PHMSA Publishes Reverse Logistics Final Rule

Yesterday the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a final rule in the Federal Register (81 FR 18527-18541) that provides a definition of ‘reverse logistics’ (essentially - returning shipments from retail stores to a product's manufacturer, supplier, or distribution facility) to the hazardous material regulations (HMR) and expands a previously existing exception for return shipments of used automobile batteries transported between a retail facility and a recycling center.

Reverse Logistics

PHMSA has made a number of changes to the definition of the term ‘reverse logistics’ from the definition offered in the NPRM. Those changes were based upon suggestions received in the public comments to the NPRM. Those changes include:

• Removing the words ‘final destination’;

• Modifying the definition to include both the process of offering hazmat for transport and the transport of hazmat;

• Clarifying the concept of ‘capturing value’;

• Removing the phrase ‘proper disposal’;

• Clarifying that the term only applies to the return of hazardous materials from a retail store to the product's manufacturer, supplier, or distribution facility.

Covered Hazard Classes

PHMSA made a number of changes to the hazard classes affected by this rulemaking. In general the rule is consistent with existing limited quantity provisions of the HMR. One exception is that the final rule authorizes the transportation by private carrier of certain Division 2.1 and 2.2 cylinders without the cylinders being tested for pressure. Other exceptions that would be allowed when shipped by private carrier include:

• For the shipment of 1.4G (fireworks and flares);

• Division 2.1 and 2.2 cylinders (that do not qualify as limited quantity shipments) sold as retail products; and

• The return of equipment powered by flammable liquids or flammable gases.

The preamble to the rule includes a discussion of the changes that have been made concerning the reverse logistic shipment of Division 1.4 materials including fireworks, flares and ammunition.

In this final rule PHMSA is excluding the following classes from coverage under the reverse logistics rule:

• Division 4.1;

• Division 4.3;

• Division 5.2;

• Division 6.1 (except consumer products in PG II and PG III, not including TIH material); and

• Division 6.2

Additionally, PHMSA is excluding any materials found in Table 1 of the §172.504 and is only including a portion of the materials found in Table II. PHMSA is also limiting Class 5 and Class 8 materials to only those in PG II or PG III. Return shipment of lithium batteries is not included in this rulemaking since this is already addressed in §173.185.

Packaging

A number of the commenters proposed changes to the NPRM language on packaging. Based upon those comments PHMSA is making some changes to the packaging language. First it is adding language clarifying that packages should be in the original packaging or a package of similar strength and integrity. Next, they are setting a 30 kg (66 pound) limit for each package shipped under the reverse logistics section. Additionally, PHMSA is removing language that would have included provisions for shipping leaking containers under the reverse logistics rule.

In response to comments about reverse logistics shipments of powered equipment PHMSA is taking two actions. First it is allowing the return of internal combustion powered equipment by motor vehicle provided the fuel tank remains securely closed. Secondly it is limiting such shipments to transportation by private carrier.

Hazard Communication

After receiving a number of comments on the proposed hazard communication language in the NPRM, PHMSA made a substantial change in marking requirements. For shipments by private carrier PHMSA is requiring packages shipped under the reverse logistics provisions to be marked: “REVERSE LOGISTICS—HIGHWAY TRANSPORT ONLY—UNDER 49 CFR 173.157”. For any shipments not made by private carrier packages would be marked under the limited quantity provisions of the HMR.

Effective Dates

The effective date for this rule is the publication date; March 31^st, 2016.

PHSMA HHFT Oil Spill NPRM to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received a notice of proposed rulemaking (NPRM) from the Pipeline and Hazardous Material Safety Administration (PHMSA) for its rulemaking: Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains.

The advanced notice of proposed rulemaking (ANPRM) was published in August of 2014. There were over 200 public responses to that ANPRM. Most of those came from individuals, not organizations or companies though there are indications that there was at least one letter writing campaign involved.

OIRA could take months to clear this controversial NPRM for publication.

PHMSA Publishes SP Incorporation Final Rule

Today the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a final rule in the Federal Register (81 FR 3635-3686) that incorporates 96 existing special permits (SP) into the Hazardous Material Regulations (HMR). Nine SPs that were included in the January 2015 notice of proposed rulemaking (NPRM) were not adopted in this rulemaking. Four SPs (SP 11624, SP 13052, SP 14712, and SP 15235) that were not included in the NPRM were added to this final rule.

The discussion of the SPs adopted is done by similar functionally defined areas to those used in the NPRM. Those areas in the final rule were:

Cylinders, general;

Cylinders, non-destructive testing, aerosols;

Cargo tanks, rail cars, portable tanks;

Operational air, vessels;

Operational highway, rail, shipper, others;

Non-bulk packaging specification, IBC;

The existing SPs covered in this rulemaking will cease to exist on the mandatory compliance date listed below. Because there were some changes made in the regulatory language that were slightly different than that found in the original SP, some current SP holders may not be able to comply with the new wording. They can request a renewal or modification of the SPs if appropriate.

The effective date of this rulemaking is February 2^th, 2016. Voluntary compliance is authorized on that date. Unless otherwise specified in the rulemaking, mandatory compliance is required on January 17^th, 2017.

PHMSA Publishes Final Rule for Special Permit Approvals

Yesterday DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a final rule in the Federal Register (80 FR 54418-54440) outlining its internal procedures for reviewing and approving special permits and approvals. The notice of proposed rulemaking (NPRM) for this rule was published in August 2014.

The new rule establishes definitions for a number of new terms and revises some old definitions. The definitions include:

∙ Applicant fitness;

∙ Approval;

∙ Fit or fitness;

∙ Fitness coordinator;

∙ Insufficient corrective actions;

∙ Special permit; and

∙ Sufficient corrective action.

The final rule makes revisions to the following existing paragraphs in 49 CFR Part 107:

Section 107.113 Application processing and evaluation;

Section 107.117 Emergency processing;

Section 107.705 Registrations, reports, and applications for approval;

Section 107.709 Processing of an application for approval, including an application for renewal or modification.

The new rule also adds a new Appendix A to the Part 107. This appendix establishes the standard operating procedures that PHMSA will use to review, evaluate and publish special permits and approvals. It addresses the following general areas:

∙ Completeness of application;

∙ Publication in Federal Register;

∙ Evaluation of application, including technical evaluation and safety profile evaluation; and

∙ Disposition of application, including approval, denial and appeal;

While Appendix A is written as an internal PHMSA SOP, a clear understanding of the provisions of Appendix A by applicants for special permits or approvals will go a long way to making the application and approval process more effective.

This final rule becomes effective on November 9^th, 2015.

PHMSA Publishes 30-day ICR for 3 Hazmat Paperwork Requirements

The DOT’s Pipeline and Hazardous Material Safety Administration published a 30-day information collection request notice in today’s Federal Register (80 FR 50070-50071) for revisions to three separate hazardous material shipping paperwork ICRs:

∙ Hazardous Materials Shipping Papers & Emergency Response Information (2137-0034);

∙ Radioactive (RAM) Transportation Requirements (2137-0510); and

∙ Subsidiary Hazard Class and Number/Type of Packagings (2137-0613)

Hazmat Shipping Papers

This ICR is being revised to reflect the termination of the pilot of the electronic shipping papers under the Hazardous Materials Automated Cargo Communications for Efficient and Safe Shipments program. This reflects a reduction in burden hours due to the elimination of the voluntary double reporting requirements for organizations participating in the pilot.

RAM Requirements

There is no change in the burden estimate for this ICR. The early resubmission for this ICR renewal is due to the two-year approval on the last renewal request because PHMSA failed to include some of the required paperwork in their data submission.

Subsidiary Hazard Class

There is no change in the burden estimate for this ICR. This is a simple renewal with no apparent change in the information collection.

Public Comments

As always public comments are being solicited on the ICR renewals. Comments can be emailed to OMB’s Office of Information and Regulatory Affairs (OIRA; OIRA_Submission@omb.eop.gov). Comments should be submitted by September 17^th, 2015.

Commentary

These ICR notices are typically a pro-forma exercise that are usually ignored by everyone. The problem is that it frequently takes some digging to find out if minor changes are actually be made to the collection requirements. Even when there are no apparent changes (like in the last two ICRs in this notice) we cannot not tell that for sure because there is a shortage of information provided in these notices. We won’t be able to tell for sure if there were minor changes made to the collection requirements until the ICR approval is published on the OIRA web site as that site will have copies of the actual information submitted to OIRA not just this brief summary material.

FRA Train Crew Staffing Rule to OMB

The OMB’s Office of Information and Regulatory Affairs (OIRA) announced Saturday that they had received a copy of a notice of proposed rulemaking (NPRM) on train crew size from the Federal Railroad Administration. This NPRM is part of the ongoing effort by DOT to reduce the risks associated with crude oil trains.

According to the latest Unified Agenda entry for this rulemaking:

“This rulemaking would add minimum requirements for the size of different train crew staffs depending on the type of operation.  The minimum crew staffing requirements would reflect for the safety risks posed to railroad employees, the general public, and the environment and would account for differences in costs.  This rulemaking would also establish minimum requirements for the roles and responsibilities of the second train crew member on a moving train, and promote safe and effective teamwork.  Additionally, this rulemaking would permit a railroad to submit information to FRA and seek approval if it wants to continue an existing operation with a one-person train crew or start up an operation with less than two crew members.”

The Fall 2014 Unified Agenda reports that the FRA plans on publishing the NPRM for this rule in January. Achieving that goal is now in the hands of OIRA.

PHMSA Publishes Reverse Logistics NPRM

On Monday DOT’s Pipe Line and Hazardous Material Safety Administration if publishing a notice of proposed rulemaking (NPRM) in the Federal Register (79 FR 46748-76758) proposing to modify the Hazardous Material Regulations (HMR) to provide for return shipments of hazardous materials by motor vehicle. The advance notice of proposed rulemaking (ANPRM) was published on July 5^th, 2012.

In this NPRM PHMSA is proposing to:

• Define the term “reverse logistics;”

• Establish a single section in the regulations for the shipment of hazardous material in the reverse logistics supply chain;

• Establish training requirements tailored to reverse logistics shipments;

• Define the authorized packaging for reverse logistics shipments;

• Establish segregation requirements for reverse logistics shipments; and

• Allow for more flexibility in the transportation of lead acid batteries.

Reverse Logistics Defined

The definition of the term ‘reverse logistics’ would be added to 49 CFR 171.8. The definition would read:

“Reverse logistics is the process of moving goods from their final destination for the purpose of capturing value, recall, replacement, proper disposal, or similar reason.”

The preamble explains that this rulemaking is targeted at consumer goods that are returned from retail facilities to collection centers or warehouses. It would specifically “include consumer products in hazard classes 1.4 (ammunition), 2.1, 2.2, 3, 4.1, 5.1, 5.2, 6.1, 6.2, 8 and 9 in the reverse logistics exception”.

Reverse Logistics Requirements

PHMSA proposes to add a new §173.157. The new section would establish:

• Quantity limits for the covered materials based upon Division and Class and Packing Group designation;

• General packaging requirements;

• Hazard communication requirements; and

• Training requirements.

Lead Acid Battery Recycling

On a slightly different, but related topic PHMSA is proposing to amend §173.159 as it relates to the transportation of used lead acid batteries for the purpose of recycling. The current requirements of §173.159(e)(4) only allow recycled batteries to be shipped from a single shipper. This change would re-write (4) to allow that:

“A carrier may accept shipments of lead acid batteries from multiple locations for the purpose of consolidating shipments of lead acid batteries for recycling.”

Two additional subparagraphs would be added that would require that no other hazardous materials would be allowed on vehicles transporting used lead acid batteries and reiterates that the immediate incident reporting requirements of §171.15 apply to these shipments.

Public Comments Solicited

PHMSA is soliciting public comments on this NPRM. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2011-0143). Comments should be submitted by October 10^th, 2014.

New FRA-PHMSA Order and Advisory for Bakken Crude

A DOT press release today reports that the Federal Railroad Administration has published a new Emergency Order (Docket Number DOT-OST-2014-0067) setting emergency response notification requirements for railroads hauling crude oil trains consisting of 35 or more railcars (or 1,000,000 gal) of Bakken crude oil. Additionally FRA and the Pipeline and Hazardous Material Safety Administration issued a joint safety advisory (SA #: 2014-01) for railroads transporting Bakken crude oil.

Emergency Order

While the PR reports that the FRA “has issued” the Emergency Order it is not found on the DOT or FRA web site. The docket number listed in the PR looks like one of the docket numbers used on the Federal eRulemaking Portal (www.Regulations.gov), as of 20:30 CDT there is nothing listed for the docket number. Nor is there a listing that the Emergency Order is scheduled to be printed in tomorrow’s Federal Register, a pre-requisite for effective Emergency Order.

According to the PR the Emergency Order will require railroads operating crude oil trains carrying Bakken crude oil to provide each “SERC [State Emergency Response Commissions] notification regarding the expected movement of such trains through the counties in that state”. The Emergency Order lists the following information as being required in those notifications:

• Estimated volumes of Bakken crude oil being transported;

• Frequencies of anticipated train traffic:

• Route through which Bakken crude oil will be transported; and

• Contact information for at least one responsible party at the host railroads.

Since I haven’t seen the actual Emergency Order yet, I can’t tell for sure, but it looks like the Emergency Order does not require providing schedules for the movement of such unit trains. Many local government officials and emergency planners have been asking for this type of information for years on hazardous material shipments.

It is also not clear if the Emergency Order provides any information sharing protections to providers of this information. The standard Federal Rules do not apparently apply as the information disclosure is being made to a State not Federal agency. This information protection issue has always been the railroad’s strongest argument against the mandate of information disclosure.

Safety Advisory

While the Emergency Order is not currently available, the Joint Safety Advisory has been published on the FRA web site. The SA ‘advises’ and ‘encourages’ railroads and crude offerors to “select and use the railroad tank car designs with the highest level of integrity reasonably available [emphasis added] within their fleet” for shipment of Bakken Crude. It also recommends against the use of “older, legacy DOT Specificaiton 111 or CTC 111 tank cars” for that material.

FRA and PHMSA are paying the price for their inaction on the long known DOT 111 tank car problem. These cars are a major portion of the current rail tank car fleet and would normally be expected to remain in full service for a number of years. If FRA and/or PHMSA were to try to immediately eliminate the use of these cars for crude oil shipments a major reduction in the number of cars available for crude oil shipments; a reduction that would severely curtail those shipments. Economically this would be a non-starter.

Moving Forward

Given the publication schedule for the Federal Register, it is possible that the Emergency Order may be published Friday, but it is more likely to appear in the Monday FR.

HR 3040 – Freight Rail Safety

As I mentioned just over a week ago Rep. Michaud (D,ME) introduced HR 3040, the Safe Freight Act. According to a press release the Congressman introduced this bill in response to the recent fatal derailment, fire and explosions in Lac-Megantic, Quebec.

The bill would amend 49 USC Chapter 201 Subchapter II by adding §20168, Freight train crew size. The bill would require that all freight trains moved in the United States to have a minimum of two crew members; one would be a certified (IAW §20135) locomotive engineer and the second would be a certified (IAW §20163) conductor.

While the train involved in the Canadian incident was crewed by only a single person, there is currently no information that shows a direct connection between the crew size and the initiation of the accident. The best that can be said is that if a second crew member had been present, perhaps the breaks would have been set better.

The Canadian authorities have issued an emergency order that address the crew size issue on all freight trains pulling hazmat loaded tank cars, requiring two crew members. The FRA’s Emergency Order #28, published last week, did not specifically address the crew size issue other than saying that they would refer to it in an upcoming meeting of Rail Safety Advisory Committee (RSAC) later this month.

If this bill were to make it to the floor of the House, it would likely pass. It is, however, not clear that it will make it out of Committee, much less make it to the floor. It is possible however that this could be offered as an amendment to HR 2610, the FY 2014 DOT spending bill that is currently on hold in the House. It would be much more likely to get approved that way.