Tym’s Submits Public Comments to DOT on Behalf of Small Businesses
Tym’s recently submitted a public comment on Docket No. PHMSA-2024-0041 regarding the development of “general investigative questions” that may be used by PHMSA’s Office of Hazardous Materials Safety (OHMS) field operations personnel when “investigating potential general safety issues.” We asked that the questions not be adopted based on the agency’s false premise that the questions are “not related to the inspection of an individual company or entity for compliance with the hazardous materials regulations.”
Reason for Docket No. PHMSA-2024-0041
The Paperwork Reduction Act (PRA) requires Federal agencies to minimize paperwork burden on regulated entities and receive approval from the Office of Management and Budget (OMB) for any information collection requirements.
Proposed Questions
The proposed questions directly relate to various requirements within the Hazardous Materials
Regulations (HMR; 49 CFR parts 171 through 180). Some examples are:
- Can you describe the hazardous materials in transportation you normally ship or receive?
- Are there modal-specific (rail/air/vessel/highway) requirements for this hazardous material that you follow? If so, what are they?
- When was the last time training was provided?
- Does your operation require a hazmat security plan? If so, what elements of a security plan are implemented?
The questions are directed towards compliance, not “safety issues” as purported. While answering is voluntary, individuals or entities answering these questions could easily incriminate themselves with the very agency that oversees HMR compliance.
Interestingly, the docket states that questions involving inspections and investigations used to determine compliance with the HMR are not subject to the PRA (see 5 CFR 1320.4), seemingly making the entire exercise futile. To satisfy this issue, the document states: “questions presented in this information collection request are not intended to be used by field operations staff when conducting routine investigations or inspections of individual companies for compliance with the HMR.”
Something’s Not Right
We reject that premise outright. Asking these types of questions is an investigative action, even
if it is disguised as something innocuous. The same is true for a police officer asking, “do you know why I pulled you over” during a traffic stop. There are no protections prohibiting field agents from using the questions inappropriately nor is there any guarantee that the answers will not be used to engage in enforcement action.
If the agency truly wanted to gather information about “safety issues across a particular industry
sector or process” why would it not use information gathered from formal investigations and enforcement actions already underway or performed in the past? Wouldn’t that also be the best way to reduce paperwork for regulated entities?
Words of Caution
Regardless, we fear that these questions will be used to gather information for enforcement actions without informing individuals and companies that they are being investigated. We also believe that the information gathered during these “voluntary discussions” will be used to engage in formal investigations and inspections later, if not immediately, without protections normally afforded to those involved.
Solution
Tym’s submitted a letter to the Department of Transportation (DOT) outlining our concerns on this issue, expressly in support of small to medium-sized businesses who are the most susceptible to these actions and account for 85% of all US-based aviation Maintenance, Repair, and Overhaul (MRO) organizations. If you feel strongly about this topic, be sure to submit your own comments no later than January 6, 2025.