HR 3404 Introduced
Foreign Cylinder Regulations
Last month, Rep Balderson (R,OH) introduced HR 3404, 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.
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) {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
Neither Balderson nor his sole cosponsor {Rep Krishnamoorthi (D,IL)} are members of the House Transportation and Infrastructure Committee to which this bill was assigned for consideration. This means that there is probably not enough influence to see this bill considered in Committee. I suspect that there might be multinational chemical companies operating in the United States that would object to the new requirements for approval of foreign made cylinders. It is unclear, however, how much opposition that would engender in Congress. While there may not be enough opposition to stop this from being approved in Committee if it were considered, I suspect that there would not be sufficient support to see the bill considered under the suspension of the rules process. I doubt that there would be enough leadership interest for the House to take this bill up under a rule.
Commentary
This is a bill that almost requires a new section outlining the reasons that the additional regulations are necessary. Typically called ‘Congressional Findings’ it outlines problems (in this case probably safety problems would be appropriate) that have been caused by the currently deficient regulations leading to the need for the proposed changes. In narrow regulatory areas like this, it is important to provide the necessary information to fellow congress critters.