HR 1182 Introduced - Foreign Cylinder Regulations
Earlier this month, Rep Balderson (R,OH) introduced HR 1182, the Compressed Gas Cylinder Safety and Oversight Improvements Act of 2023. The bill would require DOT to establish additional regulations relating to the approval of foreign manufacturers of cylinders used in the transport of hazardous chemicals. There is no new spending authorized by this legislation.
This bill is very similar to HR 3404 that was introduced by Balderson in May of 2023. No action was taken on that bill since neither Balderson nor his initial cosponsor were members of the House Transportation and Infrastructure Committee, to which the bill was assigned. An added sponsor later in the session changed that influence situation, but too late to be of any help. A similar bill, S 1632, was introduced in the Senate by then Sen Vance (R,OH); no action was taken on that bill either.
There are two differences between this bill and HR 3404. First, in §2(c)(1) this bill provides 1-year to promulgate regulations instead of the 180-days in HR 3404. Secondly, in §2(f), this bill requires a “list of approved foreign manufacturers of cylinders and the duration of those approvals” to be posted on the PHMSA website; HR 3404 called for posting the list on the DOT website. The first change is more reasonable (but probably still not attainable, especially with the Trump/Musk downsizing of the federal bureaucracy), and the second is picking nits; the PHMSA.DOT.gov website is on the DOT website.
Interestingly, an error in the regulatory reference in §2(g) was carried forward from HR 3404. That subparagraph references “§107.807(d)”; that CFR section does not include a subsection (d); subsection (c), Facility inspections, is almost certainly what the reference should be. That error was caught in the Senate bill last session.
Definitions
Section 2(a) of the bill provides the definitions of four key terms used in the legislation. One of the terms is defined by reference to current statute. A new term, ‘in good standing’ is defined by compliance with existing regulatory requirements. The other technical term defined in this subsection, ‘foreign manufacturer of cylinders (FMOC)’ is defined as “an entity that manufactures cylinders outside of the United States that are intended to be represented, marked, certified, or sold as qualified for use in transporting a hazardous material in commerce in the United States.”
Approval of Cylinders from FMOC
Section 2(b) would require DOT to modify the current requirements of 49 CFR 107.807, Approval of non-domestic chemical analyses and tests. Changes would include modifying the existing requirements to authorize approvals under the current process for only one year. The regulations would provide additional requirements to allow for a five-year approval. Those requirements would include:
The FMOC attests that none of the cylinders made by the FMOC are prohibited from entry to the United States under section 19 USC 1307 - Convict-made goods; importation prohibited,
The FMOC certifies that the regulatory compliance information discussed below is accurate, and acknowledges that it has a proactive responsibility to inform the Secretary if any such information materially changes, and
The Secretary determines that the FMOC is in good standing.
Section 2(e) adds seven regulatory compliance questions that the FMOC will have to reply favorably to be able to receive the 5-year certification. Those questions address:
Whether the FMOC applying, or any entity controlling more than 10 percent of that FMOC, has ever been subject to a civil monetary penalty under title 49, United States Code, relating to any actions carried out as an approved FMOC or during the application for approval under that section.
Whether the FMOC applying, or any entity controlling more than 10 percent of that FMOC, has been delinquent in the payment of any civil monetary penalties or other fines or fees under title 49, United States Code.
Whether the FMOC applying, or any entity controlling more than 10 percent of that FMOC, is subject to the Do Not Pay Initiative established under 31 USC 3354 - Do Not Pay Initiative, as of the date of the application.
Whether the FMOC applying, or any entity controlling more than 10 percent of that FMOC, is listed in the Military End User List of the Department of Commerce as of the date of the application.
Whether the FMOC applying, or any entity controlling more than 10 percent of that FMOC, is identified by the Department of Defense as an entity listed under section 1237 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (50 USC 1701 note; Public Law 105–261) as of the date of application.
Whether the FMOC applying, or any entity controlling more than 10 percent of that FMOC, has been found guilty of a criminal penalty or assessed a civil penalty under 50 USC 4819.
Whether the FMOC applying, or any entity controlling more than 10 percent of that FMOC, is subject to a final antidumping or countervailing duty order from the Department of Commerce as of the date of application.
Foreign Inspections
Section 2(g) would require DOT to revise §107.807(d) {NOTE: as explained above, that should probably read §107.807(c)} to:
Require that in any case in which the Secretary determines there is good cause, an inspection under that section shall be carried out annually for such duration as the Secretary determines appropriate,
Specify that a refusal of inspection under that section shall result in a loss of the status of in good standing,
Allow the Secretary to request, at the discretion of the Secretary, production of test and production records and random sample testing, and
Allow for the recovery of all associated costs of foreign inspections to include travel, time, and other costs, as determined by the Secretary.
Moving Forward
While Balderson is still not a member of the House Transportation and Infrastructure Committee, two of his cosponsors {Rep Taylor (R,OH) and Rep Nehls (R,TX)} are members. This means that there may be sufficient influence to see the bill considered in Committee. While this bill would require new regulations (generally an anathema to the Republican majority in the House and Senate) this bill would allow for expanded use of less expensive foreign made cylinders, something that would be generally favored by most hazardous material shippers. Balanced against the increased oversight of FOMC, and presumably their increased costs, this bill may have a chance of moving through the Committee with some level of bipartisan support. How extensive that support is will determine if the bill could be brought to the floor of the House under the suspension of the rules process.