[Federal Register Volume 88, Number 127 (Wednesday, July 5, 2023)]
[Proposed Rules]
[Pages 43016-43047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13903]



[[Page 43015]]

Vol. 88

Wednesday,

No. 127

July 5, 2023

Part II





Department of Transportation





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 Pipeline and Hazardous Materials Safety Administration





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49 CFR Parts 171, 172, 173, et al.





Hazardous Materials: Modernizing Regulations To Improve Safety and 
Efficiency; Proposed Rule

  Federal Register / Vol. 88 , No. 127 / Wednesday, July 5, 2023 / 
Proposed Rules  

[[Page 43016]]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, 173, 174, 175, 176, 177, 178, 179, and 180

[Docket No. PHMSA-2019-0031 (HM-265A)]
RIN 2137-AF47


Hazardous Materials: Modernizing Regulations To Improve Safety 
and Efficiency

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

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: PHMSA is publishing this ANPRM to solicit stakeholder feedback 
on initiatives PHMSA is considering that may modernize the Hazardous 
Materials Regulations and improve efficiencies while maintaining or 
improving a current high level of safety. To fully engage with 
stakeholders, this ANPRM solicits comments and input on questions 
related to 46 distinct topics under consideration. Any comments, data, 
and information received will be used to evaluate and potentially draft 
proposed amendments.

DATES: Comments must be received by October 3, 2023. However, PHMSA 
will consider late-filed comments to the extent possible.

ADDRESSES: You may submit comments identified by the docket number 
PHMSA-2019-0031 (HM-265A) by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management System, U.S. Department of 
Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, M-30, Ground Floor, Room W12-140 in the West Building, 1200 
New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except federal holidays.
    Instructions: All submissions must include the agency name and 
docket number (PHMSA-2019-0031) or RIN 2137-AF47 for this ANPRM at the 
beginning of the comment. Note that all comments received will be 
posted without change to https://www.regulations.gov including any 
personal information provided. If sent by mail, comments must be 
submitted in duplicate. Persons wishing to receive confirmation of 
receipt of their comments must include a self-addressed stamped 
postcard.
    Docket: For access to the dockets to read background documents or 
comments received, go to https://www.regulations.gov or DOT's Docket 
Operations Office; see ADDRESSES.
    Confidential Business Information: Confidential Business 
Information (CBI) is commercial or financial information that is both 
customarily and actually treated as private by its owner. Under the 
Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from 
public disclosure. If your comments responsive to this ANPRM contain 
commercial or financial information that is customarily treated as 
private, that you actually treat as private, and that is relevant or 
responsive to this ANPRM, it is important that you clearly designate 
the submitted comments as CBI. Please mark each page of your submission 
containing CBI as ``PROPRIETARY.'' Submissions containing CBI should be 
sent to Eamonn Patrick, Standards and Rulemaking Division, Office of 
Hazardous Materials Safety, Pipeline and Hazardous Materials Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey Ave. 
SE, Washington, DC 20590-0001. Any commentary that PHMSA receives that 
is not specifically designated as CBI will be placed in the public 
docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Eamonn Patrick, Standards and 
Rulemaking Division, Office of Hazardous Materials Safety, Pipeline and 
Hazardous Materials Safety Administration, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, at 
202-366-8553.

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms

A4A Airlines for America
AAR Association of American Railroads
ACA American Coating Association
ACC American Chemistry Council
AEI Automatic Equipment Identification
AFFTAC Analysis of Fire Effects on Tank Cars
AFPM American Fuel and Petrochemical Manufacturers
AHS Association of Hazmat Shippers
ANPRM Advanced Notice of Proposed Rulemaking
ANSI American National Standards Institute
APA American Pyrotechnic Association
API American Petroleum Institute
ASTM American Society for Testing and Materials
ATA Air Transport Association
CA Competent Authority
CSC Convention for Safe Containers
COSTHA Council on the Safe Transportation of Hazardous Articles
CT-number Cargo tank registration number
DCE Design Certifying Engineer
DDR Damaged, Defective or Recalled
DGL Dangerous Goods List
DGTA Dangerous Goods Trainers Association
DOT Department of Transportation
EDI Electronic Data Interchange
E.O. Executive Order
EPA Environmental Protection Agency
ERG Emergency Response Guidebook
ERI Emergency Response Information
EX number Explosives approval number
FC number Consumer fireworks approval number
FMCSA Federal Motor Carrier Safety Administration
FMVSS Federal Motor Vehicle Safety Standards
FRA Federal Railroad Administration
HHFT High Hazard Flammable Train
HMR Hazardous Materials Regulations
HMT Hazardous Materials Table
IBC Intermediate Bulk Container
IBR Incorporation by Reference
ICAO TI International Civil Aviation Organization Technical 
Instructions for the Safe Transport of Dangerous Goods by Air
IMDG Code International Maritime Dangerous Goods Code
IMO International Maritime Organization
IPANA Industrial Packaging Alliance of North America
ISO International Standards Organization
IT Information Technology
LTD QTY Limited Quantity
IVODGA International Vessel Operators Dangerous Goods Association
MAWP Maximum Authorized Working Pressure
NAAHAC North American Automotive Hazmat Action Committee
NBIC National Board Inspection Code
NEW Net Explosive Weight
NOPIC Notification of Pilot in Command
NOTOC Notification of the Captain
NTSB National Transportation Safety Board
NTTC National Tank Truck Carriers
OMB Office of Management and Budget
ORM-D Other Regulated Material-D
PG Packing Group
PHMSA Pipeline and Hazardous Material Safety Administration
PIH Poisonous by Inhalation
POP Performance Oriented Packagings
PRBA Rechargeable Battery Association
PRD Pressure Relief Device
RCRA Resource Conservation and Recovery Act
RVP Reid Vapor Pressure
RI Registered Inspector
RIPA Reusable Industrial Packaging Association
RP Recommended Practice
RRTF Regulatory Reform Task Force
RSPA Research and Special Programs Administration
SAAMI Sporting Arms and Ammunition Manufacturers Institute

[[Page 43017]]

TC TDG Transport Canada Transportation of Dangerous Goods 
regulations
UN United Nations
USCG United States Coast Guard
USWAG Utilities Solid Waste Activities Group

Table of Contents

I. Executive Summary
II. Objective
III. Topics Under Consideration
    A. Evaluation of Carrier Maintenance of Emergency Response 
Information
    B. Non-Bulk Packaging, Intermediate Bulk Container, and Large 
Packaging Periodic Retest Extension
    C. Use of Non-Bulk Package Test Samples for Multiple Tests
    D. Aerosol Classification Alignment
    E. Residue IBC Exceptions
    F. Requirements for Damaged, Defective, or Recalled Lithium 
Cells and Batteries
    G. Sampling and Testing Program for Unrefined Petroleum-Based 
Products
    H. Basic Oil Spill Response Plan Applicability
    I. Standards Incorporated by Reference Update
    J. EX-Number Display Requirements
    K. Section 173.150 Ethyl Alcohol Exception
    L. Limited Quantity Training Exception
    M. Exceptions for Small Quantities of Division 4.3, PG I 
Material
    N. Recycling Safety Devices
    O. Creation of Basic Description and Shipping Description 
Definitions
    P. Removal of the 60-Day Renewal Requirement for Approvals and 
Special Permits
    Q. Design Certifying Engineer Experience
    R. Oxidizing Gases by Air
    S. Part 176 Vessel Requirements Update
    T. LTD QTY Shipping Paper Exception by Vessel
    U. Convention for Safe Containers Data Plate and Inspection 
Requirements
    V. Identification of Freight Containers in Rail Transportation
    W. Exceptions for Rail Transport of Lithium Batteries for 
Purposes of Recycling and Disposal
    X. Tank Car Manway Inspections
    Y. Acid Resistant Manways for DOT 111A100W5 Tank Cars
    Z. Tank Car Thermal Protection Standard
    AA. Unoccupied Locomotive Train Placement
    BB. Offering a Tank Car After Qualification Expiration
    CC. Non-Destructive Examination
    DD. Updating Requirements for Transporting Hazardous Materials 
on Passenger Carrying Motor Vehicles
    EE. EPA 27 Test Method for Cargo Tanks
    FF. Mounting Pads for Cargo Tank Damage Protection Devices
    GG. Cargo Tank Hydrostatic Test Medium
    HH. Cargo Tank Thickness and Corrosion Inspection Requirements
    II. Remove Exceptions for Cargo Tank Inspections
    JJ. Segregation of Detonating Explosives for Highway 
Transportation
    KK. Cargo Tank Reflectivity
    LL. Cargo Tank Registered Inspector Training and Qualification
    MM. Cargo Tank Design Certifying Engineer Training and 
Qualification
    NN. Cargo Tank Registered Inspector Verification and 
Documentation
    OO. Cargo Tank Design Certifying Engineer Verification and 
Documentation
    PP. Cargo Tank Registered Inspector Revised Definition
    QQ. Cargo Tank Design Certifying Engineer Revised Definition
    RR. NTSB Safety Recommendations R-20-1 to R-20-4
    SS. Placard Display on Intermediate Bulk Containers
    TT. Emerging Technologies

I. Executive Summary

    PHMSA, in consultation with its modal partners, is publishing this 
ANPRM to solicit stakeholder input on initiatives PHMSA is considering 
that may modernize its Hazardous Materials Regulations (HMR; 49 CFR 
parts 171-180) in order to improve hazardous material transportation 
efficiency, improve transparency and stakeholder engagement, and better 
accommodate technological innovations--all while maintaining or 
improving public safety and environmental impacts.
    PHMSA regularly reviews HMR requirements to ensure that the 
regulations continue to serve a useful safety purpose. In accordance 
with executive order (E.O.) 12866,\1\ PHMSA periodically reviews the 
HMR, and constantly seeks input from the public in the form of 
regulatory petitions, to ensure that the regulations improve the 
health, safety, and well-being of the American public without 
unreasonable costs on society.
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    \1\ 58 FR 51735.
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    On October 2, 2017, the Office of the Secretary of Transportation, 
consistent with E.O.s 12866, 13771, 13777, and 13783,\2\ published a 
notice in the Federal Register \3\ titled ``Notice of Regulatory 
Review'' inviting the public to provide input on existing rules and 
other agency actions that are good candidates for repeal, replacement, 
suspension, or modification. Many of the regulatory reform topics 
discussed in this ANPRM were originally received as comments to the 
October 2017 notice (hereinafter referred to as the ``2017 Regulatory 
Reform Notice'').
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    \2\ Please note that E.O.s 13771 (82 FR 9339), 13777 (82 FR 
12285), and 13783 (82 FR 16093) were revoked by E.O. 13990 (86 FR 
7037) on January 21, 2021.
    \3\ 82 FR 45750, https://www.regulations.gov/docket?D=DOT-OST-2017-0069.
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    PHMSA periodically revises the HMR based on changing economic, 
technological, and safety conditions. Moreover, PHMSA addresses 
requests to add, amend, or delete a regulation from diverse 
stakeholders through our petition process (see Sec. Sec.  106.95-
106.105). PHMSA also regularly reviews special permits (documents that 
permit activities not otherwise allowed under the HMR provided the 
applicant is able to demonstrate it will maintain an equivalent level 
of safety) and adopts the provisions of special permits with broad 
potential applicability and satisfactory safety records into the HMR 
for general use. Additionally, PHMSA participates in the development of 
international standards for the transportation of hazardous materials, 
including the International Civil Aviation Organization Technical 
Instructions for the Safe Transport of Dangerous Goods by Air (ICAO 
TI), the International Maritime Dangerous Goods Code (IMDG Code), and 
the UN Recommendations on the Transport of Dangerous Goods--Model 
Regulations. PHMSA updates the HMR biennially to reflect the most 
recent changes in these and other international regulations to maintain 
harmonization with international requirements and facilitate 
international commerce.
    PHMSA has addressed many of the comments to the 2017 Regulatory 
Reform Notice regarding the subject of hazardous materials 
transportation regulation through completed and proposed rulemaking 
efforts, including:
     HM-219A, Hazardous Materials: Response to Petitions from 
Industry to Modify, Clarify, or Eliminate Regulations, PHMSA-2015-
0102.\4\ In this final rule, PHMSA amended the HMR in response to 19 
petitions for rulemaking submitted by the regulated community to 
update, clarify, modernize, or provide relief from miscellaneous 
regulatory requirements.
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    \4\ 83 FR 55792 (Nov. 7, 2018). https://www.govinfo.gov/content/pkg/FR-2018-11-07/pdf/2018-23965.pdf.
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     HM-219B, Hazardous Materials: Response to an Industry 
Petition to Reduce Regulatory Burden for Cylinder Requalification 
Requirements, PHMSA-2017-0083.\5\ In this final rule, PHMSA amended the 
requalification periods for certain Department of Transportation (DOT) 
4-series specification cylinders in non-corrosive gas service in 
response to a petition for rulemaking submitted by the National Propane 
Gas Association.
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    \5\ 85 FR 68790 (Oct. 30, 2020). https://www.govinfo.gov/content/pkg/FR-2020-10-30/pdf/2020-22483.pdf.
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     HM-219C, Hazardous Materials: Adoption of Miscellaneous 
Petitions to Reduce Regulatory Burdens, PHMSA-2017-0120.\6\ In this 
final rule, PHMSA

[[Page 43018]]

amended the HMR in response to 24 petitions for rulemaking submitted by 
the regulated community between February 2015 and March 2018 to update, 
clarify, or provide relief from various regulatory requirements without 
adversely affecting safety.
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    \6\ 85 FR 75680 (Nov. 25, 2020). https://www.govinfo.gov/content/pkg/FR-2020-11-25/pdf/2020-23712.pdf.
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     HM-233G, Hazardous Materials: Continued Conversion of 
Special Permits, PHMSA-2017-0121. In this NPRM, PHMSA will be proposing 
to amend the HMR to adopt provisions contained in certain widely used 
or longstanding special permits that have an established safety record. 
The proposed revisions are intended to provide greater flexibility and 
eliminate the need for numerous special permit renewal requests, thus 
reducing paperwork burdens for the agency and the regulated community 
and facilitating commerce while maintaining an equivalent level of 
safety.
     HM-215O, Hazardous Materials: Harmonization with 
International Standards, PHMSA-2017-0108.\7\ In this final rule, PHMSA 
amended the HMR to maintain alignment with international regulations 
and standards by incorporating various amendments, including changes to 
proper shipping names, hazard classes, packing groups, special 
provisions, packaging authorizations, air transport quantity 
limitations, and vessel stowage requirements. These revisions were 
necessary to harmonize the HMR with recent changes made to the IMDG 
Code, the ICAO TI, and the UN Model Regulations.
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    \7\ 85 FR 27810 (May 11, 2020). https://www.govinfo.gov/content/pkg/FR-2020-05-11/pdf/2020-06205.pdf.
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     HM-265, Hazardous Materials: Advancing Safety of Highway, 
Rail, and Vessel Transportation, PHMSA-2018-0080. In this NPRM, PHMSA 
will be proposing to amend the HMR to adopt a number of modal-specific 
amendments that would enhance the safe transportation of hazardous 
materials. PHMSA, in consultation with the Federal Motor Carrier Safety 
Administration (FMCSA), the Federal Railroad Administration (FRA), and 
the United States Coast Guard (USCG), will propose amendments 
identified during Departmental review and from stakeholder petitions 
for rulemaking.
    The Department has received additional regulatory modernization 
topics through petitions and internal review efforts. PHMSA believes 
these additional topics reflect changing technologies, transportation 
trends, and economic conditions and therefore deserve our 
consideration. However, PHMSA understands there is value in obtaining 
additional information on the potential safety and economic impacts for 
these topics to inform specific changes to the HMR in the future. Thus, 
the intent of this ANPRM is to raise awareness about these topics, 
gather more information, and further evaluate the safety and 
environmental benefits as well as the feasibility of proposing changes 
to the HMR. PHMSA will review and evaluate all comments received and 
late-filed comments to the extent practicable.

II. Objective

    Federal Hazardous Materials Transportation law authorizes the 
Secretary to ``prescribe regulations for the safe transportation, 
including security, of hazardous materials in intrastate, interstate, 
and foreign commerce'' (49 U.S.C. 5101 et seq.). The Secretary has 
delegated this authority to PHMSA (49 CFR 1.97(b)). The HMR are 
designed to achieve three primary goals: (1) ensure that hazardous 
materials are packaged and handled safely and securely during 
transportation; (2) provide effective communication to transportation 
workers, emergency responders, and the general public of the hazards of 
the materials being transported; and (3) minimize the consequences of 
an accident or incident should one occur. The hazardous materials 
regulatory system is a risk management system that is prevention-
oriented and focused on identifying safety or security hazards and 
reducing the probability and consequences of a hazardous material 
release.
    As new technologies are developed, understanding of the risks 
inherent in the transportation of hazardous materials may change. New 
technologies can potentially provide new opportunities to improve 
packaging, hazard communication, and incident minimization. PHMSA 
recognizes new technologies and techniques can potentially reduce costs 
and burdens to society but remains focused on our primary mission to 
protect people and the environment by advancing the safe transportation 
of hazardous materials, including energy products, that are essential 
to our daily lives. Any change to the existing safety system in the 
HMR--e.g., containment, communication, and incident mitigation--must be 
carefully evaluated when considering cost savings or cost burdens from 
a regulation.
    Therefore, we are publishing this ANPRM to solicit comments on the 
safety, environmental, and economic impacts of regulatory modernization 
initiatives suggested by the regulated community and other 
stakeholders. To assist us in properly compiling information that we 
receive, when responding to a specific question below, please note the 
topic letter and question number in your comment. When providing 
estimates of economic impact or other quantitative information, please 
describe the basis for estimates, including data sources and 
calculations. With respect to cost data, both granular (i.e., per unit 
costs), aggregate, and programmatic (both one-time implementing and 
recurring) cost data are particularly helpful in PHMSA's evaluation of 
proposed changes to the HMR. When estimates are approximate or 
uncertain, consider using a range or specifying the distribution in 
other ways. For example:

B. Non-Bulk Packaging, Intermediate Bulk Container, and Large Packaging 
Periodic Retest Extension

    9. The total cost of each non-bulk drum design periodic 
recertification is approximately $XXX. We estimate total spending on 
package recertifications is $XXXXX for our company annually. If PHMSA 
were to change those recertification requirements to allow a longer 
interval between required recertification events as discussed in the 
ANPRM, we believe this would result in a total additional cost savings 
to our company of $XXX annually. We also anticipate one-time 
implementation costs (pertaining to initial training and updating of 
documentation) of $XXX and recurring costs of $XXX annually.

III. Topics Under Consideration

A. Evaluation of Carrier Maintenance of Emergency Response Information

    Carriers that transport hazardous material must maintain emergency 
response information (ERI) that meets the requirements of Sec.  172.602 
onboard their motor vehicle, train, plane, or vessel. In accordance 
with Sec.  172.602, ERI must be immediately accessible to train crew 
personnel, drivers of motor vehicles, flight crew members, and bridge 
personnel on vessels for use in the event of incidents involving 
hazardous materials as well as emergency responders and representatives 
of government agencies conducting an investigation.
    PHMSA requests comment on the continued utility of this requirement 
given advancements in technology and greater availability of resources, 
such as the Emergency Response Guidebook (ERG), to the emergency 
responder community. Specifically, PHMSA requests comment on the 
following questions:

[[Page 43019]]

    1. Should ERI be required to accompany shipments of hazardous 
materials? If no, what alternatives should be considered that maintain 
existing levels of safety?
    2. How does, if anything, the utility or value of ERI vary under 
Sec.  172.602 in the different modes of transportation?
    a. In highway and rail accidents, is emergency response generally 
conducted by emergency responders rather than carrier personnel? 
Explain.
    b. How much do emergency responders rely on the ERI provided by the 
highway or rail carrier, or do they rely on their own?
    c. For air and marine vessel incidents, are carrier personnel 
engaged in response actions? Explain.
    d. Does air and vessel incident response depend to a larger degree 
on ERI maintained by the carrier compared to highway and rail?
    3. Provided an equivalent level of safety can be maintained, what 
are the potential cost savings involved in revising the ERI 
requirements under Sec.  172.602?
    a. Would revisions to Sec.  172.602 in effect ``shift'' the costs 
of maintaining ERI to entities other than the carrier, such as 
emergency responders affiliated with tribes, states, counties, or 
localities?
    4. Are there differences in the reliance on the carrier's copy of 
ERI between different types of emergency responders? Differences to 
consider include urban and rural organizations, professional and 
volunteer, and different response branches such as law enforcement 
officers and firefighters.

B. Non-Bulk Packaging, Intermediate Bulk Container, and Large Packaging 
Periodic Retest Extension

    Packaging standards for UN Performance Oriented Packagings (POP), 
also referred to as UN specification packagings, Intermediate Bulk 
Containers (IBCs), and Large Packagings, are performance-based, rather 
than highly prescriptive. The HMR provide general standards and 
instructions for the construction of UN specification packagings and 
IBCs in part 178, subparts L and N, respectively. However, in order to 
be qualified to bear a UN specification packaging mark, each non-bulk 
packaging or IBC design must pass qualification tests in part 178, 
subparts M and O, respectively. After a design has been initially 
qualified, the HMR require that each non-bulk single packaging design 
and IBC design must undergo a periodic retest at least every 12 months 
(see Sec. Sec.  178.601(e) and 178.801(e)). Each non-bulk combination 
packaging design and Large Packaging design must undergo periodic 
retest at least every 24 months (see Sec. Sec.  178.601(e) and 
178.955(e)). These tests are intended to demonstrate that the 
manufacturer's packagings continue to meet the standards required for 
the safe transportation of hazardous materials.
    The Research and Special Programs Administration (RSPA)--PHMSA's 
predecessor agency--adopted UN POP standards into the HMR on December 
21, 1990, in a rulemaking known as HM-181 (55 FR 52402).\8\ The UN POP 
system replaced the existing system of heavily prescriptive packaging 
requirements.
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    \8\ https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/rulemakings/archived-rulemakings/72931/55-fr-52402-final-rulereducedsize.pdf.
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    Those prescriptive requirements accommodated limited innovation in 
package design and qualification and contributed to a sizable code of 
regulations through unnecessary duplication of regulatory text. At the 
time the UN POP standards were proposed, RSPA received comments stating 
opposition to periodic packaging testing requirements after initial 
qualification. Commenters specifically requested that no 
``requalification'' testing be required unless a design change was made 
to the packaging because of the time and expense involved in annually 
testing packagings. In response to these comments, RSPA stated its 
understanding that conducting periodic packaging testing every 12 
months was not, by itself, sufficient to ensure each packaging produced 
by a manufacturer would meet the required performance standards. RSPA 
stated the expectation that manufacturers would need to take additional 
measures, such as testing an increased number of samples or testing 
samples to more stringent levels (e.g., higher drops or increased 
hydrostatic test pressures) and implementing quality control programs 
to ensure that each packaging they produced met the UN POP standards.
    Additionally, RSPA noted that a 12-month periodic retesting 
requirement was a relaxation of testing requirements for many packaging 
types, compared to the previous packaging standards in the HMR. 
However, RSPA acknowledged that this requirement would be particularly 
onerous for manufacturers of non-bulk combination packagings because of 
the large number of very similar designs in production, and therefore 
allowed a number of variations in package design that would not require 
retesting (see Sec.  178.601(g)) and extended the periodic retest 
requirement to 24 months for non-bulk combination packagings. See pages 
55 FR 52459-52460 of final rule HM-181 for further details on RSPA's 
response to commenters regarding implementation of UN POP standards.
    Several comments related to the periodic retest requirement for UN 
specification non-bulk packagings and IBCs were submitted to the 2017 
Regulatory Reform Notice docket. The Reusable Industrial Packaging 
Association (RIPA),\9\ the Industrial Packaging Alliance of North 
America (IPANA),\10\ and the Sporting Arms and Ammunition Manufacturers 
Institute (SAAMI) \11\ requested that PHMSA extend the periodic 
retesting interval to up to five years for UN specification non-bulk 
packagings and IBCs to align with international standards that permit 
longer retest intervals and to reflect the higher quality manufacturing 
practices now in place in the packaging industry. After the comment 
period of the 2017 Regulatory Reform Notice closed, IPANA submitted a 
petition for rulemaking, P-1713,\12\ and SAAMI submitted a petition 
designated P-1732 \13\ re-iterating their request.
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    \9\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2634.
    \10\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2667.
    \11\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-1479.
    \12\ https://www.regulations.gov/docket?D=PHMSA-2018-0053.
    \13\ https://www.regulations.gov/docket?D=PHMSA-2019-0069.
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    PHMSA notes that, unlike many other countries, when the UN POP 
standards were adopted into the HMR, we did not require that packaging 
manufacturers send their packagings to an independent third-party 
laboratory for design qualification and periodic retesting. Rather, we 
allowed, and continue to allow, non-bulk UN specification packaging and 
IBC manufacturers to ``self-certify'' their own packagings by 
conducting the required tests and recording the results. PHMSA is 
requesting comment on the following questions to evaluate RIPA, IPANA, 
and SAAMI's requests:
    1. Can a package manufacturer or a UN Third-Party Packaging 
Certification Agency demonstrate through data, modeling, or other 
means, that a packaging design that is tested every 60 months performs 
as well as a design tested every 12 to 24 months? Explain.
    2. How have manufacturers' quality assurance procedures evolved and 
improved since the implementation of UN POP system? Please provide 
specific examples for all packaging types believed to warrant a longer 
design qualification interval.

[[Page 43020]]

    3. For trade associations who represent packaging manufacturers, 
what percentage of packaging manufacturers in the United States have 
implemented improved quality assurance procedures for UN POP (non-bulk, 
Large Packagings, and IBCs) since the current system was adopted in the 
HMR in 1990?
    4. For trade associations and packaging manufacturers, how 
frequently are internal quality control tests conducted by 
manufacturers?
    a. What types of tests?
    b. Does every U.S. IBC and non-bulk specification packaging 
manufacturer follow the same internal quality control program? If not, 
are there similarities among these manufacturers' quality control 
programs? Are there best practices?
    c. Is there a voluntary consensus standard (e.g., ISO, ASTM, etc.) 
used to normalize these internal quality control tests such that the 
standard could be incorporated by reference into the HMR?
    5. Are there similar quality control methods used for all the 
different types of packagings (e.g., steel drums, fiberboard boxes, 
composite IBCs, etc.)? If not, how do the quality control methods 
differ by packaging type?
    6. For trade associations who represent packaging manufacturers, or 
packaging manufacturers, how many how many non-bulk, Large Packaging, 
and IBC packaging designs are currently in production in the U.S.? 
Please provide information by type and whether the packagings are 
single packagings or combination packagings (e.g., 5,000 combination 
package 4G fiberboard box designs, 1,500 single package 1A1 non-
removable head steel drum designs, etc.).
    7. Of the current UN POP designs in production in the U.S., what 
percentage(s) are variations on tested designs produced without further 
testing under Sec.  178.601(g)?
    8. What is the cost of periodic retesting of a packaging for self-
certifiers (i.e., manufacturers who certify their own packagings)? 
Please provide information by type (e.g., $1,000 for a 4G combination 
package fiberboard box design, $3,500 for a composite IBC design, 
etc.).
    a. For a typical manufacturer, how much does periodic 
recertification cost on an annual basis?
    9. What is the total cost of a non-bulk, Large Packaging, and IBC 
packaging periodic recertification for manufacturers who use UN Third-
Party Packaging Certification Agencies to certify their packagings? 
Please provide information by type (e.g., $1,000 to recertify a 4G 
combination packaging fiberboard box design, $3,500 to recertify a 
composite IBC design, etc.).
    a. For a typical manufacturer, how much does periodic 
recertification cost on an annual basis?
    10. Given the variability in packaging types encompassed by non-
bulk, Large Packaging, IBC POP standards and the differing capabilities 
of manufacturers, would it be more effective to consider extension of 
periodic retest periods on a case-by-case basis through issuance of 
approvals, as provided by Sec. Sec.  178.601(e), 178.801(e) and 
178.955(e)?
    11. Would packaging manufacturers be willing to submit packagings 
to UN Third-Party Packaging Certification Agencies for testing, in lieu 
of self-certification, in order to have a longer interval between 
periodic qualifications? Why or why not?
    12. Do the users of non-bulk packagings, IBCs, or Large Packagings 
support an extension of the periodic qualification interval? Why or why 
not?
    13. How would the extension of the periodic qualification interval 
impact costs or savings for users of non-bulk packagings, IBCs, or 
Large Packagings? Please quantify the impact on burden hours for 
employees using Bureau of Labor Statistics labor categories, if 
possible.

C. Use of Non-Bulk Package Test Samples for Multiple Tests

    The HMR require that all non-bulk UN POP designs, also known as UN 
specification packagings, be tested in accordance with the requirements 
in part 178, subpart M. These testing requirements specify the types of 
tests that must be conducted, and the number of samples of packages 
that must be subjected to the tests. Generally, the HMR do not allow 
sample packages to be reused for multiple tests, i.e., a drum that is 
dropped as part of a drop test cannot be used for the stacking test 
(see Sec.  178.601(k)(1)).
    In 2017, PHMSA issued Letter of Interpretation Reference Number 16-
0154,\14\ which confirmed that package test samples may not be reused 
for multiple tests, unless authorized by the terms of an approval (see 
Sec.  178.601(k)(2)). PHMSA has issued approvals authorizing the reuse 
of package test samples for different tests to approved UN Third-Party 
Packaging Certification Agencies and other entities. IPANA submitted a 
comment \15\ to the 2017 Regulatory Reform Notice requesting that PHMSA 
rescind Letter of Interpretation 16-0154. PHMSA maintains the position 
that this letter of interpretation is correct based on the current 
requirements of the HMR. However, we are willing to consider revising 
the HMR to permit the reuse of packages for different tests for all 
package designs without approval from the Associate Administrator. To 
evaluate this potential change to the HMR, PHMSA requests comment on 
the following questions:
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    \14\ https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2017/160154.pdf.
    \15\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2667.
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    1. How many package designs would benefit from the option to re-use 
a test sample for another test (i.e., use a sample package from the 
drop test for the stack test)?
    2. How much time would be saved for each design so tested? What 
type of employee would save time? (Use Bureau of Labor employee 
category codes, if possible.)
    3. How many fewer test samples would be required for each design so 
tested?
    4. What are the cost savings, per design test or design 
recertification test cycle, by reusing test samples for additional 
tests?
    5. Are there certain combinations of design tests that are most 
suited for use of one sample across multiple tests? Are there certain 
tests that should not be allowed to be performed with tests samples 
subjected to other tests?
    6. In practice, would sample reuse be limited to certain packaging 
designs, types, and packaging materials? Please provide the packaging 
types and materials.
    7. Would permitting package sample reuse increase test failures and 
associated costs with re-running certification tests? Please explain 
your reasoning.
    8. If sample reuse is permitted, what is the potential impact on 
safety?
    a. Would permitting sample reuse cause packaging designers to 
create more robust packaging designs? If so, how?
    b. Is there any possibility that allowing reuse would degrade 
safety in packaging designs? If so, how?
    c. Is there any concern that it will be more difficult to determine 
the root cause of a packaging test failure if the sample has been 
subjected to multiple tests?

D. Aerosol Classification Alignment

    Section 171.8 of the HMR define an ``aerosol'' as:

an article consisting of any non-refillable receptacle containing a 
gas compressed, liquefied or dissolved under pressure, the sole 
purpose of which is to expel a nonpoisonous (other than a Division 
6.1

[[Page 43021]]

Packing Group III material) liquid, paste, or powder and fitted with 
a self-closing release device allowing the contents to be ejected by 
the gas.

    Aerosols are limited to 1 L in capacity and are eligible to be 
shipped as a limited quantity in accordance with Sec.  173.306(a)(3), 
(a)(5) and (b). These limited quantity exceptions allow for alternative 
packaging, specifically: non-specification non-refillable containers; 
DOT-specification DOT 2P, DOT 2P1, DOT 2Q, DOT 2Q1 or DOT 2Q2 non-
refillable metal receptacles; or DOT-specification DOT 2S non-
refillable plastic receptacles. Eligibility for the different 
containers (non-specification, DOT 2P, 2Q or 2S) is dependent on the 
pressure and flammability of the contents (i.e., Division 2.1 aerosols 
are not permitted in DOT 2S plastic receptacles, and 2Q containers can 
contain material at higher pressures than 2P containers; see Sec.  
173.306(a)(3) for further details). The limited quantity exception also 
provides hazard communication exceptions that facilitate commerce while 
maintaining a level of safety corresponding to the level of hazard 
present for the aerosols.
    In the Sec.  172.101 Hazardous Materials Table (HMT), there are 
five entries for UN1950 aerosols:

 Aerosols, corrosive, Packing Group II or III, 2.2 (8)
 Aerosols, flammable, 2.1
 Aerosols, flammable, n.o.s. (engine starting fluid), 2.1
 Aerosols, non-flammable, 2.2
 Aerosols, poison, Packing Group III, 2.2 (6.1)

    These entries do not address other possible combinations of 
propellants and the liquid, paste, or powder contained in the aerosol 
(i.e., a Division 2.1 flammable aerosol with a subsidiary hazard of 
Class 8). The ICAO TI edition currently incorporated by reference in 
the HMR (the 2021-2022 edition) lists 11 types of UN1950 aerosols 
authorized for transportation by aircraft:

 Aerosols, flammable, 2.1
 Aerosols, flammable, containing substances in Division 6.1 PG 
III and substances in Class 8, PG III, 2.1 (6.1, 8)
 Aerosols, flammable, corrosive, containing substances in Class 
8, PG III, 2.1 (8)
 Aerosols, flammable (engine starting fluid), 2.1
 Aerosols, flammable, toxic, containing substances in Division 
6.1 PG III, 2.1 (6.1)
 Aerosols, non-flammable, 2.2
 Aerosols, non-flammable, containing substances in Division 6.1 
PG III and substances in Class 8, PG III, 2.2 (6.1, 8)
 Aerosols, non-flammable, containing substances in Class 8, PG 
III, 2.2 (8)
 Aerosols, non-flammable (tear gas devices), 2.2 (6.1)
 Aerosols, non-flammable, toxic, containing substances in 
Division 6.1, PG III, 2.2 (6.1)
 Aerosols, oxidizing 2.2 (5.1)

    The IMDG Code Dangerous Goods List (DGL) lists only one entry for 
UN1950 aerosols, which is associated with Special Provision (SP) 63. SP 
63 directs shippers to classify the primary hazard as Division 2.1 
flammable gas or Division 2.2 non-flammable gas, based on the 
flammability of the contents of the container, and then assign a Class 
8 or Division 6.1 subsidiary hazard as necessary based on the nature of 
the contents to be expelled. The IMDG Code also authorizes Division 
6.1, PG II and Class 8, PG II subsidiary hazard materials in aerosols, 
which the ICAO TI do not. The HMR currently allow Class 8, PG II 
subsidiary hazard materials in aerosols, but not Division 6.1, PG II. 
In practice, despite having only a single UN1950 entry for aerosols in 
the DGL, the IMDG Code acknowledges an even broader list of possible 
classifications for aerosols than the ICAO TI. The lack of alignment 
between the HMR and international regulations for aerosol 
classification creates confusion for shippers and carriers engaged in 
international shipments.
    Matson Navigation submitted petition P-1698 \16\ requesting that 
PHMSA authorize Class 6.1 PG II material in aerosols for highway, rail, 
and vessel transport, and that we amend the HMR to include additional 
UN1950 aerosol entries in the HMT to account for Division 2.1 aerosols 
with subsidiary Division 6.1. The petition also requests that we align 
with the IMDG Code's 120 mL size restriction for aerosols with a 6.1 
subsidiary hazard. PHMSA requests comment on the following questions to 
evaluate Matson Navigation's petition to allow subsidiary 6.1, PG II 
materials in aerosols for highway, vessel, and rail transportation, and 
create new entries in the HMT:
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    \16\ https://www.regulations.gov/docket?D=PHMSA-2017-0021.
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    1. How many shipments of Division 2.2 (6.1), PG II and Division 2.1 
(6.1), PG II aerosols would move within the U.S. per year if 
authorized? Please provide estimates for marine vessel, highway, and 
rail separately, if possible.
    2. Are there any known international incidents involving Division 
6.1, PG II aerosols, including those shipments that have entered the 
U.S.? Explain.
    3. What would be the cost savings, per shipment, associated with 
allowing Division 2.2 (6.1) PG II and Division 2.1 (6.1) PG II material 
to be transported as an aerosol?
    a. Would shippers be able to reduce costs by switching to less 
expensive packaging authorized in Sec.  173.306(a)(3)? How much would 
shippers save per packaging or shipment?
    b. How much time would shippers save due to the reduced hazard 
communication requirements associated with limited quantity shipments 
by highway, rail, and vessel? What categories of employees would save 
time? (Use Bureau of Labor Statistics labor categories, if possible.)
    4. Do you support adoption of the IMDG Code 120-mL limit for 
Division 2.2 and Division 2.1 (6.1) PG II aerosols transported by 
highway, rail, and marine vessel? Marine vessel only? Why or why not?
    a. Do you support adoption of the 120-mL limit for Division 2.2 and 
Division 2.1 (6.1) PG III aerosols that currently do not have a 120-mL 
limit when transported under the HMR? Why or why not?
    5. How would the creation of additional entries on the Sec.  
172.101 HMT for Division 2.1 aerosols with subsidiary hazards decrease 
confusion and facilitate international commerce?
    6. Should aerosols in Division 2.2 and Division 2.1 with a 
subsidiary hazard of 6.1 PG II be required to bear markings indicating 
the package is forbidden for transportation aboard aircraft?
    a. Would such a marking reduce the risk that a forbidden aerosol 
would be transported aboard an aircraft? Explain your reasoning.
    7. How often are shipments frustrated by the current disharmony 
between the HMR and international regulations? How many shipments are 
frustrated on an annual basis?
    a. What are the direct and indirect costs of a frustrated shipment? 
For example, what amount of delay occurs and what are the costs of this 
delay? Are ``demurrage''--i.e., delayed ship loading or unloading--fees 
charged because of these delays? If so, how much are these fees on a 
per-shipment basis?
    b. What amount of revenue is forfeited when a shipper or carrier 
declines to offer or transport a potentially non-compliant aerosol 
shipment?

E. Residue IBC Exceptions

    The HMR generally require that a package that contains a residue of 
a hazardous material must be transported in the same manner as when it 
contained a greater quantity of material (i.e., as if it was full, see 
Sec.  173.29(a)).

[[Page 43022]]

However, Sec.  173.29(c) provides exceptions for non-bulk packages 
containing the residue materials covered by Table 2 of the Sec.  
172.504 placarding table. RIPA submitted petition P-1618 \17\ to PHMSA 
a comment \18\ to the 2017 Regulatory Reform Notice, and a revised 
petition in 2020 \19\ requesting that we also provide an exception for 
IBCs containing the residue of hazardous material (residue IBCs), 
similar to the existing exception for residue in a non-bulk package. 
RIPA's request is summarized as follows:
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    \17\ https://www.regulations.gov/document?D=PHMSA-2013-0100-0001.
    \18\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2634.
    \19\ https://www.regulations.gov/document/PHMSA-2013-0100-0004.
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     Create an exception for IBCs containing a residue (not 
more than 0.3 percent full) of Class 3, 4.1, 5.1, 6.1 PG III, 8, or 9 
from subparts C-F (shipping papers, marking, labeling, and placarding, 
respectively) and subpart G Emergency Response Information (ERI). 
(Shipments not subject to shipping papers are not subject to ERI, see 
Sec.  172.600(d)). Although not specifically requested by RIPA, 
exception from the ERI requirements is implicit with a shipping paper 
exception, and therefore, we mention it here.
     Require a statement on a shipping document carried onboard 
any vehicle transporting residue IBCs (e.g., a bill of lading or 
waybill) reading:``This vehicle is carrying emptied intermediate bulk 
containers (IBCs) that meet the RCRA empty container rule, 40 CFR 
261.7, and may contain up to 0.3% of capacity of residues of hazardous 
materials in Classes 3, 4.1, 5.1, 6.1 packing group III, 8, and 9. 
These IBCs do not contain residues of any toxic inhalation hazard or 
Packing Group I hazardous material.''
    To support their petition, RIPA cites a bonfire test they conducted 
on an IBC containing residue of acetone that demonstrated only fire 
behavior, with no explosion, fragmentation, or fireballs.
    Additionally, PHMSA is aware that Transport Canada has issued an 
equivalency certificate, SU 11819,\20\ which grants a similar exception 
to all RIPA member companies transporting residues of hazardous 
materials in IBCs in Canada for all modes except air. The conditions of 
SU 11819 are not identical to RIPA's request in P-1618, specifically in 
that SU 11819 requires the display of a ``DANGER'' placard on a vehicle 
transporting residue IBCs and requires that the shipment be accompanied 
by a transport document identifying the shipment as residue IBCs, the 
number of IBCs carried, and the primary hazard classes present. There 
are some additional differences in that SU 11819 allows the IBCs to 
remain up to 1 percent full and includes materials that P-1618 does not 
request authorization to transport (Division 4.2, 5.2, and 6.1 other 
than PIH material) under the exception.
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    \20\ https://www.phmsa.dot.gov/standards-rulemaking/hazmat/transport-canada-su-11819.
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    To evaluate creating an exception for residue IBCs, PHMSA requests 
comment on the following questions:
    1. Please provide supporting information describing how the 
transportation of residue IBCs in accordance with P-1618 maintains an 
equivalent level of safety compared to the HMR's current requirements 
for IBCs that contain a residue of hazardous materials.
    a. Does the P-1618 request account for the presence of vapors of 
hazardous materials in the residue IBCs? Please describe.
    b. If placarding the motor vehicle carrying residue IBCs is no 
longer required--and therefore a hazmat endorsement on a Commercial 
Driver's License is no longer required--how would a carrier ensure that 
the driver is aware of the hazards of the material he or she is 
transporting?
    2. Do you support adoption of RIPA's request to have the vehicle 
display no placards or ID number marks for a shipment of residue IBCs? 
Why or why not? Alternatively, please propose an alternative form of 
hazard communication for the vehicle.
    3. Do you support adopting RIPA's request to have a statement for 
all shipments paraphrased as follows: ``This vehicle is carrying 
emptied intermediate bulk containers that may contain up to 0.3% of 
capacity of residues of hazardous materials in Classes 3, 8, 9, and 
Divisions 4.1, 5.1, 6.1 (packing group III). These IBCs do not contain 
residues of any toxic inhalation hazard or Packing Group I hazardous 
material.'' Why or why not? Should the statement be revised in any way? 
How so?
    4. Do you support a requirement that vehicles carry ERI for the 
hazardous materials transported under this proposed exception?
    5. Do you support RIPA's request to authorize this proposed 
exception for Class 3, 8, and 9, and Division 4.1, 5.1, 6.1 (PG III 
only) materials? Why or why not?
    6. Do you support limiting the authorization to highway and rail 
transport only, as requested in RIPA's petition, or include vessel 
transport as authorized in SU 11819? Please explain your reasoning.
    7. How much material should be allowed to remain in the IBC to take 
this exception? How would the amount of material left in the IBC be 
verified? Options to consider include alignment of the exception to 
apply to containers emptied in accordance with:
    a. The SU 11819 standard: The IBC has been emptied to the maximum 
extent possible using the most effective method--e.g., can include 
pouring, upending, pumping, aspirating, scraping, rinsing--for the type 
of hazardous material and is less than 1 percent full;
    b. RIPA's request: The residue does not exceed 0.3 percent of the 
capacity of the packaging and is so certified by the emptier;
    c. The U.S. EPA ``RCRA empty'' standard from 40 CFR 261.7: No more 
than 0.3 percent by weight of the total capacity of the container 
remains in the container or inner liner; or
    d. An alternative quantity limit: If you support an alternative 
quantity limit, please describe and support the limit with any 
technical or scientific information available to you.
    8. Are there any known incidents or accidents involving residue 
IBCs shipped under Canadian SU 11819 or the European Agreements 
Concerning the International Carriage of Dangerous Goods by Road (ADR) 
exception for residue IBCs? If so, please describe. For reference, ADR 
regulations provide exceptions for emptied IBCs that are similar to the 
exceptions provided in Canadian SU 11819.
    9. Are there any known incidents or accidents involving residue 
IBCs in the United States where improper emergency response protocols 
were implemented, due to the lower hazard posed by the small amount of 
hazardous material present on the vehicle? Please describe.
    10. How would offerors of ``empty'' IBCs determine that they meet 
the 0.3 percent residue requirement before offering?
    a. P-1618 uses the term ``emptier,'' which is not a term defined or 
generally used in the HMR. Please explain the difference between the 
offeror of a hazardous material for transportation and the ``emptier.''
    11. Do you support restricting the exception to transport for 
purposes of testing/inspection or delivery to a disposal facility, as 
provided in Canadian SU 11819? Why or why not?
    12. Do you support limiting the exception to IBCs with a capacity 
less than or equal to 550 gallons (2100 liters)--as RIPA requests--or 
allowing the exception for IBCs of all sizes?

[[Page 43023]]

Please justify your response with technical data, if possible.
    13. What cost savings would be achieved by shippers and carriers of 
residue IBCs if this was adopted as proposed by RIPA? Please explain 
your calculations including the amount of labor required and the rate 
of compensation for that labor.
    a. Please explain the current industry practice for determining the 
shipping information for residue IBCs (i.e., explain how the material 
is classified for transportation), and how RIPA's proposal will reduce 
burdens on shippers and carriers.
    b. What, if any, costs savings would be realized if placarding for 
the vehicle carrying residue IBCs is no longer required, and a driver 
without a hazmat endorsement is allowed to operate the vehicle?
    14. What cost savings would be achieved by shippers and carriers of 
residue IBCs if the HMR was modified to align with SU 11819? For 
example, Transport Canada's SU 11819 requires the use of the 
``DANGEROUS'' placard and updated shipping documents. Please explain 
your calculations, including any additional costs accrued through the 
additional shipping paper statement.

F. Requirements for Damaged, Defective, or Recalled Lithium Cells and 
Batteries

    The HMR permit the shipment of damaged, defective, or recalled 
(DDR) lithium cells and batteries in accordance with Sec.  173.185(f). 
These packaging instructions are more stringent than the normal lithium 
cell and battery instructions found in Sec.  173.185(b), and do not 
permit the transportation of DDR lithium batteries and cells aboard 
aircraft. We received a comment \21\ from PRBA regarding two distinct 
issues related to the requirements for transportation of DDR cells and 
batteries. First, PRBA requested that PHMSA reconsider our limit of one 
DDR cell or battery per outer packaging. Second, PRBA requested that 
PHMSA remove the word ``recalled'' from Sec.  173.185(f).
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    \21\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2826.
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    PRBA explained that the use of the word ``recalled'' in Sec.  
173.185(f) creates confusion for shippers and causes shippers to offer 
batteries and devices containing batteries that have been recalled for 
non-safety related reasons under the damaged, defective, or recalled 
provisions in Sec.  173.185(f). It was never PHMSA's intent to subject 
lithium batteries and lithium battery powered devices to the conditions 
in Sec.  173.185(f) if they had been recalled for a non-safety related 
purpose. When PHMSA created Sec.  173.185(f) in final rule HM-224F \22\ 
(79 FR 46011; Aug. 6, 2014), we stated:
---------------------------------------------------------------------------

    \22\ https://www.gpo.gov/fdsys/pkg/FR-2014-08-06/pdf/2014-18146.pdf.

    The HMR do not currently contain provisions for transporting 
batteries subject to a manufacturer's recall or that are damaged and 
potentially dangerous. Based on previously developed guidance 
material and competent authority approvals, PHMSA will require 
lithium batteries that have been damaged, identified as being 
defective, or are otherwise being returned to the manufacturer for 
safety reasons [emphasis added], to be packaged in combination 
packages, surrounded by non-conductive cushioning material, and 
---------------------------------------------------------------------------
transported by highway or rail only.

    While our intent may have been clear in the HM-224F preamble, we 
acknowledge that the wording of Sec.  173.185(f) could mislead a 
cautious shipper to ship lithium batteries and battery powered devices 
that had been recalled for any reason under the more restrictive 
requirements of this paragraph. Therefore, PHMSA requests comment on 
the following questions to evaluate PRBA's comment:
Clarification of ``Defective''
    1. PHMSA's concerns with DDR batteries include that damaged or 
defective batteries have a higher chance of thermal runaway and 
creating fire and explosion in transportation. PHMSA does not consider 
devices and batteries recalled for non-safety related purposes to be 
subject to the ``damaged, defective, or recalled'' packing instruction 
in Sec.  173.185(f). How should PHMSA define ``damaged, defective, or 
recalled'' for lithium batteries to clearly communicate this 
distinction?
    2. Given PHMSA's intended meaning of ``damaged, defective, or 
recalled,'' how frequently do shippers prepare lithium battery 
shipments under the restrictive requirements of Sec.  173.185(f) when 
the shipment does not actually involve DDR batteries, but batteries 
that are recalled for reasons other than safety? How many shipments are 
involved on an annual basis?
    a. How common are shipments of non-safety related recalled 
batteries compared to those of safety related recalled batteries?
    3. How much costlier are shipments of DDR batteries than non-DDR 
battery shipments? What contributes to higher costs for DDR battery 
shipments relative to non-DDR battery shipments?
    a. Who mostly bears these costs of DDR or non-DDR battery 
shipments? Shippers, manufacturers, or recyclers?
Packaging Requirements for DDR Batteries
    4. What techniques, besides a visual examination of the battery, 
are in use to identify DDR batteries prior to shipment? Please describe 
any known to you.
    5. Do the current requirements for DDR batteries in Sec.  
173.185(f) provide an adequate level of safety during transportation 
for these higher-risk batteries? If not, please describe the safety 
deficiencies you are aware of and suggest a means to address the 
deficiency.
    6. Describe any technologies, practices, or procedures known to you 
that could reduce the risks presented by these batteries in 
transportation.

G. Sampling and Testing Program for Unrefined Petroleum-Based Products

    Proper classification of a hazardous material is a cornerstone of 
the packaging and hazard communication requirements in the HMR. The 
person who offers a hazardous material for transportation (i.e., the 
shipper) is responsible for properly classifying the material into one 
of the nine hazard classes (see Sec.  173.22). In 2015, PHMSA published 
HM-251,\23\ ``Enhanced Tank Car Standards and Operational Controls for 
High-Hazard Flammable Trains'' (80 FR 26643; May 8, 2015) in response 
to several rail incidents involving derailment of unit trains 
transporting millions of gallons of crude oil within the United States 
and Canada. As part of this rule, PHMSA created a specific requirement 
in the HMR for the sampling and testing of unrefined petroleum-based 
products to address the variability of the physical properties of these 
materials (see 80 FR 26652-26653 for further discussion). These 
sampling and testing plan requirements, which include a recordkeeping 
component, are found in Sec.  173.41.
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    \23\ https://www.govinfo.gov/content/pkg/FR-2015-05-08/pdf/2015-10670.pdf.
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    PHMSA received two comments in the 2017 Regulatory Reform Notice 
related to the sampling and testing plan for unrefined petroleum-based 
products. American Fuel and Petrochemical Manufacturers (AFPM) 
submitted a comment \24\ requesting that PHMSA repeal Sec.  173.41 
because it is an unnecessary duplication of the shipper's 
responsibility to classify (see Sec.  173.22(a)(1)). The American 
Petroleum Institute (API) submitted a comment \25\ requesting that 
PHMSA clarify and

[[Page 43024]]

revise the requirements of Sec.  173.41 to simplify the requirements 
and encourage compliance.
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    \24\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2785.
    \25\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2766.
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    PHMSA believes that the requirements in Sec.  173.41 serve an 
important role in ensuring the proper classification of unrefined 
petroleum-based products, which exhibit more variation than refined or 
manufactured materials. Therefore, we do not anticipate removing this 
section at this time. However, clarifications of the requirements in 
Sec.  173.41 could encourage compliance and efficiency--and in turn 
reduce environmental burdens. PHMSA requests comment on the following 
questions:
    1. Would the adoption in the HMR or incorporation by reference of 
ANSI/API RP 3000 \26\ or parts of it in Sec.  173.41 help clarify 
requirements and/or improve efficiency?
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    \26\ https://www.api.org/oil-and-natural-gas/wells-to-consumer/transporting-oil-natural-gas/rail-transportation/api-rp-3000.
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    2. Are there any specific technical requirements or provisions in 
ANSI/API RP 3000 or it's technical addendums that should be 
incorporated into the HMR? If yes, please explain.
    3. Should PHMSA adopt any of the DOT Special Permits that have been 
issued in connection with Sec.  173.41 or the testing requirements of 
Sec.  173.120 (e.g. DOT-SP 20861) \27\ into the HMR? Why or why not?
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    \27\ https://www.phmsa.dot.gov/approvals-and-permits/hazmat/file-serve/offer/SP20861.pdf/offerserver/SP20861.
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    4. What specific provisions of Sec.  173.41 for shippers and 
carriers may improve compliance and efficiency?
    a. Provide suggested regulatory text that would revise the 
identified provisions.
    b. Provide detailed estimated costs for the current requirement and 
projected cost savings for the suggested revised requirements.
    c. Provide detailed safety justifications that demonstrate how the 
revised requirements will meet an equivalent or greater level of safety 
to the current sampling and testing plan requirement.

H. Basic Oil Spill Response Plan Applicability

    In accordance with Sec.  130.31, any person who transports liquid 
petroleum oil in a packaging with a capacity of 3,500 gallons or 
greater must have a basic written plan to respond to an oil spill. RSPA 
instituted the 3,500-gallon threshold for basic oil spill response 
plans in HM-214/PC-1 Interim Final Rule 2 (IFR-2) \28\ published on 
June 16, 1993 (58 FR 33302). The 3,500-gallon threshold replaced a 
requirement that would have imposed oil spill response planning 
requirements on all bulk packages (capacity greater than 119 gallons), 
which was deemed too burdensome. Rather than all bulk packagings, 
packagings with a capacity of 3,500 gallons or more containing oil were 
chosen as an appropriate threshold for basic oil spill planning. The 
interim final rule noted that the 3,500-gallon capacity criterion is 
the same as the HMR's bulk packaging registration requirement (see 
Sec.  107.601(a)(4)), and the Federal Highway Administration's (now 
FMCSA's) financial responsibility requirement found in 49 CFR part 387.
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    \28\ https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/rulemakings/archived-rulemakings/62066/58-fr-33302-interim-final-rule.pdf.
---------------------------------------------------------------------------

    The Utilities Solid Waste Activities Group (USWAG) submitted a 
comment \29\ to the 2017 Regulatory Reform Notice requesting that PHMSA 
change the applicability of the requirement to a packaging that 
contains 3,500 gallons or more of liquid petroleum oil, rather than a 
capacity of 3,500 gallons. USWAG described scenarios in which their 
member utilities are required to develop basic oil spill response plans 
for the transportation of large electrical transformers with liquid 
capacities over 3,500 gallons that only contained a small residual 
amount of oil. Since it is possible that releases of liquid petroleum 
oils subject to part 130 requirements may not be subject to DOT 5800.1 
Hazardous Material Incident Report Form requirements, PHMSA does not 
have complete data on oil spills in transportation. Additionally, PHMSA 
does not require that persons submit their basic oil spill response 
plans for approval, therefore we are uncertain how many persons are 
currently subject to this requirement. PHMSA requests comment on the 
following questions:
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    1. How many companies, utilities, or other entities transport 
liquid petroleum oil in a packaging with a capacity of 3,500 gallons or 
greater?
    a. What percentage of these shipments result in spills and what 
potential gaps exist in this data?
    b. What are the likely consequences and damages, including worst-
case consequences?
    c. How much higher would damages be for these spills without a 
basic oil spill response plan?
    2. If we were to change the criterion for applicability of the 
basic oil spill response plan requirement to a packaging containing at 
least 3,500 gallons of oil, rather than a capacity of 3,500 gallons, 
how many companies, utilities, or other entities would be required to 
create a basic oil spill response plan? Put another way, how many fewer 
companies, utilities, or other entities would be required to create a 
basic oil spill response plan? Should regulated entities be instead 
responsible for a residual waste disposal plan?
    3. If we were to change the criterion for applicability of the 
basic oil spill response plan requirement to a packaging containing at 
least 3,500 gallons of oil, rather than a capacity of 3,500 gallons, 
how many fewer shipments of oil would be transported with a basic oil 
spill response plan?
    4. What is the cost to develop a basic (non-comprehensive) oil 
spill response plan ``from scratch?'' While other estimation methods 
are possible, consider describing the cost in terms of the amount of 
labor required to develop the plan and the rate of compensation for 
that labor.
    5. Are there alternative thresholds for a basic (non-comprehensive) 
oil spill response plan that PHMSA should consider; for example, a 
quantity of oil that is between 0 gallons and 3,500 gallons? Please 
provide experience or knowledge of oil spills from packages covered by 
the basic oil spill response plan requirements in the United States.
    6. Would exceptions for equipment such as electrical transformers 
containing residue amounts of oil be a more suitable approach?
    a. How would this be implemented?
    b. What type of oil is found in electrical transformers?
    c. Should all types of oil be eligible for this exception?
    d. What quantity of oil is typically found in an electrical 
transformer that is being transported via highway or rail?
    7. If we changed the threshold for the requirement from packaging 
capacity to actual quantity transported, what would be the appropriate 
threshold for the quantity transported to require a basic oil spill 
response plan? (i.e., would 3,500 gallons still be the appropriate 
threshold or should the threshold be lowered?)
    8. How would an offeror determine the amount of oil in the 
packaging prior to offering it into transportation?

I. Standards Incorporated by Reference Update

    The HMR incorporate by reference (IBR) approximately 200 technical 
standards from industry groups, standard-setting organizations, and 
international organizations as legally

[[Page 43025]]

binding and enforceable parts of the regulations (see Sec.  171.7). The 
use of IBR materials provides several advantages for the regulated 
community and PHMSA. It decreases the size and complexity of the HMR by 
allowing the technical standards applicable to specific activities 
(i.e., welding thin-walled steel cylinders) to be referenced and 
incorporated into the regulations without including the actual standard 
or its text in the HMR. Incorporation by reference encourages industry 
groups to collaborate and share knowledge to develop consensus 
documents reflecting best practices in the industry, with the knowledge 
that PHMSA is willing to incorporate the standard into the HMR as a 
binding requirement, when appropriate. IBR also allows PHMSA to focus 
our research and development efforts more efficiently, with the 
knowledge that industry groups and non-governmental organizations are 
also constantly working to develop consensus standards in their 
particular areas of expertise. IBR encourages standardization that 
supports international commerce as well, through the use of 
international standards such as ISO gas cylinder design, construction, 
and testing standards, and international transportation standards, 
including the ICAO TI and the IMDG Code.
    While PHMSA reviews and updates IBR documents regularly, many IBR 
standards currently in the HMR do not reflect the most current version 
and may not reflect the state of the art for a particular area of the 
transport industry. Please note it may also be purposeful on PHMSA's 
part to not IBR a more recent version based on concerns with a 
particular edition or IBR a standard in part. In accordance with the 
Administrative Procedure Act (see 5 U.S.C. 500 et seq.) and the 
requirements of the Office of the Federal Register (see 1 CFR part 51), 
PHMSA must IBR a specific edition of a document as part of this 
process. Therefore, whenever a new edition is developed and published, 
the prior edition (i.e., the IBR edition) will remain the legally 
binding standard until the new edition is incorporated through the 
rulemaking process. This lag between publication of a new edition and 
incorporation into the HMR can create confusion within industry and 
create difficulties in enforcement as regulated entities acquire the 
new standard through their memberships to industry groups or through a 
desire to conform with newly identified best practices, but are legally 
required by the HMR to follow the previous edition.
    In other cases, some members of the regulated community may prefer 
the older edition and find technical standards are being updated too 
frequently, citing high costs to purchase new standards, training 
costs, and other costs. Additionally, the incorporation of an older 
industry standard may not necessarily create a conflict as an entity 
conforming to the incorporated edition in the HMR can also at the same 
time be conforming to the most current version for purposes of 
satisfying condition(s) for a standard setting organization.
    PHMSA recognizes that many IBR documents in the HMR are not the 
most current version of the document available. To address this issue, 
we request comment on the following questions:
    1. Which documents incorporated by reference in Sec.  171.7 are 
outdated and should be updated to reflect today's best practices in the 
industry?
    a. For each IBR document so identified, what is the most current 
edition of the standard?
    b. For each IBR document so identified, is the newest edition 
readily available? What is the cost of purchasing the newest edition?
    c. For each IBR document so identified, describe the relevant 
changes from the currently incorporated edition to the newest edition.
    d. For each identified change from the current IBR document to the 
newest standard, please provide supporting rationale for the change 
based on relevant technical and scientific data.
    e. Please provide all available information on the:
    i. costs imposed;
    ii. cost savings created; and
    iii. safety benefits of the changes identified from the current IBR 
standard in the HMR to the most current industry standard.
    f. Please indicate the costs, savings, and benefits to any 
identifiable groups within society, such as specific companies, 
industries, or the public.
    2. Should PHMSA engage IBR organizations through a semi-annual 
public meeting to discuss changes to the IBR standards, codes, or best 
practices?
    a. Should PHMSA consider individual, modal specific meetings to 
address individual transportation modes, IBR standards, codes, or best 
practices?
    3. Please provide any comments related to the development of 
consensus standards, including the ability of the public to participate 
during the technical development process and barriers to accessing 
standards (i.e., cost).

J. EX-Number Display Requirements

    The HMR require all new explosives to be approved by PHMSA or other 
authorized government agency before they can be transported to, from, 
or within the United States (see Sec.  173.56 for further details). An 
approved explosive is assigned an explosives approval number, commonly 
referred to as an ``EX number.'' Consumer fireworks certified under the 
provisions of Sec.  173.65 are assigned a fireworks certification 
number, commonly referred to as an ``FC number,'' which is treated 
equivalently to an EX number for hazard communication purposes. Any 
interested party can search an EX or FC number using the PHMSA 
website's approvals search tool \30\ and find the document that assigns 
the explosive to a hazard class and division, as well as any potential 
special packing instructions for the material.
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    PHMSA requires that the EX or FC number be displayed on the package 
used to transport the explosive or on the hazardous material shipping 
paper (see Sec.  172.320). PHMSA received a comment \31\ to the 2017 
Regulatory Reform Notice from the American Pyrotechnic Association 
(APA) requesting that PHMSA add another EX number display option and 
allow the display of an EX number on a document, such as a ``packing 
slip,'' that accompanies the shipping paper or on the explosive item 
itself rather than the outer packaging. Many explosives approved in 
accordance with the requirements in Sec.  173.56 are approved in 
conjunction with their packaging, and the classification of the 
material is dependent on the type, size, and strength of the package. 
Therefore, PHMSA does not agree with APA that displaying the EX number 
only on the device provides an equivalent level of information, because 
it may create the incorrect impression that the device can be packaged 
at the shipper's discretion, rather than in accordance with the EX 
approval's instructions. The classification of fireworks certified by a 
Fireworks Certification Agency (FCA) in accordance with the APA 87-1 
standard (see Sec. Sec.  173.64 and 173.65), however, are not packaging 
dependent. Therefore, PHMSA is willing to consider revising the HMR to 
permit certain fireworks (UN0336, UN0335, and UN0431) when approved 
under the provisions of APA 87-1 and certified by an FCA to be 
transported with the UN ID number on a packing slip, or only displayed 
on the devices themselves, rather than on the packaging or shipping 
paper. Please note that UN0336, UN0335, and

[[Page 43026]]

UN0431 fireworks approved through the Sec.  173.56 EX approval process 
are not under consideration for this topic because their classification 
may be packaging dependent.
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    To evaluate this revision to the HMR, PHMSA requests comment on the 
following questions:
    1. From an emergency response perspective, how does allowing the 
transportation of fireworks with FC numbers entered on a document other 
than a hazmat shipping paper, or on the explosive item rather than the 
outside packaging, impact the risks of hazardous materials in 
transportation?
    a. Would this change impact the ability to respond in accident 
situations or create confusion during customs examination for import 
shipments?
    b. How will shippers and carriers ensure that the document remains 
associated with the package at all times and available to inspectors 
and emergency responders?
    2. How much time would a fireworks shipper save per shipment if 
these additional options were allowed?
    3. What labor category (use Bureau of Labor Statistics labor 
categories, if possible) of employee would save time per shipment? 
Alternatively, please provide an hourly wage of the type of employee 
responsible for complying.
    4. How many UN0336, UN0335, and UN0431 fireworks shipments would 
likely take advantage of this option per year? Approximations and 
``ballpark'' estimates are acceptable.
    a. Do manufacturers or shippers print/apply the packing slips or 
display on the device at the same time as they print/apply the 
packaging/shipping paper? Will these different processes/exceptions for 
different firework categories be more costly?
    5. What is the approximate breakdown of the modes of transportation 
used for UN0336, UN0335, and UN0431 fireworks shipments (e.g., 50 
percent highway and rail, 45 percent vessel, 5 percent air)?
    a. Would adoption of the marking method discussed in this section 
create harmonization issues with relevant international transport 
regulations? Please explain your reasoning.
    6. Should recordkeeping requirements apply to the accompanying 
document displaying the FC numbers (i.e., packing slip) in the same 
manner as for a shipping paper?

K. Section 173.150 Ethyl Alcohol Exception

    Section 173.150(g) provides exceptions from the packaging and 
shipment requirements of the HMR for limited quantities of beverages, 
food, cosmetics and medicines, medical screening solutions, and 
concentrates containing ethyl alcohol (commonly referred to as ethanol 
or alcohol). Currently, the applicability of the exception in Sec.  
173.150(g) is limited to these items when they are ``sold as retail 
products.'' PHMSA received a comment \32\ to the 2017 Regulatory Reform 
Notice from the Association of Hazmat Shippers (AHS) requesting that 
the applicability of the exception be modified to include materials 
``suitable for retail sale.'' Section 173.150(g) was added to the HMR 
based on special permit DOT SP-9275 in special permit conversion 
rulemaking HM-233C \33\ (79 FR 15033; Mar. 18, 2014). However, DOT SP-
9275, as written at the time of adoption, did not use the phrases 
``consumer commodity,'' ``sold as retail products,'' or ``suitable for 
retail sale.'' When PHMSA adopted DOT SP-9275, the phrase, ``sold as 
retail products,'' was added to limit the use of the exception to 
packages that PHMSA was confident would pose minimal risk in 
transportation.
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    \32\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-1700.
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    AHS believes that limiting applicability of Sec.  173.150(g) to 
items ``sold as retail products'' unnecessarily limits the use of the 
exception and creates undue burden on shippers of other consumer type 
products that contain ethyl alcohol. To evaluate this request, PHMSA 
requests comment on the following questions:
    1. How many shipments are offered under the Sec.  173.150(g) 
exception today on an annual basis? Approximation is acceptable.
    a. What is the average volume of ethyl alcohol solution contained 
in a completed package transported in accordance with Sec.  173.150(g)?
    b. What is the average volume of ethyl alcohol solution per inner 
package transported in accordance with Sec.  173.150(g)?
    2. How many more shipments would be offered annually under the 
provisions of Sec.  173.150(g) if the applicability language was 
changed to state, ``suitable for retail sale'' rather than ``sold as 
retail products?''
    a. What amount of cost savings would shippers achieve if the 
applicability of Sec.  173.150(g) was changed to products ``suitable 
for retail sale?'' Describe this savings amount in any way you can, 
whether that involves an individual shipper or a collection of shippers 
that constitute the distribution channel.
    b. What form would these savings take? Specifically, Sec.  
173.150(g) is a broad exception from the HMR, so it may include 
exceptions from specification packaging, labeling, marking, shipping 
papers, and others. Which exceptions would provide the most savings and 
be most valuable? How much do each of the exceptions contribute to 
reducing costs for shippers? You may describe the cost reductions in 
terms of an example shipment.
    c. How many U.S. shippers use this ethyl alcohol exception? What 
proportion are likely to be small businesses? Approximation is 
acceptable.
    3. Describe scenarios in which a material is not ``sold'' as a 
retail product but is considered ``suitable for retail sale.'' In other 
words, how does the change in wording from ``sold'' to ``suitable'' 
make an impact on the eligibility for the exception?
    a. What types of shipments would now be eligible? Do these 
shipments occur at different points in the supply chain? Do they 
involve different clients or consumers that are not the end users 
(i.e., consumers)?
    b. Might cost savings be passed on generally to consumers (i.e., 
reduced prices)?
    c. Are materials that are ``suitable for retail sale,'' but not 
actually sold as retail products, packaged in packagings equivalent to 
those sold as retail products?
    d. Are there additional types of commodities or products that would 
now be eligible? Would new products be introduced into the market due 
to modifying this exception?
    e. In these scenarios, what types of packages could be used when 
these materials are not shipped ``suitable for retail sale?''
    f. What are the costs, additional risks, and impacts associated 
with adding ``suitable for retail sale'' to Sec.  173.150(g) to first 
responders, shippers, and others in the transport chain?
    4. Regardless of any change to the applicability of the Sec.  
173.150(g) exception, have more shipments of consumer products 
containing ethyl alcohol been offered based on Sec.  173.150(g) after 
the ORM-D reclassification phase out on December 31, 2020?
    5. Would shippers of different modes be differentially affected by 
this exception? Are there different costs or benefits for shipments by 
rail, air, highway, or vessel?
    6. Have increased shipments of ethyl alcohol-based hand sanitizers 
during the COVID-19 public health emergency changed the risk profile 
and usage of this exception? If so, how?

[[Page 43027]]

L. Limited Quantity Training Exception

    The HMR require hazmat employers to properly train and test all 
hazmat employees (Sec.  172.702). Hazmat employees are those who 
directly affect hazardous materials transportation safety by performing 
hazmat functions, including those who prepare shipments, manufacture 
packagings represented as qualified for use with hazardous materials, 
and transport the material (see Sec.  171.8 for the full definition of 
``hazmat employee''). The HMR training requirements are intended to 
ensure that each hazmat employee has familiarity with the general 
provisions of the HMR, can recognize and identify hazardous materials, 
has knowledge of specific requirements of the HMR applicable to 
functions performed by the employee, and has knowledge of emergency 
response information, self-protection measures, and accident prevention 
methods and procedures. The requirements for hazmat employee training 
are found in part 172, subpart H (Sec. Sec.  172.700-172.704) and 
include general awareness, function specific, safety, security, and in-
depth security training. Part 172 subpart H also requires that the 
employer maintain records of the employee's hazmat training, including 
the employee's training certificate, training materials, and instructor 
information for at least three years (see Sec.  172.704(d)). Hazmat 
employees must receive recurrent training at least once every three 
years under Sec.  172.704(c).
    While part 172, subpart H training is generally a basic requirement 
for all hazmat employees, the HMR provide exceptions to Part 172's 
training and recordkeeping requirements, including but not limited to 
exceptions for small, excepted, and de minimis quantities (see 
Sec. Sec.  173.4, 173.4a and 173.4b, respectively), materials of trade 
(see Sec.  173.6), combustible liquids (see Sec.  173.150(f)), and 
small lithium cells and batteries (see Sec.  173.185(c)).
    The AHS submitted a comment \34\ to the 2017 Regulatory Reform 
Docket requesting that PHMSA create a training exception for limited 
quantity (LTD QTY) shipments of hazardous materials by highway, rail, 
and vessel, similar to the exception found in the Transport Canada 
Transport of Dangerous Goods (TDG) regulations section 1.17. To 
evaluate this proposal, PHMSA requests comment on the following 
questions:
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    1. How many hazmat shippers have employees who only are involved in 
pre-transportation functions for LTD QTY material by highway, rail, and 
vessel?
    a. How many hazmat employees in the United States are only involved 
in pre-transportation functions for LTD QTY material by highway, rail, 
and vessel?
    b. Approximately, what are employee turnover rates in the hazardous 
materials shipping industry? Do the costs of training contribute to the 
overall costs of turnover for these employees?
    c. Is hazmat training typically included with other trainings or 
conducted separately?
    2. How many hazardous material carriers have employees who only 
transport LTD QTY material?
    a. How many hazmat employees in the United States are only involved 
in transportation functions for LTD QTY material by highway, rail, and 
vessel?
    b. If these carrier employees, who only transport LTD QTY material, 
were eligible for a training exception, would a carrier reduce the fees 
that they charge to hazmat shippers? Our understanding is that some 
carriers may charge a premium on hazmat shipments in the form of fees 
or higher rates, which may--or may not--apply to LTD QTY shipments.
    c. Is hazmat training typically included with other trainings or 
conducted separately?
    3. How would an LTD QTY-only shipper ensure that LTD QTY 
requirements are met, including quantity limitations and restrictions 
from air transportation, if part 172, subpart H training is not 
required?
    4. How would an LTD QTY-only carrier ensure that LTD QTY 
requirements are met if part 172, subpart H training is not required?
    5. For shippers, how much time would be saved annually per LTD QTY-
only employee if part 172, subpart H training was not required for 
employees who solely prepare LTD QTY shipments?
    a. What categories of employees would save time? (Use Bureau of 
Labor Statistics labor categories, if possible.)
    b. Specifically, how much time is devoted to recordkeeping for 
hazmat training on a per employee basis? We assume this is a proportion 
of the overall amount of training time specified in this question.
    6. How much time would be saved annually for a carrier if part 172, 
subpart H training was not required for drivers who only transport LTD 
QTY material?
    a. What categories of employees would save time? (Use Bureau of 
Labor Statistics labor categories, if possible.)
    7. What is the estimated cost for a shipper to provide LTD QTY-only 
training for an employee?
    8. What is the estimated cost for a carrier to provide LTD QTY-only 
training for an employee? Is hazmat training typically included with 
other trainings or conducted separately?
    9. Would the creation of a training exception for LTD QTY material 
increase the number of hazmat incidents and accidents involving LTD QTY 
material?
    a. Would a training exception for LTD QTY material increase the 
probability that a shipment fails to use the LTD QTY mark/marking? 
Explain.
    b. Please provide the risk analysis conducted to support answers to 
these questions.
    10. The IMDG Code does not provide a training exception for LTD QTY 
material.
    a. Would creating an exception from part 172, subpart H training 
requirements for LTD QTY shippers and carriers conflict with the IMDG 
Code and create barriers to international vessel commerce?
    b. How will shippers and carriers ensure that employees who prepare 
LTD QTY shipments transported in accordance with the IMDG Code for 
vessel transportation meet IMDG Code training requirements?
    11. Do hazmat shippers and carriers tend to use consultants or 
contractors to deliver hazmat training for hazmat employees? Or 
alternatively, do they tend to conduct their own training ``in-house?'' 
What is the difference in cost between hiring an outside trainer and 
conducting in-house training? Are there ways to reduce the cost of 
training when the required training is limited to LTD QTY shipments?
    12. Rather than a training exception for all LTD QTY, should PHMSA 
limit a training exception to only certain LTD QTY materials, e.g., 
Class 3, Division 4.1 and Class 9? Explain.
    13. For shippers and carriers who operate in Canada, please provide 
any information available to you relevant to your experiences utilizing 
this exception in Canada.

M. Exceptions for Small Quantities of Division 4.3, PG I Material

    Division 4.3 dangerous when wet materials react, sometimes 
violently, with water. Communication of a material's dangerous when wet 
characteristics is therefore crucial to preventing inappropriate 
emergency response (e.g., attempting to suppress a fire involving 
Division 4.3 materials with water). Due to the hazard these materials 
present, Division 4.3 materials

[[Page 43028]]

are listed in Table 1 for placarding in Sec.  172.504, meaning that 
placards are required on a vehicle transporting of any amount of a 
Division 4.3 material, unless the material is being transported in 
accordance with an exception, such as small quantity (Sec.  173.4), 
excepted quantity (Sec.  173.4a), de minimis (Sec.  173.4b), limited 
quantity (Sec.  173.151) or materials of trade (Sec.  173.6). Division 
4.3, PG I materials present an especially significant hazard in 
transportation and are generally not eligible for limited quantity, 
small quantity, excepted quantity, de minimis, or material of trade 
exceptions.
    However, PHMSA recognizes that some Division 4.3, PG I materials 
are packaged in such a way and transported in such small quantities 
that they present limited risk in transportation. Accordingly, PHMSA 
issued a Competent Authority (CA) approval CA1996100010 \35\ to the 
Dexsil Corporation, in accordance with Sec.  173.4(c), to allow the 
transportation of test kits containing very small quantities of 
Division 4.3, PG I material under the provisions of the Sec.  173.4 
small quantity exception. This exception provides users of the test 
kits in unopened packages relief from many HMR requirements, including 
training, placarding, and security plans. The USWAG submitted a comment 
\36\ to the 2017 Regulatory Reform Notice requesting that PHMSA adopt 
the provisions of CA1996100010 into the HMR for general use or expand 
the small quantity exception to include Division 4.3, PG I material.
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    \35\ https://www.phmsa.dot.gov/approvals-and-permits/hazmat/file-serve/approval/0_CA1996100010_2016100114.pdf/4197059.
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    USWAG additionally requested that PHMSA modify the security plan 
requirements for Division 4.3 materials. Currently, the HMR security 
plan requirements found in part 172, subpart I (Sec. Sec.  172.800-
172.822) require that a shipper or carrier who offers or transports an 
amount of Division 4.3 material that requires placarding must develop a 
security plan. As discussed above, any quantity of a Division 4.3, PG I 
material requires placarding and therefore a security plan (see Sec.  
172.800(b)(9)). USWAG describes this as unduly burdensome for 
electrical utilities who may transport very small quantities of 
Division 4.3, PG I material in test kits that no longer fall under 
CA1996100010 due to re-packaging. USWAG requests that PHMSA create a 
threshold amount of Division 4.3 offered or transported at one time for 
the security plan requirements to apply and suggests one (1) pound as a 
starting point for discussion. To evaluate USWAG's requests, PHMSA 
requests comment on the following questions:
Authorization To Transport Division 4.3, PG I Materials in Accordance 
With Sec.  173.4
    1. How many shipments of Division 4.3, PG I material are 
transported under the provisions of CA1996100010 annually?
    2. How many companies transport Division 4.3, PG I material under 
the provisions of CA1996100010 annually?
    3. Do you support adoption of the provisions of CA1996100010 into 
the HMR? Explain.
    a. What specific provisions in CA1996 (inner package quantity, 
completed package quantity, packaging type, etc.) are appropriate for 
inclusion in the HMR? What specific provisions are not?
    b. What specific safety concerns exist for transporting Division 
4.3 PG I material in accordance with the small quantity exception?
    4. Do you support a modification of the HMR to transport Division 
4.3 PG I material in accordance with the Sec.  173.4 small quantity 
exception without a Competent Authority Approval?
    a. If yes, please provide justification based on relevant technical 
and scientific data known to you.
    b. If yes, please provide any available information related to the 
costs and benefits of your proposed action in general, and identifiable 
groups that are impacted in particular.
    c. If yes, please describe the effect of your proposed action on 
the quality of the natural and social environments.
    d. If no, please tell us why you are against expanding this small 
quantity exception.
Creation of a New Threshold for Security Plans for Division 4.3 
Materials
    5. In general, how much does it cost to create a security plan for 
highway carriers of Division 4.3 materials? What would be a low-end 
estimate and a high-end estimate?
    a. We understand the cost may depend on a variety of factors--what 
are the factors that drive the cost?
    b. If your knowledge is limited to your company's experience, 
provide a general estimate relevant to your company's experience.
    c. What type of recurring costs do firms incur to maintain, store, 
or update security plans?
    d. Do security plan costs differ by transport mode or by individual 
material?
    6. How many companies are required to create security plans solely 
to offer or transport Division 4.3 materials?
    a. Of these companies, how many only transport Division 4.3 
material in quantities less than 1 lb. per vehicle?
    i. Of these companies, how much time is spent developing and 
updating a security plan for the <1 lb. of Division 4.3 material?
    ii. What type of employees spend time developing and updating 
security plans? (Use Bureau of Labor Statistics labor categories, if 
possible.)
    iii. Do these companies generally contract for a security plan 
developed by third party consultants? Is the decision to contract for 
the security plan due to limited security expertise within these 
companies?
    7. Is 1 lb. a reasonable threshold for security concerns that 
should be addressed through a security plan for Division 4.3 material?
    a. Please provide justification for your support or opposition to a 
1 lb. threshold, including a risk analysis that describes the relative 
hazards presented by 1 lb. of different Division 4.3 materials, 
including those that generate a flammable gas and those that generate a 
poisonous gas.
    b. If you oppose the creation of a 1 lb. threshold for security 
plans for Division 4.3 material, provide an alternative and 
justification for the alternative threshold.
    8. How many kits are typically transported in a utility vehicle 
during day-to-day operations? Rather than a weight threshold, would it 
be reasonable for PHMSA to develop a security plan threshold based on a 
specific number of kits?
    a. Please provide justification for your support or opposition to a 
threshold based on number of kits, including a risk analysis that 
describes the relative hazards presented by your suggested number of 
kits that would trigger a security plan, including those that generate 
a flammable gas and those that generate a poisonous gas.

N. Recycling Safety Devices

    Section 173.166(c) requires that the EX-number assigned to a 
Division 1.4G safety device (e.g., air bag inflators and seat belt 
pretensioners--see definition in Sec.  173.166 for further details) 
must be entered on the hazmat shipping paper. Section 173.166(d)(4) 
provides an exception to this requirement when the safety devices are 
shipped to a recycling or waste disposal facility.

[[Page 43029]]

    In 2014, PHMSA published Letter of Interpretation 13-0189 \37\ that 
states safety devices shipped for reuse can use the Sec.  173.166(d)(4) 
exception and may be shipped without the EX-number on the shipping 
paper. On October 9, 2017, COSTHA and North American Automotive Hazmat 
Action Committee (NAAHAC) submitted petition P-1708 \38\ requesting 
that PHMSA revise Sec.  173.166(d)(4) by inserting the word ``metal'' 
in front of the word ``recycling.'' COSTHA and NAAHAC believe that 
PHMSA's interpretation of the scope of the exception in Sec.  
173.166(d)(4), as discussed in Letter of Interpretation 13-0189, is 
incorrect. Additionally, COSTHA and NAAHAC believe this interpretation 
indirectly supports reuse of safety devices, which they do not support.
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    \37\ https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2013/130189.pdf.
    \38\ https://www.regulations.gov/document?D=PHMSA-2017-0139-0001.
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    The intent of the change requested by P-1708 would be to limit the 
exception provided in Sec.  173.166(d)(4) to shipments related to reuse 
of the metal components, rather than reuse or refurbishment of the 
entire safety device. COSTHA and NAAHAC believe that allowing 
transportation of safety devices for reuse without EX numbers entered 
on the shipping paper will cause several issues. These include 
breakdowns in automotive manufacturer's traceability databases used 
during automotive recalls, increase in consumer safety risks, and 
violations of the Federal Motor Vehicle Safety Standards (FMVSS) if 
inappropriate or counterfeit safety devices are installed in a vehicle.
    Additionally, COSTHA submitted a comment \39\ to the 2017 
Regulatory Reform Notice requesting that PHMSA act on P-1708. To 
evaluate this change, PHMSA requests comment on the following 
questions:
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    \39\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2393.
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    1. Are materials other than metal recovered from safety devices 
through the recycling process? If so, would the insertion of the word 
``metal'' into Sec.  173.166(d)(4) limit the ability to recover non-
metal materials and the economic value they may have? Would it result 
in curtailing or even stopping the recovery of non-metal materials? If 
so, to what extent?
    2. How many salvaged, serviceable 1.4G safety devices are shipped 
each year? How many are for metal recycling, and how many are for 
reuse?
    3. Is it possible to determine the hazard classification (Class 9 
vs Division 1.4G) and EX number, if applicable, of a serviceable safety 
device pulled out of a vehicle?
    a. Are there identifying markings on the safety device or module 
itself (e.g., stock number, product code)?
    b. How much time does it take to determine the hazard 
classification and EX number, if applicable, of serviceable safety 
device removed of a vehicle? Qualitatively, is this process of 
determining the hazard classification and EX number, if applicable, 
burdensome or is it relatively easy?
    4. Would a salvage yard or other such business stop transporting or 
shipping serviceable 1.4G safety devices to consumers for reuse if they 
were required to determine and enter the EX number on a shipping paper? 
What percentage of such businesses would continue selling reused 
serviceable safety devices despite the additional expense of 
determining and entering the EX number?
    5. The FMVSS generally permit serviceable safety devices to be (re-
)installed into a motor vehicle, provided the safety device is (re-
)installed into a vehicle of the correct make/model and is not subject 
to any recalls. How will requiring entry of the EX number on a shipping 
paper for serviceable airbags being shipped for reuse address concerns 
related to the National Highway Traffic Safety Administration's FMVSS?
    6. Are there any technical standards describing best practices or 
requirements that ensure the safety of reused safety devices?
    7. How will consumers be affected by the proposed change to add the 
word ``metal?'' Is there the potential for higher costs to consumers 
(i.e., through reduced consumer surplus) if salvaged safety devices are 
rendered unavailable for reuse? Put another way, are there economic 
impacts to consumers if replacement safety devices must be purchased as 
newly manufactured rather than salvaged?
    8. What is the extent of possible impacts on consumer safety? For 
example, to what extent are consumers currently exposed to purchasing 
incompatible, damaged, or counterfeit safety devices?
    9. Are you aware of any academic or other research that approaches 
these issues from a cost/benefit perspective? Avoided damages from car 
accidents are accounted for as ``benefits,'' whereas ``costs'' would 
include the differential between newly manufactured safety devices and 
salvaged safety devices. Is it possible to quantify and/or monetize 
these potential impacts?
    10. Are there alternative ways to address the issues raised in P-
1708 and associated comment? What additional agencies or organizations 
should be involved in decision-making? What efforts must be 
coordinated?
    11. What impacts would adoption of the COSTHA proposal have on 
other federal regulation, or state or local regulations?
    12. Are EX-numbers used for tracking and tracing these devices 
through the supply chain?

O. Creation of Basic Description and Shipping Description Definitions

    The HMR contain detailed instructions for the information required 
to appear on a hazardous material shipping paper in part 172, subpart C 
(Sec. Sec.  172.200-205). The core requirement of a hazardous material 
shipping paper is the information referred to as the ``basic 
description'' (see Sec. Sec.  172.202(a)(1)-(4) and 172.202(b)). The 
four elements of the basic description are the UN identification number 
(UN ID number), proper shipping name, hazard class, and packing group. 
This information must be entered in this specific order, and no 
additional information is permitted to be interspersed in between these 
four elements unless specifically authorized. Although Sec.  172.202(b) 
describes the information required by Sec.  172.202(a)(1)-(4) as the 
``basic description,'' there is no definition for the term ``basic 
description'' in Sec.  171.8, the main definition section of the HMR.
    Beyond the basic description, additional information is required to 
complete the full shipping paper entry for a hazardous material. This 
additional information includes the number and type of packages, 
quantity of material, and special information required by Sec.  
172.203, including the ``RQ'' notation for hazardous substances, and 
identity of radionuclides for Class 7 material, among others.
    In 2015, the Dangerous Goods Trainers Association (DGTA) submitted 
a petition \40\ (P-1655) to PHMSA to create definitions in Sec.  171.8 
for the ``basic description'' (information required by Sec.  
172.202(a)(1)-(4)) and the ``shipping description'' (basic description 
and all other information required to appear on the hazmat shipping 
paper). DGTA stated their belief that the creation of these definitions 
and accompanying editorial revisions to the shipping paper language in 
Sec. Sec.  172.201 and 172.202 would

[[Page 43030]]

increase clarity of the HMR and decrease confusion for shipping paper 
preparers. Please note that PHMSA is not contemplating changing the 
requirements for what information appears on a shipping paper; rather, 
we are evaluating the creation of definitions to clarify the existing 
requirements. To evaluate this petition, PHMSA requests comment on the 
following questions:
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    \40\ https://www.regulations.gov/docket?D=PHMSA-2015-0129.
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    1. Would the creation of definitions for ``basic description'' and 
``shipping description'' in Sec.  171.8 as described above increase the 
clarity of the HMR? Why or why not?
    a. Is there uncertainty or confusion among regulated entities or 
enforcement officials related to the information required to appear on 
a hazardous material shipping paper?
    b. To what degree would the creation of definitions for these terms 
increase compliance with shipping paper requirements?
    c. Should the definitions of ``basic description'' and ``shipping 
description'' be different that those presented above?
    d. Would the creation of the definitions as discussed improve the 
international harmonization process?
    2. Does any identified uncertainty or confusion related to the 
information required to appear on a hazardous material shipping paper 
result in ``frustrated'' shipments and delay?
    a. Is there an estimate of the costs of delay to the shipper, 
carrier, freight forwarder, or customer? This may include estimates of 
the freight value of time, as well as any fees or surcharges related to 
resolving alleged non-compliance.
    3. Should these definitions be added to Sec.  171.8? If not, what 
section should they be added to?

P. Removal of the 60-Day Renewal Requirement for Approvals and Special 
Permits

    PHMSA issues renewals of special permits and approvals in 
accordance with the provisions of Sec. Sec.  107.109 and 107.705, 
respectively. Sections 107.109(b) and 107.705(c) authorize the 
continued use of the special permit or approval until final 
administrative action is taken on the renewal application, provided 
that the applicant requests renewal at least 60 days before the special 
permit or approval expires. PHMSA understands that some stakeholders 
believe that the requirement to apply for renewal at least 60 days 
before expiration may be too burdensome on the regulated community. 
PHMSA is considering changing the requirement to authorize continued 
use of the special permit or approval until final administrative action 
is taken on the renewal application, provided the applicant applies for 
renewal before the special permit or approval expires.
    1. Do you support authorizing continued use of special permits and 
approvals until final administrative action is taken on the renewal 
application, provided the applicant requests renewal prior to the 
expiration date? Explain.
    2. Would this regulatory flexibility provide any quantifiable 
monetary or other benefits for a holder of a special permit or 
approval? If so, please provide information related to any known 
benefits or decreased costs.
    3. What safety concerns are there for allowing continued use of a 
special permit or approval beyond its expiration while a renewal 
application is being processed?
    4. Would such continued use of a special permit or approval cause 
any potential complications for the enforcement of HMR requirements by 
state and local partners?

Q. Design Certifying Engineer Experience

    Design Certifying Engineers (DCEs) are required to review and 
approve the design of specification cargo tanks and PHMSA is 
considering whether to require that a DCE perform a similar role for 
tank cars. DCEs, as defined in Sec.  171.8, are required to register 
with the Department and meet education and experience requirements. 
Specifically, for cargo tanks, a DCE is required to meet one of the 
following conditions:
    (1) Has an engineering degree and one year of work experience in 
cargo tank structural or mechanical design;
    (2) Is currently registered as a professional engineer by 
appropriate authority of a state of the United States or a province of 
Canada; or
    (3) Has at least three years' experience in performing the duties 
of a DCE prior to September 1, 1991.
    PHMSA would consider an alternate definition for tank car DCEs that 
mirrors the existing cargo tank definition, except we would not include 
the clause in (3) that permits individuals who do not meet the criteria 
in (1) and (2) to work as DCEs based on their historical status.
    The current definition of DCE allows professional engineers with no 
experience in structural or mechanical design to register as a DCE and 
certify the design of a cargo tank, and PHMSA is considering the same 
for tank cars to maintain consistency for the definition. PHMSA, FMCSA, 
and FRA request comment on the following questions to evaluate the 
current state of the DCE community:
    1. Are there any professional engineers who had no previous 
experience in cargo tank structural or mechanical design currently 
registered with the Department as a DCE for cargo tanks? Explain.
    2. Is a professional engineer with no experience in cargo tank 
structural or mechanical design capable of adequately reviewing and 
certifying a cargo tank design?
    3. Is a professional engineer with no experience in tank car 
structural or mechanical design capable of adequately reviewing and 
certifying a tank car design?
    4. Do you support adding a one-year experience requirement for 
professional engineers seeking to become DCEs? Explain. For example, 
``Is currently registered as a professional engineer by appropriate 
authority of a state of the United States or a province of Canada and 
has at least one year of work experience in cargo tank/tank car 
structural or mechanical design.'' Why or why not?

R. Oxidizing Gases by Air

    In 2007, PHMSA modified the requirements for the transportation of 
compressed oxygen and other oxidizing gases by aircraft in rulemaking 
HM-224B \41\ (72 FR 4442; Jan. 31, 2007). This final rule created a 
requirement to transport oxidizing gas cylinders in a flame-proof, 
thermally resistant outer packaging, known as a DOT31FP packaging (see 
Sec. Sec.  173.302(f)(5) and 173.304(f)(5). When a package containing a 
compressed gas cylinder is exposed to fire on board an aircraft, the 
high temperatures cause the pressure inside the cylinder to increase. 
Eventually, the pressure reaches the ``set-to-discharge'' pressure for 
the cylinder's pressure relief device (PRD), causing the PRD to 
activate in order to vent the contents of the cylinder to prevent a 
catastrophic failure of the cylinder. In an aircraft fire, activation 
of a PRD for an oxidizing gas cylinder can be counter-productive, 
because the oxidizing gas released from the cylinder will feed the fire 
and further endanger the aircraft. Many aircraft cargo compartments do 
not have an active fire suppression systems installed. The DOT31FP 
packaging is designed to thermally insulate and protect the oxidizing 
gas cylinder from the high temperatures and flame impingement of a 
cargo fire for up to three hours, thereby preventing release of the

[[Page 43031]]

oxidizing gas. This three-hour window is intended to allow the plane to 
land safely, even on a long, over-water flight with no airfields 
available to divert to nearby. Please refer to HM-224B for additional 
information on the development of the DOT31FP thermal protection 
standard.
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    \41\ https://www.govinfo.gov/content/pkg/FR-2007-01-31/pdf/E7-1487.pdf.
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    A4A submitted a comment \42\ to the 2017 Regulatory Reform Notice 
requesting that PHMSA remove the requirement for the DOT31FP packaging 
and allow the transportation of oxidizing gases on aircraft in the ATA 
300 outer packaging commonly used for the transportation of oxidizing 
gas cylinders prior to 1999, and then required for oxygen cylinders 
from 1999-2007 (see HM-224A; \43\ 64 FR 45388, published Aug. 19, 
1999). As discussed in HM-224A (see 64 FR 45392), testing conducted on 
the ATA 300 outer packaging demonstrated the packaging's ability to 
prevent a cylinder from reaching a temperature that would activate the 
PRD for approximately one hour when tested in the 400 [deg]F oven used 
to simulate aircraft fire conditions.
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    \42\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2750.
    \43\ https://www.govinfo.gov/content/pkg/FR-1999-08-19/pdf/99-21187.pdf.
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    A4A requests that PHMSA either remove the requirement to use 
DOT31FP packaging for shipments of oxidizing gas and replace it with an 
option to use either the DOT31FP package or the ATA 300 packaging for 
domestic flights within the United States, or flights that are always 
within one hour of a divert airfield; or remove the requirement to use 
DOT31FP packaging and replace it with an option to use the DOT31FP 
package for ATA 300 packaging for all flights. A4A states that the ATA 
300 packaging provides an acceptable level of safety while 
significantly reducing the cost of transporting oxidizing gases on 
aircraft. PHMSA requests comment on the following questions to evaluate 
A4A's request:
    1. If PHMSA adopted A4A's request to remove the DOT31FP packaging 
requirements as the only packaging for transporting oxidizing gases on 
domestic flights or flights with short diversion times, how would 
airlines prevent oxidizing gas packages from being placed on 
international/long diversion time flights?
    a. What is the likelihood that an ATA 300 packaging would be used 
unintentionally on international/long division time flights?
    b. What actions would an operator take if ATA 300 packaging were 
used unintentionally on international/long diversion time flights?
    2. If PHMSA adopted A4A's request to remove the DOT31FP packaging 
requirements as the only packaging on transporting oxidizing gases for 
domestic flights or flights with short diversion times, how many ATA 
300 packages containing oxidizing gases would be shipped per year?
    3. How many packages containing oxidizing gases have been shipped 
on aircraft per year since the use of DOT 31FP packaging was required?
    4. How many packages containing oxidizing gas were shipped on 
aircraft from 1996 to 2007?
    5. Are commenters aware of any incidents, in the United States or 
elsewhere in the world, where DOT31FP packages containing cylinders of 
oxidizing gases were exposed to fire conditions?
    6. If PHMSA adopted A4A's request to remove the DOT31FP packaging 
requirements as the only packaging for transporting oxidizing gases on 
domestic flights or flights with short diversion times, please provide 
quantified economic savings and identify which parties would benefit. 
This estimation should detail the differential in costs between DOT31FP 
and ATA 300 packaging, as well as the number of packagings that 
currently are in use and expected to be used in the future.
    7. Based on the hour-long resistance of the ATA 300 packaging to 
fire, how long of a diversion time would be acceptable to ensure a safe 
landing in event of a cargo fire?
    8. PHMSA and FAA are aware that checked passenger baggage often 
contains hazardous materials for personal use authorized in Sec.  
175.10, and potentially may contain hazardous material not authorized 
for transportation in passenger baggage (e.g., spare lithium 
batteries).
    a. If PHMSA adopted A4A's request to remove the DOT31FP packaging 
requirements as the only packaging for transporting oxidizing gases on 
domestic flights or flights with short diversion times, should these 
packages be segregated from passenger baggage?
    b. Should there be other segregation requirements?
    c. Would a requirement to segregate an ATA 300 package containing 
an oxidizing gas from passenger baggage significantly impact the 
projected economic benefit gained by authorizing ATA 300 packages?
    9. Have any air carriers conducted safety management system (SMS) 
risk assessments related to accepting oxidizing gases in ATA 300 
packagings rather than DOT31FP packagings? If so, please provide the 
completed SMS risk assessment to PHMSA for review.
    10. Do airframe manufacturers support A4A's contention that 
replacing DOT31FP packaging with ATA 300 packaging is equivalent when 
considering a cargo fire involving a compressed oxygen cylinder?
    11. Have any interested parties conducted a package performance 
technical analysis that compares the ATA 300 packaging design type with 
the DOT31FP packaging design type in an operations environment? If so, 
please provide this analysis to PHMSA for review.
    a. Would authorization of ATA 300 packaging increase safety risks?
    b. Would it increase the probability of a catastrophic event?
    c. Can this change in risk be quantified?
    d. Are there limitations or operational safeguards that can be 
implemented to achieve an equivalent level of safety when compared to 
the DOT31FP standard?
    12. What percent of cargo compartments in domestic flights or 
flights with short diversion times have active fire suppression systems 
installed?

S. Part 176 Vessel Requirements Update

    Part 176 of the HMR contain instructions and requirements for the 
safe transportation of hazardous materials by vessel. PHMSA received a 
comment \44\ from the SAAMI requesting that PHMSA update part 176. 
Specifically, SAAMI asserts its belief that part 176 does not 
sufficiently differentiate between different vessel types, containers 
versus break bulk, and local offshore work versus long distance 
voyages. PHMSA requests comment on the following questions related to 
updating part 176 requirements:
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    \44\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-1479.
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    1. What specific changes should be made to part 176? Include 
suggested revised regulatory text and a detailed explanation for each 
requested change.
    a. Include information and arguments that support your proposed 
action, including relevant technical and scientific data.
    b. Include any specific cases that support or demonstrate the need 
for your proposed action.
    2. Please provide information about the following:
    a. The costs, savings, and safety or environmental benefits of your 
proposed action to society in general

[[Page 43032]]

and to identifiable groups such as specific companies or industries 
affected by your proposal.
    b. The regulatory burden of your proposed action on small 
businesses, small organizations, small governmental jurisdictions, and 
Indian tribes.
    c. The recordkeeping and reporting burdens of your proposed action 
and whom they would affect.
    d. The direct effects, including preemption effects under 49 U.S.C. 
5125 of Federal Hazardous Materials Transportation law, of your 
proposed action on states, on the relationship between the Federal 
Government and the states, and on the distribution of power and 
responsibilities among the various levels of government. (See 49 CFR 
part 107, subpart C, regarding preemption.)
    e. The effect of your proposed action on the quality of the natural 
and social environments.

T. LTD QTY Shipping Paper Exception by Vessel

    Limited quantity (LTD QTY) materials are subject to hazardous 
material shipping paper requirements when transported by vessel. In 
2011, PHMSA issued final rule HM-215K (76 FR 3307) that initiated a 
phase-out of the ORM-D exception in order to harmonize the HMR with 
international transport standards. The ORM-D classification and 
exceptions are not accepted internationally. The ORM-D exception has 
been phased out and after December 31, 2020, is no longer valid for 
transportation (see Sec.  172.316). ``ORM-D material'' meant a material 
such as a consumer commodity; cartridges, small arms; cartridges, power 
devices (used to project fastening devices); cartridges for tools, 
blank; and cases; and cartridge, empty with primer, which, although 
otherwise subject to the regulations of the HMR, presented a limited 
hazard during transportation due to its form, quantity and packaging.
    The ORM-D exception had very similar quantity limits and 
applicability to the LTD QTY exception, except that LTD QTY can 
encompass materials not in a form intended or suitable for sale through 
retail sales agencies or instrumentalities for consumption by 
individuals for purposes of personal care or household use (i.e., the 
LTD QTY exception is based on the classification and quantity of the 
material, not the end use of the product like ORM-D). One significant 
difference between the ORM-D exception and LTD QTY is that the ORM-D 
exception does not require shipping papers for vessel transportation. 
The Sporting Arms and Ammunition Manufacturer's Institute (SAAMI) 
submitted a comment \45\ to the 2017 Regulatory Reform Notice 
requesting that PHMSA remove the requirement for shipping papers for 
LTD QTY materials transported by vessel. SAAMI states that this would 
reduce the burden of compliance with the HMR for domestic vessel 
transportation. In order to evaluate this request, PHMSA requests 
comment on the following questions:
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    \45\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-1479.
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    1. How many ORM-D shipments are offered for domestic vessel 
transportation annually?
    2. How many LTD QTY shipments are offered for domestic vessel 
transportation annually?
    3. How much time would be saved by offerors and carriers per 
shipment if the HMR no longer required shipping papers for domestic 
vessel transportation of LTD QTY material? What categories of employees 
would save time? (Use Bureau of Labor Statistics labor categories, if 
possible.)
    4. The IMDG Code does not offer a shipping paper exception for LTD 
QTY material. Would the creation of a shipping paper exception in the 
HMR for LTD QTY shipments via vessel create additional confusion and 
frustration because of a lack of alignment with international 
standards?
    5. Please describe the number of packages, hazardous materials 
involved, number of shipments per year, and origin/destination pairs 
for domestic vessel shipments projected to use this exception.
    6. Do LTD QTY shipments that are offered for domestic vessel 
transportation differ significantly by vessel type? Is this relevant 
for the transmission of shipping papers?
    7. Do the recipients of LTD QTY shipments rely on shipping papers 
for tracking and tracing purposes?

U. Convention for Safe Containers Data Plate and Inspection 
Requirements

    The USCG requires safety approvals, periodic inspections, and 
markings for shipping containers used in international commerce (see 49 
CFR parts 450-453). Compliance with these requirements is indicated by 
the presence of a Convention for Safe Containers (CSC) safety approval 
data plate on the freight container.
    Shipping containers used exclusively in domestic commerce are not 
subject to this requirement. USCG has identified this as a potential 
safety issue for hazardous materials transported domestically. 
Hazardous materials carried in structurally deficient shipping 
containers increase the risk of unintentional release of the material 
to the environment during all modes of transportation. The HMR 
currently require that all shipping containers used to transport Class 
1 (except Division 1.4) explosive material by vessel must be 
structurally serviceable and bear a current CSC safety approval data 
plate (see Sec.  176.172). To address USCG's concern regarding 
structurally deficient shipping containers used in domestic commerce, 
PHMSA is considering expanding the requirement in Sec.  176.172 to all 
hazardous materials transported by vessel. Although this requirement is 
applicable specifically to vessel transportation, freight containers 
are commonly transported by highway and rail as well, so an improvement 
in container integrity will benefit multiple modes of transportation. 
In order to evaluate this potential revision to the HMR, PHMSA requests 
comment on the following questions:
    1. How many shipping containers are in use in domestic-only 
transportation?
    2. How many domestic-only shipping containers do not have a current 
CSC safety approval data plate?
    3. Do you support requiring all domestic-only shipping containers 
used to transport hazardous materials to maintain a current CSC safety 
approval data plate? Explain. If this should not apply to all hazardous 
materials, which materials should be covered by expanded applicability 
of the data plate requirement for shipping containers?
    4. What is the annual cost for an inspection and certification of a 
container for safety approval and display of a CSC data plate?
    5. What are the most frequented domestic-only commerce routes where 
shipping containers without current CSC safety data plates are used to 
transport hazardous materials? Are any of these routes in close 
proximity to vulnerable communities where release or incidents would 
have potentially disproportionate impacts?
    6. Are shipping containers swapped between domestic-only and 
international shipping? If so, how do shippers prepare these containers 
for inspection and marking differently than containers used only for 
international shipping?
    7. Is the shipper or transporter responsible for affixing the CSC 
safety approval data plate on the container?

V. Identification of Freight Containers in Rail Transportation

    Proper emergency response to a hazardous materials incident begins 
with identification of the types and quantities of the hazardous 
material

[[Page 43033]]

involved in the incident. The HMR require several types of hazard 
communication intended to communicate the hazards present in a 
shipment, including hazard class labels and placards that communicate 
the general type of hazard present, and UN identification number (UN 
ID) markings that communicate the specific material in the packaging, 
vehicle, or freight container. A shipping document that identifies the 
materials carried onboard must also be available for use in emergencies 
or inspection scenarios.
    Rail transportation presents unique challenges for emergency 
response based on the length of a train and the potential for chaotic 
accident scenes after a derailment or collision. Emergency response 
efforts for rail incidents typically involve the Notice to Train Crew, 
also known as a train consist, a document carried by the train crew 
(see Sec.  174.26). This document identifies the current position in 
the train of each rail car containing a hazardous material and provides 
the hazardous material shipping paper information and emergency 
response information required under part 172 of the HMR. Emergency 
responders can use this train consist information to identify the 
contents of a rail car based on its position in the train and unique 
identifier markings on the rail car, even if the placards and UN ID 
markings are obscured or destroyed during the accident.
    Use of train consist information in this way depends on the ability 
of the emergency responder to accurately identify rail cars after an 
accident, which may involve the scattering of the rail cars and the 
freight containers carried by flatcars over a wide geographical area. 
It is PHMSA and FRA's understanding that current industry practice is 
to mark each freight container with a unique identification number to 
track the freight container through the shipping process. The HMR 
require that this unique identification number be entered on the hazmat 
shipping paper when such a mark is present on a freight container (see 
Sec.  172.203(g)(1)). However, the HMR do not require that this marking 
appear on the freight container in a specific location, nor does the 
HMR prescribe any requirements for the durability, legibility, or size 
of this freight car identification marking. This can hinder emergency 
response efforts in an accident, as emergency responders lack a 
consistent way to identify freight containers that have been thrown 
free of the rail cars that carried them. PHMSA requests comment on the 
following questions related to marking a unique identifier on freight 
containers transported by rail:
    1. Do you support creating requirements for the specific location, 
size, durability, and legibility of a freight container's unique 
identifier markings in rail transportation? Why or why not?
    a. In what location(s) should freight container identification 
marks be required to appear to maximize visibility and awareness in 
accident and inspection scenarios?
    b. What minimum size should the markings be?
    c. Are the durability requirements in Sec.  172.304 adequate for 
this marking?
    d. Should there be requirements for a specific background color for 
the marking or a requirement to have the marking clearly contrast from 
the background?
    2. Do you support adoption of the IMO Convention on Safe Containers 
(CSC) marking requirements for freight containers transported by rail?
    a. Would these IMO requirements, if applied to rail transport, 
allow adequate visibility and consistency in accident and inspection 
scenarios?
    3. Would adoption of requirements for location, size, durability, 
and legibility for unique identifier markings on freight containers 
impose costs on the regulated community?
    a. Please identify any costs and additional time burdens that would 
be created by such a requirement. If this requirement creates 
additional time burdens on employees, please identify the labor 
category (use Bureau of Labor Statistics labor categories, if possible) 
of the employees involved and the amount of time spent complying with 
the new requirement would take.
    4. Would this adoption produce quantifiable or monetizable safety 
benefits for communities? Would it produce quantifiable or monetizable 
environmental benefits? Explain.
    5. Would this adoption reduce the number of needed ``response 
hours'' and the associated public burden and costs of response for 
local police, firefighters, or hazmat response units? Explain.
    6. What is the paperwork burden to include unique identifiers for 
freight containers on shipping papers? To what degree are freight 
containers used in rail transportation already marked with these unique 
identifiers?
    7. How consistent are existing marking standards? How significant 
of a change in marking standards would it be for all offerors and 
carriers to adopt more rigorous identification marking requirements?
    8. Describe the record-keeping technology and protocols rail 
carriers use currently to track and trace the identifier markings they 
currently use and place on rail cars.

W. Exceptions for Rail Transport of Lithium Batteries for Purposes of 
Recycling and Disposal

    The HMR provide exceptions for the transportation of lithium cells 
and batteries to recycling and disposal facilities in Sec.  173.185(d). 
To date, the exceptions for transport of lithium cells and batteries 
for purposes of recycling or disposal have been limited to motor 
vehicle transport. The exceptions in Sec.  173.185(d) provide relief 
from the testing and recordkeeping requirements in Sec.  173.185(a), 
and the UN POP packaging requirements in Sec.  173.185(b). Cells and 
batteries transported in accordance with Sec.  173.185(d) must be 
placed in packages meeting the general packaging requirements of 
Sec. Sec.  173.24 and 173.24a, and the cells and batteries must be 
protected from shifting, damage, and short circuits in accordance with 
Sec. Sec.  173.185(b)(2) and 173.185(b)(3)(i). Damaged, defective, or 
recalled (DDR) cells and batteries are not eligible for this exception. 
Currently, lithium batteries shipped for the purposes of recycling or 
disposal may be transported by any mode when fully regulated; however, 
exceptions found in Sec.  173.185(d) are only allowed for highway 
transportation.
    The Rechargeable Battery Association (PRBA) submitted a comment 
\46\ to the 2017 Regulatory Reform Notice requesting that PHMSA review 
this requirement and expand the applicability of the exception to rail 
transportation to accommodate larger shipments of batteries destined 
for recycling and disposal facilities. PHMSA also recognizes that it is 
possible for damaged or defective batteries to enter the transportation 
stream through a manufacturer's recall or recycling program that might 
not be directly related to a battery safety issue (e.g., a consumer 
electronic device has a flawed screen and is recalled, but some of the 
recalled devices also have a damaged battery due to exposure to heat, 
water, impacts, or an inherent flaw in the battery). PHMSA is 
requesting comments on the following questions to evaluate PRBA's 
comment and additional concerns related to the transportation of 
lithium batteries for disposal and recycling:
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    \46\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2826.

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[[Page 43034]]

Rail Transportation of Used Lithium Batteries
    1. How many shipments of lithium batteries destined for recycling 
or disposal are made by rail annually?
    2. How many shipments of lithium batteries for recycling or 
disposal would be made by rail annually if we expanded the exception in 
Sec.  173.185(d) to include rail transportation?
    3. Would more lithium batteries be shipped by rail if the exception 
was expanded to include rail transportation? Or would modifying the 
exception mainly result in existing rail shipments of lithium batteries 
for recycling or disposal shifting to non-UN POP packaging?
    4. What are the cost savings, if any, of a rail shipment of lithium 
batteries for recycling or disposal compared to a motor vehicle 
shipment?
    5. Do existing lithium battery hazard communication requirements 
(including for batteries granted exceptions in Sec.  173.185(c)) 
adequately convey the risk inherent to the transportation of container 
loads of used lithium batteries?
    6. Should a packaging size limit or shipment weight limit be 
implemented for transportation of lithium batteries in accordance with 
Sec.  173.185(d)? If so, what should the limit be?
    7. Are safety risks to the public and railroad employees elevated 
when shipping large volumes of used lithium batteries in containers by 
rail in accordance with this exception? If so, to what extent/
magnitude?
    8. Are there unique risks associated with shipping large volumes of 
lithium batteries by rail, including in containers that are not well 
ventilated? If so, should PHMSA consider additional safety measures and 
hazard communication requirements to reflect those risks, even when 
moving under packaging exceptions in Sec.  173.185?
    9. Would an exception to the provision on specification packaging 
requirements--but not testing and recordkeeping requirements--in Sec.  
173.185(a) enhance the transportation of larger volumes of lithium 
batteries for disposal and recycling while maintaining safety 
protocols? Please explain.
    10. What are the safety benefits, if any, of shipping damaged, 
defective, and recalled (DDR) batteries by rail rather than by motor 
vehicle? Would there be a material impact on the number of incidents or 
the severity of incidents?
General Damaged, Defective, and Recalled Issues
    11. What steps do shippers take to screen devices and batteries 
collected at a retail store or other collection point for DDR 
batteries?
    12. What steps are retailers and device/battery manufacturers 
taking to inform customers about the dangers of DDR batteries?

X. Tank Car Manway Inspections

    Tank cars designed for the transportation of hazardous liquids are 
constructed with an opening large enough to permit the access of a 
person to the inside of the tank, known as a manway. Such openings are 
necessary to permit the entry of a person inside the tank car to 
conduct periodic inspections, repairs, and other operations requiring 
access to the inside of the tank. The manway opening is closed with a 
manway cover, and a gasket is placed between the manway nozzle and the 
manway cover to create a seal that prevents the release of the 
hazardous contents of the tank either in liquid or gaseous form and 
prevents the entry of air or moisture into the tank during 
transportation. Manways are often used (i.e., opened) during the 
loading and unloading of tank cars either to relieve vacuum during 
unloading, or to permit the placement of a hose through which product 
is pumped into the tank during loading.
    The HMR require the person who offers the tank car into 
transportation (i.e., the offeror) to externally visually inspect the 
tank car's gasket(s) to detect any damage or other condition (e.g., 
deterioration) that could make the tank car unsafe for transportation 
(see Sec.  173.31(d)(1)(ii)) as part of the broader process of 
examining the tank car to make sure it is in proper condition and safe 
for transportation prior to shipment (i.e., pre-trip inspection). PHMSA 
understands Sec.  173.31(d)(1)(ii) to require that the manway gasket 
must be visually inspected whenever the tank car is offered into 
transportation regardless of whether the manway was opened or not 
during a loading or unloading operation. On November 14, 2016, PHMSA, 
in consultation with FRA, issued revised Letter of Interpretation 
Reference Number (Ref. No.) 15-0031R,\47\ which states, in part,
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    \47\ https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2016/150031R.pdf.

    . . . without opening a hinged and bolted manway and observing 
the condition of the manway's gasket, there is no way an offeror can 
reasonably perform a visual inspection of the gasket to meet the 
minimum inspection requirement of Sec.  173.31(d)(1)(ii) or know 
that the gasket meets the performance requirements of either 
Sec. Sec.  173.31(d)(2) or 173.24. This rationale applies generally 
to other tank car fittings designed to be opened/removed for the 
purposes of loading or unloading and serve as primary or secondary 
closures (including, for example, plugs or caps on top valves, 
etc.). In order to ensure compliance with these requirements, an 
offeror must remove the bottom outlet cap and open the manway cover 
and inspect the condition of the gasket, regardless of whether the 
offeror used the fitting during a particular loading/unloading 
---------------------------------------------------------------------------
event.

    Dow Chemical \48\ and the American Chemistry Council \49\ (ACC) 
both submitted public comments to the Department of Transportation 
requesting that PHMSA rescind this letter. Dow Chemical and ACC state 
that requiring visual inspection of manway gaskets at the time the tank 
car is offered for transportation may create unanticipated negative 
consequences, including degradation of product purity, formation of a 
flammable atmosphere, increased wear on the manway structure, and 
increased opportunity for human error during closure after inspection.
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    \48\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2701.
    \49\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2706.
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    PHMSA, in consultation with FRA, does not plan to rescind Letter of 
Interpretation Ref. No. 15-0031R at this time. Our position remains 
that a direct external visual inspection of the gasket is the only way 
for an offeror to meet the inspection requirements as written in Sec.  
173.31(d)(1)(ii) to ensure the tank car is safe for transportation. 
However, we also recognize that new technologies and development of new 
practices may allow for more passive means of inspection such that 
opening of the manway to allow for visual inspection of the gasket may 
not be necessary to ensure that the tank car is safe for 
transportation. Since 2017, PHMSA has issued several special permits 
related to the issue of a tank manway gasket inspection to several 
entities, specifically, Phillips 66, Dow Chemical, and Kraton.\50\ A 
special permit is a document issued by the Associate Administrator 
permitting a person to perform a function that is not otherwise 
permitted under the HMR. These special permits authorize replacement of 
the external visual inspection of the manway gasket by periodic 
external inspections (Phillips 66) or by a pressure test and leak 
detection equipment (Dow Chemical and Kraton). For the benefit of the 
reader, copies of

[[Page 43035]]

the special permits have been posted to the docket for this notice.
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    \50\ See DOT-SP 11771, DOT-SP 21098, and DOT-SP 21007, 
respectively.
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    PHMSA believes that it is likely that additional companies besides 
Phillips 66, Dow Chemical, and Kraton are capable of loading and 
unloading tank cars without opening the manway, and therefore may be 
interested in seeking similar special permits or party status to 
existing special permits. PHMSA anticipates evaluating future special 
permit requests and potential regulatory changes to Sec.  173.31(d)(1) 
that would authorize pre-trip inspections of manway gaskets via a 
method other than external visual inspection. We seek a greater 
understanding of the state of the art tank car loading and unloading to 
evaluate options to replace visual tank car manway gasket inspections.
    Based on data collected by FRA, from 2018-2020, 29 percent \51\ of 
non-accident releases (NARs) occur at the manway. The root cause for a 
significant number of these NARs is traced to human error during manway 
closure, improper tool use, or another issue that could be avoided if 
the manway was not opened during loading or unloading. Therefore, PHMSA 
recognizes that it may be in the interest of safety as well as 
reduction of regulatory burden to encourage tank car shippers to keep 
manways closed during loading and unloading, and accordingly allow for 
an alternate method of inspecting the integrity of the manway gasket.
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    \51\ FRA NAR data indicates 338 out of 1164 total NARs in 2018, 
2019, and 2020 occurred at the manway.
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    PHMSA requests comment on the following questions to assist our 
evaluation of special permit requests and potential regulatory 
revisions. PHMSA plans to use this information to better inform its 
evaluation of requests for Special Permits on this topic and, as 
appropriate and in keeping with its standard procedures, in its future 
review of special permits for suitability of their potential inclusion 
in the HMR:
    1. Please present specific alternative methods for verifying the 
manway gasket condition, besides an external visual examination of the 
manway gasket during the pre-trip inspection.
    a. For each method provided, how much does it cost to implement per 
shipment relative to the current method of visual inspection?
    b. Provide any information available to you indicating how this 
method for verifying the manway gasket condition would maintain a level 
of safety at least equivalent to a visual inspection of the gasket 
during the pre-trip inspection.
    c. Are there gasket materials known to remain leak tight over 
multiple trips for specific ladings? If so, describe the gasket 
material/hazardous material lading combination, and the method by which 
multi-trip leak tightness has been validated.
    d. Are there gasket materials known not to remain leak tight over 
multiple trips with specific ladings? If so, describe the gasket 
material/hazardous material lading combination and how usage of such 
gaskets could be eliminated from service in tank cars used in an 
alternate leak tight inspection program.
    2. Are you aware of any accidents or near-miss incidents that could 
have led to fire, explosion, or other hazardous incidents related to 
opening the manway cover as part of the pre-trip inspection? If so, 
please provide all available information relating to the incidents to 
PHMSA.
    3. Please quantify the cost burden associated with product 
degradation caused by introduction of ambient air or moisture into the 
tank during the manway gasket inspection.
    4. How many tank car shipments are made annually that require 
opening the manway solely for the purpose of inspecting the manway 
gasket (i.e., the manway is not involved in any other inspection, 
loading, or unloading purpose)?
    5. How much time is spent, per shipment, opening a manway and 
visually inspecting the gasket? What labor category of employee 
conducts this inspection? (Use Bureau of Labor Statistics labor 
categories, if possible.)
    6. What additional costs are associated with a visual inspection of 
a manway gasket besides the employee's time (e.g., tools, equipment, 
replenishing of inert atmosphere)?
    a. For example, does the manway gasket inspection requirement 
contribute to wear and tear on the tank car components? If yes, please 
describe to what extent this has a material impact.
    b. Does the manway gasket inspection requirement adversely affect 
the quality of the hazardous material commodity (e.g., purity, 
concentrations)? If yes, please elaborate with specific examples.
    7. Given the reliability issues that arise with hinged and bolted 
manway covers, should PHMSA consider phasing out hinged and bolted 
manway covers altogether?
    a. If hinged and bolted manways were no longer authorized on 
general purpose tank cars, how would loading operations need to be 
altered? What would be the costs of altering those loading operations?
    b. Several hazardous materials authorized in general purpose tank 
cars are loaded through the hinged and bolted manway cover. Are there 
materials that can only be loaded using the hinged and bolted manway 
cover?
    c. A fittings plate is an option for loading a tank car without 
operating the hinged and bolted manway cover. Is there other technology 
that would be utilized in place of hinged and bolted manway covers? If 
yes, please describe.
    d. What would be the associated costs of replacing hinged and 
bolted manway covers with a fittings plate or an alternative closure?
    e. What length of transition time would be needed to completely 
remove all hinged and bolted manway covers from tank cars?
    8. A tank car requires a qualification and maintenance program per 
part 180, subpart F. With respect to questions presented in item #7, 
what would be the impact on the tank car's qualification and 
maintenance program if implemented?
    9. How many hazardous material non-accident releases would likely 
be prevented if hinged and bolted manway covers were replaced by a more 
permanent closure?
    10. Could eliminating hinged and bolted manway cover designs remove 
the need to open manways and inspect the gaskets? What are the cost 
savings in terms of time and equipment reliability that might be 
recognized by tank car offerors?

Y. Acid Resistant Manways for DOT 111A100W5 Tank Cars

    Section 179.201-6(b) requires that the top, bottom, and edge of a 
manway cover for a DOT-111A100W5 tank car must be covered by an acid 
resistant material, unless the metal manway cover is made from material 
that is not affected by the lading. In the time since this requirement 
was created, DOT-111A100W5 tank cars have entered service for non-
acidic materials, including sodium hypochlorite. PHMSA received a 
comment \52\ from the 2017 Regulatory Reform Notice from the Olin 
Corporation requesting that PHMSA revise Sec.  179.201-6(b) to require 
that DOT-111A100W5 tank car manway covers instead be covered with a 
material appropriate for the commodity or product, which could include 
non-acidic materials. PHMSA requests comment on the following questions 
to evaluate this comment:
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    \52\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-1444.
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    1. Do companies besides Olin Corporation use DOT-111A100W5 tank 
cars to transport materials other than acids? How many other companies?

[[Page 43036]]

    2. How many DOT-111A100W5 tank cars are impacted by this issue?
    3. If this proposal is adopted, what methods could the owner of a 
DOT-111A100W5 tank car use to inform potential future owners and users 
that the manway lining is not resistant to acids as outlined in Sec.  
179.201-6(b)? Should a new marking or delimiter be adopted to account 
for tank cars with manways that are not made of acid resistant 
material?
    4. What benefits would adopting this proposal provide to DOT-
111A100W5 owners and users? Would this provide a safety benefit by 
requiring the manway lining be resistant to the lading carried in the 
tank car?
    5. Would there be cost savings for manufacturers or purchasers of 
these tank cars due to using less expensive materials for the manway 
covers?
    6. Would it be best to specify the requirements for non-acidic DOT-
111A100W5 tank cars in a special permit rather than the HMR? Explain.
    7. Should a new specification delimiter be created to segregate 
these tank cars from original DOT-111A100W5?
    8. How frequently are these tank cars used for acidic materials? 
For non-acidic materials?
    9. Are these tank cars used for both? Do the manway covers need to 
be re-covered prior to each use, appropriate for the commodity or 
product?

Z. Tank Car Thermal Protection Standard

    DOT-117 tank cars used to transport flammable liquids, including 
crude oil and ethanol, must be constructed with thermal protection 
systems designed to protect the tank car from fire and heat (see 
Sec. Sec.  179.18 and 179.202-6). The thermal protection standard 
establishes the performance requirement of a tank car and thermal 
protection system when exposed to a 1,600 [deg]F pool fire for 100 
minutes, and a 2,200 [deg]F torch fire for 30 minutes (see Appendix B 
to part 179--Procedures for Simulated Pool and Torch-Fire Testing). To 
pass the Part 179, Appendix B tests, the thermal protection systems 
must prevent a rise in temperature above 800 [deg]F on the non-exposed 
side of the test plate. This standard is designed to reduce the 
potential harm to human health and the environment caused from exposure 
to a fire resulting from an accident.
    Norfolk Southern Railway Company (Norfolk Southern) submitted a 
comment \53\ to the 2017 Regulatory Reform Notice, requesting 
modifications to this thermal protection testing. Specifically, Norfolk 
Southern describes research conducted by the Association of American 
Railroads Thermal Blanket Task Force that suggests that doubling the 
pool fire survivability standard is possible using currently available 
thermal protection systems. Norfolk Southern also states that the 
majority of ``DOT-11[7]'' tank cars are being equipped with thermal 
protection systems that do not meet the new Thermal Blanket Task Force 
proposed standard. Norfolk Southern requests that PHMSA adopt a new, 
more stringent thermal protection standard for DOT-117 tank cars that 
would replace the long-standing performance requirements. To evaluate 
this request, PHMSA requests comment on the following questions:
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    \53\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2689.
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    1. What specific change to the HMR is requested to address the 
issue identified by Norfolk Southern?
    2. Task Force Activities
    a. Has the Thermal Blanket Task Force developed a new consensus 
standard for thermal protection? If so, please provide a copy of the 
standard if possible.
    b. Has the Task Force addressed DOT-113 tank cars carrying 
flammable cryogenic material (i.e., Liquified Natural Gas)?
    c. What is the status of any proposed standard currently? What is 
the timeline for finalization?
    3. In general, should PHMSA consider increasing the minimum 100-
minute pool fire standard to 200-minutes or longer in Sec.  179.18(a)? 
Explain.
    a. Should the new standard apply only to new manufacture? Explain. 
If yes, what would be the appropriate timeframe to mandate compliance 
with the 200-minute standard for new manufacture?
    b. Should it apply retroactively? Explain. If yes, what would be 
the appropriate timeframe to retrofit existing tank cars that do not 
meet 200-minute standard?
    c. How does the implementation of the HM-251C ``FAST Act 
Requirements for Flammable Liquids and Rail Tank Cars'' final rule (81 
FR 53935, August 15, 2016) \54\ factor into whether the 200-minute 
standard should be reserved for new manufacture or apply retroactively 
to include retrofitting existing tank cars?
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    \54\ https://www.govinfo.gov/content/pkg/FR-2016-08-15/pdf/2016-19406.pdf.
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    4. Should PHMSA consider reducing the part 179, Appendix B back-
plate temperature acceptance criteria from 800 [deg]F to a new lower 
temperature? Explain.
    a. If so, what should the temperature be? What scientific data 
supports the new acceptance criteria? Please provide the data 
supporting any new acceptance criteria.
    5. Newly constructed DOT-117 tank cars require a \1/2\ inch thermal 
protection blanket per Sec.  179.202-6(b). Norfolk Southern claims new 
DOT-117 tank cars are being equipped with thermal protection material 
that would not achieve their new minimum safety standard. Please 
provide detailed information and justification of this claim.
    a. How many DOT-117 tank cars have been or are being equipped with 
this allegedly insufficient thermal protection material?
    b. What is the insufficient thermal protection material and what 
makes it insufficient or underperform relative to the 200-minute 
standard?
    6. If Norfolk Southern is proposing a new performance standard of 
200 minutes for all tank cars carrying flammable liquid commodities 
that require a Sec.  179.18-compliant thermal protection system, are 
all existing thermally-protected tank cars (e.g., DOT-105s, DOT-112s 
and DOT-117s with approved \1/2\ inch thermal blankets) capable of 
achieving the new standard?
    a. Should the new thermal protection performance standard apply to 
all tank cars requiring thermal protection? Explain.
    b. Is there a subset of higher-risk flammable liquid tank cars for 
which the 200-minute standard would be most appropriate?
    7. Norfolk Southern references a ``recently published AFFTAC'' 
model showing the thermal protection performance can be doubled with 
currently available materials. PHMSA requests the AFFTAC study 
referenced in this comment as well as a summary of the underlying 
assumptions/inputs to those models. PHMSA also requests any additional 
information that will support the Norfolk Southern proposal and the 
AFFTAC study.
    a. Does the thermal model address every currently authorized 
thermal protection material?
    b. Does the thermal model address the various types of steel/
thickness that is authorized by the HMR?
    c. Were Class 2 flammable gases modeled in addition to Class 3 
flammable liquids?
    8. How many tank cars would need to be retrofitted if PHMSA and FRA 
implemented a new thermal protection standard that applied 
retroactively? Please provide separate estimates for flammable liquids 
and other commodities.
    a. How many existing DOT-105, DOT-112, and DOT-117 tank cars

[[Page 43037]]

would be affected by the proposed change?
    9. What is the cost of a thermal blanket that meets the proposed 
standard, compared to thermal blankets that meet the current standard? 
In other words, please express the unit cost of each technology and the 
resulting cost differential.
    10. How much would it cost to manufacture a new tank car to the new 
standard? How much would it cost to retrofit a tank car to meet the new 
standard? Please consider additional labor costs in the case of new 
manufacture vs. retrofit. Please also describe other categories of 
costs and the amount that may be relevant.
    11. If the new 200-minute standard were adopted, what additional 
amount of incident damages could be avoided relative to the current 
100-minute standard? If possible, please express this in qualitative as 
well as quantitative terms, including estimates of the monetary value 
of avoided damages. Please note, avoided damages may include avoided 
damages to property (both public and private), the environment, and 
human health and safety. Related, it could include avoided costs to 
society on the basis that incidents may be more severe, and the 
emergency response more difficult or dangerous, with the baseline 
standard (100 minutes) versus the proposed standard (200 minutes).
    12. Are there specific rail incidents that would have been less 
severe if the 200-minute proposed standard were already achieved? Is 
there a documentation of challenges and impacts to the emergency 
response that resulted from the current 100-minute standard?
    13. Is the proposed 200-minute standard appropriate for all 
hazardous materials that require thermal protection systems, or is 
there a specific reason to apply this standard only to flammable 
liquids?

AA. Unoccupied Locomotive Train Placement

    The HMR require separation between locomotives, occupied cabooses, 
and placarded rail cars (including tank cars) containing hazardous 
materials (see Sec.  174.85) in rail transportation. This separation is 
accomplished by placing non-placarded rail cars, known as ``buffer 
cars,'' between the placarded rail car and the locomotive (also known 
as the engine or power unit) or occupied caboose. The intent of this 
requirement is used to protect the train crew in the engine or caboose 
from hazardous materials released during an accident.
    On January 29, 2020, PHMSA received a petition for rulemaking from 
the Association of American Railroads (AAR), requesting that PHMSA 
amend the requirements in Sec.  174.85.\55\ PHMSA accepted this 
petition for rulemaking and assigned it the identifier P-1741. 
Specifically, AAR requests that PHMSA amend Sec.  174.85 to no longer 
require the use of buffer cars to separate placarded rail cars from 
unoccupied locomotives, also known as unoccupied head end locomotives, 
distributed power units or dead in tow locomotives.
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    \55\ https://www.regulations.gov/document?D=PHMSA-2020-0023-0001.
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    In order to evaluate AAR's request, PHMSA seeks comment on the 
following questions:
    1. Do railroads use distributed power units to transport employees? 
If so, how will railroads ensure that an occupied distributed power 
unit is provided the required buffer cars?
    2. Do you support the creation of operational controls beyond the 
requested revision in P-1741? Why or why not?
    a. Should a distinction for buffer car requirements be drawn 
between unoccupied head-end locomotives, distributed power units, and 
dead-in-tow locomotives?
    b. What operational controls (e.g., locked doors, door tags with a 
message prohibiting entry), if any, are appropriate to identify a 
locomotive as an unoccupied distributed power unit?
    c. Are there any hazard class or divisions that should still 
require compliance with buffer car requirements, even from unoccupied 
distributed power units? If so, how many buffer cars?
    d. If operational controls (e.g., locked doors, door tags), and 
maintenance of buffer car requirements for unoccupied distributed power 
units for certain high hazard materials are proposed, would that impact 
the estimated cost savings projected in the petition? To what extent?
    3. Does removing the requirement for buffer cars around distributed 
power units create any additional risks to railroad employees or the 
general public? Explain.
    4. Across all railroads, how many switching moves occur annually?
    a. If unoccupied locomotives are no longer required to be separated 
from placarded rail cars, how many fewer switching moves would be 
required across all railroads?
    b. If unoccupied locomotives are no longer required to be separated 
from placarded rail cars, how many fewer switching moves would be 
required for Class I, II, and III railroads?
    5. Would other benefits (i.e., increased number of cars in revenue 
service) accrue to railroads if buffer cars are no longer required 
around distributed power units?
    6. Is the estimate of annual savings of $180,000-$450,000 per 
railroad accurate for Class I railroads? Explain.
    a. What are the estimated savings for Class II and Class III 
railroads?
    b. What other costs, if any, are associated with this requirement, 
or is the only quantifiable financial impact the cost savings described 
above? Please describe all other sources of cost savings or costs.
    7. How do railroads acquire buffer cars?
    a. What commodities or materials do buffer cars typically contain? 
Would eliminating the buffer car requirement disproportionally affect 
customers/related entities?
    b. How can the market for buffer cars be described? Who would be 
most affected by eliminating the demand for buffer cars?

BB. Offering a Tank Car After Qualification Expiration

    The HMR require that tank cars used to transport hazardous material 
by rail must be qualified to remain in hazardous material in accordance 
with part 180, subpart F. The maximum intervals for the required 
inspections and tests are listed in Sec.  180.509(c)(3); however, a 
tank car owner may specify shorter test and inspection intervals in 
their tank car test and inspection plan. FRA, based on a high volume of 
requests for guidance, is aware of confusion among the tank car 
community about whether a tank car filled with a hazardous material 
before the expiration of a test or inspection can be offered into 
transportation after the test or inspection's expiration date.
    Section 173.31(a)(3) states: ``No person may fill a tank car 
overdue for periodic inspection with a hazardous material and then 
offer it for transportation.'' This language is similar to that used 
for other packages that require periodic requalification, including 
cylinders (see Sec.  180.205(c)), cargo tanks (see Sec. Sec.  
173.33(a)(3) and 180.407(a)(1)), portable tanks (see Sec.  
173.32(a)(2)), and IBCs (see Sec.  173.35(a)).
    Based on Sec.  173.31(a)(3), PHMSA and FRA have provided the 
guidance that a tank car may be filled prior to expiration of its 
qualification and offered after the qualification interval has expired. 
Historically, FRA has only cited violations of the HMR if an offeror 
loaded a car after its test date has passed and then offered that car 
into

[[Page 43038]]

transportation. However, FRA still receives numerous calls and emails 
seeking guidance on moving a tank car that is loaded prior to the 
requalification date and offered after, which indicates that the 
current language does not adequately address this particular scenario. 
Additionally, PHMSA and FRA are aware that our historical guidance on 
this issue conflicts with current industry practice, which does not 
permit the transportation of a car offered to the railroad after the 
expiration of qualification without a One Time Movement Approval.
    We are seeking comments on whether the language in this paragraph 
should be amended to further clarify how it applies to the scenario 
where tank cars are loaded prior to their requalification date and 
offered after the requalification date has expired. Therefore, PHMSA, 
in consultation with FRA, seeks comment on the following questions:
    1. Is the current language in Sec.  173.31(a)(3) sufficient to 
address the scenario of loading a tank car prior to the next required 
requalification date and offering it after it is overdue for 
requalification?
    2. Should Sec.  173.31(a)(3) be clarified so that it more clearly 
permits the movement of a car that was loaded prior to its required 
requalification date but is now overdue for requalification?
    3. Permitting cars to be loaded prior to expiration of the 
requalification interval and offered after could allow an indefinite 
period of time to pass before the expired car is actually offered into 
transportation, particularly if it was stored on private track for 
months or years. Does this create a potential safety issue?
    4. Should PHMSA consider placing a deadline on the amount of time 
an offeror has to transport a loaded hazmat tank car that is overdue 
for qualification? If so, what should that time limit be? Potential 
time limits to consider are three months, six months, one year, or two 
years. Please provide any safety data or reliability information to 
support the proposed deadline.
    5. Should PHMSA forbid the offering of any loaded tank car that is 
overdue for requalification, regardless of when it was loaded?
    6. Is the practice of filling tank cars prior to expiration of the 
qualification date and then offering the tank car after expiration of 
the qualification date more prevalent in certain industries? If so, 
please describe.

CC. Non-Destructive Examination

    Non-destructive examination (NDE), also known as non-destructive 
testing (NDT), of hazardous materials packaging is a core requirement 
of the HMR for the manufacture and continuing qualification of many 
hazmat packagings, including non-bulk Performance Oriented Packagings, 
compressed gas cylinders, IBCs, cargo tanks, tank cars, and portable 
tanks. However, the HMR does not define the term ``non-destructive 
examination'' and does not have consistent standards for the 
development of NDE plans or qualification for NDE practitioners across 
all packaging types. For example, PHMSA and FRA are aware of confusion 
related to NDE plan development, training, and certification 
requirements for NDE conducted in accordance with the tank car 
qualification requirements found in Sec.  180.509. In order to evaluate 
the creation of a standardized definition and requirements for NDE, 
PHMSA requests comment on the following questions:
    1. Should PHMSA create a definition for non-destructive 
examination? Explain why you support or oppose the creation of a 
definition for NDE.
    2. If you support the creation of a definition for NDE, please 
provide a suggested definition.
    a. What tests should be included in the definition?
    b. Are there commonly accepted definitions for NDE contained in 
widely recognized industry standards? Are there differences between NDE 
definitions in different industries?
    c. Should the definition be package or mode-specific, i.e., should 
the definition apply to all packagings, or only cargo tanks, or tank 
cars, or compressed gas cylinders? Explain your reasoning.
    3. Do you support the creation of a standardized system of NDE plan 
development, employee training, and qualification that would apply to 
all NDE conducted in accordance with the HMR? Why or why not?
    a. Are there existing industry standards and publications that 
could be incorporated by reference into the HMR to create a 
standardized NDE system?
    b. Do you support the incorporation of a particular industry 
standard over others? If so, why?

DD. Updating Requirements for Transporting Hazardous Materials on 
Passenger Carrying Motor Vehicles

    PHMSA is considering updating the requirements of the HMR related 
to transportation of hazardous materials on board commercial passenger-
carrying motor vehicles (e.g., buses, taxis, ride-sharing vehicles) to 
account for new challenges and opportunities in modern transportation. 
Examples of the types of issues PHMSA and FMCSA are aware of in this 
space include the transportation of fireworks and patient medical 
samples in ridesharing vehicles, and transportation of medical oxygen 
cylinders on buses. To begin the process of addressing and updating the 
provisions in Sec.  177.870, PHMSA requests comment on the following 
questions:
    1. What provisions in Sec.  177.870 should be updated or revised 
for clarity? What provisions need to be added? What provisions can be 
removed?
    2. In some cases, transport of hazardous material on passenger-
carrying motor vehicles may be prohibited or regulated by state or 
local governments, or as a matter of corporate policy. Is there a need 
for additional regulation in this area specifically at the federal 
level? Why or why not?
    3. What types and quantities of hazardous materials should be 
authorized for transportation on board passenger-carrying motor 
vehicles?
    4. What types and quantities of hazardous materials should not be 
authorized for transportation on board passenger-carrying vehicles? 
Should PHMSA develop restrictions based on types of packaging, in 
addition to or instead of classification-based restrictions?
    5. Do current hazard communication requirements (marking, labeling, 
placarding, etc.) meet the needs of emergency responders and carriers 
in scenarios where hazardous materials are transported on board 
passenger-carrying vehicles?
    6. What locations on the vehicles should the hazardous material be 
stowed? Options for consideration are on one's person; carried on and 
placed on or near a seat; on the floor; and/or in a storage bin or 
area. Other options for consideration include the distinction between 
the stowage of hazardous materials being transported as cargo and 
hazardous materials being brought on board by passengers or carrier 
employees.
    7. Incidents involving hazardous material on board passenger-
carrying motor vehicles may be underreported. Please share examples of 
incidents fitting this description.
    a. What sort of requirement or regulation would have most likely 
prevented these incidents?
    8. What are appropriate training requirements for drivers of 
passenger-carrying vehicles that transport hazardous materials? What 
would this training cost to implement? How many drivers are likely to 
be affected and need training? In what manner are drivers already being 
trained on awareness and

[[Page 43039]]

handling of hazardous materials carried by passengers or offered as 
cargo?
    9. Are hazardous materials, other than those carried by passengers 
for their personal (non-commercial) use, currently transported on board 
passenger-carrying vehicles?
    a. If so, what are some common scenarios? What types and quantities 
of hazmat?
    10. Should there be exceptions applicable to certain types and 
quantities of hazardous materials being carried by passengers or 
carrier employees (i.e., medical devices) and if so, what should those 
exceptions include?
    11. Do you support adoption of provisions similar to the air 
transportation requirements in Sec.  175.10 to address hazardous 
materials carried on board by passengers for their personal use 
separate from those carried as cargo on board passenger-carrying 
vehicles?
    12. What are the appropriate training requirements for employees, 
other than the driver, of passenger-carrying vehicles that transport 
hazardous materials?
    13. Are passenger-carrying motor vehicle drivers and/or other 
employees trained to recognize hazardous materials that may be 
transported by passengers?
    14. Should the number of people transported on board a motor 
vehicle be considered when determining the types and quantities of 
hazardous materials that are allowed to be carried on board? Explain.

EE. EPA 27 Test Method for Cargo Tanks

    The HMR require annual leakage tests for all MC and DOT 
specification cargo tanks (see Sec.  180.407(c)). The leakage test is 
generally conducted at 80 percent of the tank's maximum authorized 
working pressure (MAWP) (see Sec.  180.407(h)). Section 180.407(h)(2) 
provides an exception to this normal leak test regime for cargo tanks 
used to transport petroleum distillate fuels that are equipped with 
vapor collection equipment. These cargo tanks may be tested in 
accordance with the Environmental Protection Agency's Test Method 27--
Determination of Vapor Tightness of Gasoline Delivery Tank Using 
Pressure-Vacuum Test (EPA Test Method 27). EPA Test Method 27 is 
conducted at a significantly lower pressure (0.6 psig) than would 
normally be required to leak test a DOT 406 cargo tank (2.1-3.2 psig), 
the type of cargo tank most commonly used in gasoline service.
    In 2016, PHMSA issued Letter of Interpretation 16-0048 \56\ on the 
applicability of the exception in Sec.  180.407(h)(2). In this letter, 
PHMSA clarified that the test was restricted to cargo tanks exclusively 
used to transport petroleum distillate fuels (defined in EPA Test 
Method 27 as a petroleum distillate or petroleum distillate/alcohol 
blend having a Reid vapor pressure (RVP) of 27.6 kilopascals or 
greater, which is used as a fuel for internal combustion engines). 
Concurrently, the FMCSA issued a safety bulletin \57\ to raise 
awareness of the applicability of EPA Test Method 27, rather than the 
normal leakage test. Some common petroleum distillate fuels have an RVP 
significantly below 27.6 kilopascals, including diesel fuel.
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    \56\ https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2016/160048.pdf.
    \57\ https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/Use%20of%20EPA%20Method%2027%20Test_Final_11302016.pdf.
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    National Tank Truck Carriers (NTTC) submitted a comment to the 2017 
Regulatory Reform Notice requesting that PHMSA and FMCSA rescind this 
guidance and allow cargo tanks equipped with vapor collection equipment 
and transporting any petroleum distillate fuel, regardless of the 
fuel's RVP, to utilize EPA Test Method 27. PHMSA believes the 
interpretation provided in 2016 is correct based on the requirements in 
the HMR; however, we are willing to consider revisions to the 
applicability of EPA Test Method 27. To evaluate this topic, PHMSA 
requests comment on the following questions:
    1. Is a test pressure of 0.6 psig, when conducted in accordance 
with EPA Test Method 27, sufficient to detect any leak(s) in a cargo 
tank? Please provide all information available to you that supports 
your position.
    2. Prior to the publication of PHMSA's 2016 interpretation and 
related FMCSA safety advisory, what commodities other than gasoline 
were carried in DOT or MC specification cargo tanks that were tested 
via the EPA Test Method 27, rather than the standard Sec.  180.407(h) 
leak test? What percentage of cargo tanks in petroleum distillate fuel 
service are not utilizing Sec.  180.407(h)(2) based on the PHMSA 
interpretation and FMCSA guidance?
    3. What are the cost savings for a cargo tank operator in 
conducting the EPA Test Method 27 instead of a standard Sec.  
180.407(h) leakage test? Please describe all sources of cost savings 
(time savings, tank wear, etc.).
    4. How many DOT or MC specification cargo tanks equipped with vapor 
collection equipment are in use?
    a. Are these tanks used in any service other than dedicated 
gasoline transportation? If yes, what materials are commonly 
transported in these low-pressure cargo tanks?
    b. How many cargo tanks in dedicated gasoline service are in use?
    5. Based on your experience as a Registered Inspector and the 
number of cargo tanks that have undergone the EPA Test Method 27 test 
per calendar year, what is the failure rate for EPA Test Method 27?
    a. What, if any, problems have you observed with the EPA Test 
Method 27? Please explain.
    b. Should a leakage test be performed in accordance with 49 CFR 
180.407(h) in conjunction with EPA Test Method 27? Explain why or why 
not. Please provide information related to increased cost and employee 
time burdens created if a Sec.  180.407(h)(1) leakage test was required 
in addition to the EPA Test Method 27 test.
    c. Does your facility experience any issues of temperature 
stabilization when performing EPA Test Method 27? If yes, please 
explain the nature of the problems observed.
    6. Should the U.S. Department of Transportation formally define 
``petroleum distillate fuels'' for the purpose of determining the 
applicability of the exception in Sec.  180.407(h)? If so, what 
definition should be used?

FF. Mounting Pads for Cargo Tank Damage Protection Devices

    DOT and MC specification cargo tank motor vehicles are required to 
be manufactured with accident damage protection devices that are 
intended to protect valves, piping, and other vulnerable areas of the 
tank from damage in accidents (see Sec. Sec.  178.337-10, 178.338-10 
and 178.345-8). Accident damage protection devices meet the definition 
of ``appurtenance'' (see Sec.  178.320) when applied directly to the 
cargo tank wall because when attached to the cargo tank wall, they have 
no lading retention or containment function and provide no structural 
support to the cargo tank. Appurtenances are required to be attached to 
the cargo tank wall in a specific manner to protect the integrity of 
the tank.
    In 2015, PHMSA issued Letter of Interpretation 15-0049 \58\ to 
Thompson Tank, Inc., in which we confirmed that

[[Page 43040]]

accident damage protection devices are considered appurtenances for the 
purposes of cargo tank construction. In 2016, the Truck Trailer 
Manufacturer's Association (TTMA) submitted an interpretation request, 
asking that PHMSA re-evaluate our response in 15-0049. Specifically, 
TTMA noted that virtually none of the cargo tanks currently in service 
utilize mounting pads for damage protection devices that meet the 2-
inch setback required for appurtenances. PHMSA issued Letter of 
Interpretation 16-0042 \59\ to TTMA, in which we re-affirmed our 
interpretation that accident damage protection devices attached to the 
cargo tank wall are considered appurtenances.
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    \58\ https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2015/150049.pdf.
    \59\ https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/58476/160042.pdf.
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    TTMA submitted a comment \60\ to the 2017 Regulatory Reform Notice 
requesting that PHMSA rescind 15-0049 and 16-0042. TTMA again noted 
that many cargo tanks currently in service do not have mounting pads 
that meet appurtenance mounting requirements.
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    \60\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-1398.
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    PHMSA received a related comment \61\ on cargo tank attachment pads 
from Container Technology Inc. Container Technology states that 
requiring the attachment pad to extend two inches beyond the attached 
structural support or appurtenance is arbitrary and overly 
conservative, especially in scenarios where the weight of the 
attachment is less than the weight of the pad itself. To evaluate TTMA 
and Container Technology Inc.'s comments, PHMSA requests comment on the 
following questions:
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    \61\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2698 (see attachment 5).
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Accident Damage Protection
    1. If accident damage protection devices should not be considered 
under the definition of ``appurtenance'' (see Sec.  178.320), how 
should they be characterized? Please provide justification for your 
response.
    2. How would the cargo tank manufacturing and design industry 
account for the stresses imposed on the cargo tank wall if the accident 
damage protection devices are allowed to be mounted directly to the 
cargo tank wall?
    3. What data is available in support of the practice of attaching 
accident damage protection devices to the cargo tank wall without the 
use of pads? Does this data show that it offers an equivalent level of 
safety to using pads?
    4. What performance standard should apply to the size of attachment 
pads for appurtenances and structural support members for cargo tank 
motor vehicles?
    a. Please supply all structural analysis and scientific data 
available to support a new performance standard.
Mounting Pad 2-Inch Setback Requirement
    5. For a single cargo tank, what is the cost of ensuring that the 
cargo tank attachment pads meet the 2-inch setback requirement? You may 
describe these costs in terms of the needed labor and equipment.
    6. Aggregated to all affected cargo tanks, what is the cost to the 
industry to comply with the 2-inch setback requirement?
    7. Does complying with the 2-inch setback requirement require any 
other design or manufacturing changes to the cargo tanks or mounting 
pads?
    8. What data is available in support of the practice of attaching 
appurtenances, including accident damage protection devices to the 
cargo tank wall without a 2-inch setback? Does this data show that it 
offers an equivalent level of safety to using 2-inch setback?

GG. Cargo Tank Hydrostatic Test Medium

    When hydrostatic pressure tests for cargo tanks are required in 
part 180, subpart H, the HMR require that water or other similar 
viscosity liquid be used as the test medium (see Sec.  
180.407(g)(viii)). PHMSA understands that some stakeholders believe 
that the requirement to use water--or other similar viscosity liquid--
may be unduly restrictive. PHMSA has authorized the use of alternate 
test mediums for portable tank testing (e.g., DOT SP-20294, 20308, and 
16163),\62\ but has not authorized this for cargo tanks. PHMSA requests 
comment on the following questions to evaluate authorizing additional 
liquids for hydrostatic testing cargo tanks:
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    \62\ https://www.phmsa.dot.gov/approvals-and-permits/hazmat/file-serve/offer/SP20294.pdf/2018115089/SP20294;https://www.phmsa.dot.gov/approvals-and-permits/hazmat/file-serve/offer/SP20308.pdf/2019044410/SP20308;https://www.phmsa.dot.gov/approvals-and-permits/hazmat/file-serve/offer/SP16163.pdf/2016086118/SP16163.
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    1. Are there other liquids that may be safely and effectively used 
to hydrostatically test cargo tanks? Explain.
    2. For any liquid(s) identified, what advantages does the material 
provide compared to water or a similar viscosity liquid? Discuss at 
least the economic, environmental, and safety advantages of the 
alternative material.
    3. Do you support authorization to use a material other than water 
or a similar viscosity liquid for cargo tank hydrostatic tests? 
Explain.
    4. Are there situations where the use of water was not suitable for 
a CTMV pressure test? If so, why?
    5. Is it cost effective or beneficial to authorize alternative 
liquids to be used in limited applications for testing and inspecting 
of DOT specification cargo tanks used to transport specific types of 
hazardous material?

HH. Cargo Tank Thickness and Corrosion Inspection Requirements

    Section 180.407(d)(2)(viii) requires all major appurtenances and 
structural attachments on a cargo tank motor vehicle--and those 
elements of the upper coupler assembly that can be inspected without 
dismantling the upper coupler--must be inspected for any corrosion or 
damage that might prevent safe operation. There are currently no 
standards in the HMR to guide this determination for evaluating 
corrosion or damage to major appurtenances, structural attachments, and 
visible upper coupler elements.
    PHMSA and FMCSA request comment on the following questions to 
evaluate the requirements in Sec.  180.407(d)(2)(viii):
    1. Do you support the creation of corrosion standards for visual 
examination, for example: ``The thickness in the corroded areas must 
not be less than 10 percent below the calculated thickness, if 
available, or 10 percent of the nominal thickness of the structural 
attachment, whichever is less, but in no case less than 0.177 inches. 
In addition, the corroded area can be no greater than 10 percent of the 
area of the item being evaluated. King pin wear must be inspected in 
accordance with the manufacturer's inspection procedures.'' Explain.
    a. How frequently would a deficiency or failure be found at the 10 
percent standard mentioned above?
    b. Are the above criteria stricter or less strict than common 
visual inspection practices today? Explain.
    2. When repair is necessary, how long is the cargo tank motor 
vehicle out of use?
    3. How much time does a visual inspection take?
    a. If an inspection is done to a quantified standard, what would be 
the difference in time needed to perform it?
    b. Would additional diagnostic tools or methods be necessary? 
Please describe.

II. Remove Exceptions for Cargo Tank Inspections

    Sections 180.409(b)-(d) provide exceptions from the Registered

[[Page 43041]]

Inspector qualification requirements for cargo tank motor vehicles. It 
is PHMSA and FMCSA's understanding that very few cargo tank motor 
vehicle inspections are conducted under the provisions of Sec.  
180.409(b), (c), and (d). We are concerned these provisions do not 
enhance public safety and may allow unqualified persons to perform 
tests and inspections. We request comment on the following questions to 
evaluate the continued inclusion of the exceptions provided in Sec.  
180.409(b)-(d) in the HMR:
    1. How many cargo tank inspections are conducted annually by 
persons not registered with the Department or not meeting the education 
and/or experience requirements of a ``Registered Inspector'' under the 
provisions of Sec.  180.409(b)-(d)?
    2. Would the removal of the exceptions in Sec.  180.409(b)-(d) from 
the HMR impose any additional costs on cargo tank motor vehicle users? 
Please identify any costs and additional time burdens that would be 
created by such a requirement. If this requirement creates additional 
time burdens on employees, please identify the labor category (use 
Bureau of Labor Statistics labor categories, if possible) of the 
employees involved and the amount of time spent complying with the new 
requirement would take.
    3. Are inspections conducted by those not registered more common 
for cargo tank users/owners in particular geographic or rural areas? 
More common for smaller carriers or firms? If so, please explain.

JJ. Segregation of Detonating Explosives for Highway Transportation

    In the HMR, explosives are required to be segregated from each 
other based on the hazards and likelihood of initiation of different 
explosive types. The intention of these segregation requirements is to 
reduce the overall risk in transportation. The risk factors are encoded 
in the hazard classification of each explosive in the hazard division 
(Division 1.1, 1.2, etc.), and compatibility group (A, B, C, etc.), 
which are assigned to each explosive in its EX-approval. See Sec. Sec.  
173.50 and 173.52 for the definition of each explosive hazard class and 
compatibility group.
    While the HMR's segregation requirements for explosives are usually 
based on hazard class and compatibility group, initiating or primary 
explosives present a particular hazard in transportation due to the 
risk of unintended initiation and must be further segregated from less 
sensitive explosives to avoid accidental explosive propagation in 
transportation. The general segregation requirements for explosives in 
highway transportation are found in the Compatibility Table for Class 1 
(Explosive) Materials under Sec.  177.848(f), and additional 
segregation requirements specific for detonator assemblies, boosters 
with detonators, and detonators are found in Sec.  177.835(g). In Sec.  
177.835(g), the HMR has more conservative, separate requirements for 
detonator assemblies and boosters with detonators compared to the 
requirements for detonators.
    Prior to harmonization with the UN Model Regulations in final rule 
HM-181 \63\ (Dec. 20, 1990, 55 FR 52402), the HMR used non-performance-
based definitions to differentiate between article types. Prior to the 
publication of HM-181, the HMR defined blasting initiators with <10g 
Net Explosive Weight (NEW) (excluding delay and ignition charges) as 
``detonators'' and those with >10g NEW (excluding delay and ignition 
charges) as ``Detonating Primers.'' The term ``Detonating primers'' was 
editorially updated to ``detonating assemblies'' in final rule HM-189M 
(October 1, 1996; 61 FR 51334). Further revisions of section Sec.  
177.835(g) to change energetic classifications from Class A/B/C to 
Divisions 1.1-1.4S, along with other editorial changes, have led to 
confusion about the intent of the section. With the loss of the 10g NEW 
delineation between detonators and detonating primers (now detonator 
assemblies) after the publication of HM-181, and the shift toward 
performance-based classifications, the original regulatory intent has 
been lost and has led to confusion in the regulated community.
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    \63\ https://www.govinfo.gov/content/pkg/FR-1990-12-21/pdf/FR-1990-12-21.pdf#page=138.
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    Detonator assemblies and boosters with detonators are prohibited 
from transportation in the same motor vehicle with Division 1.1, 1.2, 
or 1.3 explosive material (except other detonator assemblies, boosters 
with detonators or detonators), Division 1.4 detonating cord material, 
or Division 1.5 material. Detonators are prohibited from transportation 
in the same motor vehicle with Division 1.1, 1.2, or 1.3 material 
(except other detonators, detonator assemblies or boosters with 
detonators), and Division 1.4 detonating cord material, or Division 1.5 
material, unless the detonators are packed in accordance with one of 
the exceptions in Sec.  177.835(g)(1)-(3).
    PHMSA is considering revising the segregation requirements for 
detonator assemblies to bring them in line with the additional 
flexibility offered to detonators in Sec.  177.835(g)(1)-(3). 
Additionally, PHMSA is considering amending segregation requirements 
for Division 1.4S detonators and developing segregation requirements 
commensurate with the risk presented by articles similar to detonators, 
including ``fuzes, detonating.'' As stated in Letter of Interpretation 
10-0107,\64\ PHMSA currently requires that ``fuzes, detonating'' be 
segregated in the same manner as detonators, due to the similar risks 
of the materials. PHMSA is considering research to develop the 
necessary data to make these revisions, as well as seeking comments 
from stakeholders.
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    \64\ https://www7.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2010/100107.pdf.
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    PHMSA requests comment on the following questions to gather 
information related to potential amendments of segregation requirements 
for primary initiating explosives:
    1. Should detonator assemblies be eligible for the same segregation 
relief as detonators when transported by highway (i.e., the exceptions 
in Sec.  177.835(g)(1)-(3))?
    a. Why or why not?
    b. Should distinctions be drawn between detonator assemblies based 
upon the hazard division (e.g., should we allow Division 1.4 detonator 
assemblies to be eligible for the same segregation relief available to 
detonators, but not Division 1.1 detonator assemblies)? Please explain 
your reasoning.
    c. Do you have any specific safety concerns with allowing detonator 
assemblies to be transported on the same motor vehicle with Division 
1.1, 1.2, or 1.3 material detonating cord Division 1.4 material or 
Division 1.5 material if they are packaged in accordance with the 
requirements in Sec.  177.835(g)(1)-(3)?
    2. Are the packaging options in Sec.  177.835(g)(1)-(3) appropriate 
for detonator assemblies? Explain.
    3. If detonator assemblies were eligible for the same segregation 
relief as detonators, how many shipments of detonator assemblies per 
year would be conducted in motor vehicles containing Division 1.1, 1.2, 
or 1.3 explosive material (except other detonator assemblies, boosters 
with detonators, or detonators), detonating cord Division 1.4 material, 
or Division 1.5 material?
    4. If detonator assemblies were eligible for the same segregation 
relief as detonators, would this create quantifiable cost savings or 
other benefits? If yes, please describe the cost savings or other 
benefits in detail.

[[Page 43042]]

    5. Should PHMSA develop specific segregation requirements for 
articles that are similar to detonators, such as ``fuzes, detonating,'' 
including both those that do and do not incorporate protective features 
(e.g., ``fuzes, detonating'' of compatibility group B vs. D)? Explain.
    a. Approximately how many shipments of ``fuzes, detonating'' are 
transported by highway annually in the United States?
    b. If PHMSA developed a less restrictive segregation requirement 
for ``fuzes, detonating,'' would it create cost savings or other 
benefits to explosives shippers or carriers? If so, please describe the 
cost savings or benefits in detail.
    6. PHMSA is considering whether the risks associated with primary 
detonating explosives, when meeting UN 6(d) unconfined single package 
test criteria and classed as Division 1.4S, justifies further relief 
from segregation requirements.
    a. Do you support creating segregation exceptions for primary 
detonating explosives classified as Division 1.4S? Explain.
    b. If PHMSA developed a less restrictive segregation requirement 
for Division 1.4S detonating explosives, would it create cost savings 
or other benefits to explosives shippers or carriers? If so, please 
describe the cost savings or benefits in detail.
    7. Are the manufacturers and shippers of both non-detonating/
initiating explosives and detonators/initiating explosives typically 
the same firms?

KK. Cargo Tank Reflectivity

    MC-331 cargo tank motor vehicles, typically used to transport 
compressed gases, are required to be painted a white, aluminum, or 
similar reflecting color on the upper two-thirds of the area of the 
cargo tank, unless insulated or covered by a jacket made of aluminum, 
stainless steel, or other bright non-tarnishing metal (see Sec.  
178.337-1(d)). This requirement has been in place since the creation of 
the MC-331 specification in final rule Order 59-B \65\ (Jan 16, 1965, 
30 FR 579). Cargo tank coating technology has progressed significantly 
over the years, and now includes alternatives such as vinyl wraps and 
paint. PHMSA has issued several Letters of Interpretation on this 
issue, (see Letters of Interpretation Ref. Nos. 11-0067, 14-0180, 15-
0242, and 19-0107) in which we stated that wraps or covers that met the 
reflectivity requirements of the section would be acceptable for use on 
MC-331 cargo tank motor vehicles.
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    \65\ https://www.govinfo.gov/content/pkg/FR-1965-01-16/pdf/FR-1965-01-16.pdf#page=19.
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    PHMSA is considering revising the requirement that the tank must be 
``painted,'' and also whether a reflective covering could be used 
instead of paint. PHMSA and FMCSA are also aware, based on the volume 
of requests for letters of interpretations on this topic received in 
recent years, that there is significant confusion in the industry 
related to determining whether a particular color of wrap or paint 
meets the reflectivity requirement of this section. However, PHMSA and 
FMCSA have not received enough data to propose a specific reflectivity 
requirement to replace the current ``white, aluminum, or similar 
reflecting color'' standard. To address this issue, PHMSA seeks comment 
on the following questions:
    1. Do you support the creation of a reflectivity performance 
standard for wrapped or painted MC-331 cargo tank motor vehicles to 
replace or in addition to the current requirement for the tank to be a 
``white, aluminum, or similar reflecting color?'' Explain.
    2. Please provide any relevant technical and scientific data or 
other information available to you to support the creation of a 
reflectivity performance standard for wraps or paint other than the 
existing regulatory requirement.
    a. How often do cargo tank owner/operators repaint or recoat the 
tank motor vehicles to meet the specification requirements? Would this 
performance standard require re-painting or re-coating more or less 
often?

LL. Cargo Tank Registered Inspector Training and Qualification

    DOT and MC specification cargo tanks must be tested and inspected 
in accordance with the requirements of part 180, subpart E. Unless 
excepted in Sec.  180.409, tests and inspections required to continue 
to operate a specification cargo tank in hazardous materials service 
must be conducted by an inspector who meets the following requirements:
     Is registered with the FMCSA in accordance with part 107, 
subpart F of the HMR;
     Is familiar with DOT-specification cargo tanks, and 
trained and experienced in use of the inspection and testing equipment 
needed; and
     Has the training and experience required to meet the 
definition of ``Registered Inspector'' in Sec.  171.8 of the HMR.
    PHMSA received a comment \66\ to the 2017 Regulatory Reform Docket 
from Container Technology requesting that we develop a checklist of 
best practices for cargo tank Registered Inspectors. As described by 
Container Technology, this would allow cargo tank owners to more 
accurately determine whether the Registered Inspector was performing 
high quality inspections and tests. FMCSA, who administers the cargo 
tank registration program, and PHMSA acknowledge that there are 
challenges associated with ensuring cargo tank Registered Inspectors 
have the proper training, education, and experience to properly inspect 
cargo tanks in accordance with all the test and inspection requirements 
in part 180, subpart E.
---------------------------------------------------------------------------

    \66\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2698.
---------------------------------------------------------------------------

    PHMSA and FMCSA have received several safety recommendations from 
the National Transportation Safety Board (NTSB) related to the training 
and qualification of cargo tank Registered Inspectors. The NTSB issued 
Recommendations H-18-001 through H-18-006 \67\ to FMCSA, PHMSA, and a 
private company as a result of findings from an investigation \68\ 
conducted into a cargo tank motor vehicle accident that occurred in 
Stroud, Alabama on March 11, 2016. PHMSA is uncertain whether the 
development of a voluntary checklist for use by cargo tank owners will 
address the issues that have been identified in the NTSB report and 
recommendations. Further, PHMSA is concerned that developing such a 
checklist may set an untenable precedent for other situations. 
Alternatively, PHMSA believes that incorporation by reference of an 
industry standard for cargo tank inspection (e.g., National Boiler 
Inspection Code [NBIC], ASME, Truck Trailer Manufacturer's Association) 
may help address these issues. PHMSA requests comment on the following 
questions:
---------------------------------------------------------------------------

    \67\ https://www.ntsb.gov/safety/safety-recs/recletters/H-18-001-006.pdf.
    \68\ https://www.ntsb.gov/investigations/AccidentReports/Reports/HAR1801SUM.pdf.
---------------------------------------------------------------------------

    1. The NTSB has recommended that PHMSA and FMCSA incorporate by 
reference the training and qualification requirements of the NBIC into 
the HMR for cargo tank inspectors (see Accident Summary Report NTSB/
HAR-18/01/SUM PB2018-100361 and NTSB Safety Recommendation H-18-004). 
Do you support the incorporation of these training and qualification 
requirements for cargo tank Registered Inspectors into the HMR? 
Explain.

[[Page 43043]]

    a. Will incorporation of the NBIC impose any additional costs on 
the cargo tank inspection community? If so, please identify specific 
provisions in the NBIC that will create additional cost burdens.
    2. Are there other generally accepted industry standards that 
describe training requirements, recommendations, and best practices for 
cargo tank Registered Inspectors?
    a. If yes, what are the alternative standards?
    i. What is their cost to purchase (if any)?
    ii. Are they available in electronic format?
    iii. Are they primarily used in an international or domestic 
context?
    b. How would you describe the equivalency of these alternative 
standards to the existing Registered Inspector requirements? Explain 
why you believe the alternative standards are equivalent to or superior 
to the existing Registered Inspector requirements.
    3. Will the IBR of the NBIC or similar industry publications for 
the training and qualification of cargo tank Registered Inspectors 
ensure that all persons certified to inspect cargo tanks have the 
necessary knowledge, skills, and abilities to adequately perform 
inspections of cargo tanks to verify their safety?
    a. If you support methods other than IBR of the NBIC to ensure that 
all persons certified to inspect cargo tanks have the necessary 
knowledge, skills, and abilities to adequately perform, please describe 
them, along with detailed justifications and descriptions of any 
additional cost burdens for the industry.
    4. Should PHMSA revise the current education and experience 
requirements in the definition of ``Registered Inspector'' in Sec.  
171.8? Why or why not? If a new qualification or experience is 
suggested, please explain the reasoning behind your proposal. Current 
qualifications are listed below:
    (1) Has an engineering degree and one year of work experience 
relating to the testing and inspection of cargo tanks;
    (2) Has an associate degree in engineering and two years of work 
experience relating to the testing and inspection of cargo tanks;
    (3) Has a high school diploma (or General Equivalency Diploma) and 
three years of work experience relating to the testing and inspection 
of cargo tanks; or
    (4) Has at least three years' experience performing the duties of a 
Registered Inspector prior to September 1, 1991.
    5. Do you support the creation of an additional option to meet the 
Sec.  171.8 definition of ``Registered Inspector'' based on attending a 
training course on the test and inspection or assembly of cargo tank 
motor vehicles? Why or why not? For example, the proposed language 
would be as follows:
    ``Registered Inspector means a person registered with the 
Department in accordance with subpart F of part 107 of this chapter who 
has the knowledge and ability to determine whether a cargo tank motor 
vehicle conforms to the applicable observable and verifiable DOT 
specification and to perform the tests and inspections and/or perform 
assembly as prescribed in part 180, subpart E. A Registered Inspector 
meets the knowledge and ability requirements of this section by meeting 
any one of the following requirements:
    (1-4) * * *; or
    (5) Has successfully completed a course in the testing and 
inspection or assembly of cargo tank motor vehicles specific to part 
180, subpart E, and the applicable sections of parts 171, 172, 173, and 
178, including:
    (A) The course must include written and performance evaluations, 
including actual inspection and testing or assembly of cargo tank motor 
vehicles specific to the person's certification;
    (B) The training certification must document the specific tests and 
inspections; the cargo tank motor vehicle specifications; non-
specification cargo tank motor vehicles requiring testing; and/or cargo 
tank motor vehicle special permits the person has been certified to 
inspect and test; and
    (C) The certificate, a copy of the course training materials, and 
inspection documentation must be retained as long as the person 
performs Registered Inspector functions, and for one year thereafter.''
    6. Do you support a provision that would indicate that a person may 
only gain the requisite experience to operate as a Registered Inspector 
by working under the direct supervision of another qualified Registered 
Inspector? Why or why not?
    7. Do you support adding a specific requirement that Registered 
Inspectors must receive and document additional function-specific 
training (see Sec.  172.704) prior to testing a different tank 
specification (e.g., a DOT 406 vs a DOT 407) or conducting a different 
type of test (e.g., leakage pressure test vs. hydrostatic pressure 
test)? Why or why not?
    8. Should PHMSA create a requirement for initial certification of 
Registered Inspectors by a separate, 3rd party organization?
    a. Who should assume the responsibility of ensuring that a 
Registered Inspectors has mastered the ability to perform the tasks 
outlined in the HM regulations?
    b. What training/experience/qualifications/credentials would be 
needed for the person(s) who assume(s) the responsibility of ensuring 
that a Registered Inspectors is fully trained and qualified?
    c. What should be the qualification standards for the 3rd party 
organization to create an initial certification of Registered 
Inspectors?
    d. Please estimate any costs likely to be created by the adoption 
of a 3rd party certification system for Registered Inspectors.

MM. Cargo Tank Design Certifying Engineer Training and Qualification

    PHMSA and FMCSA believe that the training and qualification of 
persons meeting the definition of a ``Design Certifying Engineer'' in 
Sec.  171.8 needs to be updated to address issues that have been 
identified by FMCSA among DCE personnel. An individual must meet the 
definition of a DCE, and be registered with FMCSA (see part 107, 
subpart F), in order to approve the design of a DOT or MC specification 
cargo tank as specified in part 178, subpart J. Generally, a 
combination of work experience and education is necessary to ensure the 
person performing the function of the DCE can perform the tasks 
outlined in the HMR. PHMSA and FMCSA request comment on the following 
questions to evaluate the training and qualification of cargo tank 
DCEs:
    1. Should PHMSA revise the current education and experience 
requirements in the definition of DCE in Sec.  171.8 (current 
qualifications are listed below):
    (1) Has an engineering degree and one year of work experience in 
cargo tank structural or mechanical design;
    (2) Is currently registered as a professional engineer by 
appropriate authority of a state of the United States or a province of 
Canada; or
    (3) Has at least three years' experience in performing the duties 
of a Design Certifying Engineer prior to September 1, 1991.
    Why or why not? If a new qualification or experience is suggested, 
please explain the reasoning behind your proposal.
    2. Should PHMSA create a requirement for initial certification of 
DCEs by a separate, 3rd party organization?
    a. Who should assume the responsibility of ensuring that a DCE has 
mastered the ability to perform the tasks outlined in the HMR?
    b. What training/experience/qualifications/credentials would be

[[Page 43044]]

needed for the person(s) who assume(s) the responsibility of ensuring 
that a DCE is fully trained/qualified?
    c. What should be the qualification standards for the 3rd party 
organization to create an initial certification of DCEs?

NN. Cargo Tank Registered Inspector Verification and Documentation

    PHMSA and FMCSA have encountered issues in verifying that cargo 
tank Registered Inspectors meet the required education and experience 
requirements, as defined in Sec.  171.8. Lack of, or improper, 
documentation can indicate that the Registered Inspector lacks the 
experience and education to properly perform the functions of a 
Registered Inspector. PHMSA, in conjunction with FMCSA, request comment 
on the following questions to evaluate creating record retention 
requirements for Registered Inspectors:
    1. Do you support requiring that Registered Inspectors and their 
employers be required to maintain documentation proving that the 
Registered Inspector meets the education and experience requirements of 
the Sec.  171.8 definition for as long as they are employed as a 
Registered Inspector and for one year thereafter? Why or why not?
    2. What additional burdens would the creation of this requirement 
impose on Registered Inspectors and their employers?
    a. Please estimate the number of records (physical or digital) that 
would be created and maintained by Registered Inspectors and their 
employers, and the number of hours required to generate and maintain 
each record.
    b. What categories of employees would be responsible for creating 
and maintaining these records? (Use Bureau of Labor Statistics labor 
categories, if possible.)
    3. Who are the typical employers of Registered Inspectors? Self-
employed or inspection firms?

OO. Cargo Tank Design Certifying Engineer Verification and 
Documentation

    PHMSA and FMCSA have encountered difficulties in verifying that 
cargo tank Design Certifying Engineers meet the required education and 
experience requirements, as defined in Sec.  171.8. Lack of or improper 
documentation can indicate that the DCE lacks the experience and 
education to properly perform the functions that are required of a DCE. 
PHMSA, in conjunction with FMCSA, requests comment on the following 
questions to evaluate creating record retention requirements for DCEs:
    1. Do you support requiring that DCEs and their employers be 
required to maintain documentation proving that the DCE meets the 
education and experience requirements of the Sec.  171.8 definition for 
as long as they are employed as a DCE and for one year thereafter? Why 
or why not?
    2. What additional burdens would the creation of this requirement 
impose on DCEs and their employers?
    a. Please estimate the type and number of records (physical or 
digital) that would be created and maintained by DCEs and their 
employers, and the number of hours required to generate and maintain 
each record.
    b. What categories of employees would be responsible for creating 
and maintaining these records? (Use Bureau of Labor Statistics labor 
categories, if possible.)
    3. Who are the typical employers of Design Certifying Engineers? 
Self-employed or engineering firms?

PP. Cargo Tank Registered Inspector Revised Definition

    PHMSA and FMCSA believe that the definition of ``Registered 
Inspector'' in Sec.  171.8 needs to be updated to address issues that 
have been identified by FMCSA. An individual must meet the definition 
of Registered Inspector, with some exceptions provided in Sec.  
180.409, in order to conduct the tests and inspections required for 
continued service of cargo tank motor vehicles in part 180, subpart E. 
PHMSA and FMCSA are concerned that the current definition of 
``Registered Inspector'' is insufficiently clear, creates confusion for 
new inspectors entering the field related to the type of experience 
required before beginning work as a Registered Inspector, and can also 
allow unqualified inspectors to continue to test and inspect cargo 
tanks. In particular, the phrase, ``work experience relating to the 
testing and inspection of cargo tanks'' has generated numerous 
questions and is insufficiently clear.
    PHMSA, in conjunction with FMCSA, request comment on the following 
questions to evaluate potential modifications to the definition of 
``Registered Inspector:''
    1. Should the phrase ``relating to the testing and inspection of 
cargo tanks'' be replaced with a phrase that more clearly communicates 
our expectation that the Registered Inspector's work experience 
directly relates to the continuing qualification of cargo tanks? Why or 
why not?
    a. For example, ``A Registered Inspector meets the knowledge and 
ability requirements of this section by meeting any one of the 
following requirements: (1) Has an engineering degree and at least one 
year of work experience engaging in the continuing qualification, 
maintenance, or periodic testing and inspecting of DOT specification 
cargo tanks, cargo tank motor vehicles and/or cargo tank equipment used 
in hazardous materials transportation, and is responsible, qualified, 
and competent to demonstrate the skills and abilities to ensure 
compliance, qualification, and maintenance of cargo tanks?''
    b. If you do not agree with the above example, please provide a 
suggested definition and explain the intended application of your 
revised definition.
    2. Would this proposed revised definition have any impact on third-
party groups that offer training courses for Registered Inspectors?
    3. Does this proposed revised definition align with any industry 
standard definitions?

QQ. Cargo Tank Design Certifying Engineer Revised Definition

    PHMSA and FMCSA believe that the definition of ``Design Certifying 
Engineer'' in Sec.  171.8 needs to be updated to address issues that 
have been identified by FMCSA in cargo tank DCE personnel. An 
individual must meet the definition of DCE in order to approve the 
design of a DOT or MC specification cargo tank as specified in part 
178, subpart J. PHMSA and FMCSA are concerned that the current 
definition of ``Design Certifying Engineer'' is insufficiently clear, 
creates unnecessary confusion for new engineers entering the field 
related to the type of experience required before beginning work as a 
DCE, and can also allow unqualified engineers to approve the design of 
cargo tanks. In particular, the phrase, ``work experience in cargo tank 
structural or mechanical design'' has generated numerous questions and 
is insufficiently clear.
    PHMSA, in conjunction with FMCSA, request comment on the following 
questions to evaluate potential modifications to the definition of 
``Design Certifying Engineer:''
    1. Should the phrase ``in cargo tank structural or mechanical 
design'' be replaced with a phrase that more clearly communicates our 
expectation that the DCE's work experience directly relates to the 
design of cargo tanks?
    a. For example, ``A Design Certifying Engineer meets the knowledge 
and ability requirements of this section by meeting any one of the 
following requirements: (1) Has an engineering degree and at least one 
year of work

[[Page 43045]]

experience engaging in performance of the stress analysis of pressure 
vessels and certification of cargo tank or cargo tank motor vehicle 
designs, including its required accident damage protection devices, in 
conformance to the specification requirements of this subchapter.''
    b. If you do not agree with the above example, please provide a 
suggested definition and explain the intended application of your 
revised definition.
    2. Would this proposed revised definition have any impact on 3rd 
party groups that offer training courses for Design Certifying 
Engineers?
    3. Does this proposed revised definition align with any industry 
standard definitions?

RR. NTSB Safety Recommendations R-20-1 to R-20-4

    On February 14, 2020, the National Transportation Safety Board 
(NTSB) issued four related safety recommendations to PHMSA and FRA.\69\ 
Safety Recommendations R-20-1 to R-20-4 were issued after the 
investigation of a release of ethanol from a DOT-111A100W1 tank car in 
Fredericksburg, VA on November 2, 2016. The NTSB determined that the 
probable cause of the ethanol release was undetected cracks that 
resulted from overspeed high-energy coupling events, which caused tank 
shell deformation that led to the initiation of two fatigue cracks at 
the terminations of the cradle pad fillet welds. Based on the findings 
of the investigation, NTSB issued the following safety recommendations 
to PHMSA and FRA:
---------------------------------------------------------------------------

    \69\ https://www.ntsb.gov/investigations/AccidentReports/Reports/HZM2001.pdf.
---------------------------------------------------------------------------

     R-20-1--Work together to develop maximum coupling speed 
thresholds and impact mass limits for hazardous materials railcars.
     R-20-2--Require that tank cars involved in high-energy 
coupling-force events undergo a structural integrity inspection by a 
qualified technician before returning to service.
     R-20-3--Develop methods to identify tank cars that have 
sustained overspeed and high-energy coupling force events.
     R-20-4--After the successful development of methods to 
identify tank cars that have sustained overspeed and high-energy 
coupling force events, require that rail carriers have monitoring 
processes in place to promptly remove damaged tank cars from hazardous 
materials service.
    The intent of this collection of safety recommendations is to 
prevent releases of hazardous materials from occurring due to damage to 
cars from overspeed or high-energy coupling events by: (1) minimizing 
the opportunity for these events; and (2) discovering damage in a 
timely manner so that corrective measures can be taken. PHMSA and FRA 
concur with the NTSB's conclusion that reducing overspeed and high-
energy coupling-force events, inspecting the structural integrity of 
tank cars that have experienced these events, and identifying and 
removing tank cars damaged by these events is in the interest of 
improving tank car safety. In this ANPRM, we describe existing 
regulatory standards designed to address overspeed coupling, and seek 
comment from railroads, tank car shippers, tank car manufacturers, tank 
car owners, and any other interested parties on the best means to 
address this issue.
    The HMR address tank car coupling speed in Sec.  174.83(b) for 
certain materials:
     Division 1.1 and 1.2 explosives;
     Division 2.3 Hazard Zone A gas;
     Division 6.1 PG I Hazard Zone A material;
     Class DOT 113 tank car displaying a Division 2.1 
(flammable gas) placard, including a Class DOT 113 tank car containing 
only a residue of a Division 2.1 material.
    Section 174.83(b) requires that tank cars containing these 
materials may not be cut off while in motion, coupled into with more 
force than is necessary to complete the coupling, or struck by any car 
moving under its own momentum. Section 174.83(e) addresses flatcar 
coupling as follows: ``No placarded flatcar or any flatcar carrying a 
placarded transport vehicle, freight container, or bulk packaging may 
be coupled into with more force than is necessary to complete the 
coupling.''
    Voluntary rail industry standards also address tank car coupling 
speeds. AAR Circular OT-55-Q states, ``Maximum reasonable efforts will 
be made to achieve coupling of loaded placarded tank cars at speeds not 
to exceed 4 mph.'' \70\ The United States Hazardous Materials 
Instructions for Rail (US-1) states, ``When rail cars are cut off in 
motion, the coupling speed must not exceed 4 mph.'' \71\ As noted in 
the NTSB report, the existing regulatory requirements and voluntary 
industry standards did not prevent the hard-coupling event that led to 
the ethanol release in Fredericksburg, VA on November 2, 2016.
---------------------------------------------------------------------------

    \70\ Recommended Railroad Operating Practices for Transportation 
of Hazardous Materials. Circular No. OT 55-Q. (CPC-1337). https://www.aar.org/wp-content/uploads/2018/09/CPC-1337-OT-55-Q-w-AskRail-9-6-18.pdf.
    \71\ United States Hazardous Materials Instructions for Rail. 
https://www.aar.org/wp-content/uploads/2018/10/US-HMI-for-Rail-2015-FINAL.pdf.
---------------------------------------------------------------------------

    Transport Canada has implemented coupling speed standards and 
inspection requirements for tank cars that experience overspeed 
coupling events in Section 10.7 of the Transportation of Dangerous 
Goods (TDG) Regulations.\72\ The TDG Regulations' coupling speed 
standards consist of a general limit of 6 mph for coupling, with 
allowance for 7.5 mph for a single railway vehicle moving under its own 
momentum at temperatures above -25 [deg]C. Additionally, the TDG 
Regulations require a visual inspection of the underframe, and coupling 
and cushioning components of the tank car before the tank car travels 2 
kilometers after one of the following overspeed coupling events occurs, 
as follows:
---------------------------------------------------------------------------

    \72\ Transportation of Dangerous Goods Regulations. ``Coupling 
of Railway Vehicles,'' Section 10.7. SOR/2019-101. https://tc.canada.ca/en/dangerous-goods/part-10.

----------------------------------------------------------------------------------------------------------------
                                     Combined coupling
                                    mass: tank car and
               Item                    other railway     Ambient temperature        Relative coupling speed
                                    vehicle, and their
                                         contents
----------------------------------------------------------------------------------------------------------------
1................................  >150,000 kg (330,700  <=-25 [deg]C (-13    >9.6 kph (6.0 mph).
                                    lb).                  [deg]F).
2................................  >150,000 kg (330,700  <=-25 [deg]C (-13    >12 kph (7.5 mph).
                                    lb).                  [deg]F).
3................................  <=150,000 kg          <=-25 [deg]C (-13    >12.9 kph (8.0 mph).
                                    (330,700 lb).         [deg]F).
4................................  <=150,000 kg          >-25 [deg]C (-13     >15.3 kph (9.5 mph).
                                    (330,700 lb).         [deg]F).
----------------------------------------------------------------------------------------------------------------

    Additionally, the person in possession of the tank car when the 
overspeed coupling event occurs must submit a written report to the 
tank car's owner within 10 days, informing the owner of the overspeed 
coupling event. The tank car owner must then ensure the tank car is not 
used in hazardous materials service, other than the lading

[[Page 43046]]

contained in the tank car at time of coupling, until a detailed 
structural integrity inspection can be conducted by a tank car 
facility.
    FRA and PHMSA note that the standards adopted by Transport Canada 
in the TDG Regulations align with the intent of NTSB Safety 
Recommendations R-20-1 and R-20-2, in that they address coupling speed 
thresholds and impact mass limits, as well as require a detailed 
structural integrity inspection for tank cars that experience coupling 
events beyond the coupling speed and mass thresholds. However, Safety 
Recommendations R-20-3 and R-20-4, for identification of cars that 
experience overspeed coupling events, and rail carrier monitoring 
procedures to remove a tank car damaged in an overspeed coupling event 
from service, do not currently have a direct precedent in American, 
Canadian, or voluntary industry standards. While there are technologies 
in use to monitor coupling speeds, neither PHMSA nor FRA believe that a 
systematic, industry-wide process has been implemented to monitor 
overspeed coupling. Since no systematic overspeed coupling monitoring 
system exists, a system for carrier identification of tank cars that 
have experienced overspeed coupling events would also need to be 
developed. With consideration of the existing coupling speed standards, 
and recognition of the need to gather more information to develop 
monitoring system standards, PHMSA and FRA request comment on the 
following questions:
    1. Do you support adoption of the Transport Canada coupling speed 
and impact mass standards, described above, into the HMR? Why or why 
not? Please support your position with any data or information 
available to you.
    2. Do you support requiring a visual inspection of the tank car 
underframe, and coupling and cushioning components immediately (within 
2 km, or 1.25 miles) after an overspeed coupling event that exceeds 
certain speed and impact mass standards? Why or why not? Please support 
your position with any data or information available to you.
    a. Is requiring an immediate visual inspection of the tank car 
before the train moves 2 km (1.25 miles) miles a reasonable standard? 
What alternatives should be considered? Explain.
    b. If this requirement was adopted, who would/should conduct the 
inspection? Are railroad personnel trained/qualified to perform the 
inspection?
    c. How much time would each visual inspection require?
    d. What costs would be associated with the adoption of this 
requirement? Provide a quantified estimate, if possible.
    3. Do you support requiring a detailed structural integrity 
inspection, conducted at a certified tank car facility, for a tank car 
subjected to a coupling that exceeds certain speed and impact mass 
standards? Why or why not? Please support your position with any data 
or information available to you.
    a. If this requirement was adopted, how much would inspection 
services cost a tank car owner? Please include estimates for time out 
of service, inspection labor, recordkeeping, and all other costs 
associated with a structural integrity inspection.
    4. What methods or procedures are currently in use to measure tank 
car coupling speeds and avoid high-energy, overspeed coupling events?
    5. What methods or procedures are currently in use to identify tank 
cars that have experienced high-energy, overspeed coupling events?
    6. Describe a system that could be used to measure all tank car 
coupling events and identify tank cars that have experienced a high-
energy, overspeed coupling event. The system should use existing 
methods, procedures, and available technologies to the extent 
practical.
    a. How much would it cost to develop and implement such a system? 
Estimates are acceptable. Please provide as detailed a cost breakdown 
as possible addressing research and development (if required), capital 
expenditures, employee wages, etc. associated with your estimate.
    b. How much would it cost to maintain such a system? Estimates are 
acceptable. Please provide as detailed a cost breakdown as possible 
addressing capital expenditures, employee wages, etc. associated with 
your estimate.
    c. Who would bear the costs for the development, implementation, 
and maintenance of the system you describe?
    d. If such a system was implemented, would you support a 
requirement that the person in possession of a tank car that 
experiences a high-energy, overspeed coupling event must report all 
such events to the tank car owner and/or the Department of 
Transportation, regardless of whether the event results in the release 
of hazardous materials? Why or why not? In your estimation, how many 
such reports would be filed nationwide annually, if such a requirement 
was adopted?
    7. Please provide any information available to you on the rate of 
high-energy or overspeed coupling events that occur without causing an 
immediate release of hazardous materials. How often do high-energy or 
overspeed coupling events occur with no immediate release of hazardous 
materials?
    8. In consideration of the intent of the safety recommendations, 
rather than imposing a speed or impact mass standard and associated 
procedures, what alternative measures could be implemented to arrive at 
the same goal of preventing incidents that result in the release of a 
hazardous material because of damage to a tank car from overspeed and 
high energy coupling events?

SS. Placard Display on Intermediate Bulk Containers

    Section 172.516 details the visibility and display of placards. 
Paragraph (a) specifies that each placard on a motor vehicle or rail 
car must be ``clearly visible from the direction it faces, except from 
the direction of another transport vehicle or rail car to which the 
motor vehicle or rail car is coupled.'' Furthermore, this paragraph 
indicates that placards displayed on a freight container or portable 
tank can be used to meet this visibility requirement.
    PHMSA has received several requests for letters of interpretation 
on whether placards displayed on IBCs or shrink-wrapped pallets 
containing multiple non-bulk packages of hazardous materials may be 
used to meet the Sec.  172.516 visibility requirement, in addition to 
those placards displayed on a freight container or portable tank. 
Examples of these letters include 20-0025 \73\ and 10-0075.\74\ PHMSA 
has provided the guidance that such placard display is permissible, and 
would meet the requirements of Sec.  172.516, provided the placards are 
clearly visible from the direction the placard faces. To encourage a 
uniform understanding of placard display requirements, PHMSA is 
considering a revision to Sec.  172.516 to clearly authorize motor 
vehicle placard display on IBCs, shrink-wrapped pallets containing non-
bulk packages, or other arrangements that permit adequate visibility of 
placards for each direction they face.
---------------------------------------------------------------------------

    \73\ https://www7.phmsa.dot.gov/regulations/title49/interp/20-0025.
    \74\ https://www7.phmsa.dot.gov/regulations/title49/interp/10-0075.
---------------------------------------------------------------------------

    To evaluate the feasibility revising the placard visibility 
requirements in the HMR to allow motor vehicle placard display to be 
accomplished by displaying placards on IBCs, shrink-wrapped pallets, or 
other arrangements besides freight containers or portable

[[Page 43047]]

tanks, PHSMA seeks comments on the following questions:
    1. In your opinion, should PHMSA revise Sec.  172.516 to clearly 
authorize motor vehicle placard display on IBCs, shrink-wrapped pallets 
containing non-bulk packages, or other arrangements that permit 
adequate visibility of placards for each direction they face? Why or 
why not?
    2. Would placards displayed on IBCs or shrink-wrapped pallets 
containing non-bulk packages be as visible and recognizable in normal 
transportation scenarios and accident scenarios compared to placards 
displayed on a freight container or portable tank?
    3. Would a revision to Sec.  172.516 to clearly authorize motor 
vehicle placard display on IBCs, shrink-wrapped pallets containing non-
bulk packages, or other arrangements that permit adequate visibility of 
placards for each direction they face create any cost savings for 
hazardous material shippers or transporters? Please provide a cost-
savings estimate per shipment, including time savings, if applicable.

TT. Emerging Technologies

    Emerging energy storage, transportation, and carbon sequestration 
technologies are at the forefront of efforts to meet Executive Order 
14008 (``Tackling the Climate Crisis at Home and Abroad'').\75\ These 
technologies include new battery chemistries, increased transportation 
of clean energy products including hydrogen, and the capture, 
purification, and sequestration of carbon dioxide. PHMSA is committed 
to ensuring that the HMR do not become a barrier to the development, 
use, and prevalence of such technologies, and facilitates the 
integration of these new technologies in the economy, by adding, 
revising, or deleting certain provisions as necessary. Accordingly, 
PHMSA requests comment on the following questions:
---------------------------------------------------------------------------

    \75\ https://www.federalregister.gov/citation/86-FR-7619.
---------------------------------------------------------------------------

    1. Please identify any revisions in the HMR required to facilitate 
the adoption of new and emerging technologies.
    a. Include information and arguments that support your proposed 
action, including relevant technical and scientific data.
    b. Include any specific cases that support or demonstrate the need 
for your proposed action.
    2. Please provide information about the following:
    a. The costs, savings, and safety or environmental benefits of your 
proposed action to society in general and to identifiable groups such 
as specific companies or industries affected by your proposal.
    b. The regulatory burden of your proposed action on small 
businesses, small organizations, small governmental jurisdictions, and 
Indian tribes.
    c. The recordkeeping and reporting burdens of your proposed action 
and whom they would affect.
    d. The direct effects, including preemption effects under 49 U.S.C. 
5125 of federal hazardous materials transportation law, of your 
proposed action on states, on the relationship between the Federal 
Government and the states, and on the distribution of power and 
responsibilities among the various levels of government. (See 49 CFR 
part 107, subpart C, regarding preemption.)
    e. The effect of your proposed action on the quality of the natural 
and social environments.

    Issued in Washington, DC, on June 26, 2023, under the authority 
delegated in 49 CFR 1.97.
William S. Schoonover,
Associate Administrator for Hazardous Materials Safety, Pipeline and 
Hazardous Materials Safety Administration.
[FR Doc. 2023-13903 Filed 7-3-23; 8:45 am]
BILLING CODE 4910-60-P


