Hazardous Materials: California and Los Angeles County Requirements Applicable to the On-Site Handling and Transportation of Hazardous Materials, 70874-70879 [2015-28921]
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[FR Doc. 2015–28924 Filed 11–13–15; 8:45 am]
BILLING CODE 4910–59–P
DEPARTMENT OF TRANSPORTATION
FOR FURTHER INFORMATION CONTACT:
Pipeline and Hazardous Materials
Safety Administration
[Docket No. PHMSA–RSPA 2000–7486; PDs
8(R)–11(R)]
Hazardous Materials: California and
Los Angeles County Requirements
Applicable to the On-Site Handling and
Transportation of Hazardous Materials
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Decision on petitions for
reconsideration of administrative
determinations of preemption.
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AGENCY:
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Vincent Lopez or Joseph Solomey,
Office of Chief Counsel (PHC–10),
Pipeline and Hazardous Materials Safety
Administration, U.S. Department of
Transportation, 1200 New Jersey
Avenue SE., Washington, DC 20590–
0001 (Tel. No. 202–366–4400).
SUPPLEMENTARY INFORMATION:
I. Background
Petitioners: Hasa, Inc., National
Propane Gas Association, National Tank
Truck Carriers, Inc., Pioneer Chlor
Alkali Company, Inc., The Society of the
Plastics Industry, Inc.
State and Local Laws Affected:
California Health & Safety Code (CHSC),
Chapter 6.95, Los Angeles County Code
(LACoC), Titles 2 and 32.
Mode Affected: Rail.
SUMMARY: Federal hazardous material
transportation law does not preempt
California and Los Angeles County
requirements on (1) the unloading of
hazardous materials from rail tank cars
by a consignee and (2) the consignee’s
on-site storage of hazardous materials
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following delivery of the hazardous
materials to their destination and
departure of the carrier from the
consignee’s premises or private track
adjacent to the consignee’s premises.
This is a decision on petitions for
reconsideration of PHMSA’s
determinations of preemption regarding
certain of the State of California and Los
Angeles County requirements applicable
to unloading of hazardous materials
from rail tank cars and the on-site
storage of hazardous materials in rail
tank cars or after unloading. The filing
of these petitions for reconsideration
rendered PHMSA’s determinations of
preemption non-final. With this
decision on the petitions for
reconsideration, the determinations of
preemption that PHMSA was asked to
reconsider become final.
A. Preemption Determinations (PDs)
Nos. 8(R)–11(R)
In PDs Nos. 8(R)–11(R), published in
the Federal Register on February 15,
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1995 (60 FR 8774), PHMSA 1 considered
certain requirements of the State of
California and Los Angeles County
applicable to unloading of hazardous
materials from rail tank cars and the onsite storage of hazardous materials in
rail tank cars or after unloading. In these
determinations, PHMSA responded to
applications by the Swimming Pool
Chemical Manufacturers Association
(SPCMA) and one of its members, Hasa,
Inc. (Hasa), questioning whether Federal
hazardous material transportation law,
49 U.S.C. 5101 et seq., preempts the
definition or classification of
compressed gases and cryogenic fluids
in the Uniform Fire Code (adopted in
Title 32 of the Los Angeles County Code
[LACoC]) and requirements on:
• Permits to store, transport, or
handle these materials;
• unloading and storage of these
materials, including the design and
construction of tanks and containers;
• markings on containers of cryogenic
liquids;
1 Effective February 20, 2005, PHMSA was
created to further the ‘‘highest degree of safety in
pipeline transportation and hazardous materials
transportation,’’ and the Secretary of Transportation
redelegated hazardous materials safety functions
from the Research and Special Programs
Administration (RSPA) to PHMSA’s Administrator.
49 U.S.C 108, as amended by the Norman Y. Mineta
Research and Special Programs Improvement Act
(Pub. L. 108–426, § 2, 118 Stat. 2423 (Nov. 30,
2004)), and 49 CFR 1.97(b), as redesignated at 77
FR 49964, 4987 (Aug. 17, 2012). For convenience,
this decision refers to ‘‘PHMSA’’ in discussing
actions taken by RSPA before February 20, 2005.
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• placards and equipment on vehicles
used to transport cryogenic liquids; and
• the fees in Title 2 of LACoC on
‘‘handlers’’ of hazardous materials.
SPCMA also challenged the
definitions of ‘‘handle’’ and ‘‘storage’’ in
Chapter 6.95 of the California Health
and Safety Code (CHSC), which make
substantive requirements in Chapter
6.95 applicable to on-site handling and
storage of hazardous materials in rail
tank cars at SPCMA members’
facilities.2
In PDs 8(R)–11(R), PHMSA discussed
its responsibility under 49 U.S.C.
5103(b) to ‘‘prescribe regulations for the
safe transportation of hazardous
material in intrastate, interstate and
foreign commerce,’’3 and the definition
of ‘‘transportation’’ in former 49 U.S.C.
5102(12) as ‘‘the movement of property
and any loading, unloading, or storage
incidental to the movement.’’4 60 FR at
8777. PHMSA stated that ‘‘Federal
hazmat law and the HMR do not apply
to the movement of hazardous material
exclusively at a consignee’s facility.’’ Id.
However,
• ‘‘Unloading that is incidental to
transportation includes consignee
unloading of tank cars containing
hazardous materials,’’ and must be
performed in accordance with 49 CFR
174.67. Id.
• ‘‘Storage that is incidental to
transportation includes storage by a
carrier that may occur between the time
a hazardous material is offered for
transportation to a carrier and the time
it reaches its intended destination and
is accepted by the consignee,’’ and is
governed by requirements in 49 CFR
174.204(a)(2), but ‘‘consignor and
consignee storage of hazardous
materials is not incidental to
transportation in commerce.’’ 60 FR at
8778.
• Other Federal agencies, including
the Environmental Protection Agency
(EPA) and the Department of Labor’s
Occupational Safety and Health
Administration (OSHA) also regulate
2 CHSC Chapter 6.95 requires plans for emergency
response and/or risk prevention, and these
requirements are implemented at the local level—
in this case, by Los Angeles County in LACoC Titles
2 and 32.
3 In 2002, Congress amended this mandate to
direct DOT to ‘‘prescribe regulations for the safe
transportation, including security, of hazardous
material in intrastate, interstate, and foreign
commerce.’’ Homeland Security Act of 2002, Public
Law 107–296 § 1711(a), 116 Stat. 2319 (Nov. 25,
2002).
4 In 2005, this paragraph was redesignated
§ 5102(13). Hazardous Materials Transportation
Safety and Security Reauthorization Act of 2005
(Title VII of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for
Users), Public Law 109–59 § 7102(8), 119 Stat. 1893
(Aug. 10, 2005).
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hazardous materials ‘‘to ensure that they
are not unintentionally or unlawfully
released into the environment’’ and ‘‘to
ensure worker safety’’ in the workplace.
Id.
PHMSA found there was insufficient
information to make a determination
whether four specific requirements were
preempted and that Federal hazardous
material transportation law preempts
only the following specific provisions
challenged in the applications of
SPCMA and Hasa:
• The prohibition in Title 32 LACoC
79.809(c) against allowing a tank car to
remain on a siding at point of delivery
for more than 24 hours while connected
for transfer operations, because tank car
unloading requirements in 49 CFR
174.67 did not limit the amount of time
a tank car may remain on a siding at a
point of delivery while connected for
transfer operations. 60 FR at 8788.
• The requirement in Title 32 LACoC
79.809(f) for in-person attendance of a
tank car during unloading, because Los
Angeles County did not recognize the
authority granted to Hasa in former DOT
exemption E 10552 for the use of
electronic surveillance to monitor tank
car unloading, under certain conditions
and restrictions. 60 FR at 8789.
• The fees imposed on ‘‘handlers’’ of
hazardous materials under Title 2
LACoC 2.20.140, 2.20.150, 2.20.160 and
2.20.170 to the extent that these fees
applied to tank car unloading activities,
because the fees collected were not
being used for purposes related to
hazardous materials transportation. 60
FR at 8784.
B. Petitions for Reconsideration;
Initiation of Rulemaking
Within the 20-day time period
provided in 49 CFR 107.211(a), petitions
for reconsideration of PHMSA’s
determinations in PDs 8(R)–11(R) were
submitted by Hasa, The Chlorine
Institute and the American Chemistry
Council (ACC),5 National Propane Gas
Association (NPGA), National Tank
Truck Carriers, Inc. (NTTC), Pioneer
Chlor Alkali Company, Inc., and The
Society of the Plastics Industry, Inc. In
general, all of these petitioners
disagreed with PHMSA’s finding that
‘‘Federal hazmat law and the HMR do
not apply to a consignee’s transportation
of hazardous materials solely within the
gates of a private manufacturing
facility.’’ 60 FR at 8785. Hasa asked
‘‘who regulates what and when?’’ It
stated that regulation of railroad tank
cars ‘‘while loading, unloading, and
5 ACC was formerly known as the Chemical
Manufacturers Association. For consistency, this
decision refers to ‘‘ACC’’ throughout.
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70875
incidental storage occurs, by the State of
California, the County of Los Angeles,
and other local governmental agencies
as well as by Federal requirements . . .
is likely to be uneven, contradictory,
confusing, and provide a lack of
uniformity.’’
In their jointly-filed petition, The
Chlorine Institute and ACC asserted
that, because ‘‘49 CFR parts 174 and 177
set forth detailed regulations for the
loading and unloading of hazardous
materials on private property, loading
and unloading on private property are
held to be in commerce even though
they clearly cannot be accomplished in
commerce as that term is being
construed by [PHMSA].’’ These
petitioners referred to other Federal
statutes which apply to transportationrelated activities on private property;
they stated that the environmental
statutes administered by EPA, which
authorize State and local requirements,
‘‘do not regulate the on-site
transportation, handling or storage of
hazardous materials.’’ They also stated
that PHMSA should resolve any
ambiguity in a State or local law
‘‘against the enforcing entity,’’ and that
a State or local requirement ‘‘must be
held to be preempted’’ whenever its
enforcement could create a conflict with
a requirement in the HMR.
The Society of the Plastics Industry
stated that it concurred with and
supported the petition for
reconsideration filed by The Chlorine
Institute and ACC. It asserted that the
decisions in PDs 8(R)–11(R) ignore ‘‘the
fact that the HMTA applies to loading
and unloading, activities which occur
within plant gates’’ and also ‘‘the
‘stream of commerce’ decisions adopted
under the Interstate Commerce Act.’’
NTTC expressed agreement with the
position that the HMR do not apply to
a hazardous material which ‘‘has been
removed from specification packaging
. . . and not reloaded into another
specification container or package.’’
NTTC stated that the definition of
‘‘commerce’’ in Federal hazardous
material transportation law ‘‘embraces
both ‘transportation’ and [that] which
affects . . . transportation.’’ NTTC also
stated that the decisions in PDs 8(R)–
11(R) were in conflict with prior
interpretations that the HMR apply to
representations that a packaging
complies with a specification marking,
‘‘regulations regarding the removal of
placards from cargo tanks (prior to such
being cleaned, purged and/or laden with
another product),’’ and enforcement
actions against carriers who failed to
report an unintentional release of
hazardous materials during loading or
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unloading, ‘‘which invariably occur on
private property.’’
Pioneer Chlor Alkali Company
addressed ‘‘a loaded tank car on the
receiver’s property’’ which it stated,
prior to PHMSA’s decisions, meant that
‘‘the car is under Federal Jurisdiction
from the time it is loaded, while it is
being transported, held/stored, and up
to the time it is unloaded.’’ It stated that
the ‘‘change’’ in PDs 8(R)–11(R) ‘‘is not
in the best interest of the general
public,’’ because, instead of ‘‘one set of
uniformly applied rules/regulations,’’
there would be ‘‘one set of rules/
regulations covering the car at the
loading point, another set (Federal)
while it is in the so called ‘Commerce’
area and another third set at the
unloading point.’’
SPCMA and NPGA submitted further
comments in support of the petitions for
reconsideration. SPCMA stated that
State and local regulations are likely to
vary from place to place, so that
hazardous materials ‘‘will be subject to
different—and without doubt
conflicting—requirements throughout
the journey’’ from one place to another
in commerce. NPGA stated that the
decisions in PDs 8(R)–11(R) open up the
possibility of ‘‘a plethora of local
regulations governing the loading and
unloading operations that are already
subject to DOT regulation.’’
Additional comments on the petitions
for reconsideration were submitted by
the California Office of Emergency
Services (OES), the Contra Costa County
Health Services Department (Contra
Costa County), and the Association of
Waste Hazardous Materials Transporters
(AWHMT). OES stated that the
California regulatory scheme was aimed
at facilities, not transporters, and does
not apply to transportation or incidental
activities regulated under Federal
hazardous material transportation law
or the HMR. It stated that the California
statutes and implementing local
regulations relate to emergency response
planning and do not prohibit storage of
hazardous materials; rather these
provisions merely define ‘‘storage’’ and
when compliance with the State law is
triggered. OES argued that there is no
evidence of any ‘‘obstacle’’ to
accomplishing and carrying out the
Federal hazardous material
transportation law and the HMR, and
that it is irrelevant how other Federal
laws and the Commerce Clause have
been interpreted. Contra Costa County
indicated its concurrence with the OES
comments and referred to a July 1993
incident involving the release of sulfur
trioxide at Richmond, California, when
the company allegedly failed to train its
personnel, report the quantity of
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materials present, or implement a risk
management and prevention program
under CHSC Chapter 6.95.
AWHMT recommended that PHMSA
delay taking action on the petitions for
reconsideration and open a rulemaking
docket with notice and opportunity for
public comment and participation by
EPA and OSHA. AWHMT stated that
further clarification was needed ‘‘on a
number of points, not necessarily
relevant to the fact-specific situation
presented in PDs 8(R)–11(R),’’ because
‘‘there is no bright line that
distinguishes the moment materials are
placed in or out of transportation at
consignee/consignor facilities.’’
On July 24, 1996, PHMSA published
a notice in the Federal Register
announcing that it was deferring action
on the petitions for reconsideration
‘‘until the agency can complete a
rulemaking, RSPA Docket HM–223,
which focuses on numerous issues that
are raised in the petitions for
rulemaking.’’ 61 FR 38513.6 Over the
next three years, PHMSA issued an
advance notice of proposed rulemaking
(ANPRM) (61 FR 39522 [July 29, 1996]);
held public meetings in Atlanta,
Sacramento, and Philadelphia;
published further notices of the issues
to be discussed at the public meetings
(61 FR 49723 [Sept. 23, 1996], 61 FR
53483 [Oct. 11, 1996]); and issued a
supplemental ANPRM (64 FR 22718
[Apr. 27, 1999]).
On August 20, 1999, The Chlorine
Institute and ACC submitted a petition
to ‘‘supplement the record and for
discharge’’ of their March 1995 petition
to PHMSA for reconsideration of the
determinations in PDs 8(R)–11(R). They
provided a recently-issued
interpretation by EPA on the
applicability of the Clean Air Act,
which these petitioners contended ‘‘is at
odds’’ with findings in PDs 8(R)–11(R),
and stated that ‘‘there is every reason to
discharge the Petition for
Reconsideration and finally decide this
matter.’’ In its October 19, 1999 letter,
PHMSA advised these parties that it was
granting their request to supplement the
record in this proceeding and it had
placed the August 20, 1999 petition in
the docket of both the HM–223
rulemaking and the preemption
proceeding. PHMSA also stated that it
was denying their request to
‘‘discharge’’ the March 1995 petition for
reconsideration ‘‘pending completion of
the HM–223 rulemaking,’’ and that, after
completion of the HM–223 rulemaking,
PHMSA would reopen the docket in the
6 This rulemaking was assigned Docket No.
RSPA–1998–4952 on the Federal eRulemaking
Portal at https://www.regulations.gov.
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preemption proceeding ‘‘so that all
participants in that proceeding may
supplement the record if they wish,’’
before acting on the petitions for
reconsideration.
In June 2000, The Chlorine Institute
and ACC formally withdrew their joint
petition for reconsideration of PDs 8(R)–
11(R) and filed a complaint in the
United States District Court for the
District of Columbia asking the court to
‘‘reverse the holdings in the preemption
determinations’’ and ‘‘such other and
further relief as may be proper.’’ The
Chlorine Institute, et al. v. U.S.
Department of Transportation, C.A. No.
00–1312 (WBB) (DDC). That complaint
was dismissed on May 7, 2002, on the
ground that these claims were not ripe
for judicial review. The court noted that
PHMSA had published a notice of
proposed rulemaking (NPRM) in Docket
HM–223 in the Federal Register on June
14, 2001 (66 FR 32420), and that it was
not clear that the 1995 determinations
in PDs 8(R)–11(R) reflected PHMSA’s
‘‘current position. Therefore, the Court
would be in the unenviable position of
having to enter its judgment on an issue
that has not yet been decided by the
Agency that has the expertise to make
a more informed decision regarding this
important issue of national policy.’’
C. PHMSA’s HM–223 Final Rules
After considering the extensive
comments to the July 24, 1996 ANPRM,
including the comments at the three
public meetings, and the comments
submitted in response to the April 1999
supplemental ANPRM and the June
2001 NPRM, PHMSA issued a final rule
in its HM–223 rulemaking on October
30, 2003 (68 FR 61906). On April 15,
2005, PHMSA published in the Federal
Register (70 FR 20018) amendments and
corrections to its October 30, 2003 final
rule in response to administrative
appeals filed by fourteen companies and
industry associations.7
In those final rules, PHMSA amended
the HMR to define several terms
including ‘‘pre-transportation function,’’
‘‘transportation,’’ ‘‘loading incidental to
movement,’’ ‘‘unloading incidental to
movement,’’ ‘‘storage incidental to
movement,’’ and ‘‘transloading.’’ 68 FR
at 61907, 61940–41; 70 FR at 20021,
20033–34. PHMSA made clear that
storage of hazardous materials ‘‘at its
final destination as shown on a shipping
document’’ is not ‘‘storage incidental to
movement’’ of the materials, and
7 Five additional industry associations submitted
administrative appeals of PHMSA’s October 30,
2003 final rule in HM–223, but withdrew those
appeals and, with five other associations, filed a
petition for judicial review of the HM–223 final
rules.
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unloading of hazardous materials after
the materials have been delivered to the
consignee and the carrier has departed
from the consignee’s facility or premises
is not ‘‘incidental to movement’’ of the
materials. 70 FR at 20033–34.
PHMSA amended 49 CFR 171.1 to list
examples of regulated and nonregulated functions and to ‘‘indicate that
facilities at which functions are
performed in accordance with the HMR
may be subject to applicable standards
and regulations of other Federal
agencies or to applicable state or local
governmental laws and regulations
(except to the extent that such nonFederal requirements may be preempted
under Federal hazmat law).’’ 68 FR at
61907; see also id. at 61937–39, and 70
FR at 20021, 20032–33. With respect to
rail tank car unloading, PHMSA added
a new paragraph 49 CFR 173.31(g) to set
forth requirements to ‘‘assure that a tank
car that is being loaded or unloaded
does not inadvertently enter
transportation or endanger
transportation personnel (i.e., posting
warning signs, setting brakes, blocking
wheels) are regulated under the HMR.’’
68 FR at 61931, 61941. PHMSA also
revised 49 CFR 174.67 to set forth the
requirements applicable to transloading
operations, and clarified that ‘‘storage of
hazardous materials at transloading
facilities is storage incidental to
movement and subject to regulations
applicable to such storage under the
HMR. 70 FR at 20020; see also id. at
20034; 68 FR at 61931, 61941–42.
Otherwise however, ‘‘[u]nloading of rail
tank cars by consignees after delivery by
the carrier is not regulated under the
HMR,’’ and ‘‘unloading of rail cars at a
facility after delivery by and departure
of the rail carrier is subject to OSHA
regulations applicable to worker
protection and safety.’’ Id. at 61931.
PHMSA also specifically noted that
‘‘DOT specification packagings, such as
rail tank cars, cargo tank motor vehicles,
and cylinders, are subject to DOT
regulation at all times that the packaging
is marked to indicate that it conforms to
the applicable specification
requirements.’’ 70 FR at 20024.
Moreover, under the HM–223 final
rules, the HMR continue to apply ‘‘to
pre-transportation functions, such as
filling a rail tank car and preparing
shipping papers.’’ Id. at 20025.
However, Federal hazardous materials
transportation law does not preclude
other Federal agencies or their state
counterparts from regulating workers at
a facility where hazardous materials are
prepared for transportation or stored
incidental to movement, so long as the
other Federal or non-Federal
requirements governing transportation
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of hazardous materials are not
specifically displaced or preempted. See
id. at 20028–29. PHMSA noted that a
non-Federal safety regulation affecting
the transportation of hazardous
materials may be preempted under the
Commerce Clause of the Constitution or
49 U.S.C. 5125; 49 U.S.C. 20106
(regarding rail transportation); or 49
U.S.C. 31141 (regarding motor vehicle
transportation). Id. at 20024, 20025.
Ten industry associations petitioned
the United States Court of Appeals for
the District of Columbia for review of
PHMSA’s October 30, 2003 and April
15, 2005 final rules. American
Chemistry Council, et al. v. Department
of Transportation, Nos. 03–1456, 05–
1191. Five additional associations were
permitted to intervene in support of the
petitioners. At oral argument on March
20, 2006, the Court questioned whether
these associations had ‘‘standing’’ to
assert that PHMSA should be required
to apply the Federal hazardous material
transportation law and the HMR to
unloading and storage of hazardous
materials on a consignee’s private
property, after delivery of the materials
to their final destination and departure
of the carrier. Following the submission
of supplemental briefs, the Court found
that neither the petitioners nor
intervenors had shown that PHMSA’s
failure to assert authority to regulate
consignee unloading and storage had
caused a likely actual or imminent
injury to these associations. 468 F.3d
810 (D.C. Cir. 2006). The Court found
that the petitioners had not shown that:
• The costs of complying with local
requirements are ‘‘fairly traceable’’ to
the HM–223 final rules or that, if the
HM–223 final rules had not been issued,
the local requirements would likely be
preempted under 49 U.S.C. 5125. Id. at
817–18.
• They would suffer an actual or
imminent injury because of an alleged
‘‘gap’’ or ‘‘void’’ in Federal, State, or
local safety requirements governing the
unloading of hazardous materials by a
consignee. Id.
The Court also found that the
intervenors had not provided evidence
to show that ‘‘there are inconsistent
state and local regulations which a
properly-issued Final Rule would have
preempted’’ or ‘‘that they face increased
liability risks associated with gaps in
federal oversight over the safe and
secure transportation of hazardous
materials.’’ Id. at 821. On February 15,
2007, the Court denied rehearing en
banc. Id. at 810.
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70877
D. PHMSA’s Further Examination of
Loading and Unloading of Bulk
Shipments of Hazardous Materials
PHMSA specifically recognized in
PDs 8(R)–11(R) that OSHA and EPA also
regulate activities involving hazardous
materials ‘‘to ensure that they are not
unintentionally or intentionally released
into the environment’’ and ‘‘to ensure
worker safety’’ in the workplace. 60 FR
at 8778. In HM–223, PHMSA provided
in 49 CFR 171.1(e) that: ‘‘Each facility
at which pre-transportation or
transportation functions are performed
in accordance with the HMR may be
subject to applicable standards and
regulations of other Federal agencies.’’
68 FR at 61938. PHMSA explained in
the preamble to its October 30, 2003
final rule that ‘‘unloading of rail cars at
a facility after delivery by and departure
of the rail carrier is subject to OSHA
regulations applicable to worker
protection and safety.’’ Id. at 61931.
Nonetheless, concerns continued to
be raised as to whether further Federal
requirements or guidance are necessary
to address the loading and unloading of
shipments of hazardous materials in
bulk packagings, such as rail tank cars
and cargo tank motor vehicles. In
recommendations I–02–1 & I–02–2, the
National Transportation Safety Board
had urged DOT, together with OSHA
and EPA, to develop regulations ‘‘that
apply to the [certain aspects of] loading
and unloading of railroad tank cars,
highway cargo tanks, and other bulk
containers’’ and, separately in
recommendation R–04–10, ‘‘require safe
operating procedures to be established
before hazardous materials are heated in
a railroad tank car for unloading.’’ 8 In
2006, the U.S. Chemical and Safety
Hazard Investigation Board (CSB) issued
recommendation 2005–06 I–LA–R1 to
‘‘Expand the scope of DOT regulatory
coverage to include chlorine rail car
unloading operations’’ and provide
specific requirements for ‘‘remotely
operated emergency isolation devices’’
as part of a ‘‘shutdown system . . .
capable of stopping a chlorine release
from both the rail car and the facility
chlorine receiving equipment.’’ 9
During late 2006 and early 2007,
PHMSA reviewed incident reports
submitted during the prior decade in
8 On November 29, 2013, the NTSB closed these
three recommendations as ‘‘Acceptable Alternative
Action’’ based upon the safety precautions and
recommended guidance for persons responsible for
unloding or transloading hazardous materials from
rail tank cars, as set forth in PHMSA’s July 12, 2013
safety advisory guidance. 78 FR 41853.
9 On June 1, 2015, the CSB voted to designate this
recommendation as ‘‘Closed—No Longer
Applicable’’ because the board determined that the
recommendation no longer applies to DOT.
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accordance with the reporting
requirements in 49 CFR 171.16 and
concluded that ‘‘roughly one quarter to
one half of overall hazardous materials
transportation incidents may be
attributable to loading and unloading
operations, particularly bulk packages.’’
Notice of public workshop on loading/
unloading practices, 72 FR 26864 (May
11, 2007). As later summarized in its
notice requesting comments on
‘‘Proposed Recommended Practices for
Bulk Loading and Unloading of
Hazardous Materials in Transportation,’’
73 FR 916, 917 (Jan. 4, 2008):
• During 2004–06, ‘‘hazardous
materials shipments transported by
highway and rail in bulk packagings
were involved in approximately 9 out of
10 high consequence events.’’ Id.
• ‘‘Many of the identified causes of
both en route and storage incidents can
be attributed to loading and unloading
operations (i.e., overfilled,
overpressurized, loose closure,
component, or device, etc.).’’ Id.
In the January 4, 2008 notice, PHMSA
also discussed the public workshop
which had been held on June 14, 2007,
to discuss ‘‘the risks associated with
loading and unloading bulk materials
and the range of actions that could be
taken by the government and industry to
address those risks.’’ Id. at 919. The
participants included ‘‘[r]epresentatives
from industry, federal agencies, state
and local government, standards
organizations, the emergency response
community, employee groups,
environmental and public interest
organizations, and the public.’’ Id. At
this workshop, the Interested Parties
Working Group, representing thirteen
industry associations including ACC,
The Chlorine Institute, and NTTC,
presented ‘‘a draft operating procedures
document for the loading, unloading,
and storage of hazardous materials in
bulk packagings having a capacity of
greater than 3,000 pounds.’’ Id.
Following the workshop, PHMSA
received further comments and a
petition from the Dangerous Goods
Advisory Group to initiate a rulemaking
to adopt ‘‘operational procedures in the
HMR applicable to loading, unloading
and incidental storage of hazardous
materials in bulk packagings.’’ Id.
Thereafter, PHMSA proposed to
amend the HMR to require each person
who engages in loading or unloading
cargo tanks to perform a risk assessment
of the loading and unloading operations
and develop and implement safe
operating procedures based upon the
results of a risk assessment. NPRM,
‘‘Cargo Tank Motor Vehicle Loading and
Unloading Operations,’’ 76 FR 13313
(Mar. 11, 2011); extension of comment
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19:47 Nov 13, 2015
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period, 76 FR 27300 (May 11, 2011).10
In response, however, a number of
commenters ‘‘noted confusion about the
applicability of the proposed rule,’’
‘‘expressed concern over the possibility
of duplication of efforts by facilities and
carriers,’’ ‘‘questioned the intent of
provisions for the maintenance and
testing of transfer equipment,’’ and
‘‘strongly opposed’’ the proposal of an
‘‘annual evaluation of hazmat
employees performing CTMV loading
and unloading operations.’’ PHMSA’s
‘‘Withdrawal of notice of proposed
rulemaking,’’ 79 FR 10461, 10463–64
(Feb. 25, 2014). After conducting a
supplementary policy analysis, PHMSA
‘‘concluded that adopting the
regulations proposed under the NPRM
is not the best course of action at this
time.’’ Id. at 10465. But instead would:
• Issue ‘‘a guidance document for
CTMV loading and unloading
operations;’’
• Implement ‘‘an outreach campaign
to educate the regulated community on
current regulatory requirements and
best safety practices; and’’
• Conduct ‘‘human factors research to
examine human involvement in release
of hazmat and to potentially use this to
support further consideration of
rulemaking to address CTMV loading
and unloading operations.’’
During the meantime, Congress
considered but failed to adopt proposals
to apply the HMR to the unloading of
certain packagings containing hazardous
materials after delivery to the consignee.
See S. 1813 § 34007 (as passed by the
Senate on March 14, 2012), and H.R. 7
§ 9005 (as reported by the
Transportation and Infrastructure
Committee on February 13, 2012).
II. Discussion
In its February 15, 1995 decisions in
PDs 8(R)–11(R), PHMSA considered and
addressed the applicability of the HMR
to unloading and storage of hazardous
materials in rail tank cars at a
consignee’s facility after a tank car has
been delivered by the rail carrier and
the carrier has departed. At the
conclusion of its ten-year HM–223
rulemaking, after considering the many
comments submitted in that rulemaking
by the parties petitioning for
reconsideration of PDs 8(R)–11(R),
PHMSA amended the ‘‘applicability’’
provisions in the HMR to clarify that the
following activities or functions are not
subject to the requirements of the HMR:
10 In the preamble to this NPRM, PHMSA stated
that it was separately ‘‘evaluating the safety issues
associated with rail tank car loading and unloading
operations and may propose regulatory changes if
our safety analysis concludes that such action is
warranted.’’ Id. at 13314.
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Frm 00132
Fmt 4703
Sfmt 4703
• ‘‘Unloading of a hazardous material
from a transport vehicle or bulk
packaging performed by a person
employed by or working under contract
to the consignee following delivery of
the hazardous material by the carrier to
its destination and departure from the
consignee’s premises of the carrier’s
personnel or, in the case of a private
carrier, departure of the driver from the
unloading area.’’ 49 CFR 171.1(d)(2).
• Storage of a freight container,
transport vehicle, or package containing
a hazardous material after its delivery to
the destination indicated on a shipping
document, package marking, or other
medium, or, in the case of a rail car,
storage of a rail car on private track.’’ 49
CFR 171.1(d)(3).
Since issuance of PDs 8(R)–11(R), the
issues relating to post-delivery
unloading and storage have been
exhaustively presented and considered
in rulemaking proceedings and federal
court litigation. Affirmance of the
fundamental holdings in the initial
preemption determinations is consistent
with the clarifications in the HM–223
rulemaking with regard to the scope of
the definition of ‘‘transportation’’ in
Federal hazardous material
transportation law and the applicability
of the HMR. Moreover, it is unlikely that
any further submissions on the petitions
for reconsideration will contain any
new information or arguments.
Reopening the docket on those petitions
for reconsideration, as PHMSA offered
to do in 1999, is no longer warranted.
The time has come to close the
preemption proceeding and devote
future efforts to actions to reduce the
safety risks in activities involved in the
loading and unloading of shipments of
hazardous materials, as outlined in
PHMSA’s February 25, 2014 withdrawal
of notice of proposed rulemaking. 79 FR
at 10465.
III. Ruling
For all the reasons set forth above,
PHMSA finds that that Federal
hazardous material transportation law
does not preempt California and Los
Angeles County requirements on (1) the
unloading of hazardous materials from
rail tank cars by a consignee and (2) the
consignee’s on-site storage of hazardous
materials following delivery of the
hazardous materials to their destination
and departure of the carrier from the
consignee’s premises or private track
adjacent to the consignee’s premises.
IV. Final Agency Action
In accordance with 49 CFR
107.211(d), this decision constitutes
PHMSA’s final agency action on the
applications by SPCMA and Hasa for
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administrative determinations of
preemption as to certain requirements
in Chapter 6.95 of the California Health
and Safety Code and Titles 2 and 32 of
the Los Angeles County Code relating to
unloading and storage of hazardous
materials.
A person who is adversely affected or
aggrieved by a preemption
determination may file a petition for
judicial review of that determination in
the United States Court of Appeals for
the District of Columbia or in the Court
of Appeals for the United States for the
circuit in which the petitioner resides or
has its principal place of business,
within 60 days after the determination
becomes final. 49 U.S.C. 5127(a).
Issued in Washington, DC, on November
10, 2015.
Joseph Solomey,
Senior Assistant Chief Counsel.
[FR Doc. 2015–28921 Filed 11–13–15; 8:45 am]
BILLING CODE 4910–60–P
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the
Currency
Agency Information Collection
Activities: Information Collection
Renewal; Submission for OMB Review;
Market Risk
Office of the Comptroller of the
Currency (OCC), Treasury.
ACTION: Notice and request for comment.
AGENCY:
The OCC, as part of its
continuing effort to reduce paperwork
and respondent burden, invites the
general public and other Federal
agencies to take this opportunity to
comment on a continuing information
collection, as required by the Paperwork
Reduction Act of 1995 (PRA).
In accordance with the requirements
of the PRA, the OCC may not conduct
or sponsor, and the respondent is not
required to respond to, an information
collection unless it displays a currently
valid Office of Management and Budget
(OMB) control number. The OCC is
soliciting comment concerning the
renewal of its information collection
titled, ‘‘Market Risk.’’ The OCC also is
giving notice that it has sent the
collection to OMB for review.
DATES: You should submit written
comments by: December 16, 2015.
ADDRESSES: Because paper mail in the
Washington, DC area and at the OCC is
subject to delay, commenters are
encouraged to submit comments by
email, if possible. Comments may be
sent to: Legislative and Regulatory
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SUMMARY:
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Activities Division, Office of the
Comptroller of the Currency, Attention:
1557–0247, 400 7th Street SW., Suite
3E–218, Mail Stop 9W–11, Washington,
DC 20219. In addition, comments may
be sent by fax to (571) 465–4326 or by
electronic mail to prainfo@occ.treas.gov.
You may personally inspect and
photocopy comments at the OCC, 400
7th Street SW., Washington, DC 20219.
For security reasons, the OCC requires
that visitors make an appointment to
inspect comments. You may do so by
calling (202) 649–6700 or, for persons
who are deaf or hard of hearing, TTY,
(202) 649–5597. Upon arrival, visitors
will be required to present valid
government-issued photo identification
and submit to security screening in
order to inspect and photocopy
comments.
All comments received, including
attachments and other supporting
materials, are part of the public record
and subject to public disclosure. Do not
include any information in your
comment or supporting materials that
you consider confidential or
inappropriate for public disclosure.
Additionally, please send a copy of
your comments by mail to: OCC Desk
Officer, 1557–0247, U.S. Office of
Management and Budget, 725 17th
Street NW., #10235, Washington, DC
20503, or by email to: oira submission@
omb.eop.gov.
FOR FURTHER INFORMATION CONTACT:
Shaquita Merritt, Clearance Officer,
(202) 649–5490 or, for persons who are
deaf or hard of hearing, TTY, (202) 649–
5597, Legislative and Regulatory
Activities Division, Office of the
Comptroller of the Currency, 400 7th
Street SW., Washington, DC 20219.
SUPPLEMENTARY INFORMATION: The OCC
is requesting extension of OMB
approval for this collection. There have
been no changes to the requirements of
the regulations.
Title: Market Risk.
OMB Control No.: 1557–0247.
Description: The Office of the
Comptroller of the Currency’s (OCC)
market risk capital rules (12 CFR part 3,
subpart F) capture positions for which
the market risk capital rules are
appropriate; reduce procyclicality in
market risk capital requirements;
enhance the rules’ sensitivity to risks
that are not adequately captured under
the current regulatory measurement
methodologies; and increase
transparency through enhanced
disclosures.
The information collection
requirements are located at 12 CFR
3.203 through 3.212. The rules enhance
risk sensitivity and include
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70879
requirements for the public disclosure
of certain qualitative and quantitative
information about the market risk of
national banks and Federal savings
associations. The collection of
information is necessary to ensure
capital adequacy appropriate for the
level of market risk.
Section 3.203 sets forth the
requirements for applying the market
risk framework. Section 3.203(a)(1)
requires national banks and Federal
savings associations to have clearly
defined policies and procedures for
determining which trading assets and
trading liabilities are trading positions
and specifies the factors a national bank
or Federal savings association must take
into account in drafting those policies
and procedures. Section 3.203(a)(2)
requires national banks and Federal
savings associations to have clearly
defined trading and hedging strategies
for trading positions that are approved
by senior management and specifies
what the strategies must articulate.
Section 3.203(b)(1) requires national
banks and Federal savings associations
to have clearly defined policies and
procedures for actively managing all
covered positions and specifies the
minimum requirements for those
policies and procedures. Sections
3.203(c)(4) through 3.203(c)(10) require
the annual review of internal models
and specify certain requirements for
those models. Section 3.203(d) requires
the internal audit group of a national
bank or Federal savings association to
prepare an annual report to the board of
directors on the effectiveness of controls
supporting the market risk measurement
systems.
Section 3.204(b) requires national
banks and Federal savings associations
to conduct quarterly backtesting.
Section 3.205(a)(5) requires institutions
to demonstrate to the OCC the
appropriateness of proxies used to
capture risks within value-at-risk
models. Section 3.205(c) requires
institutions to develop, retain, and make
available to the OCC value-at-risk and
profit and loss information on subportfolios for two years. Section
3.206(b)(3) requires national banks and
Federal savings associations to have
policies and procedures that describe
how they determine the period of
significant financial stress used to
calculate the institution’s stressed
value-at-risk models and to obtain prior
OCC approval for any material changes
to these policies and procedures.
Section 3.207(b)(1) details
requirements applicable to a national
bank or Federal savings association
when the national bank or Federal
savings association uses internal models
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]]>Agencies
[Federal Register Volume 80, Number 220 (Monday, November 16, 2015)]
[Notices]
[Pages 70874-70879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28921]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-RSPA 2000-7486; PDs 8(R)-11(R)]
Hazardous Materials: California and Los Angeles County
Requirements Applicable to the On-Site Handling and Transportation of
Hazardous Materials
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Decision on petitions for reconsideration of administrative
determinations of preemption.
-----------------------------------------------------------------------
Petitioners: Hasa, Inc., National Propane Gas Association, National
Tank Truck Carriers, Inc., Pioneer Chlor Alkali Company, Inc., The
Society of the Plastics Industry, Inc.
State and Local Laws Affected: California Health & Safety Code
(CHSC), Chapter 6.95, Los Angeles County Code (LACoC), Titles 2 and 32.
Mode Affected: Rail.
SUMMARY: Federal hazardous material transportation law does not preempt
California and Los Angeles County requirements on (1) the unloading of
hazardous materials from rail tank cars by a consignee and (2) the
consignee's on-site storage of hazardous materials following delivery
of the hazardous materials to their destination and departure of the
carrier from the consignee's premises or private track adjacent to the
consignee's premises.
FOR FURTHER INFORMATION CONTACT: Vincent Lopez or Joseph Solomey,
Office of Chief Counsel (PHC-10), Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue SE., Washington, DC 20590-0001 (Tel. No. 202-366-4400).
SUPPLEMENTARY INFORMATION:
I. Background
This is a decision on petitions for reconsideration of PHMSA's
determinations of preemption regarding certain of the State of
California and Los Angeles County requirements applicable to unloading
of hazardous materials from rail tank cars and the on-site storage of
hazardous materials in rail tank cars or after unloading. The filing of
these petitions for reconsideration rendered PHMSA's determinations of
preemption non-final. With this decision on the petitions for
reconsideration, the determinations of preemption that PHMSA was asked
to reconsider become final.
A. Preemption Determinations (PDs) Nos. 8(R)-11(R)
In PDs Nos. 8(R)-11(R), published in the Federal Register on
February 15, 1995 (60 FR 8774), PHMSA \1\ considered certain
requirements of the State of California and Los Angeles County
applicable to unloading of hazardous materials from rail tank cars and
the on-site storage of hazardous materials in rail tank cars or after
unloading. In these determinations, PHMSA responded to applications by
the Swimming Pool Chemical Manufacturers Association (SPCMA) and one of
its members, Hasa, Inc. (Hasa), questioning whether Federal hazardous
material transportation law, 49 U.S.C. 5101 et seq., preempts the
definition or classification of compressed gases and cryogenic fluids
in the Uniform Fire Code (adopted in Title 32 of the Los Angeles County
Code [LACoC]) and requirements on:
---------------------------------------------------------------------------
\1\ Effective February 20, 2005, PHMSA was created to further
the ``highest degree of safety in pipeline transportation and
hazardous materials transportation,'' and the Secretary of
Transportation redelegated hazardous materials safety functions from
the Research and Special Programs Administration (RSPA) to PHMSA's
Administrator. 49 U.S.C 108, as amended by the Norman Y. Mineta
Research and Special Programs Improvement Act (Pub. L. 108-426,
Sec. 2, 118 Stat. 2423 (Nov. 30, 2004)), and 49 CFR 1.97(b), as
redesignated at 77 FR 49964, 4987 (Aug. 17, 2012). For convenience,
this decision refers to ``PHMSA'' in discussing actions taken by
RSPA before February 20, 2005.
---------------------------------------------------------------------------
Permits to store, transport, or handle these materials;
unloading and storage of these materials, including the
design and construction of tanks and containers;
markings on containers of cryogenic liquids;
[[Page 70875]]
placards and equipment on vehicles used to transport cryogenic
liquids; and
the fees in Title 2 of LACoC on ``handlers'' of hazardous
materials.
SPCMA also challenged the definitions of ``handle'' and ``storage''
in Chapter 6.95 of the California Health and Safety Code (CHSC), which
make substantive requirements in Chapter 6.95 applicable to on-site
handling and storage of hazardous materials in rail tank cars at SPCMA
members' facilities.\2\
---------------------------------------------------------------------------
\2\ CHSC Chapter 6.95 requires plans for emergency response and/
or risk prevention, and these requirements are implemented at the
local level--in this case, by Los Angeles County in LACoC Titles 2
and 32.
---------------------------------------------------------------------------
In PDs 8(R)-11(R), PHMSA discussed its responsibility under 49
U.S.C. 5103(b) to ``prescribe regulations for the safe transportation
of hazardous material in intrastate, interstate and foreign
commerce,''\3\ and the definition of ``transportation'' in former 49
U.S.C. 5102(12) as ``the movement of property and any loading,
unloading, or storage incidental to the movement.''\4\ 60 FR at 8777.
PHMSA stated that ``Federal hazmat law and the HMR do not apply to the
movement of hazardous material exclusively at a consignee's facility.''
Id. However,
---------------------------------------------------------------------------
\3\ In 2002, Congress amended this mandate to direct DOT to
``prescribe regulations for the safe transportation, including
security, of hazardous material in intrastate, interstate, and
foreign commerce.'' Homeland Security Act of 2002, Public Law 107-
296 Sec. 1711(a), 116 Stat. 2319 (Nov. 25, 2002).
\4\ In 2005, this paragraph was redesignated Sec. 5102(13).
Hazardous Materials Transportation Safety and Security
Reauthorization Act of 2005 (Title VII of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users),
Public Law 109-59 Sec. 7102(8), 119 Stat. 1893 (Aug. 10, 2005).
---------------------------------------------------------------------------
``Unloading that is incidental to transportation includes
consignee unloading of tank cars containing hazardous materials,'' and
must be performed in accordance with 49 CFR 174.67. Id.
``Storage that is incidental to transportation includes
storage by a carrier that may occur between the time a hazardous
material is offered for transportation to a carrier and the time it
reaches its intended destination and is accepted by the consignee,''
and is governed by requirements in 49 CFR 174.204(a)(2), but
``consignor and consignee storage of hazardous materials is not
incidental to transportation in commerce.'' 60 FR at 8778.
Other Federal agencies, including the Environmental
Protection Agency (EPA) and the Department of Labor's Occupational
Safety and Health Administration (OSHA) also regulate hazardous
materials ``to ensure that they are not unintentionally or unlawfully
released into the environment'' and ``to ensure worker safety'' in the
workplace. Id.
PHMSA found there was insufficient information to make a
determination whether four specific requirements were preempted and
that Federal hazardous material transportation law preempts only the
following specific provisions challenged in the applications of SPCMA
and Hasa:
The prohibition in Title 32 LACoC 79.809(c) against
allowing a tank car to remain on a siding at point of delivery for more
than 24 hours while connected for transfer operations, because tank car
unloading requirements in 49 CFR 174.67 did not limit the amount of
time a tank car may remain on a siding at a point of delivery while
connected for transfer operations. 60 FR at 8788.
The requirement in Title 32 LACoC 79.809(f) for in-person
attendance of a tank car during unloading, because Los Angeles County
did not recognize the authority granted to Hasa in former DOT exemption
E 10552 for the use of electronic surveillance to monitor tank car
unloading, under certain conditions and restrictions. 60 FR at 8789.
The fees imposed on ``handlers'' of hazardous materials
under Title 2 LACoC 2.20.140, 2.20.150, 2.20.160 and 2.20.170 to the
extent that these fees applied to tank car unloading activities,
because the fees collected were not being used for purposes related to
hazardous materials transportation. 60 FR at 8784.
B. Petitions for Reconsideration; Initiation of Rulemaking
Within the 20-day time period provided in 49 CFR 107.211(a),
petitions for reconsideration of PHMSA's determinations in PDs 8(R)-
11(R) were submitted by Hasa, The Chlorine Institute and the American
Chemistry Council (ACC),\5\ National Propane Gas Association (NPGA),
National Tank Truck Carriers, Inc. (NTTC), Pioneer Chlor Alkali
Company, Inc., and The Society of the Plastics Industry, Inc. In
general, all of these petitioners disagreed with PHMSA's finding that
``Federal hazmat law and the HMR do not apply to a consignee's
transportation of hazardous materials solely within the gates of a
private manufacturing facility.'' 60 FR at 8785. Hasa asked ``who
regulates what and when?'' It stated that regulation of railroad tank
cars ``while loading, unloading, and incidental storage occurs, by the
State of California, the County of Los Angeles, and other local
governmental agencies as well as by Federal requirements . . . is
likely to be uneven, contradictory, confusing, and provide a lack of
uniformity.''
---------------------------------------------------------------------------
\5\ ACC was formerly known as the Chemical Manufacturers
Association. For consistency, this decision refers to ``ACC''
throughout.
---------------------------------------------------------------------------
In their jointly-filed petition, The Chlorine Institute and ACC
asserted that, because ``49 CFR parts 174 and 177 set forth detailed
regulations for the loading and unloading of hazardous materials on
private property, loading and unloading on private property are held to
be in commerce even though they clearly cannot be accomplished in
commerce as that term is being construed by [PHMSA].'' These
petitioners referred to other Federal statutes which apply to
transportation-related activities on private property; they stated that
the environmental statutes administered by EPA, which authorize State
and local requirements, ``do not regulate the on-site transportation,
handling or storage of hazardous materials.'' They also stated that
PHMSA should resolve any ambiguity in a State or local law ``against
the enforcing entity,'' and that a State or local requirement ``must be
held to be preempted'' whenever its enforcement could create a conflict
with a requirement in the HMR.
The Society of the Plastics Industry stated that it concurred with
and supported the petition for reconsideration filed by The Chlorine
Institute and ACC. It asserted that the decisions in PDs 8(R)-11(R)
ignore ``the fact that the HMTA applies to loading and unloading,
activities which occur within plant gates'' and also ``the `stream of
commerce' decisions adopted under the Interstate Commerce Act.''
NTTC expressed agreement with the position that the HMR do not
apply to a hazardous material which ``has been removed from
specification packaging . . . and not reloaded into another
specification container or package.'' NTTC stated that the definition
of ``commerce'' in Federal hazardous material transportation law
``embraces both `transportation' and [that] which affects . . .
transportation.'' NTTC also stated that the decisions in PDs 8(R)-11(R)
were in conflict with prior interpretations that the HMR apply to
representations that a packaging complies with a specification marking,
``regulations regarding the removal of placards from cargo tanks (prior
to such being cleaned, purged and/or laden with another product),'' and
enforcement actions against carriers who failed to report an
unintentional release of hazardous materials during loading or
[[Page 70876]]
unloading, ``which invariably occur on private property.''
Pioneer Chlor Alkali Company addressed ``a loaded tank car on the
receiver's property'' which it stated, prior to PHMSA's decisions,
meant that ``the car is under Federal Jurisdiction from the time it is
loaded, while it is being transported, held/stored, and up to the time
it is unloaded.'' It stated that the ``change'' in PDs 8(R)-11(R) ``is
not in the best interest of the general public,'' because, instead of
``one set of uniformly applied rules/regulations,'' there would be
``one set of rules/regulations covering the car at the loading point,
another set (Federal) while it is in the so called `Commerce' area and
another third set at the unloading point.''
SPCMA and NPGA submitted further comments in support of the
petitions for reconsideration. SPCMA stated that State and local
regulations are likely to vary from place to place, so that hazardous
materials ``will be subject to different--and without doubt
conflicting--requirements throughout the journey'' from one place to
another in commerce. NPGA stated that the decisions in PDs 8(R)-11(R)
open up the possibility of ``a plethora of local regulations governing
the loading and unloading operations that are already subject to DOT
regulation.''
Additional comments on the petitions for reconsideration were
submitted by the California Office of Emergency Services (OES), the
Contra Costa County Health Services Department (Contra Costa County),
and the Association of Waste Hazardous Materials Transporters (AWHMT).
OES stated that the California regulatory scheme was aimed at
facilities, not transporters, and does not apply to transportation or
incidental activities regulated under Federal hazardous material
transportation law or the HMR. It stated that the California statutes
and implementing local regulations relate to emergency response
planning and do not prohibit storage of hazardous materials; rather
these provisions merely define ``storage'' and when compliance with the
State law is triggered. OES argued that there is no evidence of any
``obstacle'' to accomplishing and carrying out the Federal hazardous
material transportation law and the HMR, and that it is irrelevant how
other Federal laws and the Commerce Clause have been interpreted.
Contra Costa County indicated its concurrence with the OES comments and
referred to a July 1993 incident involving the release of sulfur
trioxide at Richmond, California, when the company allegedly failed to
train its personnel, report the quantity of materials present, or
implement a risk management and prevention program under CHSC Chapter
6.95.
AWHMT recommended that PHMSA delay taking action on the petitions
for reconsideration and open a rulemaking docket with notice and
opportunity for public comment and participation by EPA and OSHA. AWHMT
stated that further clarification was needed ``on a number of points,
not necessarily relevant to the fact-specific situation presented in
PDs 8(R)-11(R),'' because ``there is no bright line that distinguishes
the moment materials are placed in or out of transportation at
consignee/consignor facilities.''
On July 24, 1996, PHMSA published a notice in the Federal Register
announcing that it was deferring action on the petitions for
reconsideration ``until the agency can complete a rulemaking, RSPA
Docket HM-223, which focuses on numerous issues that are raised in the
petitions for rulemaking.'' 61 FR 38513.\6\ Over the next three years,
PHMSA issued an advance notice of proposed rulemaking (ANPRM) (61 FR
39522 [July 29, 1996]); held public meetings in Atlanta, Sacramento,
and Philadelphia; published further notices of the issues to be
discussed at the public meetings (61 FR 49723 [Sept. 23, 1996], 61 FR
53483 [Oct. 11, 1996]); and issued a supplemental ANPRM (64 FR 22718
[Apr. 27, 1999]).
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\6\ This rulemaking was assigned Docket No. RSPA-1998-4952 on
the Federal eRulemaking Portal at https://www.regulations.gov.
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On August 20, 1999, The Chlorine Institute and ACC submitted a
petition to ``supplement the record and for discharge'' of their March
1995 petition to PHMSA for reconsideration of the determinations in PDs
8(R)-11(R). They provided a recently-issued interpretation by EPA on
the applicability of the Clean Air Act, which these petitioners
contended ``is at odds'' with findings in PDs 8(R)-11(R), and stated
that ``there is every reason to discharge the Petition for
Reconsideration and finally decide this matter.'' In its October 19,
1999 letter, PHMSA advised these parties that it was granting their
request to supplement the record in this proceeding and it had placed
the August 20, 1999 petition in the docket of both the HM-223
rulemaking and the preemption proceeding. PHMSA also stated that it was
denying their request to ``discharge'' the March 1995 petition for
reconsideration ``pending completion of the HM-223 rulemaking,'' and
that, after completion of the HM-223 rulemaking, PHMSA would reopen the
docket in the preemption proceeding ``so that all participants in that
proceeding may supplement the record if they wish,'' before acting on
the petitions for reconsideration.
In June 2000, The Chlorine Institute and ACC formally withdrew
their joint petition for reconsideration of PDs 8(R)-11(R) and filed a
complaint in the United States District Court for the District of
Columbia asking the court to ``reverse the holdings in the preemption
determinations'' and ``such other and further relief as may be
proper.'' The Chlorine Institute, et al. v. U.S. Department of
Transportation, C.A. No. 00-1312 (WBB) (DDC). That complaint was
dismissed on May 7, 2002, on the ground that these claims were not ripe
for judicial review. The court noted that PHMSA had published a notice
of proposed rulemaking (NPRM) in Docket HM-223 in the Federal Register
on June 14, 2001 (66 FR 32420), and that it was not clear that the 1995
determinations in PDs 8(R)-11(R) reflected PHMSA's ``current position.
Therefore, the Court would be in the unenviable position of having to
enter its judgment on an issue that has not yet been decided by the
Agency that has the expertise to make a more informed decision
regarding this important issue of national policy.''
C. PHMSA's HM-223 Final Rules
After considering the extensive comments to the July 24, 1996
ANPRM, including the comments at the three public meetings, and the
comments submitted in response to the April 1999 supplemental ANPRM and
the June 2001 NPRM, PHMSA issued a final rule in its HM-223 rulemaking
on October 30, 2003 (68 FR 61906). On April 15, 2005, PHMSA published
in the Federal Register (70 FR 20018) amendments and corrections to its
October 30, 2003 final rule in response to administrative appeals filed
by fourteen companies and industry associations.\7\
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\7\ Five additional industry associations submitted
administrative appeals of PHMSA's October 30, 2003 final rule in HM-
223, but withdrew those appeals and, with five other associations,
filed a petition for judicial review of the HM-223 final rules.
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In those final rules, PHMSA amended the HMR to define several terms
including ``pre-transportation function,'' ``transportation,''
``loading incidental to movement,'' ``unloading incidental to
movement,'' ``storage incidental to movement,'' and ``transloading.''
68 FR at 61907, 61940-41; 70 FR at 20021, 20033-34. PHMSA made clear
that storage of hazardous materials ``at its final destination as shown
on a shipping document'' is not ``storage incidental to movement'' of
the materials, and
[[Page 70877]]
unloading of hazardous materials after the materials have been
delivered to the consignee and the carrier has departed from the
consignee's facility or premises is not ``incidental to movement'' of
the materials. 70 FR at 20033-34.
PHMSA amended 49 CFR 171.1 to list examples of regulated and non-
regulated functions and to ``indicate that facilities at which
functions are performed in accordance with the HMR may be subject to
applicable standards and regulations of other Federal agencies or to
applicable state or local governmental laws and regulations (except to
the extent that such non-Federal requirements may be preempted under
Federal hazmat law).'' 68 FR at 61907; see also id. at 61937-39, and 70
FR at 20021, 20032-33. With respect to rail tank car unloading, PHMSA
added a new paragraph 49 CFR 173.31(g) to set forth requirements to
``assure that a tank car that is being loaded or unloaded does not
inadvertently enter transportation or endanger transportation personnel
(i.e., posting warning signs, setting brakes, blocking wheels) are
regulated under the HMR.'' 68 FR at 61931, 61941. PHMSA also revised 49
CFR 174.67 to set forth the requirements applicable to transloading
operations, and clarified that ``storage of hazardous materials at
transloading facilities is storage incidental to movement and subject
to regulations applicable to such storage under the HMR. 70 FR at
20020; see also id. at 20034; 68 FR at 61931, 61941-42. Otherwise
however, ``[u]nloading of rail tank cars by consignees after delivery
by the carrier is not regulated under the HMR,'' and ``unloading of
rail cars at a facility after delivery by and departure of the rail
carrier is subject to OSHA regulations applicable to worker protection
and safety.'' Id. at 61931.
PHMSA also specifically noted that ``DOT specification packagings,
such as rail tank cars, cargo tank motor vehicles, and cylinders, are
subject to DOT regulation at all times that the packaging is marked to
indicate that it conforms to the applicable specification
requirements.'' 70 FR at 20024. Moreover, under the HM-223 final rules,
the HMR continue to apply ``to pre-transportation functions, such as
filling a rail tank car and preparing shipping papers.'' Id. at 20025.
However, Federal hazardous materials transportation law does not
preclude other Federal agencies or their state counterparts from
regulating workers at a facility where hazardous materials are prepared
for transportation or stored incidental to movement, so long as the
other Federal or non-Federal requirements governing transportation of
hazardous materials are not specifically displaced or preempted. See
id. at 20028-29. PHMSA noted that a non-Federal safety regulation
affecting the transportation of hazardous materials may be preempted
under the Commerce Clause of the Constitution or 49 U.S.C. 5125; 49
U.S.C. 20106 (regarding rail transportation); or 49 U.S.C. 31141
(regarding motor vehicle transportation). Id. at 20024, 20025.
Ten industry associations petitioned the United States Court of
Appeals for the District of Columbia for review of PHMSA's October 30,
2003 and April 15, 2005 final rules. American Chemistry Council, et al.
v. Department of Transportation, Nos. 03-1456, 05-1191. Five additional
associations were permitted to intervene in support of the petitioners.
At oral argument on March 20, 2006, the Court questioned whether these
associations had ``standing'' to assert that PHMSA should be required
to apply the Federal hazardous material transportation law and the HMR
to unloading and storage of hazardous materials on a consignee's
private property, after delivery of the materials to their final
destination and departure of the carrier. Following the submission of
supplemental briefs, the Court found that neither the petitioners nor
intervenors had shown that PHMSA's failure to assert authority to
regulate consignee unloading and storage had caused a likely actual or
imminent injury to these associations. 468 F.3d 810 (D.C. Cir. 2006).
The Court found that the petitioners had not shown that:
The costs of complying with local requirements are
``fairly traceable'' to the HM-223 final rules or that, if the HM-223
final rules had not been issued, the local requirements would likely be
preempted under 49 U.S.C. 5125. Id. at 817-18.
They would suffer an actual or imminent injury because of
an alleged ``gap'' or ``void'' in Federal, State, or local safety
requirements governing the unloading of hazardous materials by a
consignee. Id.
The Court also found that the intervenors had not provided evidence
to show that ``there are inconsistent state and local regulations which
a properly-issued Final Rule would have preempted'' or ``that they face
increased liability risks associated with gaps in federal oversight
over the safe and secure transportation of hazardous materials.'' Id.
at 821. On February 15, 2007, the Court denied rehearing en banc. Id.
at 810.
D. PHMSA's Further Examination of Loading and Unloading of Bulk
Shipments of Hazardous Materials
PHMSA specifically recognized in PDs 8(R)-11(R) that OSHA and EPA
also regulate activities involving hazardous materials ``to ensure that
they are not unintentionally or intentionally released into the
environment'' and ``to ensure worker safety'' in the workplace. 60 FR
at 8778. In HM-223, PHMSA provided in 49 CFR 171.1(e) that: ``Each
facility at which pre-transportation or transportation functions are
performed in accordance with the HMR may be subject to applicable
standards and regulations of other Federal agencies.'' 68 FR at 61938.
PHMSA explained in the preamble to its October 30, 2003 final rule that
``unloading of rail cars at a facility after delivery by and departure
of the rail carrier is subject to OSHA regulations applicable to worker
protection and safety.'' Id. at 61931.
Nonetheless, concerns continued to be raised as to whether further
Federal requirements or guidance are necessary to address the loading
and unloading of shipments of hazardous materials in bulk packagings,
such as rail tank cars and cargo tank motor vehicles. In
recommendations I-02-1 & I-02-2, the National Transportation Safety
Board had urged DOT, together with OSHA and EPA, to develop regulations
``that apply to the [certain aspects of] loading and unloading of
railroad tank cars, highway cargo tanks, and other bulk containers''
and, separately in recommendation R-04-10, ``require safe operating
procedures to be established before hazardous materials are heated in a
railroad tank car for unloading.'' \8\ In 2006, the U.S. Chemical and
Safety Hazard Investigation Board (CSB) issued recommendation 2005-06
I-LA-R1 to ``Expand the scope of DOT regulatory coverage to include
chlorine rail car unloading operations'' and provide specific
requirements for ``remotely operated emergency isolation devices'' as
part of a ``shutdown system . . . capable of stopping a chlorine
release from both the rail car and the facility chlorine receiving
equipment.'' \9\
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\8\ On November 29, 2013, the NTSB closed these three
recommendations as ``Acceptable Alternative Action'' based upon the
safety precautions and recommended guidance for persons responsible
for unloding or transloading hazardous materials from rail tank
cars, as set forth in PHMSA's July 12, 2013 safety advisory
guidance. 78 FR 41853.
\9\ On June 1, 2015, the CSB voted to designate this
recommendation as ``Closed--No Longer Applicable'' because the board
determined that the recommendation no longer applies to DOT.
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During late 2006 and early 2007, PHMSA reviewed incident reports
submitted during the prior decade in
[[Page 70878]]
accordance with the reporting requirements in 49 CFR 171.16 and
concluded that ``roughly one quarter to one half of overall hazardous
materials transportation incidents may be attributable to loading and
unloading operations, particularly bulk packages.'' Notice of public
workshop on loading/unloading practices, 72 FR 26864 (May 11, 2007). As
later summarized in its notice requesting comments on ``Proposed
Recommended Practices for Bulk Loading and Unloading of Hazardous
Materials in Transportation,'' 73 FR 916, 917 (Jan. 4, 2008):
During 2004-06, ``hazardous materials shipments
transported by highway and rail in bulk packagings were involved in
approximately 9 out of 10 high consequence events.'' Id.
``Many of the identified causes of both en route and
storage incidents can be attributed to loading and unloading operations
(i.e., overfilled, overpressurized, loose closure, component, or
device, etc.).'' Id.
In the January 4, 2008 notice, PHMSA also discussed the public
workshop which had been held on June 14, 2007, to discuss ``the risks
associated with loading and unloading bulk materials and the range of
actions that could be taken by the government and industry to address
those risks.'' Id. at 919. The participants included
``[r]epresentatives from industry, federal agencies, state and local
government, standards organizations, the emergency response community,
employee groups, environmental and public interest organizations, and
the public.'' Id. At this workshop, the Interested Parties Working
Group, representing thirteen industry associations including ACC, The
Chlorine Institute, and NTTC, presented ``a draft operating procedures
document for the loading, unloading, and storage of hazardous materials
in bulk packagings having a capacity of greater than 3,000 pounds.''
Id. Following the workshop, PHMSA received further comments and a
petition from the Dangerous Goods Advisory Group to initiate a
rulemaking to adopt ``operational procedures in the HMR applicable to
loading, unloading and incidental storage of hazardous materials in
bulk packagings.'' Id.
Thereafter, PHMSA proposed to amend the HMR to require each person
who engages in loading or unloading cargo tanks to perform a risk
assessment of the loading and unloading operations and develop and
implement safe operating procedures based upon the results of a risk
assessment. NPRM, ``Cargo Tank Motor Vehicle Loading and Unloading
Operations,'' 76 FR 13313 (Mar. 11, 2011); extension of comment period,
76 FR 27300 (May 11, 2011).\10\ In response, however, a number of
commenters ``noted confusion about the applicability of the proposed
rule,'' ``expressed concern over the possibility of duplication of
efforts by facilities and carriers,'' ``questioned the intent of
provisions for the maintenance and testing of transfer equipment,'' and
``strongly opposed'' the proposal of an ``annual evaluation of hazmat
employees performing CTMV loading and unloading operations.'' PHMSA's
``Withdrawal of notice of proposed rulemaking,'' 79 FR 10461, 10463-64
(Feb. 25, 2014). After conducting a supplementary policy analysis,
PHMSA ``concluded that adopting the regulations proposed under the NPRM
is not the best course of action at this time.'' Id. at 10465. But
instead would:
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\10\ In the preamble to this NPRM, PHMSA stated that it was
separately ``evaluating the safety issues associated with rail tank
car loading and unloading operations and may propose regulatory
changes if our safety analysis concludes that such action is
warranted.'' Id. at 13314.
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Issue ``a guidance document for CTMV loading and unloading
operations;''
Implement ``an outreach campaign to educate the regulated
community on current regulatory requirements and best safety practices;
and''
Conduct ``human factors research to examine human
involvement in release of hazmat and to potentially use this to support
further consideration of rulemaking to address CTMV loading and
unloading operations.''
During the meantime, Congress considered but failed to adopt
proposals to apply the HMR to the unloading of certain packagings
containing hazardous materials after delivery to the consignee. See S.
1813 Sec. 34007 (as passed by the Senate on March 14, 2012), and H.R.
7 Sec. 9005 (as reported by the Transportation and Infrastructure
Committee on February 13, 2012).
II. Discussion
In its February 15, 1995 decisions in PDs 8(R)-11(R), PHMSA
considered and addressed the applicability of the HMR to unloading and
storage of hazardous materials in rail tank cars at a consignee's
facility after a tank car has been delivered by the rail carrier and
the carrier has departed. At the conclusion of its ten-year HM-223
rulemaking, after considering the many comments submitted in that
rulemaking by the parties petitioning for reconsideration of PDs 8(R)-
11(R), PHMSA amended the ``applicability'' provisions in the HMR to
clarify that the following activities or functions are not subject to
the requirements of the HMR:
``Unloading of a hazardous material from a transport
vehicle or bulk packaging performed by a person employed by or working
under contract to the consignee following delivery of the hazardous
material by the carrier to its destination and departure from the
consignee's premises of the carrier's personnel or, in the case of a
private carrier, departure of the driver from the unloading area.'' 49
CFR 171.1(d)(2).
Storage of a freight container, transport vehicle, or
package containing a hazardous material after its delivery to the
destination indicated on a shipping document, package marking, or other
medium, or, in the case of a rail car, storage of a rail car on private
track.'' 49 CFR 171.1(d)(3).
Since issuance of PDs 8(R)-11(R), the issues relating to post-
delivery unloading and storage have been exhaustively presented and
considered in rulemaking proceedings and federal court litigation.
Affirmance of the fundamental holdings in the initial preemption
determinations is consistent with the clarifications in the HM-223
rulemaking with regard to the scope of the definition of
``transportation'' in Federal hazardous material transportation law and
the applicability of the HMR. Moreover, it is unlikely that any further
submissions on the petitions for reconsideration will contain any new
information or arguments. Reopening the docket on those petitions for
reconsideration, as PHMSA offered to do in 1999, is no longer
warranted. The time has come to close the preemption proceeding and
devote future efforts to actions to reduce the safety risks in
activities involved in the loading and unloading of shipments of
hazardous materials, as outlined in PHMSA's February 25, 2014
withdrawal of notice of proposed rulemaking. 79 FR at 10465.
III. Ruling
For all the reasons set forth above, PHMSA finds that that Federal
hazardous material transportation law does not preempt California and
Los Angeles County requirements on (1) the unloading of hazardous
materials from rail tank cars by a consignee and (2) the consignee's
on-site storage of hazardous materials following delivery of the
hazardous materials to their destination and departure of the carrier
from the consignee's premises or private track adjacent to the
consignee's premises.
IV. Final Agency Action
In accordance with 49 CFR 107.211(d), this decision constitutes
PHMSA's final agency action on the applications by SPCMA and Hasa for
[[Page 70879]]
administrative determinations of preemption as to certain requirements
in Chapter 6.95 of the California Health and Safety Code and Titles 2
and 32 of the Los Angeles County Code relating to unloading and storage
of hazardous materials.
A person who is adversely affected or aggrieved by a preemption
determination may file a petition for judicial review of that
determination in the United States Court of Appeals for the District of
Columbia or in the Court of Appeals for the United States for the
circuit in which the petitioner resides or has its principal place of
business, within 60 days after the determination becomes final. 49
U.S.C. 5127(a).
Issued in Washington, DC, on November 10, 2015.
Joseph Solomey,
Senior Assistant Chief Counsel.
[FR Doc. 2015-28921 Filed 11-13-15; 8:45 am]
BILLING CODE 4910-60-P
