Regulatory Developments

DOT Considering Changes to Regulations Governing Transportation of Combustible Materials

April 12, 2010 PRINT

The U.S. Department of Transportation's (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) on April 5, 2010, issued an Advance Notice of Proposed Rulemaking (ANPRM) stating that it is considering revising the hazardous materials regulations (HMRs) governing the transportation of combustible materials. 75 Fed. Reg. 17111. Specifically, PHMSA is seeking to harmonize the domestic regulations applicable to the transportation of combustible liquids with international transportation standards. Comments on the ANPRM are due by July 6, 2010.

According to the ANPRM, current provisions of the HMRs as they relate to shipments of combustible materials create impediments to international shipments of such materials. PHMSA is using the ANPRM to solicit comments and ideas on how to amend the HMRs to remove these impediments while still maintaining an appropriate measure of safety for transporting combustible materials.

The existing regulations at 49 C.F.R. Section 173.120 define a "combustible liquid" as any liquid that does not meet the definition of any other hazard class specified in the HMRs and has a flash point above 140 °F and below 200 °F. Moreover, under the HMRs, shippers can "reclassify" flammable liquids as combustible liquids if the liquid has a flash point above 100 °F and does not meet the definition of any other hazard class. International standards, however, do not include a definition or classification for combustible materials, nor do they provide for the reclassification of flammable liquids to combustible liquids. Thus, when transporting combustible materials internationally, shippers have encountered difficulties with international authorities who are confused over the combustible classification. In fact, PHMSA has received three separate petitions from trade groups seeking to amend the HMRs to harmonize the U.S. standards with the international shipping standards.

Based on the petitions for rulemaking, and PHMSA's review of domestic and international regulations applicable to the transportation of combustible liquids, PHMSA has identified a number of issues that it may address through rulemaking. These include:

  • Harmonizing the HMR definitions and requirements for combustible liquids with international standards;
  • 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
  • Expanding current HMR exceptions for combustible liquids to accommodate unique operational requirements.

With respect to international harmonization, PHMSA states that it 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. PHMSA also notes that 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. PHMSA is thus considering a proposal to eliminate the current domestic exception that allows the reclassification of high flash point flammable liquids 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 140 °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.

PHMSA is also considering an alternative for high flash point flammable liquids. Specifically, PHMSA states that it may 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 (flammable) materials. PHMSA believes this would eliminate the necessity to reclassify these materials as combustible liquids to utilize the exceptions. PHMSA believes this alternative could be less cumbersome and could facilitate a clearer understanding of the regulations.

In addition to considering harmonizing the HMR definitions and requirements for flammable liquids with international standards, PHMSA is considering whether utilization of unique identifiers for combustible liquid shipments could help to eliminate the confusion that currently results when shipments of reclassified combustible liquids or combustible liquid shipments regulated under the HMR but not regulated under international standards are transported to or from the United States. PHMSA is also considering expanding exceptions applicable to the transportation of combustible liquids to accommodate unique operational requirements or needs. For example, PHMSA is 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). PHMSA states that it also may expand current exceptions for hazardous materials that are transported in support of agricultural operations to include activities such as the harvesting operations.

PHMSA has asked interested parties to submit comments responding to the following questions:

  • Should the HMRs continue to apply to materials with a flashpoint above 140 °F and below 200 °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?
  • Should the HMRs continue to allow Class 3 materials with flashpoints between 100 °F and 140 °F to be reclassified 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?
  • Should the HMRs provide expanded exceptions for the transportation of combustible liquids? For example, should the HMRs except combustible liquids below a certain threshold from packaging, hazard communication, or other requirements? What are the potential impacts on hazard communication and emergency response notification of such changes?
  • Should the HMRs include expanded exceptions for farm operations or agribusinesses? Should the HMRs 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?
  • Should the HMRs 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."? What safety benefits would result from the use of shipping descriptions unique to combustible liquid materials? How would such a change affect emergency response?
  • Should the HMRs 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 HMRs 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?

 
BERGESON & CAMPBELL, P.C.
2200 Pennsylvania Avenue, NW, Suite 100W
Washington, D.C. 20037
202-557-3800 • 202-557-3836 (fax) | lawbc.com
Contact • Twitter
 
Privacy Policy | Terms of Use | Cookie Policy | Attorney Advertising | Trademarks
©2021 Bergeson & Campbell, P.C.
All Rights Reserved.