 13132 do not apply.
F. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
Federal agencies to conduct an Initial Regulatory Flexibility Analysis
(IRFA) for a proposed rule subject to notice-and-comment rulemaking
under the APA unless the agency head certifies that the proposed rule
in the rulemaking will not have a significant economic impact on a
substantial number of small entities. E.O. 13272 (``Proper
Consideration of Small Entities in Agency Rulemaking'') \10\ obliges
agencies to establish procedures promoting compliance with the
Regulatory Flexibility Act. DOT posts its implementing guidance on a
dedicated web page.\11\ This proposed rule was developed in accordance
with E.O. 13272 and DOT implementing guidance to ensure compliance with
the Regulatory Flexibility Act. The proposed rule is expected to reduce
burdens. Therefore, PHMSA certifies the proposed rule does not have a
significant impact on a substantial number of small entities.
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\10\ 67 FR 53461 (Aug. 16, 2002).
\11\ DOT, ``Rulemaking Requirements Related to Small Entities,''
<a href="https://www.transportation.gov/regulations/">https://www.transportation.gov/regulations/</a> rulemaking-requirements-
concerning-small-entities (last accessed Sept 3, 2024).
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G. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act (UMRA, 2 U.S.C. 1501 et seq.)
requires agencies to assess the effects of Federal regulatory actions
on State, local, and Tribal governments, and the private sector. For
any proposed or direct final rule that includes a Federal mandate
[[Page 28577]]
that may result in the expenditure by state, local, and Tribal
governments, in the aggregate of $100 million or more (in 1996 dollars)
in any given year, the agency must prepare, amongst other things, a
written statement that qualitatively and quantitatively assesses the
costs and benefits of the Federal mandate.
PHMSA anticipates this proposed rule will not impose unfunded
mandates under UMRA because it does not result in costs of $100 million
or more (in 1996 dollars) per year for either State, local, or Tribal
governments, or to the private sector.
H. National Environmental Policy Act
The National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et
seq.) requires that Federal agencies assess and consider the impact of
major Federal actions on the human and natural environment.
PHMSA analyzed this proposed rule in accordance with NEPA and has
preliminarily determined that the rulemaking will not adversely affect
safety and therefore will not significantly affect the quality of the
human and natural environment. The public is invited to comment on the
impact of the proposed action.
I. Executive Order 13175
PHMSA analyzed this proposed rule according to the principles and
criteria in E.O. 13175 (``Consultation and Coordination with Indian
Tribal Governments'') \12\ and DOT Order 5301.1A (``Department of
Transportation Tribal Consultation Policies and Procedures''). E.O.
13175 requires agencies to assure meaningful and timely input from
Tribal government representatives in the development of rules that
significantly or uniquely affect Tribal communities by imposing
``substantial direct compliance costs'' or ``substantial direct
effects'' on such communities or the relationship or distribution of
power between the Federal government and Tribes.
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\12\ 65 FR 67249 (Nov. 9, 2000).
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PHMSA assessed the impact of the proposed rule and determined that
it will not significantly or uniquely affect Tribal communities or
Indian Tribal governments. The rulemaking's regulatory amendments have
a broad, national scope; therefore, this proposed rule will not
significantly or uniquely affect Tribal communities, much less impose
substantial compliance costs on Native American Tribal governments or
mandate Tribal action. For these reasons, PHMSA has concluded that the
funding and consultation requirements of E.O. 13175 and DOT Order
5301.1A do not apply.
J. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR 1320.8(d) requires that PHMSA provide
interested members of the public and affected agencies with an
opportunity to comment on information collection and recordkeeping
requests. This rulemaking will not create, amend, or rescind any
existing information collections.
K. Executive Order 13609 and International Trade Analysis
E.O. 13609 (``Promoting International Regulatory Cooperation'')
\13\ requires agencies consider whether the impacts associated with
significant variations between domestic and international regulatory
approaches are unnecessary or may impair the ability of American
business to export and compete internationally. In meeting shared
challenges involving health, safety, labor, security, environmental,
and other issues, international regulatory cooperation can identify
approaches that are at least as protective as those that are or would
be adopted in the absence of such cooperation. International regulatory
cooperation can also reduce, eliminate, or prevent unnecessary
differences in regulatory requirements.
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\13\ 77 FR 26413 (May 4, 2012).
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Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
prohibits Federal agencies from establishing any standards or engaging
in related activities that create unnecessary obstacles to the foreign
commerce of the United States. For purposes of these requirements,
Federal agencies may participate in the establishment of international
standards, so long as the standards have a legitimate domestic
objective, such as providing for safety, and do not operate to exclude
imports that meet this objective. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
PHMSA engages with international standards setting bodies to
protect the safety of the American public. PHMSA has assessed the
effects of the proposed rule and has determined that its regulatory
amendments will not cause unnecessary obstacles to foreign trade.
L. Cybersecurity and Executive Order 14028
E.O. 14028 (``Improving the Nation's Cybersecurity'') \14\ directed
the Federal government to improve its efforts to identify, deter, and
respond to ``persistent and increasingly sophisticated malicious cyber
campaigns.'' PHMSA has considered the effects of the proposed rule and
has determined that its regulatory amendments would not materially
affect the cybersecurity risk profile for affected entities.
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\14\ 86 FR 26633 (May 17, 2021).
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List of Subjects in 49 CFR Part 173
Hazardous materials transportation, Training, Packaging and
containers, Reporting and recordkeeping requirements.
For the reasons set forth above, PHMSA proposes to amend 49 CFR
part 173 as follows:
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
0
1. The authority citation for part 173 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and
1.97.
0
2. In Sec. 173.23, add paragraph (j) to read as follows:
Sec. 173.23 Previously authorized packaging.
* * * * *
(j) If a manufacturing special permit is not renewed by the
grantee, then a packaging manufactured, marked, and sold under its
conditions may continue to be used (i.e., offered for transportation in
commerce, retested, and maintained) after the expiration date of the
special permit and for the life of the packaging according to the terms
of the final revision of the special permit.
Issued in Washington, DC, on June 26, 2025, under the authority
delegated in 49 CFR 1.97.
Benjamin D. Kochman,
Acting Administrator.
[FR Doc. 2025-12081 Filed 6-27-25; 4:15 pm]
BILLING CODE 4910-60-P
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