Review – PHMSA Publishes HAZMAT via HATS ANPRM

Today the DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) published in the Federal Register (90 FR 5836-55844) an advanced notice of proposed rulemaking (ANPRM) on “Hazardous Materials: Modernizing Regulations to Facilitate Transportation of Hazardous Materials Using Highly Automated Transportation Systems” (RIN 2137-AF68). PHMSA is seeking to obtain stakeholder input on potential revisions to the Hazardous Materials Regulations (HMR) to facilitate the safe transportation of hazardous materials using highly automated transportation systems. PHMSA had earlier published a request for information on this topic.

Highly Automated Transportation Systems (HATS)

The ANPRM provides a discussion about the potential types of modal highly automated transportation systems (HAT) that might be used to transport hazardous materials and the hazardous material regulation challenges that they may present. These include:

Highly automated rail transportation systems,

Highly automated air transportation systems,

Highly automated vessel transportation systems, and

Highly automated commercial motor vehicles

Public Comments

PHMSA is soliciting public comments on this ANPRM. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2024-0064). Comments should be submitted by March 4^th, 2026.

 

For more information on the information PHMSA is seeking, as well as a brief cybersecurity related discussion, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/phmsa-publishes-hazmat-via-hats-anprm - subscription required.

PHMSA Sends HAZMAT Autonomous Delivery ANPRM to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received an advanced notice of proposed rulemaking (ANPRM) from the DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) on “Hazardous Materials: Modernizing Regulations to Facilitate Transportation of Hazmat Using Autonomous Systems”.

According to the entry for this rulemaking in the Spring 2025 Unified Agenda:

“In this rulemaking, PHMSA would amend the Hazardous Materials Regulations (HMR) to address the role of autonomous transportation systems (e.g., drones, etc.) in the transportation of hazardous materials. The rulemaking will consider necessary clarifications to the HMR regarding handling, transportation, and hazard communication unique to the movement of hazardous materials by autonomous transport systems. PHMSA would coordinate closely with its modal partners within the Federal Aviation Administration, Federal Motor Carrier Safety Administration, Federal Railroad Administration, and U.S. Coast Guard to ensure a comprehensive approach that allows for the seamless movement of goods across multiple modes of transport while allowing for the specific needs of each mode to be safely addressed.”

HR 3684 Preliminary Review - INVEST in America Act

Last week, Rep DeFazio (D,OR) introduced HR 3684, the Investing in a New Vision for the Environment and Surface Transportation (INVEST) in America Act. This is the FY 2022 surface transportation authorization bill. This is just the preliminary review of the 1249-page bill. We have three limited cybersecurity related provisions, two hazardous material transportation provisions and one slightly odd provision that may be of interest.

Cybersecurity Related Provisions

§5303 – National highly automated vehicle and mobility innovation clearinghouse (pg 960)

Adds new §5507 to 49 USC, National highly automated vehicle and mobility innovation clearinghouse.

§5304 – Study on safe interactions between automated vehicles and road users (pg 962)

Includes the phrase “a cybersecurity threat to the operation of the vehicle” in discussing the considerations of when a ‘driver’ needs to be able to resume manual control.

§9217 – Amtrak  cybersecurity enhancement and resiliency grant program (pg 1135)

Adds new §24325 to 49 USC, Amtrak cybersecurity enhancement and resiliency grant program.

HAZMAT Transportation Provisions

§8202 – Transportation of liquefied natural gas by rail tank car (pg 1035)

Provides for stay of authorization for transportation of liquefied natural gas by tank car pending additional studies.

§8203 – Hazardous materials training requirements and grants (pg 1041)

Adds new (j) to 49 USC  49 USC 5107, assistance with local emergency responder training

Other Provisions

§3012 – Electronic driver’s license (pg 808)

Amends Real ID Act of 2005 and 18 USC 1028 to add the words ‘digital driver’s license’ without any definition.

Commentary

I am only going to comment on the last provision described above. Comments on other provisions will be held until a later, more detailed post.

Section 3012 is a very brief, 10-line bit of legislative language. It simply adds the word ‘digital driver’s license’ to two separate bits of US Code. This potentially disruptive change in the most common government identification document in the United States is being made in the least complicated method possible. It will, in effect, authorize the development of an electronic identification document without providing any guidance on what the minimum requirement will be for that document, describing what data protection requirements will be required, or establishing even minimal cybersecurity requirements would be for the document.

In my opinion, this provision needs to be greatly expanded in the amount of detail provided or simply be removed. There is not even any discussion about the potential need for such a document. We need to discuss this before it gets shoved into the nether regions of a piece of legislation like this.

Committee Hearings – Week of 06-05-16

This week the House and Senate return from their long Memorial Day weekend. The summer break is fast approaching and there are lots of important bills that should be completed by the time Congress leaves to avoid the ‘heat of summer’. Surprisingly there are only three hearings of potential interest and only one of those deals with an ‘important bill’.

Cybersecurity Markup

On Wednesday the House Homeland Security Committee will be holding a markup hearing to consider a number of bills, including the following cybersecurity related bills:

• HR 5064, the “Improving Small Business Cyber Security Act of 2016”;

• HR ___, the “Support for Rapid Innovation Act of 2016”;

• HR ___, the “Leveraging Emerging Technologies Act of 2016”; and

• HR ___, the “Cybersecurity and Infrastructure Protection Agency Act of 2016”.

None of these bills as currently written deal with control system security. The last bill is probably the most important in the long run as it changes the organization of the National Protection and Programs Directorate of DHS to the new more cyber focused ‘Cybersecurity and Infrastructure Protection Agency’. I’ll go into more detail after the bill is formally introduced.

FY 2017 DHS Spending

On Thursday the Homeland Security Subcommittee of the House Appropriations Committee will hold a mark-up hearing on their FY 2017 DHS spending bill.

FAST Act

The Senate Commerce, Science and Transportation Committee will be holding a hearing on “Implementation of the FAST Act”. This was the transportation bill that was passed last December which included a number of provisions concerning crude oil trains.

On the Floor

The Senate will resume consideration of S 2943, the FY 2017 NDAA. None of the amendments of potential interest to readers of this blog (see here, here, and here) have yet to be considered (and may never be considered given the large number of amendments proposed). We will just have to wait and see.

On Wednesday the House will consider S 2276. According to the House Majority Leader’s web site the House will actually be considering an amendment to the bill under suspension of the rules. That amendment is likely to be the language from HR 4937, the version of the PIPES Act that came out of the House Transportation Committee. There is a slight chance that it could be the language from HR 5050, a version of the House Energy and Commerce Committee that I have not reviewed here in this blog.

HR 2886 Introduced – V2V Research

Last week Rep. Lipinski (D,IL) introduced HR 2886, the Future Transportation Research and Innovation for Prosperity (Future TRIP) Act. This is a comprehensive bill establishing research requirements for the Department of Transportation to support the development, deployment and regulation of vehicle to vehicle (V2V) communications.

The bill covers a wide variety of topics, including:

∙ Automated and connected vehicle research initiative.

∙ University transportation centers program.

∙ Office of science and technology policy working group.

∙ Research and technology development and deployment amendments.

∙ State planning and research additional purposes.

∙ Bureau of transportation statistics.

∙ National cooperative freight transportation research program.

∙ Commercial remote sensing products and spatial information technologies.

∙ Transportation research and development strategic planning.

∙ Centers for surface transportation excellence.

Readers of this blog are going to be principally interested in two areas of discussion that are found within this bill; cybersecurity and hazmat transportation.

Cybersecurity

Section 2 of the bill requires the Secretary of Transportation to establish an Automated and Connected Vehicle Research Initiative. Part of the research agenda for that initiative would be a requirement to look at potential deployment guidance for the V2V program. The section directs that cyber-physical security would be included in that guidance.

In §2(h) the Secretary is directed to “establish a competitively selected Intelligent Transportation Systems Science & Technology Center”. Part of the purpose of that Center would be to train “the next generation of the transportation workforce” {§2(h)(3)}in cross-disciplinary fields, including cybersecurity.

And finally, in §2(i) the bill requires the Secretary to report to Congress about progress made under this Act. One of the topics in that report would be guidance on “the relationship of the proposed deployment of connected and automated vehicles to the national architecture and standards and protocols” required under 23 USC 517 {§2(i)(4)}. That guidance is to be based upon:

∙ Cyber-physical security and privacy; and

∙ Examines the interaction with other cyber-physical systems

Hazmat Transportation

One of the key goals of the V2V program envisioned in this bill it an increase in efficiency in road-based freight transportation by being able to safely increase the density and flow of over-the-road transportation. To support that §8 of the bill would add a new §509 to 23 USC. It would require the Secretary to establish a national cooperative freight transportation research program. The research agenda supporting that program would include “an emphasis on the safe and efficient transportation and handling of hazardous materials by all modes of transportation” {new §509(b)(1)(A)}.

Moving Forward

Lipinski is the Ranking Member of the Research and Technology Subcommittee of the House Science, Space and Technology Committee, so he almost certainly has the pull to get the bill considered by that Subcommittee. Interestingly, he is also a member of the Highways and Transit Subcommittee in the House Transportation and Infrastructure Committee, the other Committee that has been given the bill to consider. It looks like he may be uniquely positioned to help move this bill through both committees.

This is a complex bill but one that is probably high on the agenda for many organizations in the automotive industry. This is one of those bills that, if it makes it to the floor of the House (and that is not a given at this point) it will probably have to be considered under a Rule as I would suspect that there would be a desire to amend the bill on the part of a number of Members.

Commentary

While the topic of cybersecurity is mentioned in a number of places in this bill, I’m not sure that there is really enough emphasis on the topic. For example, in the list of agencies with which the Secretary is required to consult with in establishing the Research Initiative in §2, an agency that is strangely absent is DHS which is responsible for cybersecurity. I would really like to see either US-CERT, ICS-CERT or at least the DHS Office of Cybersecurity and Communications included on that list.

Because cybersecurity should be an important component of the V2V initiative I would have liked to see a specific research initiative set up to look at the issues of communications security, device security and most importantly cybersecurity patching. It is unlikely that individual car owners would be watching government web sites for vulnerability announcements and most would be unable (and more over un-willing) to deal with firmware updates. This is a study issue that should be addressed in this bill.

In the freight transportation realm we have an interesting possibility of being able to solve one of the long standing problems for first responders coming upon a freight related accident, telling what hazardous materials may be involved in the incident. It would be a good idea to include in the freight transportation research program a requirement to look at using V2V technology to provide manifest and Safety Data Sheet data to first responders directly from the vehicle communication system.

S 1611 Introduced – FY 2016 CG Authorization

Two weeks ago Sen. Thune (R,SD) introduced S 1611, the Coast Guard Authorization Act of 2015. This is the Senate version of the annual authorization bill. Unlike the House version (HR 1987 which passed in the House last month) there are two sections in this bill that will effect maritime transportation of hazardous chemicals. They deal with fishing vessels and with enforcement of hazardous material transportation law.

Fishing Vessels

Section 303 of the bill would amend 46 USC 3702, addressing the carriage of liquid bulk dangerous cargoes by fishing vessels. It would add a new paragraph (c) to that section that would generally exempt fishing or fish tender vessels from the provisions of 46 USC Chapter 37 when those vessels are “engaged only in the fishing industry” {new §3702(c)(1)}. That exemption would not apply if “the vessel is carrying flammable or combustible liquid cargoes in bulk” {new §3702(c)(2)}.

Enforcement

Section 304 would add a new section to 49 USC Chapter 51, Transportation of Hazardous Materials. The new §5129 would require the Secretary of Transportation and the DHS Secretary to “establish policies and practices to ensure that the authorities set forth in this chapter are enforced in the same manner and to the same extent, and the civil and criminal penalties are assessed or recommended in the same manner and to the same extent”.

Markup Hearing

The bill was marked up by the Senate Commerce, Science and Transportation Committee on June 25^th. A number of amendments were offered and accepted by voice vote, but only one may be of specific interest to readers of this blog. The amendment was offered by Sen. Peters (D,MI) and Sen. Johnson (R,WI) and would require a report to Congress on the assessment of the effectiveness of the oil spill response activities specific to the Great Lakes.

The bill was adopted by the Committee by voice vote.

Moving Forward

This bill will move to the full Senate, probably after the summer recess. There is a good chance that the bill will be considered as expeditiously as the House version was. The two versions would then be reconciled in Conference.

Bills Introduced – 04-13-15

The first day back in session and 55 bills are introduced. Seven of those may be of specific interest to readers of this blog:

HR 1731 To amend the Homeland Security Act of 2002 to enhance multi-directional sharing of information related to cybersecurity risks and strengthen privacy and civil liberties protections, and for other... Rep. McCaul, Michael T. [R-TX-10]

HR 1735 To authorize appropriations for fiscal year 2016 for military activities of the Department of Defense and for military construction, to prescribe military personnel strengths for such fiscal year.. Rep. Thornberry, Mac [R-TX-13] 

HR 1738 To amend the Homeland Security Act of 2002 to direct the Secretary of Homeland Security to modernize and implement the national integrated public alert and warning system to disseminate homeland... Rep. Bilirakis, Gus M. [R-FL-12]

HR 1753 To establish a National Office for Cyberspace, and for other purposes. Rep. Langevin, James R. [D-RI-2]

HR 1763 To provide for the minimum size of crews of freight trains, and for other purposes Rep. Young, Don [R-AK-At Large]

H Res 195 Expressing the sense of the House of Representatives about a national strategy for the Internet of Things to promote economic growth and consumer empowerment. Rep. Lance, Leonard [R-NJ-7] 

S 902 A bill to prohibit trespassing on critical infrastructure used in or affecting interstate commerce to commit a criminal offense. Sen. Schumer, Charles E. [D-NY]

HR 1731 is the new cybersecurity information sharing bill that is being marked up by the House Homeland Security Committee today.

HR 1735, the DOD spending bill, may contain cybersecurity language; we’ll see. This is one of the earliest spending bill introductions that I remember. We may actually see at least some of these passed before the start of the fiscal year.

HR 1738 is the second bill to address the national alerting system introduced this year. The first, HR 1472 is being marked up tomorrow. Unless something odd happens with either of these bills this will be the last time that they are mentioned.

HR 1753 could be interesting or it could be a bust. I’ll have to wait until I see the actual language to see if there is something specifically addressing control system security.

HR 1763 is a train safety issue. Unless the bill includes some specific mention of crude oil trains or hazmat shipments this will be the last mention here.

H Res 195 looks like it may be a response to S Res 110 that I lambasted when it was introduced. I’ll have more on this resolution later today.

S 902 looks like it is a re-issue of S 2934 that was introduced late in the last session of Congress. It was issued so late that I never really took a look at it. I’ll have to wait and see what it actually says before I decide to continue to cover it.

PHMSA Publishes HMR Update NPRM

Today the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) in the Federal Register (80 FR 3787-3838). The proposed rule would make a number of changes to the US hazardous material regulations (HRM); some based upon responses to public petitions, others on responses to NTSB accident investigation recommendations and some were initiated by internal agency actions.

Petition Responses

The changes proposed in this rulemaking include responses to the following public petitions:

P-1590 – Dangerous Goods Advisory Council (DGAC) - Remove the PG II designation for certain organic peroxides, self-reactive substances and explosives in the § 172.101 Hazardous Materials Table (HMT);

P-1591 – Air Products and Chemicals, Inc - Amend the marking requirements for poisonous by inhalation shipments transported in accordance with the International Maritime Dangerous Goods (IMDG) Code or Transport Canada's Transport of Dangerous Goods (TDG) Regulations (§ 171.23);

P-1597 – DGAC- Require that emergency response telephone numbers be displayed on shipping papers numerically (§ 172.604);

P-1601 – United Parcel Service (UPS) - Amend the packaging instructions for certain shipments of nitric acid by requiring intermediate packaging for glass inner packagings (§ 173.158);

P-1604 – National Propane Gas Association (NPGA) - Extend the pressure test and internal visual inspection test period to ten years for certain MC 331 cargo tanks in dedicated propane delivery service (§ 180.407);

P-1605 – Compressed Gas Association (CGA) - Incorporate by reference in § 171.7 CGA Pamphlet G-1.6, Standard for Mobile Acetylene Trailer Systems, Seventh Edition(§§ 171.7 and 173.301); and

P-1609 – Truck Trailer Manufactures Association - Clarify the requirements applicable to the testing of pressure relief devices for cargo tank motor vehicles (§ 180.407).

NTSB Recommendations

Some of the changes are based upon two recent NTSB recommendations dealing with the shipment of acetylene cylinders mounted on mobile acetylene trailers. The specific NTSB recommendations were:

H-09-01 - Modify 49 CFR § 173.301 to clearly require (1) that cylinders be securely mounted on mobile acetylene trailers and other trailers with manifolded cylinders to reduce the likelihood of cylinders being ejected during an accident and (2) that the cylinder valves, piping, and fittings be protected from multidirectional impact forces that are likely to occur during highway accidents, including rollovers; and

H-09-02 - Require fail-safe equipment that ensures that operators of mobile acetylene trailers can perform unloading procedures only correctly and in sequence.

PHMSA Initiated Changes

There is a rather extensive list of PHMSA initiated changes include in this NPRM. That list includes:

● Revise § 107.402(d)(2) to replace the term “citizen” with the term “resident.”

● Revise § 107.402(e) to require that a lighter certification agency submits a statement that the agency is independent of and not owned by a lighter manufacturer, distributor, import or export company, or proprietorship.

● Revise § 107.402(f) to require portable tank and multi-element gas container (MEGC) certification agencies to submit a statement indicating that the agency is independent of and not owned by a portable tank or MEGC manufacturer, owner, or distributor.

● Revise § 107.807 to require a cylinder inspection agency to be independent of and not owned by a cylinder manufacturer, owner, or distributor.

● Remove the entry for CGA Pamphlet C-1.1 in Table 1 to § 171.7.

● Incorporate by reference updated versions of the American Association of Railroads (AAR) Manual of Standards and Recommended Practices, Section C-III, Specifications for Tank Cars, Specification M-1002 in § 171.7.

● Revise the § 172.101 table to add Special Provision B120 to Column (7) for the entry “Calcium nitrate, UN1454.”

● Revise the entry for “Propellant, solid, UN0501” to remove vessel stowage provision 24E from Column (10B) of the HMT.

● Revise the PG II HMT entry for “UN2920, Corrosive liquids, flammable, n.o.s.,” to for consistency with the UN Model Regulations, IMDG Code, and the ICAO TI such that this entry is eligible for the limited quantity exceptions.

● Revise the PG II HMT entry for “UN3085, Oxidizing solid, corrosive, n.o.s.” for consistency with the UN Model Regulations, IMDG Code and the ICAO TI such that this entry is eligible for the limited quantity exceptions.

● Revise the HMT entries for “Trinitrophenol (picric acid), wetted,with not less than 10 percent water by mass, UN3364” and “Trinitrophenol, wetted with not less than 30 percent water, by mass, UN1344” to harmonize the HMR with the UN Model Regulations, IMDG Code, and the ICAO TI to clarify that the 500 gram limit per package does not apply to UN1344 but does apply to UN3364.

● Revise Special Provision 136, assigned to the proper shipping name “UN3363, Dangerous goods in machinery or apparatus,” in § 172.102 to include reference to Subpart G of Part 173.

● Remove reference to obsolete Special Provision 18 for the HMT entry “UN1044, Fire extinguishers” and in § 180.209(j) and provide correct cross reference to § 173.309.

● Correct a reference in § 172.201 to exceptions for the requirement to provide an emergency response telephone number on a shipping paper.

● Revise §§ 172.301(f), 172.326(d) and 172.328(e) to include the clarification that the NOT-ODORIZED or NON-ODORIZED marking may appear on packagings used for both unodorized and odorized liquefied petroleum gas (LPG), and remove the effective date of October 1, 2006 or “after September 30, 2006,” if it appears in these paragraphs, as the effective date has passed.

● Amend § 172.406(d) by clearly authorizing the use of labels described in Subpart E with a dotted or solid line outer border on a surface background of contrasting color.

● Update a mailing address in § 172.407(d)(4)(ii).

● Clarify the marking size requirements for an intermediate bulk container (IBC) that is labeled instead of placarded by replacing the bulk package marking reference in § 172.514(c) with the non-bulk marking reference, specifically, § 172.301(a)(1).

● Revise § 173.4a(a) to clarify that articles (including aerosols) are not eligible for excepted quantity reclassification under § 173.4a, although some are eligible to be shipped as small quantities by highway and rail in § 173.4.

● Revise § 173.21(e) to prohibit transportation or offering for transportation materials in the same transport vehicle (e.g., a trailer, a rail car) with another material, that could cause a dangerous evolution of heat, flammable or poisonous gases or vapors, or produce corrosive materials if mixed.

● Clarify that the requirements provided in paragraph § 173.24a(c)(1)(iv) do not apply to limited quantities packaged in accordance with § 173.27(f)(2).

● Clarify the quantity limits for mixed contents packages prepared in accordance with § 173.27(f)(2).

● Clarify the requirements applicable to bulk transportation of combustible liquids by adding new subparagraph § 173.150(f)(3)(xi) stating that the registration requirements in Subpart G of Part 107 are applicable and revising §§ 173.150(f)(3)(ix) and 173.150(f)(3)(x) for punctuation applicable to a listing of requirements.

● Add a new paragraph (j) in § 173.159 to allow shippers to prepare for transport and offer into transportation damaged wet electric storage batteries.

● Revise § 173.166(e)(6) to add the words “or cargo vessel.”

● Revise §§ 173.170 and 173.171 by changing the term motor vehicle to transport vehicle to allow for motor vehicles comprised of more than one cargo-carrying body to carry 100 pounds of black or smokeless powder reclassed as Division 4.1 in each cargo-carrying body instead of 100 pounds total in the motor vehicle.

● Revise § 173.199(a)(4) by removing the reference to the steel rod impact test in § 178.609(h).

● Clarify the Packing Method table for organic peroxide materials in § 173.225.

● Amend the bulk packaging section reference in Column (8C) of the HMT from § 173.240 to § 173.216 for the entries “Asbestos, NA2212,” “Blue asbestos (Crocidolite) or Brown asbestos (amosite, mysorite) UN2212,” and “White asbestos (chrysotile, actinolite, anthophyllite, tremolite), UN2590.” In addition, we are proposing to revise paragraph (c)(1) in § 173.216 by authorizing the use of bulk packages prescribed in § 173.240.

● Add a new paragraph (d)(5) to § 173.304a, a new paragraph (h) to § 173.314 and revise § 173.315(b)(1) to require odorization of liquefied petroleum gas when contained in cylinders and rail cars.

● Amend § 173.306(k) to clarify that aerosols shipped for recycling or disposal by motor vehicle containing a limited quantity are afforded the applicable exceptions provided for ORM-D materials granted under §§ 173.306(i) and 173.156(b).

● Create a new paragraph (d) in § 175.1 stating that the HMR do not apply to dedicated air ambulance, firefighting, or search and rescue operations.

● Correct § 175.8 by adding the appropriate 14 CFR, Part 125 citations.

● Clarify exceptions for passengers, crewmembers, and air operators in paragraphs (a)(18), (a)(22), and (a)(24) of § 175.10 for the carriage of hazardous materials aboard a passenger aircraft.

● Clarify § 175.75(e)(2) by replacing the word “located” with “certificated.”

● Clarify § 176.30(a)(4) by replacing the word “packaging” with “package.”

● Clarify that the loading restrictions in § 177.835(c)(1) through (4) are applicable to § 177.848(e).

● Revise § 178.65(i)(1) to correctly reference the manufacturer's report requirements in § 178.35(g).

● Clarify § 178.337-17(a) to eliminate confusion of the name plate and specification plate requirements.

● Correct an editorial error in the formula in § 178.345-3(c)(1).

● Include provisions consistent with the non-bulk packaging and IBC approval provisions for Large Packagings in § 178.955.

● Clarify the requirements for Federal Railroad Administration (FRA) approval of tank car designs in § 179.13.

● Revise § 180.401 to replace the term “person” with “hazmat employee or hazmat employer” to clarify that Subpart E of Part 180 does not only apply to persons offering or transporting hazardous materials.

Public Comments

PHMSA is soliciting public comments on this NPRM. Comments may be submitted via the Federal eRulemaking Portal {www.Regulations.gov; Docket # PHMSA-2013-0225 (HM-218H)}. Comments should be submitted by March 24^th, 2015.

PHMSA Publishes Harmonization Final Rule

Today the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a final rule in the Federal Register (80 FR 1075-1169) finalizing their latest effort to harmonize the US hazardous material regulations (HMR) with their equivalent international counterparts. The NPRM for this rule was published in August.

The following changes proposed in the NPRM were adopted in this final rule. There were some editorial changes made to clarify points raised during the public comments on the NPRM.

• Incorporate Revised Standards;

• Adsorbed Gas HMT Entries;

• Provide Exceptions for Marine Pollutants;

• Modification of the Marine Pollutant List;

• Revise Vessel Stowage Requirements;

• Harmonized Requirements for Lithium Batteries;

• Definition of Non-Bulk Packaging; and

• New HMT entries (large number of changes).

I made the comment in my NPRM blog post that PHMSA was under a deadline to get this final rule published by January 1^st, 2015 so that US shippers could comply with both the HMR and international regulation changes that were to become effective on that date. PHMSA missed by just a week, but covered themselves by making the effective date January 1^st and authorizing voluntary compliance as of that date. The required compliance date for this rule is January 1^st, 2016.

PHMSA Publishes Two Preemption Determination Requests

The DOT Pipeline and Hazardous Material Safety Administration (PHMSA) published two notices in today’s Federal Register {79 FR 21838-21840 (NY); 79 FR 21840-21842 (PA)} concerning requests by the American Trucking Association for determination of preemption of hazardous material permitting rules in New York City and Pittsburgh, PA. A determination of preemption would mean that the cities could not require the permits in question nor collect the fees for those permits.

New York City

The ATA has asked PHMSA to determine if the Federal Hazmat Transportation Law (49 USC Chapter 51) preempts the hazardous material transportation permitting requirements of Section 2702-02 of Title 3 of the Rules of the City of New York.

Pittsburgh

The ATA has asked PHMSA to determine if the Federal Hazmat Transportation Law (49 USC Chapter 51) preempts the hazardous material transportation permitting requirements of Chapter 801 of Title 8 of the Pittsburgh Code, Fire Prevention.

Public Comments

PHMSA is soliciting public comments on both petitions. Comments may be submitted via the Federal eRulmaking Portal {www.Regulations.gov; Docket # PHMSA-2014-0003 (NY) or Docket # PHMSA-2014-0002 (PA)}. Comments should be submitted by July 16^th, 2014.

FMCSA Publishes 30-day ICR for HAZMAT Routing

Today the Federal Motor Carrier Safety Administration (FMCSA) published a 30-day information collection request (ICR) in the Federal Register (79 FR 9034-9035) supporting the requirement (49 USC §5112) that States identify designated/restricted routes and restrictions or limitations affecting how motor carriers may transport certain hazardous materials on their highways.

Previous Public Comment

ICR’s always include provisions for public comment on the collection request, but rarely are such comments submitted. The 60-day ICR notice on this collection did draw one comment (.PDF Download) from the American Trucking Association (ATA). The ATA comment addresses three issues:

• ATA objection to permissive wording for the submission of State routing data;

• Change in reporting frequency (adds ‘within 60-days of making a change) requirement from MAP-21; and

• Requirement for FMCSA to publish annual update to hazmat routing lists in Federal Register.

FMCSA acknowledges receipt of the ATA comment and notes that it will consider the comment. It would have been more appropriate for it to address the issues raised (it only specifically mentions the second issue described above in this notice) in this ICR notice so that concerned parties could comment on the changes if it was deemed appropriate.

For example, while the abstract for the currently approved ICR clearly states that “are required to provide information to the FMCSA” described in this ICR, this notice continues to state that FMCSA has “the authority to request that each State and Indian tribe” provide that information.

While that may be question of semantics that has no real effect on this ICR, the question of addressing the 60-day update requirement certainly could affect the burden estimates in this notice. I suspect that this was not addressed because FMCSA has not yet made the regulatory changes that support this legislative change in requirements, but this notice should have specifically noted that.

The final ATA comment is not really pertinent to this ICR notice and that is acknowledged to be the case in the actual language in the ATA comment. Still, FMCSA should have acknowledged the existence of that specific comment and noted that it was not pertinent to the ICR under consideration.

Public Comment Solicited

As is usual and required, FMCSA is soliciting comments on this 30-day ICR notice. The notice states that comments should be sent directly to the OMB’s Office of Information and Regulatory Affairs (oira_submission@omb.eop.gov). To ensure proper consideration of those comments, they should be submitted by March 17^th, 2014. A copy of this blog post is being submitted as a comment.

PHMSA Publishes Five 60-day ICR Notices

Today the Pipeline and Hazardous Material Safety Agency (PHMSA) published a 60-day information collection renewal (ICR) notice in the Federal Register (78 FR 64049-64051) for five separate ICRs a variety of hazardous material shipping programs.

The five ICRs were:

2137-0018: Inspection and Testing of Portable Tanks and Intermediate Bulk Containers

2137-0051: Rulemaking and Special Permit Petitions

2137-0510: Radioactive (RAM) Transportation Requirements

2137-0586: Hazardous Materials Public Sector Training and Planning Grants

2137-0595: Cargo Tank Motor Vehicles in Liquefied Compressed Gas Service

PHMSA was able to get away with publishing all five in a single notice because there were no changes in the burden estimates for any of these ICR requests. The table below shows the current burden estimates for these ICRs.

OMB Control #	Respondents	Responses	Hours
2137-0018	8,770	86,100	66,390
2137-0051	3,304	4,294	4,899
2137-0510	3,817	21,519	15,270
2137-0586	68	68	5,290
2137-0595	6,958	920,538	200,914

PHMSA is soliciting public feedback on these five ICRs. Comments may be submitted via the Federal eRulemaking Portal {www.Regulations.gov; Docket # PHMSA-2013-0002 (Notice No. 13-14)}. Comments should be submitted by 12-24-13.

FMCSA Publishes 60-Day ICR Renewal Notice for Hazmat Highway Routings

Today the Federal Motor Carrier Safety Administration published in the Federal Register (78 FR 63280) a 60-day information collection request (ICR) notice supporting the FMCSAs program for collecting information about State programs for designating hazardous material highway routes under 49 CFR §397.73.

This is a straight forward renewal of an existing ICR without any changes in the burden estimates.

Public comments are being solicited. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # FMCSA-2013-0305). Such comments should be submitted by December 23^rd, 2013.

FRA Publishes RSAC Meeting Notice – 10-31-13

The Federal Railroad Administration published a meeting notice in today’s fiscal fiasco shortened Federal Register (78 FR 62002-62003) for the Railroad Safety Advisory Committee. The October 31^st meeting will be held in Washington, DC.

The topics to be addressed in the meeting include reports by the following working groups:

• Train Crew Size;

• Securement;

• Hazardous Material Issues;

• Fatigue Management;

• Rail Failure; and

• Risk Reduction 

This is a very short notice and does not include the standard verbiage about public comments, either written or verbal. I suppose we should be happy that there was someone at the FRA to prepare this shortened meeting notice so that it could be published in a timely manner in the Federal Register.

BTW: There are some interesting documents on the RSAC web site from the August 29^th emergency meeting about the Canadian oil train derailment response. I may have a blog post on these this weekend.

PHMSA Rail Hazmat Safety ANPRM

Today the Pipeline and Hazardous Material Safety Administration (PHMSA) published the advance notice of proposed regulations that I discussed earlier in today’s Federal Register (78 FR 54849-54861). The proposed rule is a response to eight petitions from the regulated community and four recommendations from the Nation Transportation Safety Board (NTSB) for changes to requirements for the rail shipment of hazardous materials.

The petitions addressed include:

P-1507 – Eastman Chemical suggests revising §174.50 to provide FRA greater discretion in authorizing car movement;

P-1519 – CGA suggests revising §173.314 Note 5 to clearly indicate that the liquid portion of the gas must not completely fill the tank prior to reaching the pressure setting of the regulating valves or the safety relief valve, whichever is lower;

P-1547 – Carroll Welding Supply suggests revising the regulations by revising ton tank repair, maintenance, and marking regulations for consistency with existing regulations for DOT 3-series cylinders since ton tanks share more in common with these cylinders than tank cars;

P-1548 – The ACC is suggests that PHMSA incorporate Special Permit DOT SP-13219 into the HMR;

P-1577 – The AAR suggests new standards for DOT Specification 111 tank cars for PG I and PG II materials based on findings and recommendations created by AAR's Tank Car Committee;

P-1587 - The Village of Barrington, Illinois and The Regional Answer to Canadian National suggest that PHMSA adopt NTSB Recommendation R-07-04, R-12-5, R-12-6, R-12-7, and R-12-8;

P-1595 – The ACC, API, and CI suggest that PHMSA institute a separate rulemaking to specifically address new tank car construction standards for ethanol and crude oil in PG I and II; and

P-1612 – The ACC, API, CI, and RFA suggest that PHMSA act expeditiously by issuing a direct final rule to implement the changes P-1577 and the T87.6 Task Force Summary Report for ethanol and crude oil.

Public comments keyed to the petition number are being solicited by PHMSA. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2012-0082). Comments must be submitted by November 5^th, 2013.

HR 1026 and S 485 - No HME for Farm Diesel Haulers

As I noted last Friday there were bills introduced in the House and Senate that would address the issue of farm service vehicles hauling diesel fuel. HR 1026 {Introduced by Rep Neugebauer (R,TX)} and S 485 {Introduced by Sen Roberts (R,KS)} are companion bills (identical language) that would, according to the title of the bills:

Exempt certain class A CDL drivers from the requirement to obtain a hazardous material endorsement while operating a service vehicle with a fuel tank containing 3,785 liters (1,000 gallons) or less of diesel fuel.

The bills are a little more complex than that (everything is in Washington), but essentially Roberts and Neugebauer are trying to make it easier for farm operations to haul diesel fuel to their large processing machinery.

Transportation of Hazardous Materials

Section 1a of these bills has nothing to do with driver qualification. It would amend 49 USC §5117, Special Permits and Exclusions, by adding §5117(d)(1)(D). As it currently reads §5117(d)(1) requires the Secretary to exclude, in any part, from this chapter [49 USC Chapter 51: Transportation of Hazardous Material and regulations prescribed under this chapter] short list of vessels. The new paragraph would add a ‘service vehicle’ carrying 1,000 gallons or less of diesel fuel as long as that service vehicle met two conditions.

The first condition is that the service vehicle be driven by a class A commercial driver’s license holder who is {§5117(d)(1)(D)(i)}:

• A custom harvester;

• An agricultural retailer;

• An agricultural business employee;

• An agricultural cooperative employee; or

• An agricultural producer

The second condition is that the vehicle is “clearly marked with a placard reading ‘Diesel Fuel’” {§5117(d)(1)(D)(ii)}. This clearly is intended to change the current marking of such a vehicle from the standard DOT hazmat placard. Unfortunately, the choice of the word ‘placard’ here might cause some minor issues at DOT since ‘placard’ is already a clearly defined term in the hazardous material regulations. It might make things easier for the regulators if the word ‘device’ were used instead.

The intent here is that these service vehicles do not need to meet the same safety requirements for normal fuel hauling vehicles because they are not intended to be used for hauling fuel ‘over the road’. They are principally used for hauling fuel from a local distributor out to heavy agricultural equipment operating in a farmer’s field. Of course the same argument could be made for any company that brings diesel to heavy equipment operating principally in an off-road setting; earth moving equipment in the construction industry for instance.

There is another minor issue that may cause some unintended consequences if/when this gets in front of a judge. Everything else in §5117 deals with special permits which have to be applied for and are only good for two years. After two years, the special permits must be renewed. The exemptions under §5117(d) are not ‘special permits’ and there is nothing said about ‘exclusions’ in the discussion of time limits and renewals. Lawyers will have fun with that distinction.

Hazardous Materials Endorsement

Seciont 1(b) of the bills would actually address the issue of the need for hazardous materials endorsements for drivers of vehicles described above. It would amend 49 USC $ 31315 by adding paragraph (b)(8):

“The Secretary shall exempt all class A commercial driver’s license holders who are custom harvesters, agricultural retailers, agricultural business employees, agricultural cooperative employees, or agricultural producers from the requirement to obtain a hazardous material endorsement under part 383 [49 CFR §383.93(b)(4)]  of title 49, Code of Federal Regulations, while operating a service vehicle carrying diesel fuel in quantities of 3,785 liters (1,000 gallons) or less if the tank containing such fuel is clearly marked with a placard reading ‘Diesel Fuel’.”

The idea goes that since the vehicle is no longer governed by the hazardous materials rules (beyond the ‘Diesel Fuel’ placard) that there should be no need for the driver to have to go through the additional testing about the hazardous materials regulations and the additional vetting by the Transportation Security Administration necessary for the HME.

Actually I would bet that it is the TSA security threat assessment (STA) requirements for HME holders that is providing the problem for many of the potential drivers of these fueling vehicles. While the TSA does check the HME applicants against the Terrorist Screening Database (TSDB), I would suspect that the greatest factor in rejecting HME applicants has to do with the criminal background checks and the disqualifying periods for substance abuse convictions (49 CFR §1572.1030).

Remember the discussion above about special permits, two-years, and renewals. Well that issue is much more important for this section of the bill. Section 31315(b)(1) sets the general guidelines for all of the exemptions listed in §31315 (unless, of course, specifically exempted). That paragraph includes the following:

“An exemption may be granted for no longer than 2 years from its approval date and may be renewed upon application to the Secretary.”

There is nothing in the language of this bill that would provide an exception to the general provisions of §31315(b)(1). Thus, it would appear that any regulations supporting this legislation, if passed, would require some sort of application process for the exemption. I’m pretty sure that this is not what the agricultural businesses behind this bill had really intended.

Moving Forward

Well, the farm lobby is certainly powerful, and I can’t think of any group that would adamantly oppose this bill (though I suspect that law enforcement might have some misgivings), and it doesn’t cost any money, so if this came to the floor for a vote, it would probably pass. The big question here is if there is enough of a push for this to get it to the floor. Let’s see how fast it gets considered in committee.

The alternative for small focused bills like this is for them to get added to a larger bill that needs to come to the floor. A transportation authorization bill would be a great vehicle to attach this to or even a farm bill. That is probably the most likely way that this would become law.

TSA Publishes 30-day ICR Renewal Notice for HME-STA

Today the TSA published a 30-day information collection request (ICR) renewal notice in the Federal Register (78 FR 13367-13368) to support the collection of information from personnel applying for a Hazardous Materials Endorsement to their State Commercial Driver’s License. The TSA uses the collected information to conduct a Security Threat Assessment (STA) required under 49 USC 5103a.

As I noted in my blog post concerning the 60-day notice for this ICR renewal, TSA is forecasting a continuing decline in the number of applications for new and renewed HME. Other than the change in burden hours and cost associated with this declining enrollment, there are no changes being made from the currently approved ICR.

Public comments on this ICR renewal may be submitted to OMB via email (oira_submission@omb.eop.gov). Such comments should be received by March 29^th, 2013.

Hazmat Legislation Introduced in Senate

Earlier this month Sen. Lautenberg (D,NJ) introduced S. 1952, the Hazardous Materials Transportation Safety Improvement Act of 2011. This legislation, co-sponsored by the Chairman of the Senate Commerce, Science and Transportation Committee, addresses a number of issues concerning hazardous materials transportation and operations by the Pipeline and Hazardous Materials Safety Administration. It is essentially the PHMSA reauthorization bill.

The provisions of this bill address the following areas:

• Accounting for the results of grant supported training programs for emergency responders;

• Conducting a Paperless Hazard Communications Pilot program trial;

• Reporting to Congress on improving the data collection, analysis and reporting on hazmat accidents and incidents;

• Initiating rulemaking on the loading and unloading of bulk hazardous materials;

• Establishing a hazardous material enforcement training program;

• Making minor revisions to regulations regarding inspections;

• Increasing civil penalties;

• Modifying the authority to issue special permits, approvals and exclusions; and

• Requiring State reporting of hazmat highway routing designations.

• Authorizing spending for the hazardous materials regulations programs.

The Senate Commerce Committee met last week in executive session and adopted this bill without changes. Chairman Rockefeller mentioned that this bill would probably be rolled into a larger surface transportation authorization bill in the second session of the 112^th Congress.

Congressional Hearings Week of 4-11-11

While the big news for the coming week in Congress will be the details of the promised compromise on the FY2011 spending bill, there will be at least three hearings that look like they will be of interest to the chemical security community. They will deal with cyber security, hazmat transportation and the TWIC. Unfortunately there are no details available yet on any of the following hearings.

Cyber Security

The Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies of the House Homeland Security Committee will be holding a hearing on Friday morning on “The DHS Cybersecurity Mission: Promoting Innovation and Securing Critical Infrastructure”. There is a good chance that control system security will receive some attention at this hearing.

Hazmat Transportation

The Subcommittee on Railroads, Pipelines, and Hazardous Materials of the House Transportation Committee will be holding a hearing on Tuesday afternoon on “Reducing Regulatory Burdens and Ensuring Safe Transportation of Hazardous Materials”. This is the second in a series of hearings looking at the Hazardous Materials Regulations and the Pipeline and Hazardous Materials Safety Administration (PHMSA). Security will not probably be a specific topic, but much of what is included in the HMR may have an indirect effect on chemical security matters.

TWIC

Finally the full Transportation Committee will conduct a hearing on Thursday morning looking at “Biometric IDs for Pilots and Transportation Workers: Diary of Failures”. Sure to be addressed in this hearing will be the delays in the regulations for the use of TWIC Readers. Another issue that might come up will be the use of TWIC in other security venues like CFATS covered facilities.

FY 2011 Spending Bill

With last night’s last minute deal on a spending bill for the remainder of FY 2011 we can expect to see at least a Rule Committee hearing on the new bill that will provide the (hopefully) final extension of the current CR. There have been no details released yet about where the cuts will actually come from, but there will be somewhere near $30 Billion in additional cuts; some will probably come from DHS. As always, the devil is in the details. And, of course, we are looking to see that the CFATS authority extension is included in the bill; it almost certainly will be.

FY 2012 Spending Bills

In the brief speechifying this morning before the House vote on HR 1363 both the Chairman and Ranking member of the House Appropriations Committee promised that they would have 12 spending bills on the floor of the House before the August recess. They also promised an open process with plenty of amendments to be offered from both sides of the aisle. To achieve this goal they are going to have to step up the process on the hearings. Right now the Homeland Security Subcommittee does not have any hearings scheduled this week; that is likely to change.

What will be interesting to see is if the new ‘open’ process promised by the new Republican leadership will include publishing sub-committee drafts of the spending bills before the mark-up hearings start. That will make it much easier to understand the amendment process in their hearings.