On December 9, 2022, the U.S. Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) published a notice responding to comments received on its initiative to convert historical letters of interpretation (LOI) applicable to the Hazardous Materials Regulations (HMR) that have been issued to specific stakeholders into broadly applicable frequently asked questions (FAQ). 87 Fed. Reg. 75694. PHMSA also issued the first set of FAQs in final and announced the topic for further FAQs.

As reported in our March 24, 2022, memorandum, the initiative to convert historical LOIs into broadly applicable FAQs is intended to facilitate better public understanding and awareness of the HMR. In its March 22, 2022, notice announcing the initiative, PHMSA also requested comment on the initiative and solicited input on the prioritization of future sets of FAQs. PHMSA notes that FAQs are not substantive rules and do not create legally enforceable rights, assign duties, or impose new obligations not otherwise contained in the existing regulations and standards. Instead, PHMSA intends the FAQs as an aid to demonstrate compliance with the relevant regulations.

PHMSA received ten sets of comments. According to PHMSA, the comments received express general support for the FAQ initiative, and several commenters included suggestions for future topic areas. Commenters also suggested strategies for selecting topics and specific FAQs. PHMSA states that in addition, many of the commenters expressed concern that PHMSA may eliminate the LOI process and rescind the existing LOIs. As a result, PHMSA held a public webinar on June 27, 2022, to clarify the initiative’s intent and address commenters’ questions and concerns. A summary of the webinar is available in our August 12, 2022, memorandum.

The notice includes the final FAQs regarding the applicability of HMR to persons and functions. PHMSA states that it has begun compiling its next set of FAQs, which will pertain to LOIs addressing questions regarding the incident reporting requirements specified in 49 C.F.R. Sections 171.15 and 171.16. In addition, PHMSA will continue concurrent work on future FAQ notices and, in response to the comments received, subsequent topics may include FAQs pertaining to batteries, classification, hazard communication, hazardous substances, hazardous wastes, modal-specific requirements, or packaging.

Commentary

As noted in PHMSA’s response to comments, this FAQ process is meant to complement the nearly 7,000 LOIs in its database. The first 12 questions in the notice for this FAQ are very generic, but they perhaps represent the questions that PHMSA receives most often. This initiative offers stakeholders a streamlined searchable mechanism for navigating the existing LOIs. This initiative will take years to complete, but it is viewed as a positive for those who are unaware of the existing LOIs or for those who attempt to navigate the current library of LOIs to address specific questions. It also offers PHMSA, as indicated, a mechanism to avoid the need to respond to frequent and recurring questions.