Hazardous Materials: Frequently Asked Questions-Applicability of the Hazardous Material Regulations
| Citation | 87 FR 16308 |
| Record Number | 2022-05958 |
| Published date | 22 March 2022 |
| Section | Notices |
| Court | Pipeline And Hazardous Materials Safety Administration |
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
