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How and Why Does PHMSA Create New Hazmat Rules?

Posted on 7/18/2017 by James Griffin

Every Federal agency’s process for creating new regulations is slightly different. In recent posts, we’ve highlighted the processes used by the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA) to create new workplace safety and environmental requirements.

This week, we turn the spotlight on the Pipeline and Hazardous Materials Safety Administration (PHMSA), a sub-unit of the Department of Transportation (DOT). PHMSA’s hazmat rules are found in Title 49 of the Code of Federal Regulations (49 CFR), Parts 171–181, et. al.

When and Why Does PHMSA Create New Hazmat Rules?

PHMSA may create, or “promulgate,” new 49 CFR hazmat regulations or rescind existing requirements for a number or reasons, including:

Statutory Mandate—Congress or the President of the US may direct PHMSA to create new regulations in a law or Executive Order.

Problem Identified by PHMSA—PHMSA may determine a new rule is needed due to trends in or observations of hazmat safety and enforcement data.

Petition for Rulemaking—PHMSA may create a new hazmat regulation or rescind an existing rule in response to a petition from the public or the regulated community (e.g., hazmat shippers or carriers). 

Step 1 – Creating the Rulemaking Docket

When PHMSA begins to develop a new regulation (or set of regulations), the Agency opens a Regulatory Development Docket for it. The docket will be the home for all documentation involved in the development of the new regulation. These dockets can be found on www.Regulations.gov.   

Step 2 – Advanced Notice of Proposed Rulemaking (ANPRM)

cfr-books.jpgIf PHMSA is unsure about the best way to proceed in creating the new regulation, the Agency may issue an Advanced Notice of Proposed Rulemaking (ANPRM) and a request for public comments in the Federal Register. This ANPRM usually describes the Agency’s intent for the proposed rule and asks specific questions PHMSA wants feedback on before entering the Proposed Rule stage.
The ANPRM stage is the first opportunity the regulated community and interested parties have to influence the rulemaking.

Step 3 – Notice of Proposed Rulemaking (NPRM)

After feedback on the APNRM is received and processed, or if the Agency sees a clear path forward and skips the ANPRM step, PHMSA crafts a proposed version of the rule it would like to promulgate. This is published in the Federal Register as a Notice of Proposed Rulemaking (NPRM) and is again accompanied by a request for public comment. This time, PHMSA is seeking from the public questions or concerns about the actual proposed regulatory language rather than just on the “broad strokes” of the ANPRM.

How to Make Your Voice Heard: Public Comments on New Hazmat Regulations

When a new hazmat rule will impact your shipping operations, or if the Rulemaking piques  your interest for another reason, you can submit feedback on the ANPRM or the NPRM through www.Regulations.gov. Search the title or subject of the regulation to find the appropriate docket number. The docket will inform you on how to submit comments via regular mail or email. The ANPRM and NPRM will also have comment submission information included when published in the Federal Register.

If the public feedback raises any new major issues, or if the underlying conditions change, PHMSA may submit a revised NPRM to address these issues before proceeding to the Final Rule stage. Regardless of whether issues raised by the response to the NPRM are considered major or not, the Agency must address all feedback.

Step 4 – Issuing the Final Rule

After PHMSA has done the research, issued proposals, and received public comments, the Agency issues a Final Rule.

In all Final Rule promulgations, the Agency will reiterate why it felt the need for a new rule, review the comments it received and any actions taken in response, and certify that it followed all the rules it has to follow when creating new regulations.  

In addition to the full text of new regulations, PHMSA will often also discuss the purpose and function of the regulations, section by section. This preamble is your first guide to interpreting and applying any portions of the regulation that may seem vague or unclear. Final Rules typically become effective 30 to 90 days after they are published in the Federal Register, though some final rules are delayed until the beginning of the next fiscal or calendar year.

Step 5 – Defending the Rule in Court  

After PHMSA promulgates a new final rule, some in the regulated community may have concerns about how the new requirement(s) will impact their operations and their bottom line. Similarly, environmental or advocacy groups may take issue with a new rule that they perceive as too lenient or not restrictive enough.

Persons who are dissatisfied with new final rules, for whatever reason, may submit administrative petitions for review under 49 CFR 106 or file suit under the Administrative Procedures Act in an effort to challenge the Agency’s decision making in developing the rule.

DOT Hazmat Training in Atlanta, Nashville, Mobile, Jacksonville, Memphis, and More

Be confident your employees know their responsibilities for 49 CFR, IATA DGR, and IMDG Code compliance! Initial and recurrent online courses are available to help you meet DOT’s 3-year training mandate for hazmat employees at 49 CFR 172.704. The IATA DGR requires hazmat training for air shippers once every 24 months (IATA DGR 1.5).

Through interactive exercises, tutorials, and professionally narrated lessons, learn a step-by-step approach to classify, name, package, mark, label, load, unload, and document your hazmat/DG ground, air, and vessel shipments.

In August, the hazmat shipper training trusted nationwide comes to Atlanta, Nashville, Mobile, Jacksonville, Memphis, and more. See the full 2017 schedule and sign up here.

Tags: DOT, hazmat, hazmat shipping, new rules, PHMSA

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