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March 24, 2022

PHMSA Seeks Comment on Initiative to Convert Historical LOIs into HMR FAQs

Bergeson & Campbell, P.C.

The U.S. Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) announced on March 22, 2022, an initiative to convert historical letters of interpretation (LOI) applicable to the Hazardous Materials Regulations (HMR) that have been issued to specific stakeholders into broadly applicable frequently asked questions (FAQ) on its website. 87 Fed. Reg. 16308. PHMSA states that by creating a FAQ repository, it seeks to eliminate the need for recurring requests for common LOIs. According to the notice, PHMSA’s objective is to gain insight regarding the utility of the initiative and topics to prioritize in the development of future FAQs. PHMSA requests comment on the initiative and input on the prioritization of future sets of FAQs. Comments are due May 23, 2022.
According to the notice, the initiative is intended to facilitate better public understanding and awareness of the HMR (49 C.F.R. Parts 171-180). PHMSA notes that the FAQs “are not substantive rules, themselves, and do not create legally enforceable rights, assign duties, or impose new obligations not otherwise contained in the existing regulations and standards, but are provided to help the regulated community understand how to comply with the regulations.” PHMSA states that “an individual who can demonstrate compliance with the FAQ is likely to be able to demonstrate compliance with the relevant regulations,” however. If a different course of action is taken by an individual, the individual must be able to demonstrate that its conduct is in accordance with the regulations.
The initiative will provide additional value to PHMSA’s Online Code of Federal Regulations (oCFR) tool. PHMSA states that the oCFR tool is an interactive web-based application that allows users to navigate with a single click between all content, including LOIs connected to an HMR citation. According to PHMSA, upon completion of this initiative, the PHMSA Office of Hazardous Materials Safety (OHMS) will be able to achieve efficiencies for other more complex or novel requests for LOIs and devote resources to other hazardous materials transportation safety projects.
The first set of questions developed under the initiative concern the applicability of the HMR to persons and functions. Section 171.1 addresses the applicability of the HMR for the safe and secure transportation of hazardous materials in commerce. FAQs in this notice, and future FAQs published on PHMSA’s website, “will help to reduce the volume of duplicative requests for information covered by the FAQ and will facilitate faster processing of more complex and novel LOI requests in the future.” PHMSA states that furthermore, in addition to publishing the first set of FAQs in the Federal Register, the notice seeks public input specific to the anticipated benefits provided by the FAQ initiative and suggestions for future FAQ topics.