
[Federal Register: April 5, 2010 (Volume 75, Number 64)]
[Proposed Rules]               
[Page 17111-17119]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ap10-30]                         

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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: http://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 http://
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 
http://dms.dot.gov.
    Docket: For access to the docket to read background documents and 
comments received, go to http://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

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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 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 http://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

