In response to concerns raised by shippers, on March 6, 2014, DOT amended its recent Emergency Order (see prior pipelinelaw alert)  imposing certain testing and classification requirements on all persons who offer crude for transport by rail in the U.S.  The Amended Order clarifies the scope and frequency of the testing requirements, including that (1) tests should be of ‘sufficiently representative samples’ to determine the crude oil’s flash point and boiling point prior to shipment; (2) existing test data may be relied upon if there is a “reasonable degree of certainty” that it is representative of the product; and (3) tests should occur with “sufficient frequency” to ensure data remains accurate and current.  Establishment of testing intervals should account for variability of the material, including the time, temperature, and location of extraction.

DOT’s issuance of this Amended Order demonstrates the evolving regulation of transportation of oil by rail, as PHMSA and FRA continue their “Operation Classification” initiative to review shipments of Bakken crude and consider new rules regarding rail hazmat safety and tank car design.