Hazardous Materials Regulations: Combustible Liquids, 31815-31827 [2012-12958]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 77, Number 104 (Wednesday, May 30, 2012)]
[Proposed Rules]
[Pages 31815-31827]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12958]


=======================================================================
-----------------------------------------------------------------------

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: Withdrawal of Advance Notice of Proposed Rulemaking (ANPRM) and 
denial of petitions P-1498, P-1531, and P-1536.

-----------------------------------------------------------------------

SUMMARY: On April 5, 2010, PHMSA issued an Advance Notice of Proposed 
Rulemaking (ANPRM) in the Federal Register [75 FR 17111] under Docket 
No. PHMSA-2009-0241 (HM-242) soliciting comments on whether PHMSA 
should consider harmonization of the Hazardous Materials Regulations 
(HMR; 49 CFR parts 171-180) applicable to the transportation of 
combustible liquids with the UN Recommendations, while maintaining an 
adequate level of safety, and posed a series of questions. The major 
issues being examined and addressed are: Safety (hazard communication 
and packaging integrity); International commerce (frustration/delay of 
international shipments in the port area); Increased burden on domestic 
industry (elimination of domestic combustible liquid exceptions); and 
Driver Eligibility (exception from placarding which would exempt 
seasonal workers from the Federal Motor Carrier Safety Administration's 
Commercial Driver's License (CDL) and Hazmat Endorsement requirements, 
and the Transportation Security Administration's (TSA) fingerprinting 
and background check provisions). PHMSA also addressed three petitions 
for rulemaking in the April 5 ANPRM; two suggesting that domestic 
requirements for the transportation of combustible liquids should be 
harmonized with International standards, and one suggesting that the 
HMR should include more expansive domestic exceptions for shipments of 
combustible liquids.
    The issuance of this notice constitutes a decision by PHMSA to 
withdraw the April 5, 2010 ANPRM, and to deny the International Vessel 
Operators Dangerous Goods Association (IVODGA) petition, P-1498, the 
Dangerous Goods Advisory Council (DGAC) petition, P-

[[Page 31816]]

1531, and the U.S. Customer Harvesters, Inc. petition, P-1536.

ADDRESSES: For access to the docket to read background documents and 
comments received, go to https://www.regulations.gov at any time and 
insert ``PHMSA-2009-0241'' in the ``Keyword'' box, and then click 
``Search.'' You may also view the docket online by visiting the Docket 
Management Facility, Ground Floor, Room W12-140, U.S. Department of 
Transportation, West Building, Routing Symbol M-30, 1200 New Jersey 
Avenue SE., Washington, DC 20590-0001, between 9:00 a.m. and 5:00 p.m., 
Monday through Friday, except Federal holidays.
    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 comment (or signing the 
comment, if submitted on behalf of an association, business, and labor 
union, etc.). You may review the U.S. Department of Transportation's 
(DOT) complete Privacy Act Statement in the Federal Register published 
on January 17, 2008 (73 FR 3316), or you may visit https://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

FOR FURTHER INFORMATION CONTACT: Vincent Babich, Standards and 
Rulemaking Division, telephone (202) 366-8553, Office of Hazardous 
Materials Safety, Pipeline and Hazardous Materials Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue SE., 2nd Floor, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Issues Prompting ANPRM
    B. Advance Notice of Proposed Rulemaking
    C. Petitions for Rulemaking
    1. IVODGA Petition for Rulemaking
    2. DGAC Petition for Rulemaking
    3. U.S. Custom Harvesters, Inc. Petition for Rulemaking
II. Summary of Comments to ANPRM
    A. Examples of Comments Opposed to Harmonization and Granting 
Petitions P-1498 and P-1531
    B. Examples of Comments in Support of Harmonization and Granting 
Petitions P-1498 and P-1531
    C. Examples of Ambiguous Comments on Harmonization
    D. Examples of Comments in Support of Expanded Exceptions for 
Farm Operations or Agribusinesses and Granting Petition P-1536
    E. Examples of Comments Recommending No Action Until PHMSA 
Analyzes Flammable/Combustible Incident Data
IV. Summary of Commenters Responses to Specific Questions
    A. Questions Raised in ANPRM
    B. Commenters Recommendations Not Addressed in ANPRM
V. Denials of Petitions P-1498, P-1531, and P-1536
    A. Petitions P-1498 and P-1531
    B. Petition P-1536
VI. Conclusion

I. Background

A. Issues Prompting Advance Notice of Proposed Rulemaking

    When packaged in non-bulk packagings, a material with a flash point 
of 38 [deg]C (100[emsp14][deg]F) or more but less than 60 [deg]C 
(140[emsp14][deg]F) may be reclassed as a combustible liquid under the 
HMR. A combustible liquid in a non-bulk packaging that is not a 
hazardous substance, hazardous waste, or a marine pollutant is not 
subject to HMR in domestic transportation, by highway or rail. However, 
these same materials are regulated as flammable liquids when 
transported by vessel, in accordance with the International Maritime 
Dangerous Goods (IMDG) Code and by aircraft, in accordance with the 
International Civil Aviation Organization's Technical Instructions 
(ICAO Technical Instructions).
    When packaged in bulk packagings, a material with a flash point 
between 60 [deg]C (140 [deg]F) and 93 [deg]C (200 [deg]F) is regulated 
as a combustible liquid in domestic transportation. A combustible 
liquid in bulk packagings is only minimally regulated in domestic 
transportation, and allows a shipper to use a less expensive, non-
specification bulk packaging, in addition to having only to comply with 
the requirements contained in 49 CFR 173.150. In addition, bulk 
shipments of a combustible liquid must be placarded with a COMBUSTIBLE 
placard. When combustible liquids are shipped internationally, the 
COMBUSTIBLE placard is not recognized overseas because there is no 
combustible liquid hazard class under the international standards. 
Subsequently, shipments prepared in accordance with the HMR may be 
frustrated by inspectors and enforcement personnel who are not familiar 
with the U.S. requirements. To avoid confusion and delay in port areas, 
shippers and carriers often remove the COMBUSTIBLE placard prior to 
placing the shipment on board a vessel for overseas shipment. 
Conversely, shipments originating overseas and bound for the United 
States must affix the COMBUSTIBLE placard prior to the shipment's 
movement out of the port area.
    In addition, 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 of the HMR may be used to determine if a material sustains 
combustion when heated under test conditions and exposed to an external 
source of flame.
    Further, the classification system in the UN Recommendations has no 
combustible liquid category or hazard class. There is no provision in 
the UN Recommendations, the International Civil Aviation Organization's 
Technical Instructions for the Safe Transport of Dangerous Goods by 
Aircraft (ICAO Technical Instructions), or the International Maritime 
Dangerous Goods (IMDG) Code for flammable liquids to be reclassed as 
combustible liquids. PHMSA recognizes 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 have also received opinions that the 
lack of understanding or clarity of the U.S. regulations involving the 
transportation of combustible liquids may present a tangible safety 
concern, such as the mishandling or misidentification of these 
shipments in transportation, or the transportation of undeclared 
shipments.

B. Advance Notice of Proposed Rulemaking

    On April 5, 2010, PHMSA issued an Advance Notice of Proposed 
Rulemaking (ANPRM) in the Federal Register [75 FR 17111] under Docket 
No. PHMSA-2009-0241 (HM-242) soliciting comments on whether PHMSA 
should consider harmonization of the Hazardous Materials Regulations 
(HMR; 49 CFR parts 171-180) applicable to the transportation of 
combustible liquids with the UN Recommendations, while maintaining an 
adequate level of safety, and provided a series of questions. In the 
ANPRM, we also indicated that we were considering amendments to the HMR 
as they apply to the transportation of combustible liquids. 
Specifically, we considered whether to harmonize the

[[Page 31817]]

domestic regulations applicable to the transportation of combustible 
liquids with international transportation standards. In addition, we 
indicated that we were 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 the ANPRM was to invite public comments on how to accomplish 
these goals, provide an opportunity for comment on amendments PHMSA was 
considering, and present a forum for the public to offer additional 
recommendations for the safe transportation of combustible liquids.
    In response to the ANPRM, comments were received from chemical 
distributors; printing, painting, explosives, international airline 
pilots, solid waste, railroad, trucking, tank truck carriers, and 
custom harvesters trade associations and a state farm bureau; 
international and national firefighters associations; the State of 
Alaska DOT and Public Facilities; and several international and 
national private citizens. The majority of the commenters opposed 
harmonization and elimination of the combustible liquid classification, 
while expressing support for maintaining the non-bulk and bulk 
combustible liquid packaging exceptions for domestic transportation. In 
addition, many commenters expressed the belief that burdens on the 
domestic industry would be increased for certain non-bulk shipments, 
and that the deregulation of bulk shipments would compromise the safety 
of the public and emergency responders if the domestic combustible 
liquid provisions were harmonized with the international United Nations 
(UN) Recommendations.
    Although PHMSA's primary focus is 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. Presently and formerly, some in the regulated 
industry have asserted that the exceptions in the HMR for combustible 
liquids create a variance between domestic and international 
transportation and increase the potential for non-compliance. This 
being both a safety and economic issue, PHMSA disagrees with those who 
advocate elimination of the combustible liquid class altogether, 
believing that a significant number of domestically-regulated materials 
pose risks in transportation that cannot be ignored.
    Therefore, because most commenters opposed harmonization that would 
eliminate the combustible liquids hazard class altogether, thereby 
removing the combustible liquids exceptions in domestic transportation 
in the U.S., in addition to PHMSA's own economic analysis that 
implementation costs could be significant, we are denying the 
International Vessel Operators Dangerous Goods Association (IVODGA) 
petition, P-1498, the Dangerous Goods Advisory Council (DGAC) petition, 
P-1531, and the U.S. Customer Harvesters, Inc. petition, P-1536. 
Accordingly, issuance of this notice constitutes a decision by PHMSA to 
withdraw the April 5, 2010 ANPRM [75 FR 17111] published in the Federal 
Register under Docket No. PHMSA-2009-0241 (HM-242).

C. Petitions for Rulemaking

    In the April 5, 2010 ANPRM, PHMSA also solicited comments on issues 
related to three petitions pertaining to the transportation of 
combustible liquids in both domestic and international commerce. The 
petitions are discussed below.
1. IVODGA Petition for Rulemaking
    The International Vessel Operators Dangerous Goods Association 
(IVODGA), formerly VOHMA, submitted a petition for rulemaking [P-1498; 
PHMSA-2007-28238] concerning differing domestic and international 
requirements for the transportation of combustible liquids. The UN 
Recommendations do not include a definition or classification for 
combustible liquids. In its petition, IVODGA asserts:
    (a) The display of a UN identification number for shipments that 
are not regulated internationally may ``confuse'' foreign inspectors, 
interlining carriers, foreign stowage planners, and intermodal feeder 
systems in other jurisdictions [who may delay forwarding the shipments 
until the confusion is resolved];
    (b) These frustrated shipments not only impede commerce but also 
result in additional risks in the ports and terminals where they are 
held;
    (c) emergency responders might also be confused by the UN 
identification number marking on the bulk packaging such as ``1263'' or 
``1210'', which are the numbers assigned to flammable paint and 
flammable printing ink, respectively;
    (d) Reclassed combustible liquid shipments ``find [their] way'' 
into international distribution ``unlabeled and unmarked'' with the 
result that they are undeclared as dangerous goods; and
    (e) for materials with a flash point above 60 [deg]C (140 [deg]F) 
but below 93 [deg]C (200 [deg]F) authorize use of the proper shipping 
name ``Combustible liquid, n.o.s. [if hazard class modified to read 
``combustible liquid'' and intended for rail or highway transportation 
only].
    IVODGA 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, IVODGA said 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 shipments of flammable liquids with flash points of less 
than 60 [deg]C (140 [deg]F). when these shipments are destined for 
export [by vessel] to a jurisdiction outside the United States, because 
of the confusion, such shipments may be delayed until the confusion is 
resolved.
2. DGAC Petition for Rulemaking
    The Dangerous Goods Advisory Council (DGAC) 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. In its petition, DGAC asserts:
    (a) The HMR requirements for high-flash-point combustible liquids 
(HFCL) are disruptive to the flow of goods in port areas and contribute 
to port congestion;
    (b) The required markings and labels and/or placards (safety marks) 
that must be applied for purposes of U.S. domestic transport of an HFCL 
export shipment must be removed in the port area in order to bring the 
shipment into compliance with the requirements of the IMDG Code;
    (c) Industry practice in transporting HFCL by vessel provides a 
higher level of safety than that afforded by the HMR, providing further 
justification for regulatory changes facilitating transport of HFCL 
transported by vessel;
    (d) When HFCLs are transported by vessel [i.e., imported to the 
U.S.] they are transported in ISO portable tanks or Intermediate Bulk 
Containers (IBCs) conforming to the UN performance requirements (these 
packagings provide

[[Page 31818]]

considerable package integrity beyond that provided by the HMR 
requirements which permit HFCL to be transported in non-specification 
packagings); and
    (e) DGAC further petitions PHMSA to relieve IBCs containing HFCL 
from currently required HMR safety mark requirements independent of 
whether they are being transported in international commerce.
    The DGAC petition highlights many of the same issues identified by 
IVODGA, 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 flash points 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. 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 combustible liquids for 
transportation in the U.S. 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 HFCLs from all HMR 
requirements when transported in specification packages of less than 
3,000 liters (793 gallons) capacity, or when in an ISO (UN) portable 
tank in international commerce.
3. U.S. Custom Harvesters, Inc.
    U.S. Custom Harvesters, Inc. (Custom Harvesters) submitted a 
petition for rulemaking [P-1536; PHMSA-2009-0099] requesting 
modification of current requirements applicable to combustible liquids. 
In its petition, Custom Harvesters states that:
    (a) A custom harvester has invested in the equipment (which 
includes grain harvesting combines, silage harvesters, grain trucks, 
tractors and grain carts) necessary to harvest 50% of the nation's 
wheat, 25% of the nation's corn, 50% of the nation's corn silage and 
25% of the nation's cotton. Because of the tremendous cost of the 
equipment, it doesn't make sense for most farmers to invest in the 
harvesting equipment that will only be used one month of the year. Our 
industry replaces the farmer in the field during harvest;
    (b) the custom harvesters' equipment has changed immensely over the 
past ten years. Custom harvesters have grown from using tandem axle 
trucks (which allows for the Class B CDL and a Restricted Class B 
Seasonal CDL license) to using tractor/trailer combinations which 
require the Class A CDL license. Under exemption 391.2, a Restricted 
Class B Seasonal CDL driver is allowed to transport hazardous materials 
limited to 1,000 gallons or less of diesel fuel. However, in order to 
legally drive the tractor/trailer combination, we are required to have 
Class A CDL drivers. The Restricted Class B Seasonal CDL driver is not 
required to take a written or driving test. The only requirement is to 
have a good driving record;
    (c) custom harvesters hire seasonal truck drivers and combine 
operators, usually beginning in mid-May and lasting until November when 
the harvest has been completed. Most of the drivers hired do not have 
the Class A CDL license which is required for them to drive the 
tractor/trailer combinations. Once they are hired, the owner typically 
assists the truck drivers in obtaining the appropriate CDL licenses. 
The custom harvester hires seasonal drivers approximately two weeks 
prior to the beginning of harvest. Because the Hazardous Materials 
(hazmat) endorsement requires a 60-90 day wait period, the requirement 
of the hazmat endorsement to haul diesel fuel has created a great 
burden to our industry. It is not economically feasible for the custom 
harvester to hire its employees 60-90 days in advance of needing them. 
Additionally, many harvesters employ H2A workers. An H2A worker is 
currently allowed to obtain a nonresidential CDL, but is not lawfully 
able to obtain a hazmat endorsement;
    (d) the harvesting equipment used requires 200+ gallons of diesel 
fuel per machine daily. Most custom harvesters have at least two or 
three machines and a tractor/grain cart combination. This combination 
of equipment would require up to 1,000 gallons of diesel fuel daily. 
The diesel fuel is hauled to the field to fill the harvesting equipment 
each day. In order to bring the fuel to the field, the diesel fuel is 
pumped from a pump at the local service station or farmer's COOP (just 
like it would be for a pickup truck or car) to a fuel tank that is 
mounted in a service vehicle. The distance to the farmer's field 
determines the distance the fuel is hauled, typically between 1 mile 
and 50 miles. The roads are always rural roads and highways. Once the 
fuel is unloaded into the harvest equipment, the fuel tank sits empty 
the rest of the day. At the end of the day, the service vehicle (and 
empty fuel tank) will be driven back to the town where the custom 
harvester is staying. (A harvester typically stays in one location for 
approximately two weeks.) Each morning, the refueling process will be 
repeated;
    (e) the current limitation of the 119-gallon fuel tank puts a 
burden on the custom harvesting industry in more ways than one. First, 
the 119-gallon fuel tank requires the custom harvester to make several 
trips from the field to the fuel station each day just to fill each 
piece of harvesting equipment one time. Second, current requirements 
state the only persons who can legally drive the service vehicle down 
the road are those with hazmat endorsements. The custom harvesting 
business owner often ends up being the only person with the necessary 
endorsements due to time requirements for obtaining a hazmat 
endorsement. Having to drive the service vehicle limits the flexibility 
of the business owner, preventing him or her from driving other 
commercial vehicles in his or her fleet. When the harvesting job has 
been completed and the custom harvesting fleet is moved to the next 
location, the fuel tank on the service vehicle will be empty while 
moving on state and federal highways. The custom harvester will empty 
the fuel tank before moving to the next job location, eliminating the 
weight on the truck and preventing possible problems while on the road.
    Currently, under the HMR, bulk shipments of combustible liquids 
must be placarded. In accordance with Federal Motor Carrier Safety 
Regulations (FMCSR) found at 49 CFR part 383, a hazmat endorsement is 
required for drivers of commercial motor vehicles that transport 
placarded shipments of hazardous materials. A hazmat endorsement on a 
CDL triggers the need to comply with the Department of Homeland 
Security's Transportation Security Administration's fingerprinting and 
background check. In its petition, the Custom Harvesters asks PHMSA to 
consider an exception from placarding for combustible liquids 
transported in bulk quantities that do not exceed 3,785 L (1,000 
gallons) in a single packaging.

II. Summary of Comments to ANPRM

    Approximately, one-hundred and forty (140) comments were received 
in response to the April 5, 2010 ANPRM on whether PHMSA should consider 
harmonization of the domestic regulations applicable to the 
transportation of combustible liquids with international transportation

[[Page 31819]]

standards. Generally, the majority of commenters oppose harmonization, 
indicating that many of its members utilize the exceptions provided in 
Sec. Sec.  173.120(c) and 173.150(f) for reclassification and packaging 
of their products or material as combustible liquids in domestic 
transportation, and that any changes to these exceptions will 
negatively impact their industry. Approximately twenty-nine (29) of the 
comments addressed harmonizing domestic and international 
classification standards for combustible liquids. Of the 29 comments, 
approximately seventeen (17) of the commenters on this issue were 
opposed to harmonization of the domestic combustible liquids 
regulations with the international standards for classification of 
flammable liquids and would maintain the combustible liquids hazard 
class and packaging exceptions in domestic transportation in commerce. 
In contrast, approximately twelve (12) of the commenters support 
harmonization, and elimination of the combustible liquids 
classification and packaging exceptions.
    Of the one-hundred and forty (140) comments, approximately one-
hundred and eleven (111) of the commenters were custom harvesters and 
the Indiana Farm Bureau, and support the U.S. Custom Harvesters, Inc., 
petition. The Custom Harvesters only requested that PHMSA consider an 
exception for agribusiness (i.e., the operations and businesses that 
are associated with large-scale farming) from placarding combustible 
liquids transported in bulk quantities that do not exceed 3,785 L 
(1,000 gallons) in a single packaging. Many 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.

A. Examples of Comments Opposed to Harmonization and Granting Petitions 
P-1498 and P-1531

    Commenters, such as the American Trucking Associations (ATA); 
American Petroleum Institute (API); Institute Makers of Explosives 
(IME); National Tank Truck Carriers (NTTC); National Fire Protection 
Association (NFPA); Association of Hazmat Shippers, Inc. (AHS); Utility 
Solid Waste Activities Group (USWAG); Dow Corning Corporation; Evonik 
Degussa Corporation; Association of American Railroads (AAR); Council 
on Safe Transportation of Hazardous Articles (COSTHA); State of Alaska, 
Department of Transportation and Public Facilities, and Mr. Owen Bruce 
Bugg, citizen, expressed opposition to harmonization of the domestic 
combustible liquids requirements with the international standards for 
flammable liquids.
    NTTC expresses the belief that more information is needed to 
determine what the benefits would be of deregulating combustible 
liquids with a flash point above 60[emsp14][deg]C (140[emsp14][deg]F) 
and below 93[emsp14][deg]C (200[emsp14][deg]F). NTTC strongly asserts 
that the HMR should continue to allow Class 3 materials with a flash 
point between 38[emsp14][deg]C (100[emsp14][deg]F) and 60[emsp14][deg]C 
(140[emsp14][deg]F) to be reclassified and transported as combustible 
liquids, further states that this has been the practice for many years, 
and it is not aware of any negative impact on safety.
    The API said that the loss of the reclassification exception for 
non-bulk combustibles would move a large segment of the supply & 
distribution industry from ``Not Regulated'' to ``Regulated Hazmat'' 
status. API states that it does not support deregulation (e.g., a 
complete harmonization of the 49 CFR with IMO/IMDG) of HFCLs being 
transported in bulk cargo tanks or rail cars. The HMR, though sometimes 
confusing, provide a practical framework to handle HFCLs such as gas 
oils, diesels, fuel oil, or heating oil with flash points that actually 
``straddle'' the international threshold of flammable liquids 
60[emsp14][deg]C (140[emsp14][deg]F). These regulations (HMR) allow for 
consistent hazard communications for petroleum fuel and other products 
with a similar range of flash point.
    The ATA has significant concerns with the potential changes to the 
classification and regulation of combustible liquids. The ATA states 
that while it appreciates the benefits of a globally harmonized 
classification of flammable liquids, it believes that deregulation of 
combustible liquids could create certain safety risks. For example, 
certain bulk tank trucks utilize compressed air to unload. These 
compressors generate air pressure and may reach a temperature of 
170[emsp14][deg]F. As such operators should not use these compressors 
to unload certain flammable and combustible liquids. In the absence of 
effective hazard communication requirements, a safety risk could be 
created, as operators may not know whether it is safe to use compressed 
air for unloading. In addition, effective hazard communication is 
needed to ensure that tools used to repair valves and other 
appurtenances to containers used to transport combustible materials are 
``non-sparking'' to reduce the risk of ignition.
    The IME said that over 3.4 million metric tons of high explosives, 
blasting agents, and oxidizers are consumed annually in the U.S. IME 
member companies produce ninety-nine percent of these commodities. 
These products are used in every state and are distributed worldwide. 
IME states that the most widely-used commercial explosive product in 
the U.S. is ammonium nitrate/fuel oil (``ANFO''). The fuel oils most 
commonly used in ANFO mixtures are transported as reclassed 
combustibles. Accordingly, IME members are very concerned that PHMSA is 
considering eliminating the reclassification option in the HMR. FO in 
the range of 38[emsp14][deg]C (100[emsp14][deg]F) to 93[emsp14][deg]C 
(200[emsp14][deg]F) is blended from multiple sources with varying flash 
points (e.g., 2D diesel; 4, 5, 6 diesels; used oil, and the like) 
including deliveries that exceed 60[emsp14][deg]C (140[emsp14][deg]F). 
Ordinarily, this does not pose a problem for its operations because 
multi-purpose bulk trucks (``MBTs'') technology allows accommodating 
adjustments to be made at the jobsite where custom mixing of the 
explosive materials occurs. This flexibility also allows commercial 
explosives companies to purchase FO with a flash point slightly above 
60[emsp14][deg]C (140[emsp14][deg]F) when it is more economical to do 
so. Because adjustments for viscosity (FO flash point is directly 
proportional to viscosity) can be made at the jobsite, there is no need 
to separate the storage of fuels according to flash point 
(<60[emsp14][deg]C (140[emsp14][deg]F) and >60[emsp14][deg]C 
140[emsp14][deg]F)). However, if the exception is eliminated and FO 
with a flash point between 38[emsp14][deg]C (100[emsp14][deg]F) and 
60[emsp14][deg]C (140[emsp14][deg]F) is designated flammable and is 
deregulated at flash points above 60[emsp14][deg]C (140[emsp14][deg]F), 
IME members would be forced to test every load of FO before it is 
transferred from storage to an MBT in order to determine the proper 
transport classification. This would require testing every time the FO 
tank is replenished. All FO can therefore be stored in a single above 
ground storage tank. However, IME said that an exception is FO with a 
flash point at the lower end of the range (e.g., <115[emsp14][deg]F) 
that is used for operations in colder climates.
    The AHS said that some history may provide helpful guidance. Before 
HM-102, flammable liquids were defined with a ceiling open-cup flash 
point of 80[emsp14][deg]F. In that docket, in order to harmonize with 
then relatively-new OSHA regulations, the two agencies worked together 
to set the ceiling at 100[emsp14][deg]F and to change the closed-cup 
flash point method. At no time was there a claim that materials having 
flash points above 80[emsp14][deg]F had posed a safety problem in 
transportation in non-bulk packaging sizes. Nonetheless, for 
convenience and harmony, the ceiling

[[Page 31820]]

was raised to 100[emsp14][deg]F. With the UN setting the international 
ceiling for Class 3 at 140[emsp14][deg]F, DOT once again was faced with 
a harmonization issue. There was no history of safety problems with 
liquids in the 100-140[emsp14][deg]F range in non-bulk packaging in the 
US, thus the basis for the exception now appearing in Sec.  173.150(f). 
The facts remain unchanged. Transportation safety does not support 
imposing full Class 3 requirements on materials in ground transport in 
non-bulk packaging having a flash point above 100[emsp14][deg]F. An 
enormous volume of materials, including paints and a variety of 
consumer products, falls within this range and the shippers and 
carriers of these materials have benefitted from this exception, 
without notable safety problems. AHS said, therefore, it believes it is 
critical for PHMSA to retain this exception.
    The NFPA is concerned that adopting such a change in the domestic 
requirements for offering and transporting combustible liquids would 
negatively impact emergency response to incidents involving such 
materials. NFPA encourages PHMSA to retain the current requirements 
regarding classification and regulation for combustible liquids. NFPA 
recommends that PHMSA maintain the current requirements that include 
those combustible materials with flash point above 60[emsp14][deg]C 
(140[emsp14][deg]F) and below 93[emsp14][deg]C (200[emsp14][deg]F). 
NFPA states that this category of material is still capable of posing a 
fire or explosion hazard during transportation, especially if involved 
in an accident where other, more easily ignited materials are present. 
From the perspective of the emergency responder, any effort to 
deregulate combustible liquids represents a reduction in the current 
safety practices that protect and alert those responding to 
transportation incidents or other emergencies involving this class of 
hazardous material. Note that NFPA 30, Flammable and Combustible 
Liquids Code, has a category of liquid (Class IIIB) for those liquids 
with flash points equal to or greater than 93 [deg]C 
(200[emsp14][deg]F). This category presents much lower risk in a 
transportation accident.
    Mr. Rich Sewell, State of Alaska, Department of Transportation and 
Public Facilities, Office of Statewide Aviation, states that many 
remote Alaskan communities receive fuel oil and diesel fuel by air 
cargo, and stresses this circumstance is particularly important as 
changes to the regulations governing the transportation of combustible 
liquids are considered. He further states that shipping of fuel by air 
cargo is common to rural Alaskan communities that sometimes encounter 
bitter cold during the winter, and that it is not over-stating the 
situation to say that lives depend on efficient distribution of fuel 
oil in rural Alaska. Mr. Sewell states that any changes to regulations 
that might increase the costs of fuel distribution in rural Alaska 
would be onerous and burdensome, where fuel in the past year has cost 
$8.50 per gallon in some rural communities, and asserts that power 
generation and heat are already very expensive in rural Alaska. In 
addition, he claims that most rural communities qualify as economically 
distressed. If any new rulemaking were to adversely affect fuel 
distribution in rural Alaska, Mr. Sewell urges an exception to the 
rules be made for the domestic transportation of combustible fuels in 
Alaska.

B. Examples of Comments in Support of Harmonization and Granting 
Petitions P-1498 and P-1531

    Commenters, such as the URS Corporation; Airline Pilots Association 
International; Bayer Material Science; International Vessel Operators 
Dangerous Goods Association, Inc.; Dangerous Goods Advisory Council; 
Air Products and Chemicals, Inc.; Momentive performance materials; 
Phillip Jonckheere of the European Chemical Industry Council (CEFIC); 
Mr. Roy Boneham, New Alchemy Training and Consultancy Organization, 
United Kingdom; the International Association of Fire Chiefs; and 
Applied Industrial Technologies support harmonization of the domestic 
combustible liquids regulations with the international standards for 
flammable liquids.
    URS Corporation said that it supports international harmonization 
and the deregulation of combustible liquids, and expresses the belief 
that the Combustible Liquid placard is too similar to the Flammable 
Liquid placard, resulting in confusion and rejection of bulk shipments 
in the international community. URS stated that the HMR should no 
longer continue to apply to materials with a flash point above 
60[emsp14][deg]C (140[emsp14][deg]F) and below 93[emsp14][deg]C 
(200[emsp14][deg]F).
    Mr. Phillip Jonckheere said that the European Chemical Industry 
Council (CEFIC) supports the harmonization of the domestic regulations 
(HMR) applicable to the transportation of combustible liquids with 
international transportation standards. Mr. Jonckheere stated that the 
existing deviation on classification, marking and, placarding creates a 
burden on international trade rather than improving safety.
    Bayer Material Science supports deregulation of materials with a 
flash point above 60[emsp14][deg]C (140[emsp14][deg]F) and below 
93[emsp14][deg]C (200[emsp14][deg]F). Bayer said a temperature of 
60[emsp14][deg]C (140[emsp14][deg]F) is generally recognized as the 
highest ambient temperature a material will encounter during the course 
of transportation. Therefore, a combustible liquid will not encounter 
conditions that will meet or exceed its flash point. This also allows 
for harmonization with the international regulations. Bayer expresses 
the belief that there would be an added cost benefit in product 
development and logistics to be able to move products in this category 
with one consistent classification. Emergency responders would still 
review the Material Safety Data Sheet as well as established procedures 
for dealing with these materials whether or not it was marked 
combustible.
    Air Products and Chemicals, Inc. is both a shipper and carrier of 
hazardous materials in both bulk and non-bulk packaging utilizing all 
modes of transportation. Air Products fully supports the move towards 
global harmonization of dangerous goods transport regulations and 
expresses the belief that doing so will result in reduced risk, greater 
efficiency, lower costs, fewer delays, and much less confusion.
    Momentive performance materials said that for over a year, it has 
been shipping bulk packages of combustible liquids from Europe into 
Canada by vessel and then trucking them through Canada into the United 
States for delivery to various locations because certain shipping lines 
do not allow these bulk packages to display the [ID] number ``1993'' on 
either a placard or an orange panel. Essentially, the number ``1993'' 
represents Flammable Liquids in the IMDG code, and combustible liquids 
are not recognized by the IMDG Code as a Dangerous Good. Therefore, as 
a result of the higher costs of such shipments of bulk packages and 
logistical difficulties, Momentive believes that PHMSA should harmonize 
the bulk package transportation of combustible liquids with 
international transportation standards, by removing Section 
173.120(b)(1) from Title 49 CFR. Momentive also states that this 
declassification would pose no significant risk to human health or the 
environment due to the simplification of shipping routes by highway, 
which will significantly reduce the distance over which such shipments 
travel.
    Applied Industrial Technologies states that while PHMSA continues 
to comment on trying to be in Harmonization with the United Nations

[[Page 31821]]

Recommendations, it falls short by allowing the exception of 
``Combustible Liquids'' and questions this practice. The commenter 
states that if this exception is eliminated; all ``Flammable Liquids'' 
would be regulated to the same standards, thereby allowing true 
Harmonization with the United Nations Recommendations. This would also 
eliminate any confusion with shipping domestically and internationally. 
The commenter further states that as a HazMat shipper with over twenty 
years of experience and providing training for its company, this aspect 
continues to be one of the most confusing parts of the HMR for its 
associates to learn.
    DGAC said that the ``HMR requirements for high flash point 
combustible liquids (HFCLs) are disruptive to the flow of goods in port 
areas,'' costing between $300 to $500 for demurrage [the charge for 
detaining a ship beyond the time allowed for loading/unloading per 
container]. DGAC also stated that industry practice in transporting 
HFCL by vessel provides a higher level of safety than that afforded by 
the HMR; and that HFCLs should be excepted from all HMR requirements 
when transported in specification packages of less than 3,000 liters 
(793 gallons) capacity (the upper capacity limit for Intermediate Bulk 
Containers (IBCs)) or when in an ISO (UN) portable tank in 
international commerce.

C. Examples of Ambiguous Comments on Harmonization

    Many of the comments supporting harmonization were ambiguous; some 
recommending retention of the non-bulk combustible liquids packaging 
exceptions, while others requested elimination of the bulk combustible 
liquids packaging exceptions, and vice versa. For example, DGAC states 
that the most significant benefit of deregulation of combustible 
liquids with a flash point above 60[emsp14][deg]C (140[emsp14][deg]F) 
and below 93[emsp14][deg]C (200[emsp14][deg]F) (hereafter referred to 
as high flash point combustible liquids or HFCLs) is that it would 
harmonize the HMR with the requirements used throughout the world, and 
in doing so, it would eliminate many of the frustrations that DGAC 
members experience in importing and exporting these materials. However, 
DGAC acknowledged that from the history of the combustible liquid 
requirements and considering that non-specification bulk packagings are 
authorized, it is clear the primary purpose of the existing combustible 
liquid requirements pertaining to high flash point combustible liquids 
is to alert emergency responders of the presence of a combustible 
liquid in the event of an incident. DGAC said that with this in mind 
the safety benefit of continuing to regulate HFCLs depends on the 
benefit derived from knowing a material involved in an incident is a 
combustible liquid.
    The National Association of Chemical Distributors (NACD) said that 
although elimination of the reclassification exception would promote 
the desired objective of harmonization, level the playing field, 
eliminate confusion, and enhance safety, on the other hand, eliminating 
the reclassification exception would increase costs for some because it 
is more expensive to ship hazardous materials than non-hazardous 
materials, and could also potentially lead to negative safety 
implications. Further, deregulation of materials with a flash point 
above 60[emsp14][deg]C (140[emsp14][deg]F) and below 93[emsp14][deg]C 
(200[emsp14][deg]F) would result in more complete harmonization with 
international standards as these only regulate up to 60[emsp14][deg]C 
(140[emsp14][deg]F). This would minimize confusion in trade and 
commerce. However, NACD stated that the disadvantage is that this could 
result in complications for chemical distributors who receive regular 
visits from local fire officials. The NFPA has its own system of 
markings for various flashpoints, but generally follows DOT. In this 
case, the materials are NFPA Class III A Combustible Liquids. If these 
materials are not covered by the HMR and labeled accordingly, fire 
officials are likely to require NFPA labels on more packages because 
there would not be DOT hazardous materials markings to recognize. As 
well, NACD said those who currently ship these materials through areas 
such as tunnels that prohibit hazardous materials would have to avoid 
these areas and take alternative routes that could involve longer 
distances and conditions such as dangerous mountain passes.
    The IAFC said it does not support Class 3 materials with flash 
points between 38[emsp14][deg]C (100[emsp14][deg]F) and 
60[emsp14][deg]C and (140[emsp14][deg]F) to be reclassified and 
transported as combustible liquids. The IAFC stated that the primary 
benefit of not allowing a reclassification is to ensure all shipments 
of materials identified as flammable would continue to be identified as 
such because emergency response to flammable liquids versus combustible 
liquids may involve different fire and spill control tactics and 
agents, since combustible liquids are generally viewed as having a 
lower risk than a flammable liquid. By not taking the appropriate 
action for the material involved, the safety risk would increase. 
However, the IAFC said that materials with a flash point above 
60[emsp14][deg]C (140[emsp14][deg]F) and below 93[emsp14][deg]C 
(200[emsp14][deg]F), also known as combustible liquids, have been 
subject to placard and label requirements for ease in identification 
and for the safety of emergency responders. IAFC asserted that while 
deregulation of those materials would decrease issues in international 
trade and ease the movement of those commodities, it would remove 
important warnings for emergency responders about the presence of 
combustible liquid. Further, the IAFC stated that while it appreciates 
the fact that these materials, in and of themselves, may pose a low 
risk due to their high flash point, there can be a significant risk 
factor in the event that these materials are exposed to a fire or other 
incident. Another consideration is whether or not such an exemption 
would increase security risk since these products can be used in 
combination with other products for the production of certain 
explosives such as ANFO (ammonium nitrate and fuel oil).
    William J. Briner, Transportation Regulations Consultant, stated 
that the industry could adapt to the elimination of the combustible 
liquid classification and placard at a reasonable cost and with a 
reasonable amount of difficulty as long as the exceptions in Sec.  
173.150(f) are retained. These exceptions have proven over many years 
of use to be a safe means of transporting material with a flash point 
at or above 38[emsp14][deg]C (100[emsp14][deg]F) and at or below 
60[emsp14][deg]C (140[emsp14][deg]F). Without the retention of the 
Sec.  173.150 exceptions, a major disruption of the shipping operations 
of the Paint Industry and the Ag Chem industry would result.
    Printing Industries of America (PIA) said it supports the 
deregulation of combustible liquids with high flash points as part of 
the effort to align the HMR with international standards. PIA states 
combustible liquids do not pose the same hazard as flammable liquids 
and therefore should not be subject to the same level of regulations. 
However, the PIA said the HMR should continue to permit Class 3 
materials with flash points between 38[emsp14][deg]C 
(100[emsp14][deg]F) and 60[emsp14][deg]C (140[emsp14][deg]F) to be 
reclassed and transported as combustible liquids. PIA expresses the 
belief that removal of this exception will result in significant cost 
increases across the supply chain. Specifically, PIA is concerned that 
removing the domestic exception will cause printers, as offerors of 
hazardous materials in amounts that require placarding, to be subject 
to registration and security requirements.
    American Coatings Association (ACA) supports the harmonization of 
regulatory requirements for materials with a flash point above 
60[emsp14][deg]C (140[emsp14][deg]F)

[[Page 31822]]

and below 93 [deg]C (200[emsp14][deg]F); ACA expressed the belief that 
for this class of materials, the HMR should not apply. ACA said PHMSA 
could then harmonize the definition of flammable liquid with that of 
the international standards, thereby eliminating the confusion in the 
ports regarding these shipments of combustible liquids that carry Class 
3 markings. However, ACA said that for those Class 3 materials with a 
flash point between 38[emsp14][deg]C (100[emsp14][deg]F) and 
60[emsp14][deg]C (140[emsp14][deg]F), the option to reclassify and 
transport as a combustible liquid should be retained.
    PPG Industries, Inc. recommend harmonization, unless upon 
evaluation PHMSA feels there is a reason to continue regulation of 
large packages of HFCLs, then consideration should be given to limiting 
regulation to cargo tanks and tank cars which are domestic packages. 
Recommend retaining LFCL exception option (non-bulk) because it 
provides significant regulatory relief, and DOT reporting system is 
already cluttered with the reporting of inconsequential coatings 
incidents for small packagings of flammable liquids with flash points 
less than 100[emsp14][deg]F.

D. Examples of Comments in Support of Expanded Exceptions for Farm 
Operations or Agribusinesses and Granting Petition P-1536

    The Indiana Farm Bureau Inc. supports petition P-1536 and said that 
given the changes in agricultural operations over the last few decades, 
its members believe that this change is warranted and necessary. In its 
comments, Indiana Farm Bureau states that tractors and combines now 
routinely have fuel tanks with a capacity well over 119 gallons. It is 
impractical for farm operations to transport quantities smaller than 
those needed to fully fill their tanks. Given that multiple implements 
may be used in the same field at any one time, it is not uncommon for 
quantities of fuel approaching or even exceeding 1,000 gallons to be 
needed to fill all the equipment at one time. Furthermore, 1,000 gallon 
fuel tender tanks are becoming more prevalent in the market and on 
farms. With the increasing size of farming operations and the resulting 
increased intensity of production in a small window for completion, 
farm-owner labor is often insufficient and supplemental labor through 
seasonal or temporary workers is often needed. The commenter further 
states that the regulations should recognize the necessity of these 
workers and the difficulty they may have in seeking a commercial 
driver's license with a hazmat endorsement in a timely manner.
    In addition, the Indiana Farm Bureau Inc. states that for the sake 
of clarity in implementation, the regulations should be written so that 
they can be consistently applied across farming operations, regardless 
of how they are organized or whom they employ. As noted in the Custom 
Harvesters' petition, custom harvesters replace the farmer in the field 
during harvest. However, it is not only harvesting in which custom 
farming is done. Numerous farmers do some custom farming work for their 
neighbors, including but not limited to tillage, planting, spraying, 
and nutrient application. The members of the Indiana Farm Bureau Inc., 
support an expanded exception from placarding for transportation of 
combustible liquids in a quantity not to exceed 1,000 gallons, and that 
the change in the exception is needed to keep pace with agricultural 
production. Furthermore, its members are confident that the expanded 
exception will still maintain the necessary standards of safety needed 
to protect farm workers and the public.
    Zeorian Harvesting & Trucking states that the HMR should provide an 
expanded exception for the current regulation for the transportation of 
combustible liquids to a threshold of 3,785 L (1,000 gallons), and that 
packaging, hazard communication and other requirements would be exempt, 
as they are now under the non-bulk packaging classification of 450 L 
(119 gallons). The commenter suggests that a brightly colored signage 
or labeling stating ``Combustible Liquid--Diesel Fuel'' could be placed 
on all visible sides of the fuel tank to allow emergency personnel and 
the general public knowledge of the type of liquid they are dealing 
with in case of an accident. The commenter asserts that the label would 
give more detail than the current ``1993'' placard, as not everyone 
knows what this means, and that anyone coming upon an accident in the 
agricultural areas of the nation will already know that an overturned 
service truck would more than likely have diesel fuel in the tank. The 
commenter expresses the belief a ``Combustible Liquid--Diesel Fuel'' 
label would verify this. Further, the commenter stated that the HMR 
could provide a ``sub'' classification for the class of materials 
identified as combustible liquids. This ``sub'' classification could be 
an agricultural classification which would provide the expanded 
exception of the transportation of combustible liquid to 3,785 L (1,000 
gallons) and all packaging, hazard communication and other requirements 
would be exempt--as non-bulk packaging (450 L/119 gallons) currently 
is. The commenter concludes that such signage or labeling, 
``Combustible Liquid--Diesel Fuel'' could be brightly colored and 
visible on all sides of the tank, and the costs would be minimal, i.e. 
the creation and costs involved in the signage, labeling or sticker.
    Kent Braathen, currently Vice President of U.S. Custom Harvesters 
Inc., stated:

    I strongly support the expanded exception for domestic 
transportation involving U.S. Custom Harvesters ability to transport 
a threshold amount of combustible liquid DIESEL no more than 1000 
GALLONS. In our 40 years of operation, we have never had a 
reportable amount of diesel spilled. We have always stressed safety 
when operating a vehicle transporting diesel and when filling the 
tanks on all equipment, including trucks. Our safety awareness has 
increased dramatically the past couple of years due to safety 
meetings being attended at U.S. Custom Harvesters meetings. The 
meetings have been conducted by personal [sic] from PHMSA which has 
been a tremendous help to all of us. With the exemption I would 
strongly encourage replacing the current placards with COMBUSTIBLE 
DIESEL in red lettering on a white background making it easily 
identifiable by emergency responders and those that are first on the 
scene of any accident. We are not asking for an exemption that we 
already do not have, currently we have the ability to haul up to 
1000 gallons of diesel with a seasonal class B CDL, you can be 16 
years of age with a clean driving record, NO HAZMAT training and 
obtain this for a 6-month period. Now 18 years after we were given 
this exemption, we all are required to have a CLASS A CDL which 
requires all of us to have extensive training, but the inability to 
haul up to 1000 gallons of diesel unless we obtain the hazmat 
endorsement. Most of us do not have our employees in place until 2 
weeks to 1 month before our seasonal harvest begins making it 
impossible to obtain the hazmat in a timely manner. Others of us 
hire H2A workers which cannot even be considered for a hazmat.

    Alan Darrel Lutz said that as a custom harvester, we require 
laborers to travel for weeks and sometimes months at a time. This leads 
us to hire H2A workers and as they have limited time here, getting a 
HazMat endorsement as well as a CDL is impossible and unreasonable. 
With the numerous equipment our industry requires, and fields being 
twenty or more miles away from any town (fuel station), we need to haul 
the fuel to use it. It is not feasible to drive to a gas station twice 
a day for Choppers and Combines to re-fuel. Further, Mr. Lutz states 
that if we are allowed to haul at least 1,000 gallons, without the need 
of a Hazardous Materials Endorsement, we would conserve fuel, and 
traffic

[[Page 31823]]

would be decreased along small two-lane highways. Not only does this 
allow for more conservation of fuel because of less running around, it 
reduces danger and risk to our help as well as other drivers. Less 
continuous travel back and forth on dangerous highways decreases the 
number of trucks on the road and therefore decreases the possibility of 
accidents. Please consider this change.

E. Examples of Comments Recommending No Action Until PHMSA Analyzes 
Flammable/Combustible Incident Data

    Many commenters in support of and in opposition to harmonization 
both said that more analysis of incident data is necessary. DGAC said 
that in deciding whether to deregulate this group of materials 
entirely, it recommends that PHMSA undertake an in depth analysis of 
its incident data in deciding whether to continue to regulate materials 
with a flash point above 60 [deg]C (140 [deg]F) and below 93[deg] C 
(200 [deg]F). API strongly recommends PHMSA consider the actual risk 
severity and frequency of incidents involving combustibles in non-bulk 
packagings before proposing changes to existing regulations in response 
to the IVODGA petition.
    The IAFC said it recognizes and appreciates that container markings 
can create significant issues for the industry as related to compliance 
with hazardous materials shipping regulations; however, IAFC said 
eliminating the markings will pose an increased risk to emergency 
responders by removing critical hazard information. The IAFC recognize 
that providing some limited relief for shipments of HFCLs of certain 
quantities may be reasonable and appropriate, but would recommend a 
risk analysis be conducted to determine the appropriate volumes that 
would be acceptable.
    COSTHA's members believe PHMSA should take a close look at the 
number of incidents involving these materials. COSTHA stated that in 
reviewing the 5800.1 reports posted on PHMSA's Web site, approximately 
100,000 incidents involving Class 3 materials have been reported since 
1998. Of those, only 8% involved materials classified as combustible 
liquids (3.8% of the total were packed in non-bulk packaging). Further, 
0.02% of the nearly 8,300 incidents resulted in 21 fatalities. None of 
the reported fatal incidents involved non-bulk packaged combustible 
liquids but instead was in bulk packaging. Industry has estimated the 
number of combustible liquid shipments may be as many as 10,000-20,000 
per day, and that with over 12 years of reporting, assuming the lower 
estimate, that would equate to nearly 44 million shipments of 
combustible liquids.

IV. Summary of Commenters Responses to Specific Questions

A. Questions Raised in the ANPRM

    PHMSA invited commenters to submit comments on a series of 
questions, based on the discussion of the issues raised in the preamble 
of the ANPRM. The questions are as follows:

    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)? Should the HMR continue to permit Class 3 materials with 
flashpoints above 60 [deg]C (140 [deg]F) to be reclassed and 
transported as combustible liquids? 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 (1000 
gallons) or 13, 240 L (3500 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 materials 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?

    The commenters opposed to and in support of harmonization were both 
mostly opposed to: (1) Providing expanded exceptions for the 
transportation of combustible liquids, such as excepting combustible 
liquids below a certain threshold (e.g., not more than 1,893 L (500 
gallons), 3,000 L (793 gallons), 3,785 L (1,000 gallons), or 13,249 L 
(3,500 gallons) from packaging, hazard communication, or other 
requirements; (2) expanded exceptions specifically for farm operations 
or agribusinesses; and 3) expanded materials of trade exceptions for 
persons who transport combustible liquids. Most of the commenters also 
do not support a requirement for all combustible liquids to be 
described as ``Combustible liquid, n.o.s.'', and recommend that the HMR 
require the use of shipping names that most appropriately and 
accurately describe the material being transported. Commenters believe 
that proper shipping names such as Kerosene, Turpentine, Diesel fuel, 
Paint, etc., provide much better information to emergency responders 
than does ``Combustible liquid, n.o.s.''
    As well, except for U.S. Custom Harvesters' members, most 
commenters do not support providing for use of a unique combustible 
liquid marking (e.g., the words ``COMBUSTIBLE'' or ``COMBUSTIBLE 
LIQUID'') in place of COMBUSTIBLE placards and other hazard 
communication for bulk shipments of combustible liquids. The commenters 
also do not support the use of the domestic identification number, 
NA1993, on bulk packages displaying a combustible liquid marking. Most 
commenters believe that COMBUSTIBLE placards must be maintained to 
communicate these hazards to emergency response personnel. Commenters 
believe a new marking to communicate the presence of Combustible 
Liquids would only add to confusion, and would increase cost for 
retraining employees and personnel.

B. Commenters Recommendations Not Addressed in the ANPRM

    1. Dangerous Goods Advisory Council (DGAC)--recommended a new 
marking for reclassed, non-bulk (LFCL; 100-140 [deg]F) combustible 
liquids, which may end up on aircraft undeclared. DGAC recommends a

[[Page 31824]]

package marking that consists of a circle surrounding figures of an 
airplane and a vessel with a line through the figures to alert 
shippers, and vessel and airline acceptance personnel.
    2. DGAC requests that PHMSA except HFCL from regulation when 
transported in specification packages of less than 3,000 L (793 
gallons) capacity (the upper limit for intermediate bulk containers 
(IBCs)), or when in an ISO (UN) portable tank in international 
commerce.
    3. DGAC further petitions PHMSA to relieve IBCs containing HFCL 
from currently required HMR safety mark requirements independent of 
whether they are being transported in international commerce.
    4. American Coatings Association (ACA)--recommend PHMSA retain 
option to reclassify LFCL in non-bulk packagings because the impact 
of eliminating reclassification option would subject such shipments 
to tunnel & local hazmat restrictions. However, would eliminate 
requirements regulating HFCL in bulk packagings.
    5. National Association of Chemical Distributors (NACD) and 
Printing Industries of America (PIA)--the disadvantage of 
eliminating C/L reclassification exception could result in 
complications for chemical distributors who receive regular visits 
from fire officials. Note: NFPA has its own system of markings for 
various flash points, but generally follow DOT (OSHA, too); that is, 
for ``NFPA Class IIIA Combustible liquids, NFPA/fire officials may 
require NFPA labels on such packages because there would be no DOT 
labels/markings to recognize. (See Chapter 4/NFPA ``30'' 
Classification of C/L and F/L).
    6. American Petroleum Institute (API)--recommend other marking 
would mitigate undeclared C/L in non-bulk packaging (i.e., at risk 
packaging) as follows:
     ``Ground Transport Only''
     ``Not Authorized for Air or Marine Transport''
    7. American Trucking Associations (ATA)--recommend that PHMSA 
work not only on changes to the domestic regulations, but also 
utilize its influence at the UN to potentially align the UN 
Recommendations with the HMR. ATA also expressed the belief that 
deregulation of C/L could create certain safety risks. For example, 
certain bulk tank trucks utilize compressed air to unload. These 
compressors generate air pressure and may reach a temperature of 170 
[deg]F. As such, operators should not use these compressors to 
unload certain F/L and C/L. In the absence of effective Hazcom 
requirements, a safety risk could be created, as operators may not 
know whether it is safe to use compressed air for unloading.
    8. Institute Makers of Explosives (IME)--Ninety-five percent of 
water-based explosive products (emulsions, slurries, watergels) and 
blends (Explosive 1.5D blasting agents) are delivered to jobsites in 
bulk and a significant quantity of that material is transported in 
``multi-purpose bulk trucks'' (``MBTS''). MBTs serve as mobile-work 
platforms that facilitate the off-loading of water-based explosive 
materials, ammonium nitrate/fuel oil materials (``ANFO''), of blends 
of the two directly into boreholes, which are equipped to mix AN and 
FO (and other materials) in a customized formulation appropriate to 
the conditions at a particular worksite; the frequent use of ANFO 
for blasting activity requires the transportation of combustible FO 
on MBTs.
    Currently, MBTs are operated under Special Permits (``SPs''). If 
PHMSA were to eliminate the regulatory option for reclassed 
combustibles, all commercial explosives companies operating MBTs 
would be forced to seek a new SP or a modification of their existing 
SPs to request a specific exception from the ``flammable'' 
classification for the transportation of FO with flash points 
between 38 [deg]C (100 [deg]F) and 60 [deg]C (140 [deg]F). This 
action would be necessary because, under the HMR, flammable 
materials are incompatible with other hazardous materials 
transported on MBTs. This could be an addition of over 150 more SP 
applications that would add to this already daunting (serious 
backlog) workload.
    9. Indiana Farm Bureau, Inc.--recommend applying placarding 
exception for 1,000 gallon capacity tanks not just to custom 
harvesting, but to custom farming. Numerous farmers do custom 
farming work for their neighbors, including but not limited to 
tillage, planting, spraying, and nutrient application. The Indiana 
Farm Bureau recommended, for the sake of clarity in implementation, 
the regulations should be written so that they can be consistently 
applied across farming operations, regardless of how they are 
organized or who they employ.
    10. National Fire Protection Association (NFPA)--recommend PHMSA 
retain current requirements for those combustible materials with 
flash point above 60 [deg]C (140 [deg]F) and below 93 [deg]C (200 
[deg]F) because this category of materials is still capable of 
posing a fire or explosion hazard during transportation, especially 
if involved in an accident where other, more easily ignited 
materials are present. NFPA believes that if some of the changes 
were adopted, they could impact label and other Hazcom provisions 
for this class of materials. NFPA noted that there is no discussion 
in this ANPRM regarding the pending OSHA rulemaking to amend its 
Hazard Communication Standard (HCS) in 29 CFR 1910.1200 by 
incorporation of the Globally Harmonized System (GHS). NFPA 
recommends that the rulemaking activities discussion in the ANPRM be 
reviewed and coordinated--both will have significant impacts on the 
emergency responder sector.
    11. International Association of Fire Chiefs (IAFC)--recommend 
retaining requirement for HFCL. IAFC said that while deregulation of 
those materials would decrease issues in international trade and 
ease the movement of those commodities, it would remove important 
warnings for emergency responders about the presence of a 
combustible liquid. While IAFC appreciates the fact that these 
materials may pose a low risk due to their high flash point, there 
can be a significant risk factor in the event that these materials 
are exposed to a fire or other incident. Another consideration is 
whether or not such an exemption would increase security risk since 
these products can be used in combination with other products for 
production of certain explosives such as ANFO.
    12. Association of American Railroads (AAR) is concerned about 
applying train placement and switching restrictions to hazardous 
materials that have not been previously subject to them, without a 
need to do so, would be counterproductive, from a safety and 
economic perspective.

    Since none of these issues were raised or examined prior to, or in 
the April 5, 2010 ANPRM, and there has been no consideration or 
discussion given to these issues, PHMSA is not addressing these 
subjects in this notice, at this time.

V. Denial of Petitions P-1498, P-1531, and P-1536

    Issue: Treatment of flammable liquids in the U.S. HMR is at 
variance with the UN Recommendations. In the U.S., flammable liquids 
may be reclassed as combustible liquids by the material's flash point--
the temperature at which it emits an ignitable vapor and can catch 
fire. The lower the flash point, the higher the fire hazard. The two 
systems are comparable as follows, with the variance shaded:

 
------------------------------------------------------------------------
                                        UN          HMR (domestic ground
          Flash point            Recommendations         shipments)
------------------------------------------------------------------------
Below 100 [deg]F..............  Flammable (Class   Flammable (Class 3).
                                 3).
100-140 [deg]F................  Flammable (Class   Flammable (Class 3),
                                 3).                with option to
                                                    reclassify as
                                                    Combustible, non-
                                                    bulk shipments
                                                    excepted.
140-200 [deg]F (a.k.a. High     Unregulated......  Combustible (bulk
 Flash Point Combustible                            only), non-bulk
 Liquids, or HFCLs).                                shipments excepted.
Above 200 [deg]F..............  Unregulated......  Unregulated.
------------------------------------------------------------------------


[[Page 31825]]

    Two of the petitions claim there are inefficiencies in 
international trade due to frustration of shipments caused by 
intentional differences between the HMR and the UN Recommendations; and 
the third petition representing custom harvesters, a specialized 
industry, claims economic losses from the requirements placed on 
drivers of vehicles carrying bulk volumes of combustible materials, and 
requests relief from placarding for some agricultural tanks having a 
capacity of 1,000 gallons, claiming the delay due to FMCSA's CDL/hazmat 
endorsement provisions and TSA's background check for drivers required 
to have hazmat endorsements (HMEs) interferes with the efficiency of 
their business.
    In accordance with 49 CFR 106.95, Petitions P-1498, P-1531, and P-
1536 are denied for the following reasons:

A. Petitions P-1498 and P-1531

    1. Harmonization of domestic regulations with the international 
standards for Class 3 (flammable liquids) materials with flash points 
between 38 [deg]C (100 [deg]F) and 60 [deg]C (140 [deg]F) would 
eliminate the domestic exception option for shippers to reclassify such 
materials as combustible liquids. Eliminating the combustible liquids 
hazard classification option could possibly result in many materials 
falling under the flammable liquids classification (UN) criteria and 
require use of more expensive, specification, non-bulk and bulk 
packagings as opposed to less expensive, non-specification, non-bulk 
and bulk packagings, currently allowed for combustible liquids. 
Shipments of non-bulk packagings of combustible liquids in domestic 
transportation are currently shipped unregulated. Potentially adopting 
UN classification criteria for Class 3 (flammable liquids) and 
eliminating the combustible liquids classification criteria in the U.S. 
would greatly impact costs and increase burdens on the regulated 
industry.
    2. The safety of emergency responders could be compromised if bulk 
shipments of combustible liquids having a flash point of 60 [deg]C (140 
[deg]F) and 93 [deg]C (200 [deg]F) moving in domestic transportation 
were to be shipped as unregulated, with no hazard warning labels or 
placards, markings, or shipping papers to assist emergency responders 
in case of an incident involving such materials. Many commenters agree, 
including the NFPA and the IAFC.
    3. The cost of retraining shippers, carriers, and emergency 
response personnel, who are extremely familiar with the current system, 
would be increased. Generally, commenters agree that there would be an 
added cost in implementation if the combustible liquid reclassification 
option and the domestic exceptions were eliminated.
    4. Costs are broadly attributable to new packaging, training, 
registration, and marking costs. The wide range of industries affected 
by combustible liquids in transportation is widespread enough to 
outweigh potential benefits to either regulatory option.
    5. Under full-harmonization, non-specification tanks carrying 
reclassed combustible liquids would have to be replaced by 
specification tanks in the absence of the reclassification option. 
Commenters have noted that current practice is to move tanks from 
specification to non-specification service as they age and that 
requiring materials like asphalt to be carried in specification cargo 
tanks would make them unusable for other materials. Multiple commenters 
quoted a retail price for specification tanks at $75,000 to $80,000 
each. Calls to Polar Tank for used tank prices yielded a range of 
$30,000 to $35,000 for specification tanks and $24,000 to $25,000 for 
non-specification tanks. The upper end of each of these ranges was used 
[see economic analyses on file in docket] due to an assumption that 
less-costly tanks were likely older and less appealing as a long-term 
investment.
    This then means that the usual increment between a specification 
and non-specification tank is approximately $10,000. The number of 
tanks in use for shipping combustible liquids was determined by taking 
the U.S. Energy Information Administration's (EIA) reported figure for 
millions of barrels of fuel distillates transported through the U.S. 
per day, converting to gallons, and dividing that figure by the average 
assumed tank size (3,000 gallons) and the number of trips per day 
recorded by the most recent (2002) Vehicle Inventory and Use Survey 
(VIUS). This gives us an estimate of 12,100 cargo tanks that would 
require replacement. [Note that in HM-213D (the Wet lines rule), there 
is a standing estimate of 27,000 tank trucks operating in the U.S. just 
with undercarriage piping.] Therefore to upgrade all 12,100 cargo tanks 
at a cost of $10,000 each would cost carriers $121 million for a single 
upgrade. This assumes that used tanks will be widely available for the 
mass replacement of non-specification tanks by specification tanks; it 
is likely that a number of new tanks would be brought into service at a 
notably higher cost.
    6. Non-bulk shipments would be another area of concern. Under the 
harmonization option, shippers of flammable liquids with a flash point 
of 60 [deg]C (140 [deg]F) or below would no longer have the option to 
reclassify them as combustible liquids, currently shipped unregulated. 
Such shipments would be required to be shipped in specification, non-
bulk packagings. Although safety is maintained, shippers would be 
required to invest in more costly specification, non-bulk packagings to 
ship such materials as paint, ink, and adhesives.
    7. Training and information would be required (at least one session 
of retraining) for all shippers, carriers, and emergency responders. 
(One commenter, Printing Industries of America, claimed to represent 
10,000 companies which would require some form of training.) The 
overall cost would be substantial, with nearly 700,000 workers in the 
U.S. requiring updated training would cost $2.75 million per year or 
$27.5 million after 10 years; at 3% discount this is $23.3 million and 
at 7% discount this is $18.9 million. We can be certain there are also 
a number of large companies that would then be required to register 
annually and pay higher fees (not included in these figures) under 
harmonization. The ERG would have to be updated as well.
    8. Under harmonization, many shippers/carriers would have to 
replace the COMBUSTIBLE placard with the FLAMMABLE placard. For the 
most part, four (4) square-on-point placards would be required. It is 
estimated that 80% of placards sold are removable vinyl or tag board, 
10% are permanent vinyl, and 10% are durable aluminum. Therefore, 
replacement costs would be necessary. For 10,000 Cargo Tank Motor 
Vehicles (CTMVs), there would be four square-on-point placards required 
per tank. Private communication with J.J. Keller yielded estimates that 
80% of placards sold are removable vinyl or tag board, 10% are 
permanent vinyl, and 10% are durable aluminum. At market prices, it 
would cost about $126,000 to replace them all.
    In practice, most flammable liquids with a flash point at or above 
100 [deg]F to 200 [deg]F may be reclassed and shipped as combustible 
liquids within the U.S. There is no international hazard class 
definition for ``combustible liquids.'' The combustible liquids 
provisions do not apply to transportation by aircraft or vessel, in 
most cases. The average new marking would thus likely cost around $3 on 
average. As with harmonization, for industry to replace a COMBUSTIBLE 
placard with a COMBUSTIBLE marking would require 40,000 units to be 
purchased, for a total of $120,000. A representative from J.J. Keller 
estimated that the cost to develop a new marking would likely be on the 
order of $4,000. The total would then be $124,000 for

[[Page 31826]]

the new marking. Again, we refrain from including replacement costs for 
these markings following the initial changeover. Note also that the use 
of a COMBUSTIBLE marking vs. a COMBUSTIBLE placard would be an optional 
provision.
    9. Although both petitioners claim the variance delays shipments 
moving internationally because these shipments are placarded with 
COMBUSTIBLE placards, which are not recognized internationally, 
international commerce would not necessarily be expedited by 
deregulation. DGAC's estimated delay cost for one freight container was 
approximately $300 to $500. For comparison, Maersk, the world's largest 
container line does not levy demurrage (delay charges) for (twenty-foot 
equivalent unit (TEU)) export shipments waiting up to seven days or 
import shipments waiting up to four days. Beyond this ``free time,'' 
the charges average $100 per day for exports and $225 per day for 
imports. If placarding issues actually forced delays concomitant with 
DGAC's estimates, the cost would be nothing for exports and $225 for 
imports--for one day in excess of the ''free time'' granted.) Many 
commenters feel and PHMSA agrees that placing a non-recognized 
``Combustible'' marking on international transport containers would not 
ultimately lead to a different outcome. Even so, this is a matter of 
shippers, carriers, and freight forwarders or agent's responsibility to 
be knowledgeable about and observant of, the regulations.
    10. The requirements for shipping combustible liquids in the U.S. 
are less costly and adequate level of safety is maintained. Neither 
IVODGA nor DGAC presented any evidence for its claim that the U.S. 
regulations as are currently applied are responsible for undeclared 
shipments in international transport, much less that there has been any 
harm from these shipments leading to incidents. Commenters in support 
of harmonization did not provide documentation, specific information or 
data to support their contention that mishandling, misidentification, 
demurrage or delay, or undeclared combustible liquids shipments 
occurred and is a major factor compromising safety or in causing non-
compliance.

B. Petition P-1536

    Comments were solicited on whether the HMR should provide use of a 
unique COMBUSTIBLE marking in place of COMBUSTIBLE placards for the 
custom harvester industry who replaces the farmer in the fields at 
harvest time. The purpose is to exempt custom harvesters from 
placarding bulk tanks having a capacity of 1,000 gallons, which in turn 
exempt them from FMCSA's hazmat endorsement on a Commercial Driver's 
License (CDL). The petition is denied for the following reasons:
    1. Except for custom harvesters, the majority of commenters on 
harmonization opposed expanded exceptions and particularly for farm 
operations or agribusinesses only.
    2. On June 28, 2011, Senator Pat Roberts (KS) introduced Senate 
Bill S. 1288 to the 112th Congress (2011-2012), read twice and referred 
to the Committee on Commerce, Science, and Transportation. The Bill 
directs the Secretary of Transportation to exempt from the requirement 
to obtain a hazmat endorsement all Class A CDL holders who are custom 
harvesters, agricultural retailers, agricultural business employees, 
agricultural cooperative employees, or agricultural producers who 
operate a service vehicle with a fuel tank containing 3,785 liters 
(1,000 gallons) or less of diesel fuel if the tank is clearly marked 
with a placard reading ``Diesel Fuel.'' The Senate Bill has four (4) 
cosponsors.
    3. On July 6, 2011, Representative Randy Neugebauer (TX), 
introduced to the 112th Congress (2011-2012), a related or identical 
House Bill (H.R. 2429) which was referred to the House Subcommittee on 
Transportation and Infrastructure. On July 7, 2011 the House Bill H.R. 
2429 was referred to the Subcommittee on Highways and Transit. The 
House Bill has twelve (12) cosponsors.
    4. The two (2) Bills (S. 1288 and H.R. 2429) introduced were aimed 
at increasing the amount of diesel fuel allowed to be hauled by 
agriculture sector employees--in some cases from 118 gallons to 1,000 
gallons--without certain federal regulations applying. The two Bills 
are intended to help the agriculture industry to operate more 
efficiently. If passed, the legislation would allow the custom 
harvester and other agricultural related businesses to haul up to 1,000 
gallons of diesel fuel in a bulk packaging without a hazmat endorsement 
on their Class A CDL. Since this issue would be addressed by the 
Federal Motor Carrier Safety Administration Regulations (FMCSR) 
governing Commercial Driver's Licenses, PHMSA believes it would be in 
the best interest of all parties involved, including the U.S. Custom 
Harvesters, Inc., to await the outcome of this legislation. Thus, CDL 
legislation would be subject to, and implemented by, the Department's 
Federal Motor Carrier Safety Administration's Federal Motor Carrier 
Safety Regulations (FMCSR).
    5. Prior to publication of the April 5, 2010 notice, FMCSA denied a 
request from the U.S. Custom Harvesters, Inc., to conduct a pilot 
program where custom harvesters would transport diesel fuel in bulk 
packagings, but would be excepted from placarding under the HMR and 
thus from the hazmat endorsement on the CDL, which triggers a TSA 
background check. During this same period, PHMSA also denied a request 
from the U.S. Custom Harvesters, Inc., for a special permit to 
transport bulk shipments of diesel fuel without placarding. Basically, 
both agencies felt that neither should diminish nor weaken the other 
agency's rules or enforcement.

VI. Conclusion

    Many commenters recommended analysis of incident data to determine 
whether a proposed rule would be warranted. In the April 5, 2010 ANPRM, 
OHMS staff solicited comments on two possible regulatory options that 
may address these requests, as follows:
    1. Harmonize with the UN Recommendations, eliminating the 
Combustible liquids hazard class and the domestic exceptions for non-
bulk and bulk shipments. This would directly address IVODGA and DGAC's 
concerns, but may not maintain an adequate level of safety involving 
these materials transported in domestic transportation.
    2. Adopt a new marking for Combustible liquids, designed to pass 
through international customs facilities without inciting frustration 
while still communicating emergency information. This may address the 
Customer Harvesters' issue and potentially satisfy IVODGA and DGAC's 
concerns at the port.
    PHMSA believes that each option has the potential to reduce the 
level of safety and neither is guaranteed to expedite commerce. 
Quantitative information on costs and benefits is difficult to come by; 
a partial cost analysis was conducted on elements of the regulatory 
options that could be enumerated based on ANPRM comments and further 
research. These figures will serve as a ``floor'' for the cost 
analysis, that is, actual costs would likely be higher but no lower 
than the numbers cited. The benefit-cost summary outlines the economic 
difficulties of pursuing either option; benefits are estimated 
generously and costs are estimated to the extent possible with limited 
information in order to illustrate the confidence with which we state 
that neither regulatory

[[Page 31827]]

option is cost-effective relative to current practice. The costs 
associated with implementing the petitions would far exceed the 
benefits. For access to the economic analysis go to https://www.regulations.gov.
    In addition, from the perspective of the emergency responder, any 
effort to deregulate combustible liquids represents a reduction in the 
current safety practices that protect and alert those responding to 
transportation incidents or other emergencies involving this class of 
hazardous materials.

    Issued in Washington, DC, on May 23, 2012, under authority 
delegated in 49 CFR part 106.
R. Ryan Posten,
Deputy Associate Administrator for Hazardous Materials Safety, Pipeline 
and Hazardous Materials Safety Administration.
[FR Doc. 2012-12958 Filed 5-29-12; 8:45 am]
BILLING CODE 4910-60-P