How New Hazmat Regulations Get Made

We tend to think of regulations as being handed down from above. But new rules don't appear out of mid-air. Industry stakeholders and the American public have a role to play in the creation of new Federal regulations, including new or revised requirements for shipping hazardous materials. 

Using DOT's recent rule to allow rail transport of "Methane, refrigerated liquid" (i.e., liquefied natural gas or LNG), this blog tracks US DOT's hazmat rulemaking process from start to finish.

What is the Federal Register?

The Federal Register (federalregister.gov) is the daily journal of the US Government. It is published every day the government conducts business with the purpose of keeping the country’s citizens informed about what the government is doing.

It may contain meeting announcements and provide access to background documents and contact information for participants; other notices of interest for the public such as the availability of collected data compiled for the public’s viewing (e.g., information from all those reports you’ve submitted); executive orders; proclamations; Advanced Notices of Proposed Rulemakings (ANPRMs); Notices of Proposed Rulemakings (NPRMs); and Final Rules.

When & Why DOT Proposes New Hazmat Rules 

DOT regulates the transport of hazardous materials by all modes of transportation—highway, air, vessel, rail, and pipeline. There are many reasons why the agency may decide to create a new rule or revise an existing rule.

The most frequently cited reasons for new or revised hazmat rules include:

• To address an existing transportation safety risk (e.g., lithium batteries);   
• To achieve harmonization with existing international standards (e.g., HM 215-O); and/or 
• To respond to a petition for rulemaking submitted by industry stakeholders, environmental groups, or individual Americans.

The American public has the right to petition US DOT to issue, modify, or rescind hazardous materials regulations at any time. DOT’s rule to allow the transport of LNG by rail was initiated in response to a petition for rulemaking from the Association of American Railroads (AAR). 

Citing growing desire to ship LNG by rail and the similarity of LNG to hazardous materials already authorized for rail transport, the AAR’s petition requested that DOT review existing regulations and designate authorized packaging and conditions for shipping LNG by rail.
 

Publishing the Notice of Proposed Rulemaking (NPRM)

The public gets its first look at any new hazmat rule when DOT publishes a Notice of Proposed Rulemaking or NPRM to the Federal Register.

DOT issued the NPRM for its LNG-by-rail rulemaking on October 24, 2019.

Every NPRM contains information about how to participate in the rulemaking process by submitting a public comment. Anyone—a private citizen, a company representative, an industry advocate or watchdog, or an organization—may comment or present data that supports or opposes the proposal.

Typically, DOT will accept public comments for sixty days after a NPRM appears in the Federal Register.
The NPRM will contain the date on which the public comment period closes, as well as instructions for how and where to submit comments. If the deadline for comments is approaching and DOT feels more comments are needed to inform its next steps, the agency can extend the comment period. 

Your Comments Matter!    

Accepting public comments on rulemakings is not an empty exercise. DOT must consider the comments they receive to determine if their proposal should be amended, withdrawn, or sent on to the next step.

In the case of the LNG proposal, the DOT received nearly 3,000 public comments. The LNG industry advocated for the proposal. Though tanker rail cars were previously unauthorized for LNG transport in the US because the DOT had considered their use to be too dangerous, stakeholders cited a decades-long safety record for tanker vessels shipping exported US LNG overseas and for tanker trucks transporting LNG over the road domestically.

The Association of American Railroads (AAR) claims that 99.999% of all hazmat railcars reach their destinations without an incident that releases product.
 
However, because train cars carry much more LNG than tanker trucks and are transported together along railways, if an incident does occur, there may be significant consequences. For this reason, the National Transportation Safety Board (NTSB) warned that public safety would be at risk if the rule were to be finalized before conducting further safety studies.
 
In this case, there was also added pressure to adopt the rule. In April of 2019, President Donald J. Trump signed Executive Order 13868 (EO 13868), “Promoting Energy Infrastructure and Economic Growth,” which asked the DOT to allow rail transportation for LNG.
 

The Final Rule Lands

A Final Rule must be communicated to the public along with its effective date. US DOT published the LNG Final Rule to the Federal Register on July 24, 2020. The rule took effect on August 24, 2020.   

Final Rule announcements typically contain an overview of the new or revised regulations, background information, and any amendments made to the original NPRM. In the Final Rule, DOT also responds to public comments it received, and details how those comments impacted its decisions.

At the beginning of each new Final Rule announcement, you will see which part(s) of the 49 CFR Hazardous Materials Regulations the new or revised rule will impact. The LNG Final Rule, for example, affects regulations found in 49 CFR Parts 172, 173, 174, 179, and 180.

Those changes should be reflected in the text of the HMR by the effective date.

When a new or amended hazmat regulation affects your operations, taking time to read the Final Rule announcement can give you insight into the rule’s purpose and any new requirements you should know.

Now that you know how the process works, you will be better prepared to track, participate in, and comply with the next new hazmat rule that impacts your materials or your staff.

Keep Your Hazmat Training Up to Date!

Be confident that the hazmat training you and your employees complete covers the latest requirements you must know to keep shipments in compliance. Effective training is key to preventing rejected shipments, incidents in transit, and costly civil penalties.

Lion offers online hazmat training designed by experienced trainers and subject matter experts for all modes of transportation—highway & rail (49 CFR), air (IATA DGR), and vessel (IMDG Code).

Hazmat Ground Shipper Certification
Recurrent Hazmat Ground Shipper Certification
Hazmat Ground Shipper—Additional Rail Requirements  
Hazmat Air Shipper Certification (IATA) 
Hazmat Vessel Shipper Certification (IMDG) 
 

Tags: by, Final, hazardous, hazmat, LNG, materials, Rail, rules