[Federal Register Volume 72, Number 3 (Friday, January 5, 2007)]
[Notices]
[Pages 609-624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22554]


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DEPARTMENT OF TRANSPORTATION

Research and Innovative Technology Administration

[RITA-2006-26758]


Statement Regarding a Coordinated Framework for Regulation of a 
Hydrogen Economy

AGENCY: Research and Innovative Technology Administration, U.S. 
Department of Transportation.

ACTION: Notice of inquiry and request for public comment.

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SUMMARY: The purpose of this Federal Register notice is to inform the 
public of current U.S. statutes and regulations that may be applicable 
to a hydrogen economy and to request comments on their interface . This 
notice describes and indexes several statutory and regulatory 
provisions of each major Federal agency and discusses possible 
applications of these provisions to aspects of a hydrogen economy, 
including construction and certification of transportation/ports 
infrastructure, the use of fuel cells to power automobiles and generate 
electricity for homes and businesses, and effects on public safety and 
health. The notice also describes the regulatory jurisdictions of each 
Federal agency in the context of a hydrogen economy. In addition, 
public comments are invited on a Web site that was created to depict 
the regulatory framework of a hydrogen economy. The Web site is located 
at http://hydrogen.gov/regulations.html. Comments will be used to 
improve the Web site.

DATES: Comments must be received on or before March 6, 2007.
    Public Participation: The Ad Hoc Committee on a Regulatory 
Framework for a Hydrogen Economy (Ad Hoc Committee) of the Interagency 
Working Group on Hydrogen and Fuel Cells (IWG), which is part of the 
Executive Office of the President's National Science and Technology 
Council (NSTC), is seeking comments and advice from individuals, public 
interest groups, industry and academia on this statement regarding the 
framework for regulation of a hydrogen economy.
    The Ad Hoc Committee members include the Office of Science and 
Technology Policy (OSTP), Department of State (DOS), U.S. Department of 
Transportation (DOT) (including the Federal Aviation Administration 
(FAA), Federal Highways Administration (FHWA), Federal Railroad 
Administration (FRA), National Highway Traffic Safety Administration 
(NHTSA), Federal Transit Administration (FTA), the Maritime 
Administration (MARAD), Federal Motor Carrier Administration (FMCSA), 
Pipeline and Hazardous Materials Safety Administration (PHMSA) and 
Research and Innovative Technology Administration (RITA)), Department 
of Agriculture (USDA), Department of Labor's (DOL's) Occupational 
Safety and Health Administration (OSHA), Environmental Protection 
Agency (EPA), National Aeronautics and Space Administration (NASA) and 
Federal

[[Page 610]]

Energy Regulatory Commission (FERC). It is the intent of the Ad Hoc 
Committee that comments be received in a common docket. Thereafter, 
participating agencies with relevant statutory authority may review the 
comments or the comments may be read and considered by the Ad Hoc 
Committee.

ADDRESSES: If you wish to file comments using the Internet, you may use 
the DOT DMS Web site at http://dms.dot.gov. Please follow the online 
instructions for submitting an electronic comment. You can also review 
comments on-line at the DMS Web site at http://dms.dot.gov.
    Please note that anyone is able to electronically search all 
comments received into our docket management system by the name of the 
individual submitting the comment (or signing the comment if submitted 
on behalf of an association, business, labor union, etc.). You may 
review DOT's complete Privacy Act Statement in the Federal Register 
published on April 11, 2000 (Volume 65, Number 70; pages 19477-78) or 
you may review the Privacy Act Statement at http://dms.dot.gov.
    You can also mail or hand-deliver comments to the U.S. Department 
of Transportation (DOT), Dockets Management System (DMS). You may 
submit your comments by mail or in person to the Docket Clerk, Docket 
No. RITA-2006-26758, U.S. Department of Transportation, 400 Seventh 
Street, SW., Room PL-401, Washington, DC 20590-0001. Comments should 
identify the docket number; paper comments should be submitted in 
duplicate. Do not submit information that you consider to be 
proprietary or confidential business information to the Docket. 
Instead, send or deliver this information directly to the person 
identified in the FOR FURTHER INFORMATION CONTACT section of this 
document. You must mark the information that you consider proprietary 
or confidential. If you send the information on a disk or CD-ROM, mark 
the outside of the disk or CD-ROM and also identify electronically 
within the disk or CD-ROM the specific information that is proprietary 
or confidential.
    The DMS is open for examination and copying, at the above address, 
from 9 a.m. to 5 p.m., Monday through Friday, except federal holidays. 
If you wish to receive confirmation of receipt of your written 
comments, please include a self-addressed, stamped postcard with the 
following statement: ``Comments on Docket RITA-2006-26758.'' The Docket 
Clerk will date stamp the postcard prior to returning it to you via the 
U.S. mail. Please note that due to delays in the delivery of U.S. mail 
to Federal offices in Washington, DC, we recommend that persons 
consider an alternative method (the Internet, fax, or professional 
delivery service) to submit comments to the docket and ensure their 
timely receipt at U.S. DOT. You may fax your comments to the DMS at 
(202) 493-2251.

FOR FURTHER INFORMATION CONTACT: William Chernicoff, Office of 
Research, Development and Technology, Research and Innovative 
Technology Administration, Department of Transportation, Room 2440, 400 
Seventh Street, SW., Washington, DC 20590 or [email protected] or 
202-366-4999 or 800-853-1351.

SUPPLEMENTARY INORMATION:

Table of Contents

1.0 Introduction
2.0 Regulatory Matrix
3.0 Statements of Agency/Department Regulations Applicable to a 
Hydrogen Economy
    3.1 U. S. Department of Labor/Occupational Safety and Health 
Administration (OSHA)
    3.2 U.S. DOT/Federal Aviation Administration (FAA)
    3.3 U.S. DOT/Federal Railroad Administration (FRA)
    3.4 U.S. DOT/National Highway Transportation Safety 
Administration (NHTSA)
    3.5 U.S. DOT/Federal Motor Carriers Safety Administration 
(FMCSA)
    3.6 U.S. DOT/Pipeline and Hazardous Materials Safety 
Administration (PHMSA)
    3.7 Environmental Protection Agency (EPA)
    3.8 Federal Energy Regulatory Commission (FERC)
    3.9 U.S. Coast Guard (USCG)
4.0 Statement of Consensus Regulatory Statements in Specific Areas
    4.1 Hydrogen Transportation and Port Regulatory Framework
    4.2 Hydrogen Vehicle Regulatory Framework
    4.3 Hydrogen Stationary Fuel Cells Regulatory Framework
5.0 General Comments on State and Local Jurisdiction

1.0 Introduction

    As a result of the promise of hydrogen as a clean and renewable 
energy resource, the Hydrogen Fuel Initiative was launched shortly 
after the President's 2003 State of the Union address.

    ``With a new national commitment * * * the first car driven by a 
child born today could be powered by hydrogen, and pollution-free. 
Join me in this important innovation to make our air significantly 
cleaner, and our country much less dependent on foreign sources of 
energy.''

    Section 806 of the Energy Policy Act of 2005 (EPAct) (Pub. L. 109-
58) directs the establishment of a Hydrogen and Fuel Cell Technical 
Task Force, which is to include representatives from OSTP, DOT, DOD, 
DOC (including NIST), DOS, EPA, NASA and any other federal agencies as 
the Secretary of Energy determines appropriate. The NSTC IWG, which is 
co-chaired by DOE and OSTP, carries out the duties specified in EPAct 
Section 806. Sec. 806(b)(1)(D)-(E) calls for the Task Force to work 
toward ``uniform hydrogen codes, standards and safety protocols;'' and 
``vehicle hydrogen fuel system integrity safety performance.'' 
Therefore, the IWG has created the Ad Hoc Committee to examine existing 
authorities related to these issues in order to minimize uncertainties 
and inefficiencies in the commercial sector that can stifle innovation 
and impair the competitiveness of U.S. industry. Members of the Ad Hoc 
Committee were from the chief legal office of each participating agency 
or department, paired with a technical representative from the same 
agency or department. This arrangement represents a new model for 
examining the current regulatory framework at the same time that the 
emerging technology is being researched and developed.
    The Ad Hoc Committee is chaired by the Chief Counsel of the 
Research and Innovative Technology Administration (RITA) of the U.S. 
Department of Transportation. The Committee includes representation 
from the Department of Transportation (DOT) which includes air (Federal 
Aviation Administration), motor vehicles, e.g., cars, trucks and buses 
(National Highway Traffic Safety Administration), motor carriers 
(Federal Motor Carriers Safety Administration), rail (Federal Rail 
Administration), mass transit systems (Federal Transit Administration) 
and pipelines (Pipeline and Hazardous Materials Safety Administration); 
and the Department of State (DOS), U.S. Department of Agriculture 
(USDA), the United States Coast Guard (USCG), the National Aeronautics 
and Space Administration (NASA), the Occupational Safety and Health 
Administration (OSHA), the Environmental Protection Agency (EPA) and 
the Federal Energy Regulatory Commission staff (FERC). The Ad Hoc 
Committee met on March 9, May 11, May 25, June 5, June 22, July 13 and 
July 20, 2006.
    The purpose of the Ad Hoc Committee is to identify existing 
regulatory and statutory authorities and the lead agency (or instances 
in which shared authorities exist) that will govern these hydrogen 
technologies and

[[Page 611]]

applications as they move from development into the marketplace, 
focusing specifically on issues of safety, economic utility, and 
environmental soundness. In so doing, the Ad Hoc committee recognizes 
the value in consistent and comprehensive communications about the 
regulatory framework for a hydrogen economy between government, 
industry, and academia.

2.0 Regulatory Matrix

BILLING CODE 4810-HY-P

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[GRAPHIC] [TIFF OMITTED] TN05JA07.018

BILLING CODE 4810-HY-C

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3.0 Statements of Agency/Department Regulations Applicable to a 
Hydrogen Economy

3.1 U. S. Department of Labor/Occupational Safety and Health 
Administration (OSHA)

    The Occupational Safety Health Administration's (OSHA's) mission is 
to assure the safety and health of America's workers by setting and 
enforcing standards; providing training, outreach, and education; 
establishing partnerships; and encouraging continual improvement in 
workplace safety and health. OSHA receives its authority to fulfill 
this mission through the Occupational Safety and Health Act of 1970, 29 
U.S.C. 651, et seq. OSHA standards are contained in 29 CFR part 1910 
for General Industry, in part 1926 for Construction Industry, and in 
parts 1915, 1917, and 1918 for Maritime Industry. In the absence of 
specific OSHA standards, employers are obligated under Section 
5(a)(1)--``the General Duty Clause'' of the OSHA Act to protect 
employees from serious recognized hazards.

    Note: OSHA standards apply to private sector employers, and to 
agencies of the United States Government. OSHA standards do not 
apply to particular working conditions for which other federal 
agencies have issued worker safety or health regulations. States and 
their political subdivisions are required to comply with OSHA 
standards only in the 26 states and territories that administer 
OSHA-approved state plans.

    This Federal Register notice is limited to providing information on 
OSHA standards which may be applicable to, or might be considered 
useful sources for information pertaining to, hazards related to 
workplace use of hydrogen. The worksites involving hydrogen operations 
may contain additional occupational hazards which may be covered by 
other OSHA standards. The omission of such standards from this Federal 
Register notice in no way limits their applicability.
    The following standards, as noted above, may be applicable to, or 
might be considered useful sources for information pertaining to 
hazards related to workplace use of hydrogen:
    29 CFR 1910.38, Emergency action plans, specifies the required 
content of an emergency action plan when an emergency action plan is 
required by another standard.
    29 CFR 1910.101, Compressed gases (general requirements), contains 
requirements for compressed gases in containers including cylinders, 
portable tanks, rail tankcars, or motor vehicle cargo tanks. The 
inspection requirements of compressed gas cylinders are contained under 
1910.101(a); the in-plant handling, storage, and utilization of all 
compressed gases in cylinders, portable tanks, rail tankcars, or motor 
vehicle cargo tanks under paragraph (b); and the safety relief device 
requirements for compressed gas containers in paragraph 1910.101(c).
    29 CFR 1910.103, Hydrogen, contains requirements for hydrogen 
systems. Paragraph (b) of this section applies to gaseous hydrogen 
systems on consumer premises where the hydrogen supply originates 
outside the consumer premises and is delivered by mobile equipment. It 
does not apply to gaseous hydrogen systems having a total hydrogen 
content of less than 400 cubic feet, nor to hydrogen manufacturing 
plants or other establishments operated by the hydrogen supplier or his 
agent for the purpose of storing hydrogen and refilling portable 
containers, trailers, mobile supply trucks, or tank cars.
    Paragraph (c) under Sec.  1910.103 applies to liquefied hydrogen 
systems on consumer premises. The standard excludes liquefied hydrogen 
portable containers of less than 150 liters (39.63 gallons) capacity 
and liquefied hydrogen manufacturing plants or other establishments 
operated by the hydrogen supplier or his agent for the sole purpose of 
storing liquefied hydrogen and refilling portable containers, trailers, 
mobile supply trucks, or tank cars.
    29 CFR 1910.119, Process safety management of highly hazardous 
chemicals, covers processes containing a threshold quantity of a highly 
hazardous chemical. A process is defined as ``* * * any activity 
involving a highly hazardous chemical including any use, storage, 
manufacturing, handling or on-site movement of such chemicals, or 
combination of these activities.'' The standard applies to flammable 
liquids and gases at a threshold quantity of 10,000 pounds or more, 
specified quantities of chemicals listed in Appendix A of the standard, 
and to the manufacture of explosives. Because hydrogen would be covered 
as a flammable gas, the PSM standard would apply to processes 
containing hydrogen in quantities of 10,000 pounds or more, with some 
exceptions.
    29 CFR 1910.120, Hazardous waste operations and emergency response, 
contains requirements for emergency response operations. When there is 
more than an incidental release of hydrogen, or a substantial threat of 
a release, then emergency response operations must comply with Sec.  
1910.120(q)., ``Emergency response to hazardous substance releases.''
    29 CFR 1910.132(a), Personal protective equipment, requires that 
protective equipment, including personal protective equipment for eyes, 
face, head, and extremities, protective clothing, respiratory devices, 
and protective shields and barriers, shall be provided, used, and 
maintained in a sanitary and reliable condition wherever necessary.
    29 CFR 1910.156, Fire brigades, contains requirements for the 
organization, training, and personal protective equipment of fire 
brigades whenever they are established by an employer. The requirements 
under 1910.156 apply to fire brigades, industrial fire departments and 
private or contractual type fire departments. Personal protective 
equipment requirements contained in this section apply only to members 
of fire brigades performing interior structural fire fighting.
    29 CFR 1910.307, Hazardous (Classified) locations, contains 
requirements for electrical installations in hazardous locations. 
Locations where flammable concentrations of hydrogen may exist under 
normal or abnormal conditions may be classified as Class I, Division 1 
or 2 locations. Electric equipment in these locations must be: (1) 
Approved as intrinsically safe for locations, (2) approved for 
installation in locations classified due to the presence of hydrogen, 
or (3) of a type and design which the employer demonstrates will 
provide protection from the hazards arising from the combustibility and 
flammability of hydrogen.
    29 CFR 1910.1200, Hazard communication requires that hazards 
associated with hydrogen must be conveyed to employees. In addition, 
the standard requires that the information be transmitted through a 
comprehensive hazard communication program, including, but not limited 
to, container labeling, material safety data sheets, and employee 
training on the hazards associated with handling hydrogen.

3.2 U.S. DOT/ Federal Aviation Administration (FAA)

I. Statutory Authority Safety Regulation; General Requirements (49 
U.S.C. 44701(a)(5))
    The Federal Aviation Administration has the statutory authority to 
regulate hydrogen under its safety regulations. The Administrator is 
charged with promoting safe flight of civil aircraft in air commerce by 
prescribing regulations and minimum standards for practices

[[Page 614]]

and methods, and procedures the Administrator finds necessary for 
safety in air commerce and national security.
II. Current Regulatory Framework
    FAA regulations directly impact the use of hydrogen in 14 CFR part 
420, License to Operate a Launch Site. This part applies to any person 
seeking a license to operate a launch site or to a person licensed to 
operate a launch site for rockets. The FAA included these safety 
regulations to the keep public a safe distance from the storage and 
handling of liquid hydrogen, used as rocket fuel (14 CFR 420.67, 420.69 
and Part 420 Appendix E).
    The FAA regulates the use of hydrogen in airships. For instance, 14 
CFR 21.1(b) governs the airworthiness of airships. It points an 
applicant seeking an airworthiness certificate for an airship to 
various other aircraft certification provisions. The FAA also published 
an advisory circular, AC 21.17-1A, which advises that hydrogen is not 
an acceptable lifting gas for use in airships.
    The FAA also regulates hydrogen, if it is used in a manned free 
balloon. For example, airworthiness standards for manned free balloons 
appear in 14 CFR part 31, with mention of lighter than-air gas in 14 
CFR 31.1(c)(1).
    There is nothing in the FAA regulations that would explicitly 
prohibit the use of new technologies utilizing hydrogen. However, many 
FAA regulations in parts 21, 23, 25, 27, 29, 31, 33, 34 and 36 provide 
aircraft and aircraft part certification requirements. To the extent an 
applicant were to seek approval of an aircraft that utilizes hydrogen, 
as a fuel or in some other way, the applicant would have to comply with 
the applicable aircraft certificate requirements, just like any other 
applicant. Likewise, an operator of an aircraft with new technologies 
using hydrogen would have to comply with operational requirements in 
parts 91, 119, 121, 125, or 135, just like any other operator.
    The FAA currently has not received funding to conduct research on 
the use of hydrogen as an alternative fuel for aircraft.

3.3 U.S. DOT/ Federal Railroad Administration (FRA)

    FRA has broad statutory authority to regulate all areas of railroad 
safety. See 49 U.S.C. 20101 et seq. Pursuant to its statutory 
authority, FRA promulgates and enforces a comprehensive regulatory 
program that addresses the three major elements of the railroad system: 
the rolling equipment, the track and signal system over which the 
rolling equipment operates, and the rules for conducting such 
operations. See e.g., 49 CFR parts 209-236. FRA is also responsible for 
enforcing the hazardous materials regulations (HMR) promulgated by 
PHMSA (49 CFR parts 171-180). The HMR classify hydrogen, in its various 
forms, as a hazardous material, and specifically as a flammable gas. 
See 49 CFR 172.101 (column 3 of Hazardous Materials Table). 
Accordingly, the transportation of hydrogen would be subject to the 
packaging and hazard communication requirements of the HMR. Specific to 
the transportation of hydrogen by rail, Part 174 of the HMR contains 
general operating, handling, loading, and unloading requirements 
specific to the rail transportation of hazardous materials and detailed 
requirements for the handling and transportation of flammable gases 
such as hydrogen. See 49 CFR 174.200-174.204 for provisions specific to 
flammable gases. Although under the HMR, hydrogen may be transported as 
a compressed gas or a cryogenic liquid (see 49 CFR 172.101, 173.302, 
.304, .314, .316, .318, and .319), as a practical matter, because of 
cost considerations and the limited number of specialized rail tank 
cars capable of safely transporting hydrogen in its gaseous form, most 
hydrogen transported by rail would have to be in a cryogenic liquid 
form. See 49 CFR 173.314(c) and 173.319 (authorizing DOT class 107 tank 
cars for transportation of hydrogen as a compressed gas and DOT class 
113 tank cars for transportation of hydrogen as a cryogenic liquid).

3.4 U.S. DOT/National Highway Traffic Safety Administration (NHTSA)

Motor Vehicle Safety: Research, Standards and Compliance; Defects, 
Recall, and Enforcement (49 U.S.C. 30101 et seq., 49 CFR 501-596)
    NHTSA has the authority to regulate the safety of all motor 
vehicles (e.g., passenger vehicles, multipurpose passenger vehicles, 
trucks and buses), and to that end, conducts basic research, develops 
and issues motor vehicle safety standards and regulations, issues 
interpretations of and exemptions to the standards based on technical 
knowledge, enforces compliance with the standards, makes determinations 
regarding safety related defects in vehicles and equipment, and 
mandates safety recalls of non-compliant and defective vehicles and 
equipment.
     NHTSA currently regulates fuel system integrity of 
vehicles, including gasoline, diesel, compressed natural gas (CNG) and 
electric powered vehicles (Federal Motor Vehicle Safety Standards 301, 
303, 304 and 305). The existing standards ensure safety either by 
simply regulating full vehicle crash performance or in the case of CNG 
vehicles, by also regulating the safety of components and on-board fuel 
storage systems. NHTSA enforces compliance with these standards and 
conducts safety defects investigations on fuel leaks and fires.
     NHTSA has established an agencywide hydrogen project team 
to (1) study existing technologies in coordination with other agencies 
of the U.S. government and industry, and (2) devise a plan of action 
identifying the research and testing needed to establish a performance 
oriented safety standard that does not limit innovation or slow down 
the development of and marketing of hydrogen vehicles. Vehicles fueled 
by gasoline or diesel fuel are currently subject to performance 
requirements based on crash testing. It is important that occupants of 
hydrogen vehicles are provided with a level of safety comparable to 
that provided for occupants of vehicles fueled by gasoline or diesel 
fuel. Such a standard will, among other things, help build consumer 
confidence in the technology. For details about NHTSA's four year 
research plan, see http://www-nrd.nhtsa.dot.gov/departments/nrd-11/H2-4yr-plan.pdf.
     The team is focusing on component performance testing for 
leak prevention and detection and safety effectiveness for powertrain, 
tanks, regulator valves, and connecting lines. In addition, the team is 
evaluating how to test the performance of these vehicles in a crash in 
order to limit fire exposure and prevent catastrophic events.
     In the international arena, NHTSA leads the United States 
delegation to the United Nations Economic Commission for Europe (UN/
ECE) World Forum for the Harmonization of Vehicle Regulations (WP.29). 
In that forum, NHTSA represents the U.S. on issues related to the 
safety of all types of vehicle fuel systems. NHTSA identifies best 
practices and seeks to harmonize its regulations with foreign 
regulations in order to improve safety and reduce costs.
     In the area of hydrogen-powered vehicles, NHTSA has been 
representing the U.S. in a WP.29 Working Group on Hydrogen since 2002. 
The purpose of the group is to develop a global technical regulation 
for hydrogen-powered vehicles under the 1998 Global Agreement. NHTSA is 
promoting the development of a performance standard for hydrogen 
vehicles, which is science-based and data driven.

[[Page 615]]

     NHTSA, along with counterparts in Germany and Japan are 
currently leading this effort under WP.29. To facilitate and guide the 
process of developing such a GTR, NHTSA is working with the co-
sponsors, Germany and Japan, to develop a work plan that can be 
accepted by all signatories to the 1998 Agreement for the Harmonization 
of Vehicle Regulations.
     NHTSA expects consideration and adoption of the work plan 
at the March 2007 session. Work on development of the GTR should 
commence shortly thereafter.
Consumer Information (49 U.S.C. 32301 et seq.); and Fuel Economy (49 
U.S.C. 32901 et seq.; 49 CFR 523-538)
     NHTSA generates and provides consumer information to the 
public regarding the crashworthiness and other safety characteristics 
of vehicles in order to assist consumers in making sound decisions 
regarding the purchase of safe vehicles.
     NHTSA has the authority to regulate fuel economy of 
hydrogen-powered vehicles. Hydrogen is an alternative fuel for the 
purposes of the Corporate Average Fuel Economy (CAFE) program. Vehicles 
that use hydrogen as their only source of fuel (dedicated vehicles) or 
can alternately use hydrogen and petroleum fuel (dual-fuel vehicles) 
qualify for special calculation of their fuel economy performance under 
regulations administered by NHTSA. These special calculation procedures 
provide manufacturers with powerful incentives to develop and produce 
these vehicles, which could contribute to our efforts to reduce our 
dependence on foreign energy supply.

3.5 U.S. DOT/Federal Motor Carriers Safety Administration (FMCSA)

    There are certain citations and regulatory authorities FMCSA 
believes are applicable in various uses of hydrogen. They are as 
follows:
    49 U.S.C. 5121--General Authority.--To carry out this chapter, the 
Secretary of Transportation may investigate, make reports, issue 
subpoenas, conduct hearings, require the production of records and 
property, take depositions, and conduct research, development, 
demonstration, and training activities. After notice and an opportunity 
for a hearing, the Secretary may issue an order requiring compliance 
with this chapter or a regulation prescribed under this chapter.
    For example, hydrogen is a flammable gas that may be transported by 
a motor carrier and there are regulations that govern the safe 
transportation of hydrogen. Under this statutory authority, FMCSA has 
the ability to enforce the hazardous materials regulations and cite 
shippers and carriers of hazardous materials.
    49 U.S.C. 31136 and 31502(b)--Minimum Safety Standards.--Subject to 
section 30103(a) of this title, the Secretary of Transportation shall 
prescribe regulations on commercial motor vehicle safety. The 
regulations shall prescribe minimum safety standards for commercial 
motor vehicles. At a minimum, the regulations shall ensure that--
    (1) Commercial motor vehicles are maintained, equipped, loaded, and 
operated safely;
    (2) The responsibilities imposed on operators of commercial motor 
vehicles do not impair their ability to operate the vehicles safely;
    (3) The physical condition of operators of commercial motor 
vehicles is adequate to enable them to operate the vehicles safely; and
    (4) The operation of commercial motor vehicles does not have a 
deleterious effect on the physical condition of the operators.
    49 U.S.C. 31502(b).--Requirements for qualifications, hours of 
service, safety, and equipment standards
    (b) Motor Carrier and Private Motor Carrier Requirements.--The 
Secretary of Transportation may prescribe requirements for--
    (1) Qualifications and maximum hours of service of employees of, 
and safety of operation and equipment of, a motor carrier; and
    (2) Qualifications and maximum hours of service of employees of, 
and standards of equipment of, a motor private carrier, when needed to 
promote safety of operation.
    For example, if a commercial motor vehicle will use hydrogen as a 
fuel source, the specific regulations regarding fuel systems of a 
commercial motor vehicle are found in 49 CFR subpart E.

3.6 U.S. DOT/Pipeline and Hazardous Materials Safety Administration 
(PHMSA)

    The Pipeline and Hazardous Materials Safety Administration (PHMSA) 
is the Federal agency charged with the safe and secure movement of 
hazardous materials to industry and consumers by all transportation 
modes, including the nation's pipelines.
Pipeline Safety
    PHMSA is responsible for prescribing and enforcing regulations to 
promote the safety of interstate and intrastate pipelines transporting 
hazardous liquids, natural gas, and other flammable, corrosive and 
toxic gases. PHMSA regulates pipeline safety pursuant to the Federal 
Pipeline Safety Law, codified in 49 U.S.C. 60101, et seq. and 
implementing regulations, Pipeline Safety Regulations (PSR), 49 CFR 
parts 190-199.
    Part 192 of the PSR regulates the transportation of natural gas and 
other gases in pipelines, including hydrogen, which is transported as a 
compressed flammable gas. Section 192.3 defines the ``transportation of 
gas'' as the ``gathering, transmission, or distribution of gas by 
pipeline or the storage of gas in, or affecting interstate or foreign 
commerce.'' States may enforce safety standards on intrastate pipelines 
if the State has been certified by PHMSA under 49 U.S.C. 60105.
Hazardous Materials Safety
    PHMSA also prescribes the Hazardous Materials Regulations (HMR), 49 
CFR parts 171-180, implementing the Federal Hazardous Materials 
Transportation Law, 49 U.S.C. 5101 et seq., to promote the safe 
transportation of hazardous materials in commerce. PHMSA shares 
authority for enforcement of the HMR with the Federal Aviation 
Administration, the Federal Motor Carrier Safety Administration, the 
Federal Railroad Administration, and the U.S. Coast Guard.
    In addition to packaging and hazard communication requirements, the 
HMR prescribe requirements for training employees, registration and 
security plans. Hydrogen, a hazardous material, is classified as a 
flammable gas in the Hazardous Materials Table (49 CFR 172.101) and is 
subject to all applicable requirements in the HMR, including packaging 
and hazard communication requirements. Hydrogen may be transported as a 
compressed gas in cylinders or as a cryogenic liquid in portable tanks, 
cargo tank motor vehicles, or rail tank cars.

3.7 Environmental Protection Agency (EPA)

Solid Waste
    1. Fuel cell production and hydrogen fuel production may use toxic 
or hazardous process inputs and process catalysts, and may produce 
solid waste streams that require management under RCRA.
    2. End-of-life disposal of fuel cells and fuel cell-powered 
vehicles will require effective management of hazardous materials, and 
may produce significant quantities of these materials. Hazardous 
materials found in existing

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fuel cells include corrosive electrolytes, flouride-containing 
plastics, and heavy metal catalysts.
    3. Hydrogen fuel production, distribution, and storage operations 
required to support the hydrogen economy (stationary and portable fuel 
cell applications) may present risks associated with accidental 
releases or spills of hazardous and explosive materials.

----------------------------------------------------------------------------------------------------------------
             Authority                        Rule                  Category                  Regulation
----------------------------------------------------------------------------------------------------------------
42 U.S.C. 6921.....................  40 CFR Part 261.......  Waste.................  Identification and Listing
                                                                                      of Hazardous Waste.
42 U.S.C. 6922.....................  40 CFR Part 262.......  Waste.................  Standards Applicable to
                                                                                      Generators of Hazardous
                                                                                      Waste.
42 U.S.C. 6924.....................  40 CFR Part 264.......  Waste.................  Standards For Owners and
                                                                                      Operators of Treatment,
                                                                                      Storage and Disposal
                                                                                      Facilities.
----------------------------------------------------------------------------------------------------------------

CERCLA/EPCRA--Reportable Quantities (RQs)
    1. By definition, any hazardous waste having the characteristics 
identified under or listed pursuant to section 3001 of the Solid Waste 
Disposal Act (42 USCA Sec.  6921) is a CERCLA ``hazardous substance.'' 
(see CERCLA Sec.  101(14)(C))
    2. Reportable Quantity (RQ) is that quantity of a hazardous 
substance, the release of which requires notification to the National 
Response Center. Reportable Quantities are established by regulation 
and the levels are based on an evaluation of the intrinsic physical, 
chemical, and toxicological properties of each substance. Upon proposal 
to list under RCRA (above), the RQ will be proposed for CERCLA and 
EPCRA notification requirements.
    3. CERCLA adopts the same definition for the purposes of the 
notification requirements as its ``source'' statute (in this case 
section 3001 of SWDA). EPCRA uses the CERCLA hazardous substance list 
for its emergency reporting.

--------------------------------------------------------------------------------------------------------------------------------------------------------
              Authority                                   Rule                                Category                          Regulation
--------------------------------------------------------------------------------------------------------------------------------------------------------
42 U.S.C. 9602, 9603 and 9604; 33      CERCLA--40 CFR Part 302...................  Waste/Hazardous Substance....  Identification and Listing of
 U.S.C. 1321 and 1361.                                                                                             Hazardous Waste.
42 U.S.C. 9604, 9605; 33 U.S.C. 1321   CERCLA--40 CFR Part 300...................  Waste/Hazardous Substance....  National Oil and Hazardous Substances
 and 1361.                                                                                                         Pollution Contingency Plan (NCP).
42 U.S.C. 11002, 11004, and 11048....  EPCRA--40 CFR Part 355....................  Waste/Hazardous Substance....  Emergency Planning and Notification.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Mobile Sources
    The role of EPA with regard to vehicle regulations is multiple. The 
EPA establishes emission standards for vehicles, regulates fuels and 
fuel additives, specifies the procedures for testing and certification, 
conducts basic research, provides guidance to the state programs, and 
performs compliance enforcement. The table below lists regulations that 
are, or may be, applicable to a hydrogen economy. Both exhaust and 
evaporative emissions that result from the conversion or combustion of 
hydrogen-based fuels (e.g. fuel cells, H2 internal 
combustion engine) are areas that would require management under the 
CAA.

----------------------------------------------------------------------------------------------------------------
           Authority                     Rule                  Category                    Regulation
----------------------------------------------------------------------------------------------------------------
42 U.S.C. 7521-7554 and 7601..  40 CFR Parts 85 and 86  Passenger vehicles and  Control of Air Pollution from
                                                         light-duty trucks and   New and In-Use Motor Vehicles
                                                         heavy-duty highway      and Engines.
                                                         engines (trucks and
                                                         buses).
42 U.S.C. 7521-7554 and 7601..  40 CFR Parts 85, 89-    Nonroad engines and     Control of Emissions from New
                                 92, 94, 1048, 1051,     vehicles, including     and In-Use Nonroad Engines.
                                 1065, 1068.             locomotives and
                                                         marine engines.
42 U.S.C. 7571-7574 and 7601..  40 CFR Part 87........  Aircraft engines......  Control of Air Pollution From
                                                                                 Aircraft and Aircraft Engines;
                                                                                 Emission Standards and Test
                                                                                 Procedures.
42 U.S.C. 7581-7590 and 7601..  40 CFR Part 88........  Clean Fuel Vehicles...  Emission Standards for Clean-
                                                                                 Fuel Vehicles.
42 U.S.C. 7545 and 7601.......  40 CFR Part 80........  Fuels Used in Mobile    Regulations of Fuels and Fuel
                                                         Sources.                Additives.
15 U.S.C. 2001-2006, and 2013.  40 CFR Part 600.......  Fuel Economy..........  Fuel Economy Regulations.
----------------------------------------------------------------------------------------------------------------


    Note: EPA performed fuel economy tests on hydrogen fuel cell 
vehicles in November 2002 and again in September 2003. The results 
of EPA's preliminary efforts have been documented.\1\ Currently, the 
EPA is also participating with the Society of Automotive Engineers 
on developing SAE J2572: Recommended Practice for Measuring the Fuel 
Consumption and Range of Fuel Cell Powered Electric Vehicles Using 
Compressed Gaseous Hydrogen. It would be the intent of SAE J2572 to 
provide standardized tests that allow for determination of fuel 
consumption and range based on the Federal Emission Test Procedure. 
The SAE practice would be expected to cover fuel cell powered 
vehicles which use compressed hydrogen gas onboard.

    \1\ C. Paulina, Hydrogen fuel cell vehicle fuel economy testing 
at the U.S. EPA National Vehicle and Fuel Emissions Laboratory, 
Society of Automotive Engineers, Powertrain & Fluid Systems 
Conference and Exhibition, 01-2900, 2004; and E.W. Lemmon, M.L. 
Huber, D.G. Friend, and C. Paulina, Standardized Equation for 
Hydrogen Gas Densities for Fuel Consumption Applications, National 
Institute of Standards and Technology, 01-0434, 2006.

---------------------------------------------------------------------------

[[Page 617]]

Stationary Sources
    The number of stationary power applications using hydrogen as a 
fuel is expected to grow in the future. For example, potential hydrogen 
fuel cell applications include both distributed and baseload power 
generation, utility and residential power sources, auxiliary or 
emergency power generation, and off-grid power supplies. Such 
facilities, as well as facilities that produce hydrogen (e.g. 
regeneration of natural gas or coal to hydrogen) may be covered by EPA 
rules under the Clean Air Act. The following are a list of certain 
regulations that may be applicable to hydrogen-related applications. 
Other regulations may also apply.

----------------------------------------------------------------------------------------------------------------
             Authority                       Rule                 Category                  Regulation
----------------------------------------------------------------------------------------------------------------
42 U.S.C. 7412....................  40 CFR part 63.......  Boilers and Heater     National Emission Standards
                                                            Emission Standards     for Hazardous Air Pollutants
                                                            (Boiler MACT).         for Industrial, Commercial,
                                                                                   and Institutional Boilers and
                                                                                   Process Heaters.
                                                           Combustion Turbines    National Emission Standards
                                                            (Turbine MACT).        for Hazardous Air Pollutants
                                                                                   for Stationary Combustion
                                                                                   Turbines.
                                                           Internal Combustion    National Emission Standards
                                                            Engines (Engine        for Hazardous Air Pollutants
                                                            MACT).                 for Stationary Reciprocating
                                                                                   Internal Combustion Engines.
42 U.S.C. 7411....................  40 CFR part 60.......  Steam Generating       Standards of Performance for
                                                            Units (Boiler NSPS).   Steam Generating Units.
                                                           Combustion Turbines    Standards of Performance for
                                                            (Turbine NSPS).        Stationary Combustion
                                                                                   Turbines.
                                                           Internal Combustion    Standards of Performance for
                                                            Engines (Engine        Stationary Spark-Ignited and
                                                            NSPS).                 Compression Ignition Internal
                                                                                   Combustion Engines.
42 U.S.C. 7470--7479..............  40 CFR 52.21.........  New Source Review:     Prevention of significant
                                    40 CFR 51.166........   Major Stationary       deterioration of air quality--
                                                            Sources in             Covers the construction of
                                                            Attainment Area.       new major stationary sources
                                                                                   or any project to an existing
                                                                                   source.
                                    40 CFR 51.165........  New Source Review:     Permit Requirements.
                                                            Major Stationary
                                                            Sources in
                                                            Nonattainment Area.
                                    40 CFR part 51         New Source Review:     Review of New Sources and
                                     subpart I.             Minor Stationary       Modifications.
                                                            Sources.
----------------------------------------------------------------------------------------------------------------

3.8 Federal Energy Regulatory Commission (FERC)

Electricity Jurisdiction
    The rates, terms, and conditions applicable to the transmission of 
electric energy in interstate commerce and the sale of electric energy 
at wholesale (i.e., for resale) in interstate commerce by public 
utilities are subject to FERC's authority pursuant to Parts II and III 
of the Federal Power Act (FPA), 16 U.S.C. 824 et seq. Part II of the 
FPA is neutral as to the type of fuel used to generate electricity.
Natural Gas Jurisdiction
    Under Congressional authorization in the Natural Gas Act of 1938, 
FERC regulates the transportation and storage of natural gas in 
interstate commerce and the construction and operation of pipeline 
facilities that a natural gas company uses to transport natural gas in 
interstate commerce (15 U.S.C. 717, et seq.; 18 CFR 157.1-157.22 and 18 
CFR 157.201-157.218). FERC does not have jurisdiction over the 
transportation of hydrogen in interstate commerce or over the 
construction of facilities related to hydrogen transportation (i.e., 
pipeline, compression, import/export).

3.9 State and Local Utility Regulations

    States are developing programs to promote the hydrogen economy, 
e.g., Florida's One-Stop Uniform Hydrogen Siting Program and 
California's 2010 Hydrogen Highway Network for fueling stations and the 
use of hydrogen as a transportation fuel. Under California's Highway 
Network, an energy station would be classified as distributed 
generation if the energy station's electrical power is not consumed 
solely on site and is interconnected to the grid.

3.9 U.S. Coast Guard (USCG)

Summary of U.S. Coast Guard Jurisdiction on Hydrogen (H2) Issues
    The Coast Guard (CG), based on current practice and regulatory 
authority, would have two roles relating to transportation of H2. One 
concerns the licensing and operation of hypothetical H2 deepwater 
ports, and the second concerns safety standard setting and enforcement 
authority for vessels that might carry H2 as bulk cargo, such as 
hypothetical H2 tank vessels.
    The first role would arise only if there develops a need to ship 
hydrogen to the U.S. in vessels that would offload the cargo at 
deepwater ports, as is currently being done with liquefied natural gas. 
Assuming Congress amends the Deepwater Ports Act to encompass H2, the 
CG's Deepwater Ports Standards Division would likely be responsible for 
developing and maintaining regulations and standards for H2 deepwater 
ports and for assisting the Maritime Administration in processing H2 
deepwater port license applications. The CG's regulations for deepwater 
ports in 33 Code of Federal Regulations Subchapter NN are based on 
delegated authority, and contain design, construction, equipment, and 
operational requirements for deepwater ports. The CG also manages the 
development of Environmental Impact Statements for deepwater port 
license approval. The CG coordinates interagency review of and public 
comment on license applications, and develops guidance for oversight of 
post-licensing activities associated with the development of deepwater 
ports, including the design, construction, and activation phases, 
environmental monitoring programs, operational procedures, risk 
assessments, security plans, safety and inspections.
    In its second role, the Coast Guard has regulatory authority to 
ensure safe design and operation of vessels that could carry hydrogen. 
This authority derives from 46 U.S.C. 3703 and 33 U.S.C. 1903(b). The 
CG has determined

[[Page 618]]

that hydrogen is hazardous when transported in bulk by vessel, either 
in gaseous or liquid form. The relevant regulations are in 46 CFR 
Subchapter O, Certain Dangerous Bulk Cargoes, and specify cargo 
compatibility and aspects of vessel design, construction, materials, 
and operations. Which particular standards would apply depend on the 
form in which the hydrogen is transported (compressed gas or 
liquefied), and what kind of vessel is being employed. To enhance 
transportation safety, hydrogen is most likely to be transported as a 
metallic hydride, adsorbed onto metal particles. Assuming the metal 
particles would be a hazardous bulk solid, they would be regulated 
under CG regulations in 46 CFR Part 148, Carriage of Solid Hazardous 
Materials in Bulk.
    Although these regulations have some special provisions for 
transporting certain gases, there are currently no requirements 
specifically for hydrogen. Should the need for marine transportation of 
hydrogen materialize, these regulations would need to be modified to 
include special hydrogen requirements, due to hydrogen's metal 
embrittlement properties. Absent such modifications, 46 CFR 150.140 
would prohibit the bulk transportation by vessel of hydrogen, without 
special permission from the CG Commandant. The shipment of unlisted 
hazardous bulk solids (metallic hydride) would also require express 
permission of the Commandant.

4.0 Statement of Consensus Regulatory Statements in Specific Areas

4.1 Hydrogen Transportation and Port Regulatory Framework

Agency Jurisdictional Consensus Statement for Hydrogen Transportation*
    A transition from America's current hydrocarbon-based energy 
economy to a hydrogen economy will require a suitable water and land-
based transportation infrastructure. In the future, cryogenic hydrogen-
carrying vessels powered by fuel cells may be able to unload their 
shipments of liquid hydrogen at ports located in Federal (so-called 
``deepwater ports'') and state waters or at land-based terminals. 
Currently, pipelines (interstate and intrastate) transport hydrogen gas 
to specialized industrial markets. Hydrogen is also currently 
transported to industrial customers in cylinders, portable tanks, cargo 
tank motor vehicles, or rail tank cars.
    For the hydrogen economy to develop, hydrogen must either be 
shipped to market-area fuel cells to generate electricity for near-by 
users or be used to power supply-area fuel cells to generate 
electricity for market areas. A hydrogen economy will require reliable 
and safe interconnections between distributed generators using hydrogen 
fuel cells and electric utilities, as well as between electric 
utilities, to allow for the delivery of hydrogen-generated electricity 
for retail consumption.
    The statement includes regulatory analyses by the members of the 
Hydrogen Port Subcommittee and is not a statement of policy of the 
participating federal agencies.
    This consensus statement identifies the respective current 
authorities, if any, of the Pipeline and Hazardous Materials Safety 
Administration (PHMSA) and the Maritime Administration (MARAD) of the 
U.S. Department of Transportation (DOT), the Federal Energy Regulatory 
Commission (FERC), and the U.S. Coast Guard, Department of Homeland 
Security (CG) with respect to the transportation of hydrogen. The 
statement also includes the authority of the Minerals Management 
Service (MMS) of the U.S. Department of the Interior on the issue of 
storage and withdrawal of sequestered carbon dioxide. Certain 
jurisdictional responsibilities of the various agencies as to hydrogen 
are clearly set forth in statutes and regulations.
    The consensus statement concludes: (1) Currently no Federal agency 
has the statutory authority to approve the construction or siting of 
interstate hydrogen pipelines or hydrogen deepwater ports; (2) PHMSA 
and CG currently have regulations in place regulating the 
transportation of hydrogen as a hazardous material; and (3) MARAD has 
the authority to provide loan guarantees for hydrogen-carrying vessels.
    The statement recognizes that the Surface Transportation Board 
(STB), the Federal economic regulator of railroads, also regulates 
economic aspects of interstate hydrogen pipelines. The STB provides 
limited regulation of the transportation rates and common carrier terms 
of service of such pipelines. Under the STB's hydrogen pipeline 
authority, hydrogen pipeline rates must be just and reasonable, but the 
STB may not on its own initiative investigate and alter rates charged 
by a hydrogen pipeline and has no authority over hydrogen pipeline 
construction.
    A functioning hydrogen economy will be subject to the regulatory 
oversight of certain Federal (as well as state and local) agencies, but 
not others.
     PHMSA. PHMSA's current pipeline safety regulations apply 
to the safe transportation of hydrogen gas in interstate and intrastate 
pipelines, including pipeline transportation facilities within the 
limits of the Outer Continental Shelf (OCS) (generally from 3 to 200 
miles off-shore). Numerous provisions of PHMSA's Hazardous Materials 
Regulations apply to the transportation of hydrogen by non-pipeline 
modes.
     MMS. To the extent that carbon dioxide (CO2) sequestered 
from hydrogen production is injected into and withdrawn from storage in 
the OCS, MMS would be required to grant pipeline rights-of-way through 
and a lease of submerged portions of the OCS.
     FERC. FERC currently has jurisdiction over the 
transportation of natural gas (methane) in interstate commerce and over 
the facilities (on and off-shore) used for such transportation. FERC 
also has exclusive authority to approve the siting, construction, or 
operation of natural gas import facilities, including LNG terminals on-
shore and in state waters. FERC has no jurisdiction regarding the 
construction of facilities for, or the storage or transportation of, 
gaseous or liquefied hydrogen, or the importation of hydrogen.
     MARAD. MARAD is responsible for issuing licenses for 
deepwater ports in Federal waters for natural gas, LNG, and oil, but 
has no current authority over prospective hydrogen deepwater ports. 
MARAD's current authority to make loan guarantees for vessels would 
apply to the construction of hydrogen-carrying vessels.
     CG. The CG has primary safety and security authority over 
port areas and navigable waterways and is responsible for matters 
relating to navigation safety, vessel engineering, and safety standards 
for vessels carrying hazardous materials, including hydrogen. The CG 
processes applications for deepwater ports for natural gas and oil, but 
has no current authority over prospective hydrogen deepwater port 
applications.
 I. PHMSA
A. Pipeline Safety
    PHMSA is responsible for prescribing and enforcing regulations to 
promote public and environmental safety for over 2 million miles of 
pipelines for hazardous liquids, natural gas, and other flammable, 
corrosive and toxic gases, including hydrogen. PHMSA regulates pipeline 
safety pursuant to the Federal Pipeline Safety Laws, codified in 49 
U.S.C. 60101, et seq., and implementing regulations, 49 CFR parts 190-
199.
    Currently, the pipeline safety regulations apply to the 
transportation

[[Page 619]]

of hydrogen gas by pipeline, but would not apply to the transportation 
of liquefied hydrogen by pipeline. Specifically, PHMSA regulations at 
49 CFR part 192 prescribe the minimum safety requirements for pipeline 
facilities and the transportation of gas, including natural gas, 
flammable gas, or gas that is toxic or corrosive. Because hydrogen is 
flammable, current pipeline safety regulations apply to the 
transportation of hydrogen gas by pipeline. Section 192.3 defines the 
``transportation of gas'' as the ``gathering, transmission, or 
distribution of gas by pipeline or the storage of gas in or affecting 
interstate or foreign commerce.'' PHMSA's pipeline safety authority 
extends to pipeline facilities and the transportation of gas on-shore 
and offshore within the limits of the OCS. PHMSA's regulations apply to 
transmission lines serving deepwater ports.
    The pipeline safety regulations in 49 CFR part 195 prescribe safety 
standards for pipeline facilities used in the transportation of 
hazardous liquids (petroleum, petroleum products, or anhydrous ammonia) 
or carbon dioxide. Hydrogen is not included in the definition of 
hazardous liquid and, therefore, liquefied hydrogen is not subject to 
Part 195. The Secretary of Transportation is authorized, pursuant to 49 
U.S.C. 60101(a)(4)(B), to designate as hazardous a substance that ``may 
pose an unreasonable risk to life or property when transported by a 
hazardous liquid pipeline facility in a liquid state (except for 
liquefied natural gas).'' Pursuant to 49 CFR 1.53, the Secretary has 
delegated that authority to the Administrator of PHMSA. PHMSA has not 
revised the pipeline safety regulations to designate hydrogen as a 
hazardous liquid. If so designated, liquefied hydrogen would be subject 
to PHMSA's pipeline safety regulations.
B. Hazardous Materials Safety
    PHMSA is responsible for issuing the regulations to implement the 
Federal Hazardous Materials Transportation Law, 49 U.S.C. 5101 et seq., 
to promote the safe transportation of hazardous materials in commerce. 
PHMSA's Hazardous Materials Regulations (HMR) are found at 49 CFR parts 
171-180. PHMSA shares authority for enforcement of the HMR with the 
Federal Aviation Administration, the Federal Motor Carrier Safety 
Administration, the Federal Railroad Administration, and the U.S. Coast 
Guard. In addition to packaging and hazard communication requirements, 
the HMR prescribe requirements for training employees, registration and 
security plans.
    Hydrogen, a hazardous material, is classified as a flammable gas in 
the Hazardous Materials Table (49 CFR 172.101) and is subject to all 
applicable requirements in the HMR, including packaging and hazard 
communication requirements. Hydrogen may be transported as a compressed 
gas in cylinders or as a cryogenic liquid in portable tanks, cargo tank 
motor vehicles, or rail tank cars. The HMR include design, 
manufacturing, and maintenance standards for packaging used for the 
transportation of hydrogen.
C. International Effect
    By its terms, the Federal Hazardous Materials Transportation Law 
applies to the transportation of hazardous materials in intrastate, 
interstate, and foreign commerce. 49 U.S.C. 5101. As a matter of 
longstanding practice, however, PHMSA asserts jurisdiction over a 
hazardous materials shipment only when those materials are affecting 
transportation in the United States. Shippers and carriers of hazardous 
materials coming into or leaving the United States must comply with 
U.S. law while that product is being shipped within the United States. 
Shipments of hazardous materials into or within other countries must 
comply with the laws of those countries.
    PHMSA is actively involved in international efforts to establish 
uniform and effective safety standards for hazardous materials 
transportation. PHMSA participates in United Nations committees and 
other international working groups and has taken steps to harmonize its 
regulations with UN Recommendations, the International Maritime 
Organization's International Maritime Dangerous Goods Code (IMDG), and 
the International Civil Aviation Organization's Technical Instructions 
for the Safe Transport of Dangerous Goods by Air (ICAO). Under certain 
conditions, PHMSA's regulations allow the use of the IMDG Code and ICAO 
Technical instructions for transportation into, within, or out of the 
U.S.
D. Carbon Dioxide Sequestration
    Carbon dioxide results from producing hydrogen from natural gas or 
LNG. The hydrogen economy would require capturing, separation, and 
storage or reuse of carbon dioxide. One plan is to transport captured 
carbon dioxide by pipeline for injection and storage in subsea strata. 
Carbon dioxide is not a ``gas'' within pipeline safety regulations, but 
when transported as a liquid, compressed carbon dioxide is subject to 
Part 195 of the pipeline safety regulations. Carbon dioxide is 
classified as a non-flammable gas (non-flammable gas includes both 
liquefied and non-liquefied compressed gases) under the HMR, 49 CFR 
172.101. Carbon dioxide may be transported as liquefied or non-
liquefied compressed gas in cylinders, portable tanks, cargo tanks, or 
rail tank cars, in accordance with 49 CFR parts 171-180.
    Other Federal agencies may have a future role to play with respect 
to carbon dioxide sequestration. MMS oversees facility permitting, 
grants pipeline rights-of-way through submerged portions of the OCS, 
and performs facility inspections, including safety related items as 
the CG authorizes. A producer of hydrogen seeking to store carbon 
dioxide in the ocean floor on the OCS within the Federal domain must 
obtain permission from the MMS. In addition, existing laws, 
regulations, and treaties that apply to minerals mining and oil and gas 
production potentially apply to the injection of carbon dioxide into 
the geological sub-seabed of the ocean.
II. FERC
    The FERC regulates under the Natural Gas Act of 1938 (15 U.S.C. 
717, et seq.): (1) The rates, terms, and conditions applicable to the 
transportation of natural gas by natural gas companies in interstate 
commerce within the United States (Sections 4 and 5 and Part 154 
regulations); (2) the construction (with the right of eminent domain), 
operation, acquisition, and abandonment of natural gas pipeline 
facilities operating in interstate commerce (Section 7 and Part 157 
regulations); and (3) the place of entry or exit, siting, and the 
construction and operation of LNG terminal facilities, onshore or in 
State waters, operating in foreign commerce (Section 3 and Part 153 
regulations). The FERC has no authority to regulate the transportation, 
or facilities associated with the transportation, of hydrogen in 
interstate commerce or the importation of hydrogen.
    FERC regulates the transmission of electric energy in interstate 
commerce and the sale of electric energy at wholesale in interstate 
commerce by public utilities, pursuant to Parts II and III of the 
Federal Power Act (16 U.S.C. 824, et seq.). The statute does not 
differentiate between electric energy produced from one source as 
opposed to another.
III. MARAD
    By its authority delegated from the Secretary of Transportation, 
MARAD is the lead Federal agency for the licensing

[[Page 620]]

of deepwater ports. The Deepwater Port Act of 1974, as amended by the 
Maritime Security Act of 2002, 33 U.S.C. 1501, et seq. (DWPA), and 
related regulations at 33 CFR parts 148, 149, and 150, establish a 
licensing system for the ownership, construction, and operation of 
deepwater port structures located seaward of State territorial waters. 
Deepwater ports are fixed or floating manmade facilities which are used 
as ports or terminals to offload and transfer oil and natural gas from 
ships and may also include storage facilities for oil or natural gas, 
and vaporization facilities for LNG.
    MARAD is responsible for determining the financial responsibility 
of potential licensees, rendering citizenship determinations for 
ownership, and securing operational and decommissioning guarantees for 
deepwater port projects. Additionally, MARAD is responsible for issuing 
records of decision to grant or deny approval of project applications 
and issuing licenses to construct, operate, and decommission deepwater 
ports.
    The DWPA defines ``natural gas'' in section 3(13) as ``either 
natural gas unmixed, or any mixture of natural or artificial gas, 
including compressed or liquefied natural gas.'' Therefore, MARAD has 
no current jurisdiction over prospective hydrogen gas importation 
through deepwater ports. However, the operation of a hydrogen deepwater 
port would be similar to a natural gas deepwater port. Because 
liquefied hydrogen shares similar properties to LNG (i.e., it can be 
liquefied, transported, and re-vaporized), an amendment to the DWPA 
would allow for the importation of liquefied hydrogen via deepwater 
ports.
    MARAD also has loan guarantee authority to finance hydrogen-
carrying ships constructed in the United States. See the Merchant 
Marine Act of 1936, as amended, 46 App. U.S.C. 1271, et seq., and 
related regulations at 46 CFR part 298.
IV. CG
A. Deepwater Ports
    The CG's Deepwater Ports Standards Division, within the Office of 
Operating and Environmental Standards, is responsible for developing 
and maintaining regulations and standards for deepwater ports and for 
processing deepwater port license applications for oil and natural gas 
(not hydrogen). The CG's main functions as stated in delegated 
authority are:
     Develop and update the regulations for deepwater ports, 33 
Code of Federal Regulations Subchapter NN. These regulations contain 
general requirements, design, construction and equipment requirements, 
and operational requirements.
     Develop Interagency Memorandums of Understanding, 
Memorandums of Agreement, and Cooperating Agreements among Federal and 
State Agencies for licensing.
     Manage the development of Environmental Impact Statements 
for compliance with the National Environmental Policy Act of 1969 
(NEPA) for license approval.
     Coordinate interagency review of and public comment to 
license applications within the statutory timeframe of 330 days from 
the time a complete application is received.
     Develop guidance for oversight of post-licensing 
activities associated with the development of deepwater ports including 
the design, construction, and activation phases, environmental 
monitoring programs, operational procedures, risk assessments, security 
plans, safety and inspections.
B. Vessel Standards
    The Coast Guard regulates vessel construction and operating 
standards, including standards for vessels that could carry hydrogen. 
This authority derives from 46 U.S.C. 3703 and 33 U.S.C. 1903(b). The 
standards that would apply depend on the form in which the hydrogen is 
transported, and what kind of vessel is being employed.
a. Carriage as a Compressed or Liquefied Gas
    PHMSA lists compressed and liquefied hydrogen in the hazardous 
materials table at 49 CFR 172.101. This causes it to be subject to CG 
regulation under the Hazardous Materials Transportation Act, 49 U.S.C. 
5100, et seq., if carried in packaged or containerized form.
    The CG has made the determination that hydrogen is hazardous when 
transported in bulk by vessel, either in gaseous or liquid form. This 
determination was made in 46 CFR 153.40(f)(1), pursuant to delegated 
authority from the Secretary of Transportation. The Secretary's 
authority derives from 49 U.S.C. 5103 and was originally delegated in 
49 CFR 1.46(t). The CG function was preserved after the CG was 
transferred into the Department of Homeland Security, by operation of 
Sec. Sec.  888(b and c) and 1512(d) of the Homeland Security Act of 
2002, Public Law 107-296.
    If carried as a bulk liquid, hydrogen would be regulated under 46 
U.S.C. Chapter 37. Bulk gas tank vessel cargoes (such as hydrogen) are 
regulated under CG regulations at 46 CFR part 153, Ships Carrying Bulk 
Liquid, Liquefied Gas, or Compressed Gas Hazardous Materials. This Part 
consists mainly of design and operational standards including general 
vessel requirements, cargo containment systems, cargo tanks, piping 
systems and cargo handling equipment, cargo venting, pumprooms, 
gauging, temperature control systems, and certain special requirements. 
If hydrogen were transported as a liquefied gas, it would also be 
regulated under 46 CFR part 154, Safety Standards for Self-Propelled 
Vessels Carrying Bulk Liquefied Gases. This Part regulates design and 
construction of hull structure, cargo tank location and survival 
capability, ship arrangements, cargo containment systems, special 
requirements for different types of tanks, piping, hoses, materials, 
construction, pressure and temperature control, venting and 
ventilation, atmospheric control, electrical, instrumentation, 
firefighting equipment, and special operational requirements. If 
hydrogen were to be shipped in a tank barge, it would be regulated 
under 46 CFR parts 38, Liquefied Flammable Gases, and under part 151, 
Barges Carrying Bulk Liquid Hazardous Material Cargoes, which include 
compressed gases.
    Although all these regulations have some special provisions for 
transporting certain gases, there are no requirements specifically for 
hydrogen. Should the need for marine transportation of hydrogen 
materialize, these regulations would need to be modified to include 
special hydrogen requirements, due to hydrogen's metal embrittlement 
properties. Absent such modifications, 46 CFR 150.140 would prohibit 
the bulk transportation by vessel of hydrogen, without special 
permission from the CG Commandant.
b. Carriage as Metallic Hydride
    An unpublished USCG study concluded that hydrogen is most likely to 
be transported as a metallic hydride, adsorbed onto metal particles 
that could then be transported more safely. The hydrogen would be 
stripped off at the destination and the metal shipped back for reuse. 
The metal particles would then presumably be treated like any other 
hazardous bulk solid, which would be regulated under 46 CFR part 148, 
Carriage of Solid Hazardous Materials in Bulk. These regulations 
contain manifesting, reporting, loading, transporting, and stowage 
requirements. There is a list of certain hazardous bulk cargoes that 
can be transported pursuant to the regulations, including ferrous metal 
borings, shavings, turnings, and

[[Page 621]]

cuttings. The shipment of unlisted hazardous bulk solids (metallic 
hydride) would require express permission of the CG Commandant after 
filing a special petition for a special permit.
C. Additional Resources

               Hotlinks to Laws & Regulations Applicable to the Deepwater Ports Standards Division
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Maritime Transportation Security Act of 2002  National Environmental Policy Act of 1969.
Deepwater Port Act of 1974:
    Title 14 (US Code) Coast Guard..........  Code of Federal Regulations.
    Title 33 (US Code) Navigation and         CFR 33 Ch I (Parts 1-199).
     Navigable Waters.
    Title 46 (US Code) Shipping.............  CFR 46 Ch I (Parts 1-199).
    Title 49 (US Code) Transportation.......  CFR 49 Vol 1&2 (Parts 1-185); 190-195.
----------------------------------------------------------------------------------------------------------------

4.2 Hydrogen Vehicle Regulatory Framework

Federal Regulations Governing Introduction of Hydrogen Motor Vehicles 
Into Commerce
    Manufacturers of hydrogen fueled motor vehicles will have to meet 
certain federal requirements prior to introducing their vehicles into 
commerce in the United States. This statement identifies requirements 
applicable to manufacturers under the Clean Air Act, the National 
Traffic and Motor Vehicle Safety Act (Vehicle Safety Act), and Motor 
Vehicle Information and Cost Savings Act (Cost Savings Act), and the 
regulations promulgated pursuant to those statutes. This statement 
highlights the more major provisions for manufacturers, but 
manufacturers and others should consult the specific statutes, 
regulations and standards to determine the full and precise substantive 
and procedural requirements. Manufacturers of hydrogen fueled vehicles 
may also be subject to other federal, state or local regulations.
    Under the Clean Air Act, motor vehicles or engines must generally 
be certified by EPA as conforming to applicable regulations before the 
vehicle or engine can be sold or otherwise introduced into commerce in 
the United States. Under the Vehicle Safety Act, motor vehicles and 
motor vehicle equipment must be certified by the manufacturer as 
meeting all applicable Federal motor vehicle safety standards. Under 
the Cost Savings Act, manufacturers must meet specified corporate 
average fuel economy (CAFE) standards for passenger cars and light 
trucks, and bumper standards for passenger cars.
I. Requirements Under the Clean Air Act
    Section 203(a) of the Clean Air Act (42 U.S.C. 7522(a)) prohibits 
manufacturers from introducing into commerce (including sale, 
importation, etc.) any new motor vehicle or new motor vehicle engine 
subject to emissions standards under the Act unless that vehicle or 
engine is covered by a certificate of conformity issued by EPA. EPA has 
promulgated standards applicable to all motor vehicles and motor 
vehicle engines under section 202 of the Act (42 U.S.C. 7521), so this 
means that, unless a motor vehicle or engine is covered by an 
exemption, discussed below, a manufacturer may not introduce a motor 
vehicle into commerce in the United States without an EPA 
certificate.\2\
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    \2\ The Clean Air Act defines motor vehicles as ``any self-
propelled vehicle designed for transporting persons or property on a 
street or highway'' (42 U.S.C. 7550(2)). This definition is further 
clarified in 40 CFR 85.1703. Although motor vehicles generally do 
not include vehicles designed for use off roads, like tractors or 
construction equipment, such ``nonroad vehicles'' and ``nonroad 
engines'' powered by internal combustion engines would be covered by 
similar restrictions under the Act ((see 42 U.S.C. 7550(10) and (11) 
and 42 U.S.C. 7547). Standards and other requirements applicable to 
various types of nonroad engines (e.g., diesel nonroad engines, 
locomotives, marine engines), including requirements to certify 
nonroad engines and vehicles prior to introduction into commerce, 
can be found in 40 CFR Parts 89-92, 94, 1039, 1048 and 1051.
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    The regulatory provisions applicable to motor vehicles and engines 
are found in 40 CFR parts 85 and 86. These regulations detail the 
specific standards and other requirements that must be met and provide 
the mechanism that manufacturers must use to receive certifications of 
conformity for their vehicles and engines. In general, manufacturers 
must test vehicles or engines that represent the highest emitters (the 
``worst-case'' vehicle or engine) within a group of similar type 
vehicles or engines (called the ``test group'' or the ``engine 
family''). The manufacture must show that the vehicles or engines in 
the group or family meet all requirements. The manufacture must also 
provide information indicating that the vehicles or engines will meet 
such requirements for the full useful life of the vehicle or engine. 
The useful life is usually 8-10 years or a certain number of miles, 
depending on the type of vehicle. If EPA finds that the manufacturer 
has met the requirements of the regulations, EPA will grant a 
certificate of conformity for all vehicles in the test group or engines 
in the engine family. The manufacturer then must label the vehicles or 
engines to identify them as meeting EPA requirements for the model year 
of the vehicle or engine. The vehicle or engine can then be introduced 
into commerce. Manufacturers must receive separate certificates of 
conformity for all test groups and engine families and must receive new 
certificates every year. Manufacturers who introduce only small volumes 
of vehicles into commerce in the United States are often subject to 
special provisions that allow some flexibility in meeting the 
requirements in part 86. See, e.g., 40 CFR 86.1838-01 (Small Volume 
Manufacturer Certification Procedures).
    There are certain exemptions from the requirement to certify motor 
vehicles and engines. These exemptions are specified under 40 CFR part 
85, subpart R. Of particular importance for the purposes of hydrogen 
powered vehicles, there are exemptions for test programs, pre-
certification vehicles, and display vehicles.
    The standards applicable to motor vehicles are generally fuel 
neutral, but standards applicable to engines (in particular, engines 
used in heavy-duty vehicles like 18-wheelers) are often broken into 
provisions for diesel engines and spark-ignited engines. It is unclear 
how hydrogen-powered vehicles would be categorized. The provisions 
applicable to motor vehicles in general will likely be directly 
applicable to hydrogen-powered motor vehicles. The testing provisions 
are designed so that vehicles are tested, generally on vehicle 
dynamometers. The testing provisions simulate normal driving and 
pollutants are measured by unit of distance (e.g. grams per mile).
    One concern for hydrogen-powered vehicles is that for engine-
certified

[[Page 622]]

vehicles, the testing is done using engine dynamometers and pollutants 
are measured by unit of power consumption (e.g. grams per brake horse-
power hour). These tests have generally been designed for standard 
internal combustion engines, so engines powered by fuel cells or 
hybrid-fuel cells might need to use special testing provisions (see, 
e,g, 40 CFR 86.090-27), which may involve substantial complexity and 
questions regarding proper representation of actual driving conditions. 
In addition, even for vehicles certified on vehicle dynamometers, there 
are likely to be complexities concerning the testing of hybrid engines 
and fuel cells, and the use of a non-carbon-based fuel for measurement 
of fuel consumption.
    Therefore, especially as hydrogen-powered (particularly fuel-cell 
powered and hybrid) vehicles are first introduced into the market, and 
particularly for heavy-duty engines, it is recommended that 
manufacturers come to EPA well before the traditional period for 
certification to discuss any complications that might result from a 
manufacturer's intention to request certification of a hydrogen-powered 
motor vehicle or engine.
II. Requirements Under the Vehicle Safety Act (Codified at 49 U.S.C. 
Chapter 301)

Federal Motor Vehicle Safety Standards

    Title 49, United States Code (U.S.C.), section 30101, et seq. (the 
Act) authorizes NHTSA to issue safety standards for new motor vehicles 
and new items of motor vehicle equipment. All motor vehicles and items 
of motor vehicle equipment manufactured or imported for sale in the 
United States must comply with all applicable safety standards set 
forth in 49 CFR part 571. Manufacturers of motor vehicles must self-
certify compliance of their products in accordance with part 567, 
Certification.
    Persons altering a new vehicle prior to its first retail sale to a 
consumer are considered vehicle alterers under NHTSA's certification 
regulation. Part 567.7, Requirements For Persons Who Alter Certified 
Vehicles, requires alterers to certify that the vehicle, as altered, 
complies with all applicable safety standards.
    Manufacturers, distributors, dealers, or motor vehicle repair 
businesses modifying a new or used vehicle are prohibited by 49 U.S.C. 
30122 from knowingly making inoperative any device or element of design 
installed on or in a motor vehicle or item of motor vehicle equipment 
in compliance with an applicable Federal motor vehicle safety standard.
    The Act provides NHTSA limited grounds on which to grant a motor 
vehicle manufacturer a temporary exemption from one or more of the 
safety standards. The procedures for a temporary exemption are found at 
49 CFR part 555. The Act does not authorize the agency to grant 
temporary exemptions to manufacturers of motor vehicle equipment.
    Several of the existing Federal motor vehicle safety standards 
address fuel system integrity, electrical isolation, and flammability. 
A research plan for hydrogen, fuel cell and alternative fuel vehicle 
safety was published July 14, 2004 (69 FR 42126). The plan and comments 
are contained in docket 18039 and can be accessed through the 
Department of Transportation's Document Management System at http://dms.dot.gov/.

International Harmonization

    NHTSA, along with counterparts in Germany and Japan are currently 
leading an effort under the United Nations' World Forum for the 
Harmonization of Vehicle regulations to develop safety performance 
requirements under a comprehensive Global Technical Regulation (GTR) 
that would apply to hydrogen vehicles. To facilitate and guide the 
process of developing such a GTR, NHTSA is working with the co-
sponsors, Germany and Japan, to develop a work plan that can be 
accepted by all signatories to the 1998 Agreement for the Harmonization 
of Vehicle Regulations. NHTSA expects consideration and adoption of the 
work plan at the March 2007 session. Work on development of the GTR 
should commence shortly thereafter.

Safety-Related Defects and Noncompliances

    The Act prohibits the sale or lease of defective or noncompliant 
vehicles or equipment except under certain circumstances. It requires 
manufacturers to notify consumers that a motor vehicle or item of 
equipment they purchased contains a safety-related defect or failed to 
comply with the standards, and requires manufacturers to remedy such 
defects and noncompliances without charge. The following regulations 
relate to the defect and noncompliance notification and remedy 
campaigns and prohibitions: Part 556, Exemption for Inconsequential 
Defect or Noncompliance; Part 573, Defect and Noncompliance 
Responsibility and Reports; Part 577, Defect and Noncompliance 
Notification; and Part 576, Record Retention, sets forth requirements 
for manufacturers' retention of complaints, reports and other records 
concerning defects and malfunctions that may be related to motor 
vehicle safety. In addition, Part 579, Reporting of Information and 
Communications About Potential Defects, sets forth requirements for 
manufacturers' reporting certain information that may help identify 
defects and noncompliances, including reports of foreign recalls and 
safety campaigns, and early warning information.

Vehicle Identification Number

    49 CFR part 565 requires that each motor vehicle have a vehicle 
identification number (VIN), and specifies the content requirements for 
the VIN.

Manufacturer Identification

    Under 49 CFR Part 566, Manufacturer Identification, a manufacturer 
of motor vehicles or motor vehicle equipment to which a motor vehicle 
safety standard applies, must submit information identifying itself and 
its products to NHTSA not later than 30 days after it begins 
manufacture.

Designation of Agent for Foreign Manufacturers

    Under 49 CFR part 551, Procedural Rules, all manufacturers 
headquartered outside of the United States must designate a permanent 
resident of the United States as the manufacturer's agent for service 
of all process, notices, orders and decisions.
III. Requirements Under the Cost Savings Act

Fuel Economy

    49 U.S.C. Chapter 329 requires each motor vehicle manufacturer to 
achieve at least a minimum Corporate Average Fuel Economy (CAFE). NHTSA 
has established standards for passenger cars (49 CFR part 531, 
Passenger Automobile Average Fuel Economy Standard), and light trucks 
(part 533, Light Truck Fuel Economy Standards). Manufacturers are 
required to file CAFE reports under part 537, Automotive Fuel Economy 
Reports.
    Manufacturers of hydrogen-powered vehicles should be familiar with 
Part 538, Manufacturing Incentives for Alternative Fuel Vehicles. In 
1996, NHTSA issued a final rule entitled ``Manufacturing Incentives for 
Alternative Fuel Vehicles,'' which established gasoline gallon 
equivalent (GGE) factors for gaseous fuels in CAFE calculations, 
including hydrogen and Hythane[supreg], when used in internal 
combustion engine (ICE) vehicles. The GGE factors are set forth in 
section

[[Page 623]]

538.8. For hydrogen, the GGE factor is 0.259, meaning that 100 standard 
cubic feet of hydrogen at a standard pressure of 14.6 psi and at 60 
degrees Fahrenheit is equivalent on an energy content basis to 0.259 
gallons of unleaded gasoline. A GGE for hydrogen fuel cells remains to 
be established.
    Several regulations provide procedures under which manufacturers 
may apply for exemptions from or for flexibility in achieving 
compliance with the CAFE standards. See Part 525, Exemptions from 
Average Fuel Economy Standards (for low-volume manufacturers); Part 
526, Petitions and Plans for Relief under the Automotive Fuel 
Efficiency Act of 1980; and Part 535, Three-year Carryforward and 
Carryback of Credits for Light Trucks. Credits may also be available 
for a manufacturer of passenger cars under 49 U.S.C. 32903. 
Manufacturers should also be aware of Part 529, Manufacturers of 
Multistage Automobiles.

Bumpers

    49 U.S.C. Chapter 325 directs NHTSA to issue and enforce bumper 
standards for passenger cars to reduce the economic loss resulting from 
damage to cars involved in motor vehicle accidents. Part 581, Bumper 
Standard, sets forth the requirements for the impact resistance of 
passenger cars in low speed front and rear collisions.

4.3 Hydrogen Stationary Fuel Cells Regulatory Framework

I. Occupational Safety and Health Administration
    Disclaimer: This guidance is limited to OSHA standards which may be 
applicable to, or might be considered useful sources for information 
pertaining to, occupational hazards related to workplace stationary 
fuel cells. The omission of any OSHA standards from this notice in no 
way limits their applicability to any other workplace hazards. In 
addition, any potential application of the standards referenced below 
may be dependent on specific factual situations at individual 
worksites.

Background

    Stationary fuel cells can be used for backup power, power for 
remote locations, stand-alone power plants for towns and cities, 
distributed generation for buildings, and co-generation (in which 
excess thermal energy from electricity generation is used for heat). 
When these fuel cells are used at a workplace, then employers are 
required to comply with OSHA requirements.

Potentially Applicable Standards

    The two primary potential hazards associated with stationary fuel 
cells are: (1) electrical hazards; and (2) fire and explosion hazards 
from flammable gases (such as hydrogen, liquefied petroleum gases 
(LPG), etc.) associated with the operation of stationary fuel cells.
A. OSHA Standards That May Apply to Electrical Hazards Associated With 
Stationary Fuel Cells
    Because stationary fuel cells generate electric power, OSHA's 
electrical standards contained in 29 CFR part 1910 for general 
industry; part 1926 for construction industry; and parts 1915, 1917, 
and 1918 for Maritime Industry may be applicable. Typically, electric 
power generators (such as Stationary Fuel Cells) are covered by OSHA 
Subpart S standards in part 1910, if they are not connected to 
distribution systems (i.e., a system that is supplying power to two or 
more buildings) or if they are only emergency or standby in nature. If 
a Stationary Fuel Cell supplies power to a distribution system, then 
the provisions contained in 29 CFR 1910.269, Electric Power Generation, 
Transmission, and Distribution, may apply.
B. OSHA Standards That May Apply to Fire and Explosion Hazards 
Associated With Fuel Sources to Stationary Fuel Cells
    In addition to the potential electrical hazards, the materials used 
to fuel the reactions within stationary fuel cells may present 
explosion hazards due to their composition and amounts present in the 
workplace. Several OSHA standards may have some application to these 
hazards. For example, if hydrogen is fed directly into the stationary 
fuel cell, OSHA's hydrogen standard at 29 CFR 1910.103 may apply to 
stationary fuel cells, depending upon their location and use. Likewise, 
if a liquefied petroleum gas is used as a fuel source, then OSHA's 
liquefied petroleum gas standard at 29 CFR 1910.110 may apply. In 
addition, if 10,000 pounds or more of a flammable liquid or gas such as 
hydrogen is present at the worksite and is involved in a process, then 
OSHA's Process Safety Management Standard may apply. Additionally, 
other OSHA standards, such as, 1910.38, 1910.101, 1910.120, and 
1910.156 may apply.
    Electric equipment in the vicinity of hydrogen sources may need to 
meet 29 CFR 1910.307 requirements depending on such factors as the 
quantity of flammable material that might escape in case of accident, 
the adequacy of ventilating equipment, and the total area involved.
C. The Applicability of Section 5(a)(1) of the Occupational Safety and 
Health Act of 1970.
    In the absence of specific OSHA standards, employers are obligated 
under Section 5(a)(1)--``the General Duty Clause'' of the OSH Act to 
protect employees from serious recognized hazards. OSHA would consider 
several sources to determine whether a hazard is recognized by an 
employer.
II. Pipeline and Hazardous Materials Safety Administration, USDOT
    The Pipeline and Hazardous Materials Safety Administration (PHMSA) 
has existing regulations governing the safe transportation of hydrogen 
gas by pipeline and prescribing packaging standards (among other 
requirements) for the movement in commerce of hydrogen gas or cryogenic 
liquid by other transportation modes. PHMSA regulations also would 
apply to transportation in commerce of fuel cells or fuel cell 
components, to the extent that they contain other hazardous materials.
A. Transportation of Hydrogen to Site of Stationary Fuel Cell
    PHMSA issues and enforces the Pipeline Safety Regulations (PSR), 49 
CFR parts 190-199, implementing the Federal Pipeline Safety Law, 49 
U.S.C. 60101 et seq. to promote the safety of interstate and intrastate 
pipelines transporting hazardous liquids, natural gas, and other 
flammable, corrosive and toxic gases. Part 192 of the PSR regulates the 
transportation of natural and other gases in pipelines, including 
hydrogen, which is transported as a compressed flammable gas. PHMSA 
would regulate the transportation of hydrogen gas by pipeline to the 
site of the stationary fuel cell. (States may enforce safety standards 
on intrastate pipelines if the State has been certified by PHMSA under 
49 U.S.C. 60105.)
    PHMSA issues the Hazardous Materials Regulations (HMR), 49 CFR 
parts 171-180, implementing the Federal Hazardous Materials 
Transportation Law, 49 U.S.C. 5101 et seq., to promote the safe 
transportation of hazardous materials in commerce. Hydrogen, a 
hazardous material, is classified as a flammable gas in the Hazardous 
Materials Table (49 CFR 172.101). Therefore, the transportation in 
commerce of hydrogen as a gas or refrigerated liquid in cylinders, 
portable tanks, or cargo tank vehicles to the site of a stationary fuel 
cell would be regulated by PHMSA, subject to all

[[Page 624]]

applicable requirements in the HMR including packaging and hazard 
communication requirements.
B. Transportation of Fuel Cell or Fuel Cell Components Containing 
Hazardous Materials
    A variety of types of stationary fuel cells appear to be under 
development containing different electrolytes. Depending on the type of 
fuel cell, PHMSA may regulate it under the Federal Hazardous Materials 
Transportation Law, 49 U.S.C. 5101 et seq. and HMR, 49 CFR parts 171-
180, when the fuel cell or fuel cell component is in transportation in 
commerce to the site. PHMSA would only regulate a fuel cell or fuel 
cell component in transportation if it contains a material identified 
in the Hazardous Materials Table (49 CFR 172.101) or meeting the 
definition of a hazardous material in 49 CFR part 173. Electrolytes 
used to carry electrically charged particles from one electrode to 
another within a fuel cell include materials such as potassium 
hydroxide, sodium carbonate, magnesium carbonate, phosphoric acid, 
calcium oxide, and zirconium oxide. Several of these--potassium 
hydroxide, phosphoric acid, and calcium oxide--are listed as hazardous 
materials in the Hazardous Materials Table and would be subject to the 
applicable requirements of the HMR, including packaging requirements. 
The HMR provide exceptions from packaging and labeling requirements for 
limited quantities of certain hazardous materials meeting specified 
criteria. For units or components too large to be packaged in 
accordance with the HMR, or for which there is an alternative method of 
packaging not provided for in the HMR, the offer may apply to PHMSA for 
a special permit. (49 CFR 107.105)
III. Federal Energy Regulatory Commission
    The Federal Energy Regulatory Commission's (FERC) regulatory 
authority with respect to stationary fuel cells depends on whether the 
owner or operator of stationary fuel cells is a public utility, i.e., a 
person that sells electric energy at wholesale in interstate commerce 
(a person that sells electric energy for resale). If the owner or 
operator is a public utility, the rates, terms and conditions of such 
sale are subject to the authority of the FERC pursuant to Parts II and 
III of the Federal Power Act, 16 U.S.C. 824, et seq.
IV. Environmental Protection Agency
    The extent to which particular stationary fuel cells are regulated 
directly by EPA under the Clean Air Act can usually be determined by 
whether they are part of a source category (like boilers or process 
heaters) that is covered by a New Source Performance Standard (40 CFR 
part 60), National Emission Standard for Hazardous Air Pollutants (40 
CFR part 63) or a New Source Review Regulation (40 CFR parts 51 and 
52). Smaller stationary fuel cells may also be regulated as consumer or 
commercial products under Clean Air Act section 183(e), 42 U.S.C. 
7511b(e).

5.0 General Comments on State and Local Jurisdiction

    The regulatory role in a hydrogen economy for state and local 
jurisdictions includes, but is not limited to, health and safety 
regulations of local building codes and safety codes applicable to the 
use and generation of hydrogen, many aspects of hydrogen fueling 
stations including tank and infrastructure installation and maintenance 
for hydrogen fueling operations, the design and structure of parking 
garages and any other infrastructure regulated by local governments and 
state governments.

    Issued in Washington, DC, on December 22, 2006.
Victoria Sutton,
Chief Counsel, Research and Innovative Technology Administration.
[FR Doc. E6-22554 Filed 1-4-07; 8:45 am]
BILLING CODE 4910-HY-P