81_FR_83414 81 FR 83190 - Hazardous Materials: PIPES Act Requirements for Identification Numbers on Cargo Tanks Containing Petroleum Based Fuel

81 FR 83190 - Hazardous Materials: PIPES Act Requirements for Identification Numbers on Cargo Tanks Containing Petroleum Based Fuel

DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration

Federal Register Volume 81, Issue 224 (November 21, 2016)

Page Range83190-83195
FR Document2016-27911

PHMSA is publishing this advance notice of proposed rulemaking (ANPRM) in response to the Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2016, which reauthorizes the pipeline safety program and requires a number of reports and mandates. The PIPES Act requires PHMSA to take regulatory actions to establish minimum safety standards for underground natural gas storage facilities; to update the minimum safety standards for permanent, small scale liquefied natural gas pipeline facilities; and to publish an ANPRM to address a petition for rulemaking proposing hazardous materials regulations related to the marking of identification numbers on cargo tanks. This ANPRM specifically addresses the PIPES Act requirement applicable to the petition for rulemaking related to the marking of identification numbers on cargo tanks. PHMSA will consider the comments, data, and information received in any future action related to the petition.

Federal Register, Volume 81 Issue 224 (Monday, November 21, 2016)
[Federal Register Volume 81, Number 224 (Monday, November 21, 2016)]
[Proposed Rules]
[Pages 83190-83195]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-27911]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 172

[Docket No. PHMSA-2016-0079 (HM-213E)]
RIN 2137-AF25


Hazardous Materials: PIPES Act Requirements for Identification 
Numbers on Cargo Tanks Containing Petroleum Based Fuel

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: PHMSA is publishing this advance notice of proposed rulemaking 
(ANPRM) in response to the Protecting our Infrastructure of Pipelines 
and Enhancing Safety (PIPES) Act of 2016, which reauthorizes the 
pipeline safety program and requires a number of reports and mandates. 
The PIPES Act requires PHMSA to take regulatory actions to establish 
minimum safety standards for underground natural gas storage 
facilities; to update the minimum safety standards for permanent, small 
scale liquefied natural gas pipeline facilities; and to publish an 
ANPRM to address a petition for rulemaking proposing hazardous 
materials regulations related to the marking of identification numbers 
on cargo tanks. This ANPRM specifically addresses the PIPES Act 
requirement applicable to the petition for rulemaking related to the 
marking of identification numbers on cargo tanks. PHMSA will consider 
the comments, data, and information received in any future action 
related to the petition.

DATES: Comments must be received by February 21, 2017.

ADDRESSES: You may submit comments identified by the Docket Number 
PHMSA-2016-0079 (HM-213E) through any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management System, U.S. Department of 
Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, M-30, Ground Floor, Room W12-140 in the West Building, 1200 
New Jersey Avenue SE., Washington, DC 20590,

[[Page 83191]]

between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
Holidays.
    Instructions: All submissions must include the agency name and 
Docket Number (PHMSA-2016-0079) or RIN (2137-AF25) for this notice at 
the beginning of the comment. Note that all comments received will be 
posted without change to the docket management system, including any 
personal information provided. If sent by mail, comments must be 
submitted in duplicate. Persons wishing to receive confirmation of 
receipt of their comments must include a self-addressed stamped 
postcard.
    Docket: For access to the dockets to read background documents or 
comments received, go to http://www.regulations.gov or DOT's Docket 
Operations Office (see ADDRESSES).
    Privacy Act: Anyone is able to search the electronic form of any 
written communications and comments received into any of our dockets by 
the name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 [45 FR 19477] or you 
may visit http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Steven Andrews, (202) 366-8553, Office 
of Hazardous Materials Standards, Pipeline and Hazardous Materials 
Safety Administration, U.S. Department of Transportation, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Objective of This ANPRM
III. Petitions Being Addressed (P-1667 and P-1668)
IV. Background Information
    A. Rulemakings
    B. Letters of Interpretation
V. Comments and Questions
    A. General Questions
    B. Safety Questions
    C. Policy Analysis Questions
VI. Regulatory Analysis
    A. Executive Order 12866, Executive Order 13563, and DOT 
Regulatory Policies and Procedures
    B. Executive Order 13132
    C. Executive Order 13175
    D. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Policies and Procedures
    E. Paperwork Reduction Act
    F. National Environmental Policy Act
    G. Privacy Act
    H. Executive Order 13609 and International Trade Analysis
    I. Statutory/Legal Authority for This Rulemaking
    J. Regulation Identifier Number (RIN)

I. Executive Summary

    On November 12, 2015, PHMSA received a petition for rulemaking from 
the Commercial Vehicle Safety Alliance (CVSA) proposing amendments to 
the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) 
applicable to the marking of cargo tanks transporting petroleum 
distillates. In an acknowledgment letter dated November 10, 2015, PHMSA 
assigned the CVSA petition to Petition Number P-1667 \1\ (P-1667 or the 
petition; Docket No: PHMSA-2015-0219). Subsequently, on November 24, 
2015, PHMSA received another petition for rulemaking from the American 
Trucking Association (ATA) proposing amendments to the HMR; this 
petition is also applicable to the marking of cargo tanks transporting 
petroleum distillates. In an acknowledgement letter dated November 25, 
2015, PHMSA assigned the ATA petition to Petition Number P-1668 \2\ (P-
1668 or the petition; Docket No: PHMSA-2015-0251).
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    \1\ See P-1667 docket at the following URL: https://www.regulations.gov/docket?D=PHMSA-2015-0219.
    \2\ See P-1668 docket at the following URL: https://www.regulations.gov/docket?D=PHMSA-2015-0251.
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    In this ANPRM, PHMSA outlines issues raised by these two petitions 
and discusses the background relevant to the marking of cargo tanks 
containing petroleum distillates. PHMSA further poses a series of 
questions and solicits public comment to determine the best practice 
for addressing the issues outlined in these two petitions.

II. Objective of This ANPRM

    Federal hazardous materials transportation law (49 U.S.C. 5101 et 
seq.) authorizes the Secretary of Transportation to ``prescribe 
regulations for the safe transportation, including security, of 
hazardous materials in intrastate, interstate, and foreign commerce.'' 
See 49 U.S.C. 5103(b)(1). The Secretary has delegated this authority to 
PHMSA in 49 CFR 1.97(b). The HMR are designed to achieve three primary 
goals:
    (1) To help ensure that hazardous materials are packaged and 
handled safely and securely during transportation;
    (2) to provide effective communication to transportation workers 
and emergency responders of the hazards of the materials being 
transported; and
    (3) to minimize the consequences of an incident should one occur.
    The hazardous material regulatory system is a risk management 
system that is prevention-oriented and focused on identifying a safety 
or security hazard and reducing the probability and quantity of a 
hazardous material release.
    Under the HMR, hazardous materials are categorized into hazard 
classes and packing groups based on analysis of and experience with the 
risks they present during transportation. The HMR do the following:
    (1) Specify appropriate packaging and handling requirements for 
hazardous materials based on this classification, and require a shipper 
to communicate the material's hazards through the use of shipping 
papers, package marking and labeling, and vehicle placarding;
    (2) require shippers to provide emergency response information 
applicable to the specific hazard or hazards of the material being 
transported; and
    (3) mandate training requirements for persons who prepare hazardous 
materials for shipment or transport hazardous materials in commerce.
    The HMR also include operational requirements applicable to each 
mode of transportation.
    The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., 
requires Federal agencies to give interested persons the right to 
petition an agency to issue, amend, or repeal a rule. See 5 U.S.C. 
553(e). In accordance with PHMSA's rulemaking procedure regulations in 
49 CFR part 106, interested persons may ask PHMSA to add, amend, or 
repeal a regulation by filing a petition for rulemaking along with 
information and arguments that support the requested action. See 49 CFR 
106.95. The issues being considered under this ANPRM are derived 
specifically from petitions submitted to PHMSA by CVSA and ATA 
regarding the marking of cargo tanks transporting distillate fuels.
    On June 22, 2016, President Barack Obama signed the Protecting our 
Infrastructure of Pipelines and Enhancing Safety (PIPES) Act, which in 
part requires PHMSA to publish an ANPRM to address P-1667 related to 
the marking of identification numbers on cargo tanks. See Public Law 
114-183. Section 15 of the PIPES Act reads as follows:

    EC. 15. HAZARDOUS MATERIALS IDENTIFICATION NUMBERS.
    Not later than 90 days after the date of enactment of this Act, 
the Secretary of Transportation shall issue an advanced notice of 
proposed rulemaking 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).


[[Page 83192]]


    As mandated by section 15 of the PIPES Act, the objective of this 
ANPRM is to solicit comments on P-1667. It further solicits comments on 
the related petition for rulemaking, P-1668.

III. Petitions Being Addressed (P-1667 and P-1668)

    Through P-1667 and P-1668, the CVSA and ATA, respectively, asked 
PHMSA to revise Sec.  172.336(c) of the HMR. In P-1667, CVSA proposed 
that PHMSA reinstate language that existed in Sec.  172.336(c)(4) and 
(5) prior to the publication of the HM-219 final rule [78 FR 14702] on 
March 7, 2013. Prior to HM-219, the paragraphs in Sec.  172.336(c)(4) 
and (5) read as follows:

    (4) For each of the different liquid petroleum distillate fuels, 
including gasoline, in a compartmented cargo tank or tank car, if 
the identification number is displayed for the distillate fuel 
having the lowest flash point. After October 1, 2000, if a 
compartmented cargo tank or tank car contains such fuels together 
with a gasoline and alcohol fuel blend containing more than ten 
percent ethanol, the identification number ``3475'' or ``1987'' must 
also be displayed as appropriate in addition to the identification 
number for the liquid petroleum distillate fuel having the lowest 
flash point.
    (5) For each of the different liquid petroleum distillate fuels, 
including gasoline transported in a cargo tank, if the 
identification number is displayed for the liquid petroleum 
distillate fuel having the lowest flash point.

    CVSA indicated in its petition that the current regulations, as 
revised by the HM-219 final rule, are inconsistent with the previous 
requirements. CVSA further noted that the table in Sec.  172.336 has 
created confusion and lack of uniformity for industry, enforcement, and 
first responders in regard to the display of identification numbers on 
multi-compartmented cargo tanks containing different petroleum 
distillate fuels.
    In P-1668, ATA proposed removing the requirement to display the 
identification number of the petroleum distillate with the lowest 
flashpoint, in addition to the identification number for the fuel blend 
as ``3475'' or ``1987,'' on a multi-compartmented cargo tank carrying 
an alcohol fuel blend with more than 10 percent ethanol. ATA further 
noted that its comments to the HM-218D final rule [73 FR 4699] that was 
published on January 28, 2008, suggested a uniform marking for all 
gasoline and gasoline/alcohol fuel blends, as well as an update to the 
Emergency Response Guide (ERG) requiring alcohol-resistant foam for all 
releases. ATA noted that PHMSA disagreed with this statement at the 
time because ``the new shipping description for gasoline/ethanol fuel 
blends would enhance emergency responders'' ability to respond 
effectively to incidents involving these materials.
    ATA identified several variations between Guide 127 and 128 in the 
ERG, used in the event of an unintentional release by emergency 
responders. The fuel blend identification numbers UN 1987 and 3475 are 
attributed to Guide 127 and Guide 128 as appropriate for several liquid 
petroleum distillates including UN 1203, 1270, and 1993. As noted by 
ATA, Guides 127 and 128 differ in the use of ``alcohol-resistant foam'' 
versus ``regular foam'' in the event of small and large fires. PHMSA 
has indicated that alcohol-resistant foam is necessary for emergency 
response involving polar/water-miscible flammable liquids, such as 
ethanol and gasoline fuel blends. In its petition, ATA reiterated the 
National Tank Truck Carriers' (NTTC) comments to HM-218D, suggesting 
that rather than displaying the identification number of the petroleum 
distillate and the alcohol/ethanol fuel blend, PHMSA should instead 
require the use of alcohol-resistant foam for both fuels in emergency 
response situations. Furthermore, ATA cited that emergency responders 
currently use alcohol-resistant foam to treat both types of fuel in the 
event of an unintentional release, recognizing that the identification 
number marking for fuel blends with greater than 10 percent ethanol is 
not needed for emergency response purposes.

IV. Background

A. Rulemakings

    The rulemaking history pertaining to the marking of cargo tanks 
containing fuel oil and petroleum distillates, as applicable to P-1667, 
is complex. On June 6, 1979, the Research and Special Programs 
Administration (RSPA), PHMSA's predecessor agency, published a notice 
of proposed rulemaking (NPRM) (HM-126A) associated with the use of 
identification numbers on packages. See 44 FR 32972. In the NPRM, RSPA 
proposed to require that an identification number be displayed on 
orange panels affixed to portable tanks, cargo tanks, and tank cars. 
RSPA proposed a set of standards in Sec.  172.328 that would require 
cargo tanks to be marked on each side with the identification numbers 
specified for the material in the Hazardous Materials Table (HMT), 
which is found in Sec.  172.101. RSPA further proposed to add Sec.  
172.328(e) stating that a cargo tank marked with the identification 
number or name of a specific hazardous material may not be used to 
transport any other material unless the marking is removed or changed 
to identify the hazardous material the cargo tank contains.
    RSPA received numerous comments to the HM-126A NPRM expressing 
concern that the identification number requirements for cargo tanks 
proposed and codified in Sec.  172.328(e) would limit a carrier's 
ability to transport fuel oils and distillate fuels in multi-
compartmented cargo tanks and tank cars. As a result, in May 22, 1980, 
RSPA published a final rule titled, ``Identification Numbers, Hazardous 
Substances, International Descriptions, Improved Descriptions, 
Forbidden Materials, and Organic Peroxides,'' which amended the HMR and 
codified language in Sec.  172.336(c)(3) stating that identification 
markings are not required for different distillate fuels in the same 
cargo tank or tank car, if the identification number is displayed for 
the distillate fuel having the lowest flash point. See 45 FR 34560.
    The May 22, 1980 final rule generated a number of appeals. On 
November 10, 1980 [45 FR 74640], RSPA published a response to appeals 
to the May 22, 1980 final rule. In the response, RSPA noted that the 
provisions for allowing cargo tanks and multi-compartment cargo tanks 
to only display the identification number of the distillate fuel with 
lowest flash point were intended to eliminate the need for continuous 
changes in identification numbers for operations where gasoline and 
fuel oil are transported in the same cargo tank for different trips 
that occur on the same day. However, in response to these appeals, RSPA 
revised the HMR. To address compartmented cargo tanks, RSPA moved 
regulatory text initially found in Sec.  172.336 from paragraph (c)(3) 
to (c)(4); and to address cargo tanks and tank cars, RSPA moved 
regulatory text initially found in Sec.  172.336(c)(3) to (c)(5). These 
two provisions allowed for the display of the identification number of 
the liquid distillate fuel having the lowest flash point carried in a 
cargo tank; however, as noted above, RSPA intended for this exception 
to be allowed for different trips that occurred on the same day.
    In an April 20, 1987 final rule (HM-166) [52 FR 13034], RSPA 
revised the HMR and added the term ``Gasohol'' to Sec.  172.336(c)(4) 
and (5). This term accounted for new formulations of gasoline mixed 
with ethyl alcohol (i.e., ethanol) shipped under Sec.  172.336 of the 
HMR.
    In a January 28, 2008 final rule (HM-218D) [73 FR 4699], PHMSA 
revised the HMR and added ``UN 3475, Ethanol and

[[Page 83193]]

gasoline mixture or Ethanol and motor spirit or Ethanol and petrol 
mixture, with more than 10% ethanol'' to the HMT to address gasoline 
and ethanol mixtures such as E85.\3\ PHMSA further identified that 
emergency response techniques between petroleum distillates and 
gasoline and ethanol fuel blends differ. Specifically, gasoline and 
ethanol fuel blends with more than 10 percent ethanol are polar/water-
miscible flammable liquids and decrease the effectiveness of alcohol-
resistant fire-fighting foam. Due to these differences in fire-fighting 
methods, PHMSA revised the HMR and adopted language in Sec.  
172.336(c)(4) and (5) to clarify that when a petroleum distillate fuel 
and a gasoline/ethanol fuel blend with more than 10 percent ethanol are 
both carried on a multi-compartment cargo tank or tank car, the UN 
identification number ``3475'' or ``1987'' must be displayed in 
addition to the identification number of the petroleum distillate fuel 
with the lowest flash point. PHMSA notes that both NTTC and the 
Petroleum Marketers and Convenience Stores of Iowa (PMCI) suggested in 
their comments to the HM-218D NPRM that revising the Emergency Response 
Guidebook (ERG) to require alcohol-resistant foam for all flammable 
liquids (Class 3), rather than adopting a new shipping description for 
gasoline and ethanol fuel blends, would have made the requirement to 
display the identification number for the alcohol fuel blend 
unnecessary.
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    \3\ E85 is an abbreviation for an ethanol fuel blend of 85% 
denatured ethanol fuel and 15% gasoline or other hydrocarbon by 
volume.
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    In a March 7, 2013 final rule (HM-219) [78 FR 14702], based on a 
petition for rulemaking (P-1522) from Shell Chemicals,\4\ PHMSA removed 
all references to ``gasohol'' and codified a table to more clearly 
indicate hazard communication requirements for compartmented cargo 
tanks, tank cars, or cargo tanks containing these fuels. The revised 
text indicates that when a cargo tank contains more than one petroleum 
distillate fuel, it may be marked with the identification number for 
the liquid petroleum distillate fuel having the lowest flash point.
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    \4\ See P-1522 docket at the following URL: https://www.regulations.gov/searchResults?rpp=10&po=0&s=PHMSA-2008-0171.
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B. Letters of Interpretation

    On October 16, 2000, RSPA issued an interpretation letter (Ref. No. 
00-0208 \5\) to the Florida Department of Environmental Protection 
concerning the identification number markings on cargo tanks containing 
diesel fuel and gasoline. In this interpretation letter, RSPA stated 
that if a cargo tank containing gasoline is marked with the 
identification number for gasoline, ``1203,'' it may remain so marked 
on a subsequent trip when the cargo tank contains diesel fuel; however, 
the letter did not further clarify that this exception only applies to 
transportation occurring on the same day. Thus, it appears that 
industry uses this interpretation letter as standard practice to leave 
the ``1203'' identification number marking for gasoline on cargo tanks 
even if the cargo tank is not used for gasoline on any particular day 
or on a subsequent trip.
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    \5\ See Reference Number 00-0208 letter of interpretation at: 
http://docketsinfo.dot.gov/reports/rspa/2000-10/000208.pdf.
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    On June 26, 2015, PHMSA issued an interpretation letter (Ref. No. 
14-0178 \6\) to the South Carolina State Police concerning the 
placement of identification numbers on multi-compartmented cargo tanks 
containing petroleum distillates. In the example provided in the 
interpretation letter, all of the compartments in the multi-
compartmented cargo tank were loaded with only diesel fuel, but 
displayed ``1203,'' the identification number for gasoline. PHMSA's 
response determined that if a multi-compartmented cargo tank contains 
the same petroleum distillate fuel (other than gasoline) in each 
compartment, then it must be marked with the correct identification 
number for that material--not with ``1203.''
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    \6\ See Reference Number 14-0178 letter of interpretation at: 
http://phmsa.dot.gov/portal/site/PHMSA/menuitem.6f23687cf7b00b0f22e4c6962d9c8789/?vgnextoid=2bd1d740bd03e410VgnVCM100000d2c97898RCRD&vgnextfmt=default
.
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V. Comments and Questions

    The PIPES Act specifically requires PHMSA to issue an ANPRM to 
solicit public comment on P-1667. In addition, PHMSA is considering the 
regulatory changes proposed in P-1668. We invite comment on the 
following key issues and request that commenters provide data sources 
to support their positions. If commenters suggest modification to the 
existing regulatory requirements, PHMSA requests that comments provided 
be as specific as possible.

A. General Questions

    1. Are carriers currently marking cargo tanks with the 
identification number of a petroleum distillate fuel, including 
gasoline and gasohol, when that material is not present in that cargo 
tank? If so, why are carriers undertaking this practice? When and where 
does this practice occur? How prevalent is this practice?
    2. If the answer to question 1 above is yes, how is this being done 
without violating the prohibitive marking requirements in Sec.  172.303 
of the HMR?

B. Safety Questions

    1. Would marking a cargo tank with the identification number for 
the liquid petroleum distillate fuel having the lowest flash point, 
rather than with the identification numbers representing each of the 
different liquid petroleum distillate fuels including gasoline and 
gasohol, create concerns for emergency responders?
    2. Does responding to an incident involving diesel fuel differ from 
responding to an incident involving gasoline--if so, how?

C. Policy Analysis Questions

    1. How many entities and shipments would be affected by modifying 
the existing regulatory requirements related to the hazard 
communication standards for cargo tanks transporting petroleum 
distillate fuels? In addition, how many of the effected entities would 
be considered small businesses?
    2. What are the potential costs of modifying the existing 
regulatory requirements related to hazardous materials communication on 
cargo tanks pursuant to the petitioners' suggestions? If no specific 
quantitative data is available, what types of costs would be reasonable 
to anticipate (e.g., training cost, equipment replacement, etc.)?
    3. What consequences would be mitigated or prevented by modifying 
the hazard communication requirements for cargo tanks transporting 
petroleum distillate fuels? Have there been instances in the U.S. 
safety record when the current requirements and industry practices 
related to the identification number markings have resulted in 
emergency response complications, injury, or death?
    4. What are the potential quantifiable safety and societal benefits 
of modifying the existing regulatory requirements related to hazardous 
materials communication for cargo tanks?
    5. What are the potential environmental impacts and human health 
effects of modifying the existing regulatory requirements?

VI. Regulatory Analysis

A. Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    This ANPRM has not been designated a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866, ``Regulatory 
Planning and Review.'' 58 FR 51735 (Oct. 4, 1993). Accordingly,

[[Page 83194]]

this ANPRM has not been reviewed by the Office of Management and Budget 
(OMB) and is not considered to be a significant regulatory action under 
the DOT Regulatory Policies and Procedures of February 26, 1979. See 44 
FR 11034.
    Executive Order 13563, ``Improving Regulation and Regulatory 
Review,'' 76 FR 3821 (Jan. 21, 2011), supplements and reaffirms the 
principles, structures, and definitions governing regulatory review 
that were established in Executive Order 12866. Together, Executive 
Orders 12866 and 13563 require 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.''
    Additionally, Executive Orders 12866 and 13563 require agencies to 
provide a meaningful opportunity for public participation. Therefore, 
PHMSA solicits comment on the key issues addressed in this ANPRM.

B. Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), 
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.'' We 
invite State and local governments with an interest in this rulemaking 
to comment on any effect that revisions to the HMR relative to 
identification numbers displayed on cargo tanks may cause.

C. Executive Order 13175

    Executive Order 13175, ``Consultation and Coordination and Indian 
Tribal Governments,'' 65 FR 67249 (Nov. 9, 2000), requires agencies to 
assure meaningful and timely input from Indian tribal government 
representatives in the development of rules that ``significantly or 
uniquely affect'' Indian communities and impose ``substantial and 
direct compliance costs'' on such communities. We invite Indian tribal 
governments to provide comments on the costs and effects that this or a 
future rulemaking could potentially have on them.

D. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies 
and Procedures

    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.'' Small 
entities include small businesses, not-for-profit organizations that 
are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations under 50,000.
    As such, PHMSA solicits input from small entities on the issues 
presented in this ANPRM. If you believe that revisions to the HMR 
relative to identification numbers on cargo tanks would have a 
significant economic impact on a substantial number of small entities, 
please submit a comment to PHMSA. In your comment, please explain how 
and to what extent your business or organization could be affected, and 
whether there are alternative approaches to this regulation the agency 
should consider that would minimize any significant impact on small 
business while still meeting the agency's statutory objectives
    Any future proposed rule would be developed in accordance with 
Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (Aug. 16, 2002), as well as DOT's 
procedures and policies, so as to promote compliance with the 
Regulatory Flexibility Act to ensure that potential impacts on small 
entities of a regulatory action are properly considered.

E. Paperwork Reduction Act

    Section 1320.8(d), title 5, Code of Federal Regulations requires 
that PHMSA provide interested members of the public and affected 
agencies an opportunity to comment on information collection and 
recordkeeping requests. It is possible that new or revised information 
collection requirements could occur as a result of any future 
rulemaking action. We invite comment on the need for any collection of 
information and paperwork burdens that may apply as result of a future 
rulemaking.

F. National Environmental Policy Act

    The National Environmental Policy Act of 1969, 42 U.S.C. 4321-4375, 
requires Federal agencies to consider the consequences of major Federal 
actions and prepare a detailed statement on actions significantly 
affecting the quality of the human environment. The Council on 
Environmental Quality (CEQ) regulations require Federal agencies to 
conduct an environmental review considering (1) the need for the 
proposed action, (2) alternatives to the proposed action, (3) probable 
environmental impacts of the proposed action and alternatives, and (4) 
the agencies and persons consulted during the consideration process. 
See 40 CFR 1508.9(b). PHMSA welcomes any data or information related to 
environmental impacts that may result from this ANPRM.

G. Privacy Act

    Anyone is able to search the electronic form of any written 
communications and comments received into any of our dockets by the 
name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register at 65 FR 19477 (April 11, 2000), or you may visit 
http://www.dot.gov/privacy.html.

H. Executive Order 13609 and International Trade Analysis

    Under Executive Order 13609, ``Promoting International Regulatory 
Cooperation,'' 77 FR 26413 (May 4, 2012), 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, Public Law 96-39, as 
amended by the Uruguay Round Agreements Act, Public Law 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. For purposes of these requirements, 
Federal agencies may participate in the establishment of international 
standards, 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, and we have 
assessed the effects of this ANPRM to ensure that

[[Page 83195]]

it does not cause unnecessary obstacles to foreign trade. Accordingly, 
this rulemaking is consistent with Executive Order 13609 and PHMSA's 
obligations under the Trade Agreement Act, as amended.

I. Statutory/Legal Authority for This Rulemaking

    Federal hazardous materials transportation law, 49 U.S.C. 5101 et 
seq., 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 this authorization to the Administrator for 
PHMSA. See 49 CFR 1.97. PHMSA is issuing this ANPRM to gather the 
necessary information to determine a course of action for clarifying 
issues pertaining to the display of identification numbers related to 
the transportation of fuel oils and petroleum distillates.

J. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

    Issued in Washington, DC, on November 15, 2016, under authority 
delegated in 49 CFR 1.97.
William Schoonover,
Acting Associate Administrator for Hazardous Materials Safety, Pipeline 
and Hazardous Materials Safety Administration.
[FR Doc. 2016-27911 Filed 11-18-16; 8:45 am]
 BILLING CODE 4910-60-P



                                                      83190                Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Proposed Rules

                                                      making effective comments, please visit                 and anticipate no adverse comment. We                 DEPARTMENT OF TRANSPORTATION
                                                      http://www2.epa.gov/dockets/                            have explained our reasons for this
                                                      commenting-epa-dockets.                                 action in the preamble of the direct final            Pipeline and Hazardous Materials
                                                      FOR FURTHER INFORMATION CONTACT: Ms.                    rule.                                                 Safety Administration
                                                      Kimberly Garnett, U.S. EPA, Office of                     If we receive no adverse comment, we
                                                      Air Quality Planning and Standards, Air                                                                       49 CFR Part 172
                                                                                                              will not take further action on this
                                                      Quality Assessment Division,                            proposed rule. If the EPA receives                    [Docket No. PHMSA–2016–0079 (HM–213E)]
                                                      Measurement Technology Group (E143–                     adverse comment, we will publish a
                                                      02), Research Triangle Park, NC 27711;                                                                        RIN 2137–AF25
                                                                                                              timely withdrawal in the Federal
                                                      telephone number: (919) 541–1158; fax                                                                         Hazardous Materials: PIPES Act
                                                                                                              Register informing the public that the
                                                      number: (919) 541- 0516; email address:                                                                       Requirements for Identification
                                                                                                              direct final rule will not take effect. In
                                                      garnett.kim@epa.gov.                                                                                          Numbers on Cargo Tanks Containing
                                                                                                              that case, we would address all public
                                                      SUPPLEMENTARY INFORMATION: The                                                                                Petroleum Based Fuel
                                                                                                              comments in any subsequent final rule
                                                      Environmental Protection Agency (EPA)
                                                                                                              based on this proposed rule.                          AGENCY: Pipeline and Hazardous
                                                      is proposing revisions to a procedure in
                                                      the New Source Performance Standards                      We do not intend to institute a second              Materials Safety Administration
                                                      (NSPS). We also propose to correct a                    comment period on this action. Any                    (PHMSA), DOT.
                                                      typographical error in the introduction                 parties interested in commenting must                 ACTION: Advance notice of proposed
                                                      to Paragraph (6) of section 10.4 of                     do so at this time. For further                       rulemaking (ANPRM).
                                                      Procedure 2. Without this revision,                     information about commenting on this
                                                      paragraph (6)(iii) would remain unused                  rule, please see the information                      SUMMARY:   PHMSA is publishing this
                                                      in Procedure 2. This typographical                      provided in the ADDRESSES section of                  advance notice of proposed rulemaking
                                                      correction is necessary to fulfill the                  this document.                                        (ANPRM) in response to the Protecting
                                                      intent of Procedure 2, section 10.4(6),                                                                       our Infrastructure of Pipelines and
                                                                                                                The regulatory text for the proposal is             Enhancing Safety (PIPES) Act of 2016,
                                                      when promulgated. See 69 FR 1786.                       identical to that for the direct final rule           which reauthorizes the pipeline safety
                                                      I. Why is the EPA issuing this proposed                 published in the ‘‘Rules and                          program and requires a number of
                                                      rule?                                                   Regulations’’ section of this Federal                 reports and mandates. The PIPES Act
                                                         The EPA proposes a revision to                       Register publication. For further                     requires PHMSA to take regulatory
                                                      Procedure 2, sections 10.4(5)and (6), to                supplementary information, the detailed               actions to establish minimum safety
                                                      allow facilities that have reduced their                rationale for the proposal and the                    standards for underground natural gas
                                                      emissions since completing their PM                     regulatory revisions, see the direct final            storage facilities; to update the
                                                      CEMS correlation testing to extend their                rule published in a separate part of this             minimum safety standards for
                                                      correlation regression line to the point                Federal Register publication.                         permanent, small scale liquefied natural
                                                      corresponding to the lowest PM CEMS                                                                           gas pipeline facilities; and to publish an
                                                                                                              II. Does this action apply to me?                     ANPRM to address a petition for
                                                      response obtained during the RCA or
                                                      RRA. This extended correlation                             The entities potentially affected by               rulemaking proposing hazardous
                                                      regression line will be used to                         this rule include any facility that is                materials regulations related to the
                                                      determine if results of this RCA or RRA                                                                       marking of identification numbers on
                                                                                                              required to install and operate a PM
                                                      meet the criteria specified in Section                                                                        cargo tanks. This ANPRM specifically
                                                                                                              CEMS under any provision of title 40 of
                                                      10.4, paragraphs (5) and (6) of Procedure                                                                     addresses the PIPES Act requirement
                                                                                                              the CFR. If you have any questions                    applicable to the petition for rulemaking
                                                      2, respectively. This change will ensure                regarding the applicability of this action
                                                      that facilities that have reduced their                                                                       related to the marking of identification
                                                                                                              to a particular entity, consult the person            numbers on cargo tanks. PHMSA will
                                                      emissions since completing their
                                                                                                              listed in the FOR FURTHER INFORMATION                 consider the comments, data, and
                                                      correlation testing will no longer be
                                                                                                              CONTACT section of this document.                     information received in any future
                                                      penalized because their lower emissions
                                                      fall outside their initial response range.              List of Subjects in 40 CFR Part 60                    action related to the petition.
                                                      This action also proposes to correct a                                                                        DATES: Comments must be received by
                                                      typographical error in the introduction                   Environmental protection,                           February 21, 2017.
                                                      to section 10.4, paragraph (6) of                       Administrative practice and procedure,                ADDRESSES: You may submit comments
                                                      Procedure 2. Paragraph (6), which                       Air pollution control, Continuous                     identified by the Docket Number
                                                      originally read, ‘‘To pass an RRA, you                  emission monitoring systems,                          PHMSA–2016–0079 (HM–213E) through
                                                      must meet the criteria specified in                     Particulate matter, Procedures.                       any of the following methods:
                                                      paragraphs (6)(i) and (ii) . . .’’, is being              Dated: November 8, 2016.                              • Federal eRulemaking Portal: Go to
                                                      corrected to read: ‘‘To pass an RRA, you                                                                      http://www.regulations.gov. Follow the
                                                                                                              Gina McCarthy,
                                                      must meet the criteria specified in                                                                           online instructions for submitting
                                                      paragraphs (6)(i) through (iii) . . .’’                 Administrator.                                        comments.
                                                      Without this revision, paragraph (6)(iii)               [FR Doc. 2016–27847 Filed 11–18–16; 8:45 am]            • Fax: 1–202–493–2251.
                                                      would remain unused in Procedure 2.                     BILLING CODE 6560–50–P                                  • Mail: Docket Management System,
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                                                      This typographical correction is                                                                              U.S. Department of Transportation,
                                                      necessary to fulfill the intent of                                                                            Dockets Operations, M–30, Ground
                                                      Procedure 2, section 10.4(6), when                                                                            Floor, Room W12–140, 1200 New Jersey
                                                      promulgated in 69 FR 1786. We have                                                                            Avenue SE., Washington, DC 20590.
                                                      published a direct final rule approving                                                                         • Hand Delivery: U.S. Department of
                                                      the revisions to Procedure 2 in the                                                                           Transportation, Docket Operations,
                                                      ‘‘Rules and Regulations’’ section of this                                                                     M–30, Ground Floor, Room W12–140 in
                                                      Federal Register publication because we                                                                       the West Building, 1200 New Jersey
                                                      view this as a non-controversial action                                                                       Avenue SE., Washington, DC 20590,


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                                                                           Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Proposed Rules                                               83191

                                                      between 9 a.m. and 5 p.m., Monday                         I. Statutory/Legal Authority for This                  The hazardous material regulatory
                                                      through Friday, except Federal                               Rulemaking                                       system is a risk management system that
                                                      Holidays.                                                 J. Regulation Identifier Number (RIN)               is prevention-oriented and focused on
                                                        Instructions: All submissions must                    I. Executive Summary                                  identifying a safety or security hazard
                                                      include the agency name and Docket                                                                            and reducing the probability and
                                                      Number (PHMSA–2016–0079) or RIN                            On November 12, 2015, PHMSA                        quantity of a hazardous material release.
                                                      (2137–AF25) for this notice at the                      received a petition for rulemaking from                  Under the HMR, hazardous materials
                                                      beginning of the comment. Note that all                 the Commercial Vehicle Safety Alliance                are categorized into hazard classes and
                                                      comments received will be posted                        (CVSA) proposing amendments to the                    packing groups based on analysis of and
                                                      without change to the docket                            Hazardous Materials Regulations (HMR;                 experience with the risks they present
                                                      management system, including any                        49 CFR parts 171–180) applicable to the               during transportation. The HMR do the
                                                      personal information provided. If sent                  marking of cargo tanks transporting                   following:
                                                      by mail, comments must be submitted                     petroleum distillates. In an                             (1) Specify appropriate packaging and
                                                      in duplicate. Persons wishing to receive                acknowledgment letter dated November                  handling requirements for hazardous
                                                      confirmation of receipt of their                        10, 2015, PHMSA assigned the CVSA                     materials based on this classification,
                                                      comments must include a self-addressed                  petition to Petition Number P–1667 1                  and require a shipper to communicate
                                                      stamped postcard.                                       (P–1667 or the petition; Docket No:                   the material’s hazards through the use of
                                                        Docket: For access to the dockets to                  PHMSA–2015–0219). Subsequently, on                    shipping papers, package marking and
                                                      read background documents or                            November 24, 2015, PHMSA received                     labeling, and vehicle placarding;
                                                      comments received, go to http://                        another petition for rulemaking from the                 (2) require shippers to provide
                                                      www.regulations.gov or DOT’s Docket                     American Trucking Association (ATA)                   emergency response information
                                                      Operations Office (see ADDRESSES).                      proposing amendments to the HMR; this                 applicable to the specific hazard or
                                                        Privacy Act: Anyone is able to search                 petition is also applicable to the                    hazards of the material being
                                                      the electronic form of any written                      marking of cargo tanks transporting                   transported; and
                                                      communications and comments                             petroleum distillates. In an                             (3) mandate training requirements for
                                                      received into any of our dockets by the                 acknowledgement letter dated                          persons who prepare hazardous
                                                      name of the individual submitting the                   November 25, 2015, PHMSA assigned                     materials for shipment or transport
                                                      document (or signing the document, if                   the ATA petition to Petition Number                   hazardous materials in commerce.
                                                      submitted on behalf of an association,                  P–1668 2 (P–1668 or the petition; Docket                 The HMR also include operational
                                                      business, labor union, etc.). You may                   No: PHMSA–2015–0251).                                 requirements applicable to each mode of
                                                      review DOT’s complete Privacy Act                          In this ANPRM, PHMSA outlines                      transportation.
                                                      Statement in the Federal Register                       issues raised by these two petitions and                 The Administrative Procedure Act
                                                      published on April 11, 2000 [45 FR                      discusses the background relevant to the              (APA), 5 U.S.C. 551 et seq., requires
                                                      19477] or you may visit http://                         marking of cargo tanks containing                     Federal agencies to give interested
                                                      www.regulations.gov.                                    petroleum distillates. PHMSA further                  persons the right to petition an agency
                                                                                                              poses a series of questions and solicits              to issue, amend, or repeal a rule. See 5
                                                      FOR FURTHER INFORMATION CONTACT:                                                                              U.S.C. 553(e). In accordance with
                                                      Steven Andrews, (202) 366–8553, Office                  public comment to determine the best
                                                                                                              practice for addressing the issues                    PHMSA’s rulemaking procedure
                                                      of Hazardous Materials Standards,                                                                             regulations in 49 CFR part 106,
                                                      Pipeline and Hazardous Materials Safety                 outlined in these two petitions.
                                                                                                                                                                    interested persons may ask PHMSA to
                                                      Administration, U.S. Department of                      II. Objective of This ANPRM                           add, amend, or repeal a regulation by
                                                      Transportation, 1200 New Jersey                                                                               filing a petition for rulemaking along
                                                      Avenue SE., Washington, DC 20590–                          Federal hazardous materials
                                                                                                              transportation law (49 U.S.C. 5101 et                 with information and arguments that
                                                      0001.                                                                                                         support the requested action. See 49
                                                                                                              seq.) authorizes the Secretary of
                                                      SUPPLEMENTARY INFORMATION:                              Transportation to ‘‘prescribe regulations             CFR 106.95. The issues being
                                                                                                              for the safe transportation, including                considered under this ANPRM are
                                                      Table of Contents                                                                                             derived specifically from petitions
                                                                                                              security, of hazardous materials in
                                                      I. Executive Summary                                                                                          submitted to PHMSA by CVSA and
                                                      II. Objective of This ANPRM
                                                                                                              intrastate, interstate, and foreign
                                                                                                                                                                    ATA regarding the marking of cargo
                                                      III. Petitions Being Addressed (P–1667 and              commerce.’’ See 49 U.S.C. 5103(b)(1).
                                                                                                                                                                    tanks transporting distillate fuels.
                                                            P–1668)                                           The Secretary has delegated this                         On June 22, 2016, President Barack
                                                      IV. Background Information                              authority to PHMSA in 49 CFR 1.97(b).                 Obama signed the Protecting our
                                                         A. Rulemakings                                       The HMR are designed to achieve three
                                                         B. Letters of Interpretation                                                                               Infrastructure of Pipelines and
                                                                                                              primary goals:                                        Enhancing Safety (PIPES) Act, which in
                                                      V. Comments and Questions                                  (1) To help ensure that hazardous
                                                         A. General Questions                                                                                       part requires PHMSA to publish an
                                                         B. Safety Questions
                                                                                                              materials are packaged and handled                    ANPRM to address P–1667 related to
                                                         C. Policy Analysis Questions                         safely and securely during                            the marking of identification numbers
                                                      VI. Regulatory Analysis                                 transportation;                                       on cargo tanks. See Public Law 114–183.
                                                         A. Executive Order 12866, Executive Order               (2) to provide effective                           Section 15 of the PIPES Act reads as
                                                            13563, and DOT Regulatory Policies and            communication to transportation                       follows:
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                                                            Procedures                                        workers and emergency responders of
                                                         B. Executive Order 13132                             the hazards of the materials being                      EC. 15. HAZARDOUS MATERIALS
                                                         C. Executive Order 13175                                                                                   IDENTIFICATION NUMBERS.
                                                                                                              transported; and
                                                         D. Regulatory Flexibility Act, Executive                                                                     Not later than 90 days after the date of
                                                            Order 13272, and DOT Policies and                    (3) to minimize the consequences of                enactment of this Act, the Secretary of
                                                            Procedures                                        an incident should one occur.                         Transportation shall issue an advanced
                                                         E. Paperwork Reduction Act                                                                                 notice of proposed rulemaking to take public
                                                         F. National Environmental Policy Act                  1 See P–1667 docket at the following URL: https://   comment on the petition for rulemaking
                                                         G. Privacy Act                                       www.regulations.gov/docket?D=PHMSA-2015-0219.         dated October 28, 2015, titled ‘‘Corrections to
                                                         H. Executive Order 13609 and                          2 See P–1668 docket at the following URL: https://   Title 49 CFR 172.336 Identification numbers;
                                                            International Trade Analysis                      www.regulations.gov/docket?D=PHMSA-2015-0251.         special provisions’’ (P–1667).



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                                                      83192                Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Proposed Rules

                                                         As mandated by section 15 of the                     because ‘‘the new shipping description                or name of a specific hazardous material
                                                      PIPES Act, the objective of this ANPRM                  for gasoline/ethanol fuel blends would                may not be used to transport any other
                                                      is to solicit comments on P–1667. It                    enhance emergency responders’’ ability                material unless the marking is removed
                                                      further solicits comments on the related                to respond effectively to incidents                   or changed to identify the hazardous
                                                      petition for rulemaking, P–1668.                        involving these materials.                            material the cargo tank contains.
                                                                                                                 ATA identified several variations                     RSPA received numerous comments
                                                      III. Petitions Being Addressed (P–1667                  between Guide 127 and 128 in the ERG,                 to the HM–126A NPRM expressing
                                                      and P–1668)                                             used in the event of an unintentional                 concern that the identification number
                                                         Through P–1667 and P–1668, the                       release by emergency responders. The                  requirements for cargo tanks proposed
                                                      CVSA and ATA, respectively, asked                       fuel blend identification numbers UN                  and codified in § 172.328(e) would limit
                                                      PHMSA to revise § 172.336(c) of the                     1987 and 3475 are attributed to Guide                 a carrier’s ability to transport fuel oils
                                                      HMR. In P–1667, CVSA proposed that                      127 and Guide 128 as appropriate for                  and distillate fuels in multi-
                                                      PHMSA reinstate language that existed                   several liquid petroleum distillates                  compartmented cargo tanks and tank
                                                      in § 172.336(c)(4) and (5) prior to the                 including UN 1203, 1270, and 1993. As                 cars. As a result, in May 22, 1980, RSPA
                                                      publication of the HM–219 final rule [78                noted by ATA, Guides 127 and 128                      published a final rule titled,
                                                      FR 14702] on March 7, 2013. Prior to                    differ in the use of ‘‘alcohol-resistant              ‘‘Identification Numbers, Hazardous
                                                      HM–219, the paragraphs in                               foam’’ versus ‘‘regular foam’’ in the                 Substances, International Descriptions,
                                                      § 172.336(c)(4) and (5) read as follows:                event of small and large fires. PHMSA                 Improved Descriptions, Forbidden
                                                         (4) For each of the different liquid                 has indicated that alcohol-resistant foam             Materials, and Organic Peroxides,’’
                                                      petroleum distillate fuels, including gasoline,         is necessary for emergency response                   which amended the HMR and codified
                                                      in a compartmented cargo tank or tank car,              involving polar/water-miscible                        language in § 172.336(c)(3) stating that
                                                      if the identification number is displayed for           flammable liquids, such as ethanol and                identification markings are not required
                                                      the distillate fuel having the lowest flash             gasoline fuel blends. In its petition,                for different distillate fuels in the same
                                                      point. After October 1, 2000, if a                      ATA reiterated the National Tank Truck                cargo tank or tank car, if the
                                                      compartmented cargo tank or tank car                                                                          identification number is displayed for
                                                      contains such fuels together with a gasoline
                                                                                                              Carriers’ (NTTC) comments to HM–
                                                                                                              218D, suggesting that rather than                     the distillate fuel having the lowest
                                                      and alcohol fuel blend containing more than
                                                      ten percent ethanol, the identification                 displaying the identification number of               flash point. See 45 FR 34560.
                                                      number ‘‘3475’’ or ‘‘1987’’ must also be                the petroleum distillate and the alcohol/                The May 22, 1980 final rule generated
                                                      displayed as appropriate in addition to the             ethanol fuel blend, PHMSA should                      a number of appeals. On November 10,
                                                      identification number for the liquid                    instead require the use of alcohol-                   1980 [45 FR 74640], RSPA published a
                                                      petroleum distillate fuel having the lowest             resistant foam for both fuels in                      response to appeals to the May 22, 1980
                                                      flash point.                                            emergency response situations.                        final rule. In the response, RSPA noted
                                                         (5) For each of the different liquid                                                                       that the provisions for allowing cargo
                                                      petroleum distillate fuels, including gasoline
                                                                                                              Furthermore, ATA cited that emergency
                                                                                                              responders currently use alcohol-                     tanks and multi-compartment cargo
                                                      transported in a cargo tank, if the                                                                           tanks to only display the identification
                                                      identification number is displayed for the              resistant foam to treat both types of fuel
                                                                                                              in the event of an unintentional release,             number of the distillate fuel with lowest
                                                      liquid petroleum distillate fuel having the
                                                                                                              recognizing that the identification                   flash point were intended to eliminate
                                                      lowest flash point.
                                                                                                              number marking for fuel blends with                   the need for continuous changes in
                                                        CVSA indicated in its petition that the                                                                     identification numbers for operations
                                                      current regulations, as revised by the                  greater than 10 percent ethanol is not
                                                                                                                                                                    where gasoline and fuel oil are
                                                      HM–219 final rule, are inconsistent with                needed for emergency response
                                                                                                                                                                    transported in the same cargo tank for
                                                      the previous requirements. CVSA                         purposes.
                                                                                                                                                                    different trips that occur on the same
                                                      further noted that the table in § 172.336               IV. Background                                        day. However, in response to these
                                                      has created confusion and lack of                                                                             appeals, RSPA revised the HMR. To
                                                      uniformity for industry, enforcement,                   A. Rulemakings
                                                                                                                                                                    address compartmented cargo tanks,
                                                      and first responders in regard to the                     The rulemaking history pertaining to                RSPA moved regulatory text initially
                                                      display of identification numbers on                    the marking of cargo tanks containing                 found in § 172.336 from paragraph (c)(3)
                                                      multi-compartmented cargo tanks                         fuel oil and petroleum distillates, as                to (c)(4); and to address cargo tanks and
                                                      containing different petroleum distillate               applicable to P–1667, is complex. On                  tank cars, RSPA moved regulatory text
                                                      fuels.                                                  June 6, 1979, the Research and Special                initially found in § 172.336(c)(3) to
                                                        In P–1668, ATA proposed removing                      Programs Administration (RSPA),                       (c)(5). These two provisions allowed for
                                                      the requirement to display the                          PHMSA’s predecessor agency,                           the display of the identification number
                                                      identification number of the petroleum                  published a notice of proposed                        of the liquid distillate fuel having the
                                                      distillate with the lowest flashpoint, in               rulemaking (NPRM) (HM–126A)                           lowest flash point carried in a cargo
                                                      addition to the identification number for               associated with the use of identification             tank; however, as noted above, RSPA
                                                      the fuel blend as ‘‘3475’’ or ‘‘1987,’’ on              numbers on packages. See 44 FR 32972.                 intended for this exception to be
                                                      a multi-compartmented cargo tank                        In the NPRM, RSPA proposed to require                 allowed for different trips that occurred
                                                      carrying an alcohol fuel blend with                     that an identification number be                      on the same day.
                                                      more than 10 percent ethanol. ATA                       displayed on orange panels affixed to                    In an April 20, 1987 final rule (HM–
                                                      further noted that its comments to the                  portable tanks, cargo tanks, and tank                 166) [52 FR 13034], RSPA revised the
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                                                      HM–218D final rule [73 FR 4699] that                    cars. RSPA proposed a set of standards                HMR and added the term ‘‘Gasohol’’ to
                                                      was published on January 28, 2008,                      in § 172.328 that would require cargo                 § 172.336(c)(4) and (5). This term
                                                      suggested a uniform marking for all                     tanks to be marked on each side with                  accounted for new formulations of
                                                      gasoline and gasoline/alcohol fuel                      the identification numbers specified for              gasoline mixed with ethyl alcohol (i.e.,
                                                      blends, as well as an update to the                     the material in the Hazardous Materials               ethanol) shipped under § 172.336 of the
                                                      Emergency Response Guide (ERG)                          Table (HMT), which is found in                        HMR.
                                                      requiring alcohol-resistant foam for all                § 172.101. RSPA further proposed to                      In a January 28, 2008 final rule (HM–
                                                      releases. ATA noted that PHMSA                          add § 172.328(e) stating that a cargo tank            218D) [73 FR 4699], PHMSA revised the
                                                      disagreed with this statement at the time               marked with the identification number                 HMR and added ‘‘UN 3475, Ethanol and


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                                                                           Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Proposed Rules                                             83193

                                                      gasoline mixture or Ethanol and motor                    cargo tanks containing diesel fuel and                    2. If the answer to question 1 above
                                                      spirit or Ethanol and petrol mixture,                    gasoline. In this interpretation letter,               is yes, how is this being done without
                                                      with more than 10% ethanol’’ to the                      RSPA stated that if a cargo tank                       violating the prohibitive marking
                                                      HMT to address gasoline and ethanol                      containing gasoline is marked with the                 requirements in § 172.303 of the HMR?
                                                      mixtures such as E85.3 PHMSA further                     identification number for gasoline,
                                                                                                                                                                      B. Safety Questions
                                                      identified that emergency response                       ‘‘1203,’’ it may remain so marked on a
                                                      techniques between petroleum                             subsequent trip when the cargo tank                      1. Would marking a cargo tank with
                                                      distillates and gasoline and ethanol fuel                contains diesel fuel; however, the letter              the identification number for the liquid
                                                      blends differ. Specifically, gasoline and                did not further clarify that this                      petroleum distillate fuel having the
                                                      ethanol fuel blends with more than 10                    exception only applies to transportation               lowest flash point, rather than with the
                                                      percent ethanol are polar/water-miscible                 occurring on the same day. Thus, it                    identification numbers representing
                                                      flammable liquids and decrease the                       appears that industry uses this                        each of the different liquid petroleum
                                                      effectiveness of alcohol-resistant fire-                 interpretation letter as standard practice             distillate fuels including gasoline and
                                                      fighting foam. Due to these differences                  to leave the ‘‘1203’’ identification                   gasohol, create concerns for emergency
                                                      in fire-fighting methods, PHMSA                          number marking for gasoline on cargo                   responders?
                                                      revised the HMR and adopted language                     tanks even if the cargo tank is not used                 2. Does responding to an incident
                                                      in § 172.336(c)(4) and (5) to clarify that               for gasoline on any particular day or on               involving diesel fuel differ from
                                                      when a petroleum distillate fuel and a                   a subsequent trip.                                     responding to an incident involving
                                                      gasoline/ethanol fuel blend with more                       On June 26, 2015, PHMSA issued an                   gasoline—if so, how?
                                                      than 10 percent ethanol are both carried                 interpretation letter (Ref. No. 14–0178 6)
                                                                                                               to the South Carolina State Police                     C. Policy Analysis Questions
                                                      on a multi-compartment cargo tank or
                                                      tank car, the UN identification number                   concerning the placement of                               1. How many entities and shipments
                                                      ‘‘3475’’ or ‘‘1987’’ must be displayed in                identification numbers on multi-                       would be affected by modifying the
                                                      addition to the identification number of                 compartmented cargo tanks containing                   existing regulatory requirements related
                                                      the petroleum distillate fuel with the                   petroleum distillates. In the example                  to the hazard communication standards
                                                      lowest flash point. PHMSA notes that                     provided in the interpretation letter, all             for cargo tanks transporting petroleum
                                                      both NTTC and the Petroleum Marketers                    of the compartments in the multi-                      distillate fuels? In addition, how many
                                                      and Convenience Stores of Iowa (PMCI)                    compartmented cargo tank were loaded                   of the effected entities would be
                                                      suggested in their comments to the HM–                   with only diesel fuel, but displayed                   considered small businesses?
                                                      218D NPRM that revising the                              ‘‘1203,’’ the identification number for                   2. What are the potential costs of
                                                      Emergency Response Guidebook (ERG)                       gasoline. PHMSA’s response determined                  modifying the existing regulatory
                                                      to require alcohol-resistant foam for all                that if a multi-compartmented cargo                    requirements related to hazardous
                                                      flammable liquids (Class 3), rather than                 tank contains the same petroleum                       materials communication on cargo tanks
                                                      adopting a new shipping description for                  distillate fuel (other than gasoline) in               pursuant to the petitioners’ suggestions?
                                                      gasoline and ethanol fuel blends, would                  each compartment, then it must be                      If no specific quantitative data is
                                                      have made the requirement to display                     marked with the correct identification                 available, what types of costs would be
                                                      the identification number for the                        number for that material—not with                      reasonable to anticipate (e.g., training
                                                      alcohol fuel blend unnecessary.                          ‘‘1203.’’                                              cost, equipment replacement, etc.)?
                                                         In a March 7, 2013 final rule (HM–                    V. Comments and Questions                                 3. What consequences would be
                                                      219) [78 FR 14702], based on a petition                                                                         mitigated or prevented by modifying the
                                                      for rulemaking (P–1522) from Shell                          The PIPES Act specifically requires                 hazard communication requirements for
                                                      Chemicals,4 PHMSA removed all                            PHMSA to issue an ANPRM to solicit                     cargo tanks transporting petroleum
                                                      references to ‘‘gasohol’’ and codified a                 public comment on P–1667. In addition,                 distillate fuels? Have there been
                                                      table to more clearly indicate hazard                    PHMSA is considering the regulatory                    instances in the U.S. safety record when
                                                      communication requirements for                           changes proposed in P–1668. We invite                  the current requirements and industry
                                                      compartmented cargo tanks, tank cars,                    comment on the following key issues                    practices related to the identification
                                                      or cargo tanks containing these fuels.                   and request that commenters provide                    number markings have resulted in
                                                      The revised text indicates that when a                   data sources to support their positions.               emergency response complications,
                                                      cargo tank contains more than one                        If commenters suggest modification to                  injury, or death?
                                                      petroleum distillate fuel, it may be                     the existing regulatory requirements,                     4. What are the potential quantifiable
                                                      marked with the identification number                    PHMSA requests that comments                           safety and societal benefits of modifying
                                                      for the liquid petroleum distillate fuel                 provided be as specific as possible.                   the existing regulatory requirements
                                                      having the lowest flash point.                           A. General Questions                                   related to hazardous materials
                                                                                                                                                                      communication for cargo tanks?
                                                      B. Letters of Interpretation                               1. Are carriers currently marking
                                                                                                                                                                         5. What are the potential
                                                        On October 16, 2000, RSPA issued an                    cargo tanks with the identification
                                                                                                                                                                      environmental impacts and human
                                                      interpretation letter (Ref. No. 00–0208 5)               number of a petroleum distillate fuel,
                                                                                                                                                                      health effects of modifying the existing
                                                      to the Florida Department of                             including gasoline and gasohol, when
                                                                                                                                                                      regulatory requirements?
                                                      Environmental Protection concerning                      that material is not present in that cargo
                                                                                                               tank? If so, why are carriers undertaking              VI. Regulatory Analysis
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                                                      the identification number markings on
                                                                                                               this practice? When and where does this
                                                                                                                                                                      A. Executive Order 12866, Executive
                                                        3 E85 is an abbreviation for an ethanol fuel blend     practice occur? How prevalent is this
                                                                                                                                                                      Order 13563, and DOT Regulatory
                                                      of 85% denatured ethanol fuel and 15% gasoline or        practice?
                                                      other hydrocarbon by volume.
                                                                                                                                                                      Policies and Procedures
                                                        4 See P–1522 docket at the following URL: https://       6 See Reference Number 14–0178 letter of                This ANPRM has not been designated
                                                      www.regulations.gov/                                     interpretation at: http://phmsa.dot.gov/portal/site/   a ‘‘significant regulatory action’’ under
                                                      searchResults?rpp=10&po=0&s=PHMSA-2008-0171.             PHMSA/menuitem.6f23687cf7b0
                                                        5 See Reference Number 00–0208 letter of               0b0f22e4c6962d9c8789/?vgnextoid=
                                                                                                                                                                      section 3(f) of Executive Order 12866,
                                                      interpretation at: http://docketsinfo.dot.gov/reports/   2bd1d740bd03e410VgnVCM1000                             ‘‘Regulatory Planning and Review.’’ 58
                                                      rspa/2000-10/000208.pdf.                                 00d2c97898RCRD&vgnextfmt=default.                      FR 51735 (Oct. 4, 1993). Accordingly,


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                                                      83194                Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Proposed Rules

                                                      this ANPRM has not been reviewed by                     consider whether a rulemaking would                   action and alternatives, and (4) the
                                                      the Office of Management and Budget                     have a ‘‘significant economic impact on               agencies and persons consulted during
                                                      (OMB) and is not considered to be a                     a substantial number of small entities.’’             the consideration process. See 40 CFR
                                                      significant regulatory action under the                 Small entities include small businesses,              1508.9(b). PHMSA welcomes any data
                                                      DOT Regulatory Policies and Procedures                  not-for-profit organizations that are                 or information related to environmental
                                                      of February 26, 1979. See 44 FR 11034.                  independently owned and operated and                  impacts that may result from this
                                                         Executive Order 13563, ‘‘Improving                   are not dominant in their fields, and                 ANPRM.
                                                      Regulation and Regulatory Review,’’ 76                  governmental jurisdictions with
                                                                                                                                                                    G. Privacy Act
                                                      FR 3821 (Jan. 21, 2011), supplements                    populations under 50,000.
                                                      and reaffirms the principles, structures,                  As such, PHMSA solicits input from                   Anyone is able to search the
                                                      and definitions governing regulatory                    small entities on the issues presented in             electronic form of any written
                                                      review that were established in                         this ANPRM. If you believe that                       communications and comments
                                                      Executive Order 12866. Together,                        revisions to the HMR relative to                      received into any of our dockets by the
                                                      Executive Orders 12866 and 13563                        identification numbers on cargo tanks                 name of the individual submitting the
                                                      require agencies to regulate in the ‘‘most              would have a significant economic                     document (or signing the document, if
                                                      cost-effective manner,’’ to make a                      impact on a substantial number of small               submitted on behalf of an association,
                                                      ‘‘reasoned determination that the                       entities, please submit a comment to                  business, labor union, etc.). You may
                                                      benefits of the intended regulation                     PHMSA. In your comment, please                        review DOT’s complete Privacy Act
                                                      justify its costs,’’ and to develop                     explain how and to what extent your                   Statement in the Federal Register at 65
                                                      regulations that ‘‘impose the least                     business or organization could be                     FR 19477 (April 11, 2000), or you may
                                                      burden on society.’’                                    affected, and whether there are                       visit http://www.dot.gov/privacy.html.
                                                         Additionally, Executive Orders 12866                 alternative approaches to this regulation             H. Executive Order 13609 and
                                                      and 13563 require agencies to provide a                 the agency should consider that would                 International Trade Analysis
                                                      meaningful opportunity for public                       minimize any significant impact on
                                                      participation. Therefore, PHMSA                         small business while still meeting the                   Under Executive Order 13609,
                                                      solicits comment on the key issues                      agency’s statutory objectives                         ‘‘Promoting International Regulatory
                                                      addressed in this ANPRM.                                   Any future proposed rule would be                  Cooperation,’’ 77 FR 26413 (May 4,
                                                                                                              developed in accordance with Executive                2012), agencies must consider whether
                                                      B. Executive Order 13132                                Order 13272, ‘‘Proper Consideration of                the impacts associated with significant
                                                         Executive Order 13132, ‘‘Federalism,’’               Small Entities in Agency Rulemaking,’’                variations between domestic and
                                                      64 FR 43255 (Aug. 10, 1999), requires                   67 FR 53461 (Aug. 16, 2002), as well as               international regulatory approaches are
                                                      agencies to assure meaningful and                       DOT’s procedures and policies, so as to               unnecessary, or may impair the ability
                                                      timely input by State and local officials               promote compliance with the                           of American business to export and
                                                      in the development of regulatory                        Regulatory Flexibility Act to ensure that             compete internationally. In meeting
                                                      policies that may have ‘‘substantial                    potential impacts on small entities of a              shared challenges involving health,
                                                      direct effects on the States, on the                    regulatory action are properly                        safety, labor, security, environmental,
                                                      relationship between the national                       considered.                                           and other issues, international
                                                      government and the States, or on the                                                                          regulatory cooperation can identify
                                                                                                              E. Paperwork Reduction Act                            approaches that are at least as protective
                                                      distribution of power and
                                                      responsibilities among the various                         Section 1320.8(d), title 5, Code of                as those that are, or would be, adopted
                                                      levels of government.’’ We invite State                 Federal Regulations requires that                     in the absence of such cooperation.
                                                      and local governments with an interest                  PHMSA provide interested members of                   International regulatory cooperation can
                                                      in this rulemaking to comment on any                    the public and affected agencies an                   also reduce, eliminate, or prevent
                                                      effect that revisions to the HMR relative               opportunity to comment on information                 unnecessary differences in regulatory
                                                      to identification numbers displayed on                  collection and recordkeeping requests. It             requirements.
                                                      cargo tanks may cause.                                  is possible that new or revised                          Similarly, the Trade Agreements Act
                                                                                                              information collection requirements                   of 1979, Public Law 96–39, as amended
                                                      C. Executive Order 13175                                could occur as a result of any future                 by the Uruguay Round Agreements Act,
                                                         Executive Order 13175, ‘‘Consultation                rulemaking action. We invite comment                  Public Law 103–465, prohibits Federal
                                                      and Coordination and Indian Tribal                      on the need for any collection of                     agencies from establishing any
                                                      Governments,’’ 65 FR 67249 (Nov. 9,                     information and paperwork burdens                     standards or engaging in related
                                                      2000), requires agencies to assure                      that may apply as result of a future                  activities that create unnecessary
                                                      meaningful and timely input from                        rulemaking.                                           obstacles to the foreign commerce of the
                                                      Indian tribal government representatives                                                                      United States. For purposes of these
                                                                                                              F. National Environmental Policy Act                  requirements, Federal agencies may
                                                      in the development of rules that
                                                      ‘‘significantly or uniquely affect’’ Indian               The National Environmental Policy                   participate in the establishment of
                                                      communities and impose ‘‘substantial                    Act of 1969, 42 U.S.C. 4321–4375,                     international standards, so long as the
                                                      and direct compliance costs’’ on such                   requires Federal agencies to consider                 standards have a legitimate domestic
                                                      communities. We invite Indian tribal                    the consequences of major Federal                     objective, such as providing for safety,
                                                      governments to provide comments on                      actions and prepare a detailed statement              and do not operate to exclude imports
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                                                      the costs and effects that this or a future             on actions significantly affecting the                that meet this objective. The statute also
                                                      rulemaking could potentially have on                    quality of the human environment. The                 requires consideration of international
                                                      them.                                                   Council on Environmental Quality                      standards and, where appropriate, that
                                                                                                              (CEQ) regulations require Federal                     they be the basis for U.S. standards.
                                                      D. Regulatory Flexibility Act, Executive                agencies to conduct an environmental                     PHMSA participates in the
                                                      Order 13272, and DOT Policies and                       review considering (1) the need for the               establishment of international standards
                                                      Procedures                                              proposed action, (2) alternatives to the              in order to protect the safety of the
                                                        The Regulatory Flexibility Act, 5                     proposed action, (3) probable                         American public, and we have assessed
                                                      U.S.C. 601 et seq., requires agencies to                environmental impacts of the proposed                 the effects of this ANPRM to ensure that


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                                                                           Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Proposed Rules                                                83195

                                                      it does not cause unnecessary obstacles                 commerce. The Secretary has delegated                 Service Center publishes the Unified
                                                      to foreign trade. Accordingly, this                     this authorization to the Administrator               Agenda in April and October of each
                                                      rulemaking is consistent with Executive                 for PHMSA. See 49 CFR 1.97. PHMSA                     year. The RIN contained in the heading
                                                      Order 13609 and PHMSA’s obligations                     is issuing this ANPRM to gather the                   of this document can be used to cross-
                                                      under the Trade Agreement Act, as                       necessary information to determine a                  reference this action with the Unified
                                                      amended.                                                course of action for clarifying issues                Agenda.
                                                                                                              pertaining to the display of
                                                      I. Statutory/Legal Authority for This                                                                           Issued in Washington, DC, on November
                                                                                                              identification numbers related to the                 15, 2016, under authority delegated in 49
                                                      Rulemaking
                                                                                                              transportation of fuel oils and petroleum             CFR 1.97.
                                                         Federal hazardous materials                          distillates.
                                                      transportation law, 49 U.S.C. 5101 et                                                                         William Schoonover,
                                                      seq., authorizes the Secretary of                       J. Regulation Identifier Number (RIN)                 Acting Associate Administrator for
                                                      Transportation to prescribe regulations                    A regulation identifier number (RIN)               Hazardous Materials Safety, Pipeline and
                                                      for the safe transportation, including                  is assigned to each regulatory action                 Hazardous Materials Safety Administration.
                                                      security, of hazardous materials in                     listed in the Unified Agenda of Federal               [FR Doc. 2016–27911 Filed 11–18–16; 8:45 am]
                                                      intrastate, interstate, and foreign                     Regulations. The Regulatory Information               BILLING CODE 4910–60–P
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Document Created: 2018-02-14 08:33:54
Document Modified: 2018-02-14 08:33:54
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionAdvance notice of proposed rulemaking (ANPRM).
DatesComments must be received by February 21, 2017.
ContactSteven Andrews, (202) 366-8553, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
FR Citation81 FR 83190 
RIN Number2137-AF25

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