[Federal Register Volume 77, Number 104 (Wednesday, May 30, 2012)]
[Proposed Rules]
[Pages 31815-31827]
[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-

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<PHONE_NUMBER>, Office of Hazardous
Materials Safety, Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE., 2nd Floor, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. Background

A. Issues Prompting Advance Notice of Proposed Rulemaking

    When packaged in non-bulk packagings, a material with a flash point
of 38 [deg]C (100[emsp14][deg]F) or more but less than 60 [deg]C
(140[emsp14][deg]F) may be reclassed as a combustible liquid under the
HMR. A combustible liquid in a non-bulk packaging that is not a
hazardous substance, hazardous waste, or a marine pollutant is not
subject to HMR in domestic transportation, by highway or rail. However,
these same materials are regulated as flammable liquids when
transported by vessel, in accordance with the International Maritime
Dangerous Goods (IMDG) Code and by aircraft, in accordance with the
International Civil Aviation Organization's Technical Instructions
(ICAO Technical Instructions).
    When packaged in bulk packagings, a material with a flash point
between 60 [deg]C (140 [deg]F) and 93 [deg]C (200 [deg]F) is regulated
as a combustible liquid in domestic transportation. A combustible
liquid in bulk packagings is only minimally regulated in domestic
transportation, and allows a shipper to use a less expensive, non-
specification bulk packaging, in addition to having only to comply with
the requirements contained in 49 CFR 173.150. In addition, bulk
shipments of a combustible liquid must be placarded with a COMBUSTIBLE
placard. When combustible liquids are shipped internationally, the
COMBUSTIBLE placard is not recognized overseas because there is no
combustible liquid hazard class under the international standards.
Subsequently, shipments prepared in accordance with the HMR may be
frustrated by inspectors and enforcement personnel who are not familiar
with the U.S. requirements. To avoid confusion and delay in port areas,
shippers and carriers often remove the COMBUSTIBLE placard prior to
placing the shipment on board a vessel for overseas shipment.
Conversely, shipments originating overseas and bound for the United
States must affix the COMBUSTIBLE placard prior to the shipment's
movement out of the port area.
    In addition, a combustible liquid that is not a hazardous
substance, a hazardous waste, or a marine pollutant is not subject to
HMR requirements if it is a mixture of one or more components that has
a flash point at or above 93 [deg]C (200 [deg]F), comprises at least 99
percent of the volume of the mixture, and is not transported as a
liquid at a temperature at or above its flash point. Also, a
combustible liquid that does not sustain combustion is not subject to
the requirements of the HMR as a combustible liquid. Either the test
method specified in ASTM D 4206 or the procedure in appendix H of part
173 of the HMR may be used to determine if a material sustains
combustion when heated under test conditions and exposed to an external
source of flame.
    Further, the classification system in the UN Recommendations has no
combustible liquid category or hazard class. There is no provision in
the UN Recommendations, the International Civil Aviation Organization's
Technical Instructions for the Safe Transport of Dangerous Goods by
Aircraft (ICAO Technical Instructions), or the International Maritime
Dangerous Goods (IMDG) Code for flammable liquids to be reclassed as
combustible liquids. PHMSA recognizes that the HMR provisions for the
transportation of combustible liquids may potentially be confusing to
both domestic and international shippers and carriers of flammable and
combustible liquid shipments. We have also received opinions that the
lack of understanding or clarity of the U.S. regulations involving the
transportation of combustible liquids may present a tangible safety
concern, such as the mishandling or misidentification of these
shipments in transportation, or the transportation of undeclared
shipments.

B. Advance Notice of Proposed Rulemaking

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

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

C. Petitions for Rulemaking

    In the April 5, 2010 ANPRM, PHMSA also solicited comments on issues
related to three petitions pertaining to the transportation of
combustible liquids in both domestic and international commerce. The
petitions are discussed below.
1. IVODGA Petition for Rulemaking
    The International Vessel Operators Dangerous Goods Association
(IVODGA), formerly VOHMA, submitted a petition for rulemaking [P-1498;
PHMSA-2007-28238] concerning differing domestic and international
requirements for the transportation of combustible liquids. The UN
Recommendations do not include a definition or classification for
combustible liquids. In its petition, IVODGA asserts:
    (a) The display of a UN identification number for shipments that
are not regulated internationally may ``confuse'' foreign inspectors,
interlining carriers, foreign stowage planners, and intermodal feeder
systems in other jurisdictions [who may delay forwarding the shipments
until the confusion is resolved];
    (b) These frustrated shipments not only impede commerce but also
result in additional risks in the ports and terminals where they are
held;
    (c) emergency responders might also be confused by the UN
identification number marking on the bulk packaging such as ``1263'' or
``1210'', which are the numbers assigned to flammable paint and
flammable printing ink, respectively;
    (d) Reclassed combustible liquid shipments ``find [their] way''
into international distribution ``unlabeled and unmarked'' with the
result that they are undeclared as dangerous goods; and
    (e) for materials with a flash point above 60 [deg]C (140 [deg]F)
but below 93 [deg]C (200 [deg]F) authorize use of the proper shipping
name ``Combustible liquid, n.o.s. [if hazard class modified to read
``combustible liquid'' and intended for rail or highway transportation
only].
    IVODGA notes that the differing domestic and international
requirements for combustible liquids has resulted in conflicting and
confusing hazard communication requirements with the result that
international shipments may be frustrated as foreign authorities
attempt to reconcile HMR hazard communication schemes with
international regulations. For example, IVODGA said that many paints,
inks, adhesives, solvents, and petroleum products have flash points
between 60 [deg]C (140 [deg]F) and 93 [deg]C (200 [deg]F) and are
offered for transportation as combustible liquids within the United
States. However, the HMR permit such shipments to be described on a
shipping paper and to display markings, labels, and placards in the
same manner as shipments of flammable liquids with flash points of less
than 60 [deg]C (140 [deg]F). when these shipments are destined for
export [by vessel] to a jurisdiction outside the United States, because
of the confusion, such shipments may be delayed until the confusion is
resolved.
2. DGAC Petition for Rulemaking
    The Dangerous Goods Advisory Council (DGAC) submitted a petition
for rulemaking [P-1531; PHMSA-2008-0303] for amendment of the
requirements for combustible liquids in bulk packagings in order to
reduce port congestion and improve transportation efficiency in port
areas. In its petition, DGAC asserts:
    (a) The HMR requirements for high-flash-point combustible liquids
(HFCL) are disruptive to the flow of goods in port areas and contribute
to port congestion;
    (b) The required markings and labels and/or placards (safety marks)
that must be applied for purposes of U.S. domestic transport of an HFCL
export shipment must be removed in the port area in order to bring the
shipment into compliance with the requirements of the IMDG Code;
    (c) Industry practice in transporting HFCL by vessel provides a
higher level of safety than that afforded by the HMR, providing further
justification for regulatory changes facilitating transport of HFCL
transported by vessel;
    (d) When HFCLs are transported by vessel [i.e., imported to the
U.S.] they are transported in ISO portable tanks or Intermediate Bulk
Containers (IBCs) conforming to the UN performance requirements (these
packagings provide

considerable package integrity beyond that provided by the HMR
requirements which permit HFCL to be transported in non-specification
packagings); and
    (e) DGAC further petitions PHMSA to relieve IBCs containing HFCL
from currently required HMR safety mark requirements independent of
whether they are being transported in international commerce.
    The DGAC petition highlights many of the same issues identified by
IVODGA, with a particular focus on problems encountered in
international transportation for shipments of materials DGAC terms
``high flash point combustible liquids''--that is, combustible liquids
with flash points between 60 [deg]C (140 [deg]F) and 93 [deg]C (200
[deg]F). DGAC suggests that the regulatory differences between the HMR
and international regulatory requirements for these combustible liquids
are disruptive to the flow of goods in port areas and contribute to
port congestion. Imported bulk shipments of high flash point
combustible liquids arriving in U.S. ports must be marked and placarded
in accordance with HMR requirements. Similarly, the marks and placards
that are applied to bulk shipments of combustible liquids for
transportation in the U.S. must be removed in the port prior to export.
DGAC estimates that export shipments are delayed for an average of
three days awaiting removal of HMR-required marks and placards and
import shipments are delayed an average of five days awaiting
application of HMR-required marks and placards. To alleviate this
problem, DGAC requests that PHMSA except HFCLs from all HMR
requirements when transported in specification packages of less than
3,000 liters (793 gallons) capacity, or when in an ISO (UN) portable
tank in international commerce.
3. U.S. Custom Harvesters, Inc.
    U.S. Custom Harvesters, Inc. (Custom Harvesters) submitted a
petition for rulemaking [P-1536; PHMSA-2009-0099] requesting
modification of current requirements applicable to combustible liquids.
In its petition, Custom Harvesters states that:
    (a) A custom harvester has invested in the equipment (which
includes grain harvesting combines, silage harvesters, grain trucks,
tractors and grain carts) necessary to harvest 50% of the nation's
wheat, 25% of the nation's corn, 50% of the nation's corn silage and
25% of the nation's cotton. Because of the tremendous cost of the
equipment, it doesn't make sense for most farmers to invest in the
harvesting equipment that will only be used one month of the year. Our
industry replaces the farmer in the field during harvest;
    (b) the custom harvesters' equipment has changed immensely over the
past ten years. Custom harvesters have grown from using tandem axle
trucks (which allows for the Class B CDL and a Restricted Class B
Seasonal CDL license) to using tractor/trailer combinations which
require the Class A CDL license. Under exemption 391.2, a Restricted
Class B Seasonal CDL driver is allowed to transport hazardous materials
limited to 1,000 gallons or less of diesel fuel. However, in order to
legally drive the tractor/trailer combination, we are required to have
Class A CDL drivers. The Restricted Class B Seasonal CDL driver is not
required to take a written or driving test. The only requirement is to
have a good driving record;
    (c) custom harvesters hire seasonal truck drivers and combine
operators, usually beginning in mid-May and lasting until November when
the harvest has been completed. Most of the drivers hired do not have
the Class A CDL license which is required for them to drive the
tractor/trailer combinations. Once they are hired, the owner typically
assists the truck drivers in obtaining the appropriate CDL licenses.
The custom harvester hires seasonal drivers approximately two weeks
prior to the beginning of harvest. Because the Hazardous Materials
(hazmat) endorsement requires a 60-90 day wait period, the requirement
of the hazmat endorsement to haul diesel fuel has created a great
burden to our industry. It is not economically feasible for the custom
harvester to hire its employees 60-90 days in advance of needing them.
Additionally, many harvesters employ H2A workers. An H2A worker is
currently allowed to obtain a nonresidential CDL, but is not lawfully
able to obtain a hazmat endorsement;
    (d) the harvesting equipment used requires 200+ gallons of diesel
fuel per machine daily. Most custom harvesters have at least two or
three machines and a tractor/grain cart combination. This combination
of equipment would require up to 1,000 gallons of diesel fuel daily.
The diesel fuel is hauled to the field to fill the harvesting equipment
each day. In order to bring the fuel to the field, the diesel fuel is
pumped from a pump at the local service station or farmer's COOP (just
like it would be for a pickup truck or car) to a fuel tank that is
mounted in a service vehicle. The distance to the farmer's field
determines the distance the fuel is hauled, typically between 1 mile
and 50 miles. The roads are always rural roads and highways. Once the
fuel is unloaded into the harvest equipment, the fuel tank sits empty
the rest of the day. At the end of the day, the service vehicle (and
empty fuel tank) will be driven back to the town where the custom
harvester is staying. (A harvester typically stays in one location for
approximately two weeks.) Each morning, the refueling process will be
repeated;
    (e) the current limitation of the 119-gallon fuel tank puts a
burden on the custom harvesting industry in more ways than one. First,
the 119-gallon fuel tank requires the custom harvester to make several
trips from the field to the fuel station each day just to fill each
piece of harvesting equipment one time. Second, current requirements
state the only persons who can legally drive the service vehicle down
the road are those with hazmat endorsements. The custom harvesting
business owner often ends up being the only person with the necessary
endorsements due to time requirements for obtaining a hazmat
endorsement. Having to drive the service vehicle limits the flexibility
of the business owner, preventing him or her from driving other
commercial vehicles in his or her fleet. When the harvesting job has
been completed and the custom harvesting fleet is moved to the next
location, the fuel tank on the service vehicle will be empty while
moving on state and federal highways. The custom harvester will empty
the fuel tank before moving to the next job location, eliminating the
weight on the truck and preventing possible problems while on the road.
    Currently, under the HMR, bulk shipments of combustible liquids
must be placarded. In accordance with Federal Motor Carrier Safety
Regulations (FMCSR) found at 49 CFR part 383, a hazmat endorsement is
required for drivers of commercial motor vehicles that transport
placarded shipments of hazardous materials. A hazmat endorsement on a
CDL triggers the need to comply with the Department of Homeland
Security's Transportation Security Administration's fingerprinting and
background check. In its petition, the Custom Harvesters asks PHMSA to
consider an exception from placarding for combustible liquids
transported in bulk quantities that do not exceed 3,785 L (1,000
gallons) in a single packaging.

II. Summary of Comments to ANPRM

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

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

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

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

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

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

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

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

C. Examples of Ambiguous Comments on Harmonization

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

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

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

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

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

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

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

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

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

IV. Summary of Commenters Responses to Specific Questions

A. Questions Raised in the ANPRM

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

    1. Should the HMR continue to apply to materials with a
flashpoint above 60 [deg]C (140 [deg]F) and below 93 [deg]C (200
[deg]F)? Should the HMR continue to permit Class 3 materials with
flashpoints above 60 [deg]C (140 [deg]F) to be reclassed and
transported as combustible liquids? What benefits would result from
de-regulation of combustible liquids? What are the safety
implications of such de-regulation? How would such de-regulation
affect emergency response?
    2. Should the HMR continue to permit Class 3 materials with
flashpoints between 38 [deg]C (100 [deg]F) and 60 [deg]C (140
[deg]F) to be reclassed and transported as combustible liquids? What
are the benefits of eliminating this reclassification exception?
Would there be costs associated with eliminating this
reclassification exception? What are the safety implications of
eliminating the reclassification exception? How would elimination of
the reclassification exception affect emergency response?
    3. Should the HMR provide expanded exceptions for the
transportation of combustible liquids? For example, should the HMR
except combustible liquids below a certain threshold (e.g., not more
than 1,893 L (500 gallons), 3000 L (793 gallons), 3,785 L (1000
gallons) or 13, 240 L (3500 gallons) from packaging, hazard
communication, or other requirements? What are the potential impacts
on hazard communication and emergency response notification of such
changes?
    4. Should the HMR include expanded exceptions for farm
operations or agribusinesses? Should the HMR include expanded
materials of trade exceptions for persons who transport combustible
liquids? What are the potential impacts on hazard communication and
emergency response notification of such changes? Are there
additional exceptions that should be considered?
    5. Should the HMR continue to permit combustible liquids to be
described using shipping names and identification numbers applicable
to Class 3 materials? Should PHMSA adopt a requirement for all
combustible liquids to be described as ``Combustible liquid,
n.o.s.''? For example, for hazardous materials in the Sec.  172.101
HMT, such as Paint, Diesel fuel, Fuel oil, Kerosene, Turpentine,
Methallyl alcohol, etc. What safety benefits would result from the
use of shipping descriptions unique to combustible liquid materials?
How would such a change affect emergency response?
    6. Should the HMR provide for use of a unique combustible liquid
marking (e.g., the words ``COMBUSTIBLE'' or ``COMBUSTIBLE LIQUID''
in red letters on a white background) in place of COMBUSTIBLE
placards and other hazard communication for bulk shipments of
combustible liquids? Should the HMR provide for use of the domestic
identification number, NA1993, on bulk packages utilizing a
combustible liquid marking? What are the potential impacts on hazard
communication and emergency response notification of such a change?
Are there other practical alternatives to use of COMBUSTIBLE
placards for bulk shipments?

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

B. Commenters Recommendations Not Addressed in the ANPRM

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

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

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

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

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

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

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

A. Petitions P-1498 and P-1531

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

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

B. Petition P-1536

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

VI. Conclusion

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

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]
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[Federal Register Volume 87, Number 166 (Monday, August 29, 2022)]
[Rules and Regulations]
[Pages 52676-52677]
[FR Doc No: 2022-18426]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2022-0026; Airspace Docket No. 21-AAL-68]
RIN 2120-AA66

Amendment of United States Area Navigation (RNAV) Route T-232;
Fairbanks, AK

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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

SUMMARY: This action amends United States Area Navigation (RNAV) route
T-232 in the vicinity of Fairbanks, AK, in support of a large and
comprehensive T-route modernization project for the state of Alaska.

DATES: Effective date 0901 UTC, November 3, 2022. The Director of the
Federal Register approves this incorporation by reference action under
1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11
and publication of conforming amendments.

ADDRESSES: FAA Order JO 7400.11F, Airspace Designations and Reporting
Points, and subsequent amendments can be viewed online at www.faa.gov/air_traffic/publications/. For further information, you can contact the
Rules and Regulations Group, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.

FOR FURTHER INFORMATION CONTACT: Colby Abbott, Rules and Regulations
Group, Office of Policy, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
the airspace necessary to ensure the safety of aircraft and the
efficient use of airspace. This regulation is within the scope of that
authority as it expands the availability of RNAV in Alaska and improves
the efficient flow of air traffic within the National Airspace System
by lessening the dependency on ground based navigation.

History

    The FAA published a notice of proposed rulemaking (NPRM) for Docket
No. FAA-2022-0026 in the Federal Register (87 FR 2569; January 18,
2022), amending RNAV route T-232 the vicinity of Fairbanks, AK, in
support of a large and comprehensive T-route modernization project for
the state of Alaska. Interested parties were invited to participate in
this rulemaking effort by submitting comments on the proposal. No
comments were received.
    United States Area Navigation Routes are published in paragraph
6011 of FAA Order JO 7400.11F, dated August 10, 2021, and effective
September 15, 2021, which is incorporated by reference in 14 CFR 71.1.
The RNAV route listed in this document will be published subsequently
in FAA Order JO 7400.11.

Differences From the NPRM

    In the proposal section in the NPRM, the RIVOR, AK, route point was
incorrectly listed as a waypoint (WP) instead of correctly identifying
it as a Fix; however, the RIVOR, AK, route point was correctly listed
in the T-232 description as a Fix. This action keeps the RIVOR, AK,
route point as a Fix.
    Additionally, in the proposal section and the T-232 description in
the proposed amendment section of the NPRM, the OCOCU, AK, route point
was incorrectly listed as a WP. This action corrects that error and
lists the OCOCU, AK, route point as a Fix. This correction is editorial
only and does not change the alignment of T-232.

Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order JO 7400.11F, Airspace Designations
and Reporting Points, dated August 10, 2021, and effective September
15, 2021. FAA Order JO 7400.11F is publicly available as listed in the
ADDRESSES section of this document. FAA Order JO 7400.11F lists Class
A, B, C, D, and E airspace areas, air traffic service routes, and
reporting points.

The Rule

    This action amends 14 CFR part 71 by amending RNAV route T-232 in
the vicinity of Fairbanks, AK, in support of a large and comprehensive
T-route modernization project for the state of Alaska. The route
amendment is described below.
    T-232: T-232 extends between the Barrow, AK (BRW), VHF Omni-
Directional Range/Distance Measuring Equipment (VOR/DME) and the
Northway, AK (ORT), VHF Omni-Directional Range/Tactical Air Navigation
(VORTAC) navigational aids. The route is amended between the Fairbanks,
AK (FAI), VORTAC and the Big Delta, AK (BIG), VORTAC by adding the
RIVOR, AK, Fix and the CUTUB, AK, WP to facilitate a lower Minimum
Enroute Altitude on the route and ensure lateral separation from active
special use airspace. This action also corrects the legal description
by including the turn points at the OCOCU, AK, Fix and the IMARE, AK,
WP and by removing the BRONX, AK, Fix since it does not reflect a turn
point.
    FAA Order JO 7400.11, Airspace Designations and Reporting Points,
is published yearly and effective on September 15.

Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore: (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under
Department of Transportation (DOT) Regulatory Policies and Procedures
(44 FR 11034; February 26, 1979); and (3) does not warrant preparation
of a regulatory evaluation as the anticipated impact is so minimal.
Since this is a routine matter that will only affect air traffic
procedures and air navigation, it is certified that this rule, when
promulgated, will not have a significant economic impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act.

Environmental Review

    The FAA has determined that this airspace action of amending RNAV
route T-232 in the vicinity of Fairbanks, AK, qualifies for categorical
exclusion under the National Environmental Policy Act (42 U.S.C. 4321
et seq.) and its implementing regulations at 40 CFR part 1500, and in
accordance with FAA Order 1050.1F, Environmental Impacts: Policies and
Procedures, paragraph 5-

6.5a, which categorically excludes from further environmental impact
review rulemaking actions that designate or modify classes of airspace
areas, airways, routes, and reporting points (see 14 CFR part 71,
Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic
Service Routes; and Reporting Points), and paragraph 5-6.5i, which
categorically excludes from further environmental review the
establishment of new or revised air traffic control procedures
conducted at 3,000 feet or more above ground level (AGL); procedures
conducted below 3,000 feet AGL that do not cause traffic to be
routinely routed over noise sensitive areas; modifications to currently
approved procedures conducted below 3,000 feet AGL that do not
significantly increase noise over noise sensitive areas; and increases
in minimum altitudes and landing minima. As such, this action is not
expected to result in any potentially significant environmental
impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding
Extraordinary Circumstances, the FAA has reviewed this action for
factors and circumstances in which a normally categorically excluded
action may have a significant environmental impact requiring further
analysis. Accordingly, the FAA has determined that no extraordinary
circumstances exist that warrant preparation of an environmental
assessment or environmental impact study.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

The Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for 14 CFR part 71 continues to read as
follows:

    Authority:  49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1   [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order JO
7400.11F, Airspace Designations and Reporting Points, dated August 10,
2021, and effective September 15, 2021, is amended as follows:

Paragraph 6011 United States Area Navigation Routes.

                                                                         * * * *
T-232 Barrow, AK (BRW) to Northway, AK (ORT) [Amended]

Barrow, AK (BRW)                                  VOR/DME                       (Lat. 71[deg]16'24.33'' N, long. 156[deg]47'17.22'' W)
OCOCU, AK                                         FIX                           (Lat. 67[deg]05'08.90'' N, long. 151[deg]45'00.43'' W)
Bettles, AK (BTT)                                 VOR/DME                       (Lat. 66[deg]54'18.03'' N, long. 151[deg]32'09.18'' W)
Fairbanks, AK (FAI)                               VORTAC                        (Lat. 64[deg]48'00.25'' N, long. 148[deg]00'43.11'' W)
IMARE, AK                                         WP                            (Lat. 64[deg]33'29.60'' N, long. 147[deg]17'20.31'' W)
CUTUB, AK                                         WP                            (Lat. 64[deg]17'49.15'' N, long. 146[deg]37'11.65'' W)
RIVOR, AK                                         FIX                           (Lat. 64[deg]09'46.97'' N, long. 146[deg]09'22.50'' W)
Big Delta, AK (BIG)                               VORTAC                        (Lat. 64[deg]00'16.06'' N, long. 145[deg]43'02.09'' W)
Northway, AK (ORT)                                VORTAC                        (Lat. 62[deg]56'49.92'' N, long. 141[deg]54'45.39'' W)

                                                                         * * * *

    Issued in Washington, DC, on August 23, 2022.
Scott M. Rosenbloom,
Manager, Airspace Rules and Regulations.
[FR Doc. 2022-18426 Filed 8-26-22; 8:45 am]
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