[Federal Register Volume 87, Number 236 (Friday, December 9, 2022)]
[Notices]
[Pages 75694-75696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26808]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2021-0109; Notice No. 2022-13]


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

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
Department of Transportation (DOT).

ACTION: Notice; response to comments and publication of finalized FAQ.

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SUMMARY: On March 22, 2022, PHMSA announced an initiative to convert 
historical letters of interpretation (LOI) applicable to the Hazardous 
Materials Regulations that have been issued to specific stakeholders 
into broadly applicable frequently asked questions (FAQ). As such, 
PHMSA requested comment on the initiative and for input on the 
prioritization of future sets of FAQ. During the initial comment 
period, several commenters requested that PHMSA further clarify the 
future disposition of the LOI process and address commenters' initial 
concerns. In response to this feedback, PHMSA published a second notice 
on June 13, 2022, extending the comment period to July 22, 2022, and 
announcing that a webinar would be held on June 27, 2022. In this final 
notice, PHMSA is responding to comments received from stakeholders, 
summarizing the webinar event, finalizing the first set of FAQ, and 
announcing the topic for future FAQ.

FOR FURTHER INFORMATION CONTACT: Arthur Pollack, Standards and 
Rulemaking Division, (202) 366-8553, Pipeline and Hazardous Materials 
Safety Administration, U.S. Department of Transportation, 1200 New 
Jersey Avenue SE, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    The March 22, 2022,\1\ notice announced an initiative to convert 
historical LOI applicable to the Hazardous Materials Regulations (HMR) 
\2\ that have been issued to specific stakeholders into broadly 
applicable FAQ to facilitate better public understanding and awareness 
of the HMR. PHMSA also requested comment on the initiative and 
solicited input on the prioritization of future sets of FAQ. FAQ are 
not substantive rules, themselves, and do not create legally 
enforceable rights, assign duties, or impose new obligations not 
otherwise contained in the existing regulations and standards. Instead, 
the FAQ are intended as an aid to demonstrate compliance with the 
relevant regulations.
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    \1\ Hazardous Materials: Frequently Asked Questions--
Applicability of the Hazardous Material Regulations, 87 FR 16308 
(March 22, 2022), available at, https://www.federalregister.gov/documents/2022/03/22/2022-05958/hazardous-materials-frequently-asked-questions-applicability-of-the-hazardous-material-regulations; 
PHMSA-2021-0109-0001.
    \2\ 49 CFR parts 171-180.
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    The comment period for the March 22, 2022, notice closed on May 23, 
2022; however, on June 13, 2022, PHMSA published a second notice 
extending the comment period until July 22, 2022, and announcing a 
public webinar to clarify the FAQ initiative and address concerns 
expressed by commenters that PHMSA may eliminate the LOI process.

II. Purpose of the FAQ Initiative

    This initiative will provide additional value to PHMSA's Online 
Code of Federal Regulations (oCFR) tool.\3\ The oCFR tool is an 
interactive web-based application that allows users to navigate with a 
single click between all content, including LOI, connected to an HMR 
citation. The oCFR tool includes the ability to sort, filter, and 
export search results. Upon completion of this initiative, PHMSA's 
Office of Hazardous Materials Safety (OHMS) will be able to achieve 
efficiencies for other more complex or novel requests for LOI and 
devote resources to other hazardous materials transportation safety 
projects.

[[Page 75695]]

This initiative will allow resources to be made available for other 
improvement-related operations such as petitions for rulemakings, 
public outreach and engagement, and economically beneficial regulatory 
and policy improvements. In the section of this notice titled ``V. 
Frequently Asked Questions: Applicability of Hazardous Materials 
Regulations to Persons and Functions,'' PHMSA is finalizing the first 
set of FAQ developed under this initiative.
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    \3\ The oCFR tool is available at. https://www.phmsa.dot.gov/standards-rulemaking/hazmat/phmsas-online-cfr-ocfr.
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III. Response to Notice Comments

    PHMSA received 10 sets of comments to the aforementioned FAQ 
notices from the following individuals and organizations:

                     Table 1--Commenter Docket Table
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             Commenter                             ID No.
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International Longshoremen's        PHMSA-2021-0109-0002
 Association ~ United States
 Maritime Alliance Coastwide Joint
 Safety Committee.
Anonymous.........................  PHMSA-2021-0109-0003
L'Gena Shaffer, Director,           PHMSA-2021-0109-0004
 Regulatory Compliance,
 International Vessel Operators
 Dangerous Goods Association
 (IVODGA).
L'Gena Shaffer, Director,           PHMSA-2021-0109-0005
 Regulatory Compliance, Council on
 Safe Transportation of Hazardous
 Articles (COSTHA).
Bruce Grimm.......................  PHMSA-2021-0109-0006
Patty Long, President, Railway      PHMSA-2021-0109-0007
 Supply Institute.
Paul Rankin, Chair, Interested      PHMSA-2021-0109-0008
 Parties for Hazardous Materials
 Transportation.
Kathy Hahn........................  PHMSA-2021-0109-0010
Delmer F. Billings, Technical       PHMSA-2021-0109-0011
 Director, Dangerous Goods
 Advisory Council (DGAC).
Jennifer Fletcher, Senior Manager,  PHMSA-2021-0109-0012
 Transportation Compliance, Veolia
 North America.
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    The comments received express general support for the FAQ 
initiative and several commenters included suggestions for future topic 
areas. Commenters also suggest strategies for selecting topics and 
specific FAQ. In addition, many of the commenters express a concern 
that PHMSA may eliminate the LOI process and rescind the existing LOI. 
As a result, PHMSA held a public webinar on June 27, 2022, to clarify 
the initiative's intent and address commenters' questions and concerns.
    In its comment, the International Longshoremen's Association 
expressed concern that ``PHMSA should not be overly selective in its 
choices of which particular [LOI] rise to the level of interest'' for 
FAQ development. Although the process of FAQ development is subjective, 
PHMSA acknowledges the request for detailed and specific FAQ and 
intends to continue the process with an inclusive approach.
    Two groups of commenters, IVODGA and COSTHA, submitted potential 
revisions to Questions 3, 4, and 8 of the initial set of FAQ. 
Specifically, IVODGA and COSTHA both suggest that Question 3 and 
Question 4 either be combined or reference each other, as both 
questions are related to private roads and may be less clear to a 
reader if the questions are not read together. Additionally, IVODGA and 
COSTHA both suggest an editorial revision to clarify Question 8's 
answer pertaining to hazardous materials being transported for 
``personal use.'' PHMSA agrees with both suggestions and is revising 
the FAQ in this notice to reflect these minor editorial changes to 
Questions 3, 4, and 8. Commenters also provide several suggestions for 
future topics including combustible liquids, lithium batteries, 
materials of trade, miscellaneous hazardous materials (i.e., Class 9) 
and placarding. PHMSA appreciates the suggestions and will consider 
them as it prioritizes its next set of FAQ.

IV. Webinar Summary

    During the comment period, DGAC requested--on behalf of its 
members--that PHMSA host a webinar to present the objectives of the FAQ 
initiative and answer questions from concerned parties. The overarching 
concern expressed in comments to the March 22, 2022, notice and during 
the June 27, 2022, webinar was that PHMSA may eliminate the LOI process 
and rescind its existing LOI. During the public webinar, PHMSA 
clarified that the FAQ initiative compliments the LOI process and that 
PHMSA has no intention of discontinuing the process to request LOI, 
rescinding the nearly 7,000 LOI in its database, or limiting the scope 
of questions PHMSA will answer in the future. The recording of the June 
27, 2022, webinar can be found at https://www.youtube.com/watch?v=R1fCnNRK2d0.
    Based on comments and input PHMSA received, PHMSA is publishing the 
following series of FAQ in the Federal Register and on its website to 
facilitate better understanding of the HMR applicability requirements 
and avoid the need for responding to frequent and recurring questions 
already addressed in accordance with 49 CFR 105.20 (Guidance and 
Interpretations).

V. Frequently Asked Questions: Applicability of Hazardous Materials 
Regulations to Persons and Functions

    Section 171.1 addresses the applicability of the HMR for the safe 
and secure transportation of hazardous materials in commerce.
    (1) Question: Is a federal, state, or local government agency 
subject to the HMR?
    Answer: Pursuant to Sec.  171.1(d)(5), a federal, state, or local 
government that transports hazardous materials for non-commercial 
governmental purposes using its own personnel is not engaged in 
transportation in commerce and, therefore, is not subject to the HMR. 
As specified in Sec.  171.1, the HMR governs the safe transportation of 
hazardous materials in intrastate, interstate, and foreign commerce. 
The term ``in commerce'' does not include a federal, state, or local 
government that transports hazardous materials for its own use, using 
its own personnel, and motor vehicles, aircraft, or vessel under its 
control.
    (2) Question: Are state universities subject to the HMR when 
transporting hazardous materials?
    Answer: A state agency--such as a state university--that transports 
hazardous materials for its own non-commercial use, using its own 
personnel and vehicles, is not engaged in transportation in commerce 
and, therefore, is not subject to the HMR.
    (3) Question: Is a hazardous material transported on private roads 
subject to the HMR?
    Answer: Section 171.1(d)(4) states that the transportation of 
hazardous materials entirely on private roads with restricted public 
access is not subject to the HMR. Please see Q4.

[[Page 75696]]

    (4) Question: Is a hazardous material subject to the HMR that only 
crosses a road with public access?
    Answer: The transportation of hazardous materials that takes place 
by motor vehicle and within a contiguous plant boundary is not subject 
to the HMR. However, intra-plant transport that utilizes or crosses a 
public road is subject to the HMR during that portion of the 
transportation unless access to the public road is restricted by gates, 
traffic signals, guard stations, or similar controls, in accordance 
with Sec.  171.1(d)(4). Please see Q3.
    (5) Question: Are hazardous materials installed or used in or on a 
motor vehicle (e.g., gasoline in the motor vehicle's fuel tank) subject 
to the HMR?
    Answer: Hazardous materials that are installed or used in or on a 
motor vehicle such as the motor vehicle's fuel, suspension, or safety 
systems are not subject to the HMR. Fuel systems and safety equipment 
may be subject to the Federal Motor Carrier Safety Regulations (FMCSR) 
and National Highway Traffic Safety Administration (NHTSA) 
requirements.
    (6) Question: Is the filling of a package with a hazardous material 
subject to the HMR if it is not being offered for transportation in 
commerce?
    Answer: The answer is no. However, if there is a chance of future 
transportation in commerce, the stakeholder should consider placing 
that hazardous material in packagings suitable for transportation of 
that material in commerce to minimize safety risks associated with its 
re-packaging.
    (7) Question: Are stationary (storage) tanks containing a hazardous 
material such as propane subject to the HMR?
    Answer: The answer is no, unless the tank is transported in 
commerce containing a hazardous material or its residue or if it is 
represented and maintained as a DOT packaging usable for hazmat 
transportation.
    (8) Question: Are hazardous materials being transported for 
personal use subject to the HMR? For example, are pesticides that are 
transported from a store by individuals to treat their garden subject 
to the HMR?
    Answer: The answer is no. Under part 171, the phrase ``in 
commerce'' means in furtherance of a commercial enterprise. 
Transportation in a private motor vehicle for personal use is not 
considered in furtherance of a commercial enterprise even when 
transported in a leased or rented vehicle.
    (9) Question: Are privately-owned Department of Transportation 
(DOT) cylinders used for SCUBA diving subject to the HMR even when not 
transported in commerce?
    Answer: A SCUBA tank that is represented as conforming to HMR 
requirements-- i.e., marked with a DOT specification marking--must be 
maintained by the owner of said SCUBA tank in accordance with the 
applicable specification requirements whether or not it is in 
transportation in commerce.
    (10) Question: Are government-owned hazardous materials transported 
for government purposes by contractor personnel subject to the HMR?
    Answer: The answer is yes. As provided in Sec.  171.1(d)(5), the 
HMR do not apply to transportation of a hazardous material in a motor 
vehicle, aircraft, or vessel operated by a federal, state, or local 
government employee solely for noncommercial federal, state, or local 
government purposes. However, contractor personnel are not considered 
government employees and the provisions of the HMR apply.
    (11) Question: Are gasoline cans transported by a landscaping 
company by motor vehicle subject to the HMR?
    Answer: Commercial businesses--such as landscaping, swimming pool 
services, or construction companies--transporting hazardous materials 
are considered ``in commerce'' and subject to the HMR. However, when 
used in support of a business, the HMR provides an exception in Sec.  
173.6 for the transport of ``materials of trade.''
    (12) Question: Are household hazardous wastes transported by a 
private person to a county drop-off facility subject to the HMR?
    Answer: The answer is no, provided the household hazardous wastes 
are the individual's personal property and he or she is not engaged in 
a commercial activity, such as a landscaping company or carpentry 
service.

VI. Future FAQ Topics

    With the completion of the first set of FAQ specific to HMR 
Applicability, PHMSA has begun compiling its next set of FAQ. As such, 
the next set of FAQ will pertain to LOIs addressing questions regarding 
the incident reporting requirements specified in Sec. Sec.  171.15 and 
171.16. In addition, PHMSA will continue concurrent work on future FAQ 
notices and, in response to the comments received, subsequent topics 
may include FAQ pertaining to batteries, classification, hazard 
communication, hazardous substances, hazardous wastes, modal-specific 
requirements, or packaging.

    Signed in Washington, DC on December 6, 2022, under authority 
delegated in 49 CFR 1.97.
William A. Quade,
Deputy Associate Administrator of Hazardous Materials Safety, Pipeline 
and Hazardous Materials Safety Administration.
[FR Doc. 2022-26808 Filed 12-8-22; 8:45 am]
BILLING CODE 4910-60-P