Lack of Harmony

While progress has been made, NAFTA regulatory uniformity still proves elusive

REGULATORY harmony was one of the objectives when the North American Free Trade Agreement (NAFTA) was negotiated by Canada, Mexico, and the United States. Considerable progress has been made, but the three countries still have a long way to go.

This is particularly true when the regulations governing cargo tank size, design, construction, and repair are examined. With the exception of pressure vessels, new code tanks in the United States have been built to DOT400-series standards since 1995. MC300-series tanks are grandfathered for as long as they can comply with minimum requirements.

Canada is in the process of finalizing its new clear-language transport rules, which will mandate 400-series code tanks. Current regulations allow 300-series tanks, as well as several Canada-specific designs.

In Mexico, current design standards incorporate 300-series specifications. Work is underway to adopt the 400-series requirements, but a final rule will have to await a financial review of the tank truck industry and the customers served.

As far as sizes are concerned, the United States is the odd country out. While the uniform national weight standard in the United States is 80,000 pounds, both Canada and Mexico allow weights in excess of 90,000 pounds for a five-axle tractor-trailer rig.

Regulatory Focus Cargo tank design standards were among the regulatory issues that were addressed by a series of speakers during the 3rd North American Chemical Transportation & Distribution Conference September 26-28 in Ottawa, Ontario, Canada. The biennial conference is sponsored by the American Chemistry Council (ACC), Asociacion Nacional de la Industria Quimica (ANIQ), and Canadian Chemical Producers Association (CCPA).

All three North American countries have made significant changes in hazardous materials transport regulations, and more are on the way. New clear-language regulations for hazardous materials transport should be published by Transport Canada sometime in 2001.

The new hazardous materials rules will be part of a multitude of regulations of all sorts that will be put on the Web by the Canadian government. Regulations, interpretation, and permits will be available over the Internet. Government officials are asking for comments from industry to determine what information would be most useful.

Canada remains committed to global harmonization of dangerous goods standards, and John Read of Transport Canada suggested that North America might be a good place to start. "We believe it's important to be actively involved in this, because chemical manufacturers and shippers will be affected," he said. "We must be careful to do it right. Mistakes could be costly. Most importantly, we don't want dangerous goods to be swallowed up by the United Nations Environmental Committee."

NAFTA Hindrance Marcel Pouliot, director of Safety Services at Trimac Transportation, pointed out in a workshop on tank truck carrier issues that a lack of harmonization in North America is a serious hindrance. Carriers find it difficult to comply with diverse and divergent regulations. Lack of regulatory uniformity hampers efforts to maximize efficiency, and control costs are affected.

Pouliot outlined a number of issues that are of specific concern to tank truck carriers operating in Canada. The number one item on the list - soaring fuel costs - is not specifically affected by regulations, but there is a regulatory cloud overhead.

Canadian government officials have indicated a willingness to take an active role in the fuel-price crisis. "We don't really want that," Pouliot said. "We're worried that this could lead to virtual re-regulation of the Canadian trucking industry.

"We're seeing a lot of volatility in fuel prices, and diesel has reached parity with gasoline. The impact of fleet operating costs has been substantial, and smaller carriers and owner-operators especially are calling for help."

Fall Protection Fall protection is another concern for Canadian tank fleets. "A few years ago, the Canadian government tried to apply a workplace fall-protection rule to the tank truck industry," Pouliot said. "They are now making another attempt."

The Canadian Trucking Alliance and Human Resources Development Canada are working together to develop an approach that is acceptable to all parties. Tank truck carriers operating in Canada probably will have to provide some level of fall protection on tank trailers in the not-too-distant future.

Another serious issue is the hours-of-service (HOS) initiative. While the Canadian rules are expected to have less impact on day-to-day activity, productivity still will be reduced. More drivers will be needed.

The biggest challenge will be faced by Canadian fleets that operate in the United States. "Cross-border activity will be a nightmare if the US adopts the HOS rules that were proposed earlier this year," Pouliot said.

HOS revisions also are a major concern in the United States, according to John Conley, vice-president of National Tank Truck Carriers. The Department of Transportation proposal, which was ripped apart by trucking supporters and opponents, has been tabled.

"If the initial DOT proposal is adopted as written, it would reduce driving time for each truck driver by at least 20%," Conley said. "The industry will need more drivers and will have to pay them a lot more.

"Eight hearings were held earlier this year, and strong negative feedback came from everyone. Drivers said they couldn't live with the rule. The US Senate has blocked further money for the HOS rule. We expect a major rewrite, and a court challenge is still a virtual certainty.

"We've seen more enforcement from DOT in a number of areas, and the HOS setback could bring even more pressure. We could see a much harsher enforcement attitude toward the current HOS rules."

Driver Shortage All of this will make it harder to find and keep good truck drivers. "The reality is that carriers are having to put people behind the wheel who wouldn't have been hired in the past," Conley said. "These aren't unsafe drivers. They just aren't as high a caliber as in the past."

He urged chemical shippers to play more of a role in helping to improve the work environment for truck drivers. Shipper help will be needed to find ways to offset anticipated productivity losses that will be caused by the HOS revisions.

In addition, shippers need to work more closely with carriers in a number of other areas. Nitrogen blanketing is a key area that requires a joint shipper/carrier partnership. Nitrogen use seems much more prevalent today in chemical and foodgrade shipments, and it poses some serious risks.

"Workers die every year when they enter unlabeled tanks containing a nitrogen atmosphere," Conley said. "OSHA (the Occupational Safety and Health Administration) is taking a fresh interest in this. This problem crosses all sectors of the distribution chain, including marine and storage terminals."

It would be better if industry moved first, he added, and NTTC has held a number of meetings with the ACC. "We don't want to call for a federal regulation, but we will do what is necessary to protect our drivers and terminal workers," Conley said.

Greater chemical and tank truck industry cooperation is needed in heel management. "We all need to be concerned about this, because product is not reaching its destination," Conley said. "We think it's important to develop new strategies to minimize chemical heels."

Vapor recovery of chemicals is another issue calling for more inter-industry cooperation. State and federal environmental rules are driving the need for vapor recovery. Once again, the chemical and tank truck industries should work together to recommend a standardized system.

Hazmat Attention Chemicals and other hazardous materials shipments in the United States are receiving a lot more attention from the federal government. Frits Wybenga, DOT, outlined some of the specific DOT initiatives and objectives.

"Roughly 400 serious incidents occur each year in the United States, resulting in death, injury, or evacuation," he said. "Human error causes over 85% of all incidents and a significant portion of serious incidents."

DOT has initiated a flagship program to improve motor carrier safety, work more closely with intrastate carriers, encourage hazard analysis and critical control point methodology, prioritize compliance and enforcement activities based on human factors, and reduce the level of incident nonreporting.

More attention and inspections will be focused on shippers of hazardous materials. Training standards will be strengthened, and more hazardous materials data will be required with shipments.

More hazardous materials regulations are coming. HM-213A will address tanker rollover. It is the next step in a study that was conducted by the National Transportation Safety Board. When published, the advance notice of proposed rulemaking (ANPRM) will call for industry comments.

HM-213B will be published as a notice of proposed rulemaking and will call for a ban on the sort of wetlines that exist on petroleum cargo tanks. It will address restrictions and damage protection.

HM-213D harmonizes US hazmat regulations with the 11th UN Recommendations. Included are references to the reformatted IMDG guidelines, UN portable tanks, intermediate bulk container authorizations, and the distinction between primary and subsidiary labels.

HM-223 attempts to clarify the applicability of the hazardous materials regulations to loading, unloading, and storage in transit. "We're trying to define when hazmat becomes subject to the RSPA (Research and Special Programs Administration) rules," Wybenga said.

HM-229 is an ANPRM that begins a review of the incident reporting process. Revisions are being considered for the reporting form and the reporting requirements.

Mexico Regulations One of the most intensive hazmat regulation efforts in recent years took place in Mexico. The government has just begun a new phase in its effort to regulate hazardous materials shipments, according to Antonio Jorge Capiz, Secretariat of Communications and Transport.

The country's first multimodal hazmat regulations are being developed as part of a campaign to eliminate fragmented enforcement efforts. When completed, the single-regulation scheme will be similar to the programs already in place in the United States and Canada.

Multimodal regulations, called normas in Mexico, for labeling and packaging took effect in September 1999. The Emergency Response Guidebook has been incorporated into the normas, and a new emergency information rule is almost ready for publication. Vehicle out-of-service criteria are being harmonized with the Commercial Vehicle Safety Alliance.

Daily inspection requirements for bulk packagings are near completion. "These rules will make the operator directly responsible for his vehicle," Jorge said. "Drivers will be given a checklist for the vehicle inspection, and they will be expected to report problems to the fleet."

Of the three North American countries, Mexico is the first to implement new HOS. Issued in March 2000, the new HOS rules cover hazardous materials transportation. The rules limit a driver to a 10-hour day with the following pattern: four hours of driving, followed by a two-hour break and another four hours of driving.

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