
[Federal Register Volume 82, Number 11 (Wednesday, January 18, 2017)]
[Proposed Rules]
[Pages 5499-5508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00913]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, 173, 174, 177, 178, 179, and 180

[Docket No. PHMSA-2016-0077 (HM-251D)]
RIN 2137-AF24


Hazardous Materials: Volatility of Unrefined Petroleum Products 
and Class 3 Materials

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
Department of Transportation (DOT or Department).

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: PHMSA is considering revising the Hazardous Materials 
Regulations (HMR) to establish vapor pressure limits for unrefined 
petroleum-based products and potentially all Class 3 flammable liquid 
hazardous materials that would apply during the transportation of the 
products or materials by any mode. PHMSA is currently assessing the 
merits of a petition for rulemaking submitted by the Attorney General 
of the State of New York regarding vapor pressure standards for the 
transportation of crude oil. The petition requests that PHMSA implement 
a Reid Vapor Pressure (RVP) limit less than 9.0 pounds per square inch 
(psi) for crude oil transported by rail. PHMSA will use the comments in 
response to this ANPRM to help assess and respond to the petition and 
to evaluate any other potential regulatory actions related to sampling 
and testing of crude oil and other Class 3 hazardous materials. PHMSA 
will also evaluate the potential safety benefits and costs of utilizing 
vapor pressure thresholds within the hazardous materials classification 
process for unrefined petroleum-based products and Class 3 hazardous 
materials.

DATES: Comments must be received by March 20, 2017.

ADDRESSES: You may submit comments identified by the docket number 
PHMSA-2016-0077 (HM-251D) and the relevant petition number by any of 
the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov 
Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management System; U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: To the Docket Management System; Room W12-
140 on the ground floor of the West Building, 1200 New Jersey Avenue 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this ANPRM at the beginning of the comment. To avoid 
duplication, please use only one of these four methods. All comments 
received will be posted without change to http://www.regulations.gov 
and will include any personal information you provide. All comments 
received will be posted without change to the Federal Docket Management 
System (FDMS), including any personal information.
    Docket: For access to the dockets to read background documents or 
comments received, go to http://www.regulations.gov or DOT's Docket 
Operations Office located at U.S. Department of Transportation, West 
Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New 
Jersey Avenue SE., Washington, DC 20590.
    Privacy Act: Anyone can search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comments (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Lad Falat, Director, Engineering and 
Research, (202) 366-4545, Office of Hazardous Materials Safety, 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, 1200 New Jersey Ave. SE., Suite E21-314, Washington, 
DC 20590-0001.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Objective of This ANPRM
III. Petition P-1669 & Other Efforts To Set a Vapor Pressure 
Standard for Crude Oil
    A. Summary & Supporting Data for Petition P-1669
    B. North Dakota Industrial Commission (NDIC) Oil Conditioning 
Order No. 25417
IV. Background Information
    A. Current HMR Requirements for the Classification of Unrefined 
Petroleum-Based Products
    B. High-Hazard Flammable Train (HHFT) Rulemaking
    C. Sandia Study
    D. PHMSA Actions
    E. Pipeline Operators
    F. Accident History and Vapor Pressure Levels
V. Comments and Questions
    A. General Questions
    B. Safety Questions
    C. Vapor Pressure Questions
    D. Packaging Questions
VI. Regulatory Review and Notices
    A. Executive Order 12866, Executive Order 13563, Executive Order 
13610, and DOT Regulatory Policies and Procedures
    B. Executive Order 13132
    C. Executive Order 13175
    D. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Policies and Procedures
    E. Paperwork Reduction Act
    F. Environmental Assessment
    G. Privacy Act
    H. Executive Order 13609 and International Trade Analysis
    I. Statutory/Legal Authority for This Rulemaking
    J. Regulation Identifier Number (RIN)
    K. Executive Order 13211

I. Executive Summary

    On December 1, 2015, PHMSA received a petition for rulemaking from 
the New York State Office of the Attorney General (New York AG) 
proposing amendments to the Hazardous Materials Regulations (HMR; 49 
CFR parts 171-180) applicable to the transportation of crude oil by 
rail. PHMSA designated the petition as

[[Page 5500]]

Petition P-1669 \1\ (P-1669 or the petition). In P-1669, the New York 
AG asks PHMSA to add a new paragraph (a)(6) to existing Sec.  174.310 
requiring all crude oil transported by rail to have a Reid vapor 
pressure (RVP) of less than 9.0 pounds per square inch (psi).\2\ The 
petition is based on the premise that limiting the product's vapor 
pressure will reduce the risk of death or damage from fire or explosion 
in the event of an accident. Separately, the North Dakota Industrial 
Commission (NDIC) implemented a maximum vapor pressure threshold of 
13.7 psi, VPCRx, Reid equivalent.\3\ Therefore, in this ANPRM, PHMSA is 
asking a series of questions seeking input as to whether there should 
be national vapor pressure thresholds for petroleum products and/or 
other Class 3 hazardous materials and, if so, what that thresholds 
should be.
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    \1\ PHMSA placed a copy of the petition in docket number PHMSA-
2015-0253, which is accessible at https://www.regulations.gov/docket?D=PHMSA-2015-0253.
    \2\ RVP was a common measurement of the vapor pressure of 
flammable liquids such as gasoline and crude oil.
    \3\ RVP uses different equipment and procedures than Reid 
equivalent. For example, Reid equivalent is done using closed 
conditions to preserve the lighter ends, while RVP is conducted in 
an open test chamber.
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    PHMSA has long stressed that it is the offeror's responsibility 
under Sec.  173.22 of the HMR to ensure that hazardous materials are 
properly classified. To reinforce this requirement, the HMR also 
require offerors of unrefined petroleum-based products, including crude 
oil, to institute a sampling and testing program in accordance with 
Sec.  173.41.\4\ There are numerous industry standards for sampling and 
determining vapor pressure of crude oil and other Class 3 hazardous 
materials.
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    \4\ ``Unrefined petroleum-based products'' refers to hazardous 
hydrocarbons that are extracted from the earth and have not yet been 
refined. In the high-hazard flammable trains (HHFT) final rule, 
PHMSA replaced ``mined liquids and gases'' with ``unrefined 
petroleum-based products'' based on comments received in response to 
the HHFT NPRM.
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    When taking additional steps to better understand hazardous 
materials and the risks those materials may pose in transportation, DOT 
always strives to rely on the best available science and information to 
inform its decision making. Section 7309 of the ``Fixing America's 
Surface Transportation Act of 2015,'' or the ``FAST Act,'' directs the 
Secretary of Energy, in cooperation with the Secretary of 
Transportation (Secretary), to submit a report to Congress that 
contains results of the Crude Oil Characteristics Research Sampling, 
Analysis and Experiment (SAE) Plan \5\ (the Sandia Study discussed in 
Section IV.C of this ANPRM will implement the SAE Plan), as well as 
recommendations for regulations and legislation based on the findings 
to improve the safe transport of crude oil. The findings of the Sandia 
Study will help inform the Department as it moves forward.
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    \5\ http://energy.gov/sites/prod/files/2016/06/f32/Crude%20Oil%20Characteristics%20Research%20SAE%20Plan.pdf.
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II. Objective of This ANPRM

    Federal hazardous materials law authorizes the Secretary to 
``prescribe regulations for the safe transportation, including 
security, of hazardous materials in intrastate, interstate, and foreign 
commerce.'' 49 U.S.C. 5103(b)(1). The Secretary has delegated this 
authority to PHMSA, 49 CFR 1.97(b). The HMR are designed to achieve 
three primary goals: (1) Help ensure that hazardous materials are 
packaged and handled safely and securely during transportation; (2) 
provide effective communication to transportation workers and emergency 
responders of the hazards of the materials being transported; and (3) 
minimize the consequences of an accident or incident should one occur. 
The hazardous material regulatory system is a risk management system 
that is prevention-oriented and focused on identifying safety or 
security hazards and reducing the probability and consequences of a 
hazardous material release.
    Under the HMR, hazardous materials are categorized into hazard 
classes and packing groups based on analysis of and experience with the 
risks they present during transportation. The HMR: (1) Specify 
appropriate packaging and handling requirements for hazardous materials 
based on this classification and require a shipper to communicate the 
material's hazards through the use of shipping papers, package marking 
and labeling, and vehicle placarding; (2) require shippers to provide 
emergency response information applicable to the specific hazard or 
hazards of the material being transported; and (3) mandate training 
requirements for persons who prepare hazardous materials for shipment 
or transport hazardous materials in commerce. The HMR also include 
operational requirements applicable to each mode of transportation.
    The Administrative Procedure Act (APA), 5 U.S.C. 551, et seq. 
requires Federal agencies to give interested persons the right to 
petition an agency to issue, amend, or repeal a rule. 5 U.S.C. 553(e). 
In accordance with PHMSA's rulemaking procedure regulations in 49 CFR 
part 106, interested persons may ask PHMSA to add, amend, or repeal a 
regulation by filing a petition for rulemaking along with information 
and arguments supporting the requested action (Sec.  106.95).
    The petition is based on the premise that limiting the vapor 
pressure, as measured by RVP, of crude oil in rail transport below 9.0 
psi will reduce the risk of death or damage from fire or explosion in 
the event of an accident. However, in order to grant the petition, 
PHMSA would have to:
     Determine the best metric or combination of metrics (vapor 
pressure or other metric) for measuring and controlling fire and 
explosion risk in crude oil transport;
     Quantify the improvement in safety, if any, due to risk 
reduction from implementation of vapor pressure thresholds at varying 
levels;
     Identify the measurement techniques necessary to establish 
compliance;
     Identify offerors' compliance strategies and market 
impacts with RVP standards at varying levels of stringency, and 
estimate their economic costs and environmental impacts;
     Identify other regulations and industry practices, such as 
volatile organic compound emissions standards imposed through the Clean 
Air Act, or State regulations, or pipeline operator RVP standards, 
potentially affecting compliance strategies and costs, and safety 
benefits;
     Evaluate the extent to which use of DOT Specification 117 
tank cars mitigates the risk of transporting crude oil;
     Compare compliance costs of mitigation strategies with 
risk reduction from adoption of the petition; and
     Balance the benefits and costs in setting the level of the 
chosen metric. If RVP is the best metric, PHMSA would have to determine 
that a particular RVP limit is preferable to any other limit. For 
example, if 9.0 psi is chosen, PHMSA would need to show that 9.0 psi is 
preferable to some other potential limits, such as 8.0 or 11.0. This 
would include considering whether there is a ``safe'' level of RVP 
below which risks are minimal (which would lead to little safety 
benefit from reducing RVP further), or some level of RVP where risks do 
not further increase.
    In this ANPRM, PHMSA is seeking public comment to obtain the views 
of those who are affected by the NDIC Order, as well as those who are 
likely to be impacted by the changes proposed

[[Page 5501]]

in the petition, including those who are likely to benefit from, be 
adversely affected by, or potentially be subject to additional 
regulation. Additionally, PHMSA seeks comment from stakeholders 
regarding the many factors PHMSA must consider when evaluating the need 
for and impacts of regulatory changes. In general, PHMSA requests 
comments on:
     Safety benefits of any proposed regulatory change, 
including the relevant scientific or other empirical support;
     Economic impacts, including data, on the costs and 
benefits; and
     Ease of compliance with the regulatory changes that 
Petition P-1669 requests.
    This ANPRM will provide an opportunity for public participation in 
the development of regulatory amendments and promote greater exchange 
of information and perspectives among the various stakeholders. PHMSA 
issued this notice to help respond to Petition P-1669 and, more 
broadly, to consider a focused and well-developed regulatory path 
forward that reflects the views of all relevant parties.

III. Petition P-1669 & Other Efforts To Set a Vapor Pressure Standard 
for Crude Oil

A. Summary & Supporting Data for P-1669

    In Petition P-1669,\6\ the New York State Office of the Attorney 
General petitioned PHMSA to revise Sec.  174.310 to establish a 
nationwide vapor pressure standard for crude oil shipped by rail 
throughout the United States. The petition states, ``At present, no 
federal regulation exists to limit the volatility of crude oil shipped 
in railroad tank cars. This petition for rulemaking seeks to close that 
loophole and reduce the risk of harm to American communities.'' The 
petition further requests PHMSA to ``assert its rulemaking authority, 
as delegated by the Secretary of Transportation, and establish a 
federal RVP limit for crude oil transported by rail in the United 
States at an appropriate level that is less than 9.0 psi.''
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    \6\ https://www.regulations.gov/docket?D=PHMSA-2015-0253.
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    A copy of the petition is available in the public docket for this 
ANPRM, and can be viewed at either http://www.regulations.gov or DOT's 
Docket Operations Office (see ADDRESSES section above).
    Petition P-1669 makes the following claims to support the 
establishment of a vapor pressure threshold for crude oil. 
Specifically, the petition asserts:
    1. Shipments of Bakken crude oil by rail are vastly expanding;
    2. A disturbing trend of train explosions [exists] involving 
shipments of Bakken crude oil;
    3. Bakken crude oil is highly volatile and extremely flammable; and
    4. The volatility of crude oil can be effectively reduced with 
existing technology.
    The petition also provides the following table to highlight the 
vapor pressures of the crude oil involved in several high-profile train 
accidents:

------------------------------------------------------------------------
                                               Reid Vapor pressure of
                  Source                          Bakken crude oil
------------------------------------------------------------------------
Lac-M[eacute]gantic, Quebec (July 6, 2013)  Average between 9.0 to 9.5
                                             psi.\7\
Heimdal, North Dakota (May 6, 2015).......  10.8 psi.\8\
PHMSA Operation Safe Delivery.............  Average of 12.3 psi.\9\
Mt. Carbon, West Virginia (February 16,     13.9 psi.\10\
 2015).
Lynchburg, Virginia (April 2015)..........  Average of 14.3 psi.\11\
------------------------------------------------------------------------

    In addition, Petition P-1669 summarizes the NDIC Standards 
(discussed in Section IV.E of this ANPRM) and the HHFT final rule 
(discussed in Section IV.B of this ANPRM) arguing in support of a new 
RVP limit of less than 9.0 psi for the safe transportation of crude oil 
by rail. However, the petition did not identify specific costs and 
benefits, or robust empirical information, to support the proposed 
limit.
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    \7\ See Transportation Safety Board (TSB) of Canada Laboratory 
Report LP148/2013, Aug. 19, 2014. The TSB Report notes that the 
vapor pressure measurements of these samples may be lower than the 
vapor pressure of the Bakken crude oil in the Lac-M[eacute]gantic 
accident: ``The occurrence crude oil samples were taken at 
atmospheric pressure. This could lead to an underestimation of the 
crude oil[']s volatility due to evaporation loss of very light 
constituents.''
    \8\ See Stern, M., ``How to Prevent an Oil Train Disaster,'' 
N.Y. Times, May 19, 2015.
    \9\ ``Operation Safe Delivery Update,'' Pipeline and Hazardous 
Materials Safety Administration, at 16, available at: http://www.phmsa.dot.gov/pv_obj_cache/pv_obj_id_8A422ABDC16B72E5F166FE34048CCCBFED3B0500/filename/
07_23_14_Operation_Safe_Delivery_Report_final_clean.pdf.
    \10\ See Gold, R., ``Crude on Derailed Train Contained High 
Level of Gas,'' Wall Street Journal, March 2, 2015.
    \11\ See Sobczak, B., ``Crude in Va. oil-train derailment was 
highly volatile--safety data,'' EnergyWire, E&E Publishing, LLC, 
Aug. 25, 2015.
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B. North Dakota Industrial Commission Oil Conditioning Order No. 25417

    In December 2014, NDIC issued Oil Conditioning Order No. 25417 
(Order), which requires operators of Bakken crude oil produced in the 
state of North Dakota to separate the gaseous and light hydrocarbons 
from all Bakken crude oil.\12\ The Order requires the use of a gas-
liquid separator and/or an emulsion heater-treater capable of 
separating the gaseous and liquid hydrocarbons, prohibits blending of 
Bakken crude oil with specific materials, and requires crude oil 
produced to have a Vapor Pressure (using ASTM D6377) not greater than 
13.7 psi or 1 psi less than the vapor pressure of stabilized crude oil.
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    \12\ See https://www.dmr.nd.gov/oilgas/Approved-or25417.pdf.
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    According to NDIC, the measurements taken under the Order use the 
ASTM D6377 with a vapor to liquid (V/L) ratio of 4 and a temperature of 
100 [deg]F (37.8 [deg]C), which is equivalent to a Reid Vapor Pressure 
measurement. The Order requires the 13.7 psi limit to be measured as 
pounds per square inch absolute (psia) and not pounds per square inch 
gauge (psig). According to NDIC, psia is used to make clear that the 
pressure is relative to a vacuum rather than the ambient atmospheric 
pressure.

IV. Background Information

    In 1990, the Research and Special Programs Administration (RSPA), 
the predecessor agency to PHMSA, published a final rule under Docket 
HM-181 which adopted a new classification system for gases, which 
assigned new divisions for flammable gas (2.1), non-flammable, non-
toxic compressed gas (2.2), and toxic/poisonous gases (2.3). The new 
system defined flammable gases according to their (1) state as a gas at 
ambient conditions (i.e., 14.7 psia (101.4 kPa) and 68 [deg]F (20 
[deg]C)) and (2) flammability, as determined by existing flammability 
limits. There were no vapor pressure requirements.

[[Page 5502]]

    RSPA adopted the definition of a ``gas'' from the United Nations 
(UN) Transport of Dangerous Goods Model Regulation in an effort to 
harmonize its regulations with international standards in 1994. The HM-
181 final rule did not address a particular method of testing vapor 
pressure, or otherwise address how the new definition would impact the 
existing definition of flammable gas in 49 CFR 173.115. However, as 
late as 1990, RSPA's definitions of gases were limited to gases under 
pressure, e.g., compressed gases, cryogenic liquids, and refrigerant or 
dispersant gases. Both the definition of compressed gas, and the 
related definition of flammable compressed gas, contemplated using the 
RVP testing method described in ASTM D 323.

A. Current HMR Requirements for the Classification of Unrefined 
Petroleum-Based Products

    Unrefined petroleum-based products, including crude oil, have 
variable chemical compositions. Differences in the chemical makeup of 
the raw material can vary across different times and wellheads. 
Typically, organic materials from oil and gas production at a wellhead 
are passed through a ``separator'' to separate the gas, oil, and water 
from the crude oil produced. As such, there are multiple hazardous 
liquids that are commonly shipped from the well-site, including crude 
oil, condensate, and natural gas liquids.\13\ A limited separation 
process, which is insufficient to remove the lightest components, could 
increase the volatility of the crude oil. In accordance with Sec.  
173.22 of the HMR, the offeror must consider all hazards when 
classifying a hazardous material. The table below identifies key 
classification considerations for unrefined petroleum-based products: 
\14\
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    \13\ Condensate refers to C5-C8, natural 
gas liquids (NGLs) refers to C2-C8, both 
separated from the crude oil during initial processing.
    \14\ The HMR define three states of matter in 49 CFR 171.8: 
Solid, liquid, or gas. A liquid is a material, other than an 
elevated temperature material, with a melting point or initial 
melting point of 20 [deg]C (68 [deg]F) or lower at a standard 
pressure of 101.3 kPa (14.7 psia). In other words, it is a liquid in 
its normal state at ambient temperature and standard pressure. A gas 
is a material which has a vapor pressure greater than 300 kPa (43.5 
psia) at 50 [deg]C (122 [deg]F) or is completely gaseous at 20 
[deg]C (68 [deg]F) at a standard pressure of 101.3 kPa (14.7 psia). 
A solid is a material which is not a gas or a liquid.
    \15\ kPa: kiloPascals; psia: pounds per square inch absolute; 
psig: pounds per square inch gauge; LC50: Lethal 
Concentration measure.

                 Current Classification Considerations for Unrefined Petroleum-Based Products 15
----------------------------------------------------------------------------------------------------------------
           Class                     Division                      Name                      Definition
----------------------------------------------------------------------------------------------------------------
2.........................  2.1.......................  Flammable Gas............  Any material which is a gas
                                                                                    at 68 [deg]F or less and
                                                                                    14.7 psia of pressure (a
                                                                                    material which has a boiling
                                                                                    point of 68 [deg]F or less
                                                                                    at 14.7 psia) which--
                                                                                   (1) Is ignitable at 14.7 psia
                                                                                    when in a mixture of 13
                                                                                    percent or less by volume
                                                                                    with air; or
                                                                                   (2) Has a flammable range at
                                                                                    14.7 psia with air of at
                                                                                    least 12 percent regardless
                                                                                    of the lower limit.
                            2.2.......................  Non-flammable, Non-        Any material (or mixture)
                                                         poisonous compressed gas.  which--(1) Exerts in the
                                                                                    packaging a gauge pressure
                                                                                    of 200 kPa (29.0 psig/43.8
                                                                                    psia) or greater at 68
                                                                                    [deg]F, is a liquefied gas
                                                                                    or is a cryogenic liquid,
                                                                                    and (2) Does not meet the
                                                                                    definition of Division 2.1
                                                                                    or 2.3.
                            2.3.......................  Gas Poisonous by           A material which is a gas at
                                                         Inhalation.                68 [deg]F or less and a
                                                                                    pressure of 14.7 psia (a
                                                                                    material which has a boiling
                                                                                    point of 68 [deg]F or less
                                                                                    at 14.7 psia) and which--(1)
                                                                                    Is known to be so toxic to
                                                                                    humans as to pose a hazard
                                                                                    to health during
                                                                                    transportation, or (2) In
                                                                                    the absence of adequate data
                                                                                    on human toxicity, is
                                                                                    presumed to be toxic to
                                                                                    humans because when tested
                                                                                    on laboratory animals it has
                                                                                    an LC50 value of not more
                                                                                    than 5000 mL/m\3\ (see Sec.
                                                                                     173.116(a) for assignment
                                                                                    of Hazard Zones A, B, C or
                                                                                    D). LC50 values for mixtures
                                                                                    may be determined using the
                                                                                    formula in Sec.
                                                                                    173.133(b)(1)(i) or CGA P-20
                                                                                    (IBR, see Sec.   171.7).
3.........................  ..........................  Flammable and Combustible  Flammable liquids--liquid
                                                         Liquids.                   with a flash point of 140
                                                                                    [deg]F or less.
                                                                                   Combustible liquids--liquid
                                                                                    with a flash point above 140
                                                                                    [deg]F and below 200 [deg]F
                                                                                    that does not meet any other
                                                                                    hazard class definition.
6.........................  6.1.......................  Poisonous material.......  A material, other than a gas,
                                                                                    which is known to be so
                                                                                    toxic to humans as to afford
                                                                                    a hazard to health during
                                                                                    transportation, or which, in
                                                                                    the absence of adequate data
                                                                                    on human toxicity:
                                                                                   (1) Is presumed to be toxic
                                                                                    to humans because it falls
                                                                                    within any one of the
                                                                                    categories specified in Sec.
                                                                                      173.132(a)(1) (Oral
                                                                                    Toxicity, Dermal Toxicity,
                                                                                    or Inhalation Toxicity) when
                                                                                    tested on laboratory animals
                                                                                    (whenever possible, animal
                                                                                    test data that has been
                                                                                    reported in the chemical
                                                                                    literature should be used);
                                                                                    or
                                                                                   (2) Is an irritating
                                                                                    material, with properties
                                                                                    similar to tear gas, which
                                                                                    causes extreme irritation,
                                                                                    especially in confined
                                                                                    spaces.
8.........................  ..........................  Corrosive material.......  A liquid or solid that causes
                                                                                    full thickness destruction
                                                                                    of human skin at the site of
                                                                                    contact within a specified
                                                                                    period of time. A liquid, or
                                                                                    a solid which may become
                                                                                    liquid during
                                                                                    transportation, that has a
                                                                                    severe corrosion rate on
                                                                                    steel or aluminum based on
                                                                                    the criteria in Sec.
                                                                                    173.137(c)(2) is also a
                                                                                    corrosive material. Whenever
                                                                                    practical, in vitro test
                                                                                    methods authorized in Sec.
                                                                                    173.137 or historical data
                                                                                    authorized in Sec.
                                                                                    173.136(c) should be used to
                                                                                    determine whether a material
                                                                                    is corrosive.
----------------------------------------------------------------------------------------------------------------


[[Page 5503]]

    As illustrated in the above table, an offeror must account for 
whether their crude oil exhibits hazards beyond that of a Class 3 
hazardous material. Below are some examples of the impacts of potential 
hazards and the risks posed if those properties are not identified and 
considered:
     Dissolved gases--may result in pressure build-up inside 
the tank car, increasing the volatility of the material and requiring a 
more robust packaging.
     Corrosivity--may corrode the tank car and its components, 
requiring an inner lining.
     Toxicity--may pose an inhalation hazard to human life upon 
release from the tank car without ignition.
    Part 173 of the HMR contains testing methods for the various hazard 
classes and respective criteria for packing groups. In the event an 
offeror determines a hazardous material meets more than one hazard 
class, the offeror must determine the primary hazard. The HMR (at Sec.  
173.2a) require a hazardous material to be classed according to the 
highest applicable hazard class. The following list illustrates the 
precedence of the hazard classes that are most frequently associated 
with unrefined petroleum-based products:
    (1) Division 2.3 (poisonous gases);
    (2) Division 2.1 (flammable gases);
    (3) Division 2.2 (non-flammable gases);
    (4) Division 6.1 (poisonous liquids), Packing Group I, poisonous-
by-inhalation only;
    (5) Class 3 (flammable and combustible liquids);
    (6) Class 8 (corrosive materials) or Division 6.1 (poisonous 
liquids or solids other than Packing Group I, poisonous-by-inhalation); 
and
    (7) Combustible liquids.
    When making classification determinations, the offeror of the 
hazardous material must also consider the packing groups associated 
with each hazard class. Packing group indicates a grouping according to 
the severity of the hazard presented by hazardous materials. The 
packing group must be determined by applying the following criteria:
1. Class 2 Packing Group Assignment
    Materials meeting the definition of Division 2.1 or 2.2 are not 
assigned packing groups. Division 2.3 materials are assigned hazard 
zones related to the toxicity of the material. See Sec.  173.116.
2. Class 3 Packing Group Assignment

------------------------------------------------------------------------
                                                                Initial
                                       Flash point  (closed-    boiling
            Packing group                       cup)             point
                                                                ([deg]F)
------------------------------------------------------------------------
I...................................  .......................       <=95
II..................................  <73 [deg]F.............        >95
III.................................  >=73 [deg]F, <=140             >95
                                       [deg]F.
------------------------------------------------------------------------

3. Class 6--Division 6.1 Packing Group Assignment

----------------------------------------------------------------------------------------------------------------
                                                                                          Inhalation toxicity by
            Packing group              Oral toxicity LD50  (mg/   Dermal toxicity LD50     dusts and mists LC50
                                                 kg)                    (mg/kg)                   (mg/L)
----------------------------------------------------------------------------------------------------------------
I....................................  <=5.0..................  <=50...................  <=0.2.
II...................................  >5.0 and <=50..........  >50 and <=200..........  >0.2 and <=2.0.
III..................................  >50 and <=300..........  >200 but <=1000........  >2.0 and <=4.0.
----------------------------------------------------------------------------------------------------------------


------------------------------------------------------------------------
           Packing group              Vapor concentration and toxicity
------------------------------------------------------------------------
I (Zone A)........................  V >= 500 LC50 and LC50 <=200 mL/
                                     M\3\.
I (Zone B)........................  V >= 10 LC50; LC50 <=1000 mL/m\3\;
                                     and the criteria for Packing Group
                                     I, Hazard Zone A are not met.
II................................  V >= LC50; LC50 <=3000 mL/m\3\; and
                                     the criteria for Packing Group I,
                                     are not met.
III...............................  V >= .2 LC50; LC50 <=5000 mL/m\3\;
                                     and the criteria for Packing Group
                                     I and II, are not met.
------------------------------------------------------------------------
Note 1: V is the saturated vapor concentration in air of the material in
  mL/m\3\ at 20 [deg]C and standard atmospheric pressure.
Note 2: A liquid in Division 6.1 meeting criteria for Packing Group I,
  Hazard Zones A or B stated in Sec.   173.133(a)(2) is a poisonous by
  inhalation subject to additional hazard communication requirements in
  Sec.  Sec.   172.203(m), 172.313 and table 1 of 172.504(e).

4. Class 8--Packing Group Assignment

------------------------------------------------------------------------
           Packing group                         Corrosivity
------------------------------------------------------------------------
I.................................  Material that causes full thickness
                                     destruction of intact skin tissue
                                     within 60 minutes, starting after
                                     an exposure time of three minutes
                                     or less.
II................................  Material (not meeting packing group
                                     I criteria) that causes full
                                     thickness destruction of intact
                                     skin tissue within 14 days starting
                                     after an exposure time of more than
                                     three minutes but not more than 60
                                     minutes.
III...............................  Material (not meeting packing group
                                     I or II criteria) that causes full
                                     thickness destruction of intact
                                     skin tissue within an observation
                                     period of up to 14 days starting
                                     after the exposure time of more
                                     than 60 minutes but not more than 4
                                     hours; or
                                    Material that does not cause full
                                     thickness destruction of intact
                                     skin tissue but exhibits a
                                     corrosion rate on steel or aluminum
                                     surfaces exceeding 0.25 inch a year
                                     at a test temperature of 130
                                     [deg]F.
------------------------------------------------------------------------

    Proper classification is a critical step in the process for 
ensuring hazardous materials are transported safely. Following the 
selection of a proper hazard class or classes and an appropriate 
packing group for the material, an offeror must select the name from 
the Hazardous Materials Table (HMT; 49 CFR 172.101) most accurately 
describing the material being shipped (e.g., Petroleum crude oil). The 
selected name must account for all hazards present. If there is no 
proper shipping name that accurately describes the material and its 
hazards, an offeror may use a generic shipping description (e.g., 
Hydrocarbon gas mixture, liquefied, n.o.s.). Generic descriptions are 
denoted in the HMT with an ``n.o.s.,'' meaning ``not otherwise 
specified.'' The accurate selection of the shipping description is 
important in determining the proper packaging.
    In 2014, the rail and oil industry, with PHMSA's input, developed a 
recommended practice designed to improve crude oil rail safety through 
proper classification and loading practices. The American Petroleum 
Institute (API) led the effort, which

[[Page 5504]]

resulted in the development of an American National Standards Institute 
(ANSI) recognized recommended practice, API RP 3000, Classifying and 
Loading of Crude Oil Into Rail Tank Cars. The API RP 3000 provides 
guidance on the material characterization, transport classification, 
and quantity measurement for overfill prevention of crude oil for the 
loading of rail tank cars.
    On July 23, 2014, PHMSA and the Federal Railroad Administration 
(FRA) released a report summarizing the analysis of Bakken crude oil 
data gathered from August 2013 to May 2014.\16\ PHMSA and FRA conducted 
tests and obtained results from 135 samples. The majority of crude oil 
analyzed from the Bakken region displayed characteristics consistent 
with those of a Class 3 flammable liquid, packing group I or II.
---------------------------------------------------------------------------

    \16\ See http://phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Hazmat/07_23_14_Operation_Safe_Delivery_Report_final_clean.pdf.
---------------------------------------------------------------------------

B. High-Hazard Flammable Train (HHFT) Rulemaking

    On August 1, 2014, PHMSA, in coordination with FRA, published a 
notice of proposed rulemaking (NPRM) entitled ``Hazardous Materials: 
Enhanced Tank Car Standards and Operational Controls for High-Hazard 
Flammable Trains'' (HM-251; 79 FR 45015) \17\ proposing requirements to 
reduce the consequences and, in some instances, reduce the probability 
of accidents involving trains transporting large quantities of Class 3 
flammable liquids. In the NPRM, PHMSA indicated that the properties of 
unrefined petroleum-based products, including crude oil, are variable 
based on time, method, and location of extraction, whereas manufactured 
goods often undergo a strict quality assurance process designed to 
ensure characteristics are within defined parameters. Unlike 
manufactured goods, organic materials from oil and gas production 
represent a unique challenge in regards to classification. The chemical 
makeup of the raw material can vary over time and geographical 
location. As noted earlier, typically, organic materials from oil and 
gas production at a wellhead are passed through a ``separator'' to 
remove most of the gas, sediment, and water from the crude oil. As 
such, there are multiple hazardous liquids that are commonly shipped 
from the well-site, including crude, natural gas condensate, and 
natural gas liquid.
---------------------------------------------------------------------------

    \17\ See https://www.gpo.gov/fdsys/pkg/FR-2014-08-01/pdf/2014-17764.pdf.
---------------------------------------------------------------------------

    Given this variability, PHMSA stressed that it is the offeror's 
responsibility, under Sec.  173.22 of the HMR, to ensure hazardous 
materials are properly classified. To reinforce this requirement, PHMSA 
proposed a new Sec.  173.41 explicitly requiring a sampling and testing 
program for unrefined petroleum-based products, including crude oil.
    In the HHFT NPRM, PHMSA also sought comments from the public on the 
role of vapor pressure in classifying flammable liquids and selecting 
packagings, as well as whether vapor pressure thresholds should be 
established. PHMSA did this based on comments received to the HHFT 
ANPRM (78 FR 54849). Individuals, government organizations, and 
environmental groups, such as the Delaware Riverkeeper Network, 
supported mandating vapor pressure testing that in their words would 
``increase safety and accuracy.'' Environmental groups and offeror 
Quantum Energy also suggested packaging selection should be based on 
vapor pressure. Industry stakeholders, such as the Dangerous Goods 
Advisory Council and the American Fuel and Petrochemical Manufacturers 
(AFPM), stated vapor pressure testing was unnecessary. For example, 
AFPM specifically stated ``Bakken crude oil vapor pressures appear to 
be within operational limits required for transport in pipelines 
(facility piping and transmission lines) and for purposes of storage in 
floating roof tanks; thus operational vapor pressure limits do not 
necessitate stabilization in advance of rail transportation.'' \18\
---------------------------------------------------------------------------

    \18\ https://www.regulations.gov/document?D=PHMSA-2012-0082-3274.
---------------------------------------------------------------------------

    On May 8, 2015, PHMSA, in coordination with FRA, published a final 
rule entitled ``Hazardous Materials: Enhanced Tank Car Standards and 
Operational Controls for High-Hazard Flammable Trains'' (HM-251; 80 FR 
26643) to codify requirements in the HMR to reduce the consequences 
and, in some instances, reduce the probability of accidents involving 
trains transporting large quantities of Class 3 flammable liquids. In 
regard to the classification of unrefined petroleum-based products, the 
final rule, like the NPRM before it, stressed the offeror's 
responsibility to properly classify and describe a hazardous material. 
In the rule, PHMSA codified Sec.  173.41 to require a sampling and 
testing program for unrefined petroleum-based products. PHMSA intended 
Sec.  173.41 to provide the industry with a direct way of establishing 
a program to consider the varying characteristics and properties of 
unrefined petroleum-based products. The program applies to all modes of 
transportation and offerors must certify that a program is in place, 
document the testing and sampling program outcomes, and make 
information available to DOT personnel upon request.
    In the HHFT final rule, PHMSA indicated that it could not adopt any 
other specific changes related to vapor pressure, exceptions for 
packing group, or incentives to reduce volatility, because PHMSA did 
not propose them in the NPRM. 80 FR 26643, 26665.\19\ However, PHMSA 
indicated it might consider addressing these comments in a future 
action. Based on the comments received, and P-1669, PHMSA requests 
comments regarding the role of ``vapor pressure'' in the classification 
process and specifically in regards to unrefined petroleum-based 
products, such as crude oil.
---------------------------------------------------------------------------

    \19\ https://www.gpo.gov/fdsys/pkg/FR-2015-05-08/pdf/2015-10670.pdf.
---------------------------------------------------------------------------

C. Sandia Study

    In 2014, the DOT and the U.S. Department of Energy (DOE) 
commissioned a review of available crude oil chemical and physical 
property data literature \20\ to characterize and define tight crude 
oils based on their chemical and physical properties, and identify 
properties that could contribute to increased potential for accidental 
combustion.\21\ Sandia National Laboratories (Sandia) conducted this 
review and focused on crude oil's potential for ignition, combustion, 
and explosion. A partial list of properties surveyed includes density 
(expressed as API gravity), vapor pressure, initial boiling point, 
boiling point distribution, flash point, gas-oil ratio, ``light ends'' 
(dissolved gases--including nitrogen, carbon dioxide, hydrogen sulfide, 
methane, ethane, and propane--and butanes and other volatile liquids) 
composition, and flash gas composition. Although the review yielded a 
large database encompassing a wide variety of crude oils and their 
properties, it also illustrated the difficulty in utilizing available 
data as the basis for accurately defining and meaningfully comparing 
crude oils.
---------------------------------------------------------------------------

    \20\ See http://prod.sandia.gov/techlib/access-control.cgi/2015/151823.pdf.
    \21\ Tight oil is a type of oil extracted from petroleum-bearing 
formations of low permeability (typically shale or tight sandstone). 
These formations produce oil through hydraulic fracturing.

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

[[Page 5505]]

    An important outcome of the review was formal recognition of the 
wide-ranging variability in crude oil sample type, sampling method, and 
analytical method, as well as the acknowledgement that this variability 
limits the adequacy of the available crude oil property data set as the 
basis for establishing effective and affordable safe transport 
guidelines. In recognition of the need for improved understanding of 
crude oil, and especially tight crude oil properties, the Sandia Study 
was designed to characterize tight and conventional crudes based on key 
chemical and physical properties and to identify properties that may 
contribute to increased likelihood and/or severity of combustion events 
that could arise during handling and transport. The work scope 
represents a phased approach, in that knowledge gained from completing 
each task will inform the execution of subsequent tasks to maximize 
efficiency in achieving overall plan objectives. Through four tasks, 
the SAE Plan,\22\ will characterize tight and conventional crudes based 
on identified key chemical and physical qualities and identify 
properties that may contribute to increased likelihood and/or severity 
of combustion events that could arise during handling and transport. 
This project is currently in Task 2, which is designed to determine 
what methods of sampling and analysis are suitable for characterizing 
the physical and chemical properties of different crude oils.
---------------------------------------------------------------------------

    \22\ See http://energy.gov/sites/prod/files/2016/06/f32/Crude%20Oil%20Characteristics%20Research%20SAE%20Plan.pdf.
---------------------------------------------------------------------------

D. PHMSA Actions

    On January 2, 2014, PHMSA issued a safety alert to notify the 
public, emergency responders, shippers, and carriers that crude oil 
from the Bakken region may be more flammable than traditional heavy 
crude oil.\23\ The alert was a follow-up to the PHMSA and FRA joint 
safety advisory entitled, ``Safety and Security Plans for Class 3 
Hazardous Materials Transported by Rail,'' 78 FR 69745, published 
November 20, 2013. The safety advisory stressed that offerors need to 
properly classify and describe hazardous materials being offered for 
transportation in accordance with Sec.  173.22 of the HMR.
---------------------------------------------------------------------------

    \23\ See http://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/1_2_14%20Rail_Safety_Alert.pdf.
---------------------------------------------------------------------------

E. Pipeline Operators

    In recent months, the volume of crude oil exported by rail from 
North Dakota has steadily declined to less than 400,000 barrels per 
day. The North Dakota State Pipeline Authority estimates that more than 
500,000 barrels per day of Bakken crude oil moves by pipeline. Pipeline 
operators routinely set upper limits on RVP levels for crude oil that 
will be accepted for transport. A sample of six North Dakota pipeline 
operators indicates that they have set RVP upper limits ranging from 
9.0 to 14.7 psia for acceptable crude oil.\24\ Understanding how oil 
producers comply with pipeline operators' RVP standards, or possibly 
instead ship crude oil with RVP levels that exceed pipeline operator 
limits by rail, would provide useful insights for understanding the 
consequences of setting RVP limits for rail transport.
---------------------------------------------------------------------------

    \24\ Cf. Bakken Oil Express: RVP = 9, http://www.boemidstream.com/wp-content/uploads/2014/02/BOEPL-Rules-Regulations.pdf; Belle Fourche RVP = 13.7, http://www.buttepipeline.com/sites/default/files/tariffs/BFPL%20FERC%20112.17.0.pdf;
    Tesoro High Plains Pipeline (ND): RVP = 13, http://phx.corporate-r.net/External.File?item=UGFyZW50SUQ9MjU1NjYxfENoaWxkSUQ9LTF8VHlwZT0z&t=1;
    Bakken Link: RVP = 9.5, http://bakkenlink.com/data/upfiles/media/rules%20and%20regulations.pdf;
    Enbridge North Dakota Pipeline RVP = 103 kPa (14.7 psia), http:/
/www.enbridge.com/~/media/www/Site%20Documents/
Informational%20Postings/Tariffs/North%20Dakota/NDPL-FERC-No-2-2-
0.pdf;
    Bakken Pipeline Company (Enbridge) says absolute vapor pressure 
per ASTM6377 <13.7. http://www.enbridge.com/~/media/Rebrand/
Documents/Tariffs/2015/Bakken%20US%20FERC%20No%20110.pdf?la=en; and
    Bridger Pipeline: RVP = 9.4 summer/11 winter, http://www.hawthornoiltransportation.com/tariffs/ND_RatesRegs_070112.pdf.
---------------------------------------------------------------------------

F. Accident History and Vapor Pressure Levels

    As shown above, Petition P-1669 included a table highlighting the 
vapor pressures of the crude oil involved in several high-profile train 
accidents. According to the Petition, the vapor pressures of the oil 
involved in the five accidents was, at the low end, an ``average 
between 9.0 and 9.5 psi,'' and at the high end, ``an average of 14.3 
psi.'' It likely would be useful to have more comprehensive information 
regarding the vapor pressure levels of Class 3 flammable liquid 
hazardous materials involved in rail accidents, and information about 
the nature, characteristics and consequences of the accidents. It would 
be useful to have such information for accidents involving other 
transportation modes as well. Such information may inform understanding 
of how a flammable liquid's vapor pressure affects the characteristics 
and consequences of accidents involving the liquid. PHMSA began 
collecting this information for rail after July 2013. The information 
we have has uncertainty since testing may happen after the train is 
moved to a final destination and there may have been different sampling 
and testing techniques used, among other issues. PHMSA may consider 
publishing this information for the NPRM once we review and 
consolidate.

V. Comments and Questions

    PHMSA requests comments on the merits of P-1669.\25\ PHMSA is 
uncertain that the requested action in Petition P-1669 would provide a 
safety benefit and requests comments on the following questions:
---------------------------------------------------------------------------

    \25\ https://www.regulations.gov/docket?D=PHMSA-2015-0253.
---------------------------------------------------------------------------

A. General Questions

    1. To what extent, if at all, would requiring crude oil shipped 
by rail to have a RVP of no greater than 9.0 psi decrease the 
expected degree, consequence, or magnitude of a release or the 
likelihood of a fire during an accident? Please provide relevant 
scientific or other empirical information to support your comment.
    2. What, if any, peer-reviewed or other robust information is 
available that addresses the safety effectiveness and/or cost of 
setting vapor pressure limits for crude oil or other flammable 
liquids during transportation?
    3. How do the consequences resulting from accidents involving 
low-vapor pressure flammable liquids (e.g., ethanol) \26\ compare to 
accidents involving high vapor pressure flammable liquids (e.g., 
certain crude oil)? If the consequences are significantly similar, 
will adopting a vapor pressure limit address the magnitude of 
release or the likelihood of fire during an accident for both 
commodity types?
---------------------------------------------------------------------------

    \26\ The vapor pressure of ethanol is RVP (at 100 F) is 2.0 psi.
---------------------------------------------------------------------------

    4. Would adopting a vapor pressure limit impact trans-border 
shipments? If so, how?
    5. What methods can be employed to measure environmental and 
human health effects of setting a vapor pressure limit for the 
transport of crude oil by rail? How would the benefits of setting a 
vapor pressure limit be quantified?
    6. What options are available for reducing the volatility of 
crude oil before it's offered for transportation and loaded into 
tank cars, such as existing consensus standards or operating 
practices used for conditioning (heating and treating) crude oil? 
What voluntary measures has industry taken to reduce the volatility 
of crude oil shipped in interstate commerce by any mode? If so, what 
are they?
    7. What other regulatory and industry marketability measures are 
in place that restrict the volatility of crude oil in transport, 
such as RVP limits set by pipeline operators, or the impact of 
volatile organic compound emission standards for storage tanks and 
other petroleum facilities?
    8. How many carloads and trains would be affected by setting a 
vapor pressure limit for

[[Page 5506]]

the transport of crude oil by rail? What portion of current carloads 
would be out of compliance with the standard proposed in P-1669? 
Similarly, how many cargo ship shipments, truck shipments and 
barrels of oil transported by pipeline would be affected by adopting 
the standard proposed in P-1669?
    9. What are the expected impacts of establishing a nationwide 
vapor pressure standard for crude oil intended for transportation in 
commerce? Should that standard apply to all modes of transportation 
or be limited to specific modes? What are the costs and benefits of 
those impacts? Please provide information and data, and include 
references and sources for information and data provided.
    10. Should there be different vapor pressure limits depending on 
the specific circumstances of the shipment, such as the mode, the 
quantity of material or whether the shipment will travel through 
populated areas?
    11. Are there other risk factors that should be considered 
instead of, or in addition to, vapor pressure (e.g., a material's 
flammability range, specific heat or heat of vaporization)? How do 
these risk factors affect the magnitude of release or the likelihood 
of fire resulting from an accident?
    12. While offerors would be legally responsible for compliance 
with a volatility standard, it may be that actual compliance would 
be more cost-effectively implemented at some other point in the 
supply chain. What physical, institutional, or legal arrangements 
would be needed for implementation of a vapor pressure standard?
    13. What types of additional technology, equipment, labor, and 
changes to existing operations would be needed for the establishment 
of a nationwide vapor pressure standard for crude oil intended for 
transportation in commerce? What would be the initial and recurring, 
and fixed and variable costs? If changes to existing operations 
would involve additional labor, then please provide the additional 
time by activity and labor category.
    14. To what extent can a vapor pressure standard be implemented 
within the existing system? At what point would additional 
investments be required? What level of infrastructure change would 
be needed? Is this level affected by seasonal and market demands? 
How do the answers to these questions change if crude oil production 
returned to historically high volume levels?
    15. What additional types of training would be needed for the 
establishment of a nationwide vapor pressure standard for crude oil? 
What would be the initial and recurring costs?
    16. Compared to the current baseline, what would be the changes 
to production, pre-treatment, conditioning or stabilization, 
loading, and transport of petroleum crude oil if PHMSA establishes a 
nationwide vapor pressure standard?
    17. How should the effectiveness and benefits of a rulemaking 
establishing a nationwide vapor pressure standard for crude oil be 
measured?
    18. In order to estimate benefits of a rulemaking, what 
consequences would be mitigated or prevented by establishing a 
nationwide vapor pressure standard for crude oil? Have there been 
any U.S. crude-by-rail accidents where a lower vapor pressure would 
have made a difference in the outcome? If yes, please provide all 
relevant details to support the conclusion.
    19. If PHMSA were to adopt the vapor pressure threshold 
requested by the petitioner (or another threshold), what timeframe 
would be needed to comply with the new requirements to implement the 
needed treatment infrastructure throughout the network of offerors?
    20. If PHMSA were to establish a nationwide vapor pressure 
standard, should any other Class 3 hazardous materials besides crude 
oil be subject to a vapor pressure limit? If so, which ones? Please 
provide the basis for your comment.
    21. If PHMSA were to establish a nationwide vapor pressure 
standard, should it apply to the highway mode of transportation? 
What is the impact of a vapor pressure standard on the current 
highway fleet capacity? If highway transportation is included, what 
is the increased exposure for highway deaths and injuries? How does 
this compare to exposure in rail transportation?
    22. What other properties of Class 3 hazardous materials are 
important to consider when setting vapor pressure limits? For 
example, are the following properties important: Lower and upper 
explosive limits, evaporations rates, etc.?
    23. Would the flammable gases removed from the crude oil be 
transported by tank cars or cargo tanks? If so, how many additional 
tank cars or cargo tank shipments of flammable gases would be 
required? What are the safety consequences of transporting such 
materials or how might PHMSA quantify such consequences? How would 
this impact the overall risk assessment?
    24. Given the risks associated with transporting large 
quantities of flammable liquids, are there measures that PHMSA 
should consider as an alternative or in addition to addressing 
material properties such as vapor pressure or flammability range, 
etc.?

B. Safety Questions

    1. Do the current HMR adequately consider the risks that 
flammable liquids containing dissolved flammable or nonflammable 
gases present?
    2. Should vapor pressure be used to delineate gases (and liquids 
with high vapor pressures) from liquids with low vapor pressures? If 
so, is the current definition of a gas sufficient or should a 
different threshold (i.e., vapor pressure or temperature) be 
utilized? Answers should also include specification to measurement 
method (including V/L ratio) and sampling method, if necessary, for 
that determination when recommending different thresholds.
    3. Should unrefined petroleum products not completely gaseous at 
20 [deg]C but having a vapor pressure greater than 300 kPa at 50 
[deg]C be subjected to the testing in Sec.  173.115(a)(2) to 
determine whether that material should be regulated as flammable 
gas? If yes, what affect would this have on other Class 3 hazardous 
materials?
    4. Should PHMSA consider adopting a new Hazardous Materials 
Table (HMT; Sec.  172.101) entry for petroleum crude oil with a 
high-concentration of dissolved gases that is similar to the entry 
for UN3494, Petroleum sour crude oil, flammable, toxic? \27\
---------------------------------------------------------------------------

    \27\ 49 CFR 172.102(c)(1), Special Provision 343--A bulk 
packaging that emits hydrogen sulfide in sufficient concentration 
that vapors evolved from the crude oil can present an inhalation 
hazard must be marked as specified in Sec.  172.327of this part.
---------------------------------------------------------------------------

    5. Do flammable liquids containing dissolved flammable and 
nonflammable gases have implications for the response community, 
such as hazard communication or response considerations, that the 
agency should consider?
    6. If Petition P-1669 were adopted, would there be an impact in 
the transportation of other flammable products, and if so, what 
would they be?

C. Vapor Pressure Questions

    1. Would the use of RVP, True Vapor Pressure, VPCRx, or some 
other standard be the best method for measuring vapor pressure for 
classification and packaging? Does this method appropriately account 
for liquids containing dissolved flammable and non-flammable gases 
under non-equilibrium conditions? What volume to liquid ratio and 
temperature would be most suitable? Why?
    2. Would the definition for ``live'' and ``dead'' crude oils 
from ASTM D6377 and other standards be relevant or useful in setting 
a vapor pressure limit?
    3. Is there a unit of measure for how much dissolved flammable 
and non-flammable gases contribute to the vapor pressure, 
volatility, and flammability of crude oil?
    4. Are there any materials currently classified as a flammable 
liquid within the HMR that would be impacted by a vapor pressure 
threshold?
    5. What are the observed vapor pressures of tight crude oil in 
various stages of production, stabilization, and transportation? 
Please explain the conditions under which sampling and testing was 
performed.
    6. Have any other nations established vapor pressure limits for 
transporting crude oil or other flammable liquids by any mode? If 
so, which nations, what limits do they use, and what information did 
they use to support the specific limits?
    7. Petition P-1669 recommends a RVP of no greater than 9.0 psi. 
In contrast, the NDIC implemented a maximum vapor pressure threshold 
of 13.7 psi, (VPCR4 as defined in ASTM D6377). If PHMSA 
were to establish a national vapor pressure limit, what should it 
be?
    8. Has any source compiled comprehensive and reliable 
information regarding the vapor pressures of Class 3 flammable 
liquid hazardous materials involved in transportation accidents, as 
well as information about the nature, characteristics and 
consequences associated with those accidents? Has any source 
conducted statistical or other scientific analysis regarding the 
relationship between vapor pressure and the consequences of 
transportation accidents?

[[Page 5507]]

D. Packaging Questions

    1. Would further limiting the filling capacity be an effective 
method for reducing the risks associated with Class 3 hazardous 
materials containing dissolved gases?

VI. Regulatory Review and Notices

A. Executive Order 12866, Executive Order 13563, Executive Order 13610, 
and DOT Regulatory Policies and Procedures

    This ANPRM is considered a significant regulatory action under 
section 3(f) of Executive Order 12866 and was reviewed by the Office of 
Management and Budget (OMB). It is considered a significant regulatory 
action under the Regulatory Policies and Procedures order issued by the 
Department of Transportation. 44 FR 11034 (Feb. 26, 1979).
    Executive Orders 12866, ``Regulatory Planning and Review,'' 58 FR 
51735 (Oct. 4, 1993), and 13563, ``Improving Regulation and Regulatory 
Review,'' 76 FR 3821 (Jan. 21, 2011), require agencies to regulate in 
the ``most cost-effective manner,'' to make a ``reasoned determination 
that the benefits of the intended regulation justify its costs,'' and 
to develop regulations that ``impose the least burden on society.'' 
Executive Order 13610, ``Identifying and reducing Regulatory Burdens,'' 
77 FR 28469 (May 14, 2012), urges agencies to conduct retrospective 
analyses of existing rules to examine whether they remain justified and 
whether they should be modified or streamlined in light of changed 
circumstances, including the rise of new technologies.
    Additionally, Executive Orders 12866, 13563, and 13610 require 
agencies to provide a meaningful opportunity for public participation. 
Accordingly, PHMSA invites comments on these considerations, including 
any cost or benefit figures or factors, alternative approaches, and 
relevant scientific, technical and economic data. These comments, along 
with the information provided by the New York State Office of the 
Attorney General, will help PHMSA evaluate whether regulatory action is 
warranted and appropriate.

B. Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), 
requires agencies to assure meaningful and timely input by State and 
local officials in the development of regulatory policies that may have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' PHMSA 
invites State and local governments with an interest in this rulemaking 
to comment on any effect that may result if Petition P-1669 is adopted.

C. Executive Order 13175

    Executive Order 13175, ``Consultation and Coordination and Indian 
Tribal Governments,'' 65 FR 67249 (Nov. 9, 2000), requires agencies to 
assure meaningful and timely input from Indian tribal government 
representatives in the development of rules that significantly or 
uniquely affect Indian communities by imposing ``substantial direct 
compliance costs'' or ``substantial direct effects'' on such 
communities or the relationship and distribution of power between the 
Federal Government and Indian tribes. PHMSA invites Indian tribal 
governments to provide comments on the costs and effects the petitions 
and recommendations could have on them, if adopted.

D. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies 
and Procedures

    Under the Regulatory Flexibility Act of 1980, 5 U.S.C. 601, et 
seq., PHMSA must consider whether a rulemaking would have a 
``significant economic impact on a substantial number of small 
entities.'' ``Small entities'' include small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations under 50,000.
    It is possible that if PHMSA proposes to adopt the revisions 
suggested in Petition P-1669, there may be a ``significant economic 
impact on a substantial number of small entities.'' As such, PHMSA 
would like small entities' input on the issues presented in this ANPRM. 
If you believe that revisions to the HMR would have a significant 
economic impact on a substantial number of small entities, please 
provide information on such impacts.
    Any future proposed rule would be developed in accordance with 
Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 68 FR 7990 (Feb. 19, 2003), and DOT's procedures 
and policies to promote compliance with the Regulatory Flexibility Act 
to ensure that potential impacts on small entities of a regulatory 
action are properly considered.

E. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., 5 CFR 1320.8(d) requires that PHMSA provide interested members of 
the public and affected agencies an opportunity to comment on 
information collection and recordkeeping requests. This ANPRM does not 
impose new information collection requirements. PHMSA specifically 
requests comments on the information collection and recordkeeping 
burdens that may result if Petition P-1669 is adopted.

F. Environmental Assessment

    The National Environmental Policy Act of 1969, 42 U.S.C. 4321-4375, 
requires that Federal agencies analyze proposed actions to determine 
whether the action will have a significant impact on the human 
environment. The Council on Environmental Quality (CEQ) regulations 
require Federal agencies to conduct an environmental review considering 
(1) the need for the proposed action, (2) alternatives to the proposed 
action, (3) probable environmental impacts of the proposed action and 
alternatives, and (4) the agencies and persons consulted during the 
consideration process. See 40 CFR 1508.9(b). PHMSA welcomes any data or 
information related to environmental impacts that may result if 
Petition P-1669 is adopted, as well as possible alternatives and their 
environmental impacts.

G. 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 document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000, see 65 FR 19477, or 
you may visit http://www.regulations.gov.

H. Executive Order 13609 and International Trade Analysis

    Under Executive Order 13609, ``Promoting International Regulatory 
Cooperation,'' 77 FR 26413 (May 4, 2012), agencies must consider 
whether the impacts associated with significant variations between 
domestic and international regulatory approaches are unnecessary or may 
impair the ability of American businesses to export and compete 
internationally. In meeting shared challenges involving health, safety, 
labor, security, environmental, and other issues, regulatory approaches 
developed through international cooperation can provide equivalent 
protection to standards developed independently while also minimizing 
unnecessary differences.

[[Page 5508]]

    Similarly, the Trade Agreements Act of 1979, Pub. L. 96-39, as 
amended by the Uruguay Round Agreements Act, Pub. L. 103-465, prohibits 
Federal agencies from establishing any standards or engaging in related 
activities that create unnecessary obstacles to the foreign commerce of 
the United States. For purposes of these requirements, Federal agencies 
may participate in the establishment of international standards, so 
long as the standards have a legitimate domestic objective, such as 
providing for safety, and do not operate to exclude imports that meet 
this objective. The statute also requires consideration of 
international standards and, where appropriate, that they be the basis 
for U.S. standards.
    PHMSA participates in the establishment of international standards 
in order to protect the safety of the American public, and PHMSA has 
assessed the effects of the proposed rule to ensure that it does not 
cause unnecessary obstacles to foreign trade. Accordingly, this 
rulemaking is consistent with Executive Order 13609 and PHMSA's 
obligations under the Trade Agreement Act, as amended.
    PHMSA welcomes any data or information related to international 
impacts that may result if Petition P-1669 is adopted, as well as 
possible alternatives and their international impacts. Please describe 
the impacts and the basis for the comment.

I. Statutory/Legal Authority for This Rulemaking

    This ANPRM is published under the authority of 49 U.S.C. 5103(b), 
which authorizes the Secretary of Transportation to ``prescribe 
regulations for the safe transportation, including security, of 
hazardous materials in intrastate, interstate, and foreign commerce.'' 
The intent of this ANPRM is to address the safety concerns raised by 
Petition P-1669 in respect to the transportation of hazardous materials 
in commerce. Our goal in this ANPRM is to gather the necessary 
information to determine a course of action in a potential Notice of 
Proposed Rulemaking (NPRM).

J. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

K. Executive Order 13211

    Executive Order 13211, 66 FR 28355 (May 22, 2001), requires Federal 
agencies to prepare a Statement of Energy Effects for any ``significant 
energy action.'' Under the executive order, a ``significant energy 
action'' is defined as any action by an agency (normally published in 
the Federal Register) that promulgates, or is expected to lead to the 
promulgation of, a final rule or regulation (including a notice of 
inquiry, ANPRM, and NPRM) that (1)(i) is a significant regulatory 
action under Executive Order 12866 or any successor order and (ii) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy; or (2) is designated by the 
Administrator of the Office of Information and Regulatory Affairs as a 
significant energy action.
    PHMSA welcomes any data or information related to energy impacts 
that may result if P-1669 is adopted, as well as possible alternatives 
and their energy impacts. Please describe the impacts and the basis for 
the comment.

    Issued in Washington, DC, on January 10, 2017, under the 
authority of 49 U.S.C. 5103(b).
Anthony R. Foxx,
Secretary of Transportation.
[FR Doc. 2017-00913 Filed 1-17-17; 8:45 am]
 BILLING CODE 4910-60-P


