# Hazardous Materials: Modernizing Regulations To Improve Safety and Efficiency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-13903 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** July 5, 2023 - **Citation:** 88 FR 43016 ## Text 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). 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 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. 1 58 FR 51735. 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”). 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. 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 §§ 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. 4 83 FR 55792 (Nov. 7, 2018). https://www.govinfo.gov/content/pkg/FR-2018-11-07/pdf/2018-23965.pdf. • 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. 5 85 FR 68790 (Oct. 30, 2020). https://www.govinfo.gov/content/pkg/FR-2020-10-30/pdf/2020-22483.pdf. • HM-219C, Hazardous Materials: Adoption of Miscellaneous Petitions to Reduce Regulatory Burdens, PHMSA-2017-0120. 6 In this final rule, PHMSA 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. 6 85 FR 75680 (Nov. 25, 2020). https://www.govinfo.gov/content/pkg/FR-2020-11-25/pdf/2020-23712.pdf. • 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. 7 85 FR 27810 (May 11, 2020). https://www.govinfo.gov/content/pkg/FR-2020-05-11/pdf/2020-06205.pdf. • 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 § 172.602 onboard their motor vehicle, train, plane, or vessel. In accordance with § 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: 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 § 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 § 172.602? a. Would revisions to § 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 §§ 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 §§ 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. 8 https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/rulemakings/archived-rulemakings/72931/55-fr-52402-final-rulereducedsize.pdf. 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 § 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. 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. 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. 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 § 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 §§ 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 § 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 § 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: 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. 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 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 § 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 § 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 § 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: 16 https://www.regulations.gov/docket?D=PHMSA-2017-0021. 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 § 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 § 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 § 173.29(a)). However, § 173.29(c) provides exceptions for non-bulk packages containing the residue materials covered by Table 2 of the § 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: 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. • 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 § 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. 20 https://www.phmsa.dot.gov/standards-rulemaking/hazmat/transport-canada-su-11819. 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? 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 § 173.185(f). These packaging instructions are more stringent than the normal lithium cell and battery instructions found in § 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 § 173.185(f). 21 https://www.regulations.gov/document?D=DOT-OST-2017-0069-2826. PRBA explained that the use of the word “recalled” in § 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 § 173.185(f). It was never PHMSA's intent to subject lithium batteries and lithium battery powered devices to the conditions in § 173.185(f) if they had been recalled for a non-safety related purpose. When PHMSA created § 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 § 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 § 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 § 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 § 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 § 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 § 173.41. 23 https://www.govinfo.gov/content/pkg/FR-2015-05-08/pdf/2015-10670.pdf. 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 § 173.41 because it is an unnecessary duplication of the shipper's responsibility to classify (see § 173.22(a)(1)). The American Petroleum Institute (API) submitted a comment 25 requesting that PHMSA clarify and revise the requirements of § 173.41 to simplify the requirements and encourage compliance. 24 https://www.regulations.gov/document?D=DOT-OST-2017-0069-2785. 25 https://www.regulations.gov/document?D=DOT-OST-2017-0069-2766. PHMSA believes that the requirements in § 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 § 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 § 173.41 help clarify requirements and/or improve efficiency? 26 https://www.api.org/oil-and-natural-gas/wells-to-consumer/transporting-oil-natural-gas/rail-transportation/api-rp-3000. 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 § 173.41 or the testing requirements of § 173.120 ( e.g. DOT-SP 20861) 27 into the HMR? Why or why not? 27 https://www.phmsa.dot.gov/approvals-and-permits/hazmat/file-serve/offer/SP20861.pdf/offerserver/SP20861. 4. What specific provisions of § 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 § 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 § 107.601(a)(4)), and the Federal Highway Administration's (now FMCSA's) financial responsibility requirement found in 49 CFR part 387. 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: 29 https://www.regulations.gov/document?D=DOT-OST-2017-0069-1390. 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 binding and enforceable parts of the regulations (see § 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 § 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 § 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 § 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. 30 https://www.phmsa.dot.gov/approvals-and-permits/hazmat/approvals-search. 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 § 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 § 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 §§ 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 UN0431 fireworks approved through the § 173.56 EX approval process are not under consideration for this topic because their classification may be packaging dependent. 31 https://www.regulations.gov/document?D=DOT-OST-2017-0069-2413. 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 § 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. 32 https://www.regulations.gov/document?D=DOT-OST-2017-0069-1700. 33 https://www.gpo.gov/fdsys/pkg/FR-2014-03-18/pdf/2014-05630.pdf. AHS believes that limiting applicability of § 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 § 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 § 173.150(g)? b. What is the average volume of ethyl alcohol solution per inner package transported in accordance with § 173.150(g)? 2. How many more shipments would be offered annually under the provisions of § 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 § 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, § 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 § 173.150(g) to first responders, shippers, and others in the transport chain? 4. Regardless of any change to the applicability of the § 173.150(g) exception, have more shipments of consumer products containing ethyl alcohol been offered based on § 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? L. Limited Quantity Training Exception The HMR require hazmat employers to properly train and test all hazmat employees (§ 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 § 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 (§§ 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 § 172.704(d)). Hazmat employees must receive recurrent training at least once every three years under § 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 §§ 173.4, 173.4a and 173.4b, respectively), materials of trade (see § 173.6), combustible liquids (see § 173.150(f)), and small lithium cells and batteries (see § 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: 34 https://www.regulations.gov/document?D=DOT-OST-2017-0069-1700. 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 are listed in Table 1 for placarding in § 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 (§ 173.4), excepted quantity (§ 173.4a), de minimis (§ 173.4b), limited quantity (§ 173.151) or materials of trade (§ 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 § 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 § 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. 35 https://www.phmsa.dot.gov/approvals-and-permits/hazmat/file-serve/approval/0_CA1996100010_2016100114.pdf/4197059. 36 https://www.regulations.gov/document?D=DOT-OST-2017-0069-1390. 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 (§§ 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 § 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 § 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 § 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 § 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. In 2014, PHMSA published Letter of Interpretation 13-0189 37 that states safety devices shipped for reuse can use the § 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 § 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 § 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. 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. The intent of the change requested by P-1708 would be to limit the exception provided in § 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: 39 https://www.regulations.gov/document?D=DOT-OST-2017-0069-2393. 1. Are materials other than metal recovered from safety devices through the recycling process? If so, would the insertion of the word “metal” into § 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 (§§ 172.200-205). The core requirement of a hazardous material shipping paper is the information referred to as the “basic description” (see §§ 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 § 172.202(b) describes the information required by § 172.202(a)(1)-(4) as the “basic description,” there is no definition for the term “basic description” in § 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 § 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 § 171.8 for the “basic description” (information required by § 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 §§ 172.201 and 172.202 would 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: 40 https://www.regulations.gov/docket?D=PHMSA-2015-0129. 1. Would the creation of definitions for “basic description” and “shipping description” in § 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 § 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 §§ 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 § 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 §§ 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 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. 41 https://www.govinfo.gov/content/pkg/FR-2007-01-31/pdf/E7-1487.pdf. 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 °F oven used to simulate aircraft fire conditions. 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. 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 § 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: 44 https://www.regulations.gov/document?D=DOT-OST-2017-0069-1479. 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 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 § 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: 45 https://www.regulations.gov/document?D=DOT-OST-2017-0069-1479. 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 § 176.172). To address USCG's concern regarding structurally deficient shipping containers used in domestic commerce, PHMSA is considering expanding the requirement in § 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 transport [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-13903. Public record. Not legal advice.