Hazardous Materials: Eliminating Unnecessary Regulatory Burdens on Fuel Transportation

Hazardous Materials: Eliminating Unnecessary Regulatory Burdens on Fuel Transportation

SUPPLEMENTARY INFORMATION:

I. Executive Summary

II. Incorporation by Reference Discussion Under 1 CFR Part 51

III. Identification Number Markings for Petroleum Distillate Fuels

A. Background

B. Action Taken in This Final Rule

C. Response to NPRM Comments

IV. Response to NPRM Comments on Other Final Rule Provisions

A. Electronic Submission of Cargo Tank Registration

B. The Chlorine Institute Publication

C. Exception From Security Awareness Training

D. Reflective Design of Uninsulated Cargo Tanks

E. Use of Video Cameras for Cargo Tank Inspections and Tests

V. Section-by-Section Review of Amendments

A. Section 107.502

B. Section 171.7

C. Section 172.303

D. Section 172.336

E. Section 172.704

F. Section 173.315

G. Section 178.337-1

H. Section 180.407

VI. Regulatory Analysis

A. Statutory/Legal Authority

B. Executive Order 12866 and Regulatory Planning and Review

C. Executive Orders 14192 and 14219

D. Executive Order 13132

E. Executive Order 13175

F. Regulatory Flexibility Act and Executive Order 13272

G. Paperwork Reduction Act

H. Unfunded Mandates Reform Act of 1995

I. National Environmental Policy Act: Environmental Assessment

J. Privacy Act

K. Executive Order 13609 and International Trade Analysis

L. National Technology Transfer and Advancement Act

M. Energy-Related Executive Orders 13211, 14154, and 14156

N. Cybersecurity and Executive Order 14028

O. Severability

I. Executive Summary

PHMSA is adopting several amendments proposed in the HM-265 notice of proposed rulemaking (NPRM) titled Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel Transportation. ⁽¹⁾ These amendments will reduce costs and eliminate unnecessary regulatory burdens on the transportation of hazardous materials, including energy products, while maintaining the current level of safety provided by the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). The amendments adopted in this final rule are:

• In part 107, subpart F, revise the cargo tank facility registration requirements to allow for electronic submission procedures.

• In section 171.7, replace the current incorporation by reference of Chlorine Institute (CI) drawings in paragraphs (l)(3) and (l)(4) with the entire CI Pamphlet 49, Recommended Practices for Handling Chlorine Bulk Highway Transports, which provides guidelines for the safe transportation of chlorine by highway. The updated incorporation by reference includes the use of the Midland Type pressure relief device (PRD) for cargo tanks transporting chlorine as referenced in updated section 173.315.

• In section 172.336, revise the marking requirements for multiple petroleum distillate fuels to allow the marking of the identification number of the fuel with the lowest flash point transported in the same or previous business day.

• In section 172.704, include hazmat employees who only manufacture packagings within the scope of the existing exception from safety training. Further, remove the security awareness training requirement for any hazmat employees who only perform hazmat activities related to packagings ( e.g., employees who manufacture, repair, modify, recondition, or test packagings, and do not offer for transportation or transport hazardous materials in commerce).

• In section 178.337-1(d), allow the use of external coverings other than paint that meet reflectivity requirements for Cargo Tank Motor Vehicles (CTMVs).
• In section 180.407(a)(7), allow the use of video cameras or video optics equipment for cargo tank inspections or tests.

PHMSA included several other proposals in the NPRM that are not being advanced in this final rule. The proposals included, among other things, amendments to the HMR to address 2017 Rail Safety Advisory Committee (RSAC) consensus recommendations; the Association of American Railroads' (AAR) delegated authority to approve tank car designs and tank car facility quality assurance programs; revisions to the construction and qualification of highway CTMVs; revisions to improve the safe transport of hazardous materials by vessel; and other multi-modal provisions. PHMSA is continuing to evaluate the merits of these proposals and may publish another final rule at a later date. ⁽²⁾

The amendments adopted in this final rule provide substantial cost savings by reducing unnecessary burdens on the transportation of petroleum distillate fuels, such as gasoline and diesel fuel, by motor carriers. This final rule also provides cost savings to the hazardous materials packaging industry by removing an unnecessary training requirement and adopting measures allowing the use of technologies that introduce efficiencies for cargo tank tests and inspections. Together, the amendments adopted in this final rule provide a quantified cost savings of approximately $145.3 million per year, while also providing qualitative benefits to energy transportation through greater regulatory flexibility for cargo tank owners and cargo tank facility operators.

II. Incorporation by Reference Discussion Under 1 CFR Part 51

PHMSA currently incorporates by reference into the HMR all or parts of numerous standards and specifications developed and published by standards development organizations (SDO). In general, SDOs accredited as voluntary consensus standards bodies develop, establish, or coordinate technical standards using agreed-upon procedures and update and revise their published standards every two to five years to reflect modern technology and best technical practices. The National Technology Transfer and Advancement Act of 1995 (NTTAA; Pub. L. 104-113) directs Federal agencies to use standards developed by voluntary consensus standards bodies in lieu of government-written standards whenever possible. The Office of Management and Budget (OMB) issued Circular A-119, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities, ⁽³⁾ to implement section 12(d) of the NTTAA relative to the utilization of consensus technical standards by Federal agencies. This circular provides guidance for agencies participating in voluntary consensus standards bodies and describes procedures for satisfying the reporting requirements in the NTTAA.

PHMSA is responsible for determining which standards currently referenced in the HMR should be updated, revised, or removed, and which standards should be added to the HMR, under the NTTAA and OMB Circular A-119. Revisions to materials incorporated by reference in the HMR are handled via the rulemaking process, which allows for the public and regulated entities to provide input. During the rulemaking process, PHMSA must also obtain approval from the Office of the Federal Register to incorporate by reference any new materials. The Office of the Federal Register issued a rulemaking  ⁽⁴⁾ that revised 1 CFR 51.5 to require that an agency detail in the preamble of a rulemaking the ways the materials it proposes to incorporate by reference are reasonably available to interested parties, or how the agency worked to make those materials reasonably available to interested parties. Changes to the material incorporated by reference in the HMR are detailed in the section 171.7 discussion in "Section V. Section-by-Section Review of Amendments."

In this final rule, PHMSA incorporates by reference the CI Pamphlet 49 in its entirety, rather than incorporating individual valve design drawings from the document as was done in the past. This authorizes an additional pressure relief valve design for cargo tanks in chlorine service. PHMSA has reviewed Pamphlet 49, including the valve design drawing mentioned, and found this new valve meets PHMSA's safety standards, and that incorporating this document by reference into the HMR will not reduce safety but instead will allow more flexibility for CTMV owners and operators.

The Chlorine institute sells their standards one their website. The edition of the Pamphlet 49 incorporated by reference in this final rule can be obtained by contacting the Chlorine Institute bookstore by phone at (703) 894-4140, by email at [email protected], or at their contact page at https://www.chlorineinstitute.org/contact-us.

III. Identification Number Markings for Petroleum Distillate Fuels

A. Background

The HMR require bulk packages containing hazardous materials to be marked with the identification number assigned to the hazardous material contained in the package- see section 172.302. This requirement is often met by displaying the required identification number inside the hazard class placard that is also displayed on the bulk package- see section 172.332(c) and (d). The requirement to mark the identification number on a cargo tank may also be met by using an orange panel or white square-on-point- see sections 172.328, 172.332(b), and 172.336(b), respectively.

The Hazardous Materials Table (HMT) in section 172.101 contains hundreds of identification numbers for flammable liquids. Flammable liquids, also known as Class 3 materials, are defined as liquids that have a flash point less than or equal to 60 °C (140 °F)- see section 173.120(a). Flash point means the minimum temperature at which a liquid gives off vapor within a test vessel in sufficient concentration to form an ignitable mixture with air near the surface of the liquid- see section 173.120(c). Generally, liquids with a lower flash point present a greater relative hazard than those with higher flash points because they can ignite at lower temperatures.

Many of the fuels Americans rely on to power their cars, trucks, and boats, and to heat their homes are flammable liquids derived from the distillation of crude oil. ⁽⁵⁾ These fuels, which include gasoline (UN1203), kerosene (UN1223), diesel fuel (NA1993/UN1202), and fuel oil (NA1993), are commonly referred to as "petroleum distillate fuels." Gasoline has a flash point of −45 °C (−49 °F)  ⁽⁶⁾ compared to 52 °C (126 °F) for diesel fuel, ⁽⁷⁾ 37.8 °C (100 °F) for kerosene, and 38 °C (100.4 °F)  ⁽⁸⁾ to 58 °C (136 °F)  ⁽⁹⁾ for fuel oil. It is not uncommon for a CTMV in fuel delivery service to deliver multiple types of fuel requiring different identification numbers in a single day's operation-for instance, delivering gasoline on one trip, and diesel fuel on the next.

PHMSA's Emergency Response Guidebook (ERG) provides the same initial emergency response instructions for all petroleum distillate fuels- see Guide 128. ⁽¹⁰⁾ Because the initial emergency response instructions are the same, PHMSA proposed allowing cargo tanks to display the identification number of the petroleum distillate fuel with the lowest flash point transported in the cargo tank in the HM-265 NPRM. As discussed in more detail below, this proposal is aligned with regulatory history and the original intent of the provisions when they were first added to the HMR.

1. HM-118

In the HM-118 final rule  ⁽¹¹⁾ titled Identification Numbers, Hazardous Wastes, Hazardous Substances, International Descriptions, Improved Descriptions, Forbidden Materials, and Organic Peroxides, the Research and Special Programs Administration (RSPA)-PHMSA's predecessor agency-amended the requirements in section 172.336 to allow the identification number of the lowest flash point fuel transported in a cargo tank to be displayed during shipment. RSPA adopted this amendment in section 172.336(c)(5) "to eliminate the need for continuous changes in identification numbers in many operations where gasoline and fuel oil are transported in the same cargo tank on different trips during the same day."  ⁽¹²⁾ This amendment remained in place for more than 30 years until PHMSA inadvertently eliminated the provision in a subsequent final rule.

2. HM-219

In 2013, PHMSA published another final rule titled Hazardous Materials: Miscellaneous Petitions for Rulemaking (RRR) (HM-219). ⁽¹³⁾ In HM-219, PHMSA replaced sections 172.336(c)(1)-(6) with a table to "more clearly indicate hazard communication requirements."  ⁽¹⁴⁾ In the new table, PHMSA added paragraphs (c)(1)-(3) and (c)(6) as individual entries but consolidated the language in paragraphs (c)(4) and (5) into a single entry. PHMSA did not intend to change the original intent of paragraphs (c)(4) and (5) in consolidating these provisions, but the language used in the new table had that effect.

3. 2016 PIPES Act

In 2016, Congress passed a statute addressing the identification number marking requirements for petroleum distillate fuels. Specifically, in the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (2016 PIPES Act), ⁽¹⁵⁾ Congress included a mandate stating that, "[n]ot later than 90 days after the date of enactment of this Act, the Secretary of Transportation shall issue an [ANPRM] to take public comment on the petition for rulemaking dated October 28, 2015, titled `Corrections to Title 49 CFR 172.336 Identification numbers; special provisions' (P-1667)." The rulemaking petition referenced in the mandate (P-1667  ⁽¹⁶⁾ )-and an additional petition (P-1668  ⁽¹⁷⁾ )-had been filed after PHMSA inadvertently altered the identification number marking requirements for petroleum distillate fuels in HM-219.

4. HM-213E

Shortly after the passage of the 2016 PIPES Act, PHMSA published the advance notice of proposed rulemaking (ANPRM) titled Hazardous Materials: PIPES Act Requirements for Identification Numbers on Cargo Tanks Containing Petroleum Based Fuel (HM -213E). ⁽¹⁸⁾ The central issue addressed in the HM-213E ANPRM was whether a CTMV transporting different types of petroleum distillate fuels ( e.g., gasoline, diesel fuel, kerosene, and fuel oil) over the course of multiple trips should be permitted to display the identification number of the fuel with the lowest flash point previously transported, even when that fuel is not currently contained in the cargo tank ( e.g., display "1203"-the identification number for gasoline-when the cargo tank contains only diesel fuel on that trip). ⁽¹⁹⁾

PHMSA received 14 sets of comments to the HM-213E ANPRM, split between those supporting the provisions allowing the display of the identification number of the fuel with the lowest flash point previously transported, and those opposed. PHMSA received no specific information describing actual instances in which the marking exception led to increased risks in transportation. ⁽²⁰⁾

5. DOT-SP 21104

After publishing the HM-213E ANPRM, PHMSA issued Department of Transportation (DOT) Special Permit (SP) 21104  ⁽²¹⁾ on November 11, 2020. DOT-SP 21104, as further modified on February 26, 2021, allows for the transportation of gasoline, diesel fuel, kerosene, and fuel oil in a CTMV marked with the identification number "1203" provided gasoline, which has the lowest flash point of the fuels listed, had been transported in the cargo tank during the previous or current business day. DOT-SP 21104 has been in place for almost five years, and PHMSA is not aware of any safety issues associated with its use.

6. HM-265

Consistent with the rulemaking history and requirements in DOT-SP 21104, PHMSA proposed to reinstate the original exception to the identification number marking requirements for petroleum distillate fuels in HM-265. PHMSA estimated that this amendment would generate cost savings of $145.3 million per year in 2024 dollars, primarily in time savings for petroleum distillate fuel carriers who would no longer be required to change the identification number displayed on their vehicle as frequently. Note that gasoline and ethanol blends that contain more than 10 percent ethanol have different physical properties and may require the application of different types of fire suppression foam. Therefore, these fuels, including "UN3475, Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture, with more than 10% ethanol, 3, PGII" and "UN1987, Alcohols, n.o.s., 3, PG I, II or III" are not included in this marking provision. The ID numbers "UN3475" and "UN1987" must be displayed if those products are contained in the packaging and may not be displayed if the products are not contained in the packaging.

B. Action Taken in This Final Rule

PHMSA is adopting the amendments as proposed.

C. Response to NPRM Comments

PHMSA received nine sets of comments addressing the proposal to authorize cargo tanks and tank cars to display the identification number of the petroleum distillate fuel with the lowest flash point transported on that day or the previous business day. The following table identifies each of these commenters and the unique docket identifier for their comment.

PHMSA received supportive comments from United States Representative Pete Stauber, EMA, Dow Chemical Company, and DGAC. PHMSA received opposing comments from the IAFF, IAFC, CVSA, PVA, and KHP. Both sets of comments are summarized and addressed below.

1. Supportive Stakeholder Comments for This Provision

PHMSA received supportive comments from Representative Pete Stauber, EMA, Dow Chemical Company, and DGAC. Dow Chemical Company and DGAC expressed general support for proposed markings for petroleum distillate fuels changes, while Rep. Pete Stauber and EMA provided more detailed comments.

Specifically, Rep. Pete Stauber accurately noted that the proposed amendment restores a previously authorized exception in the HMR. Shippers that transported diesel fuel, heating oil, and gasoline in separate loads were allowed to affix permanent placards with the "UN1203" marking to their CTMVs rather than changing the placard with each subsequent load of a different material. Rep. Pete Stauber also presented information from his constituents indicating that the cost of complying with the current marking requirements is up to $800 per truck. ⁽²²⁾ Rep. Pete Stauber presented information from local fire chiefs as well, most of whom provided feedback agreeing that in their firefighting operations they respond the same way with the same type of foam, regardless of whether the placard is marked as 1203 or 1993.

EMA supported the proposed change to section 172.336(c), stating that removing the requirement to change identification numbers with each load when hauling multiple fuels of differing flashpoints in alternating trips provides meaningful economic benefits without reducing the margin of safety. Similar to other commenters, EMA noted that the proposed practice of marking the lowest flashpoint materials transported on a CTMV was previously allowed. Industry consistently used the identification number with the lowest flash point (typically gasoline) for alternating straight loads involving diesel fuel. EMA added that there were no recorded safety concerns with this practice. Since the removal of the prior identification number marking exception, energy marketers have had to implement inefficient workarounds, such as load sequencing or running diesel shipments with one empty compartment containing gasoline residue. EMA noted that these practices are burdensome, inefficient, and costly, and eliminating such inefficiencies, as proposed in the NPRM, will produce tangible cost savings across thousands of cargo tank operations. ⁽²³⁾

2. Stakeholder Concerns With Emergency Response Efforts

PHMSA received several comments indicating concern with the proposed changes regarding the marking of CTMVs containing petroleum distillate fuels, including comments from IAFF, IAFC, CVSA, PVA, and KHP. In its comments, IAFF stated that PHMSA's proposal would intentionally create discrepancies between a vehicle's placarding and the contents of the cargo tank. In addition, IAFF stated that failure to disclose all hazardous contents will result in firefighters and other responders following incorrect emergency response procedures. IAFF provided hypothetical operational examples, including a situation where a cargo tank marked "UN1203" (gasoline) is involved in a fire or spill, noting that it could cause firefighters to assume they are dealing with gasoline, which has a low flash point and can ignite easily. According to IAFF, if the tank instead contains diesel (UN1202 or NA1993), which requires higher temperatures for ignition, firefighters may misinterpret the absence of fire as an indication of safety. IAFF further stated that this false sense of security could delay deploying suppression agents tailored specifically for diesel. IAFF also described a scenario with multi-compartmented cargo tanks transporting multiple fuels on separate trips, suggesting that relying on the identification number of the lowest flash point fuel-without clarity on the actual contents at the time of the incident-could lead to confusion among emergency responders. According to IAFF, this confusion could delay critical containment actions and increase the risk of errors in evacuation and decontamination procedures. Lastly, IAFF claimed that using water-based agents, which are effective for gasoline fires, but not for diesel spills, could exacerbate emergency incidents.

In its comments, KHP shared views similar to IAFF, stating that while UN1203 and NA1993 direct emergency responders to the same ERG response procedure, it is important to remember that the ERG is for use by first responders during the initial phase of a transportation incident involving hazardous materials.

The IAFC comments also shared concerns about emergency responders, stating that PHMSA's proposal aims to simplify processes for shippers but overlooks bill of lading requirements ( i.e., shipping paper requirements). IAFC maintained that the different information provided on the shipping paper and the vehicle marking creates confusion for first responders. As described above, IAFC stated that correct markings are necessary when formulating a proper emergency response action plan and, in their view, the rule would have an overall negative impact on first responders.

Finally, PVA echoed IAFF's concerns, stating that vessel operators transporting fuels via tank truck or trailer must be able to identify quickly the contents to respond effectively to an onboard emergency. PVA was concerned this proposal could impede crew members' ability to serve as first responders when a shipment is underway or at the dock.

PHMSA Response to Stakeholder Concerns With Emergency Response Efforts

PHMSA acknowledges the commenters' concerns regarding markings for petroleum distillate fuels and the importance of those markings to emergency responders. As noted in the NPRM, for NA1993, UN1202, UN1203, UN1223, and other petroleum distillate fuels, the ERG directs the reader to the same guide page for initial emergency response instructions. The ERG is designed to aid emergency responders in their initial response to transportation incidents involving hazardous materials and groups materials with similar hazards and properties into specific "guides." In the case of petroleum distillate fuels, all relevant UN numbers direct the reader to Guide 128, meaning that all petroleum distillate fuels have identical initial response procedures.

As mentioned by some commentors, marking and placarding of the transport vehicle is not the only form of hazardous materials communications that first responders have available to rely on. The HMR also require carriers to maintain a shipping paper onboard the vehicle which provides the proper shipping name, identification number, and hazard class, among other information, of the materials onboard the vehicle. First responders will, in most cases, refer to that document to confirm the specific material involved.

PHMSA is unaware of any fire suppression foams that are specifically tailored for diesel fuel rather than gasoline. For example, readily available literature from a trade association  ⁽²⁴⁾ that represents manufacturers of fire suppression equipment, and the State of Tennessee, ⁽²⁵⁾ indicates that Class B foam-both polar and non-polar formulations-is effective in fighting fires caused by non-polar hydrocarbon fuels, like gasoline and diesel fuel. Using this type of foam, or a similar one, could address any concerns emergency responders might have about the exact contents of the tank. In contrast, there are foams specifically tailored for high-ethanol content gasoline-gasoline with more than 10 percent ethanol. However, PHMSA has specifically excluded "UN3475, Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture, with more than 10 percent ethanol, 3, PGII" from this marking exception because of the different fire suppression media required for this type of material. PHMSA believes that any risks and burdens to emergency responders raised by the commenters' hypothetical scenarios are minimal and can be mitigated-if not completely eliminated-by responding to incidents involving petroleum distillate fuels as highly flammable materials.

As previously discussed in the NPRM, the flexibility allowed for markings for petroleum distillate fuels was previously permissible under the HMR. For approximately 33 years, from the publication of HM-118  ⁽²⁶⁾ in 1980 until the publication of HM-219  ⁽²⁷⁾ in 2013, the HMR allowed a cargo tank transporting more than one petroleum distillate fuel in different trips to display the identification number for the petroleum distillate fuel with the lowest flash point. In that time frame, PHMSA is unaware of any increase in the number of hazardous materials incidents involving petroleum distillate fuels and resulting in injuries to first responders. Similarly, since the unintentional removal of the exception in the HM-219 final rule, PHMSA is unaware of any decrease in hazardous materials incidents involving petroleum distillate fuels and resulting in injuries to first responders.

3. Stakeholder Concerns With Enforcement

The comments from the KHP expressed opposition to the proposed change to section 172.336 for petroleum distillate fuels from a law enforcement perspective. The KHP stated that the new marking provision will create unnecessary burdens on law enforcement by requiring law enforcement to decipher what the tank was hauling on the previous business day, which, depending on the day of the week, could have been several days prior. The KHP went on to provide an example of an extended holiday weekend where the previous business day was four days prior. According to the KHP, it is typical for a truck driver not to know the previous contents of the tank for various reasons, such as the vehicle was driven by someone else on the previous business day or the driver just picked up the tank as a contracted carrier.

The KHP further stated that this uncertainty by the driver would lead to increased roadside inspection times and significantly hinder the officer from performing his or her duty because commercial vehicle inspectors must be certain of violations before recording them on an inspection report. The KHP continued that if the inspector is wrong in writing up the carrier, it may result in the carrier being erroneously taken out of service, in addition to the costs associated with reversing the citation, including personnel time to remove violations, dismiss citations, or even refund civil penalties.

Finally, the KHP pointed to a potential conflict with CVSA's out of service criteria, which direct law enforcement to take a vehicle marked with identification number(s) for material(s) that are not present on the vehicle out of service. The commenter notes that CVSA inspection bulletin #2022-06  ⁽²⁸⁾ states placards must accurately communicate the hazardous materials transported on the vehicle.

CVSA, the organization that KHP referenced in its comment, also submitted comments on the topic of enforcement. CVSA stated that both industry and enforcement personnel have adapted to the current marking requirements in place and a change at this point would be costly to implement, as both enforcement and industry personnel would have to be retrained. CVSA did not support making the proposed change at this time given what it perceives as the potential risk to first responders associated with the change and the fact that industry has largely adjusted to the status quo of often-frequent placard changes.

PHMSA Response to Stakeholder Concerns With Enforcement

As PHMSA stated in the NPRM, law enforcement personnel may use shipping paper records to determine whether a cargo tank was used to transport petroleum distillate fuel with a lower flashpoint than the fuel currently onboard the previous business day. And while there may be scenarios where this change could impose an additional burden on law enforcement personnel, PHMSA is confident that petroleum distillate fuel transporters will have access to the information necessary to assist investigators in making appropriate determinations of compliance.

In response to the KHP's concerns regarding extended roadside inspection times and potential for incorrect citations, PHMSA expects investigators and law enforcement officers to familiarize themselves promptly with the identification number marking requirements for petroleum distillate fuels. As PHMSA expressed in the NPRM, and elsewhere in this rulemaking, the initial emergency response instructions for petroleum distillate fuels are the same, should an incident occur.

4. Stakeholder Concerns With Training

The KHP stated that from an instructor's standpoint it is much easier to explain to students that the operator of a CTMV must display identification numbers for the material currently onboard. The KHP further stated that it is difficult for a new student to understand how a CTMV can display an identification number for a material that is not present on the vehicle and will be particularly difficult for students to grasp after listening to instructors spend considerable time in the classroom emphasizing that a vehicle must not display an identification number for a material it is not carrying.

PHMSA Response to Stakeholder Concerns With Training

PHMSA appreciates the comments regarding training challenges for inspectors and law enforcement, but notes that this concern is not unique as PHMSA continuously updates the HMR with new rules on a regular basis. While the HMR generally states that no one may represent through hazard communication that a hazardous material is present in the package, motor vehicle, freight container, or other packaging if the hazardous material is not present, it is not uncommon for PHMSA to provide exceptions from general requirements if economic benefits can be produced while minimizing or limiting any potential negative safety impact. For example, a hazardous material that meets the general classification criteria for a flammable liquid may be reclassed and transported as a combustible liquid under certain conditions. In this specific case, the costs of constantly changing the identification number marking for each different petroleum distillate fuel having the same hazard and requiring the same response in case of emergency substantially outweighs the benefit of maintaining each marking and can be done while maintaining safety. Any change PHMSA makes requires shippers, offerors, first responders, and others in the hazardous materials industry to stay up-to-date with the latest regulations, including updating any trainings that may no longer be accurate.

5. Stakeholder Concerns With Exposure and Personal Protection Equipment

The IAFF comments also address concerns about potential exposure issues, having claimed that firefighters adjust their personal protection equipment (PPE) based on the anticipated hazards of the material involved in a given incident. The IAFF claimed that incorrect identification of the specific hazardous material involved in an incident can result in insufficient PPE, increasing the risk of chemical exposure, thermal burns, or inhalation of toxic fumes if the substances differ significantly from the identification number indicated on the vehicle. For instance, the IAFF asserted that diesel (UN1202) presents different exposure risks compared to gasoline, but that both might be marked as "UN1203" under the proposed rule, which could lead to inadequate protective measures.

PHMSA Response to Stakeholder Concerns With Exposure and PPE

While PHMSA does not regulate the uses of or specifications for PPE, PHMSA is unaware of any meaningful differences in PPE requirements for incidents involving the various petroleum distillate fuels. In reviewing several publicly available safety data sheets for various petroleum distillate fuels, PHMSA has found no meaningful variation between the different materials in terms of recommended PPE. While safety data sheets for the same identification numbers can vary depending on the manufacturer, the safety data sheets reviewed by PHMSA, such as those for Marathon Petroleum Corporation, for diesel and gasoline produced by the same company generally included identical PPE recommendations. Furthermore, as previously discussed in this final rule, PHMSA's ERG provides the same initial emergency response instructions for all petroleum distillate fuels, including recommended protective clothing-see Guide 128. ⁽²⁹⁾ The ERG instructs that regardless of the type of petroleum distillate fuel involved, first responders should equip themselves with: (1) a positive pressure self-contained breathing apparatus (SCBA); and (2) structural firefighters' protective clothing that provides thermal protection. Provided that emergency responders are prepared for an incident involving a petroleum distillate fuel, the initial emergency response instructions for the marked material should be effective and have no detrimental safety impact until the actual material is determined.

IV. Response to NPRM Comments on the Other Final Rule Provisions

PHMSA received limited comments on the other topics addressed in this final rule. These comments are addressed in this section.

A. Electronic Submission of Cargo Tank Facility Registration

PHMSA proposed to revise paragraph section 107.502(d) to include a reference to the electronic method for submitting registration statements. One commenter noted that allowing electronic submission of cargo tank registration statements could pose cybersecurity risks due to the data being collected via an online portal as opposed to physical media. ⁽³⁰⁾ PHMSA appreciates the comment and notes that the Federal Motor Carrier Safety Administration (FMCSA) already has security measures in place to store electronic data safely on more than 750,000 active motor carriers and millions of drivers. The same security measures cover the electronic acceptance and storage of cargo tank facility registration statements. PHMSA is not aware of any instances where FMCSA's data security protection measures have failed. Having received no other comments, PHMSA is adopting this change as proposed.

B. The Chlorine Institute Publication

PHMSA proposed to revise section 171.7 to replace the current incorporation by reference of CI drawings for PRDs found in section 171.7(l)(3) and (l)(4) with the entire CI Pamphlet 49 titled, Recommended Practices for Handling Chlorine Bulk Highway Transports in section 171.7(l)(3). CI Pamphlet 49 includes the use of the Midland Type PRD for chlorine cargo tanks in addition to those already permitted in section 173.315. CI provided comments in support of PHMSA's proposal to adopt CI Pamphlet 49 and reference the standard in section 173.315(i)(13). ⁽³¹⁾ PHMSA did not receive any other comments on this proposal.

Updating the incorporation by reference of Pamphlet 49 to the 2022 version is beyond the scope of this rulemaking. CI may submit a petition for rulemaking to further update the incorporation by reference of Pamphlet 49. Therefore, PHMSA is adopting the revision to incorporate by reference the 2016 version of Pamphlet 49 as proposed.

C. Exception From Security Awareness Training

PHMSA proposed to revise section 172.704(a)(4) to include hazmat employees who only manufacture packagings in the current exception from safety training. Further, PHMSA proposed to except any hazmat employees who only perform hazmat activities related to packagings ( e.g., employees who manufacture, repair, modify, recondition, or test packagings, and do not offer for transportation or transport hazardous materials in commerce) from security awareness training as long as they do not perform any other HMR function. PHMSA received no comments on this proposal and is adopting the change as proposed. For more information on this change please see the section-by-section review discussion elsewhere in this document.

D. Reflective Design of Uninsulated Cargo Tanks

PHMSA proposed to modify the requirement in section 178.337-1(d) for uninsulated cargo tanks to be painted, which would allow for the use of alternative means of providing reflectivity such as a wrap or cover. PHMSA received no comments on this proposal and is adopting the change as proposed. For more information on this change please see the section-by-section review discussion elsewhere in this document.

E. Use of Video Cameras for Cargo Tank Inspections and Tests

PHMSA proposed to allow for the use of video cameras or video optics equipment for any cargo tank inspection or test. PHMSA received no comments on this proposal and is adopting the change as proposed, except that the provision is provided in paragraph (a)(7) rather than (a)(8). For more information on this change please see the section-by-section review discussion elsewhere in this document.

V. Section-by-Section Review of Amendments

A. Section 107.502

Section 107.502 contains the general registration requirements for persons who engage in the manufacture, assembly, certification, inspection, or repair of a cargo tank or CTMV manufactured under the terms of a DOT specification or a special permit. PHMSA proposed to revise paragraph (d) to clarify that persons registering with the Department may submit their registration electronically through FMCSA's existing online portal ( https://portal.fmcsa.dot.gov/UrsRegistrationWizard/ ) or continue to mail a hard copy of their registration statement to FMCSA. In this final rule, PHMSA is adopting this revision as proposed.

B. Section 171.7

Section 171.7 contains the list of material incorporated by reference into the HMR. PHMSA proposed to revise paragraphs (l)(3) and (4) by incorporating by reference CI Pamphlet 49 (Edition 10 (2016)) in its entirety, rather than incorporating by reference individual PRD design drawings from the document. This has the effect of authorizing the Midland Type A-14227-ML PRD design for cargo tanks used in chlorine service. In this final rule, PHMSA is adopting the revision as proposed.

C. Section 172.303

Section 172.303 contains prohibitions on the display of markings that indicate that a specific hazardous material is present when that material is not present in transportation. In response to comments, PHMSA is adding an exception in (b)(4) to this general prohibition for CTMVs that are marked in accordance with the petroleum distillate fuel marking requirements adopted in section 172.336 in this rulemaking. This amendment is a conforming amendment to the section 172.336 marking exception that allows CTMVs to display the identification number of the lowest flash point petroleum distillate fuel transported in the tank on that day or the previous business day. This makes it clear to both motor carriers and enforcement agencies that a CTMV is allowed to display the identification number of the petroleum distillate fuel with the lowest flash point transported in the current or previous business day. In this final rule, PHMSA is adopting the revision as proposed.

D. Section 172.336

Section 172.336 outlines special provisions for the display of identification numbers. PHMSA proposed to revise the section 172.336(c) table, which provides scenarios where identification numbers are either not required or an exception applies. The proposal added a sixth row to Table 1 to Paragraph (c)-Identification Numbers Are Not Required, to authorize the display of the identification number representing the petroleum distillate fuel with the lowest flash point that is transported in a cargo tank in different trips on the previous or current business day. However, due to different emergency response procedures, PHMSA also proposed the exception would not be applicable when the cargo tank transported gasoline and alcohol fuel blends consisting of more than 10 percent ethanol. This is consistent with the current requirements in the fifth row of the table. Specifically, PHMSA proposed that in this circumstance, the identification numbers "3475" or "1987" must also be displayed, as appropriate, and the cargo tank may only display "3475" or "1987" when the material is in the cargo tank. Therefore, if the liquid petroleum distillate fuel with the lowest flash point transported in the cargo tank in different trips on the previous or current business day was a gasoline and alcohol fuel blend consisting of more than 10 percent ethanol, and it is not being transported in the cargo tank currently, "3475" or "1987" may not be displayed on the cargo tank. In this scenario, the cargo tank should display either the identification number of the liquid petroleum distillate fuel with the next lowest flash point transported in different trips on the previous or current business day or the liquid petroleum distillate fuel that is currently being transported.

PHMSA also proposed to specify that the exception in the fifth row only applies to compartmented cargo tanks and compartmented tank cars. This will distinguish clearly the fifth and sixth row exceptions. The fifth row authorizes the display of the identification number of the petroleum distillate fuel with the lowest flash point when the cargo tank or tank car contains more than one petroleum distillate fuel. The fifth-row exception is only possible when the cargo tank or the tank car is compartmented- i.e., it has multiple compartments each with a different petroleum distillate fuel. Therefore, PHMSA proposed to remove the term "cargo tank" to indicate clearly the exception only applies to "compartmented cargo tanks or compartmented tank cars." In this final rule, PHMSA is adopting the revisions to section 172.336 as proposed. Refer to Section III. "Identification Number Markings for Petroleum Distillate Fuels" for further discussion on this issue.

E. Section 172.704

Section 172.704 contains the training requirements for hazmat employees. Currently, paragraph (e)(1) excepts from safety training hazmat employees who only repair, modify, recondition, or test packagings and who do not perform any other function in the HMR. PHMSA proposed to also include hazmat employees who only manufacture packagings. Further, PHMSA proposed to except these hazmat employees from security awareness training. Security awareness training imposed on hazmat employees who only manufacture, repair, modify, recondition, or test packagings, and do not perform any other function subject to the HMR, does not present the same security benefit as for those hazmat employees who offer for transportation, transport, or handle hazardous materials. In this final rule, PHMSA is adopting the revisions to section 172.704(e)(1) as proposed.

F. Section 173.315

Section 173.315 describes the requirements for the transportation of compressed gases in cargo tanks and portable tanks. Paragraph (i) provides cargo tank and portable tank requirements for pressure relief devices, with paragraph (i)(13) detailing the specifications for safety relief valves on chlorine cargo tanks. PHMSA is revising section 173.315(i)(13) to replace the reference to specific PRD drawings with a general reference to CI Pamphlet 49 for authorized safety relief valves. This allows the use of the Midland PRD in addition to the Crosby PRD on cargo tanks transporting inhalation hazards to provide additional regulatory flexibility without reducing safety. In this final rule, PHMSA is adopting the revision to section 173.315 as proposed.

G. Section 178.337-1

Section 178.337-1 contains the general requirements applicable to constructing an MC-331 cargo tank designed to transport compressed gases. Paragraph (d) addresses the requirement for uninsulated tanks to have a reflective metal surface or a reflecting color to limit heat transfer to the contents in the tank. PHMSA proposed to remove the requirement that the tank be "painted" to allow for the use of reflective vinyl wraps or other innovative reflective coatings. In this final rule, PHMSA is adopting the revision to section 178.337-1(d) as proposed.

H. Section 180.407

Section 180.407 contains requirements for the periodic inspection of CTMVs to qualify them for continued hazardous materials service. PHMSA proposed to authorize, in a new paragraph (a)(7), the use of video cameras and fiber optics equipment for any visual inspection required for CTMVs in part 180, subpart E. In this final rule, PHMSA is adopting the revision to section 180.407 as proposed. This revision allows video cameras or fiber optics equipment to be used for visual inspections, provided that all of the required areas and elements that need to be tested or inspected can be viewed and evaluated in accordance with part 180, subpart E.

VI. Regulatory Analysis

A. Statutory/Legal Authority

This final rule is published under the authority of Federal Hazardous Materials Transportation Act (HMTA; 49 U.S.C. 5101-5127). Section 5103(b) of the HMTA authorizes the Secretary of Transportation to "prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce." The Secretary has delegated his authority as granted in the HMTA to the PHMSA Administrator in 49 CFR 1.97(b).

B. Executive Order 12866; Regulatory Planning and Review

Executive Order (E.O.) 12866 ( Regulatory Planning and Review ), as implemented by DOT Order 2100.6B ( Policies and Procedures for Rulemaking ), requires agencies to regulate in the "most cost-effective manner," to make a "reasoned determination that the benefits of the intended regulation justify its costs," and to develop regulations that "impose the least burden on society."  ⁽³²⁾ DOT Order 2100.6B specifies that regulations should generally "not be issued unless their benefits are expected to exceed their costs." In arriving at those conclusions, E.O. 12866 requires that agencies should consider "both quantifiable measures . . . and qualitative measures of costs and benefits that are difficult to quantify" and "maximize net benefits . . . unless a statute requires another regulatory approach." E.O. 12866 also requires that "agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating." DOT Order 2100.6B directs that PHMSA and other Operating Administrations must generally choose the "least costly regulatory alternative that achieves the relevant objectives" unless required by law or compelling safety need.

E.O. 12866 and DOT Order 2100.6B also require that PHMSA submit "significant regulatory actions" to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President's Office of Management and Budget (OMB) for review. This action is a significant regulatory action that was submitted to OIRA and OMB for review. Any changes made during E.O. 12866 review have been documented in the docket. PHMSA prepared an analysis of the potential costs and benefits associated with this action. This analysis, Regulatory Impact Analysis for Hazardous Materials: Eliminating (the "RIA") is available in the docket.

C. Executive Orders 14192 and 14219

This final rule is an E.O. 14192 deregulatory action. ⁽³³⁾ PHMSA has determined the total costs of the rule to the regulated community will be less than zero and estimates annualized net benefits at a seven percent discount rate of approximately $145.3 million per year. Details on the costs, cost savings, and benefits of this rulemaking can be found in the RIA, which is available in the public docket.

Overall, the revisions adopted in this rulemaking promote the continued safe transportation of hazardous materials while producing a net cost savings. Cost savings are derived from allowing the continued display of the identification number of the lowest flash point fuel transported in a cargo tank motor vehicle in the same or previous business day. In addition, PHMSA finds this final rule does not implicate any of the factors identified in section 2(a) of E.O. 14219 indicative of a regulation that is "unlawful . . . [or] that undermine[s] the national interest."  ⁽³⁴⁾

D. Executive Order 13132

PHMSA analyzed this rulemaking in accordance with E.O. 13132 ( Federalism )  ⁽³⁵⁾ and the Presidential Memorandum ( Preemption ) that was published in the Federal Register on May 22, 2009. ⁽³⁶⁾ E.O. 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may have "substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government."

This rulemaking may preempt State, local, and Native American tribe requirements, but does not propose any regulation that has substantial direct effects on the States, the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of government.

The Federal Hazmat Law contains an express preemption provision, 49 U.S.C. 5125(b), that preempts State, local, and Tribal requirements on certain covered subjects, unless the non-Federal requirements are "substantively the same" as the Federal requirements, including:

(1) Designation, description, and classification of hazardous materials;

(2) Packing, repacking, handling, labeling, marking, and placarding of hazardous materials;

(3) Preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents;

(4) Written notification, recording, and reporting of the unintentional release in transportation of hazardous material; and

(5) Design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.

This rule addresses subject items (2) and (5) above, which are covered subjects, and, therefore, non-Federal requirements that fail to meet the "substantively the same" standard are vulnerable to preemption under the Federal Hazmat Law. Moreover, PHMSA will continue to make preemption determinations applicable to specific non-Federal requirements on a case-by-case basis, using the obstacle, dual compliance, and covered subjects tests provided in Federal Hazmat Law.

E. Executive Order 13175

This document was analyzed in accordance with the principles and criteria contained in E.O. 13175 ( Consultation and Coordination with Indian Tribal Governments ) and DOT Order 5301.1A ( Department of Transportation Tribal Consultation Policies and Procedures ). Because none of the changes in this final rule have Tribal implications or impose substantial direct compliance costs on Indian Tribal governments, the funding and consultation requirements of E.O. 13175 do not apply. In addition, PHMSA notes that it received no comments from Native American tribes.

F. Regulatory Flexibility Act and Executive Order 13272

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires agencies to consider whether a rulemaking would have a "significant economic impact on a substantial number of small entities" to include small businesses, small not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and small governmental jurisdictions with populations under 50,000 people. The Regulatory Flexibility Act directs agencies to establish exceptions and differing compliance standards for small businesses, where possible to do so and still meet the objectives of applicable regulatory statutes. E.O. 13272 ( Proper Consideration of Small Entities in Agency Rulemaking )  ⁽³⁷⁾ requires agencies to establish procedures and policies to promote compliance with the Regulatory Flexibility Act and to "thoroughly review draft rules to assess and take appropriate account of the potential impact" of the rules on small businesses, governmental jurisdictions, and small organizations. The DOT posts its implementing guidance on a dedicated web page. ⁽³⁸⁾

This rulemaking has been developed in accordance with E.O. 13272 and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered. PHMSA has developed a final regulatory flexibility analysis (RFA), which is included in the docket. As detailed in the RFA, based on a query of FMCSA data and Census Bureau data, trucking companies that haul hazardous materials possess an average of 3.3 CTMVs. Assuming 85,658 CTMVs will be affected by the placarding exemption (see Section 3.1.2 for data and calculations), then a figure of 3.3 CTMVs per firm implies that 25,957 trucking companies will be impacted. Further, assuming the industry structure of trucking companies hauling petroleum distillates mirrors that of the trucking industry overall, we can conclude that 23,101 companies ( i.e., 89 percent of 25,957) qualify as small businesses affected by the placarding exemption. This final rule facilitates more efficient movement of hazardous materials by highway and inspection of hazardous materials packagings, while ensuring that safety is maintained or enhanced. It applies to shippers and carriers of hazardous materials as well as entities that inspect hazardous materials packaging, some of whom are small entities. The changes affected by this rule would relieve the regulatory burdens of U.S. companies, including small entities, by removing costly requirements that do not contribute to safety. Based on this information, PHMSA expects to affect 25,957 small business with annualized cost savings per small business of $5,603. As described in the FRFA section of the accompanying RIA document (Section 4), PHMSA has assessed this cost against average industry revenue for small trucking entities and concluded that it amounts to 1.22-1.27 percent of average small entity annual revenues. There is no set threshold for determining what constitutes a significant impact, but a rule of thumb used by many Agencies is impacts that are over 3 percent of annual revenue are likely to be significant. Those above 1 percent may be significant in certain instances but may not amount to a significant impact. In this case impacts are close enough to the lower bound that impacts on small entities are unlikely to be significant. The changes are generally intended to provide regulatory flexibility and cost savings to industry members, while increasing safety. The FRFA asks Agencies to describe actions taken to minimize impacts on small entities but in the context of deregulatory cost savings such a mandate would tend to disadvantage small entities relative to large and implies that beneficial impacts can be considered to be non-significant within the context of the RFA. PHMSA did not receive comments on the anticipated economic impacts to small entities and the RFA.

G. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), no person is required to respond to any information collection unless it has been approved by OMB and displays a valid OMB control number. Pursuant to 44 U.S.C § 3506(c)(2)(B) and 5 CFR 1320.8(d), PHMSA must provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests.

PHMSA has analyzed this final rule in accordance with the Paperwork Reduction Act. PHMSA did not receive any comments regarding information collections associated with the changes adopted in this final rule. In addition, some information collections proposed in the NPRM were not adopted in this final rule and are therefore excluded.

Requests for a copy of this information collection should be directed to Steven Andrews, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, 202-366-8553.

H. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq. ) requires agencies to assess the effects of Federal regulatory action on State, local, or Tribal governments, and the private sector. For any NPRM or final rule that includes a Federal mandate that may result in the expenditure by State, local, and Tribal governments, or by the private sector of $100 million or more in 1996 dollars in any given year, an agency must prepare, amongst other things, a written statement that qualitatively and quantitatively assesses the costs and benefits of the Federal mandate.

This rulemaking does not impose unfunded mandates under UMRA. As explained in the RIA, it is not expected to result in costs of $100 million or more in 1996 dollars on either State, local, or Tribal governments, in the aggregate, or to the private sector in any one year. This is the least burdensome alternative that achieves the objective of the rule.

I. National Environmental Policy Act: Environmental Assessment

1. Introduction

The National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq. ), requires Federal agencies to assess and consider the impacts on the human and natural environment of their proposed actions. Unless a categorical exclusion applies, when a proposed action does not have a reasonably foreseeable significant effect on the quality of the human environment, or if the significance of such effect is unknown, Federal agencies are required to prepare an environmental assessment. If, based on the finding of the environmental review, the agency determines not to prepare an environmental impact statement (EIS) because the proposed action will not have significant effects on the human or natural environment, the agency can conclude the NEPA process with a finding of no significant impact (FONSI) (42 U.S.C. 4336(b)(2)). PHMSA did not consider a categorical exclusion because at the time of the NPRM issuance, no categorical exclusion applied. PHMSA is finalizing the action based on a completed 2025 Environmental Assessment and subsequent Finding of No Significant Impact.

2. Purpose and Need

The purpose of this final rule is to provide greater clarity and regulatory flexibility in the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). This final rule reduces unnecessary burdens associated with safe transportation of hazardous materials, including energy products, in commerce. It revises provisions specific to the highway transportation of hazardous materials. The amendments will reduce costs on hazardous materials transporters and packaging manufacturers while maintaining the high level of safety provided in the HMR.

3. Description of Alternatives

3.1 No Action Alternative

If PHMSA were to select the No Action Alternative, current regulations would remain in place, and no new provisions would be amended or added. This alternative does not provide the necessary amendments to provide greater clarity and regulatory flexibility, nor does it address the PIPES Act of 2016 and petitions for rulemaking. Thus, the no action alternative does not meet the purpose and need of this action.

3.2 Selected Alternative (Final Rule)

PHMSA is adopting several amendments originally proposed in the Notice of Proposed Rulemaking (NPRM) version of this rule. ⁽³⁹⁾ The amendments chosen for adoption are summarized below and more fully discussed in the preamble and regulatory text sections of this Final Rule.

3.3 Alternatives Dismissed From Further Consideration

Proposed Rule Alternative (NPRM)

PHMSA assessed an alternative that would have finalized the requirements as proposed in the NPRM. This alternative includes adoption of the 2017 RSAC proposals for rail transportation; revision to the approval process for tank car designs and Quality Assurance Programs (QAPs); miscellaneous amendments to highway cargo tank specification and requalification requirements; and an amendment to cargo tank marking requirements for the transportation of petroleum distillate fuels. This alternative applies to the transportation of hazardous materials by highway, rail, and vessel. The potential environmental effects of the NPRM as proposed are described in detail in the Draft Environmental Assessment (DEA), which is incorporated here by reference. ⁽⁴⁰⁾

PHMSA is no longer considering this alternative and instead is moving forward with the six amendments specifically identified in the final rule. These amendments were selected because they align with the Administration's priorities of unleashing American energy and reducing other unnecessary regulatory burdens constraining interstate commerce. PHMSA will continue to evaluate the other provisions included in the NPRM and may choose to address them at a later date.

4. Affected Environment

The final rule amends certain provisions of the HMR to increase regulatory clarity and consistency; to update requirements to reflect changing conditions and trends; and to improve the safe transportation of hazardous materials. The final rule would apply to the transport of hazardous materials by various transportation modes that occur nationwide.

5. Environmental Consequences

5.1 No Action Alternative

The No Action Alternative would not adopt enhanced and clarified regulatory requirements expected to maintain the high level of safety in transportation of hazardous materials provided by the HMR. If PHMSA were to select the No Action Alternative, the HMR would remain unchanged, and no new provisions would be amended or added. There would be no new environmental impacts from adopting the No Action Alternative, and any additional regulatory clarity and flexibility, their associated efficiencies, and economic benefits gained through these amendments would not be realized.

5.2 Selected Alternative (Final Rule)

The changes under the Proposed Action Alternative will maintain the high safety standards currently achieved under the HMR. The reasonably foreseeable environmental impacts are described by section below.

A. Section 172.336

PHMSA is revising the identification number marking requirements for cargo tanks transporting multiple petroleum distillate fuels in the current or previous business day, which is defined as a day that the operator of the cargo tank motor vehicle is open and operating in commerce. This amendment authorizes a carrier to display the marking of the identification number for the petroleum distillate fuel with the lowest flashpoint transported in that cargo tank during the current or previous business day. For example, a cargo tank used to transport gasoline on Day 1, and diesel fuel only on Day 2, may display "1203" on Day 2, because gasoline has a lower flash point than diesel fuel.

This change to markings for petroleum distillate fuels was previously permissible under the HMR and HM-118  ⁽⁴¹⁾ from 1980 until the publication of HM-219  ⁽⁴²⁾ in 2013. The HMR allowed a cargo tank transporting more than one petroleum distillate fuel in different trips to display the identification number for the petroleum distillate fuel with the lowest flash point. PHMSA's removal of this exception in HM-219 was unintentional, as discussed in section III.A of the Final Rule. PHMSA requested comments related to safety and environmental impacts of this amendment in the DEA and received no incident data in the time frame the exception was allowed. PHMSA is unaware of any significant increase in hazardous materials incidents involving petroleum distillate fuels resulting in injuries to first responders in that time frame. Similarly, PHMSA is unaware of any decrease in hazardous materials incidents involving petroleum distillate fuels resulting in injuries to first responders. In addition, PHMSA's Emergency Response Guidebook (ERG) provides the same initial emergency response instructions for all petroleum distillate fuels (Guide 128). ⁽⁴³⁾ This amendment is discussed in full detail in section III of the Final Rule.

There is no evidence of an increase in the risk of an incident nor a delay in emergency response to incidents as a result of this amendment. This amendment would improve efficiency during fuel deliveries, as operators would no longer be required to change the identification number displayed inside the placard. Thus, there are no reasonably foreseeable impacts to the human or natural environment.

B. Part 107 Subpart F

PHMSA is amending part 107 subpart F of the HMR to allow for electronic submission procedures under the cargo tank facility registration requirements. This would be in addition to the existing procedure of mailing a hard copy of the registration statement to FMCSA. This amendment provides flexibility, has no impact on the high level of safety provided in the HMR, and has no reasonably foreseeable impacts to the human or natural environment.

C. Section 171.7

PHMSA is amending section 171.7 to replace the current incorporation by reference of CI drawings with the entire CI Pamphlet 49, which would include the use of Midland Type PRD for chlorine cargo tanks in section 173.315, as Midland manufacturing entered the market after the requirements of section 173.315(i) were established. This amendment does not delete the specific limitations of the type of PRD authorized, and PHMSA will continue to work with CI to develop generally applicable specifications for PRDs used on cargo tanks transporting inhalation hazards. Thus, this amendment provides regulatory flexibility, maintains the current level of safety, and has no reasonably foreseeable impacts to the human or natural environment.

D. Section 172.704

PHMSA is amending section 172.704(a)(4) to remove security awareness training for hazmat employees who perform hazmat activities related only to packagings. These employees are responsible for manufacturing, repairing, modifying, reconditioning, or testing packagings and do not offer or transport hazardous materials. PHMSA is also expanding the eligibility of hazmat employees excepted from safety and security trainings to include package "manufacturers." Though these changes broaden the population of persons excepted from safety and security awareness training, the primary focus of the training is related to the offering or transportation of hazardous materials. This amendment will maintain the current level of safety of the HMR and has no reasonably foreseeable impacts to the human or natural environment.

E. Section 173.315

PHMSA is amending section 173.315(i)(13) to conform with the changes made in Section 171.7. This change replaces the reference to specific PRD drawings with a general reference to CI Pamphlet 49 for authorized safety release valves. Similarly to the section 171.7 amendment, this amendment does not delete the specific limitations of the type of PRD authorized. PHMSA will continue to work with CI to develop generally applicable specifications for PRDs used on cargo tanks transporting inhalation hazards. Thus, this amendment provides regulatory flexibility, maintains the current level of safety, and has no reasonably foreseeable impacts to the human or natural environment.

F. Section 178.337-1(d)

PHMSA is amending section 178.337-1(d) to allow the use of other external coverings besides paint, such as reflective vinyl wraps, to meet reflectivity requirements. Uninsulated tanks are required to have a reflective metal surface or a reflecting color to limit heat transfer to the contents of the tank. This amendment would still require uninsulated MC-311 tanks to be a white, aluminum, or similar reflecting color on the upper two-thirds area of the cargo tank. Thus, this amendment will provide regulatory flexibility, maintain the current level of safety of the HMR, and has no reasonably foreseeable impacts to the human or natural environment.

G. Section 180.407(a)(7)

PHMSA is amending section 180.407(a)(7) to allow for the use of video cameras or video optics equipment for cargo tank inspections or tests provided that all of the required areas and elements that need to be tested or inspected can be viewed and evaluated in accordance with part 180 subpart E. Under current regulations, a human must enter a cargo tank to inspect the interior visually. There are risks associated with the current practice, such as injury from slipping and falling and exposure to residual fumes or hazardous materials. This amendment allows operators to avoid these risks, while still performing the inspections to an equal standard. Thus, this amendment will provide regulatory flexibility, maintain the current level of safety of the HMR, and has no reasonably foreseeable impacts to the human or natural environment.

6. Public Involvement

PHMSA issued a DEA with the NPRM on October 28, 2024, which proposed to revise the HMR to adopt several modal-specific amendments to enhance safe transportation of materials in commerce. ⁽⁴⁴⁾ These include RSAC proposals for rail transportation; revisions to the approval process for tank car designs and QAPs; miscellaneous amendments to highway cargo tank specification and requalification requirements; and an amendment to cargo tank marking requirements for the transportation of petroleum distillate fuels.

The comment period for the NPRM and DEA closed on April 28, 2025. PHMSA received 37 sets of comments, of which nine are relevant to the issues addressed in this final rule. Three comments received discussed general environmental concepts, none of which are covered by the scope of this final rule. No comments were related to the environmental effects analysis of the NPRM as described in the DEA. All relevant comments are discussed in detail in Section III.C and Section IV of this final rule.

7. Agencies and Persons Consulted During the Consideration Process

PHMSA has coordinated with FAA, FMCSA, FRA, and the United States Coast Guard in the development of this rulemaking. The NPRM was also made available to other Federal agencies within the interagency review process contemplated under E.O. 12866. No E.O. 12866 meetings were requested.

8. Finding of No Significant Impact

Based on the analysis summarized in this EA, RIA, and the accompanying final rule, PHMSA finds that the Selected Alternative (final rule) will not have a significant impact on the human or natural environment. A majority of the amendments are administrative in nature and allow for greater regulatory flexibility in the HMR. They will reduce unnecessary burdens associated with the safe transportation of hazardous materials, including energy products, in commerce and will maintain the high level of safety required by the HMR.

9. List of Preparers and Reviewers

Preparers: Lydia Wang, PHMSA.

Reviewers: Travis Mast, USDOT Volpe Center, Carolyn Nelson, P.E., PHMSA.

PHMSA Finding of No Significant Impact Approval:

J. Privacy Act

In accordance with 5 U.S.C. 553(c), PHMSA solicits comments from the public to inform its rulemaking process. PHMSA posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at http://www.dot.gov/privacy. The complete Privacy Act Statement in the Federal Register published on April 11, 2000, ⁽⁴⁵⁾ or on DOT's website at http://www.dot.gov/privacy.

K. Executive Order 13609 and International Trade Analysis

E.O. 13609 ( Promoting International Regulatory Cooperation )  ⁽⁴⁶⁾ requires that agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.

Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to the Trade Agreements Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

PHMSA participates in the establishment of international standards in order to protect the safety of the American public. PHMSA has assessed the effects of this rulemaking to ensure that it does not cause unnecessary obstacles to foreign trade. While the rulemaking would clarify and elaborate on existing PHMSA regulations, PHMSA expects the rulemaking will result in cost savings and greater regulatory flexibility for entities engaged in international commerce. Accordingly, this rulemaking is consistent with E.O. 13609 and PHMSA's obligations under the Trade Agreement Act, as amended.

L. National Technology Transfer and Advancement Act

The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) directs Federal agencies to use voluntary consensus standards in their regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specification of materials, test methods, or performance requirements) that are developed or adopted by voluntary consensus standard bodies. This rulemaking adopts one voluntary consensus standard published by CI that is discussed in the discussion on § 171.7. See "Section IV. Section-by-Section Review; Section 171.7" for further details.

M. Energy-Related Executive Orders 13211, 14154, and 14156

E.O. 13211 ( Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use )  ⁽⁴⁷⁾ requires Federal agencies to prepare a Statement of Energy Effects for any "significant energy action." E.O. 13211 defines a "significant energy action" as any action by an agency (normally published in the Federal Register ) that promulgates, or is expected to lead to the promulgation of, a final rule or regulation that (1)(i) is a significant regulatory action under E.O. 12866 or any successor order and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy (including a shortfall in supply, price increases, and increased use of foreign supplies); or (2) is designated by the Administrator of the Office of Information and Regulatory Affairs (OIRA) as a significant energy action.

This final rule is not a "significant energy action" under E.O. 13211 because it is not likely to have a significant adverse effect on supply, distribution, or energy use. In addition, because this is not a "significant energy action" under E.O. 13211, it is therefore not necessary to consider the requirements of E.O. 14154 ( Unleashing American Energy )  ⁽⁴⁸⁾ and E.O. 14156 ( Declaring a National Energy Emergency ). ⁽⁴⁹⁾ For additional discussion of the anticipated economic impact of this rulemaking, please review the RIA in the rulemaking docket.

N. Cybersecurity and Executive Order 14028

E.O. 14028 ( Improving the Nation's Cybersecurity )  ⁽⁵⁰⁾ expressed the Administration policy that "the prevention, detection, assessment, and remediation of cyber incidents is a top priority and essential to national and economic security." E.O. 14028 directed the Federal Government to improve its efforts to identify, deter, and respond to "persistent and increasingly sophisticated malicious cyber campaigns." PHMSA has considered the effects of the final rule and has determined that its proposed regulatory amendments would not materially affect the cybersecurity risk profile for transportation of hazardous materials.

O. Severability

The purpose of this final rule is to operate holistically in addressing different issues related to safety and environmental hazards associated with the transportation of hazardous materials. However, PHMSA recognizes that certain provisions focus on unique topics. Therefore, PHMSA finds that the various provisions of this rule are severable and able to function independently if severed from each other. Thus, in the event a court were to invalidate one or more of this final rule's unique provisions, the remaining provisions stand and continue in effect.

In consideration of the foregoing, PHMSA amends 49 CFR chapter I as follows:

PART 107-HAZARDOUS MATERIALS PROGRAM PROCEDURES

PART 171-GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

PART 172-HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING REQUIREMENTS, AND SECURITY PLANS

PART 173-SHIPPERS-GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS

PART 178-SPECIFICATIONS FOR PACKAGINGS

PART 180-CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

[FR Doc. 2026-00578 Filed 1-13-26; 8:45 am]

BILLING CODE 4910-60-P

⁽¹⁾  89 FR 85590 (Oct. 28, 2024).

⁽²⁾  In response to the NPRM, PHMSA received 37 sets of comments-of which only nine are relevant to the issues included in this final rule. Only those nine comments relevant to the topics addressed in this final rule will be discussed in this final rule.

⁽³⁾  81 FR 4673 (Jan. 27, 2016).

⁽⁴⁾ See "Incorporation by Reference," 79 FR 66267, 66278 (Nov. 7, 2014).

⁽⁵⁾  The distillation process separates crude oil into its component hydrocarbons. During distillation, crude oil is heated, with different refined products recovered as the boil temperature is gradually increased. See U.S. Energy Information Administration, Crude Oil Distillation and the Definition of Refinery Capacity (July 5, 2012), available at: https://www.eia.gov/todayinenergy/detail.php?id=6970#.

⁽⁶⁾  The National Institute for Occupational Safety and Health (NIOSH) (Oct. 30, 2019), available at: https://www.cdc.gov/niosh/npg/npgd0299.html.

⁽⁷⁾  Occupational Safety and Health Administration (OSHA), Chemical Data (Dec. 28, 2020), available at: https://www.osha.gov/chemicaldata/909.

⁽⁸⁾  U.S. Energy Information Administration, available at: https://www.eia.gov/tools/glossary/index.php?id=Kerosene.

⁽⁹⁾  National Library of Medicine, available at: https://www.ncbi.nlm.nih.gov/books/NBK594686/table/ch3.tab3/.

⁽¹⁰⁾  PHMSA, Emergency Response Guidebook (2024), available at: https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2024-04/ERG2024-Eng-Web-a.pdf.

⁽¹¹⁾  45 FR 74640 (Nov. 10, 1980).

⁽¹²⁾  45 FR 74640, 74647 (Nov. 10, 1980).

⁽¹³⁾  78 FR 14702 (Mar. 7, 2013).

⁽¹⁴⁾  78 FR 14702, 14707 (Mar. 7, 2013).

⁽¹⁵⁾  49 U.S.C. 60101.

⁽¹⁶⁾ See petition for rulemaking P-1667, available at: https://www.regulations.gov/document/PHMSA-2015-0219-0001.

⁽¹⁷⁾ See petition for rulemaking P-1668, available at: https://www.regulations.gov/document/PHMSA-2015-0251-0001.

⁽¹⁸⁾  81 FR 83190 (Nov. 21, 2016).

⁽¹⁹⁾  The HM-265 NPRM includes a discussion of comments received in response to the HM-213E ANPRM because certain portions of the HM-213E rulemaking were incorporated into this HM-265 rulemaking.

⁽²⁰⁾  Please see the HM-265 NPRM's discussion of the HM-213E ANPRM comments for details on the commenters, comments, and PHMSA's responses. 89 FR at 85599.

⁽²¹⁾ See DOT-SP 21104, available at: https://www.phmsa.dot.gov/hazmat/documents/offer/SP21104.pdf/2021014464/SP21104.

⁽²²⁾  This estimate did not include potential penalties or red tagging from marking errors, when compared to the previously permissible marking requirements.

⁽²³⁾  EMA also requested that PHMSA expand this marking exception to petroleum distillate fuels with up to 15 percent ethanol content. Petroleum distillate fuels with more than 10 percent ethanol are water-miscible materials, while those 10 percent or below are water-immiscible materials. These two categories are separate entries in the ERG and responders need to treat them differently, including using different categories of firefighting foam. Expanding the marking exception beyond what was proposed in the NPRM would reduce safety and potentially put first responders at unnecessary risk. For these reasons PHMSA will not be moving forward with this request.

⁽²⁴⁾ See, e.g., Fire Apparatus Manufacturers' Association, The A's and B's of Foam of Foam Concentrate and Delivery Systems (Mar. 1, 2019), available at: https://www.fama.org/forum_articles/the-as-and-bs-of-foam-of-foam-concentrate-and-delivery-systems/.

⁽²⁵⁾  State of Tennessee, available at: https://www.tn.gov/content/dam/tn/commerce/documents/tfaca/quick_skills_training/QS_Foam_edited.pdf.

⁽²⁶⁾  45 FR 74640 (Nov. 10, 1980).

⁽²⁷⁾  78 FR 14702 (Mar. 7, 2013).

⁽²⁸⁾  Commercial Vehicle Safety Alliance, Inspection Bulletin: 2022-06-Placards on Flammable and Combustible Liquids (Dec. 14, 2022), https://cvsa.org/wp-content/uploads/2022-06-Inspection-Bulletin.pdf.

⁽²⁹⁾  PHMSA, Emergency Response Guidebook (2024), available at: https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2024-04/ERG2024-Eng-Web-a.pdf.

⁽³⁰⁾ See rulemaking docket, available at: https://www.regulations.gov/comment/PHMSA-2018-0080-0004.

⁽³¹⁾  CI previously submitted a petition for rulemaking (P-1712) to update the incorporation by reference of Pamphlet 49 to the 2016 version. However, since CI submitted petition P-1712, Pamphlet 49 has been updated to a more current version. In its comment, CI recommends that PHMSA incorporate by reference Edition 11 (2022) instead of Edition 10 (2016).

⁽³²⁾ See also Dep't of Transportation, DOT Order 2100.7, Ensuring Reliance Upon Sound Economic Analysis in Department of Transportation Policies, Programs, and Activities (requiring DOT rulemaking activities to be based on sound economic principles and analysis supported by rigorous cost-benefit analysis).

⁽³³⁾  90 FR 9065 (Jan. 31, 2025).

⁽³⁴⁾  90 FR 10583 (Feb. 19, 2025).

⁽³⁵⁾  64 FR 43255 (Aug. 10, 1999).

⁽³⁶⁾  74 FR 24693 (May 22, 2009).

⁽³⁷⁾  67 FR 53461 (Aug. 16, 2002).

⁽³⁸⁾  Dep't of Transportation, Rulemaking Requirements Related to Small Entities (May 18, 2012), available at: https://www.transportation.gov/regulations/rulemaking-requirements-concerning-small-entities.

⁽³⁹⁾  89 FR 85590 (Oct. 28, 2024).

⁽⁴⁰⁾  89 FR 85590, Section V.H (Oct. 28, 2024).

⁽⁴¹⁾  45 FR 74640 (Nov. 10, 1980).

⁽⁴²⁾  78 FR 14702 (Mar. 7, 2013).

⁽⁴³⁾  PHMSA, Emergency Response Guidebook (2024), available at: https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2024-04/ERG2024-Eng-Web-a.pdf.

⁽⁴⁴⁾  89 FR 85590 (Oct. 28, 2024).

⁽⁴⁵⁾  65 FR 19475 (Apr. 11, 2000).

⁽⁴⁶⁾  77 FR 26413 (May 4, 2012).

⁽⁴⁷⁾  66 FR 28355 (May 22, 2001).

⁽⁴⁸⁾  90 FR 9065 (Feb. 6, 2025).

⁽⁴⁹⁾  90 FR 10583 (Feb. 25, 2025).

⁽⁵⁰⁾  86 FR 26633 (May 17, 2021).