Hazardous Materials Regulations: Combustible Liquids
Federal Register, Volume 77 Issue 104 (Wednesday, May 30, 2012)
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
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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: Withdrawal of Advance Notice of Proposed Rulemaking (ANPRM) and denial of petitions P-1498, P-1531, and P-1536.
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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-
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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 http://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 http://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
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Background
A. Issues Prompting ANPRM
B. Advance Notice of Proposed Rulemaking
C. Petitions for Rulemaking
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IVODGA Petition for Rulemaking
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DGAC Petition for Rulemaking
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U.S. Custom Harvesters, Inc. Petition for Rulemaking
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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
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Summary of Commenters Responses to Specific Questions
A. Questions Raised in ANPRM
B. Commenters Recommendations Not Addressed in ANPRM
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Denials of Petitions P-1498, P-1531, and P-1536
A. Petitions P-1498 and P-1531
B. Petition P-1536
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Conclusion
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Background
A. Issues Prompting Advance Notice of Proposed Rulemaking
When packaged in non-bulk packagings, a material with a flash point of 38 degC (100emsp14degF) or more but less than 60 degC (140emsp14degF) 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 degC (140 degF) and 93 degC (200 degF) 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 degC (200 degF), 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
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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.
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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 degC (140 degF) but below 93 degC (200 degF) 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 degC (140 degF) and 93 degC (200 degF) 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 degC (140 degF). 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.
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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
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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 degC (140 degF) and 93 degC (200 degF). 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.
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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.
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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
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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 60emsp14degC (140emsp14degF) and below 93emsp14degC (200emsp14degF). NTTC strongly asserts that the HMR should continue to allow Class 3 materials with a flash point between 38emsp14degC (100emsp14degF) and 60emsp14degC (140emsp14degF) 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 60emsp14degC (140emsp14degF). 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 170emsp14degF. 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 38emsp14degC (100emsp14degF) to 93emsp14degC (200emsp14degF) 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 60emsp14degC (140emsp14degF). 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 60emsp14degC (140emsp14degF) 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 (60emsp14degC 140emsp14degF)). However, if the exception is eliminated and FO with a flash point between 38emsp14degC (100emsp14degF) and 60emsp14degC (140emsp14degF) is designated flammable and is deregulated at flash points above 60emsp14degC (140emsp14degF), 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., ``Ground Transport Only''
``Not Authorized for Air or Marine Transport''
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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 degF. 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.
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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 degC (100 degF) and 60 degC (140 degF). 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.
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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.
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National Fire Protection Association (NFPA)--recommend PHMSA retain current requirements for those combustible materials with flash point above 60 degC (140 degF) and below 93 degC (200 degF) 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.
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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.
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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.
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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:
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UN HMR (domestic ground
Flash point Recommendations shipments)
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Below 100 degF.............. Flammable (Class Flammable (Class 3).
3).
100-140 degF................ Flammable (Class Flammable (Class 3),
3). with option to
reclassify as
Combustible, non-
bulk shipments
excepted.
140-200 degF (a.k.a. High Unregulated...... Combustible (bulk
Flash Point Combustible only), non-bulk
Liquids, or HFCLs). shipments excepted.
Above 200 degF.............. Unregulated...... Unregulated.
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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
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Harmonization of domestic regulations with the international standards for Class 3 (flammable liquids) materials with flash points between 38 degC (100 degF) and 60 degC (140 degF) 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.
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The safety of emergency responders could be compromised if bulk shipments of combustible liquids having a flash point of 60 degC (140 degF) and 93 degC (200 degF) 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.
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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.
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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.
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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.
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Non-bulk shipments would be another area of concern. Under the harmonization option, shippers of flammable liquids with a flash point of 60 degC (140 degF) 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.
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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.
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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 degF to 200 degF 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
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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.
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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.
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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:
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Except for custom harvesters, the majority of commenters on harmonization opposed expanded exceptions and particularly for farm operations or agribusinesses only.
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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.
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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.
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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).
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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.
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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:
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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.
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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
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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 http://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
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