Hazardous Materials: Frequently Asked Questions-Applicability of the Hazardous Material Regulations

CourtPipeline And Hazardous Materials Safety Administration
Citation87 FR 16308
Published date22 March 2022
Record Number2022-05958
Federal Register, Volume 87 Issue 55 (Tuesday, March 22, 2022)
[Federal Register Volume 87, Number 55 (Tuesday, March 22, 2022)]
                [Notices]
                [Pages 16308-16310]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2022-05958]
                [[Page 16308]]
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                DEPARTMENT OF TRANSPORTATION
                Pipeline and Hazardous Materials Safety Administration
                [Docket No. PHMSA-2021-0109; Notice No. 2022-02]
                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; request for comments.
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                SUMMARY: PHMSA is announcing 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 on its website. By creating a
                repository of frequently asked questions, PHMSA seeks to eliminate the
                need for recurring requests for common letters of interpretations. This
                Federal Register Notice introduces this initiative and its objectives
                to those subject to the Hazardous Materials Regulations. PHMSA's
                objective is to gain insight regarding the utility of this initiative
                and topics to prioritize in the development of future frequently asked
                questions. PHMSA requests comment on the initiative and input on the
                prioritization of future sets of frequently asked questions.
                DATES: Interested persons are invited to submit comments on or before
                May 23, 2022. Comments received after that date will be considered to
                the extent practicable.
                ADDRESSES: You may submit comments identified by the Docket Number
                PHMSA-2021-0109 by any of the following methods:
                 Federal eRulemaking Portal: http://www.regulations.gov.
                Follow the instructions for submitting comments.
                 Fax: 1-202-493-2251.
                 Mail: Docket Management System; U.S. Department of
                Transportation, West Building, Ground Floor, Room W12-140, Routing
                Symbol M-30, 1200 New Jersey Avenue SE, Washington, DC 20590.
                 Hand Delivery: Docket Management System; Room W12-140 on
                the ground floor of the West Building, 1200 New Jersey Avenue SE,
                Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
                except Federal holidays.
                 Instructions: All submissions must include the agency name and
                Docket Number (PHMSA-2021-0109) for this notice. To avoid duplication,
                please use only one of these four methods. All comments received will
                be posted without change to the Federal Docket Management System (FDMS)
                and will include any personal information you provide.
                 Docket: For access to the dockets to read background documents or
                comments received, go to http://www.regulations.gov or DOT's Docket
                Operations Office (see ADDRESSES).
                 Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
                comments from the public. DOT posts these comments, without edit,
                including any personal information the commenter provides, to http://www.regulations.gov, as described in the system of records notice (DOT/
                ALL-14 FDMS), which can be reviewed at http://www.dot.gov/privacy.
                 Confidential Business Information (CBI): 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. If your comments
                responsive to this notice contain commercial or financial information
                that is customarily treated as private, that you actually treat as
                private, and that is relevant or responsive to this notice, it is
                important that you clearly designate the submitted comments as ``CBI.''
                Please mark each page of your submission containing CBI as ``PROPIN.''
                Submissions containing CBI should be sent to 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. Any commentary
                that PHMSA receives which is not specifically designated as CBI will be
                placed in the public docket for this notice.
                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. Introduction
                 PHMSA is announcing an initiative to publish frequently asked
                questions (FAQ) on its website to facilitate better public
                understanding and awareness of the hazardous materials regulations
                (HMR; 49 CFR parts 171-180). The FAQ contained in this notice are
                intended to clarify, explain, and promote better understanding of the
                HMR. 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, but
                are provided to help the regulated community understand how to comply
                with the regulations. However, an individual who can demonstrate
                compliance with the FAQ is likely to be able to demonstrate compliance
                with the relevant regulations. If a different course of action is taken
                by an individual, the individual must be able to demonstrate that its
                conduct is in accordance with the regulations.
                 PHMSA is creating a repository of these questions, which will
                remove the need for recurring requests for common letters of
                interpretation and will assist PHMSA in streamlining the use of its
                resources by eliminating frequently asked and recurring (LOI). This
                initiative will provide additional value to PHMSA's Online Code of
                Federal Regulations (oCFR) tool found at https://www.phmsa.dot.gov/standards-rulemaking/hazmat/phmsas-online-cfr-ocfr. 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, the PHMSA
                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. Resources may be made available for other improvement-related
                operations such as petitions for rulemakings, public outreach and
                engagement, and economically beneficial regulatory and policy
                improvements. The information provided in this notice is useful to the
                regulated community, private citizens intending to offer a hazardous
                material for transportation, and state and local entities involved in
                hazardous materials transportation. PHMSA is publishing the first set
                of questions developed under this initiative.
                II. Background
                 Federal hazardous materials transportation law (49 U.S.C. 5101 et
                seq.) directs the Secretary of Transportation (``the Secretary'') to
                establish regulations for the safe and secure transportation of
                hazardous materials in commerce. The Secretary is authorized to apply
                those regulations to
                [[Page 16309]]
                (1) persons who transport hazardous materials in commerce, (2) persons
                who cause hazardous materials to be transported in commerce, (3)
                persons who manufacture or maintain a packaging or a component of a
                packaging that is represented, marked, certified, or sold as qualified
                for use in the transportation of a hazardous material in commerce, (4)
                persons who indicate by marking or other means that a hazardous
                material being transported in commerce is present in a package or
                transport conveyance when it is not, and (5) persons who tamper with a
                package or transport conveyance used to transport hazardous materials
                in commerce or a required marking, label, placard, or shipping
                description.
                 In 49 CFR 1.97, the Secretary delegated authority to issue
                regulations for the safe and secure transportation of hazardous
                materials in commerce to the PHMSA Administrator. The PHMSA
                Administrator issues the HMR under that delegated authority. The HMR
                prescribes requirements for the safe transportation in commerce of
                hazardous materials, including provisions for classification,
                packaging, and hazard communication.
                 To facilitate its safety mission and promote better awareness of
                its programs and compliance requirements, OHMS periodically issues
                agency guidance in the Federal Register and on its publicly available
                website \1\ for use by the regulated community, PHMSA staff, and
                federal, state, and local partners. This information is non-binding
                material given to the public pertaining to information and resources
                useful to comply with the HMR and is also used to make the public aware
                of safety issues or best practices. PHMSA issues this information
                through posted FAQ, advisory bulletins, publications, and policy
                manuals. PHMSA also answers questions from stakeholders through its
                staff and the Hazardous Materials Information Center (HMIC) \2\ and by
                issuing LOI. As provided in 49 CFR 105.20 (Guidance and
                Interpretations), a member of the public may request information and
                answers to questions on HMR compliance by contacting the OHMS Standards
                and Rulemaking Division or the HMIC.\3\ OHMS receives an average of 250
                requests for LOI each year. While each letter of interpretation is fact
                specific, some of these requests for interpretations present similar
                circumstances to earlier questions that have previously been asked,
                answered, and published on PHMSA's oCFR website at https://www.phmsa.dot.gov/standards-rulemaking/hazmat/phmsas-online-cfr-ocfr.
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                 \1\ https://www.phmsa.dot.gov/guidance.
                 \2\ The HMIC can be reached at 1-800-467-4922 and
                [email protected]. For additional information visit: https://www.phmsa.dot.gov/standards-rulemaking/hazmat/hazardous-materials-information-center.
                 \3\ To request a formal letter of interpretation, persons may
                also write to: Mr. Shane Kelley, Director, Standards and Rulemaking
                Division, U.S. DOT/PHMSA (PHH-10), 1200 New Jersey Avenue SE, East
                Building, 2nd Floor, Washington, DC 20590. To obtain information and
                answers pertaining to statute compliance and preemption, persons
                must, as prescribed by 49 CFR 105.20(b), contact the office of the
                Chief Counsel at: Office of the Chief Counsel, U.S. DOT/PHMSA (PHC-
                10), 1200 New Jersey Avenue SE, East Building, Washington, DC 20590,
                or at (202) 366-4400.
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                 The purpose of this FAQ initiative is to optimize the
                effectiveness, reach, and impact of the OHMS LOI process. Through
                publishing FAQ, PHMSA will memorialize in broadly applicable guidance
                its historical letters of interpretation for, and applicable to,
                specific stakeholders regulated by the HMR. Specifically, this
                initiative will adapt currently available stakeholder engagement
                functions to more directly appeal to a broader regulated community,
                develop a systematic process in managing/curating agency information
                that can be incorporated conveniently into existing workflows, and
                create helpful tools for current stakeholders. The success of this
                initiative will be measurable by monitoring PHMSA website engagement,
                the rate of incoming calls to the HMIC, and the volume of incoming LOI
                requests. A successful project should see an increase in website
                engagement with either static or reduced rates of calls to the HMIC and
                a reduced volume of incoming LOI requests. In addition, the
                interpretation workflow should reflect more efficient processing and
                productivity.
                III. 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. PHMSA
                proposes to publish 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
                Sec. 105.20.
                 (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. However, if the
                university is privately-operated or is a state university offering
                hazardous materials for transportation to commercial carriers, the
                HMR apply.
                 (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.
                 (4) Question: Is a hazardous material subject to the HMR that
                only crosses a public road?
                 Answer: The transportation of hazardous materials that, for
                example, takes place by motor vehicle and within a contiguous plant
                or factory 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).
                 (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) or 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? For example, pouring a flammable liquid
                into bottles that may be transported eventually.
                 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
                [[Page 16310]]
                hazardous material or its residue or if it is represented and
                maintained as a Department of Transportation (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 and
                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 SCUBA tanks that are used for
                diving and marked as DOT specification cylinders subject to the HMR?
                 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 that are
                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.
                IV. Notice Objectives
                 FAQ in this notice--and future FAQ published on PHMSA's website--
                will help to reduce the volume of duplicative requests for information
                covered by the FAQ and will facilitate faster processing of more
                complex and novel LOI requests in the future. Furthermore, in addition
                to publishing the first set of FAQ in the Federal Register, this notice
                seeks public input specific to the anticipated benefits provided by the
                FAQ initiative and suggestions for future FAQ topics.
                 Signed in Washington, DC, on March 16, 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. 2022-05958 Filed 3-21-22; 8:45 am]
                BILLING CODE 4910-60-P
                

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