[Federal Register Volume 87, Number 55 (Tuesday, March 22, 2022)]
[Notices]
[Pages 16308-16310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05958]



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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2021-0109; Notice No. 2022-02]


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

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

ACTION: Notice; request for comments.

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SUMMARY: PHMSA is announcing an initiative to convert historical 
letters of interpretation (LOI) applicable to the Hazardous Materials 
Regulations that have been issued to specific stakeholders into broadly 
applicable frequently asked questions on its website. By creating a 
repository of frequently asked questions, PHMSA seeks to eliminate the 
need for recurring requests for common letters of interpretations. This 
Federal Register Notice introduces this initiative and its objectives 
to those subject to the Hazardous Materials Regulations. PHMSA's 
objective is to gain insight regarding the utility of this initiative 
and topics to prioritize in the development of future frequently asked 
questions. PHMSA requests comment on the initiative and input on the 
prioritization of future sets of frequently asked questions.

DATES: Interested persons are invited to submit comments on or before 
May 23, 2022. Comments received after that date will be considered to 
the extent practicable.

ADDRESSES: You may submit comments identified by the Docket Number 
PHMSA-2021-0109 by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management System; U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: Docket Management System; Room W12-140 on 
the ground floor of the West Building, 1200 New Jersey Avenue SE, 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: All submissions must include the agency name and 
Docket Number (PHMSA-2021-0109) for this notice. To avoid duplication, 
please use only one of these four methods. All comments received will 
be posted without change to the Federal Docket Management System (FDMS) 
and will include any personal information you provide.
    Docket: For access to the dockets to read background documents or 
comments received, go to http://www.regulations.gov or DOT's Docket 
Operations Office (see ADDRESSES).
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public. DOT posts these comments, without edit, 
including any personal information the commenter provides, to http://www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at http://www.dot.gov/privacy.
    Confidential Business Information (CBI): CBI is commercial or 
financial information that is both customarily and actually treated as 
private by its owner. Under the Freedom of Information Act (FOIA) (5 
U.S.C. 552), CBI is exempt from public disclosure. If your comments 
responsive to this notice contain commercial or financial information 
that is customarily treated as private, that you actually treat as 
private, and that is relevant or responsive to this notice, it is 
important that you clearly designate the submitted comments as ``CBI.'' 
Please mark each page of your submission containing CBI as ``PROPIN.'' 
Submissions containing CBI should be sent to Arthur Pollack, Standards 
and Rulemaking Division, (202) 366-8553, Pipeline and Hazardous 
Materials Safety Administration, U.S. Department of Transportation, 
1200 New Jersey Avenue SE, Washington, DC 20590-0001. Any commentary 
that PHMSA receives which is not specifically designated as CBI will be 
placed in the public docket for this notice.

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

SUPPLEMENTARY INFORMATION: 

I. Introduction

    PHMSA is announcing an initiative to publish frequently asked 
questions (FAQ) on its website to facilitate better public 
understanding and awareness of the hazardous materials regulations 
(HMR; 49 CFR parts 171-180). The FAQ contained in this notice are 
intended to clarify, explain, and promote better understanding of the 
HMR. FAQ are not substantive rules, themselves, and do not create 
legally enforceable rights, assign duties, or impose new obligations 
not otherwise contained in the existing regulations and standards, but 
are provided to help the regulated community understand how to comply 
with the regulations. However, an individual who can demonstrate 
compliance with the FAQ is likely to be able to demonstrate compliance 
with the relevant regulations. If a different course of action is taken 
by an individual, the individual must be able to demonstrate that its 
conduct is in accordance with the regulations.
    PHMSA is creating a repository of these questions, which will 
remove the need for recurring requests for common letters of 
interpretation and will assist PHMSA in streamlining the use of its 
resources by eliminating frequently asked and recurring (LOI). This 
initiative will provide additional value to PHMSA's Online Code of 
Federal Regulations (oCFR) tool found at https://www.phmsa.dot.gov/standards-rulemaking/hazmat/phmsas-online-cfr-ocfr. The oCFR tool is an 
interactive web-based application that allows users to navigate with a 
single click between all content, including LOI connected to an HMR 
citation. The oCFR tool includes the ability to sort, filter, and 
export search results. Upon completion of this initiative, the PHMSA 
Office of Hazardous Materials Safety (OHMS) will be able to achieve 
efficiencies for other more complex or novel requests for LOI and 
devote resources to other hazardous materials transportation safety 
projects. Resources may be made available for other improvement-related 
operations such as petitions for rulemakings, public outreach and 
engagement, and economically beneficial regulatory and policy 
improvements. The information provided in this notice is useful to the 
regulated community, private citizens intending to offer a hazardous 
material for transportation, and state and local entities involved in 
hazardous materials transportation. PHMSA is publishing the first set 
of questions developed under this initiative.

II. Background

    Federal hazardous materials transportation law (49 U.S.C. 5101 et 
seq.) directs the Secretary of Transportation (``the Secretary'') to 
establish regulations for the safe and secure transportation of 
hazardous materials in commerce. The Secretary is authorized to apply 
those regulations to

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(1) persons who transport hazardous materials in commerce, (2) persons 
who cause hazardous materials to be transported in commerce, (3) 
persons who manufacture or maintain a packaging or a component of a 
packaging that is represented, marked, certified, or sold as qualified 
for use in the transportation of a hazardous material in commerce, (4) 
persons who indicate by marking or other means that a hazardous 
material being transported in commerce is present in a package or 
transport conveyance when it is not, and (5) persons who tamper with a 
package or transport conveyance used to transport hazardous materials 
in commerce or a required marking, label, placard, or shipping 
description.
    In 49 CFR 1.97, the Secretary delegated authority to issue 
regulations for the safe and secure transportation of hazardous 
materials in commerce to the PHMSA Administrator. The PHMSA 
Administrator issues the HMR under that delegated authority. The HMR 
prescribes requirements for the safe transportation in commerce of 
hazardous materials, including provisions for classification, 
packaging, and hazard communication.
    To facilitate its safety mission and promote better awareness of 
its programs and compliance requirements, OHMS periodically issues 
agency guidance in the Federal Register and on its publicly available 
website \1\ for use by the regulated community, PHMSA staff, and 
federal, state, and local partners. This information is non-binding 
material given to the public pertaining to information and resources 
useful to comply with the HMR and is also used to make the public aware 
of safety issues or best practices. PHMSA issues this information 
through posted FAQ, advisory bulletins, publications, and policy 
manuals. PHMSA also answers questions from stakeholders through its 
staff and the Hazardous Materials Information Center (HMIC) \2\ and by 
issuing LOI. As provided in 49 CFR 105.20 (Guidance and 
Interpretations), a member of the public may request information and 
answers to questions on HMR compliance by contacting the OHMS Standards 
and Rulemaking Division or the HMIC.\3\ OHMS receives an average of 250 
requests for LOI each year. While each letter of interpretation is fact 
specific, some of these requests for interpretations present similar 
circumstances to earlier questions that have previously been asked, 
answered, and published on PHMSA's oCFR website at https://www.phmsa.dot.gov/standards-rulemaking/hazmat/phmsas-online-cfr-ocfr.
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    \1\ https://www.phmsa.dot.gov/guidance.
    \2\ The HMIC can be reached at 1-800-467-4922 and 
[email protected]. For additional information visit: https://www.phmsa.dot.gov/standards-rulemaking/hazmat/hazardous-materials-information-center.
    \3\ To request a formal letter of interpretation, persons may 
also write to: Mr. Shane Kelley, Director, Standards and Rulemaking 
Division, U.S. DOT/PHMSA (PHH-10), 1200 New Jersey Avenue SE, East 
Building, 2nd Floor, Washington, DC 20590. To obtain information and 
answers pertaining to statute compliance and preemption, persons 
must, as prescribed by 49 CFR 105.20(b), contact the office of the 
Chief Counsel at: Office of the Chief Counsel, U.S. DOT/PHMSA (PHC-
10), 1200 New Jersey Avenue SE, East Building, Washington, DC 20590, 
or at (202) 366-4400.
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    The purpose of this FAQ initiative is to optimize the 
effectiveness, reach, and impact of the OHMS LOI process. Through 
publishing FAQ, PHMSA will memorialize in broadly applicable guidance 
its historical letters of interpretation for, and applicable to, 
specific stakeholders regulated by the HMR. Specifically, this 
initiative will adapt currently available stakeholder engagement 
functions to more directly appeal to a broader regulated community, 
develop a systematic process in managing/curating agency information 
that can be incorporated conveniently into existing workflows, and 
create helpful tools for current stakeholders. The success of this 
initiative will be measurable by monitoring PHMSA website engagement, 
the rate of incoming calls to the HMIC, and the volume of incoming LOI 
requests. A successful project should see an increase in website 
engagement with either static or reduced rates of calls to the HMIC and 
a reduced volume of incoming LOI requests. In addition, the 
interpretation workflow should reflect more efficient processing and 
productivity.

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

    Section 171.1 addresses the applicability of the HMR for the safe 
and secure transportation of hazardous materials in commerce. PHMSA 
proposes to publish the following series of FAQ in the Federal Register 
and on its website to facilitate better understanding of the HMR 
applicability requirements and avoid the need for responding to 
frequent and recurring questions already addressed in accordance with 
Sec.  105.20.

    (1) Question: Is a Federal, state, or local government agency 
subject to the HMR?
    Answer: Pursuant to Sec.  171.1(d)(5), a Federal, state, or 
local government that transports hazardous materials for non-
commercial governmental purposes using its own personnel is not 
engaged in transportation in commerce and, therefore, is not subject 
to the HMR. As specified in Sec.  171.1, the HMR governs the safe 
transportation of hazardous materials in intrastate, interstate, and 
foreign commerce. The term ``in commerce'' does not include a 
Federal, state, or local government that transports hazardous 
materials for its own use, using its own personnel, and motor 
vehicles, aircraft, or vessel under its control.
    (2) Question: Are state universities subject to the HMR when 
transporting hazardous materials?
    Answer: A state agency--such as a state university--that 
transports hazardous materials for its own non-commercial use, using 
its own personnel and vehicles, is not engaged in transportation in 
commerce and, therefore, is not subject to the HMR. However, if the 
university is privately-operated or is a state university offering 
hazardous materials for transportation to commercial carriers, the 
HMR apply.
    (3) Question: Is a hazardous material transported on private 
roads subject to the HMR?
    Answer: Section 171.1(d)(4) states that the transportation of 
hazardous materials entirely on private roads with restricted public 
access is not subject to the HMR.
    (4) Question: Is a hazardous material subject to the HMR that 
only crosses a public road?
    Answer: The transportation of hazardous materials that, for 
example, takes place by motor vehicle and within a contiguous plant 
or factory boundary, is not subject to the HMR. However, intra-plant 
transport that utilizes or crosses a public road is subject to the 
HMR during that portion of the transportation unless access to the 
public road is restricted by gates, traffic signals, guard stations, 
or similar controls, in accordance with Sec.  171.1(d)(4).
    (5) Question: Are hazardous materials installed or used in or on 
a motor vehicle (e.g., gasoline in the motor vehicle's fuel tank) 
subject to the HMR?
    Answer: Hazardous materials that are installed or used in or on 
a motor vehicle such as the motor vehicle's fuel, suspension, or 
safety systems are not subject to the HMR. Fuel systems and safety 
equipment may be subject to the Federal Motor Carrier Safety 
Regulations (FMCSR) or National Highway Traffic Safety 
Administration (NHTSA) requirements.
    (6) Question: Is the filling of a package with a hazardous 
material subject to the HMR if it is not being offered for 
transportation in commerce? For example, pouring a flammable liquid 
into bottles that may be transported eventually.
    Answer: The answer is no. However, if there is a chance of 
future transportation in commerce, the stakeholder should consider 
placing that hazardous material in packagings suitable for 
transportation of that material in commerce to minimize safety risks 
associated with its re-packaging.
    (7) Question: Are stationary (storage) tanks containing a 
hazardous material such as propane subject to the HMR?
    Answer: The answer is no, unless the tank is transported in 
commerce containing a

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hazardous material or its residue or if it is represented and 
maintained as a Department of Transportation (DOT) packaging usable 
for hazmat transportation.
    (8) Question: Are hazardous materials being transported for 
personal use subject to the HMR? For example, are pesticides that 
are transported from a store by individuals to treat their garden 
subject to the HMR?
    Answer: The answer is no. Under part 171, the phrase ``in 
commerce'' means in furtherance of a commercial enterprise and 
transportation in a private motor vehicle for personal use is not 
considered in furtherance of a commercial enterprise even when 
transported in a leased or rented vehicle.
    (9) Question: Are privately-owned SCUBA tanks that are used for 
diving and marked as DOT specification cylinders subject to the HMR?
    Answer: A SCUBA tank that is represented as conforming to HMR 
requirements--i.e., marked with a DOT specification marking--must be 
maintained by the owner of said SCUBA tank in accordance with the 
applicable specification requirements whether or not it is in 
transportation in commerce.
    (10) Question: Are government-owned hazardous materials 
transported for government purposes by contractor personnel subject 
to the HMR?
    Answer: The answer is yes. As provided in Sec.  171.1(d)(5), the 
HMR do not apply to transportation of a hazardous material in a 
motor vehicle, aircraft, or vessel operated by a Federal, state, or 
local government employee solely for noncommercial Federal, state, 
or local government purposes. However, contractor personnel are not 
considered government employees and the provisions of the HMR apply.
    (11) Question: Are gasoline cans transported by a landscaping 
company by motor vehicle subject to the HMR?
    Answer: Commercial businesses--such as landscaping, swimming 
pool services, or construction companies--transporting hazardous 
materials are considered ``in commerce'' and subject to the HMR. 
However, when used in support of a business, the HMR provides an 
exception in Sec.  173.6 for the transport of ``materials of 
trade.''
    (12) Question: Are household hazardous wastes that are 
transported by a private person to a county drop-off facility 
subject to the HMR?
    Answer: The answer is no, provided the household hazardous 
wastes are the individual's personal property and he or she is not 
engaged in a commercial activity, such as a landscaping company or 
carpentry service.

IV. Notice Objectives

    FAQ in this notice--and future FAQ published on PHMSA's website--
will help to reduce the volume of duplicative requests for information 
covered by the FAQ and will facilitate faster processing of more 
complex and novel LOI requests in the future. Furthermore, in addition 
to publishing the first set of FAQ in the Federal Register, this notice 
seeks public input specific to the anticipated benefits provided by the 
FAQ initiative and suggestions for future FAQ topics.

    Signed in Washington, DC, on March 16, 2022, under authority 
delegated in 49 CFR 1.97.
William A. Quade,
Deputy Associate Administrator of Hazardous Materials Safety, Pipeline 
and Hazardous Materials Safety Administration.
[FR Doc. 2022-05958 Filed 3-21-22; 8:45 am]
BILLING CODE 4910-60-P


