Hazardous Materials Regulations: Combustible Liquids, 17111-17119 [2010-7544]
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Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Proposed Rules
is one that, inter alia, meets the
pertinent small business size standard
established by the SBA, and is not
dominant in its field of operation.
Section 121.201 of the SBA regulations
defines a small wireline
telecommunications business as one
with 1,500 or fewer employees. In
addition, the SBA’s Office of Advocacy
contends that, for RFA purposes, small
incumbent LECs are not dominant in
their field of operation because any such
dominance is not ‘‘national’’ in scope.
Because our proposals concerning the
part 36 separations process will affect
all incumbent LECs providing interstate
services, some entities employing 1500
or fewer employees may be affected by
the proposals made in this NPRM. We
therefore have included small
incumbent LECs in this RFA analysis,
although we emphasize that this RFA
action has no effect on the
Commission’s analyses and
determinations in other, non-RFA
contexts. Neither the Commission nor
the SBA has developed a small business
size standard specifically for providers
of incumbent local exchange services.
The closest applicable size standard
under the SBA rules is for Wired
Telecommunications Carriers. Under
the SBA definition, a carrier is small if
it has 1,500 or fewer employees.
According to the FCC’s Telephone
Trends Report data, 1,311 incumbent
LECs reported that they were engaged in
the provision of local exchange services.
Of these 1,311 carriers, an estimated
1,024 have 1,500 or fewer employees
and 287 have more than 1,500
employees. Consequently, the
Commission estimates that most
incumbent LECs are small entities that
may be affected by the rules and
policies adopted herein.
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Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
None.
Steps Taken To Minimize Significant
Economic Impact on Small Entities, and
Significant Alternatives Considered
The RFA requires an agency to
describe any significant alternatives that
it has considered in reaching its
proposed approach, which may include
the following four alternatives (among
others): (1) The establishment of
differing compliance and reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
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standards; and (4) an exemption from
coverage of the rule, or part thereof, for
small entities.
As described above, seven years have
elapsed since the imposition of the
freeze, thus, we ask commenters, in
their comments on the present NPRM,
address the impact of a further
extension of the freeze. We seek
comment on the effects our proposals
would have on small entities, and
whether any rules that we adopt should
apply differently to small entities. We
direct commenters to consider the costs
and burdens of an extension on small
incumbent LECs and whether the
extension would disproportionately
affect specific types of carriers or
ratepayers.
Implementation of the proposed
freeze extension would ease the
administrative burden of regulatory
compliance for LECs, including small
incumbent LECs. The freeze has
eliminated the need for all incumbent
LECs, including incumbent LECs with
1500 employees or fewer, to complete
certain annual studies formerly required
by the Commission’s rules. If an
extension of the freeze can be said to
have any affect under the RFA, it is to
reduce a regulatory compliance burden
for small incumbent LECs, by abating
the aforementioned separations studies
and providing these carriers with greater
regulatory certainty.
Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rules
None.
Paperwork Reduction Act
The NPRM does not propose any new
or modified information collections
subject to the Paperwork Reduction Act
of 1995 (PRA), Public Law 104–13. In
addition, therefore, it does not contain
any new, modified, or proposed
‘‘information collection burden for small
business concerns with fewer than 25
employees,’’ pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, 44 U.S.C.
3506(c)(4).
17111
Commission proposes to amend 47 CFR
part 36 as follows:
PART 36—JURISDICTIONAL
SEPARATIONS PROCEDURES;
STANDARD PROCEDURES FOR
SEPARATING
TELECOMMUNICATIONS PROPERTY
COSTS, REVENUES, EXPENSES,
TAXES AND RESERVES FOR
TELECOMMUNICATIONS COMPANIES
1. The authority citation for part 36
continues to read:
Authority: 47 U.S.C. 151, 154 (i) and (j),
205, 221(c), 254, 403, and 410.
2. In 47 CFR part 36 remove the words
‘‘June 30, 2010’’ and add, in their place,
the words ‘‘June 30, 2011’’ in the
following places:
a. Section 36.3(a), (b), (c), (d), and (e);
b. Section 36.123(a)(5) and (a)(6);
c. Section 36.124(c) and (d);
d. Section 36.125(h), (i), and (j);
e. Section 36.126(b)(5), (c)(4), (e)(4),
and (f)(2);
f. Section 36.141(c);
g. Section 36.142(c);
h. Section 36.152(d);
i. Section 36.154(g);
j. Section 36.155(b);
k. Section 36.156(c);
l. Section 36.157(b);
m. Section 36.191(d);
n. Section 36.212(c);
o. Section 36.214(a);
p. Section 36.372;
q. Section 36.374(b) and (d);
r. Section 36.375(b)(4) and (b)(5);
s. Section 36.377(a), (a)(1)(ix),
(a)(2)(vii), (a)(3)(vii), (a)(4)(vii),
(a)(5)(vii), and (a)(6)(vii);
t. Section 36.378(b)(1);
u. Section 36.379(b)(1) and (b)(2);
v. Section 36.380(d) and (e);
w. Section 36.381(c) and (d); and
x. Section 36.382(a).
[FR Doc. 2010–7565 Filed 4–2–10; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
List of Subjects in 47 CFR Part 36
49 CFR Parts 172, 173, and 176
Communications common carriers,
Reporting and recordkeeping
requirements, Telephone, and Uniform
System of Accounts.
[Docket No. PHMSA–2009–0241 (HM–242)
Marlene H. Dortch,
Secretary, Federal Communications
Commission.
Rules
For the reasons discussed in the
preamble, the Federal Communications
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RIN 2137–AE52
Hazardous Materials Regulations:
Combustible Liquids
AGENCY: Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Advance notice of proposed
rulemaking (ANPRM).
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Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Proposed Rules
SUMMARY: PHMSA is considering
amendments to the Hazardous Materials
Regulations (HMR) as they apply to the
transportation of combustible liquids.
Specifically, we are considering
whether to harmonize the domestic
regulations applicable to the
transportation of combustible liquids
with international transportation
standards. In addition, we are
examining ways to revise, clarify, or
relax certain regulatory requirements to
facilitate the transportation of these
materials while maintaining an
adequate level of safety. The intent of
this ANPRM is to invite public
comments on how to accomplish these
goals, provide an opportunity for
comment on amendments PHMSA is
considering, and present a forum for the
public to offer additional
recommendations for the safe
transportation of combustible liquids.
DATES: Comments must be received by
July 6, 2010. To the extent possible, we
will consider late-filed comments as we
consider the next action. You may
submit comments by any of the
following methods:
• Web Site: https://dms/dot/gov.
Follow the instructions for submitting
comments on the DOT electronic docket
site.
• Fax: 1–202–493–2251.
• Mail: Docket Management System;
U.S. Department of Transportation, 1200
New Jersey Avenue, SE., Washington,
DC 20590–0001.
• Hand Delivery: To the Docket
Management System; U.S. Department
of Transportation, 1200 New Jersey
Avenue, SE., Washington, DC 20590–
0001 between 9 a.m. and 5 p.m. Monday
through Friday, except Federal holidays.
Instructions: You must include the
agency name and docket number
PHMSA–2009–0241 (HM–242) or the
Regulatory Identification Number (RIN)
2137–AE52 for this notice at the
beginning of your comment. Note that
all comments received will be posted
without change to https://dms.dot.gov
including any personal information
provided. Persons wishing to receive
confirmation of receipt of their
comments must include a self-addressed
stamped postcard or access our Web site
at https://dms.dot.gov.
Docket: For access to the docket to
read background documents and
comments received, go to https://
dms.dot.gov at any time or to U.S.
Department of Transportation, 1200
New Jersey Avenue, SE., Washington,
DC 20590–0001 between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Helen L. Engrum, Office of Hazardous
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Materials Standards, telephone (202)
366–8553, Pipeline and Hazardous
Materials Safety Administration, U.S.
Department of Transportation, 1200
New Jersey Avenue, SE., East Building,
2nd Floor, PHH–10, Washington, DC
20590–0001.
SUPPLEMENTARY INFORMATION:
I. Overview of the Hazardous Materials
Regulations
The Hazardous Materials Regulations
(HMR; 49 CFR parts 171–180) govern
the safe transportation of hazardous
materials. The HMR are designed to
achieve three goals:
1. To ensure that hazardous materials
are packaged and handled safely and
securely during transportation;
2. To provide effective
communication to transportation
workers and emergency responders of
the hazards of the materials being
transported; and
3. To minimize the consequences of
an incident should one occur.
The hazardous material regulatory
system is a risk management system that
is prevention-oriented and focused on
identifying a safety or security hazard
and reducing the probability and
quantity of a hazardous material release.
Under the HMR, hazardous materials
are categorized by analysis and
experience into hazard classes and
packing groups based upon the risks
they present during transportation. The
HMR specify appropriate packaging and
handling requirements for hazardous
materials, and require a shipper to
communicate the material’s hazards
through use of shipping papers, package
marking and labeling, and vehicle
placarding. The HMR require shippers
to provide emergency response
information applicable to the specific
hazard or hazards of the material being
transported. The HMR mandate training
requirements for persons who prepare
hazardous materials for shipment or
who transport hazardous materials in
commerce. Finally, the HMR include
operational requirements applicable to
each mode of transportation.
PHMSA reviews the HMR on a
continuing basis to determine whether
revisions or amendments are necessary
to ensure a high level of safety for the
safe transportation of hazardous
materials in commerce. During our
regulatory review process, we look for
opportunities that may exist to enhance
safety, such as by minimizing
misunderstanding of regulatory
requirements for the transportation of
hazardous materials and, where
opportunities exist, to reduce the
regulatory burden on industry while
maintaining a high level of safety. We
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believe opportunities exist to clarify and
simplify current requirements in the
HMR applicable to the transportation of
combustible liquids, thereby reducing
compliance burdens on shippers and
carriers while facilitating movement of
these materials in domestic and
international commerce. This initiative
is based on our ongoing review process,
input from the regulated community,
review of requests for letters of
interpretation and clarification
concerning combustible liquids, and
written and oral questions pertaining to
combustible liquids that have been
presented to PHMSA’s Hazardous
Materials Information Center.
II. Background of Class 3 Flammable
Liquids and Combustible Liquids
On February 27, 1968, the Hazardous
Materials Regulation Board—the
predecessor agency to the Research and
Special Programs Administration
(RSPA) and, subsequently, the Pipeline
and Hazardous Materials Safety
Administration (PHMSA)—published a
notice of proposed rulemaking (NPRM)
under Docket No. HM–3 (33 FR 3382)
proposing to re-define the term
‘‘flammable liquid,’’ in order to
harmonize the definition with
international standards and better
address the risks such materials present
in transportation. On February 21, 1970,
the Board published an NPRM under
Docket No. HM–42 (35 FR 3298)
proposing to create and define a new
class of materials identified as
‘‘combustible liquids’’ to address a lack
of hazard warning communication
concerning these materials, and the
hazards posed by transportation of these
materials at temperatures equal to or
exceeding their flash points. Liquids in
this higher flash point range (80 °F to
200 °F) include kerosene, fuel oil,
turpentine and certain alcohols, all of
which present fire hazards during
transportation, and are referred to
generically as ‘‘combustible liquids.’’
The 200 °F upper limit is commonly
used by industry, government, and the
National Fire Protection Association
(NFPA) as the regulatory limit for
defining flammable/combustible
liquids.
On December 5, 1970, the Board
published an NPRM under Docket No.
HM–67 (35 FR 18534) proposing to
change the method of determining the
flash point of materials from the
Tagliabue open-cup test method to the
Tagliabue closed-cup test method in an
effort to establish a more accurate flash
point of materials.
The issues addressed in these three
notices were consolidated under Docket
HM–102 and published as an NPRM on
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June 15, 1972 (37 FR 11898). The NPRM
included proposals for a new definition
for the class of materials identified as
‘‘flammable liquid’’ and created and
defined a new class of materials
identified as ‘‘combustible liquid,’’ in
addition to modifying the definition for
pyrophoric liquids within the
flammable liquid hazard class.
On January 24, 1974, the Hazardous
Materials Regulation Board published a
final rule under Docket HM–102 (39 FR
2768) that, among other issues, (1)
Specified a new definition for the class
of materials identified as ‘‘flammable
liquid;’’ (2) created and defined a new
class of materials identified as
‘‘combustible liquids;’’ (3) modified the
definition for ‘‘pyrophoric liquid’’
within the flammable liquid class; and
(4) set forth the requirements for the
materials that were covered by these
new definitions.
The final rule defined these hazard
classes as follows:
1. A ‘‘flammable liquid’’ is any liquid
having a flash point below 100 °F (37.8
°C) that does not meet one of the
definitions specified under then
§ 173.300 (i.e., materials defined as
compressed gases).
2. A ‘‘combustible liquid’’ is any
liquid having a flash point at or above
100 °F (37.8 °C), and below 200 °F
(93.3 °C).
3. A ‘‘pyrophoric liquid’’ is ‘‘any liquid
that ignites spontaneously in dry or
moist air at or below 130 °F (54.5 °C).
In following years, the agency
published additional notices proposing
revisions to the provisions for
flammable and combustible materials,
culminating in the publication of a final
rule on December 21, 1990 under
Docket HM–181 (55 FR 52402).
Generally, this rule comprehensively
revised the HMR with respect to hazard
communication, classification, and
packaging requirements to enhance
safety through better classification and
performance-oriented, risk based
packaging, and to promote flexibility
and technological innovation in
packaging, reduce the need for special
permits (formerly ‘‘exemptions’’), and
facilitate international commerce. The
final rule adopted international
standards (United Nations
Recommendations on the Transport of
Dangerous Goods or ‘‘UN
Recommendations’’) for defining
flammable liquids and retained a
domestic exception for flammable
liquids reclassed as combustible liquids.
The upper flash point range for
flammable liquids was subsequently
extended to meet the UN standard of
60 °C (140 °F) for flammable liquids.
The definition for combustible liquids
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under the HMR was retained both as a
domestic classification option for
liquids with flash points between 38 °C
(100 °F) and 60 °C (140 °F) and as a
requirement for liquids with flash
points between 60 °C (140 °F) and below
93 °C (200 °F). The classification system
in the UN Recommendations has no
combustible liquid category or hazard
class.
Commenters to the HM–181
rulemaking asserted that the exceptions
provided in the HMR for the
transportation of combustible liquids
create an unnecessary variance between
domestic and international
transportation and increase the potential
for non-compliance. For instance,
commenters stated the domestic
exception would lead to identical
materials being classified differently,
and would result in confusion among
transportation, enforcement, and
emergency response personnel. At the
time, we disagreed with these
commenters and stated that although
different classifications for the same
materials could occur under this
exception, we anticipated little or no
confusion on the part of shippers
already dealing with a dual packaging
and marking system, i.e., differing
requirements for domestic and
international transportation. We also
stated that the exception for
combustible liquids would not hamper
enforcement or emergency response
personnel who are trained in the use of
the HMR, UN identification numbers,
the identification of materials using
DOT’s placarding system, and DOT’s
Emergency Response Guidebook.
This issue was raised again in a
subsequent HM–181 final rule
published on December 20, 1991 (56 FR
66124) that responded to petitions for
reconsideration of certain aspects of the
rule. Several petitioners urged the
agency to remove the combustible liquid
class definition and the reclassification
option. The petitioners stated that the
domestic combustible liquid
classification introduced unneeded
regulatory complexity and violated the
stated aims of HM–181 to simplify the
HMR. This being both a safety and
economic issue, we disagreed with the
petitioners who would eliminate the
combustible liquid class altogether,
believing that the significant number of
domestically regulated materials with
flash points between 38 °C (100 °F) and
93 °C (200 °F) pose risks in
transportation that cannot be ignored.
Under HM–181, we revised the HMR
to clarify that only flammable liquids
that do not meet the definition of any
other hazard class may be reclassed as
combustible liquids. This revision was
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17113
intended to prevent reclassification of
materials that meet the definition of a
hazardous substance or hazardous waste
and, thus, meet the definition for a Class
9 (Miscellaneous) material. We also
narrowed the provisions to generally
prohibit reclassification for materials
offered for air or vessel transportation,
with certain exceptions. The phrase
‘‘except Class 9’’ was subsequently
removed from §§ 173.120(b)(1) and
(b)(2), and 173.150 under the Docket
HM–181 Correction/Response final rule
published on October 1, 1992 (57 FR
45446), in which the Class 9 definition
was clarified to state that a material
which meets the definition of another
hazard class, but also falls within one of
the Class 9 criteria (e.g., hazardous
substance) does not meet the definition
of Class 9.
Section 173.120 of the HMR currently
defines a ‘‘flammable liquid’’ as a liquid
having a flash point of not more than
60 °C (140 °F), or any material in a
liquid phase with a flash point at or
above 38 °C (100 °F) that is intentionally
heated and offered for transportation or
transported at or above its flash point in
a bulk packaging, with some exceptions
for liquids that also meet the definition
for Division 2.1 (Flammable gas), 2.2
(Non-flammable gas), or 2.3 (Poisonous
gas) materials, as defined in § 173.115;
mixtures that are not offered for
transportation at or above their flash
points; liquids with a flash point greater
than 35 °C (95 °F) that do not sustain
combustion; liquids with a flash point
greater than 35 °C (95 °F) and with a fire
point (the temperature at which the
liquid will continue to burn after
ignition) greater than 100 °C (212 °F);
and liquids with a flash point greater
than 35 °C (95 °F) which is in a watermiscible solution with a water content
of more than 90 percent by mass.
In addition, § 173.120 of the HMR
defines a ‘‘combustible liquid’’ as any
liquid that does not meet the definition
of any other hazard class specified in
this subchapter and has a flash point
above 60 °C (140 °F) and below 93 °C
(200 °F). Further, in domestic
transportation, a flammable liquid with
a flash point at or above 38 °C (100 °F)
that does not meet the definition of any
other hazard class may be reclassed as
a combustible liquid. This provision
does not apply to transportation by
vessel or aircraft, except where other
means of transportation is
impracticable. An elevated temperature
material that meets the definition of a
Class 3 (Flammable liquid) material
because it is intentionally heated and
offered for transportation or transported
at or above its flash point may not be
reclassed as a combustible liquid.
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A flash point is 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. Materials with higher flashpoints
are thus less likely to ignite than
materials with lower flash points.
Because of their higher flash points,
combustible liquids do not pose as great
a risk in transportation as flammable
liquids. Therefore, the regulatory
requirements applicable to their
transportation are less stringent than
those for flammable liquids. For
example, combustible liquids
transported in non-bulk packagings are
excepted from all HMR requirements,
unless the combustible liquid also meets
the definition for a hazardous substance,
hazardous waste, or marine pollutant. In
addition, combustible liquids may be
transported in non-specification bulk
packagings. A combustible liquid that is
not a hazardous substance, a hazardous
waste, or a marine pollutant is not
subject to HMR requirements if it is a
mixture of one or more components that
has a flash point at or above 93 °C
(200 °F), comprises at least 99 percent
of the volume of the mixture, and is not
transported as a liquid at a temperature
at or above its flash point. Also, a
combustible liquid that does not sustain
combustion is not subject to the
requirements of the HMR as a
combustible liquid. Either the test
method specified in ASTM D 4206 or
the procedure in appendix H of part 173
may be used to determine if a material
sustains combustion when heated under
test conditions and exposed to an
external source of flame.
The HMR provide additional
exceptions for flammable (Class 3) and
combustible liquids under § 173.150.
Limited quantities of flammable and
combustible liquids are excepted from
labeling requirements, unless the
material also meets the definition of
Division 6.1 (Poison) or is offered for
transportation or transported by aircraft,
and the specification packaging
requirements of the HMR when
packaged in combination packagings,
each not exceeding 30 kg (66 pounds)
gross weight, in accordance with this
section. In addition, shipments of
limited quantities are not subject to
placarding. A limited quantity of a
flammable or combustible liquid may be
reclassed and renamed as a ‘‘consumer
commodity’’ as defined in § 171.8 of the
HMR. An aqueous solution containing
24 percent or less alcohol by volume
and no other hazardous material may be
reclassed as a combustible liquid, and is
not subject to the HMR requirements if
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it contains no less than 50 percent
water.
III. Petitions for Rulemaking
In this ANPRM, PHMSA is soliciting
comments on issues related to the
transportation of combustible liquids in
both domestic and international
commerce. We have received two
petitions for rulemaking suggesting that
domestic requirements for the
transportation of combustible liquids
should be harmonized with
international standards. In addition, we
have received a petition for rulemaking
suggesting that the HMR should include
more expansive domestic exceptions for
shipments of combustible liquids. The
petitions are described below.
A. VOHMA Petition for Rulemaking
The International Vessel Operators
Hazardous Materials Association
(VOHMA) submitted a petition for
rulemaking [P–1498; PHMSA–2007–
28238] concerning differing domestic
and international requirements for the
transportation of combustible liquids.
As indicated above, the UN
Recommendations do not include a
definition or classification for
combustible liquids. The UN
Recommendations are not regulations,
but rather are recommended standards
issued by the UN Sub-Committee of
Experts on the Transport of Dangerous
Goods. These recommendations are
amended and updated biennially and
serve as the basis for many national,
regional and international modal
regulations, including the International
Civil Aviation Organization’s Technical
Instructions for the Safe Transport of
Dangerous Goods by Air (ICAO
Technical Instructions) and the
International Maritime Dangerous
Goods (IMDG) Code.
In the UN Recommendations on the
Transport of Dangerous Goods (Model
Regulations), 15th Revised Edition,
Chapter 2.3; Section 2.3.1.2,
‘‘Flammable liquids’’ are defined as
liquids, or mixtures of liquids, or
liquids containing solids in solution or
suspension (for example, paints,
varnishes, lacquers, etc., but not
including substances otherwise
classified on account of their dangerous
characteristics) which give off a
flammable vapor at temperatures of not
more than 60 °C (140 °F), closed-cup
test, or not more than 65.6 °C
(150.08 °F), open-cup test, normally
referred to as the flash point. This class
also includes:
a. Liquids offered for transport at
temperatures at or above their flash
point; and
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b. Substances that are transported or
offered for transport at elevated
temperatures in a liquid state and which
give off a flammable vapor at a
temperature at or below the maximum
transport temperature.
Note: Since the results of open-cup tests
and of closed-cup tests are not strictly
comparable and even individual results by
the same test are often variable, regulations
varying from the above figures to make
allowance for such differences would be
within the spirit of this definition.
Liquid desensitized explosives (see
2.3.1.4) are also included in the Class 3
hazard class. Liquid desensitized
explosives are explosive substances
which are dissolved or suspended in
water or other liquid substances, to form
a homogeneous liquid mixture to
suppress their explosive properties
(2.1.3.6.3). Entries in the Dangerous
Goods List for liquid desensitized
explosives are: UN1204, UN 2059 UN
3064, UN 3343, UN 3357 and UN 3379.
Liquids meeting the definition in
Chapter 2.3; Section 2.3.1.3 with a flash
point of more than 35 °C (95 °F) which
do not sustain combustion are not
considered hazardous materials for
purposes of the UN Recommendations,
the ICAO Technical Instructions, or the
IMDG Code. Liquids are considered to
be unable to sustain combustion for the
purposes of these Regulations (i.e., they
do not sustain combustion under
defined test conditions) if:
a. They have passed a suitable
combustibility test (see SUSTAINED
COMBUSTIBILITY TEST prescribed in
the Manual of Tests and Criteria, Part
III, sub-section 32.5.2;
b. Their fire point according to ISO
2592:2000 is greater than 100 °C
(212 °F); or
c. They are water miscible solutions
with a water content of more than 90%
by mass.
In its petition, VOHMA notes that the
differing domestic and international
requirements for combustible liquids
has resulted in conflicting and
confusing hazard communication
requirements with the result that
international shipments may be
frustrated as foreign authorities attempt
to reconcile HMR hazard
communication schemes with
international regulations. For example,
VOHMA notes that many paints, inks,
adhesives, solvents, and petroleum
products have flash points between
60 °C (140 °F) and 93 °C (200 °F) and
are offered for transportation as
combustible liquids within the United
States. However, the HMR permit such
shipments to be described on a shipping
paper and to display markings, labels,
and placards in the same manner as
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shipments of flammable liquids with
flash points of less than 60 °C (140 °F).
When these shipments are destined for
export to a jurisdiction outside the
United States, foreign inspectors,
stowage planners, interlining carriers,
and intermodal feeder companies may
become confused by the display of a UN
identification number of a material that
is not regulated in international
commerce and thus may delay
forwarding the shipments until the
confusion is resolved. We agree with
VOHMA that these frustrated shipments
impede commerce and may also result
in additional risks in the ports and
terminals where they are held.
In its petition, VOHMA also expresses
concern that HMR provisions that
permit reclassification of flammable
liquids with a flash point at or above
38 °C (100 °F) as combustible liquids
could result in the movement of
undeclared shipments in international
commerce. Reclassed combustible
liquids are excepted from the HMR
when transported in non-bulk
packagings such as one-gallon cans,
five-gallon jerricans, or 55-gallon drums.
However, materials with flash points
between
38 °C (100 °F) and 60 °C (140 °F) are
fully regulated as Class 3 materials in
international commerce. We agree with
VOHMA that unmarked and unlabeled
packages of reclassed combustible
liquids may find their way into
international distribution with the result
that the shipments are not declared as
dangerous goods and will not be
appropriately handled and stowed in
international transportation.
To address these problems, VOHMA
asks PHMSA to use the ‘‘Combustible
liquid, n.o.s.’’ proper shipping name
entry in the Hazardous Materials Table
(HMT), with an associated technical
name in parentheses, when the material
is reclassified in accordance with
§ 173.150(f) and is intended for rail or
highway transportation only, or has a
flash point above 60 °C (140 °F) but
below 93 °C (200 °F). This would serve
to distinguish shipments regulated only
in the United States from shipments
regulated in international commerce.
B. DGAC Petition for Rulemaking
The Dangerous Goods Advisory
Council (DGAC) also submitted a
petition for rulemaking [P–1531;
PHMSA–2008–0303] for amendment of
the requirements for combustible
liquids in bulk packagings in order to
reduce port congestion and improve
transportation efficiency in port areas. A
bulk packaging is defined in § 171.8 as
a packaging, other than a vessel or
barge, including a transport vehicle or
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freight container, in which hazardous
materials are loaded with no
intermediate form of containment and
that has: (1) A maximum capacity
greater than 450 L (119 gallons) as a
receptacle for a liquid; (2) a maximum
net mass greater than 400 kg (882
pounds) and a maximum capacity
greater than 450 L (119 gallons) as a
receptacle for a solid; or (3) a water
capacity greater than 454 kg (1000
pounds) as a receptacle for a gas as
defined in § 173.115 of the HMR. The
DGAC petition highlights many of the
issues identified by VOHMA in its
petition, with a particular focus on
problems encountered in international
transportation for shipments of
materials DGAC terms ‘‘high flash point
combustible liquids’’—that is,
combustible liquids with flashpoints
between 60 °C (140 °F) and 93 °C
(200 °F). DGAC suggests that the
regulatory differences between the HMR
and international regulatory
requirements for these combustible
liquids are disruptive to the flow of
goods in port areas and contribute to
port congestion. According to DGAC,
imported bulk shipments of high flash
point combustible liquids arriving in
U.S. ports must be marked and
placarded in accordance with HMR
requirements. Similarly, the marks and
placards that are applied to bulk
shipments of such combustible liquids
for U.S. transportation must be removed
in the port prior to export. DGAC
estimates that export shipments are
delayed for an average of three days
awaiting removal of HMR-required
marks and placards and import
shipments are delayed an average of five
days awaiting application of HMRrequired marks and placards. To
alleviate this problem, DGAC requests
that PHMSA except high flash point
combustible liquids from all HMR
requirements when transported in
specification packages of less than 3000
liters capacity, (the upper capacity limit
for intermediate bulk containers (IBCs),
or when in an ISO (UN) portable tank
in international commerce.
C. U.S. Custom Harvesters Petition for
Rulemaking
U. S. Custom Harvesters, Inc. (Custom
Harvesters) also submitted a petition for
rulemaking [P–1536; PHMSA–2009–
0099] requesting modification of current
requirements applicable to combustible
liquids. According to the petition, a
custom harvester has invested in the
equipment (which includes grain
harvesting combines, silage harvesters,
grain trucks, tractors and grain carts)
necessary to harvest wheat, corn, corn
silage and cotton. The custom harvester
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industry replaces the farmer in the field
during harvest.
Custom Harvesters is concerned that
current requirements applicable to bulk
shipments of combustible liquids
inhibit the industry’s ability to hire
seasonal workers to transport the diesel
fuel necessary to re-fuel harvesting
equipment in the fields. Because the
diesel fuel is typically transported from
a local service station or farm
cooperative in tanks with capacities
greater than 450 L (119 gallons) (i.e., in
bulk quantities), the commercial motor
vehicles transporting the diesel fuel
must be operated by a driver with a
commercial driver license with a
hazmat endorsement. (In accordance
with 49 CFR part 383, a hazmat
endorsement is required for drivers of
commercial motor vehicles that
transport placarded amounts of
hazardous materials. Bulk shipments of
combustible liquids must be placarded.)
Custom Harvesters asks us to consider
an exception from placarding for
combustible liquids transported in
quantities that do not exceed 3785 L
(1,000 gallons) in a single packaging.
Approximately 100 persons submitted
comments in support of the U.S. Custom
Harvesters’ petition. The commenters
stress the difficulty of hiring seasonal,
foreign workers who may not be able to
obtain a CDL with a hazmat
endorsement in a timely fashion.
IV. Comments Requested
Based on the petitions for rulemaking
described in the previous section of this
preamble and our own review of
domestic and international regulations
applicable to the transportation of
combustible liquids, we have identified
a number of issues that we may wish to
address through rulemaking, including:
(1) Harmonizing the HMR definitions
and requirements for combustible
liquids with international standards; (2)
modifying HMR requirements for
marking and placarding shipments of
combustible liquids to eliminate
confusion that occurs when shipments
marked and placarded for domestic
transportation are transported in
international commerce; and (3)
expanding current HMR exceptions for
combustible liquids to accommodate
unique operational requirements. These
issues are discussed in more detail
below.
A. International Harmonization
Because there is no provision in the
UN Recommendations, the International
Civil Aviation Organization’s (ICAO)
Technical Instructions for the Safe
Transport of Dangerous Goods by
Aircraft, or the International Maritime
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Dangerous Goods (IMDG) Code for
flammable liquids to be reclassed as
combustible liquids and, indeed, no
international regulation of liquids with
a flash point over 60 °C (140 °F), we
recognize that the HMR provisions for
the transportation of combustible
liquids may potentially be confusing to
both domestic and international
shippers and carriers of flammable and
combustible liquid shipments. We also
recognize this lack of clarity may
present a tangible safety concern, such
as the mishandling or misidentification
of these shipments in transportation, or
the transportation of undeclared
shipments. Further, in addition to our
primary focus on the safe transportation
of hazardous materials, one of our
associated goals is to facilitate
international commerce through
harmonization with international
standards, to the extent that
harmonization does not compromise our
safety objectives. Therefore, we are
considering a proposal to eliminate the
current domestic exception that allows
the reclassification of high flash point
flammable liquids (i.e., those with a
flash point at or above 38 °C (100 °F))
as combustible liquids. This potential
revision would establish a uniform
definition for a flammable liquid as a
liquid having a flash point of not more
than 60 °C (140 °F), for both domestic
and international transportation. Nonbulk shipments of these materials could
then be consistently transported as
flammable liquids in the United States
and abroad, thereby reducing the
possibility for the frustration or unsafe
handling of shipments whether
transported within or outside the United
States and the problem of differing
marking, labeling and placarding
requirements for domestic and
international shipments.
However, to the extent there is
justification for providing relief from
some, if not all, provisions of the HMR
applicable to high flash point flammable
liquids, we may want to consider a
revision to the HMR that would include
the current domestic exceptions for
high-flash point flammable liquids in
non-bulk packagings in a revised set of
requirements for Class 3 materials,
thereby eliminating the necessity to
reclass these materials as combustible
liquids to utilize the exceptions. We
believe this alternative could be less
cumbersome and could facilitate a
clearer understanding of the regulations.
B. Unique Identifiers for Combustible
Liquid Shipments
In addition to considering
harmonizing the HMR definitions and
requirements for flammable liquids with
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international standards, we are
considering whether utilization of
unique identifiers for combustible
liquid shipments could help to
eliminate the confusion that currently
results when shipments of reclassed
combustible liquids or combustible
liquid shipments regulated under the
HMR but not regulated under
international standards are transported
to or from the United States.
As VOHMA notes in its petition, the
HMR currently permit reclassed
combustible liquids in bulk packagings
to be described on a shipping paper
(except the hazard class must be
modified to read ‘‘Combustible liquid’’)
and marked and placarded in the same
manner as materials with flash points
under 60 °C (140 °F). Thus, a shipment
of paint reclassed as a combustible
liquid would be described on a shipping
paper as ‘‘UN1263, Paint, Combustible
Liquid, III’’ and placarded with a Class
3 placard (without text) displaying the
UN identification number ‘‘1263’’. Even
though these shipments are not
regulated for international
transportation, the shipping paper
entries and placards suggest that this is
a fully regulated shipment. As VOHMA
suggests, we could require shippers who
reclass flammable liquids as
combustible liquids to utilize the
domestic identification number
NA1993, the proper shipping name
‘‘Combustible liquid, n.o.s.,’’ followed by
the technical name for the material, as
listed in the § 172.101 HMT, in
parentheses (for example, ‘‘NA1993,
Combustible liquid, n.o.s. (paint), III).
Bulk packagings containing reclassed
combustible liquids would be marked
COMBUSTIBLE LIQUID and placarded
with the COMBUSTIBLE placard and
the domestic identification number
NA1993.
For international shipments of
materials regulated as combustible
liquids under the HMR but not
regulated as hazardous materials under
international regulations, we could
develop a hazard communication
scheme that would clearly identify these
shipments when transported in the
United States, but that would not be
confusing to foreign officials and
transport personnel when transported in
international commerce. For example,
we could except such shipments from
placarding requirements and instead
require bulk packages containing
combustible liquids to be marked
COMBUSTIBLE LIQUID and NA1993
(the domestic identification number).
These identifiers are not recognized
internationally and so may be less likely
to cause confusion or shipment delays
overseas. Alternatively, we could adopt
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DGAC’s suggestion and provide an
exception from marking and placarding
requirements for high flash point
combustible liquids.
C. Expanded Exceptions for Domestic
Transportation
As the petition from the U. S. Custom
Harvesters suggests, there are situations
where current HMR requirements for
the transportation of combustible
liquids create an operational burden for
those who use combustible liquids in
agricultural and similar operations.
Moreover, the HMR exception from
regulation for combustible liquids in
non-bulk packagings may lead shippers
and users of combustible liquids to use
less efficient transportation methods—
such as utilizing several non-bulk
packagings rather than a single bulk
packaging or making multiple trips
using non-bulk packagings—to avoid
the regulatory costs associated with
fully regulated bulk shipments. Less
efficient transport methods may also be
less safe transport methods if they
increase the number of trips necessary
to deliver the materials and the number
of times the material must be handled
before it is delivered to its destination.
We are considering expanding current
exceptions applicable to the
transportation of combustible liquids to
accommodate unique operational
requirements or needs. For example, as
the U. S. Custom Harvesters petition
suggests, we are considering whether to
expand current exceptions applicable to
non-bulk shipments of combustible
liquids to shipments of less than a
threshold amount, such as 3,785 L
(1,000 gallons). Alternatively, we may
wish to consider expanding current
exceptions for hazardous materials that
are transported in support of
agricultural operations as specified in
§ 173.5, to include activities such as the
harvesting operations described in the
U. S. Custom Harvesters petition. For
liquids, the maximum quantity
authorized in § 173.5(b) is currently
1,900 L (502 gallons). Or we may wish
to consider expanding the current
materials of trade (MOTs) exceptions in
§ 173.6 to incorporate an exception for
combustible liquids transported in bulk
up to a maximum quantity, such as
1,500 L (400 gallons) as currently
authorized for certain Class 9 mixtures
or 3,785 L (1000 gallons) as requested by
the U.S. Custom Harvesters, in support
of refueling operations or as a general
exception for all combustible liquids.
D. Combustible Liquids in Non-Bulk
Packaging
Currently, § 173.150(f)(2) specifies
that the requirements of the HMR do not
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apply to a material classed as a
combustible liquid in a non-bulk
packaging unless the combustible liquid
is a hazardous substance, a hazardous
waste, or a marine pollutant. Simply
put, under these specific conditions, a
combustible liquid in a non-bulk
packaging is not subject to the HMR.
Section 173.140 of the HMR defines a
Class 9 miscellaneous hazardous
material as a material which presents a
hazard during transportation but which
does not meet the definition of any
other hazard class. Class 9 materials
include any material which has an
anesthetic, noxious or other similar
property which could cause extreme
annoyance or discomfort to a flight crew
member so as to prevent the correct
performance of assigned duties. It also
includes any material that meets the
definition in § 171.8 of the HMR for an
elevated temperature material, a
hazardous substance, a hazardous
waste, or a marine pollutant.
Applied together, these two sections
of the HMR indicate that a flammable
liquid in a non-bulk packaging and
reclassed as a combustible liquid, is not
subject to the HMR, but could,
nonetheless, be regulated under the
HMR when it meets the criteria for Class
9 material, i.e., a marine pollutant. To
illustrate, a material that is a marine
pollutant, does not meet any other
hazard class definition, and has a
flashpoint between 140 °F and 200 °F,
is classed as a Class 9 material under the
IMDG Code and may be transported
under the provision of §§ 171.22 and
171.23 (formerly § 171.12) as a Class 9
material. However, this same material
could be classed as a combustible liquid
under the HMR. Likewise, a material
that is an excepted package for limited
quantities for Class 7 (radioactive
materials) could be transported as a
combustible liquid because of similar
language under the exception criteria for
Class 7 (radioactive materials) found in
§§ 173.421 and 173.422.
We believe there are instances when
a shipment transported both
domestically and internationally under
these scenarios could cause confusion
or undue hardship, may frustrate
shipments, or could create an
unnecessary risk along the
transportation cycle. As previously
noted, one of our objectives in
reviewing the HMR is to increase
international harmonization without
sacrificing our safety goals. We believe
an alternative may exist to maintain an
acceptable level of safety in the
transportation of hazardous substances
and hazardous wastes as Class 9
materials, without their inclusion under
the current combustible liquids
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definition or Class 7 (radioactive
materials) exceptions. Therefore, we are
considering a proposal to remove the
phrase ‘‘which does not meet the
definition of any other hazard class’’
from the definitions of combustible
liquids and Class 9 materials. In
addition, we are considering listing
‘‘stand-alone’’ restrictions for each of
these materials, and would rely on the
Precedence of Hazard Table under
§ 173.2a for the proper classification of
materials having more than one hazard.
Because the section in the HMR
regarding excepted packages for limited
quantities of Class 7 (radioactive
materials) also contains similar wording
to the two classes noted above, we are
also considering a revision to remove
the phrase ‘‘meet the definition of a
hazardous substance or hazardous
waste’’ from § 173.422 and § 173.424.
These revisions may more clearly
indicate that if a shipment of a material
is a Class 9 or Class 7 material in a nonbulk packaging, it would be transported
as a Class 9 or Class 7 material,
respectively, and not a combustible
liquid. We believe such revisions could
reduce undue burden on the regulated
community, mitigate the potential for
the inaccurate or contradictory
classification of Class 7 (radioactive
materials), Class 9, and combustible
liquid materials, and increase the level
of safety during the transportation of
these materials.
V. Questions
PHMSA invites commenters to submit
comments based on the above
discussion and the following questions:
1. Should the HMR continue to apply
to materials with a flashpoint above 60°
C (140° F) and below 93° C (200° F)?
What benefits would result from deregulation of combustible liquids? What
are the safety implications of such deregulation? How would such deregulation affect emergency response?
2. Should the HMR continue to permit
Class 3 materials with flashpoints
between 38° C (100° F) and 60° C (140°
F) to be reclassed and transported as
combustible liquids? What are the
benefits of eliminating this
reclassification exception? Would there
be costs associated with eliminating this
reclassification exception? What are the
safety implications of eliminating the
reclassification exception? How would
elimination of the reclassification
exception affect emergency response?
3. Should the HMR provide expanded
exceptions for the transportation of
combustible liquids? For example,
should the HMR except combustible
liquids below a certain threshold (e.g.,
not more than 1,893 L (500 gallons),
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3000 L (793 gallons), 3,785 L (1,000
gallons), or 13,249 L (3,500 gallons)
from packaging, hazard communication,
or other requirements? What are the
potential impacts on hazard
communication and emergency
response notification of such changes?
4. Should the HMR include expanded
exceptions for farm operations or
agribusinesses? Should the HMR
include expanded materials of trade
exceptions for persons who transport
combustible liquids? What are the
potential impacts on hazard
communication and emergency
response notification of such changes?
Are there additional exceptions that
should be considered?
5. Should the HMR continue to permit
combustible liquids to be described
using shipping names and identification
numbers applicable to Class 3 materials?
Should PHMSA adopt a requirement for
all combustible liquids to be described
as ‘‘Combustible liquid, n.o.s.’’? For
example, for hazardous material
shipping names currently in the
§ 172.101 HMT, such as Paint, Diesel
fuel, Fuel oil, Kerosene, Turpentine,
Methallyl alcohol, etc. What safety
benefits would result from the use of
shipping descriptions unique to
combustible liquid materials? How
would such a change affect emergency
response?
6. Should the HMR provide for use of
a unique combustible liquid marking
(e.g., the words ‘‘COMBUSTIBLE’’ or
‘‘COMBUSTIBLE LIQUID’’ in red letters
on a white background) in place of
COMBUSTIBLE placards and other
hazard communication for bulk
shipments of combustible liquids?
Should the HMR provide for use of the
domestic identification number,
NA1993, on bulk packages utilizing a
combustible liquid marking? What are
the potential impacts on hazard
communication and emergency
response notification of such a change?
Are there other practical alternatives to
use of COMBUSTIBLE placards for bulk
shipments?
VI. Additional Issues
PHMSA will base any future proposal
for changes on the suggestions and
comments provided by interested
parties and our own initiatives.
Additionally, any proposals would
include the analyses required under the
following statutes and executive orders
in the event we determine that
rulemaking is appropriate:
A. Executive Order 12866 and DOT
Regulatory Policies and Procedures
Executive Order (E.O.) 12866 requires
agencies to regulate in the ‘‘most cost-
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effective manner,’’ to make a ‘‘reasoned
determination that the benefits of the
intended regulation justify its costs,’’
and to develop regulations that ‘‘impose
the least burden on society.’’ We
therefore request comments, including
specific data if possible, concerning the
costs and benefits that may be
associated with revisions to the HMR
based on the issues presented in this
notice. A rule that is considered
significant under E.O. 12866 must be
reviewed and cleared by the Office of
Management and Budget before it can be
issued.
B. Executive Order 13132
E.O. 13132 requires agencies to assure
meaningful and timely input by state
and local officials in the development of
regulatory policies that may have a
substantial, direct effect on the states,
on the relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government. We invite state
and local governments with an interest
in this rulemaking to comment on any
effect that revisions to the HMR relative
to the transportation of combustible
liquids may cause.
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C. Executive Order 13175
E.O. 13175 requires agencies to assure
meaningful and timely input from
Indian tribal government representatives
in the development of rules that
‘‘significantly or uniquely affect’’ Indian
communities and that impose
‘‘substantial and direct compliance
costs’’ on such communities. We invite
Indian tribal governments to provide
comments if they believe there will be
an impact.
D. Regulatory Flexibility Act, Executive
Order 13272, and DOT Policies and
Procedures
Under the Regulatory Flexibility Act
of 1980 (5 U.S.C. 601 et seq.), we must
consider whether a proposed rule would
have a significant economic impact on
a substantial number of small entities.
‘‘Small entities’’ include small
businesses, not-for-profit organizations
that are independently owned and
operated and are not dominant in their
fields, and governmental jurisdictions
with populations under 50,000. If you
believe that revisions to the HMR
relative to the transportation of
combustible liquids would have a
significant economic impact on small
entities, please provide information on
such impacts.
Any future proposed rule would be
developed in accordance with Executive
Order 13272 (‘‘Proper Consideration of
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Small Entities in Agency Rulemaking’’)
and DOT’s procedures and policies to
promote compliance with the
Regulatory Flexibility Act to ensure that
potential impacts on small entities of a
regulatory action are properly
considered.
E. Paperwork Reduction Act
Section 1320.8(d), Title 5, Code of
Federal Regulations requires that
PHMSA provide interested members of
the public and affected agencies an
opportunity to comment on information
collection and recordkeeping requests. It
is possible that new or revised
information collection requirements
could occur as a result of any future
rulemaking action.
F. Environmental Assessment
The National Environmental Policy
Act, 42 U.S.C. 4321–4375, requires
Federal agencies to analyze proposed
actions to determine whether the action
will have a significant impact on the
human environment. The Counsel on
Environmental Quality (CEQ)
regulations order federal agencies to
conduct an environmental review
considering (1) The need for the
proposed action, (2) alternatives to the
proposed action, (3) probable
environmental impacts of the proposed
action and alternatives, and (4) the
agencies and persons consulted during
the consideration process. 40 CFR
1508.9(b). PHMSA welcomes any data
or information related to environmental
impacts that may result from a future
rulemaking addressing the
transportation of combustible liquids.
G. Privacy Act
Anyone is able to search the
electronic form of any written
communications and comments
received into any of our dockets by the
name of the individual submitting the
document (or signing the document, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (65 FR
19477) or you may visit https://
www.dot.gov/privacy.html.
H. International Trade Analysis
The Trade Agreements Act of 1979
(Pub. L. 96–39), as amended by the
Uruguay Round Agreements Act (Pub.
L. 103–465), prohibits Federal agencies
from establishing any standards or
engaging in related activities that create
unnecessary obstacles to the foreign
commerce of the United States. For
purposes of these requirements, Federal
agencies may participate in the
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establishment of international
standards, so long as the standards have
a legitimate domestic objective, such as
providing for safety, and do not operate
to exclude imports that meet this
objective. The statute also requires
consideration of international standards
and, where appropriate, that they be the
basis for U.S. standards. PHMSA
participates in the establishment of
international standards in order to
protect the safety of the American
public, and we would assess the effects
of any rule to ensure that it does not
exclude imports that meet this objective.
Accordingly, any proposals would be
consistent with PHMSA’s obligations
under the Trade Agreement Act, as
amended.
I. Statutory/Legal Authority for this
Rulemaking
1. 49 U.S.C. 5103(b) authorizes the
Secretary of Transportation to prescribe
regulations for the safe transportation,
including security, of hazardous
materials in intrastate, interstate, and
foreign commerce.
2. 49 U.S.C. 5120(b) authorizes the
Secretary of Transportation to ensure
that, to the extent practicable,
regulations governing the transportation
of hazardous materials in commerce are
consistent with standards adopted by
international authorities. This notice
considers potential amendments to the
HMR that would maintain alignment
with international standards by
incorporating various amendments. The
continually increasing amount of
hazardous materials transported in
international commerce warrants the
harmonization of domestic and
international requirements to the
greatest extent * * * The majority of
amendments in any harmonization rule
should result in cost savings and ease
the regulatory compliance burden for
shippers engaged in domestic and
international commerce, including
trans-border shipments within North
America.
J. Regulation Identifier Number (RIN)
A regulation identifier number (RIN)
is assigned to each regulatory action
listed in the Unified Agenda of Federal
Regulations. The Regulatory Information
Service Center publishes the Unified
Agenda in April and October of each
year. The RIN contained in the heading
of this document can be used to crossreference this action with the Unified
Agenda.
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05APP1
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Proposed Rules
Issued in Washington, DC, under authority
delegated in 49 CFR part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous
Materials Safety.
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]]>Agencies
[Federal Register Volume 75, Number 64 (Monday, April 5, 2010)]
[Proposed Rules]
[Pages 17111-17119]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-7544]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 172, 173, and 176
[Docket No. PHMSA-2009-0241 (HM-242)
RIN 2137-AE52
Hazardous Materials Regulations: Combustible Liquids
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Advance notice of proposed rulemaking (ANPRM).
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[[Page 17112]]
SUMMARY: PHMSA is considering amendments to the Hazardous Materials
Regulations (HMR) as they apply to the transportation of combustible
liquids. Specifically, we are considering whether to harmonize the
domestic regulations applicable to the transportation of combustible
liquids with international transportation standards. In addition, we
are examining ways to revise, clarify, or relax certain regulatory
requirements to facilitate the transportation of these materials while
maintaining an adequate level of safety. The intent of this ANPRM is to
invite public comments on how to accomplish these goals, provide an
opportunity for comment on amendments PHMSA is considering, and present
a forum for the public to offer additional recommendations for the safe
transportation of combustible liquids.
DATES: Comments must be received by July 6, 2010. To the extent
possible, we will consider late-filed comments as we consider the next
action. You may submit comments by any of the following methods:
Web Site: https://dms/dot/gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
Fax: 1-202-493-2251.
Mail: Docket Management System; U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
Hand Delivery: To the Docket Management System; U.S.
Department of Transportation, 1200 New Jersey Avenue, SE., Washington,
DC 20590-0001 between 9 a.m. and 5 p.m. Monday through Friday, except
Federal holidays.
Instructions: You must include the agency name and docket number
PHMSA-2009-0241 (HM-242) or the Regulatory Identification Number (RIN)
2137-AE52 for this notice at the beginning of your comment. Note that
all comments received will be posted without change to https://dms.dot.gov including any personal information provided. Persons
wishing to receive confirmation of receipt of their comments must
include a self-addressed stamped postcard or access our Web site at
https://dms.dot.gov.
Docket: For access to the docket to read background documents and
comments received, go to https://dms.dot.gov at any time or to U.S.
Department of Transportation, 1200 New Jersey Avenue, SE., Washington,
DC 20590-0001 between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Helen L. Engrum, Office of Hazardous
Materials Standards, telephone (202) 366-8553, Pipeline and Hazardous
Materials Safety Administration, U.S. Department of Transportation,
1200 New Jersey Avenue, SE., East Building, 2nd Floor, PHH-10,
Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Overview of the Hazardous Materials Regulations
The Hazardous Materials Regulations (HMR; 49 CFR parts 171-180)
govern the safe transportation of hazardous materials. The HMR are
designed to achieve three goals:
1. To ensure that hazardous materials are packaged and handled
safely and securely during transportation;
2. To provide effective communication to transportation workers and
emergency responders of the hazards of the materials being transported;
and
3. To minimize the consequences of an incident should one occur.
The hazardous material regulatory system is a risk management
system that is prevention-oriented and focused on identifying a safety
or security hazard and reducing the probability and quantity of a
hazardous material release. Under the HMR, hazardous materials are
categorized by analysis and experience into hazard classes and packing
groups based upon the risks they present during transportation. The HMR
specify appropriate packaging and handling requirements for hazardous
materials, and require a shipper to communicate the material's hazards
through use of shipping papers, package marking and labeling, and
vehicle placarding. The HMR require shippers to provide emergency
response information applicable to the specific hazard or hazards of
the material being transported. The HMR mandate training requirements
for persons who prepare hazardous materials for shipment or who
transport hazardous materials in commerce. Finally, the HMR include
operational requirements applicable to each mode of transportation.
PHMSA reviews the HMR on a continuing basis to determine whether
revisions or amendments are necessary to ensure a high level of safety
for the safe transportation of hazardous materials in commerce. During
our regulatory review process, we look for opportunities that may exist
to enhance safety, such as by minimizing misunderstanding of regulatory
requirements for the transportation of hazardous materials and, where
opportunities exist, to reduce the regulatory burden on industry while
maintaining a high level of safety. We believe opportunities exist to
clarify and simplify current requirements in the HMR applicable to the
transportation of combustible liquids, thereby reducing compliance
burdens on shippers and carriers while facilitating movement of these
materials in domestic and international commerce. This initiative is
based on our ongoing review process, input from the regulated
community, review of requests for letters of interpretation and
clarification concerning combustible liquids, and written and oral
questions pertaining to combustible liquids that have been presented to
PHMSA's Hazardous Materials Information Center.
II. Background of Class 3 Flammable Liquids and Combustible Liquids
On February 27, 1968, the Hazardous Materials Regulation Board--the
predecessor agency to the Research and Special Programs Administration
(RSPA) and, subsequently, the Pipeline and Hazardous Materials Safety
Administration (PHMSA)--published a notice of proposed rulemaking
(NPRM) under Docket No. HM-3 (33 FR 3382) proposing to re-define the
term ``flammable liquid,'' in order to harmonize the definition with
international standards and better address the risks such materials
present in transportation. On February 21, 1970, the Board published an
NPRM under Docket No. HM-42 (35 FR 3298) proposing to create and define
a new class of materials identified as ``combustible liquids'' to
address a lack of hazard warning communication concerning these
materials, and the hazards posed by transportation of these materials
at temperatures equal to or exceeding their flash points. Liquids in
this higher flash point range (80 [deg]F to 200 [deg]F) include
kerosene, fuel oil, turpentine and certain alcohols, all of which
present fire hazards during transportation, and are referred to
generically as ``combustible liquids.'' The 200 [deg]F upper limit is
commonly used by industry, government, and the National Fire Protection
Association (NFPA) as the regulatory limit for defining flammable/
combustible liquids.
On December 5, 1970, the Board published an NPRM under Docket No.
HM-67 (35 FR 18534) proposing to change the method of determining the
flash point of materials from the Tagliabue open-cup test method to the
Tagliabue closed-cup test method in an effort to establish a more
accurate flash point of materials.
The issues addressed in these three notices were consolidated under
Docket HM-102 and published as an NPRM on
[[Page 17113]]
June 15, 1972 (37 FR 11898). The NPRM included proposals for a new
definition for the class of materials identified as ``flammable
liquid'' and created and defined a new class of materials identified as
``combustible liquid,'' in addition to modifying the definition for
pyrophoric liquids within the flammable liquid hazard class.
On January 24, 1974, the Hazardous Materials Regulation Board
published a final rule under Docket HM-102 (39 FR 2768) that, among
other issues, (1) Specified a new definition for the class of materials
identified as ``flammable liquid;'' (2) created and defined a new class
of materials identified as ``combustible liquids;'' (3) modified the
definition for ``pyrophoric liquid'' within the flammable liquid class;
and (4) set forth the requirements for the materials that were covered
by these new definitions.
The final rule defined these hazard classes as follows:
1. A ``flammable liquid'' is any liquid having a flash point below
100 [deg]F (37.8 [deg]C) that does not meet one of the definitions
specified under then Sec. 173.300 (i.e., materials defined as
compressed gases).
2. A ``combustible liquid'' is any liquid having a flash point at
or above 100 [deg]F (37.8 [deg]C), and below 200 [deg]F (93.3 [deg]C).
3. A ``pyrophoric liquid'' is ``any liquid that ignites
spontaneously in dry or moist air at or below 130 [deg]F (54.5 [deg]C).
In following years, the agency published additional notices
proposing revisions to the provisions for flammable and combustible
materials, culminating in the publication of a final rule on December
21, 1990 under Docket HM-181 (55 FR 52402). Generally, this rule
comprehensively revised the HMR with respect to hazard communication,
classification, and packaging requirements to enhance safety through
better classification and performance-oriented, risk based packaging,
and to promote flexibility and technological innovation in packaging,
reduce the need for special permits (formerly ``exemptions''), and
facilitate international commerce. The final rule adopted international
standards (United Nations Recommendations on the Transport of Dangerous
Goods or ``UN Recommendations'') for defining flammable liquids and
retained a domestic exception for flammable liquids reclassed as
combustible liquids. The upper flash point range for flammable liquids
was subsequently extended to meet the UN standard of 60 [deg]C (140
[deg]F) for flammable liquids. The definition for combustible liquids
under the HMR was retained both as a domestic classification option for
liquids with flash points between 38 [deg]C (100 [deg]F) and 60 [deg]C
(140 [deg]F) and as a requirement for liquids with flash points between
60 [deg]C (140 [deg]F) and below 93 [deg]C (200 [deg]F). The
classification system in the UN Recommendations has no combustible
liquid category or hazard class.
Commenters to the HM-181 rulemaking asserted that the exceptions
provided in the HMR for the transportation of combustible liquids
create an unnecessary variance between domestic and international
transportation and increase the potential for non-compliance. For
instance, commenters stated the domestic exception would lead to
identical materials being classified differently, and would result in
confusion among transportation, enforcement, and emergency response
personnel. At the time, we disagreed with these commenters and stated
that although different classifications for the same materials could
occur under this exception, we anticipated little or no confusion on
the part of shippers already dealing with a dual packaging and marking
system, i.e., differing requirements for domestic and international
transportation. We also stated that the exception for combustible
liquids would not hamper enforcement or emergency response personnel
who are trained in the use of the HMR, UN identification numbers, the
identification of materials using DOT's placarding system, and DOT's
Emergency Response Guidebook.
This issue was raised again in a subsequent HM-181 final rule
published on December 20, 1991 (56 FR 66124) that responded to
petitions for reconsideration of certain aspects of the rule. Several
petitioners urged the agency to remove the combustible liquid class
definition and the reclassification option. The petitioners stated that
the domestic combustible liquid classification introduced unneeded
regulatory complexity and violated the stated aims of HM-181 to
simplify the HMR. This being both a safety and economic issue, we
disagreed with the petitioners who would eliminate the combustible
liquid class altogether, believing that the significant number of
domestically regulated materials with flash points between 38 [deg]C
(100 [deg]F) and 93 [deg]C (200 [deg]F) pose risks in transportation
that cannot be ignored.
Under HM-181, we revised the HMR to clarify that only flammable
liquids that do not meet the definition of any other hazard class may
be reclassed as combustible liquids. This revision was intended to
prevent reclassification of materials that meet the definition of a
hazardous substance or hazardous waste and, thus, meet the definition
for a Class 9 (Miscellaneous) material. We also narrowed the provisions
to generally prohibit reclassification for materials offered for air or
vessel transportation, with certain exceptions. The phrase ``except
Class 9'' was subsequently removed from Sec. Sec. 173.120(b)(1) and
(b)(2), and 173.150 under the Docket HM-181 Correction/Response final
rule published on October 1, 1992 (57 FR 45446), in which the Class 9
definition was clarified to state that a material which meets the
definition of another hazard class, but also falls within one of the
Class 9 criteria (e.g., hazardous substance) does not meet the
definition of Class 9.
Section 173.120 of the HMR currently defines a ``flammable liquid''
as a liquid having a flash point of not more than 60 [deg]C (140
[deg]F), or any material in a liquid phase with a flash point at or
above 38 [deg]C (100 [deg]F) that is intentionally heated and offered
for transportation or transported at or above its flash point in a bulk
packaging, with some exceptions for liquids that also meet the
definition for Division 2.1 (Flammable gas), 2.2 (Non-flammable gas),
or 2.3 (Poisonous gas) materials, as defined in Sec. 173.115; mixtures
that are not offered for transportation at or above their flash points;
liquids with a flash point greater than 35 [deg]C (95 [deg]F) that do
not sustain combustion; liquids with a flash point greater than 35
[deg]C (95 [deg]F) and with a fire point (the temperature at which the
liquid will continue to burn after ignition) greater than 100 [deg]C
(212 [deg]F); and liquids with a flash point greater than 35 [deg]C (95
[deg]F) which is in a water-miscible solution with a water content of
more than 90 percent by mass.
In addition, Sec. 173.120 of the HMR defines a ``combustible
liquid'' as any liquid that does not meet the definition of any other
hazard class specified in this subchapter and has a flash point above
60 [deg]C (140 [deg]F) and below 93 [deg]C (200 [deg]F). Further, in
domestic transportation, a flammable liquid with a flash point at or
above 38 [deg]C (100 [deg]F) that does not meet the definition of any
other hazard class may be reclassed as a combustible liquid. This
provision does not apply to transportation by vessel or aircraft,
except where other means of transportation is impracticable. An
elevated temperature material that meets the definition of a Class 3
(Flammable liquid) material because it is intentionally heated and
offered for transportation or transported at or above its flash point
may not be reclassed as a combustible liquid.
[[Page 17114]]
A flash point is 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. Materials
with higher flashpoints are thus less likely to ignite than materials
with lower flash points. Because of their higher flash points,
combustible liquids do not pose as great a risk in transportation as
flammable liquids. Therefore, the regulatory requirements applicable to
their transportation are less stringent than those for flammable
liquids. For example, combustible liquids transported in non-bulk
packagings are excepted from all HMR requirements, unless the
combustible liquid also meets the definition for a hazardous substance,
hazardous waste, or marine pollutant. In addition, combustible liquids
may be transported in non-specification bulk packagings. A combustible
liquid that is not a hazardous substance, a hazardous waste, or a
marine pollutant is not subject to HMR requirements if it is a mixture
of one or more components that has a flash point at or above 93 [deg]C
(200 [deg]F), comprises at least 99 percent of the volume of the
mixture, and is not transported as a liquid at a temperature at or
above its flash point. Also, a combustible liquid that does not sustain
combustion is not subject to the requirements of the HMR as a
combustible liquid. Either the test method specified in ASTM D 4206 or
the procedure in appendix H of part 173 may be used to determine if a
material sustains combustion when heated under test conditions and
exposed to an external source of flame.
The HMR provide additional exceptions for flammable (Class 3) and
combustible liquids under Sec. 173.150. Limited quantities of
flammable and combustible liquids are excepted from labeling
requirements, unless the material also meets the definition of Division
6.1 (Poison) or is offered for transportation or transported by
aircraft, and the specification packaging requirements of the HMR when
packaged in combination packagings, each not exceeding 30 kg (66
pounds) gross weight, in accordance with this section. In addition,
shipments of limited quantities are not subject to placarding. A
limited quantity of a flammable or combustible liquid may be reclassed
and renamed as a ``consumer commodity'' as defined in Sec. 171.8 of
the HMR. An aqueous solution containing 24 percent or less alcohol by
volume and no other hazardous material may be reclassed as a
combustible liquid, and is not subject to the HMR requirements if it
contains no less than 50 percent water.
III. Petitions for Rulemaking
In this ANPRM, PHMSA is soliciting comments on issues related to
the transportation of combustible liquids in both domestic and
international commerce. We have received two petitions for rulemaking
suggesting that domestic requirements for the transportation of
combustible liquids should be harmonized with international standards.
In addition, we have received a petition for rulemaking suggesting that
the HMR should include more expansive domestic exceptions for shipments
of combustible liquids. The petitions are described below.
A. VOHMA Petition for Rulemaking
The International Vessel Operators Hazardous Materials Association
(VOHMA) submitted a petition for rulemaking [P-1498; PHMSA-2007-28238]
concerning differing domestic and international requirements for the
transportation of combustible liquids. As indicated above, the UN
Recommendations do not include a definition or classification for
combustible liquids. The UN Recommendations are not regulations, but
rather are recommended standards issued by the UN Sub-Committee of
Experts on the Transport of Dangerous Goods. These recommendations are
amended and updated biennially and serve as the basis for many
national, regional and international modal regulations, including the
International Civil Aviation Organization's Technical Instructions for
the Safe Transport of Dangerous Goods by Air (ICAO Technical
Instructions) and the International Maritime Dangerous Goods (IMDG)
Code.
In the UN Recommendations on the Transport of Dangerous Goods
(Model Regulations), 15th Revised Edition, Chapter 2.3; Section
2.3.1.2, ``Flammable liquids'' are defined as liquids, or mixtures of
liquids, or liquids containing solids in solution or suspension (for
example, paints, varnishes, lacquers, etc., but not including
substances otherwise classified on account of their dangerous
characteristics) which give off a flammable vapor at temperatures of
not more than 60 [deg]C (140 [deg]F), closed-cup test, or not more than
65.6 [deg]C (150.08 [deg]F), open-cup test, normally referred to as the
flash point. This class also includes:
a. Liquids offered for transport at temperatures at or above their
flash point; and
b. Substances that are transported or offered for transport at
elevated temperatures in a liquid state and which give off a flammable
vapor at a temperature at or below the maximum transport temperature.
Note: Since the results of open-cup tests and of closed-cup
tests are not strictly comparable and even individual results by the
same test are often variable, regulations varying from the above
figures to make allowance for such differences would be within the
spirit of this definition.
Liquid desensitized explosives (see 2.3.1.4) are also included in
the Class 3 hazard class. Liquid desensitized explosives are explosive
substances which are dissolved or suspended in water or other liquid
substances, to form a homogeneous liquid mixture to suppress their
explosive properties (2.1.3.6.3). Entries in the Dangerous Goods List
for liquid desensitized explosives are: UN1204, UN 2059 UN 3064, UN
3343, UN 3357 and UN 3379.
Liquids meeting the definition in Chapter 2.3; Section 2.3.1.3 with
a flash point of more than 35 [deg]C (95 [deg]F) which do not sustain
combustion are not considered hazardous materials for purposes of the
UN Recommendations, the ICAO Technical Instructions, or the IMDG Code.
Liquids are considered to be unable to sustain combustion for the
purposes of these Regulations (i.e., they do not sustain combustion
under defined test conditions) if:
a. They have passed a suitable combustibility test (see SUSTAINED
COMBUSTIBILITY TEST prescribed in the Manual of Tests and Criteria,
Part III, sub-section 32.5.2;
b. Their fire point according to ISO 2592:2000 is greater than 100
[deg]C
(212 [deg]F); or
c. They are water miscible solutions with a water content of more
than 90% by mass.
In its petition, VOHMA notes that the differing domestic and
international requirements for combustible liquids has resulted in
conflicting and confusing hazard communication requirements with the
result that international shipments may be frustrated as foreign
authorities attempt to reconcile HMR hazard communication schemes with
international regulations. For example, VOHMA notes that many paints,
inks, adhesives, solvents, and petroleum products have flash points
between 60 [deg]C (140 [deg]F) and 93 [deg]C (200 [deg]F) and are
offered for transportation as combustible liquids within the United
States. However, the HMR permit such shipments to be described on a
shipping paper and to display markings, labels, and placards in the
same manner as
[[Page 17115]]
shipments of flammable liquids with flash points of less than 60 [deg]C
(140 [deg]F). When these shipments are destined for export to a
jurisdiction outside the United States, foreign inspectors, stowage
planners, interlining carriers, and intermodal feeder companies may
become confused by the display of a UN identification number of a
material that is not regulated in international commerce and thus may
delay forwarding the shipments until the confusion is resolved. We
agree with VOHMA that these frustrated shipments impede commerce and
may also result in additional risks in the ports and terminals where
they are held.
In its petition, VOHMA also expresses concern that HMR provisions
that permit reclassification of flammable liquids with a flash point at
or above 38 [deg]C (100 [deg]F) as combustible liquids could result in
the movement of undeclared shipments in international commerce.
Reclassed combustible liquids are excepted from the HMR when
transported in non-bulk packagings such as one-gallon cans, five-gallon
jerricans, or 55-gallon drums. However, materials with flash points
between 38 [deg]C (100 [deg]F) and 60 [deg]C (140 [deg]F) are fully
regulated as Class 3 materials in international commerce. We agree with
VOHMA that unmarked and unlabeled packages of reclassed combustible
liquids may find their way into international distribution with the
result that the shipments are not declared as dangerous goods and will
not be appropriately handled and stowed in international
transportation.
To address these problems, VOHMA asks PHMSA to use the
``Combustible liquid, n.o.s.'' proper shipping name entry in the
Hazardous Materials Table (HMT), with an associated technical name in
parentheses, when the material is reclassified in accordance with Sec.
173.150(f) and is intended for rail or highway transportation only, or
has a flash point above 60 [deg]C (140 [deg]F) but below 93 [deg]C (200
[deg]F). This would serve to distinguish shipments regulated only in
the United States from shipments regulated in international commerce.
B. DGAC Petition for Rulemaking
The Dangerous Goods Advisory Council (DGAC) also submitted a
petition for rulemaking [P-1531; PHMSA-2008-0303] for amendment of the
requirements for combustible liquids in bulk packagings in order to
reduce port congestion and improve transportation efficiency in port
areas. A bulk packaging is defined in Sec. 171.8 as a packaging, other
than a vessel or barge, including a transport vehicle or freight
container, in which hazardous materials are loaded with no intermediate
form of containment and that has: (1) A maximum capacity greater than
450 L (119 gallons) as a receptacle for a liquid; (2) a maximum net
mass greater than 400 kg (882 pounds) and a maximum capacity greater
than 450 L (119 gallons) as a receptacle for a solid; or (3) a water
capacity greater than 454 kg (1000 pounds) as a receptacle for a gas as
defined in Sec. 173.115 of the HMR. The DGAC petition highlights many
of the issues identified by VOHMA in its petition, with a particular
focus on problems encountered in international transportation for
shipments of materials DGAC terms ``high flash point combustible
liquids''--that is, combustible liquids with flashpoints between 60
[deg]C (140 [deg]F) and 93 [deg]C (200 [deg]F). DGAC suggests that the
regulatory differences between the HMR and international regulatory
requirements for these combustible liquids are disruptive to the flow
of goods in port areas and contribute to port congestion. According to
DGAC, imported bulk shipments of high flash point combustible liquids
arriving in U.S. ports must be marked and placarded in accordance with
HMR requirements. Similarly, the marks and placards that are applied to
bulk shipments of such combustible liquids for U.S. transportation must
be removed in the port prior to export. DGAC estimates that export
shipments are delayed for an average of three days awaiting removal of
HMR-required marks and placards and import shipments are delayed an
average of five days awaiting application of HMR-required marks and
placards. To alleviate this problem, DGAC requests that PHMSA except
high flash point combustible liquids from all HMR requirements when
transported in specification packages of less than 3000 liters
capacity, (the upper capacity limit for intermediate bulk containers
(IBCs), or when in an ISO (UN) portable tank in international commerce.
C. U.S. Custom Harvesters Petition for Rulemaking
U. S. Custom Harvesters, Inc. (Custom Harvesters) also submitted a
petition for rulemaking [P-1536; PHMSA-2009-0099] requesting
modification of current requirements applicable to combustible liquids.
According to the petition, a custom harvester has invested in the
equipment (which includes grain harvesting combines, silage harvesters,
grain trucks, tractors and grain carts) necessary to harvest wheat,
corn, corn silage and cotton. The custom harvester industry replaces
the farmer in the field during harvest.
Custom Harvesters is concerned that current requirements applicable
to bulk shipments of combustible liquids inhibit the industry's ability
to hire seasonal workers to transport the diesel fuel necessary to re-
fuel harvesting equipment in the fields. Because the diesel fuel is
typically transported from a local service station or farm cooperative
in tanks with capacities greater than 450 L (119 gallons) (i.e., in
bulk quantities), the commercial motor vehicles transporting the diesel
fuel must be operated by a driver with a commercial driver license with
a hazmat endorsement. (In accordance with 49 CFR part 383, a hazmat
endorsement is required for drivers of commercial motor vehicles that
transport placarded amounts of hazardous materials. Bulk shipments of
combustible liquids must be placarded.) Custom Harvesters asks us to
consider an exception from placarding for combustible liquids
transported in quantities that do not exceed 3785 L (1,000 gallons) in
a single packaging.
Approximately 100 persons submitted comments in support of the U.S.
Custom Harvesters' petition. The commenters stress the difficulty of
hiring seasonal, foreign workers who may not be able to obtain a CDL
with a hazmat endorsement in a timely fashion.
IV. Comments Requested
Based on the petitions for rulemaking described in the previous
section of this preamble and our own review of domestic and
international regulations applicable to the transportation of
combustible liquids, we have identified a number of issues that we may
wish to address through rulemaking, including: (1) Harmonizing the HMR
definitions and requirements for combustible liquids with international
standards; (2) modifying HMR requirements for marking and placarding
shipments of combustible liquids to eliminate confusion that occurs
when shipments marked and placarded for domestic transportation are
transported in international commerce; and (3) expanding current HMR
exceptions for combustible liquids to accommodate unique operational
requirements. These issues are discussed in more detail below.
A. International Harmonization
Because there is no provision in the UN Recommendations, the
International Civil Aviation Organization's (ICAO) Technical
Instructions for the Safe Transport of Dangerous Goods by Aircraft, or
the International Maritime
[[Page 17116]]
Dangerous Goods (IMDG) Code for flammable liquids to be reclassed as
combustible liquids and, indeed, no international regulation of liquids
with a flash point over 60 [deg]C (140 [deg]F), we recognize that the
HMR provisions for the transportation of combustible liquids may
potentially be confusing to both domestic and international shippers
and carriers of flammable and combustible liquid shipments. We also
recognize this lack of clarity may present a tangible safety concern,
such as the mishandling or misidentification of these shipments in
transportation, or the transportation of undeclared shipments. Further,
in addition to our primary focus on the safe transportation of
hazardous materials, one of our associated goals is to facilitate
international commerce through harmonization with international
standards, to the extent that harmonization does not compromise our
safety objectives. Therefore, we are considering a proposal to
eliminate the current domestic exception that allows the
reclassification of high flash point flammable liquids (i.e., those
with a flash point at or above 38 [deg]C (100 [deg]F)) as combustible
liquids. This potential revision would establish a uniform definition
for a flammable liquid as a liquid having a flash point of not more
than 60 [deg]C (140 [deg]F), for both domestic and international
transportation. Non-bulk shipments of these materials could then be
consistently transported as flammable liquids in the United States and
abroad, thereby reducing the possibility for the frustration or unsafe
handling of shipments whether transported within or outside the United
States and the problem of differing marking, labeling and placarding
requirements for domestic and international shipments.
However, to the extent there is justification for providing relief
from some, if not all, provisions of the HMR applicable to high flash
point flammable liquids, we may want to consider a revision to the HMR
that would include the current domestic exceptions for high-flash point
flammable liquids in non-bulk packagings in a revised set of
requirements for Class 3 materials, thereby eliminating the necessity
to reclass these materials as combustible liquids to utilize the
exceptions. We believe this alternative could be less cumbersome and
could facilitate a clearer understanding of the regulations.
B. Unique Identifiers for Combustible Liquid Shipments
In addition to considering harmonizing the HMR definitions and
requirements for flammable liquids with international standards, we are
considering whether utilization of unique identifiers for combustible
liquid shipments could help to eliminate the confusion that currently
results when shipments of reclassed combustible liquids or combustible
liquid shipments regulated under the HMR but not regulated under
international standards are transported to or from the United States.
As VOHMA notes in its petition, the HMR currently permit reclassed
combustible liquids in bulk packagings to be described on a shipping
paper (except the hazard class must be modified to read ``Combustible
liquid'') and marked and placarded in the same manner as materials with
flash points under 60 [deg]C (140 [deg]F). Thus, a shipment of paint
reclassed as a combustible liquid would be described on a shipping
paper as ``UN1263, Paint, Combustible Liquid, III'' and placarded with
a Class 3 placard (without text) displaying the UN identification
number ``1263''. Even though these shipments are not regulated for
international transportation, the shipping paper entries and placards
suggest that this is a fully regulated shipment. As VOHMA suggests, we
could require shippers who reclass flammable liquids as combustible
liquids to utilize the domestic identification number NA1993, the
proper shipping name ``Combustible liquid, n.o.s.,'' followed by the
technical name for the material, as listed in the Sec. 172.101 HMT, in
parentheses (for example, ``NA1993, Combustible liquid, n.o.s. (paint),
III). Bulk packagings containing reclassed combustible liquids would be
marked COMBUSTIBLE LIQUID and placarded with the COMBUSTIBLE placard
and the domestic identification number NA1993.
For international shipments of materials regulated as combustible
liquids under the HMR but not regulated as hazardous materials under
international regulations, we could develop a hazard communication
scheme that would clearly identify these shipments when transported in
the United States, but that would not be confusing to foreign officials
and transport personnel when transported in international commerce. For
example, we could except such shipments from placarding requirements
and instead require bulk packages containing combustible liquids to be
marked COMBUSTIBLE LIQUID and NA1993 (the domestic identification
number). These identifiers are not recognized internationally and so
may be less likely to cause confusion or shipment delays overseas.
Alternatively, we could adopt DGAC's suggestion and provide an
exception from marking and placarding requirements for high flash point
combustible liquids.
C. Expanded Exceptions for Domestic Transportation
As the petition from the U. S. Custom Harvesters suggests, there
are situations where current HMR requirements for the transportation of
combustible liquids create an operational burden for those who use
combustible liquids in agricultural and similar operations. Moreover,
the HMR exception from regulation for combustible liquids in non-bulk
packagings may lead shippers and users of combustible liquids to use
less efficient transportation methods--such as utilizing several non-
bulk packagings rather than a single bulk packaging or making multiple
trips using non-bulk packagings--to avoid the regulatory costs
associated with fully regulated bulk shipments. Less efficient
transport methods may also be less safe transport methods if they
increase the number of trips necessary to deliver the materials and the
number of times the material must be handled before it is delivered to
its destination.
We are considering expanding current exceptions applicable to the
transportation of combustible liquids to accommodate unique operational
requirements or needs. For example, as the U. S. Custom Harvesters
petition suggests, we are considering whether to expand current
exceptions applicable to non-bulk shipments of combustible liquids to
shipments of less than a threshold amount, such as 3,785 L (1,000
gallons). Alternatively, we may wish to consider expanding current
exceptions for hazardous materials that are transported in support of
agricultural operations as specified in Sec. 173.5, to include
activities such as the harvesting operations described in the U. S.
Custom Harvesters petition. For liquids, the maximum quantity
authorized in Sec. 173.5(b) is currently 1,900 L (502 gallons). Or we
may wish to consider expanding the current materials of trade (MOTs)
exceptions in Sec. 173.6 to incorporate an exception for combustible
liquids transported in bulk up to a maximum quantity, such as 1,500 L
(400 gallons) as currently authorized for certain Class 9 mixtures or
3,785 L (1000 gallons) as requested by the U.S. Custom Harvesters, in
support of refueling operations or as a general exception for all
combustible liquids.
D. Combustible Liquids in Non-Bulk Packaging
Currently, Sec. 173.150(f)(2) specifies that the requirements of
the HMR do not
[[Page 17117]]
apply to a material classed as a combustible liquid in a non-bulk
packaging unless the combustible liquid is a hazardous substance, a
hazardous waste, or a marine pollutant. Simply put, under these
specific conditions, a combustible liquid in a non-bulk packaging is
not subject to the HMR. Section 173.140 of the HMR defines a Class 9
miscellaneous hazardous material as a material which presents a hazard
during transportation but which does not meet the definition of any
other hazard class. Class 9 materials include any material which has an
anesthetic, noxious or other similar property which could cause extreme
annoyance or discomfort to a flight crew member so as to prevent the
correct performance of assigned duties. It also includes any material
that meets the definition in Sec. 171.8 of the HMR for an elevated
temperature material, a hazardous substance, a hazardous waste, or a
marine pollutant.
Applied together, these two sections of the HMR indicate that a
flammable liquid in a non-bulk packaging and reclassed as a combustible
liquid, is not subject to the HMR, but could, nonetheless, be regulated
under the HMR when it meets the criteria for Class 9 material, i.e., a
marine pollutant. To illustrate, a material that is a marine pollutant,
does not meet any other hazard class definition, and has a flashpoint
between 140 [deg]F and 200 [deg]F, is classed as a Class 9 material
under the IMDG Code and may be transported under the provision of
Sec. Sec. 171.22 and 171.23 (formerly Sec. 171.12) as a Class 9
material. However, this same material could be classed as a combustible
liquid under the HMR. Likewise, a material that is an excepted package
for limited quantities for Class 7 (radioactive materials) could be
transported as a combustible liquid because of similar language under
the exception criteria for Class 7 (radioactive materials) found in
Sec. Sec. 173.421 and 173.422.
We believe there are instances when a shipment transported both
domestically and internationally under these scenarios could cause
confusion or undue hardship, may frustrate shipments, or could create
an unnecessary risk along the transportation cycle. As previously
noted, one of our objectives in reviewing the HMR is to increase
international harmonization without sacrificing our safety goals. We
believe an alternative may exist to maintain an acceptable level of
safety in the transportation of hazardous substances and hazardous
wastes as Class 9 materials, without their inclusion under the current
combustible liquids definition or Class 7 (radioactive materials)
exceptions. Therefore, we are considering a proposal to remove the
phrase ``which does not meet the definition of any other hazard class''
from the definitions of combustible liquids and Class 9 materials. In
addition, we are considering listing ``stand-alone'' restrictions for
each of these materials, and would rely on the Precedence of Hazard
Table under Sec. 173.2a for the proper classification of materials
having more than one hazard. Because the section in the HMR regarding
excepted packages for limited quantities of Class 7 (radioactive
materials) also contains similar wording to the two classes noted
above, we are also considering a revision to remove the phrase ``meet
the definition of a hazardous substance or hazardous waste'' from Sec.
173.422 and Sec. 173.424.
These revisions may more clearly indicate that if a shipment of a
material is a Class 9 or Class 7 material in a non-bulk packaging, it
would be transported as a Class 9 or Class 7 material, respectively,
and not a combustible liquid. We believe such revisions could reduce
undue burden on the regulated community, mitigate the potential for the
inaccurate or contradictory classification of Class 7 (radioactive
materials), Class 9, and combustible liquid materials, and increase the
level of safety during the transportation of these materials.
V. Questions
PHMSA invites commenters to submit comments based on the above
discussion and the following questions:
1. Should the HMR continue to apply to materials with a flashpoint
above 60[deg] C (140[deg] F) and below 93[deg] C (200[deg] F)? What
benefits would result from de-regulation of combustible liquids? What
are the safety implications of such de-regulation? How would such de-
regulation affect emergency response?
2. Should the HMR continue to permit Class 3 materials with
flashpoints between 38[deg] C (100[deg] F) and 60[deg] C (140[deg] F)
to be reclassed and transported as combustible liquids? What are the
benefits of eliminating this reclassification exception? Would there be
costs associated with eliminating this reclassification exception? What
are the safety implications of eliminating the reclassification
exception? How would elimination of the reclassification exception
affect emergency response?
3. Should the HMR provide expanded exceptions for the
transportation of combustible liquids? For example, should the HMR
except combustible liquids below a certain threshold (e.g., not more
than 1,893 L (500 gallons), 3000 L (793 gallons), 3,785 L (1,000
gallons), or 13,249 L (3,500 gallons) from packaging, hazard
communication, or other requirements? What are the potential impacts on
hazard communication and emergency response notification of such
changes?
4. Should the HMR include expanded exceptions for farm operations
or agribusinesses? Should the HMR include expanded materials of trade
exceptions for persons who transport combustible liquids? What are the
potential impacts on hazard communication and emergency response
notification of such changes? Are there additional exceptions that
should be considered?
5. Should the HMR continue to permit combustible liquids to be
described using shipping names and identification numbers applicable to
Class 3 materials? Should PHMSA adopt a requirement for all combustible
liquids to be described as ``Combustible liquid, n.o.s.''? For example,
for hazardous material shipping names currently in the Sec. 172.101
HMT, such as Paint, Diesel fuel, Fuel oil, Kerosene, Turpentine,
Methallyl alcohol, etc. What safety benefits would result from the use
of shipping descriptions unique to combustible liquid materials? How
would such a change affect emergency response?
6. Should the HMR provide for use of a unique combustible liquid
marking (e.g., the words ``COMBUSTIBLE'' or ``COMBUSTIBLE LIQUID'' in
red letters on a white background) in place of COMBUSTIBLE placards and
other hazard communication for bulk shipments of combustible liquids?
Should the HMR provide for use of the domestic identification number,
NA1993, on bulk packages utilizing a combustible liquid marking? What
are the potential impacts on hazard communication and emergency
response notification of such a change? Are there other practical
alternatives to use of COMBUSTIBLE placards for bulk shipments?
VI. Additional Issues
PHMSA will base any future proposal for changes on the suggestions
and comments provided by interested parties and our own initiatives.
Additionally, any proposals would include the analyses required under
the following statutes and executive orders in the event we determine
that rulemaking is appropriate:
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
Executive Order (E.O.) 12866 requires agencies to regulate in the
``most cost-
[[Page 17118]]
effective manner,'' to make a ``reasoned determination that the
benefits of the intended regulation justify its costs,'' and to develop
regulations that ``impose the least burden on society.'' We therefore
request comments, including specific data if possible, concerning the
costs and benefits that may be associated with revisions to the HMR
based on the issues presented in this notice. A rule that is considered
significant under E.O. 12866 must be reviewed and cleared by the Office
of Management and Budget before it can be issued.
B. Executive Order 13132
E.O. 13132 requires agencies to assure meaningful and timely input
by state and local officials in the development of regulatory policies
that may have a substantial, direct effect on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government. We invite state and local governments with an interest in
this rulemaking to comment on any effect that revisions to the HMR
relative to the transportation of combustible liquids may cause.
C. Executive Order 13175
E.O. 13175 requires agencies to assure meaningful and timely input
from Indian tribal government representatives in the development of
rules that ``significantly or uniquely affect'' Indian communities and
that impose ``substantial and direct compliance costs'' on such
communities. We invite Indian tribal governments to provide comments if
they believe there will be an impact.
D. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies
and Procedures
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.), we must consider whether a proposed rule would have a
significant economic impact on a substantial number of small entities.
``Small entities'' include small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000. If you believe that revisions to the HMR
relative to the transportation of combustible liquids would have a
significant economic impact on small entities, please provide
information on such impacts.
Any future proposed rule would be developed in accordance with
Executive Order 13272 (``Proper Consideration of Small Entities in
Agency Rulemaking'') and DOT's procedures and policies to promote
compliance with the Regulatory Flexibility Act to ensure that potential
impacts on small entities of a regulatory action are properly
considered.
E. Paperwork Reduction Act
Section 1320.8(d), Title 5, Code of Federal Regulations requires
that PHMSA provide interested members of the public and affected
agencies an opportunity to comment on information collection and
recordkeeping requests. It is possible that new or revised information
collection requirements could occur as a result of any future
rulemaking action.
F. Environmental Assessment
The National Environmental Policy Act, 42 U.S.C. 4321-4375,
requires Federal agencies to analyze proposed actions to determine
whether the action will have a significant impact on the human
environment. The Counsel on Environmental Quality (CEQ) regulations
order federal agencies to conduct an environmental review considering
(1) The need for the proposed action, (2) alternatives to the proposed
action, (3) probable environmental impacts of the proposed action and
alternatives, and (4) the agencies and persons consulted during the
consideration process. 40 CFR 1508.9(b). PHMSA welcomes any data or
information related to environmental impacts that may result from a
future rulemaking addressing the transportation of combustible liquids.
G. Privacy Act
Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477) or you
may visit https://www.dot.gov/privacy.html.
H. International Trade Analysis
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing any standards or engaging in related
activities that create unnecessary obstacles to the foreign commerce of
the United States. For purposes of these requirements, Federal agencies
may participate in the establishment of international standards, so
long as the standards have a legitimate domestic objective, such as
providing for safety, and do not operate to exclude imports that meet
this objective. The statute also requires consideration of
international standards and, where appropriate, that they be the basis
for U.S. standards. PHMSA participates in the establishment of
international standards in order to protect the safety of the American
public, and we would assess the effects of any rule to ensure that it
does not exclude imports that meet this objective. Accordingly, any
proposals would be consistent with PHMSA's obligations under the Trade
Agreement Act, as amended.
I. Statutory/Legal Authority for this Rulemaking
1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to
prescribe regulations for the safe transportation, including security,
of hazardous materials in intrastate, interstate, and foreign commerce.
2. 49 U.S.C. 5120(b) authorizes the Secretary of Transportation to
ensure that, to the extent practicable, regulations governing the
transportation of hazardous materials in commerce are consistent with
standards adopted by international authorities. This notice considers
potential amendments to the HMR that would maintain alignment with
international standards by incorporating various amendments. The
continually increasing amount of hazardous materials transported in
international commerce warrants the harmonization of domestic and
international requirements to the greatest extent * * * The majority of
amendments in any harmonization rule should result in cost savings and
ease the regulatory compliance burden for shippers engaged in domestic
and international commerce, including trans-border shipments within
North America.
J. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
[[Page 17119]]
Issued in Washington, DC, under authority delegated in 49 CFR
part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 2010-7544 Filed 4-2-10; 8:45 am]
BILLING CODE 4910-60-P
