[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]


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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.

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    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:
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    \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.
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     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\
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    \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.
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    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,
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    \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).
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     ``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.''
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    \5\ ACC was formerly known as the Chemical Manufacturers 
Association. For consistency, this decision refers to ``ACC'' 
throughout.
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    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 http://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