Wednesday, March 13, 2013

HR 1026 and S 485 - No HME for Farm Diesel Haulers

As I noted last Friday there were bills introduced in the House and Senate that would address the issue of farm service vehicles hauling diesel fuel. HR 1026 {Introduced by Rep Neugebauer (R,TX)} and S 485 {Introduced by Sen Roberts (R,KS)} are companion bills (identical language) that would, according to the title of the bills:

Exempt certain class A CDL drivers from the requirement to obtain a hazardous material endorsement while operating a service vehicle with a fuel tank containing 3,785 liters (1,000 gallons) or less of diesel fuel.

The bills are a little more complex than that (everything is in Washington), but essentially Roberts and Neugebauer are trying to make it easier for farm operations to haul diesel fuel to their large processing machinery.

Transportation of Hazardous Materials

Section 1a of these bills has nothing to do with driver qualification. It would amend 49 USC §5117, Special Permits and Exclusions, by adding §5117(d)(1)(D). As it currently reads §5117(d)(1) requires the Secretary to exclude, in any part, from this chapter [49 USC Chapter 51: Transportation of Hazardous Material and regulations prescribed under this chapter] short list of vessels. The new paragraph would add a ‘service vehicle’ carrying 1,000 gallons or less of diesel fuel as long as that service vehicle met two conditions.

The first condition is that the service vehicle be driven by a class A commercial driver’s license holder who is {§5117(d)(1)(D)(i)}:

• A custom harvester;
• An agricultural retailer;
• An agricultural business employee;
• An agricultural cooperative employee; or
• An agricultural producer

The second condition is that the vehicle is “clearly marked with a placard reading ‘Diesel Fuel’” {§5117(d)(1)(D)(ii)}. This clearly is intended to change the current marking of such a vehicle from the standard DOT hazmat placard. Unfortunately, the choice of the word ‘placard’ here might cause some minor issues at DOT since ‘placard’ is already a clearly defined term in the hazardous material regulations. It might make things easier for the regulators if the word ‘device’ were used instead.

The intent here is that these service vehicles do not need to meet the same safety requirements for normal fuel hauling vehicles because they are not intended to be used for hauling fuel ‘over the road’. They are principally used for hauling fuel from a local distributor out to heavy agricultural equipment operating in a farmer’s field. Of course the same argument could be made for any company that brings diesel to heavy equipment operating principally in an off-road setting; earth moving equipment in the construction industry for instance.

There is another minor issue that may cause some unintended consequences if/when this gets in front of a judge. Everything else in §5117 deals with special permits which have to be applied for and are only good for two years. After two years, the special permits must be renewed. The exemptions under §5117(d) are not ‘special permits’ and there is nothing said about ‘exclusions’ in the discussion of time limits and renewals. Lawyers will have fun with that distinction.

Hazardous Materials Endorsement

Seciont 1(b) of the bills would actually address the issue of the need for hazardous materials endorsements for drivers of vehicles described above. It would amend 49 USC $ 31315 by adding paragraph (b)(8):

“The Secretary shall exempt all class A commercial driver’s license holders who are custom harvesters, agricultural retailers, agricultural business employees, agricultural cooperative employees, or agricultural producers from the requirement to obtain a hazardous material endorsement under part 383 [49 CFR §383.93(b)(4)]  of title 49, Code of Federal Regulations, while operating a service vehicle carrying diesel fuel in quantities of 3,785 liters (1,000 gallons) or less if the tank containing such fuel is clearly marked with a placard reading ‘Diesel Fuel’.”

The idea goes that since the vehicle is no longer governed by the hazardous materials rules (beyond the ‘Diesel Fuel’ placard) that there should be no need for the driver to have to go through the additional testing about the hazardous materials regulations and the additional vetting by the Transportation Security Administration necessary for the HME.

Actually I would bet that it is the TSA security threat assessment (STA) requirements for HME holders that is providing the problem for many of the potential drivers of these fueling vehicles. While the TSA does check the HME applicants against the Terrorist Screening Database (TSDB), I would suspect that the greatest factor in rejecting HME applicants has to do with the criminal background checks and the disqualifying periods for substance abuse convictions (49 CFR §1572.1030).

Remember the discussion above about special permits, two-years, and renewals. Well that issue is much more important for this section of the bill. Section 31315(b)(1) sets the general guidelines for all of the exemptions listed in §31315 (unless, of course, specifically exempted). That paragraph includes the following:

“An exemption may be granted for no longer than 2 years from its approval date and may be renewed upon application to the Secretary.”

There is nothing in the language of this bill that would provide an exception to the general provisions of §31315(b)(1). Thus, it would appear that any regulations supporting this legislation, if passed, would require some sort of application process for the exemption. I’m pretty sure that this is not what the agricultural businesses behind this bill had really intended.

Moving Forward

Well, the farm lobby is certainly powerful, and I can’t think of any group that would adamantly oppose this bill (though I suspect that law enforcement might have some misgivings), and it doesn’t cost any money, so if this came to the floor for a vote, it would probably pass. The big question here is if there is enough of a push for this to get it to the floor. Let’s see how fast it gets considered in committee.

The alternative for small focused bills like this is for them to get added to a larger bill that needs to come to the floor. A transportation authorization bill would be a great vehicle to attach this to or even a farm bill. That is probably the most likely way that this would become law.

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