# Hazardous Materials: Eliminating Unnecessary Regulatory Burdens on Fuel Transportation

- **operation:** document
- **citation:** 91 FR 1433
- **title:** Hazardous Materials: Eliminating Unnecessary Regulatory Burdens on Fuel Transportation
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2026-01-14
- **effective on:** 2026-02-13
- **summary:** PHMSA is adopting several amendments to the Hazardous Materials Regulations to reduce unnecessary regulatory burdens associated with the safe transportation of hazardous materials, including energy products. These amendments will reduce costs for hazardous materials transporters and eliminate unnecessary regulatory burdens on fuel transportation while maintaining or increasing the level of safety provided in the Hazardous Materials Regulations.
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Federal Register, Volume 91 Issue 9 (Wednesday, January 14, 2026) [Federal Register Volume 91, Number 9 (Wednesday, January 14, 2026)] [Rules and Regulations] [Pages 1433-1447] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2026-00578] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 107, 171, 172, 173, 178, and 180 [Docket No. PHMSA-2018-0080 (HM-265)] RIN 2137-AF41 Hazardous Materials: Eliminating Unnecessary Regulatory Burdens on Fuel Transportation AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: PHMSA is adopting several amendments to the Hazardous Materials Regulations to reduce unnecessary regulatory burdens associated with the safe transportation of hazardous materials, including energy products. These amendments will reduce costs for hazardous materials transporters and eliminate unnecessary regulatory burdens on fuel transportation while maintaining or increasing the level of safety provided in the Hazardous Materials Regulations. DATES: Effective Date: This rule is effective February 13, 2026. Voluntary Compliance Date: January 14, 2026. Incorporation by Reference Date: The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register on February 13, 2026. FOR FURTHER INFORMATION CONTACT: Alexander Wolcott, Standards and Rulemaking Division, 202-366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: I. Executive Summary II. Incorporation by Reference Discussion Under 1 CFR Part 51 III. Identification Number Markings for Petroleum Distillate Fuels A. Background B. Action Taken in This Final Rule C. Response to NPRM Comments IV. Response to NPRM Comments on Other Final Rule Provisions A. Electronic Submission of Cargo Tank Registration B. The Chlorine Institute Publication C. Exception From Security Awareness Training D. Reflective Design of Uninsulated Cargo Tanks E. Use of Video Cameras for Cargo Tank Inspections and Tests V. Section-by-Section Review of Amendments A. Section 107.502 B. Section 171.7 C. Section 172.303 D. Section 172.336 E. Section 172.704 F. Section 173.315 G. Section 178.337-1 H. Section 180.407 VI. Regulatory Analysis A. Statutory/Legal Authority B. Executive Order 12866 and Regulatory Planning and Review C. Executive Orders 14192 and 14219 D. Executive Order 13132 E. Executive Order 13175 F. Regulatory Flexibility Act and Executive Order 13272 G. Paperwork Reduction Act H. Unfunded Mandates Reform Act of 1995 I. National Environmental Policy Act: Environmental Assessment J. Privacy Act K. Executive Order 13609 and International Trade Analysis L. National Technology Transfer and Advancement Act M. Energy-Related Executive Orders 13211, 14154, and 14156 N. Cybersecurity and Executive Order 14028 O. Severability I. Executive Summary PHMSA is adopting several amendments proposed in the HM-265 notice of proposed rulemaking (NPRM) titled Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel Transportation.\1\ These amendments will reduce costs and eliminate unnecessary regulatory burdens on the transportation of hazardous materials, including energy products, while maintaining the current level of safety provided by the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). The amendments adopted in this final rule are: --------------------------------------------------------------------------- \1\ 89 FR 85590 (Oct. 28, 2024). --------------------------------------------------------------------------- In part 107, subpart F, revise the cargo tank facility registration requirements to allow for electronic submission procedures. In section 171.7, replace the current incorporation by reference of Chlorine Institute (CI) drawings in paragraphs (l)(3) and (l)(4) with the entire CI Pamphlet 49, Recommended Practices for Handling Chlorine Bulk Highway Transports, which provides guidelines for the safe transportation of chlorine by highway. The updated incorporation by reference includes the use of the Midland Type pressure relief device (PRD) for cargo tanks transporting chlorine as referenced in updated section 173.315. In section 172.336, revise the marking requirements for multiple petroleum distillate fuels to allow the marking of the identification number of the fuel with the lowest flash point transported in the same or previous business day. In section 172.704, include hazmat employees who only manufacture packagings within the scope of the existing exception from safety training. Further, remove the security awareness training requirement for any hazmat employees who only perform hazmat activities related to packagings (e.g., employees who manufacture, repair, modify, recondition, or test packagings, [[Page 1434]] and do not offer for transportation or transport hazardous materials in commerce). In section 178.337-1(d), allow the use of external coverings other than paint that meet reflectivity requirements for Cargo Tank Motor Vehicles (CTMVs). In section 180.407(a)(7), allow the use of video cameras or video optics equipment for cargo tank inspections or tests. PHMSA included several other proposals in the NPRM that are not being advanced in this final rule. The proposals included, among other things, amendments to the HMR to address 2017 Rail Safety Advisory Committee (RSAC) consensus recommendations; the Association of American Railroads' (AAR) delegated authority to approve tank car designs and tank car facility quality assurance programs; revisions to the construction and qualification of highway CTMVs; revisions to improve the safe transport of hazardous materials by vessel; and other multi- modal provisions. PHMSA is continuing to evaluate the merits of these proposals and may publish another final rule at a later date.\2\ --------------------------------------------------------------------------- \2\ In response to the NPRM, PHMSA received 37 sets of comments--of which only nine are relevant to the issues included in this final rule. Only those nine comments relevant to the topics addressed in this final rule will be discussed in this final rule. --------------------------------------------------------------------------- The amendments adopted in this final rule provide substantial cost savings by reducing unnecessary burdens on the transportation of petroleum distillate fuels, such as gasoline and diesel fuel, by motor carriers. This final rule also provides cost savings to the hazardous materials packaging industry by removing an unnecessary training requirement and adopting measures allowing the use of technologies that introduce efficiencies for cargo tank tests and inspections. Together, the amendments adopted in this final rule provide a quantified cost savings of approximately $145.3 million per year, while also providing qualitative benefits to energy transportation through greater regulatory flexibility for cargo tank owners and cargo tank facility operators. II. Incorporation by Reference Discussion Under 1 CFR Part 51 PHMSA currently incorporates by reference into the HMR all or parts of numerous standards and specifications developed and published by standards development organizations (SDO). In general, SDOs accredited as voluntary consensus standards bodies develop, establish, or coordinate technical standards using agreed-upon procedures and update and revise their published standards every two to five years to reflect modern technology and best technical practices. The National Technology Transfer and Advancement Act of 1995 (NTTAA; Pub. L. 104-113) directs Federal agencies to use standards developed by voluntary consensus standards bodies in lieu of government-written standards whenever possible. The Office of Management and Budget (OMB) issued Circular A- 119, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,\3\ to implement section 12(d) of the NTTAA relative to the utilization of consensus technical standards by Federal agencies. This circular provides guidance for agencies participating in voluntary consensus standards bodies and describes procedures for satisfying the reporting requirements in the NTTAA. --------------------------------------------------------------------------- \3\ 81 FR 4673 (Jan. 27, 2016). --------------------------------------------------------------------------- PHMSA is responsible for determining which standards currently referenced in the HMR should be updated, revised, or removed, and which standards should be added to the HMR, under the NTTAA and OMB Circular A-119. Revisions to materials incorporated by reference in the HMR are handled via the rulemaking process, which allows for the public and regulated entities to provide input. During the rulemaking process, PHMSA must also obtain approval from the Office of the Federal Register to incorporate by reference any new materials. The Office of the Federal Register issued a rulemaking \4\ that revised 1 CFR 51.5 to require that an agency detail in the preamble of a rulemaking the ways the materials it proposes to incorporate by reference are reasonably available to interested parties, or how the agency worked to make those materials reasonably available to interested parties. Changes to the material incorporated by reference in the HMR are detailed in the section 171.7 discussion in ``Section V. Section-by-Section Review of Amendments.'' --------------------------------------------------------------------------- \4\ See ``Incorporation by Reference,'' 79 FR 66267, 66278 (Nov. 7, 2014). --------------------------------------------------------------------------- In this final rule, PHMSA incorporates by reference the CI Pamphlet 49 in its entirety, rather than incorporating individual valve design drawings from the document as was done in the past. This authorizes an additional pressure relief valve design for cargo tanks in chlorine service. PHMSA has reviewed Pamphlet 49, including the valve design drawing mentioned, and found this new valve meets PHMSA's safety standards, and that incorporating this document by reference into the HMR will not reduce safety but instead will allow more flexibility for CTMV owners and operators. The Chlorine institute sells their standards one their website. The edition of the Pamphlet 49 incorporated by reference in this final rule can be obtained by contacting the Chlorine Institute bookstore by phone at (703) 894-4140, by email at [email protected] , or at their contact page at https://www.chlorineinstitute.org/contact-us . III. Identification Number Markings for Petroleum Distillate Fuels A. Background The HMR require bulk packages containing hazardous materials to be marked with the identification number assigned to the hazardous material contained in the package--see section 172.302. This requirement is often met by displaying the required identification number inside the hazard class placard that is also displayed on the bulk package--see section 172.332(c) and (d). The requirement to mark the identification number on a cargo tank may also be met by using an orange panel or white square-on-point--see sections 172.328, 172.332(b), and 172.336(b), respectively. The Hazardous Materials Table (HMT) in section 172.101 contains hundreds of identification numbers for flammable liquids. Flammable liquids, also known as Class 3 materials, are defined as liquids that have a flash point less than or equal to 60 [deg]C (140 [deg]F)--see section 173.120(a). Flash point means the minimum temperature at which a liquid gives off vapor within a test vessel in sufficient concentration to form an ignitable mixture with air near the surface of the liquid--see section 173.120(c). Generally, liquids with a lower flash point present a greater relative hazard than those with higher flash points because they can ignite at lower temperatures. Many of the fuels Americans rely on to power their cars, trucks, and boats, and to heat their homes are flammable liquids derived from the distillation of crude oil.\5\ These fuels, which include gasoline (UN1203), kerosene (UN1223), diesel fuel (NA1993/UN1202), and fuel oil (NA1993), are commonly referred to [[Page 1435]] as ``petroleum distillate fuels.'' Gasoline has a flash point of -45 [deg]C (-49 [deg]F) \6\ compared to 52 [deg]C (126 [deg]F) for diesel fuel,\7\ 37.8 [deg]C (100 [deg]F) for kerosene, and 38 [deg]C (100.4 [deg]F) \8\ to 58 [deg]C (136 [deg]F) \9\ for fuel oil. It is not uncommon for a CTMV in fuel delivery service to deliver multiple types of fuel requiring different identification numbers in a single day's operation--for instance, delivering gasoline on one trip, and diesel fuel on the next. --------------------------------------------------------------------------- \5\ The distillation process separates crude oil into its component hydrocarbons. During distillation, crude oil is heated, with different refined products recovered as the boil temperature is gradually increased. See U.S. Energy Information Administration, Crude Oil Distillation and the Definition of Refinery Capacity (July 5, 2012), available at: https://www.eia.gov/todayinenergy/detail.php?id=6970# . \6\ The National Institute for Occupational Safety and Health (NIOSH) (Oct. 30, 2019), available at: https://www.cdc.gov/niosh/npg/npgd0299.html . \7\ Occupational Safety and Health Administration (OSHA), Chemical Data (Dec. 28, 2020), available at: https://www.osha.gov/chemicaldata/909 . \8\ U.S. Energy Information Administration, available at: https://www.eia.gov/tools/glossary/index.php?id=Kerosene . \9\ National Library of Medicine, available at: https://www.ncbi.nlm.nih.gov/books/NBK594686/table/ch3.tab3/ . --------------------------------------------------------------------------- PHMSA's Emergency Response Guidebook (ERG) provides the same initial emergency response instructions for all petroleum distillate fuels-see Guide 128.\10\ Because the initial emergency response instructions are the same, PHMSA proposed allowing cargo tanks to display the identification number of the petroleum distillate fuel with the lowest flash point transported in the cargo tank in the HM-265 NPRM. As discussed in more detail below, this proposal is aligned with regulatory history and the original intent of the provisions when they were first added to the HMR. --------------------------------------------------------------------------- \10\ PHMSA, Emergency Response Guidebook (2024), available at: https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2024-04/ERG2024-Eng-Web-a.pdf . --------------------------------------------------------------------------- 1. HM-118 In the HM-118 final rule \11\ titled Identification Numbers, Hazardous Wastes, Hazardous Substances, International Descriptions, Improved Descriptions, Forbidden Materials, and Organic Peroxides, the Research and Special Programs Administration (RSPA)--PHMSA's predecessor agency--amended the requirements in section 172.336 to allow the identification number of the lowest flash point fuel transported in a cargo tank to be displayed during shipment. RSPA adopted this amendment in section 172.336(c)(5) ``to eliminate the need for continuous changes in identification numbers in many operations where gasoline and fuel oil are transported in the same cargo tank on different trips during the same day.'' \12\ This amendment remained in place for more than 30 years until PHMSA inadvertently eliminated the provision in a subsequent final rule. --------------------------------------------------------------------------- \11\ 45 FR 74640 (Nov. 10, 1980). \12\ 45 FR 74640, 74647 (Nov. 10, 1980). --------------------------------------------------------------------------- 2. HM-219 In 2013, PHMSA published another final rule titled Hazardous Materials: Miscellaneous Petitions for Rulemaking (RRR) (HM-219).\13\ In HM-219, PHMSA replaced sections 172.336(c)(1)-(6) with a table to ``more clearly indicate hazard communication requirements.'' \14\ In the new table, PHMSA added paragraphs (c)(1)-(3) and (c)(6) as individual entries but consolidated the language in paragraphs (c)(4) and (5) into a single entry. PHMSA did not intend to change the original intent of paragraphs (c)(4) and (5) in consolidating these provisions, but the language used in the new table had that effect. --------------------------------------------------------------------------- \13\ 78 FR 14702 (Mar. 7, 2013). \14\ 78 FR 14702, 14707 (Mar. 7, 2013). --------------------------------------------------------------------------- 3. 2016 PIPES Act In 2016, Congress passed a statute addressing the identification number marking requirements for petroleum distillate fuels. Specifically, in the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (2016 PIPES Act),\15\ Congress included a mandate stating that, ``[n]ot later than 90 days after the date of enactment of this Act, the Secretary of Transportation shall issue an [ANPRM] 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).'' The rulemaking petition referenced in the mandate (P-1667 \16\)--and an additional petition (P-1668 \17\)--had been filed after PHMSA inadvertently altered the identification number marking requirements for petroleum distillate fuels in HM-219. --------------------------------------------------------------------------- \15\ 49 U.S.C. 60101. \16\ See petition for rulemaking P-1667, available at: https://www.regulations.gov/document/PHMSA-2015-0219-0001 . \17\ See petition for rulemaking P-1668, available at: https://www.regulations.gov/document/PHMSA-2015-0251-0001 . --------------------------------------------------------------------------- 4. HM-213E Shortly after the passage of the 2016 PIPES Act, PHMSA published the advance notice of proposed rulemaking (ANPRM) titled Hazardous Materials: PIPES Act Requirements for Identification Numbers on Cargo Tanks Containing Petroleum Based Fuel (HM -213E).\18\ The central issue addressed in the HM-213E ANPRM was whether a CTMV transporting different types of petroleum distillate fuels (e.g., gasoline, diesel fuel, kerosene, and fuel oil) over the course of multiple trips should be permitted to display the identification number of the fuel with the lowest flash point previously transported, even when that fuel is not currently contained in the cargo tank (e.g., display ``1203''--the identification number for gasoline--when the cargo tank contains only diesel fuel on that trip).\19\ --------------------------------------------------------------------------- \18\ 81 FR 83190 (Nov. 21, 2016). \19\ The HM-265 NPRM includes a discussion of comments received in response to the HM-213E ANPRM because certain portions of the HM- 213E rulemaking were incorporated into this HM-265 rulemaking. --------------------------------------------------------------------------- PHMSA received 14 sets of comments to the HM-213E ANPRM, split between those supporting the provisions allowing the display of the identification number of the fuel with the lowest flash point previously transported, and those opposed. PHMSA received no specific information describing actual instances in which the marking exception led to increased risks in transportation.\20\ --------------------------------------------------------------------------- \20\ Please see the HM-265 NPRM's discussion of the HM-213E ANPRM comments for details on the commenters, comments, and PHMSA's responses. 89 FR at 85599. --------------------------------------------------------------------------- 5. DOT-SP 21104 After publishing the HM-213E ANPRM, PHMSA issued Department of Transportation (DOT) Special Permit (SP) 21104 \21\ on November 11, 2020. DOT-SP 21104, as further modified on February 26, 2021, allows for the transportation of gasoline, diesel fuel, kerosene, and fuel oil in a CTMV marked with the identification number ``1203'' provided gasoline, which has the lowest flash point of the fuels listed, had been transported in the cargo tank during the previous or current business day. DOT-SP 21104 has been in place for almost five years, and PHMSA is not aware of any safety issues associated with its use. --------------------------------------------------------------------------- \21\ See DOT-SP 21104, available at: https://www.phmsa.dot.gov/hazmat/documents/offer/SP21104.pdf/2021014464/SP21104 . --------------------------------------------------------------------------- 6. HM-265 Consistent with the rulemaking history and requirements in DOT-SP 21104, PHMSA proposed to reinstate the original exception to the identification number marking requirements for petroleum distillate fuels in HM-265. PHMSA estimated that this amendment would generate cost savings of $145.3 million per year in 2024 dollars, primarily in time savings for petroleum distillate fuel carriers who would no longer be required to change the identification number displayed on their vehicle as frequently. Note that gasoline and ethanol blends that contain more than 10 percent ethanol have different physical properties and may require the [[Page 1436]] application of different types of fire suppression foam. Therefore, these fuels, including ``UN3475, Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture, with more than 10% ethanol, 3, PGII'' and ``UN1987, Alcohols, n.o.s., 3, PG I, II or III'' are not included in this marking provision. The ID numbers ``UN3475'' and ``UN1987'' must be displayed if those products are contained in the packaging and may not be displayed if the products are not contained in the packaging. B. Action Taken in This Final Rule PHMSA is adopting the amendments as proposed. C. Response to NPRM Comments PHMSA received nine sets of comments addressing the proposal to authorize cargo tanks and tank cars to display the identification number of the petroleum distillate fuel with the lowest flash point transported on that day or the previous business day. The following table identifies each of these commenters and the unique docket identifier for their comment. ------------------------------------------------------------------------ Commenter Comment identifier ------------------------------------------------------------------------ International Association of Fire Fighters PHMSA-2018-0080-0008 (IAFF). Kansas Highway Patrol (KHP).................. PHMSA-2018-0080-0010 Commercial Vehicle Safety Alliance (CVSA).... PHMSA-2018-0080-0019 Dangerous Goods Advisory Council (DGAC)...... PHMSA-2018-0080-0023 United States Representative Pete Stauber.... PHMSA-2018-0080-0024 The Dow Chemical Company..................... PHMSA-2018-0080-0026 The Passenger Vessel Association (PVA)....... PHMSA-2018-0080-0031 Energy Marketers of America (EMA)............ PHMSA-2018-0080-0033 International Association of Fire Chiefs PHMSA-2018-0080-0041 (IAFC). ------------------------------------------------------------------------ PHMSA received supportive comments from United States Representative Pete Stauber, EMA, Dow Chemical Company, and DGAC. PHMSA received opposing comments from the IAFF, IAFC, CVSA, PVA, and KHP. Both sets of comments are summarized and addressed below. 1. Supportive Stakeholder Comments for This Provision PHMSA received supportive comments from Representative Pete Stauber, EMA, Dow Chemical Company, and DGAC. Dow Chemical Company and DGAC expressed general support for proposed markings for petroleum distillate fuels changes, while Rep. Pete Stauber and EMA provided more detailed comments. Specifically, Rep. Pete Stauber accurately noted that the proposed amendment restores a previously authorized exception in the HMR. Shippers that transported diesel fuel, heating oil, and gasoline in separate loads were allowed to affix permanent placards with the ``UN1203'' marking to their CTMVs rather than changing the placard with each subsequent load of a different material. Rep. Pete Stauber also presented information from his constituents indicating that the cost of complying with the current marking requirements is up to $800 per truck.\22\ Rep. Pete Stauber presented information from local fire chiefs as well, most of whom provided feedback agreeing that in their firefighting operations they respond the same way with the same type of foam, regardless of whether the placard is marked as 1203 or 1993. --------------------------------------------------------------------------- \22\ This estimate did not include potential penalties or red tagging from marking errors, when compared to the previously permissible marking requirements. --------------------------------------------------------------------------- EMA supported the proposed change to section 172.336(c), stating that removing the requirement to change identification numbers with each load when hauling multiple fuels of differing flashpoints in alternating trips provides meaningful economic benefits without reducing the margin of safety. Similar to other commenters, EMA noted that the proposed practice of marking the lowest flashpoint materials transported on a CTMV was previously allowed. Industry consistently used the identification number with the lowest flash point (typically gasoline) for alternating straight loads involving diesel fuel. EMA added that there were no recorded safety concerns with this practice. Since the removal of the prior identification number marking exception, energy marketers have had to implement inefficient workarounds, such as load sequencing or running diesel shipments with one empty compartment containing gasoline residue. EMA noted that these practices are burdensome, inefficient, and costly, and eliminating such inefficiencies, as proposed in the NPRM, will produce tangible cost savings across thousands of cargo tank operations.\23\ --------------------------------------------------------------------------- \23\ EMA also requested that PHMSA expand this marking exception to petroleum distillate fuels with up to 15 percent ethanol content. Petroleum distillate fuels with more than 10 percent ethanol are water-miscible materials, while those 10 percent or below are water- immiscible materials. These two categories are separate entries in the ERG and responders need to treat them differently, including using different categories of firefighting foam. Expanding the marking exception beyond what was proposed in the NPRM would reduce safety and potentially put first responders at unnecessary risk. For these reasons PHMSA will not be moving forward with this request. --------------------------------------------------------------------------- 2. Stakeholder Concerns With Emergency Response Efforts PHMSA received several comments indicating concern with the proposed changes regarding the marking of CTMVs containing petroleum distillate fuels, including comments from IAFF, IAFC, CVSA, PVA, and KHP. In its comments, IAFF stated that PHMSA's proposal would intentionally create discrepancies between a vehicle's placarding and the contents of the cargo tank. In addition, IAFF stated that failure to disclose all hazardous contents will result in firefighters and other responders following incorrect emergency response procedures. IAFF provided hypothetical operational examples, including a situation where a cargo tank marked ``UN1203'' (gasoline) is involved in a fire or spill, noting that it could cause firefighters to assume they are dealing with gasoline, which has a low flash point and can ignite easily. According to IAFF, if the tank instead contains diesel (UN1202 or NA1993), which requires higher temperatures for ignition, firefighters may misinterpret the absence of fire as an indication of safety. IAFF further stated that this false sense of security could delay deploying suppression agents tailored specifically for diesel. IAFF also described a scenario with multi-compartmented cargo tanks transporting multiple fuels on separate trips, suggesting that relying on the identification number of the lowest flash point fuel--without clarity on the actual contents at the time of the incident--could lead to confusion [[Page 1437]] among emergency responders. According to IAFF, this confusion could delay critical containment actions and increase the risk of errors in evacuation and decontamination procedures. Lastly, IAFF claimed that using water-based agents, which are effective for gasoline fires, but not for diesel spills, could exacerbate emergency incidents. In its comments, KHP shared views similar to IAFF, stating that while UN1203 and NA1993 direct emergency responders to the same ERG response procedure, it is important to remember that the ERG is for use by first responders during the initial phase of a transportation incident involving hazardous materials. The IAFC comments also shared concerns about emergency responders, stating that PHMSA's proposal aims to simplify processes for shippers but overlooks bill of lading requirements (i.e., shipping paper requirements). IAFC maintained that the different information provided on the shipping paper and the vehicle marking creates confusion for first responders. As described above, IAFC stated that correct markings are necessary when formulating a proper emergency response action plan and, in their view, the rule would have an overall negative impact on first responders. Finally, PVA echoed IAFF's concerns, stating that vessel operators transporting fuels via tank truck or trailer must be able to identify quickly the contents to respond effectively to an onboard emergency. PVA was concerned this proposal could impede crew members' ability to serve as first responders when a shipment is underway or at the dock. PHMSA Response to Stakeholder Concerns With Emergency Response Efforts PHMSA acknowledges the commenters' concerns regarding markings for petroleum distillate fuels and the importance of those markings to emergency responders. As noted in the NPRM, for NA1993, UN1202, UN1203, UN1223, and other petroleum distillate fuels, the ERG directs the reader to the same guide page for initial emergency response instructions. The ERG is designed to aid emergency responders in their initial response to transportation incidents involving hazardous materials and groups materials with similar hazards and properties into specific ``guides.'' In the case of petroleum distillate fuels, all relevant UN numbers direct the reader to Guide 128, meaning that all petroleum distillate fuels have identical initial response procedures. As mentioned by some commentors, marking and placarding of the transport vehicle is not the only form of hazardous materials communications that first responders have available to rely on. The HMR also require carriers to maintain a shipping paper onboard the vehicle which provides the proper shipping name, identification number, and hazard class, among other information, of the materials onboard the vehicle. First responders will, in most cases, refer to that document to confirm the specific material involved. PHMSA is unaware of any fire suppression foams that are specifically tailored for diesel fuel rather than gasoline. For example, readily available literature from a trade association \24\ that represents manufacturers of fire suppression equipment, and the State of Tennessee,\25\ indicates that Class B foam--both polar and non-polar formulations--is effective in fighting fires caused by non- polar hydrocarbon fuels, like gasoline and diesel fuel. Using this type of foam, or a similar one, could address any concerns emergency responders might have about the exact contents of the tank. In contrast, there are foams specifically tailored for high-ethanol content gasoline--gasoline with more than 10 percent ethanol. However, PHMSA has specifically excluded ``UN3475, Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture, with more than 10 percent ethanol, 3, PGII'' from this marking exception because of the different fire suppression media required for this type of material. PHMSA believes that any risks and burdens to emergency responders raised by the commenters' hypothetical scenarios are minimal and can be mitigated--if not completely eliminated--by responding to incidents involving petroleum distillate fuels as highly flammable materials. --------------------------------------------------------------------------- \24\ See, e.g., Fire Apparatus Manufacturers' Association, The A's and B's of Foam of Foam Concentrate and Delivery Systems (Mar. 1, 2019), available at: https://www.fama.org/forum_articles/the-as-and-bs-of-foam-of-foam-concentrate-and-delivery-systems/ . \25\ State of Tennessee, available at: https://www.tn.gov/content/dam/tn/commerce/documents/tfaca/quick_skills_training/QS_Foam_edited.pdf . --------------------------------------------------------------------------- As previously discussed in the NPRM, the flexibility allowed for markings for petroleum distillate fuels was previously permissible under the HMR. For approximately 33 years, from the publication of HM- 118 \26\ in 1980 until the publication of HM-219 \27\ in 2013, the HMR allowed a cargo tank transporting more than one petroleum distillate fuel in different trips to display the identification number for the petroleum distillate fuel with the lowest flash point. In that time frame, PHMSA is unaware of any increase in the number of hazardous materials incidents involving petroleum distillate fuels and resulting in injuries to first responders. Similarly, since the unintentional removal of the exception in the HM-219 final rule, PHMSA is unaware of any decrease in hazardous materials incidents involving petroleum distillate fuels and resulting in injuries to first responders. --------------------------------------------------------------------------- \26\ 45 FR 74640 (Nov. 10, 1980). \27\ 78 FR 14702 (Mar. 7, 2013). --------------------------------------------------------------------------- 3. Stakeholder Concerns With Enforcement The comments from the KHP expressed opposition to the proposed change to section 172.336 for petroleum distillate fuels from a law enforcement perspective. The KHP stated that the new marking provision will create unnecessary burdens on law enforcement by requiring law enforcement to decipher what the tank was hauling on the previous business day, which, depending on the day of the week, could have been several days prior. The KHP went on to provide an example of an extended holiday weekend where the previous business day was four days prior. According to the KHP, it is typical for a truck driver not to know the previous contents of the tank for various reasons, such as the vehicle was driven by someone else on the previous business day or the driver just picked up the tank as a contracted carrier. The KHP further stated that this uncertainty by the driver would lead to increased roadside inspection times and significantly hinder the officer from performing his or her duty because commercial vehicle inspectors must be certain of violations before recording them on an inspection report. The KHP continued that if the inspector is wrong in writing up the carrier, it may result in the carrier being erroneously taken out of service, in addition to the costs associated with reversing the citation, including personnel time to remove violations, dismiss citations, or even refund civil penalties. Finally, the KHP pointed to a potential conflict with CVSA's out of service criteria, which direct law enforcement to take a vehicle marked with identification number(s) for material(s) that are not present on the vehicle out of service. The commenter notes that CVSA inspection bulletin [[Page 1438]] #2022-06 \28\ states placards must accurately communicate the hazardous materials transported on the vehicle. --------------------------------------------------------------------------- \28\ Commercial Vehicle Safety Alliance, Inspection Bulletin: 2022-06--Placards on Flammable and Combustible Liquids (Dec. 14, 2022), https://cvsa.org/wp-content/uploads/2022-06-Inspection-Bulletin.pdf . --------------------------------------------------------------------------- CVSA, the organization that KHP referenced in its comment, also submitted comments on the topic of enforcement. CVSA stated that both industry and enforcement personnel have adapted to the current marking requirements in place and a change at this point would be costly to implement, as both enforcement and industry personnel would have to be retrained. CVSA did not support making the proposed change at this time given what it perceives as the potential risk to first responders associated with the change and the fact that industry has largely adjusted to the status quo of often-frequent placard changes. PHMSA Response to Stakeholder Concerns With Enforcement As PHMSA stated in the NPRM, law enforcement personnel may use shipping paper records to determine whether a cargo tank was used to transport petroleum distillate fuel with a lower flashpoint than the fuel currently onboard the previous business day. And while there may be scenarios where this change could impose an additional burden on law enforcement personnel, PHMSA is confident that petroleum distillate fuel transporters will have access to the information necessary to assist investigators in making appropriate determinations of compliance. In response to the KHP's concerns regarding extended roadside inspection times and potential for incorrect citations, PHMSA expects investigators and law enforcement officers to familiarize themselves promptly with the identification number marking requirements for petroleum distillate fuels. As PHMSA expressed in the NPRM, and elsewhere in this rulemaking, the initial emergency response instructions for petroleum distillate fuels are the same, should an incident occur. 4. Stakeholder Concerns With Training The KHP stated that from an instructor's standpoint it is much easier to explain to students that the operator of a CTMV must display identification numbers for the material currently onboard. The KHP further stated that it is difficult for a new student to understand how a CTMV can display an identification number for a material that is not present on the vehicle and will be particularly difficult for students to grasp after listening to instructors spend considerable time in the classroom emphasizing that a vehicle must not display an identification number for a material it is not carrying. PHMSA Response to Stakeholder Concerns With Training PHMSA appreciates the comments regarding training challenges for inspectors and law enforcement, but notes that this concern is not unique as PHMSA continuously updates the HMR with new rules on a regular basis. While the HMR generally states that no one may represent through hazard communication that a hazardous material is present in the package, motor vehicle, freight container, or other packaging if the hazardous material is not present, it is not uncommon for PHMSA to provide exceptions from general requirements if economic benefits can be produced while minimizing or limiting any potential negative safety impact. For example, a hazardous material that meets the general classification criteria for a flammable liquid may be rec
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