Winter 2009 TQ Online Vol. 2, No. 1
Features
Hazmat Law Primer 4
PHMSA & Preemption 5
Hazmat Preemption Law 5
FAA HMR Enforcement 6
Firearms in Aviation 6
Reverse Logistics 7
Hazmat Security 7
Columns
Editor’s Column Hot Litigation Hot Rulemakings 2
8
8
News
President Bush’s
DOT Visit 9
Secretary Mary E. Peters 10
Secretary Ray LaHood 12
The “biohazard” symbol was created by OSHA and is required
by DOT in limited situations.
Also Inside: Special News Features on the
Presidential and Secretarial Transitions
Pub Info
Editor in Chief
Jason Schlosberg
Associate Editor
Kevin McDonald
Authors
Dale Andrews
Lawrence Bierlein
Christopher Bonanti
Frazer C. Hilder
Brett Jortland
Thomas K. Lehrich
Helen Serassio
Joe Solomey
Joel Webber
Shawn Wolsey
Photographer
Daeleen Chelsey
Co-chairs
Linda Lasley
Jason Schlosberg
Vice Chairs
Thomas Newton Bolling
David H Coburn
Neil R Eisner
C. Scott Jones
Judith S Kaleta
William S Morrow Jr.
Scott M Schutz
TQ is a publication of the
Transportation Committee
of the ABA Administrative
Law and Regulatory
Practice Section.
Printing suggestion
(1) high quality color
(2) double-sided
(3) two staples
Editor’s Column
From the Driver’s Seat
As mentioned in earlier iterations of this column, one of the
brighter visions for TQ is to provide “intermodal intelligence.”
We subscribe to the common
understanding that transportation logistics and governance
cannot exist in modal-by-modal
vacuums. Each transportation
law practitioner, regardless of the
transportation mode his or her
practice focuses on, can peak out
the silo door and learn directly
or analogously from our sibling
modes. With that in mind, this
TQ issue focuses on one of the
more intermodal issues of our
time: the transport of hazardous
materials.
To provide a brief, but strong,
overview of hazardous materials
law, we start with pieces from
attorneys with DOT’s Pipeline
and Hazardous Materials Safety
Administration (PHMSA). Joe
Solomey, PHMSA Assistant
Chief Counsel, provides us with
an invaluable primer for those
needing a quick and not-so-dirty
education on the basic ins and
outs of the hazardous materials
regulations. Frazer Hilder, called
Mike to all who know him, also
an attorney with PHMSA, provides us with an explanation of
what PHMSA does, particularly
in relation to other potential,
competing hazmat regulatory
authorities.
Larry Bierlein, an attorney
with McCarthy, Sweeney &
Harkaway, P.C., provides balance to the issue of preemption,
which tends to be an extremely
complex and contentious subject
for transportation attorneys.
Hazardous materials regulations are no longer limited to
safety issues. In light of the current political climate, hazmat
must also be protected from terrorist threats. Joel Webber, Vice
Chair of the Section’s Homeland
Security and National Defense
Committee, provides us a framework and vision of the future regarding hazmat security.
To provide an example of
how one of DOT’s various Operating Administrations (OAs
or Modes) fulfills its statutory
hazmat enforcement obligations,
Chris Bonanti steps to the plate
with an exploration of the Federal Aviation Administration’s
program. Chris–a former Marine explosives expert and Hill
staffer and the FAA’s current
hazmat director–is no stranger
to hazmat regulation.
While most think of the transport of hazmat from the supplier
to the client, few consider the
return of such hazmat from the
client to the supplier, especially
in retail supply chains. After the
holiday season, when unpackaged and loose retail returns are
arguably at their highest, Shawn
Wolsey provides us with a timely
introduction to reverse logistics,
an issue gaining considerable
traction in the world of hazmat
logistics.
While not considered a
“hazardous material” under the
regulations, firearms carried on
commercial airlines pose similar hazards worthy of mention.
Tom Lehrich, the affable chief
counsel to the Inspector General, provides a clear and concise
guide to law enforcement agents
seeking to carry their firearms
aboard flights.
In light of the changing of
presidential administrations, we
welcome Secretary LaHood and
say farewell to President Bush
and Secretary Peters. To memorialize the transition, we are
happy to provide coverage and
photo essays.
It is also with great pleasure
Photo: William Phillips
that I can introduce to you a new
member of the TQ staff. Kevin
McDonald, an Assistant General Counsel for Volkswagen of
America, Inc., has joined TQ as
our new Associate Editor.
In
addition to his J.D., Kevin holds
a doctorate in legal sciences and a
master’s legal degree in European
Law. Having just moved to DC
from Michigan, Kevin is quickly
making a name for himself in the
Beltway. We are happy to welcome Kevin aboard.
We developed this issue in the
hopes that our readers will enjoy
it as a hazmat reference material
and as a collectible of presidential history. Please, keep it on
your shelves for easy access.
As a last note, we hope to see
many of your faces at our annual legislative panel on Tuesday,
March 3. Considering the imminent political changes here in
Washington, the 2009 Outlook
for Transportation Legislation is
an event not to be missed. Please
see the “save the date” advertisement on the next page for more
information.
Your Editor,
Jason Schlosberg
Editor’s Note: All opinions in this publication are those of their respective authors and do not necessarily reflect the opinions of TQ, the American Bar Assocation, including its sections and committees, the
U.S. government or any of its departments or agencies, or the authors’ respective employers.
2
3
Features
Hazmat Law Primer
A Simple Road Map
By Joseph Solomey1
In 2008, we celebrated the 100th birthday of the Hazardous Materials Regulations (HMRs). Prior to the birth of these regulations,
the individual railroads unsuccessfully struggled to reduce fires and
explosions and failed to prevent many serious disasters. In 1905, the
currently defunct American Railway Association (ARA) formulated
a committee to prepare voluntary regulations for the safe transportation of explosives. Ultimately, Congress enacted on May 30, 1908,
the Transportation of Explosives and Other Dangerous Articles Act,
charging the Interstate Commerce Commission (ICC) with developing binding regulations “in accord with the best known practicable
means for securing safety in transit, covering the packing, marking,
loading, handling while in transit, and the precautions necessary to
determine whether the material when offered is in proper condition
for transport.” The ARA’s Bureau of Explosives submitted to the ICC
a code of requirements, which were then incorporated into law by
the ICC in an order dated July 1, 1908. Thus began the federal
regulation of the safe transport of hazardous materials, which now are
housed in the Pipeline and Hazardous Materials Safety Administration (PHMSA) and provide a single source for the requirements on
hazardous materials shipping for all modes of transportation.
The HMRs (49 CFR Parts 171-180)—designed to provide for
the safe transportation2 and security of hazardous materials in commerce—apply to those who: (1) transport hazardous materials in
commerce; (2) cause hazardous materials to be transported in commerce; (3) design, manufacture, fabricate, inspect, mark, maintain,
recondition, repair, or test a package, container, or packaging component that is represented, marked, certified, or sold for use in transporting hazardous material in commerce; (4) prepare or accept hazardous material for transportation in commerce; (5) are responsible
for the safety of transporting hazardous material in commerce; (6)
certify compliance with the regulations; or (7) misrepresent whether
they are engaged in any of the above activities (49 U.S.C. § 5103(b)
(1)(A)).
PHMSA believes that the overall statutory and regulatory scheme,
its outreach and industry training, the cooperative grant program
to the States, and a vibrant enforcement program by all modal administrations have provided a generally safe and sufficient hazardous
materials (“hazmat”) transportation network. PHMSA has identified approximately 3,000 various types of hazardous materials that, if
accidentally or intentionally released, can pose serious risks to public
health and safety, property, and the environment.
Identification of Covered Materials
The Hazardous Materials Table (Table) found in 49 C.F.R. §
172.101 designates hazardous materials for the purpose of transpor1
A version of this paper was delivered to the ABA’s Section of Environment,
Energy, and Resources at the 13th. Section Fall Meeting in Nashville, TN., September
21-25, 2005. This paper updates the most recent changes in the hazardous materials
statutes and regulations.
2
Transportation is the movement of property and loading, unloading, or
storage incidental to movement.
4
tation and prescribes various requirements applicable to their shipment and transportation. The Table specifies quantity limits aboard
aircraft and stowage of hazardous materials aboard vessels. Thus, the
Table is the first stop in determining how hazardous materials must
be transported.
For each listed material, the Table identifies the Hazard Class,
which helps to identify the type of material by its properties. See
Sidebar 1. The Hazard Class is also divided further into Division
continued on page 13
Class 1
Explosives (49 C.F.R. § 173.50)
Class 2
Gases (49 C.F.R. §§ 173.115116)
Class 3
Flammable/Combustible Liquids (49 C.F.R. §§ 173.120-121)
Class 4
Flammable Solid/Spontaneously
Combustible/Dangerous When
Wet (49 C.F.R. §§ 173.124-125
Class 5
Oxidizers, Organic Peroxides
(49 C.F.R. §§ 173.127.129)
Class 6
Poisonous Materials/Infectious Substances (49 C.F.R. §§
173.132-134)
Class 7
Radioactive Materials (49 C.F.R.
§ 173.403)
Class 8
Corrosive Materials (49 C.F.R.
§§ 173.136-137)
Class 9
Miscellaneous Hazardous Materials (49 C.F.R. §§ 173.140-141)
Other Regulated Materials
(ORM) (49 C.F.R. §§ 173.144145)
Sidebar 1: Hazard Classes
Features
DOT Hazmat Preemption
The Importance of Uniform Requirements on Hazmat Transport
By Frazer C. Hilder
More than 800,000 shipments of hazardous materials take place
every day. As explained in a recent rulemaking document: “Hazardous materials are essential to the economy of the United States and
the well being of its people. Hazardous materials fuel motor vehicles,
purify drinking water, and heat and cool homes and offices. They are
used for farming and medical applications, and in manufacturing,
mining, and other industrial processes.”1
Many federal agencies work together to assure the safe and secure transportation of hazardous materials. Under the authority of
Federal hazardous material transportation law, 49 U.S.C. § 5101 et
seq., DOT’s Pipeline and Hazardous Materials Safety Administration
(PHMSA) issues the Hazardous Materials Regulations (HMR, 49
CFR parts 171-180) that govern the packaging, handling, and identification of all hazardous materials transported in commerce. The
Federal Aviation Administration (FAA), the Federal Motor Carrier
Safety Administration (FMCSA), the Federal Railroad Administration (FRA), and the U.S. Coast Guard (USCG) work closely with
PHMSA on the requirements in the HMR that apply to their modes
of transportation and, separately, issue safety regulations that apply
to air, highway, rail, and water carriers, respectively, regardless of
whether the materials they transport are hazardous. These four agencies also share responsibility with PHMSA for enforcing the HMR.2
1
73 Fed. Reg. 20752 (April 16, 2008).
2
Each of these agencies investigates violations and pursues civil enforcement
actions themselves. They refer possible criminal cases to DOJ for prosecution.
PHMSA and, when applicable, these other agencies, work together
with the Transportation Safety Administration to issue requirements
for the security of hazardous materials in transportation.
Uniform Requirements
The importance of, and need for, uniform requirements governing the transportation of hazardous materials are well recognized. In
1974, the Senate Commerce Committee emphasized the need to
avoid “a multiplicity of State and local regulations and the potential
for varying as well as conflicting regulations in the area of hazardous
materials transportation.”3 Sixteen years later, Congress specifically
found that “consistency in laws and regulations governing the transportation of hazardous materials is necessary and desirable,” because
varying requirements create “the potential for unreasonable hazards
… and confound shippers and carriers which attempt to comply
with multiple and conflicting registration, permitting, routing, notification, and other regulatory requirements.”4 In short, safety is
enhanced when shippers and carriers learn and follow a single set
of transportation requirements; a shipper or carrier faced with the
potential of different requirements in every state or locality through
which a shipment may travel is more likely to simply “give up” and
continued on page 17
3
4
S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974).
Pub. L. No. 101-615, § 2(3), 104 Stat. 3245 (1990).
Preemption Under Hazmat Transportation Law
By Lawrence W. Bierlein
The issue of preemption of nonfederal restrictions under the Hazardous Materials Transportation Act (HMTA), 49 U.S.C. 5101 et
seq., often starts with a needless argument between those who have
opposing views of the role of the federal government relative to State
and local authorities. The arguments can go on indefinitely, but are
pointless to this summary. In fact, the term “preemption” should
be avoided, if possible, because it carries such emotional political
baggage. The more important concept is the employee, public, and
emergency response safety need for national regulatory uniformity.
It is important at the outset to realize (1) that Congress established
the concept by statute (49 U.S.C. § 5125) under the Commerce
Clause, and (2) they had a reason for doing so. The reason needs to
be understood in order to comprehend the nature of the process, and
the varying terms of the statute need to be examined with care in light
of this understanding.
The term “hazardous material” or hazmat (called “dangerous
goods” under international codes) encompasses a wide range of packaged materials possessing an equally wide range of hazards. It covers
propane tank trucks and fissionable nuclear materials, but also covers 2-ounce nail polish bottles and aerosol cans. The United States’
system of regulation, and that of virtually all other countries, is based
upon United Nations definitions of nine hazard “classifications.” Each
class is defined, usually by laboratory testing criteria, and the shipping description for each material is mandated by UN identification
number, proper shipping name, class number, and Packing Group.
Specifically, authorized packaging and qualifying performance tests
for that packaging are mandated. The packages must bear explicit
words, symbols, and colors in prescribed locations, and the entire
range of information must be described in mandatory sequence on
certified shipping papers. Each shipping paper must bear a 24-hour
emergency response contact telephone number. Vehicle or freight
container placards are offered to the receiving carrier, and carriers
must maintain those communications as well as exercise due care in
handling and delivering the products. The U.S. hazmat regulations
fill approximately 1,300 pages of the Code of Federal Regulations.
The U.S. regulations do not exist in a vacuum. The United Nations Committee of Experts on the Transport of Dangerous Goods
writes Model Regulations upon which the U.S. rules and those of
virtually every other country are based. The UN effort over decades
has resulted in nearly-complete harmonization of differences between
continued on page 19
5
Features
Hazmat à la Mode
FAA’s Hazardous Materials Compliance & Enforcement Program
By Christopher J. Bonanti
The Federal Aviation Administration’s (FAA) Office of Security
and Hazardous Materials (ASH)–which provides regulatory oversight
of hazardous materials (“hazmat”) transported in cargo and passenger operations and supports the FAA’s goal to continuously improve
the safety and efficiency of flight–continues to work with its federal
partners to ensure a safer and more secure global airspace. In a nutshell, the objectives of the FAA’s hazardous materials compliance and
enforcement program are to: (1) achieve the lowest possible accident
rate and (2) consistently improve aviation safety while decreasing any
unnecessary risks to the traveling public and cargo aircraft operations.
These objectives can only be achieved by decreasing all unnecessary
risks in order to prevent hazardous materials accidents and incidents
aboard aircraft before they occur.
The purpose of this article is to provide an overview of the FAA’s
hazardous materials safety program. Focusing on the FAA’s approach
to compliance with the hazardous materials statutes regulations and
noncompliance with civil penalty actions, this article provides a summary overview of why the FAA enforces the regulations the way it
does.
Authorizing Legislation
Prior to 1974, no single agency had authority to regulate the
transportation of hazardous materials in commerce. Concerned that
the unregulated transportation of hazardous materials posed a threat
to public safety, Congress, in 1974, enacted the Hazardous Materials
Transportation Act (HMTA). As the legislative history of the HMTA
indicates, the purpose of § 110 was to “put some teeth in this new
legislation by making civil and criminal penalties for violations of the
regulations quite severe.”1 Similar intent was expressed in the Senate at the time the HMTA was passed.2 With the passage of time,
inflation eroded the impact of these penalties. As a result, in 1990,
Congress enacted the Hazardous Materials Transportation Uniform
Safety Act of 1990, which raised the maximum civil penalty for a
continued on page 21
1
120 Cong. Rec. 41, 410 (1974) (remarks of Rep. Jarman). Section 110,
which was initially codified at 49 U.S.C. App. 1809 (a) and (b), provided for civil penalties and criminal penalties, respectively. The penalty provisions subsequently were
recodified at 49 U.S.C. §§ 5123 (civil penalties) and 5124 (criminal penalties). The
regulations, which are known as the department of Transportation Hazardous Materials Regulations (HMR), are found at 49 C.F.R. parts 105–180.
2
See 120 Cong. Rec. 40, 677-79 (1974) (remarks of Senator Hartke).
Safe Skies with Flying Agents
An Overview of Law Enforcement Officers Carrying
Accessible Firearms on Commercial Aircrafts
By Thomas K. Lehrich
Promoting safe flight for passengers and crew is the foremost objective of the Federal Air Marshall Service. While the force was established in the late 1970s as the “Sky Marshal Program,” housed within
the Department of Transportation’s Federal Aviation Administration
(FAA), expansion and deployment of the service has been attributed
to the tragic events of September 11, 2001.
The primary law enforcement personnel carrying firearms on commercial aircrafts are members of the Air Marshall Services.1 However,
armed law enforcement officers (LEOs) of other federal agencies are
permitted on commercial airlines and may enhance aviation security in addition to general law enforcement on the ground. But what
are the rules and how much can pilots and airlines weigh in to this
practice? This article will examine the rules and practices that are not
well known concerning armed law enforcement officers aboard commercial aircrafts.
Granting Authority to Carry Accessible Firearms
The Transportation Security Administration (TSA)–established by
the Aviation and Transportation Security Act of 2001 in the aftermath of the September 11 terrorist acts–currently regulates the car1
On duty Federal Air marshals are granted authority to carry firearms onboard commercial aircrafts, without the same conditions that apply to other LEOs.
6
riage of firearms on commercial aircrafts.2 TSA was originally part
of the DOT, but was moved to the Department of Homeland Security (DHS) in 2003.3 Following the operational and organizational
changes made, the Federal Air Marshall Service was moved in 2005
from Immigration and Customs Enforcement (ICE) to TSA, where
it remains.
Title 49, part 1544 of the Code of Federal Regulations addresses
the carriage of accessible firearms on commercial flights. It prohibits
the carrying of any weapon of an explosive or incendiary nature on
an individual’s person while onboard an aircraft, with two exceptions:
Federal Air Marshals and other approved LEOs.4 LEOs include government employees with the authority to make arrests under federal
law. Airlines may not permit individuals to carry firearms on board
an aircraft except for: authorized federal or full time state, county,
and municipal LEOs; the transportation of prisoners on commercial
flights under specific conditions; and on-duty Federal Air Marshals.5
Armed LEO Procedure and Conduct
For an LEO (i.e., non-Air Marshal) to carry a firearm on board a
continued on page 26
2
3
4
5
Pub. L. No. 107-71.
Pub. L. No. 107-296.
49 C.F.R. § 1544.201(d).
49 C.F.R. §§ 1544.219, 1544.221, and 1544.223.
Features
Return to Sender
Reverse Logistics and Hazardous Materials
By Shawn C. Wolsey
Reverse logistics—the operation of safely returning goods from
the marketplace to the original vendor, manufacturer, or supplier—
has become a growing problem for
retailers. While not a new concept, the Pipeline and Hazardous
Materials Safety Administration
(PHMSA) has recently been focusing its limited resources on reverse logistics’ growing problems
affecting numerous entities in the
supply chain, including retailers,
pharmacies, catalog merchants,
warehouses, hardware stores, specialty boutiques, and automotive
parts stores.
Reverse logistics is effectively a
reversal of the supply chain. When
the return of goods from the marketplace involves hazardous materials, additional complications occur. For instance, certain items not usually requiring compliance under the hazardous materials regulations (HMRs) may (1) no longer
fall within the “consumer commodities” exception under 49 C.F.R.
§§ 171.8 and 173.156 ; (2) now be shipped as undeclared hazardous
materials; (3) be improperly used to ship non-hazardous materials
or other hazardous materials for
which the packagings are not authorized when they are already
in marked and labeled; (4) these
shipments are not being accompanied by proper shipping papers, emergency response numbers, placards, and the other
requirements of the Hazardous
Materials Regulations (HMRs);
and (5) a whole host of other
intriguing legal concerns. This
article will not focus on every
issue, but will summarize the
problems that hazardous materials create in the reverse logistics arena and will introduce a new enforcement program adopted by
PHMSA that can help bring about real-world solutions.
coninued on page 27
Hazmat Security
Old Dangers in a New Context and their Implications for Future Compliance
By Joel Webber1
The terrorist attacks of 9/11 have transformed the way that policymakers think about federal requirements for transporting “hazardous
materials” (hazmat). Congress and the federal agencies are no longer
looking solely at hazmat’s inherent compositional perils, but are also
focusing on intentional terrorist acts. This article’s purpose is to describe the changing regulatory regime. However, if the recent past is
a guide, the recently promulgated rules will likely be the subject of
revisions and be joined by de novo protocols.2
1
While all opinions (and any errors) are the author’s responsibility, the following lawyers generously gave of their time to provide expertise and firsthand perspectives: Brigham McCown, Esq., Hunton & Williams, Washington, D.C.; Andrew
Stephenson, Esq., Franklin & Prokopik, Baltimore, MD; Kenneth Siegel, Esq., Strasburger & Price, LLP, Washington, D.C.; Lawrence Bierlein, Esq., Washington, D.C.;
Jennifer Gibson, Vice President, Government & Public Affairs, National Association
of Chemical Distributors, Arlington, VA; David Nissenberg, Esq., San Diego, CA;
Richard Moskowitz, Regulatory Affairs Counsel, American Trucking Associations, Arlington, VA; Gerie Voss, Esq., Regulatory Counsel, American Association for Justice,
Washington, D.C.; Glenn P. Wicks, Esq. and Lindsay W. McGuire, Esq., The Wicks
Group PLLC, Washington, D.C.; and Ms. Anita Kerezman, Exponent Engineering &
Scientific Consulting, Phoenix, AZ.
2
Traditional hazmat freight protocols (i.e., those launched in 1975) include
(i) placarding, (ii) avoiding the juxtaposition of chemicals whose interaction causes explosion, combustion or other harms, (iii) routing restrictions, (iv) prescribed structural
integrity of vessels and other conveyances of hazmat, (v) personnel vetting as evidenced
by credentials, and (vi) training in specified aspects of hazmat transportation . De
novo protocols seen for the first time since 9/11 include (i) continuous hazmat load
supervision or “chain of custody” requirements and (ii) tracking hazmat loads from a
remote site (such as a corporate facility) while those loads are en route.
The Change in Hazmat Regulation
For over three decades, the federal government has built a regulatory regime designed to move hazardous substances in commerce,
while protecting the public against the tangible risks such movement
presents to health and safety. In 1975, Congress vested authority in
the Secretary of Transportation to designate as a “hazardous material”
any “particular quantity or form” of a substance that “may pose an
unreasonable risk to health and safety or property.”3 DOT delegated
this responsibility to the Research and Special Programs Administration (RSPA) and its successor, the Pipeline and Hazardous Materials
Safety Administration (PHMSA), which accordingly promulgated
the existing regulations.
PHMSA enforced the Hazardous Materials Regulations (HMR)–
which listed thousands of commodities in nine categories and prescribed practices for their shipment—in conjunction with DOT’s
“modal” administrations, including the Federal Motor Carrier Safety
Administration (FMCSA) and the Federal Railroad Administration
(FRA).4 Then came the terrorist attacks of 9/11.
This event transformed the way that policy-makers would view
coninued on page 31
3
Hazardous Materials Transportation Act of 1975, Pub. L. No. 93-633, 88
Stat. 2156 (1975), amended by Hazardous Materials Transportation Uniform Safety
Act of 1990, Pub. L. No. 101-615, 104 Stat. 3244 (1990).
4
49 C.F.R. parts 100-185.
7
Columns
Hot Litigation
By Dale Andrews
In this column: The Federal
Employers’ Liability Act and preemption, the constitutionality of
the Federal Rail Safety Act, and
city port taxes and regulations on
tanker vessels and motor carriers.
Court Will Not Review Ohio FELA Decision
On January 12, the Supreme Court denied the petition for certiorari in Weldon v. Norfolk Southern Ry. (Supreme Court Cert. Petition
No. 07-1152). The petition had sought review of a decision by the
Supreme Court of Ohio holding that an Ohio statutory provision
that prioritizes asbestos cases so that only those cases involving presently-redressible injuries will be scheduled for trial is not preempted
by provisions of the Federal Employers’ Liability Act (“FELA”).
In a December 5 amicus brief filed at the invitation of the Court,
the United States urged the Court not to take the case. The United
States argued that the Ohio decision was correctly decided and that
there was no reason for the Supreme Court to review the case.
In its decision the Ohio Supreme Court held that the Ohio statute
sets forth procedural rules that are not preempted by either FELA,
45 U.S.C. § 51 et seq., or the Locomotive Boiler Inspection Act
(“LBIA”), 49 U.S.C. § 20701 et seq., which, as the Ohio Supreme
Court noted, has been held to supplement the provisions of FELA.
875 N.E.2d 919, 923 (Ohio 2007) citing Urie v. Thompson, 337 U.S.
163, 188 (1949).
FELA assures railroad employees a safe work place and gives them
and their families the right to recover compensation if injured during
the course of railroad employment. Under FELA, injured employees
can seek compensation for wage loss, future wage loss, medical expenses and treatments, pain and suffering, and for partial or permanent disability.
There have been a substantial number of claims filed under FELA
seeking recoveries based on workers’ exposure to asbestos. DOT has
no regulations addressing the scope or application of FELA, nor does
the Department have any programs directly dealing with the statute.
However, since FELA allows claims to be brought against railroads
and, through amendments to the Jones Act, also extends to maritime
vessels, the Department has a general interest in ensuring the fair application of the provisions of the statute.
FELA, by its terms, preempts States from imposing substantive
barriers to recovery that differ from the terms set forth in FELA. See
Napier v. Atlantic Coast Line Ry., 272 U.S. 605, 613 (1926). Howcontinued on page 29
Hot Rulemakings
By Brett Jortland
Alarm klaxons sounding and men in bright yellow suits running
to a hazardous materials (hazmat) emergency is, thankfully, an image
largely confined to the world of movies and television. In large part,
this is due to the strict regulatory regime that the federal government
has imposed regarding all manner of hazmat operations. With the
great potential for loss of life from hazmat mishandling or misuse,
these regulations are surely no surprise to the public. A likely surprise, however, is that one of the world’s premier agencies responsible
for providing expertise and regulatory oversight related to hazmat is
found at the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA), which has broad
authority to issue regulations to ensure the safe transportation of
hazmat throughout all modes of transportation.
While hazmat is carried by every mode of transportation, it is our
railways that carry it in bulk throughout the country. In fact, to fuel
our nation’s economy, railroads carry millions of tons of hazmat in
over 1.7 million annual shipments. In addition to traversing sparsely
populated stretches of track, hazmat shipments also enter large cities and pristine natural environments, meaning that the result of a
hazmat release could be injury or death to people on a grand scale,
serious harm to the natural environment, or both. Rail shipments of
hazmat are in such large quantities that they pose tremendous danger
via accidental release situation and offer terrorists the possibility of
turning a train into an improvised weapon. On another safety front,
there are growing concerns about catastrophic failures of tank cars
8
due to a few high-profile train accidents where hazmat was released,
resulting in injuries and deaths, evacuations and route closures, and
serious negative economic impacts in the area of the accident.
So, in order to further improve the safety and security of hazmat
operations, two rulemakings jointly authored by PHMSA and the
Federal Railroad Administration (FRA) were issued; one dealing with
the routing of hazmat shipments via rail and the other improving
design standards for pressurized hazmat rail tank cars.
Rail Routing of Hazardous Materials, 73 Fed. Reg. 72812 (Nov. 26,
2008)
NIMBY, or Not In My Back Yard, is an acronym used to describe
the opposition of local residents to a planned action that has definite
economic or societal benefits on the whole, but would have negative
impacts on the local residents. While NIMBY often refers to construction of jails, nuclear power plants, and roads, in the context of
hazmat transportation by rail it refers to communities that prefer not
to have hazmat carried through their neighborhoods by railroads. To
this end, various jurisdictions have enacted or considered enacting
legislation to ban the rail transport of hazmat inside their borders.
However, given the relatively few routes that rail traffic can follow
and the high cost of rerouting trains, a patchwork of local regulations
on hazmat rail routing would place enormous strain on the industry
and raise prices for all consumers. PHMSA issued this rule to procontinued on page 25
News
President Bush’s DOT Visit
By Helen Serassio
On November 18, 2008, President Bush
visited the Department of Transportation
headquarters to announce expanded airspace
to ease holiday air travel. Hundreds of DOT
employees filled the atrium to greet President
Bush, the first sitting president to visit DOT
headquarters since President Reagan. Start-
ing his speech on a light note, the President
elicited laughter when saying, “You have
done a terrific job, as far as I am concerned.
The past eight years I have not seen a traffic
jam, waited for an airplane, or had my bags
lost.”
During his speech, the President recognized the accomplishments of the Depart-
ment in the last year, including: DOT’s swift
response to the Minnesota bridge collapse;
issuance of rules that increase consumer
protection for air travelers; three new “openskies” agreements in Australia, Kenya, and
Croatia; and, the issuance of regulations to
ease congestion in the New York air space by
capping flights and auctioning slots at New-
Photos: Daeleen Chesley
ark, John F. Kennedy International, and LaGuardia airports.
The primary purpose of President Bush’s visit was to announce the
Administration’s actions to ease congestion during peak holiday air
travel. In the previous holiday season, DOT opened military airspace
over the east coast for commercial flights. For this holiday season,
the Department once again opened military air space over the east
coast for commercial flights and expanded what the President called
“Thanksgiving Express Lanes” to areas of the midwest, southwest,
and west coast, including the skies over Phoenix and Los Angeles.
While only a temporary solution to easing airspace congestion, these
actions help ensure that holiday air travelers reach their destinations
in a timely manner.
After his remarks, the President remained and conversed with
DOT employees who eagerly awaited the opportunity to shake the
President’s hand. Prior to leaving the building, the President toured
the DOT Crisis Management Center and met the Transportation
and military officials manning the center.
9
News
Secretary Peters’ Portrait Unveiling
1
3
4
6
10
2
5
7
8
9
10
11
(1) Secretary Mary E. Peters greeting former
Secretaries Norman Mineta, Rodney Slater, Samuel Skinner, and William Thaddeus Coleman, Jr. (2)
Secretary Peters and her son, Terry. (3) and (4) The
unveiling of Secretary Peter’s portrait. (5) Secretary Peters. (6) Secretary Peters thanking portraitist Harley Brown of Tucson, Arizona. (7) and (8)
Secretary Peters thanking DOT personnel for their
support. (9) Joshua Bolton expressing gratitude
to Secretary Peters on behalf of President Bush.
(10) Secretary Peters receiving a gift plaque from
DOT. (11) and (13) Former Secretaries Mineta,
Slater, Skinner, and Coleman. (12) Secretary Peters thanking the former Secretaries.
Photos: Jason Schlosberg
12
13
11
News
Swearing in Secretary Ray H. LaHood
By Jason Schlosberg
On Friday, January 23, at 1:00 p.m., Ray H. LaHood became the
sixteenth U.S. Secretary of Transportation. In attendance were his
new staff, members of the DOT transition team, his wife Kathy, son
Sam, and Senator Richard J. Durban, a fellow Illinoisian and Assistant Majority Leader. Linda Washington, DOT’s Assistant Secretary
for Administration, administrated the oath of office. The ceremony
was held just one day after being unanimously confirmed via voice
vote by the U.S. Senate. A ceremonial swearing-in will be scheduled
at a later date. In the meantime, Secretary LaHood held a Town Hall
meeting before DOT employees on January 29.
Secretary LaHood faces immediate challenges. For instance, Rep.
Byron Dorgan (D-ND), made it clear during the committee confirmation hearing that he expects LaHood to kill the Federal Motor
Carrier Safety Administration’s (FMCSA) Cross Border Demonstration Project within two months. The NAFTA-related program, loudly
criticized by Senator Byron Dorgan and Rep. Peter DiFazio, concerns
trucking between the U.S. and Mexico. Some expect legislative negotiations concerning the program during the potential extension of
DOT’s continuing resolution, which expires March 6.
Almost immediately after taking office, LaHood issued a statement on CAFE Standards:
Less than a week into his term, President Obama
today signed a Presidential Memorandum directing the
U.S. Department of Transportation to finalize CAFE
standards for 2011 model year vehicles and to proceed
expeditiously on setting standards for later years. CAFE
is a top priority for this Administration, and the Department of Transportation and its National Highway Traf-
gladly welcomes our
new Associate Editor
do you also want to be an
contact :
12
fic Safety Administration are poised to move quickly on
new fuel economy standards for passenger cars and light
trucks.
Secretary LaHood, a politically moderal Republican initially elected to the House of Representatives in 1994, helps to fulfill President
Obama’s promise for a bipartisan Cabinet. LaHood, first elected in
1994, has a reputation as a moderate and a sometime ally of public
transit. According to Progress Illinois, LaHood has voted to increase
funding for Amtrak and opposed privatizing rail lines. His transportation experience includes membership on the House Transportation and Appropriations Committees. According to LaHood’s predecessor, former U.S. House Minority Leader Bob Michel, however,
“[Transportation] hasn’t been his topmost specialty, but he’s a quick
learner and he’s been around long enough to know what the big issues
are whether it’s land, sea or air in the field of transportation.”
He first gained national prominence when he presided over the
impeachment trial of Bill Clinton. He has been widely praised for his
bipartisanship and management skills.
Prior to becoming Obama’s Chief of Staff, Rahm Emanuel praised
LaHood as someone the framers of the Constitution would have “had
in their mind’s eye” when they “thought of a member of Congress.”
When President Obama announced his intention on December 19,
2008, to nominate Mr. LaHood for the cabinet-level position, the
then-current DOT Secretary, Mary E. Peters, said that his “broad experience and well-known pragmatism make him an excellent choice
to lead and support America’s transportation future. . . . I’m confident our nation’s transportation network will be in good hands under
the leadership of Congressman LaHood.”
Kevin
McDonald
Associate Editor?
[email protected]
Hazmat Primer
continued from page 4
Numbers for additional separation and specification in the classifica- official duties; (6) a hazmat employee, including those who leased
tion system. For example, Class 2 Gases are divided into three sepa- their motor vehicle(s) to a registered motor carrier under a 30-day or
rate Divisions (2.1 Flammable gas, 2.2 Non-flammable compressed longer lease under 49 C.F.R. Part 376 or an equivalent contractual
gas, and 2.3 Poisonous gas).
agreement; and (6) a person domiciled outside the U.S. who offers
The Table—a guide identifying how hazardous materials must be solely from a location outside the U.S. hazardous materials for transtransported and referencing other sections of the HMRs for more portation in commerce, provided that the country of which such a
specific requirements—identifies over 3,000 types of hazardous ma- person is a domiciliary does not require persons domiciled in the
terials by both proper shipping name and its specific 4-digit identi- United States to file a registration statement or pay a registration fee
fication number preceded by two letters: UN or NA. Generally, to (49 C.F.R. § 107.606).
make a world-wide system of identification of these products possible,
Shipping Papers
$446B
Average annual hazmat
PHMSA has used the proper United
Nations (UN) number to identify
Shipping papers provide imindustry contribution to the
specific hazardous materials. Howevportant information about the
U.S. economy.
er, where the UN number is unavailtypes of hazardous materials beable, PHMSA has assigned a North
ing transported in commerce.
1.2M
Average number of daily
American (NA) number to identify
The shipping paper—often rehazmat shipments.
that specific hazardous material.3
ferred to as the second line of deIf a company wants to transport a
fense—must properly identify the
new chemical or hazardous material
hazardous materials so that emerAverage tons of hazmat in
3.1B
not identified in the Table, agency
gency responders rendering aid at
commerce annually.
a scene of an incident (accident
approval is required prior to its transor environmental release) can
port (49 C.F.R. §§ 107.701-717). In
Number
of
2007
hazmat
19,164
adequately protect themselves,
addition, a special permit allowing
the public, and the environment.
for the modification of the current
incidents.
Placards—discussed further beregulatory requirements is possible if
low—are generally considered
the method of transportation desired
Number
of
2007
hazmat
inci473
the first line of defense as the
achieves a level of safety at least equal
dents
considered
product being transported can be
to that required by regulation or, if a
1
serious.
required safety level does not exist, is
identified at safe distances from
consistent with the public interest.4
the transport vehicle by viewing
the placards.
10
and
113
Number
of
2007
hazmat
Registration Requirements5
The HMRs do not specify any
deaths and injuries,
particular document or form that
respectively.
Those who offer for transportamust be used as a shipping paper,
tion, or transport, in foreign, interexcept when hazardous waste is
state or intrastate commerce certain
being shipped. Offerors—some$68.6M
Estimated costs of 2007
quantities of hazardous materials
times called shippers—may use
Hazmat caused property
as outlined in 49 C.F.R. § 107.601
whatever form or shipping docudamage.
must register their operations and
ment that fits their operational
Sidebar 2: Statistics2
pay an annual registration fee to
needs. The important require1 A serious incident involves deaths, injuPHMSA, ranging between $275 and
ments in this area concern the
ries, significant property damage, and signifi$1,000 for 2008-2009.6 Multi-year
entries on the document used for
cant releases into the environment.
registration (2 or 3 years) is permit2 Estimates provided by internal PHMSA transportation. Shipping paper
records.
ted. Registration may be handled by
requirements are found in 49
completing a form online or through
C.F.R. §§ 172.200-205.
the mail.
Each person who offers a hazardous material for transportation
Certain individuals and entities are exempt from registration must describe the hazardous material on the shipping paper in the
requirements: (1) an agency of the federal government; (2) a state manner required by the HMRs (49 C.F.R. § 172.200). As a basic
agency; (3) an agency of a political subdivision of a state; (4) an In- rule, a shipping paper must contain the basic description of the hazdian tribe; (5) an employee of any of the above entities engaged in ardous material being shipped as defined in 49 C.F.R. § 172.202(a)
(1)-(4)7 and any additional description requirements contained in 49
3
Internationally Hazardous Materials are referred to as Dangerous Goods.
C.F.R. § 172.203, including special permits, certain quantities and
4
See, 49 C.F.R. §§ 107.101-127.
5
This registration requirement is separate and distinct from the Hazardous qualities of the substances, empty packagings, and modes of transMaterials Safety Permit requirement of the Federal Motor Carrier Safety Administration (FMCSA) found at 49 C.F.R. §§ 385.401-423.
6
Any person who offers placardable quantities of hazardous materials, with
some exceptions, must register and pay the required fee. Please refer to 49 C.F.R. §
107.601 for the specific quantity requirements for registration.
7
For example, a proper description is “UN2744, Cyclobutyl chloroformate,
6.1, (8,3), PG II.” Alternatively, the basic description may be shown with the identification number (UN or NA number) listed after the hazard class or division number,
as shown in Column 3 of the Table (with some exceptions). This alternate format may
be used until Jan. 1, 2013. See 49 CFR 171.14(e).
13
portation. The aforementioned information must be prepared and
placed on the shipping paper in accordance with the requirements of
49 C.F.R. § 172.201(a)-(d).
Marking Requirements
Additional special labels are required for Class 7 (Radioactive) materials9 and mixed and consolidated packagings.10
Placarding
Placards—the first line of defense for emergency personnel reThe differences between marking, labeling, and placarding often sponding to an incident—are applied to the transport vehicle such
prove confusing. Put simply, the differences are these: a marking is a as a truck, bus, car, and railcar. To determine the required placards,
printed description on the hazardous materials packaging; a label is a you must reference both Tables 1 and 2 of 49 C.F.R. § 172.504.. For
triangle-type sticker, label, tag, or sign affixed to the packaging; and instance, as a general rule, each transport vehicle and freight cona placard is a larger triangle-type device (usually
tainer containing hazardous materials must be
not a sticker) affixed on the proper sides of the
placarded on each end and on each side with
transport vehicle in which a hazardous material
the placards specified in Tables 1 and 2, which
is being transported. Further adding to conspecify the hazardous material by Hazard Class
fusion is the fact that the packaging itself (e.g.
and Division number. Consequently, a reader
cargo tankers) may double as the packaging and
will note that Class 6 (Poisons) appear in both
the transport vehicle. The following attempts
Table 1 and 2. Note also that Table 1 indicates
to clarify and reduce the confusion surrounding
that Class 6.1 (Inhalation hazard, Zone A and
these topics.
B) requires a Poison Inhalation Hazard PlacSimply put, the required marking is the deard11 while Table 2 indicates Class 6.1 (Other
scriptive name (Table Column 2), identification
than Inhalation hazard, Zone A and B) requires
number (Table Column 4), instructions, caua Poison placard.12
tions, weight, specification, or UN/NA marks,
Placards are not required on a transport veor combinations thereof, required on the outer
hicle when transporting packages of any of the
packagings of hazardous materials. The outer
following: 1) limited quantity (no matter how
Placard
packaging is the package (box, bag, barrel, jermany pounds of it are on the vehicle) if the limrican, bottle, cylinder, etc.), freight container, and transport vehicle ited quantities are properly identified on the shipping papers;13 2)
containing hazardous materials. These markings must be in English ORM-D materials;14 3) Class 3, Divisions 4.1, 4.2, 4.3, 5.1, 6.1, and
and printed on or affixed to the surface of a package or on a label, tag, Classes 8, and 9 materials;15 and 4) small quantities.16 The HMRs
or sign; must be displayed on a background of sharply contrasting also specify visibility requirements and how placards are to be affixed
color; must be unobscured by labels or attachments; and must be lo- in specific modes of transportation.17
cated away from other markings (such as advertising) that could subThe placard—which includes the hazmat identification number
stantially reduce its effectiveness (49 C.F.R. § 172.304). The HMRs and the written warning (Flammable Gas, Blasting Agents, Poison,
also require additional markings depending on the amount of hazmat Infectious Substances, etc.) as listed in PHMSA’s Emergency Rebeing shipped, certain classes of hazmat (such as radioactive, liquid, sponse Guide (ERG) Book—helps emergency responders identify the
poisonous materials, ORM-D, explosive), the properties the hazmat hazardous material product being transported in the incident-related
exhibits (such as heat sensitivity, marine pollutant, biohazard, infec- vehicle. The ERG will also advise responding emergency workers
as to evacuation zones and special equipment needed while containtious substances), and the mode of transportation.8
ing the spill or release. Free copies of the ERG are available on the
Labeling
PHMSA website at http://hazmat.dot.gov/pubs/erg/gydebook.htm.
Both labels and placards are similar in color and shape, but there
is a distinct difference between them. Generally, labels are affixed to
packages such as boxes, drums, and bags and placards are applied to
the transport vehicle such as a truck, bus, car, and railcars. Labels are
generally smaller in size than placards. The proper hazard warning
label(s) required for a particular hazardous material are identified in
Column 6 of the Table. If Column 6 indicates “None” or “------”,
then no label is required. Nonetheless, even if Column 6 of the Table
indicates that a label is necessary, transporters of hazardous materials
should review 49 C.F.R. § 172.400a(a)-(d) as exceptions may apply.
Finally, Column 8A of the Table will indicate where to look in the
HMRs for specific exceptions to the labeling requirement.
For certain hazardous materials, affixing a primary and subsidiary
hazard label may be required. Requirements for a subsidiary hazard
label are indicated in Column 6 of the Table, and for Class 1 and
2 materials the reader should reference 49 C.F.R. § 172.402(e)-(g).
8
49 C.F.R. §§ 172.310, 172.312, 172.313, 172.315-172.317, 172.320,
172.322, 172.310, 172.323 (Infectious substances), 172.325 (Elevated temperature
materials), and 172.326.
14
9
49 C.F.R. §§ 172.402(d) and 172.403 (RADIOACTIVE WHITE-I, RADIOACTIVE YELLOW-II, RADIOACTIVE YELLOW-III, AND RADIOACTIVE
YELLOW-III (exclusive use provisions in 49 C.F.R. § 173.441(b)). Class 7 (Radioactive) material may also require a “FISSILE” label (49 C.F.R. § 172.403(e)).
10
49 C.F.R. § 172.404.
11
49 C.F.R. § 172.555.
12
49 C.F.R. § 172.554. Hazard Zones refer to Poisonous materials, Division
6.1 materials, and the vapor concentration and toxicity of those materials (49 C.F.R. §
173.133, Figure 1: Inhalation Toxicity: Packing Group and Hazard Zone Borderlines),
or the ratio of volatility (Id.). This information is also identified in column 5 of the
Table.
13
49 C.F.R. § 172.500(b)(3).
14
49 C.F.R. § 172.500(b)(2). ORM-D means “Other Regulated Materials.” ORM-D is a material such as a consumer commodity, which, although otherwise
subject to the HMRs, presents a limited hazard during transportation due to its form,
quantity, and packaging. It must be a material for which exceptions are provided in 49
C.F.R. § 172.101, Column 8A of the Table (49 C.F.R. § 173.144).
15
Class 3, Divisions 4.1, 4.2, 4.3, 5.1, 6.1, and Classes 8 and 9 materials prepared in accordance with 49 C.F.R. § 173.13 are exempt from labeling and placarding
if prepared for transportation in accordance the requirements of that section.
16
49 C.F.R. § 173.4.
17
49 C.F.R. § 172.602.
Emergency Response Information
By requiring emergency response information—the third line of
defense for emergency responders—the HMRs intend to mitigate
incident severity. At a minimum, emergency response information
must include: (1) the basic description and technical name of the hazardous material being transported; (2) immediate hazards to health;
(3) risks of fire or explosion; (4) immediate precautions to be taken
in the event of an accident or incident; (5) initial methods for handling spills or leaks in the absence of fire; and (6) preliminary first
aid measures.
The emergency response information must be printed legibly in
English, available away from the package containing the hazardous
material, and presented (1) on a shipping paper; (2) in a document,
other than a shipping paper, that contains both the basic description
and technical name of the hazardous material and the emergency response information required above; or (3) in an emergency response
guidance document.18
An emergency response telephone number must also be affixed to
the front of the shipping paper (49 C.F.R. § 172.604). This number
must include the area code and be: (1) monitored at all times the
hazardous material is in transportation, including storage incidental
to transportation; (2) directed to a person who is either knowledgeable of the hazardous material being shipped and has comprehensive
emergency response and mitigation information for that material, or
has immediate access to a person who possesses such knowledge and
information; and (3) entered upon the shipping paper immediately
following the description of the HM and in a clearly visible location
following the words “EMERGENCY CONTACT.”19
The telephone number must be the number of the person offering
the hazardous material for transportation or the number of an agency
or organization capable of, and accepting responsibility for, providing the detailed information concerning the hazardous material. A
person offering a hazardous material for transportation who lists the
telephone number of an agency or organization must ensure that the
agency or organization has received current information on the material (49 C.F.R. § 172.604(b)).
Training Requirements
Training is a systematic program that ensures a hazmat employee,
as defined under 49 C.F.R. § 171.8, has familiarity with the general
provisions of the HMRs, is able to recognize and identify hazardous
materials, has knowledge of specific requirements of the HMRs applicable to functions performed by the employee, and has knowledge
of emergency response information, self-protection measures and accident prevention methods and procedures.20 In addition to the
training required in 49 C.F.R. §§ 172.700-704, specific training is
required when a hazardous material is transported by rail (49 C.F.R.
Part 174), by aircraft (49 C.F.R. Part 175), by vessel (49 C.F.R Part
176), or by highway (49 C.F.R. Part 177).21
At a minimum, employee training must include: (1) general
awareness/familiarization training; (2) function-specific training; (3)
18
An emergency response guidance document is written notification to the
pilot-in-command that includes a dangerous cargo manifest, ICAO’s Emergency Response Guidance for Aircraft Incidents Involving Dangerous Goods, or IMO’s Emergency Procedures for Ships Carrying Dangerous Goods, or equivalent documents. See
49 C.F.R. § 172.602 (b).
19
See id.
20
49 C.F.R. § 172.700(b)
21
See also 49 C.F.R. § 172.700(c).
safety training; (4) security awareness training; (5) in-depth security
training; (6) OSHA, EPA, and other training; and (7) initial and
recurrent training.22
Security Plans
Each person (except farmers) who offers for transportation in
commerce or transports in commerce one or more of the enumerated
Hazmat Security Plan Requirements1
1. An assessment. This assessment must be of the
possible transportation security risks for shipment of hazardous materials and must take
into consideration appropriate measures to address the assessed risks;
2. Personnel security. Measures to confirm information provided by job applicants hired for
positions that involve access to and handling
of the hazardous materials covered by the
security plan;
3. Unauthorized access. Measures to address the
assessed risk that unauthorized persons may
gain access to the hazardous materials covered
by the plan or transport conveyances being
prepared for transportation of the hazardous
materials covered by the security plan; and
4. En route security. Measures to address the assessed security risks of shipments of hazardous
materials covered by the security plan en route
from origin to destination, including shipments stored incidental to movement.
Sidebar 3
1
49 C.F.R. § 172.802.
hazardous materials listed in 49 C.F.R. § 172.800 must develop and
adhere to a security plan for hazardous materials. As a basic rule, any
person who transports a quantity of hazardous materials that requires
placarding must develop and adhere to a security plan. The security
plan includes four parts, listed on this page in Sidebar 3.
The security plan must be in writing and must be retained for
as long as it remains in effect. Copies of the security plan must be
available to the employees who are responsible for its implementation. Access to the security plan should be consistent with personnel security clearances or background investigation restrictions and
granted only to persons with a demonstrated need to know.23 The
22
See 49 C.F.R. § 172.704.
23
The required assessment to the Security plan requirement is considered
Security Sensitive Information (SSI) and adherence to the SSI regulations are required.
15
Pipeline and Hazardous Materials Safety Administration
Hazardous Materials Inspection and Enforcement Program Statistical Information – 2001-2007
Category
Inspections
Warning Letters Issued
Tickets Issued
Tickets Closed with Penalty
Ticket Penalties Collected
Average Ticket Penalty Collected
Percentage Collected vs. Proposed
Cases Referred from OHME to Chief Counsel
Notices of Probable Violation (Cases) Issued
Final Orders Issued
Cases Closed With Penalty
Penalties Collected
Average Penalty Collected
Percentage Collected vs. Proposed
Total Penalties (Tickets and Cases)
2001
1,801
122
450
371
$486,439
$1,311
98.9%
316
304
188
196
$1,311,959
$6,694
67.5%
$1,798,398
2002
1,943
109
585
451
$558,614
$1,235
99.7%
292
303
363
283
$1,939,708
$6,854
72.4%
$2,496,704
2003
1,860
65
611
517
$689,905
$1,344
100.2%*
331
338
241
268
$1,687,902
$6,298
73.75%
$2,377,807
2004
1,890
62
492
482
$639,537
$1,327
100.2%
399
365
304
260
$1,812,726
$6,972
70.7%
$2,451,863
2005
1,903
98
506
435
$556,476
$1,279
97.1%
577
427
396
305
$1,818,084
$5,961
78.1%
$2,374,560
2006
1,741
261
464
400
$551,442
$1,379
96.3%
283
298
363
542
$2,209,522
$4,077
49.7%*
$2,760,964
2007
1,238
203
402
260
$349,296
$1,343
98.3%
180
178
235
177
$941,566
$5,320
66.4%
$1,290,862
[Source: Hazardous Materials Information System and Inspection and Enforcement Data System. PHMSA conducts all its investigative responsibilities with a team of 35 investigators.]
* The percentage collected is more than 100 percent because the addition of administrative charges and interest for tickets that are paid late means
that the final penalty is higher than the assessed penalty.
plan must be revised and updated as necessary to reflect changing
circumstances.
Administrative and Criminal Penalties
Current administrative penalties for a knowing24 violation of
the federal hazardous materials transportation law and regulations,
an order issued thereunder, or of an exemption issued pursuant to
these laws are $250 minimum and $50,000 maximum per violation.
The maximum penalty is $100,000 where a violation caused death,
serious illness, or severe injury to any person or substantial destruction of property. If the violation is related to training, the minimum
penalty is $450.25 Criminal penalties are assessed under Title 18,
United States Code and carry a
maximum fine of $250,000 for
an individual, $500,000 for a corporation; up to 10 years in prison;
or both.26
Review of administrative enforcement decisions, orders,
and regulations issued under 49
This includes marking the plan (if it includes the security assessment) SSI, securing it
in a locked location, and only sharing the plan with those who have a need to know
(49 C.F.R. Part 15 (USDOT) and 49 C.F.R. Part 1520 (Transportation Security Administration).
A person acts knowingly when: 1) he has actual knowledge of the facts
24
giving rise to the violation; or 2) a reasonable person acting in the circumstances and
exercising reasonable care would have that knowledge. 49 U.S.C. § 5123(a).
25
49 U.S.C. § 5123. Motor carriers transporting placardable quantities of
hazardous materials while operating with an unsatisfactory safety rating, are subject to
these $50,000 and $100,000 penalties.
26
49 U.S.C. § 5124.
U.S.C. 5101 et seq. and subpart D of 49 C.F.R. § 107.307-331 are
before 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 person resides or has its principal place of business.27
All rulemaking dockets and enforcement decisions of PHMSA
can be viewed by accessing the Federal Docket Management System
at www.regulations.gov.
Modal Specific Regulations
There are additional requirements under the HMRs
for modal specific transportation of hazardous materials.
If transporting a hazardous
material, an offeror must first
consult these additional requirements before conducting transportation in commerce. These
include: (1) Carriage by Rail, 49 C.F.R. Part 174; (2) Carriage by
Aircraft, 49 C.F.R. Part 175; (3) Carriage by Vessel, 49 C.F.R. Part
176; and (4) Carriage by Public Highway, 49 C.F.R. Part 177.
Conclusion
The general outline provided above intends to guide shippers and
practitioners through the hazardous materials laws and regulations,
foster a better understanding of the hazmat requirements, and lead to
a better federal/private bar working relationship in these areas.
27
49 U.S.C. § 5127.
Joseph “Joe” Solomey is the Assistant Chief Counsel for Hazardous Materials Safety for U.S. DOT’s Pipeline and Hazardous Materials Safety Administration, Washington, DC. Mr. Solomey supervises a legal division of seven attorneys responsible
for the national enforcement and adjudication of hazardous materials regulatory
violations, the exceptions and approval program, regulatory rulemaking, and
security issues related to the movement of hazmat in commerce.
16
DOT Hazmat Preemption
continued from page 5
not follow any safety requirements. There should be no doubt that
all hazardous materials need to:
• be packaged properly to prevent them from being released during
transportation and causing death, injury, and damage to property
and the environment and without having to change the packaging
each time a transport vehicle crosses a state or local boundary.
• have their risks communicated to the transport worker and, in
the case of an accident, the policeman or fireman who responds
to the accident–without having to change the markings, labels, or
placards on the vehicle and its individual packages and the wording on the paperwork that accompanies a shipment each time the
transport vehicle crosses a state or local boundary.
• be transported by a person trained on the hazards of the each
material in his vehicle with a single set of rules applicable to its
transportation and the measures to be taken in the event of an
accident.
• reach their destination without unnecessary delay due to inconsistent regulatory burdens, including state or local rules that unilaterally limit the routing of certain materials without somehow
arranging for the use of alternative routes that are just as safe and
efficient.
To enhance the safe transportation of hazardous materials, DOT
carries out provisions in federal laws in order to (1) promote consistency in requirements and enforcement at all levels and (2) preclude
or preempt differing requirements.
Coordination and Cooperation
DOT works with other federal agencies, states, local governments,
and Indian tribes to achieve consistency in the requirements that apply to the transportation of hazardous materials and the enforcement
of those requirements.
For example, other statutes contain express provisions to eliminate
conflicts with DOT’s requirements:
• The Safe Explosives Act, with certain exceptions, does not apply
to “aspects of the transportation of explosive materials via railroad,
water, highway, or air that pertain to safety, including security, and
are regulated by the Department of Transportation or the Department of Homeland Security.”5
• In relation to the transportation of hazardous waste, the Resource
Conservation and Recovery Act provides for the EPA to make
HMR drafting recommendations and prohibits the EPA from issuing requiremtns that are not consistent with the HMR.6
• The Occupational Safety and Health Act does not apply to “working conditions of employees with respect to which other Federal
agencies . . . exercise statutory authority to prescribe or enforce
standards or regulations affecting occupational safety or health.”7
5
6
7
18 U.S.C. § 845(a)(1).
42 U.S.C. § 6923.
29 U.S.C. § 653(b)(1). OSHA regulates hazmat in the workplace, so there
Moreover, FMCSA makes grants to states that adopt and enforce
requirements for motor vehicle transportation that are compatible
with the HMR and the Federal Motor Carrier Safety Regulations
in 49 C.F.R. parts 350-399. This fiscal year, FMCSA is authorized
to make more than $209 million in grants, and all 50 states have
adopted these federal regulations in whole or in part. In addition,
DOT agencies work and cooperate with state enforcement officials in
a number of ways. PHMSA and FMCSA regularly meet with state
enforcement officials and, on occasion, conduct joint inspections.
Thirty states take part in FRA’s State Participation Program, under
which state inspectors are certified by FRA to conduct compliance
inspections and investigations to enforce federal regulations against
shippers and carriers. PHMSA also makes grants to states, territories,
and Indian tribes for emergency response planning and training, with
at least 75% of the grant funds passed through to local emergency
planning committees.
Uniform requirements also promote safety and efficiency in international shipments. To establish or recommend requirements
for transporting hazardous materials, DOT agencies and the Coast
Guard participate in international forums such as the United Nations
Committee of Experts on the Transport of Dangerous Goods, the
International Civil Aviation Organization, the International Maritime Organization, the International Atomic Energy Agency, and the
NAFTA Working Group on Hazardous Materials Transportation. To
the extent practicable, PHMSA harmonizes the HMR with international standards. Jointly with Canada and Mexico, PHMSA publishes the Emergency Response Guidebook for first responders to an
accident or incident involving hazardous materials.
Preemption
In some instances, a state, a locality, or an Indian tribe may adopt
additional or different requirements that apply to the transportation
of hazardous materials. However, federal hazardous material transportation law explicitly preempts state, local and Indian tribe requirements that conflict with that law and the HMR. 49 U.S.C. § 5125.
In addition, there are preemption provisions in other transportation
statutes, such as 49 U.S.C. §§ 20106 (preempts state requirements
on subject matter covered by a federal law, regulation, or order related
to railroad safety) and 31142 (preempts a state safety inspection program if DOT determines that the State program fails to achieve the
federal objectives).
The following discussion covers only the “conflict” preemption standards in the federal hazardous material transportation law,
which, for more than 30 years, have been interpreted by DOT and
the courts–and amplified by Congress consistent with those interpretations–to specify when a state, local, or Indian tribe requirement is
inconsistent with the federal law and regulations.
There are two general standards for “conflict” preemption. The
first is the “dual compliance” standard: a non-Federal requirement
is preempted when it is not possible to comply with both the federal
and non-federal requirements. This standard does not generally arise
in hazardous materials transportation. Because states have adopted
the HMR, they (and their political subdivisions) are more likely to
add requirements above and beyond the HMR rather than prohibit
may be overlaps with teh HMR as applied to fixed facilities that handle hazmat incident to transportation.
17
something that is required by the HMR.
The second preemption standard is the ”obstacle” standard: a
non-federal requirement is preempted when it is an “obstacle” to
accomplishing and carrying out the Federal law and regulations on
transporting hazardous materials. An “obstacle” may exist when the
non-federal requirement reduces or lessens overall safety in the transportation of hazardous materials, including, for example, unnecessarily delaying the transportation and thereby increasing the overall risk
of an incident during transportation.
The original 1975 Hazardous Materials Transportation Act
(HMTA) simply provided that “any requirement of a State or political subdivision thereof, which is inconsistent with any requirement”
in that Act or a regulation issued under the HMTA “is preempted.”8
To carry out that provision, PHMSA’s predecessor agencies adopted a
procedure for issuing administrative decisions whether a state or local
requirement on the transportation of hazardous materials was “inconsistent” with the HMTA or the HMR. Between 1978 and 1990,
32 “inconsistency rulings” were issued, applying the “dual compliance” and “obstacle” standards for conflict preemption as developed
in Supreme Court decisions.
In 1990, Congress specifically included these two general preemption standards in Federal hazardous material transportation law. At
the same time, Congress also specified that there are certain subject
areas where, based on DOT’s interpretations in the 1980’s, there is no
room for substantive differences. These subject areas are:
• the designation, description, and classification of hazmat.
• the packing, repacking, handling, labeling, marking, and placarding of hazardous material.
• the preparation, execution, and use of shipping documents related
to hazardous material and requirements related to the number,
contents, and placement of those documents.
• the written notification, recording, and reporting of the unintentional release in transportation of hazardous material.
• the design, manufacturing, fabricating, marking, maintenance,
reconditioning, repairing, or testing of a packaging or a container
represented, marked, certified, or sold as qualified for use in transporting hazardous material.
Congress also specifically provided in the 1990 amendments to
the federal hazardous material transportation law that:
• if a state or locality wishes to designate (or limit or restrict) the
use of a highway route for transporting hazardous material, the
state must follow DOT’s standards
for creating a routing designation,
limitation, or restriction.
8
Pub. L. No. 93-633,
• if a state, locality, or Indian tribe assesses a fee on the transportation of hazardous material, the fee must be “fair” and used for
purposes related to the transportation of hazardous material, including emergency response planning and training.
The 1990 amendments also adopted the procedural process developed for making administrative preemption determinations and
provided for direct judicial review of these administrative decisions.
Since 1990, DOT has issued 29 “preemption determinations.”
PHMSA has also issued one decision denying a “waiver” of preemption, which is authorized when DOT finds that an inconsistent
State, local, or Indian tribe requirement provides at least an equal
level of safety and does not unreasonably burden commerce.
Raising preemption issues
The preemption standards or criteria in federal law are applied by
courts and DOT to determine whether a state, local, or Indian tribe
requirement on transporting hazardous materials is preempted. This
issue can be raised in three different ways. First, as already indicated,
any “directly affected” person may apply to DOT for an administrative determination whether a state, local, or Indian tribe requirement is preempted. 49 U.S.C. § 5125(d). DOT uses a “notice-andcomment” procedure, similar to rulemaking, in which any interested
party may submit comments on an application for a preemption
determination. See 49 C.F.R. part 107, subpart C (beginning at
§ 107.201). While this proceeding may take longer than a lawsuit
in court, it permits DOT to apply its expertise in administering the
federal hazardous material transportation law. DOT’s administrative preemption determination resembles a formal interpretation
whether the federal law preempts the state, local, or Indian tribe
requirement at issue (rather than an adjudication between other parties). There is the right to seek reconsideration of DOT’s decision
and to seek review of DOT’s decision in federal court.
Alternatively, a party affected by the non-federal requirement can
bring a lawsuit against the state, locality, or Indian tribe (or its official) for (1) a declaration that the non-federal requirement is preempted and (2) an injunction against enforcement of the state, local,
or Indian tribe requirement. In some cases, but not all, this approach
will achieve a faster result, but it may also get bogged down in litigation and involve substantial legal fees.
Another alternative is for the party subject to the state, local, or
Indian tribe requirement to raise preemption as a defense to prosecution for a violation. If the company shipping or transporting a
hazardous material follows the HMR, rather than the non-federal
requirement and then is charged with a violation of the non-Federal
requirement, it can assert that the non-federal requirement is null
and void because it is preempted by federal law. This approach involves the risk of incurring substantial penalties, if the defense of
preemption is not accepted and, sometimes, of presenting this issue
to a court or administrative agency that may not be familiar with
preemption principles.
Frazer Hilder, an attorney in PHMSA’s Office of Chief Counsel, has been
involved in many of the hazardous materials preemption decisions issued
by DOT since 1990. He also prosecutes civil penalty cases for violations of
the Hazardous Materials Regulations and provides assistance in drafting
changes or additions to the HMR.
18
Preemption Under Hazmat Law
continued from page 5
codes, to enhance uniformity.
“Transportation” encompassed by the DOT regulations includes
not only the movement of the property, but pre-transportation functions such as classification, as well as the loading, unloading, and storage incidental to the movement, such as when hazmat is in a carrier
terminal or on airport property.
The most fundamental element of every hazmat safety program is
required periodic “hazmat employee” training and testing. Training
must be conducted at least every 36 months, although most companies find more frequent repetition is essential. A “hazmat employee”
is defined by statute as any person with responsibility who could affect the safety of that material in transportation, including their immediate supervisors.
Each employee must be given general awareness (including security awareness) training on the nature of the regulatory system, its
core concepts, and the importance of compliance. More importantly,
each employee
performing any
function under
the DOT regulations must have
function-specific training and
testing on that
task. Appropriate records must
be maintained.
H a z m a t
packages move
through every
mode of transportation, often several modes for a single delivery. They also are
moved to and from every country. The only way to minimize human error and resultant safety problems is to have employee training,
including driver training, relatively standardized, and the regulatory
requirements uniform from town to town, State to State, and country
to country. In the hazmat field, confusion equates to public danger. Local regulations “create a separate regulatory regime…fostering
confusion and frustrating Congress’ goal of developing a uniform,
national scheme of regulation.”1
Within the U.S. alone, DOT has estimated more than 37,000
nonfederal (i.e., competing) jurisdictions with potential authority to
regulate transportation. Rail cars, vehicles, vessels, and aircraft move
across these borders hourly, as does the cargo. Recognition of the
safety need for uniformity, and the essential efficient flow of these
commodities, prompted Congress in 1974 to call for uniformity and
to create the statutory mechanism on preemption to assure it.
The HMTA and this concept were adopted soon after a 1973
Pan Am plane crash in Boston, in which the National Transportation Board found that confusion between regulatory codes, modes of
transportation, and varying authorities affecting hazmat transportation was a probable cause of this crash.2 It is no coincidence that
after this crash, DOT consolidated all of the applicable regulations
1
Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, 991 F.2d 458 (8th Cir. 1993).
2
Pan American World Airways, Inc. Boeing 707-321C, N458PA, Boston, MA,
Nov 3, 1973, NTSB-AAR-74-16.
into a single C.F.R. volume, established training requirements, and
accelerated harmonization with the UN.3 Everyone recognized the
safety benefit of clarity and uniformity in a complex regulatory environment.
Section 5125 of title 49 of the U.S.C. outlines the statutory provisions on preemption, but any researcher should be aware of 30 years
worth of DOT rulings and court decisions on the subject. Whereas
on occasion a unique situation may arise, most of the situations one
would expect to encounter have been resolved years ago.
Fundamentally, there are two bases for preemption. The first is
when compliance with the nonfederal rule would force noncompliance with the federal rule. Second are restrictions that are deemed to
pose an obstacle to the accomplishment of the congressional purpose
in creating a nationally uniform program, with U.S. DOT in charge
of it. In the DOT rulemaking establishing the bases upon which the
agency would decide preemption questions, reliance was placed upon
principles of federalism established in Hines
v. Davidowitz,
312 U.S. 52,
85 L.Ed. 581,
61 S.Ct. 399
(1941).
The
first
basis, the dualcompliance test,
often involves
delays caused by
the local rules
which conflict
with federal requirements for carriers to make expeditious deliveries.
The delays can come from the permit application process, too much
detail in requests for permission, having to wait before entering the
jurisdiction, and undue discretion given to a local authority to grant,
deny, or just sit on a permit application. Permits per se are not preempted, but if the process is onerous, it will be preempted. Registration fees also are not per se preempted, but must be “fair and used
for a purpose related to transporting hazardous material, including
enforcement and planning.”4
More difficult to decide on their face are cases assessing whether
a particular local restriction poses an obstacle to the purposes of the
federal program. These issues, therefore, have resulted in more litigation and published preemption determinations. Certain subjects, by
DOT and legislative declaration, must be substantively the same as
the federal rules from jurisdiction to jurisdiction. In other words,
in these areas DOT has occupied the field. The covered subjects are
listed in § 5125(b)(1) and include definitions and classification of
hazards, any aspect of container filling/closing, handling including
loading/unloading, or marking/labeling of packages, any aspect of
hazmat shipping documents, written incident reporting, and any element of packaging construction, design, or maintenance.
Outside these areas, history has shown most requirements to be
of two types. First, a nonfederal jurisdiction may believe the federal
rules are not stringent enough. This rationale usually fails because
3
4
See DOT rulemaking Docket Nos. HM-112/103.
49 U.S.C. § 5125(g).
19
any person, including a local jurisdiction, can petition DOT for rulemaking to add to the requirements. If, indeed, there is some unique
local circumstance justifying a difference, there are waiver provisions
discussed below.
Second, a nonfederal jurisdiction wants the traffic to go somewhere else. These restrictions can take many forms but usually do not
pass muster because the result of the local restriction is to shunt their
traffic into someone else’s neighborhood. Outright bans, and such so-called Balkanization of
the national system has been declared contrary
to the purposes of a national program.
A version of the “go-away” type of restriction is a routing prescription, usually in the
highway mode, although some jurisdictions
have endeavored to route rail traffic. In terms
of rail routing and other restrictions, it also is
helpful to review two other statutes that have
even stronger preemption provisions -- the Interstate Commerce Commission Termination
Act, 49 U.S.C. § 10501, and the Federal Railroad Safety and Hazardous Materials Transportation Control Act of 1970, 49 U.S.C. §
20106. These are not discussed at length in
this summary.
For highway routing, Congress mandated
creation of a federal standard published by
the Federal Motor Carrier Safety Administration. See 49 U.S.C. §§ 5125(c), 5112(b), and 49 C.F.R. §§
397.61-397.225. In essence, the local routing designation has to be
sanctioned by the state, has to involve public notice to affected jurisdictions, and a rational basis for concluding this route is safer than
alternatives. While many cases arise when localities imperfectly fulfill
this requirement, most arise when localities totally skip it altogether.
Any person aggrieved by a nonfederal restriction on hazmat transportation has options. Administratively, one can ask the Pipeline &
Hazardous Materials Safety Administration (PHMSA) for a preemption determination under § 5125(d) and 49 C.F.R. part 107, subpart
C. Procedures in Subpart C describe what information must appear
in an application and with whom it must be filed. These applications
generally result in a Federal Register notice announcing the request
for a ruling, stating the rationale offered by the requesting party, and
quoting the nonfederal regulation in question. This notice provides
a public comment period, and provision also is made to respond to
comments, although testimony and cross-examination are not involved. The ruling with the agency’s rationale for it is published in
20
the Federal Register.
If the matter involves highway routing, look to the Federal Motor
Carrier Safety Administration (FMCSA) under 49 U.S.C. § 5112(b)
and 49 C.F.R. part 397, subpart E. Judicially, one may ask a court
for a decision, typically the appropriate federal district court for that
region. Many factors weigh in making the correct choice of forum,
including timing, costs, and alternative issues in dispute.
In the past 30 years, PHMSA and FMCSA
have issued dozens of decisions, originally
called “Inconsistency Rulings” and now called
“Preemption Determinations.”5 These rulings are considered final agency action for
purposes of the Administrative Procedures
Act, but the agencies’ own procedures provide
additional mechanisms for administrative appeal or reconsideration. In addition to these
administrative determinations, a number of
courts have addressed the issue, usually giving
substantial deference to prior DOT rulings.6
When establishing these requirements,
Congress also understood that there may be
circumstances when a local rule differing from
the federal rules was necessary and justified.
The statutes, therefore, offer the nonfederal
jurisdictions an option of seeking a waiver of
preemption, under § 5125(e), 49 C.F.R. §§
107.215 and 397.213. These provisions, although developed many years ago, have been used very infrequently,
in my view because the local jurisdiction has to start the process by
admitting that its rule is preempted.
This is not to say there is no room for local regulation. Nondiscriminatory rules, i.e., those that do not single out hazmat traffic,
are within local police powers. In addition, federal grant programs
reward and encourage States that maintain programs of enforcement
of the federal rules.
5
See, e.g., Houston TX Requirements on Storage of Hazardous Materials During
Transportation, Docket No. PHMSA-03-16456 (PD-30(R)), 71 Fed. Reg. 9413, Feb.
23, 2006; District of Columbia Requirements for Highway Routing of Certain Hazardous
Materials, Docket No. FMCSA-2005-20930 (PDA-31(F)), 71 Fed. Reg. 18137, Apr.
10, 2006.
6
See, e.g., National Tank Truck Carriers v. Burke, 608 F.2d 819 (1st Cir.
1990); Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, 991 F.2d 458 (8th Cir. 1993); Southern Pacific Transportation Co. v. Public
Service Commission of Nevada, 909 F.2d 352 (9th Cir. 1990; Colorado Public Utilities
Commission v. Harmon, 951 F.2s 1571 (10th Cir. 1991).
Larry Bierlein’s practice in Washington, DC focuses exclusively on industry issues
involving hazardous materials distribution, including applications for Special Permits, Approvals, Preemption Determinations, rulemaking, interpretations, and defense of enforcement actions. In addition to U.S. agencies such as the Department
of Transportation and EPA, he works closely with the United Nations Committee of
Experts on the Transport of Dangerous Goods and related international codes and
parallel regulatory systems in Canada and Mexico.
FAA HMR Enforcement
continued from page 6
violation of the HMTA to $25,000 and provided a minimum penalty of $250 per violation.3 After Congress recodified the HMTA,
as amended, in 1994, it has been referred to as the Federal hazardous materials transportation law.4 The latest affecting legislation,
the Safe, Accountable, Flexible, Efficient Transportation Equity Act
of 2005: A Legacy for Users (SAFETEA-LU), reauthorized several
transportation programs within the Department of Transportation,
including its hazardous material program.5 SAFETEA-LU raised the
maximum civil penalty that may be assessed for a violation of the
statute or HMR to $50,000 for each violation, except a maximum civil penalty of
$100,000 may be assessed if the violation
results in death, serious illness, or severe
injury to any person, or substantial damage of property. In addition, SAFETEALU provides for the assessment of a $450
civil penalty for each training violation.
FAA Hazmat Jurisdiction
The purpose of the Federal hazardous material transportation law is “to
provide adequate protection against the
risks to life and property inherent in the
transportation of hazardous material in
commerce by improving the regulatory
enforcement authority of the Secretary
of Transportation.6
Congress has authorized the Secretary to prescribe regulations for
the safe transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce.7 The Secretary, in turn,
delegated to the Administrator of the FAA authority to enforce the
Federal hazardous material transportation law and the HMR, with
particular emphasis on the tranportation of hazardous material by
air.8 Similar delegations exist with respect to the other modal administrations of the Department of Transportation (DOT). The FAA’s
jurisdiction regarding the oversight and enforcement of the HMR is
broad, encompassing individuals and entities that offer, accept, and
transport hazardous materials in commerce. The FAA’s oversight includes certain provisions in Titles 14 and 49 of the Code of Federal
Regulations (C.F.R. 14 and 49), which apply to a part 119 certificate
holder’s9 acceptance, rejection, handling, storage incidental to transport, packaging of company material (COMAT), or loading of any
item for transport onboard an aircraft.
FAA certificate holders must comply with the hazmat requirements contained in 14 C.F.R. parts 121, 135, and 145, as appropriate. Certificate holders that meet the definition of a hazmat employer
also must also comply with the training requirements contained in
49 C.F.R. part 171, subpart H. With rare exceptions, all certificate
holders are “hazmat employers.” The definitions of what constitutes
a “hazmat employer” and “hazmat employee” are found at 49 C.F.R.
3
Pub. L. No. 101-615, 104 Stat. 4605.
4
108 Stat. 759, codified at 49 U.S.C. §§ 5107-5127.
5
Pub. L. No. 109-59.
6
49 U.S.C. § 5101.
7
49 U.S.C. § 5102(b).
8
49 C.F.R. §1.47(j).
9
A part 119 certificate holder includes all direct air carriers and most commercial operators.
§ 171.8. Whenever a certificate holder offers hazardous materials for
transportation by air, it must comply with the applicable provisions
of the HMR. The FAA is the only DOT modal administration with
its own \hazmat training regulations. The FAA’s regulations provide
for training requirements additional to those contained in part 172,
subpart H of the HMR.
Prior to the onset of economic airline deregulation, part 119
certificate holders were required to accept hazardous materials as a
condition of their economic operating authority. After deregulation,
however, the decision to accept hazmat
for transportation became a business decision. The term of art “will not carry”
certificate holders became necessary to
describe those cerificate holders that
have legally chosen not to accept hazmat
for transportation by air. The FAA’s hazardous materials training rules under 14
C.F.R. parts 121, 135, and 145 for air
operators do not categorize or classify
hazardous materials.10 The rules are intended to ensure that part 119 certificate
holder employees and representatives
that accept hazardous materials for transportation by air are properly trained.
Part 119 “will not carry” certificate
holder empoyees and representatives are
required to recognize and reject hazmat.
It is up to the part 119 certificate holder
to decide whether it will carry hazmat. The part 119 certificate holder has the discretion to change its policy whether to transport hazmat.
Once the part 119 certificate holder establishes or changes its policy,
the FAA reviews and approves the carrier’s new or modified training program to determine regulatory compliance. Since 49 C.F.R.
175.10(a) conditionally excepts certain items from “the subchapter”
(meaning the HMR requirements), these items are not considered
hazmat and, therefore, can be accepted for transportation by any carrier willing to do so. Concerning “will not carry” part 119 certificate
holders, FAA’s training rules includes a requirement to describe what
may be carried on board the aircraft by passengers and crew members
in accordance with 49 C.F.R. 175.10(a).11
Program Office
The Office of Hazardous Materials—which is a primary component of ASH—develops national policies and has oversight of FAA’s
Hazardous Materials Safety Program. The Office of Hazardous Materials’ responsibilities include the hazmat activities of air carriers,
most commercial operators, repair stations, and shippers. It provides
direction for implementation of policies by FAA’s hazardous materials special agents that perform compliance inspections in each of the
FAA’s regions.
To clearly delineate the Office of Hazardous Materials regulatory
oversight responsibilities and mission, it was reorganized into two divisions: the Compliance and Enforcement Division and the International & Outreach Division. The former focuses on policy activities,
program development, and national implementation and regional
10
11
70 Fed. Reg. 58,796 (Oct. 7, 2005).
See 70 Fed. Reg. at 58,828, Appendix O, Table 2.
21
Table 1 – FAA’s Hazardous Materials
Risk Categories Classifications
Category “A” Maximum Weight
Class 1
Class 2
Class 3
Class 4
Class 5
Class 6
Class 7
Class 8
Explosives: Division 1.1, 1.2, 1.3
Compressed Gases – All 2.1, 2.2 with Subsidiary Risk 5.1 and All 2.3 PIH Zones A-D
Flammable Liquids – PG I, II, and (PIH)
Division 4.1 Flammable Solids PG I, and
Matches
Division 4.2 Spontaneously Combustible
Materials PG I
Division 4.3 Dangerous When Wet PG I
Division 5.1 Oxidizing Liquids and Solids
PG I, II e.g., “Chemical Oxygen Generators”
Division 6.1 Toxic/Poisonous Materials PG
I (PIH)
Cargo Aircraft Only Quantities on Passenger
Aircraft
Corrosive Material Liquid PG I and (PIH)
Forbidden Materials
(See 49 C.F.R. §173.21 & ICAO Technical Instructions)
Forbidden Hazmat listed in Dangerous Goods
(See Table 49 C.F.R.§172.101)
Category “B” Moderate Weight
Class 1
Class 3
Class 4
Class 5
Class 6
Class 7
Class 8
Explosives: Division 1.4, 1.5, 1.6, all compatibility groups
Flammable Liquids – PG III
Division 4.1 Flammable Solids PG II, III
Division 4.2 Spontaneously Combustible
Materials PG II, III
Division 4.3 Dangerous When Wet PG II,
III
Division 5.1 Oxidizing Liquids and Solids
PG III
Division 5.2 Organic Peroxides (Type E, F,
G)
Division 6.1 Toxic/Poisonous Materials PG
I, II (Non-PIH)
Division 6.2 Infectious Substances
Radioactive Materials, yellow label II, white
label I
Liquids PG II, III and Solids PG I, II, III
Category “C” Minimum Weight
Class 2
Class 6
Class 7
Class 9
2.2 Nonflammable Gas
Division 6.1 Toxic/Poisonous Materials PG
III
All other RAM (LSA, LTD QTY, Instruments, and Articles)
Miscellaneous Dangerous Goods (ORM-D
and Consumer Commodity)
Source: FAA’s Compliance and Enforcement Order 2150.3B, p. C-17.
22
coordination strategies concerning HMR enforcement. The latter
represents the FAA before the International Civil Aviation Organization’s Dangerous Goods Panel and the United Nations Subcommittee of Experts on the Transport of Dangerous Goods. Additionally, it will develop implementation policy and program strategies for
harmonizing the HMR with the applicable international hazardous
materials regulations. Further, the International & Outreach Division will coordinate government and industry outreach regarding the
implementation and oversight of the HMR in concert with the Pipeline and Hazardous Materials Safety Administration (PHMSA).
FAA Hazmat Enforcement
As stated above, the Secretary of Transportation delegates enforcement of the HMR to each modal operating administration. As part
of its independent authority, each agency has a different enforcement
and appeals process. FAA’s hazmat enforcement policy is outlined in
14 C.F.R. part 13 and FAA’s Compliance and Enforcement Order,
2150.3B (the “Order”). The Order was updated on October 1, 2007,
to focus FAA’s efforts, in part, on a risk-based approach to enforcement. In accordance with the 14 C.F.R. § 13.11 and the Order, the
FAA may issue administrative actions (Warning Notices or Letters of
Correction) if the FAA determines that the violation of the statute
or regulations does not require legal enforcement action (issuance of
a Notice of Proposed Civil Penalty (NPCP)).12 The Order also provides for either informal action–oral or written counseling–where an
apparent violation is a low safety risk and intentional conduct is not
involved. An NPCP is ordinarily issued where the violator’s conduct
involves a substantial disregard for safety. These cases often involve
undeclared hazardous materials, the release of which can potentially
have a catastrophic effect on safe flight or pose an immediate threat to
the safety of flight. The FAA will pursue the aforementioned actions
only if there is evidence to prove the violation.
The FAA’s hazardous materials safety program strives for nationally
consistent civil penalty sanctions; however, each case must be evaluated independently. Although the Hazardous Materials Sanction
Guidance (see Appendix C of FAA’s Compliance and Enforcement
Order 2150.3B) is designed to promote consistency throughout the
agency, the guidance encourages special agents to apply the facts of
the case to the Sanction Guidance. Under the Sanction Guidance,
the Special Agent evaluates the statutory assessment factors–the nature, circumstances, extent, and gravity of the violation, degree of
culpability, and history of prior violations–found under 49 U.S.C. §
5123(c).13 A civil penalty may be different from one case to another
based on the particular facts and circumstances tof the case, including
the existence of aggravating or mitigating factors.
When evaluating the nature, circumstances, extent, and gravity of the violation, the FAA considers what materials were offered,
transported, or accepted for air transportation. To assist this analysis,
the Sanction Guidance asks a series of questions regarding the type,
quantity, and packaging of the material(s) offered, as well as whether
there was harm to persons or property. The FAA has placed maximum, moderate, and minimum weights to measure each of three risk
categories of hazardous materials classifications; Category “A” materials are given a maximum weight, Category “B” materials are given a
moderate weight, and Category “C” materials are given a minimum
12
The FAA issues an administrative action only if there is evidence to prove
the violation.
13
The remaining statutory factors required to be considered in determining
an appropriate civil penalty are the ability to pay, any affect on the ability to continue
to do business, and other matters that justice requires.
Table 2 - FAA Hazardous Materials Investigations Opened and Closed with Civil Penalty from 1999 - 2007
Year
1999
2000
2001
2002
2003
2004
2005
2006
2007
2,225
2,789
2,114
1,887
2,165
9,742
3,888
2,345
2,219
Cases Closed with
Civil Penalty
540
621
434
453
414
439
598
423
399
Amount Collected
in Millions
$7.76
$7.94
$5.73
$6.63
$7.1
$4.5
$6.9
$4.94
$7.36
Cases Investigated
weight. A maximum, moderate, or minimum weight is assigned to
the answer of each question. Table 1 provides each of the types of
materials that would be placed in each of the three categories.
The Sanction Guidance Matrix (the “Matrix”) considers the violator’s relative culpability. To assist in the analysis and further evaluation of the degree of culpability, the Sanction Guidance poses the
following questions:
• Is the violator the manufacturer of the hazardous material?
• Did someone other than the violator prepare the shipment for
transportation?
• Did the violator reasonably rely on incorrect information from
another source?
• Does the violator have a history of previous hazardous material
regulation violations?14
A maximum, moderate or minimum weight is assigned to the answer of each question. Once all of the questions have been answered,
the weights that have been assigned to each response are evaluated to
determine the final aggregate weight.15 The response to each question
does not have to be equally considered in determining the aggregate
weight of the case. Determining the final aggregate weight is based
on the careful analysis of the statutory factors, facts of the particular
case, and they exercise their discretion. The particular facts dictate
the relative importance of each of the weighting factors in reaching
the final aggregate weight.
The ranges under the “offeror” and “offense” categories of the Matrix reflect the relative statutory factors (culpability of the violator and
the nature, circumstances, extent and gravity of the case) for most
violations. Further analysis of the statutory factors, through application of the questions discussed above, is required to determine the
appropriate sanction within the ranges. FAA personnel then apply
the final aggregate weight to the appropriate Matrix range to determine the recommended sanction amount for each of the eight offense
categories. Absent justification for upward or downward departure
from the ranges, a single penalty amount for each offense category
ordinarily is used to determine the final penalty amount. The offense
categories are as follows: shipping papers, labels, markings, packaging, training, emergency response, release into the environment, and
other.16
14
15
16
FAA’s Compliance and Enforcement Order 2150.3B, p. C-7.
Id. at C-8.
Id. at C-5-9, C-12-13, and C-17.
Under the Matrix there are six offense areas that sit atop the eight
offense categories. Each offense area is assigned different monetary
ranges depending on the severity of the violation encompassed in the
particular offense area. They are: (1) Declared shipments; (2) Undeclared Shipment within hazardous materials quantity limitations;
(3) Undeclared shipment hazmat forbidden on, or exceeds quantity
limits for passenger aircraft; (4) Undeclared shipment forbidden on,
or exceeds quantity limits for, all aircraft; (5) Intentional or deliberate
violation, or other significant aggravation; and (6) Violation results
in death, serious illness, severe injury, or substantial destruction of
property. These categories increase in severity and can range from
$250 to $32,500 per violation. If the violation was deliberate or
caused death or serious illness, the monetary penalty may be assessed
at $50,000 and $100,000 per offense, respectively.17
FAA Enforcement Process
When a determination is made to initiate an investigation, the
Hazardous Materials Special Agent assigned to investigate the matter
ordinarily sends a Letter of Investigation (LOI) to the individual or
business entity involved. The LOI apprises the recipient of the allegations of noncompliance and asks for an explanation of the reasons or
circumstances surrounding the specific issues raised in the LOI. Once
the Special Agent receives a response to the LOI, he/she may request
additional information such as further facts, what corrective action
if any has been initiated, as well as information regarding hazardous
materials training of the employees involved in the noncompliance.
Upon completion of the investigation, the Special Agent forwards
the case to the regional counsel with a recommended civil penalty
based on the guidance established in the Order. The attorney assigned the case reviews the investigative file for legal sufficiency. Prior
to drafting the NPCP, the attorney evaluates the facts, circumstances
and evidence of the case as well as the recommend civil penalty provided by the Special Agent. If legal enforcement is warranted, the
attorney drafts the NPCP. An attachment to the NPCP provides the
alleged violator with a number of options to respond to the NPCP.
The options include accepting a finding of violation and paying the
entire civil penalty stated in the NPCP, submit a written response, or
request an informal conference. If the parties are unable to resolve
the case, the FAA issues a Final Notice of Civil Penalty (Final Notice),
which requires the alleged violator, within 15 days of receipt of the
Final Notice, to pay the proposed civil penalty or an agreed-upon
amount, or request a hearing. If the alleged violator fails to request
a hearing within 15 days of receipt of the Final Notice, the right to
a hearing is forever waived. If the alleged violator timely files a writ17
Id. at C-12-13.
23
ten request for hearing, the FAA files the original complaint with the
Hearing Docket and a copy is served on the person requesting the
hearing.18 The case is then assigned to a DOT Administrative Law
Judge (ALJ) for hearing.
At the hearing, the FAA has the burden of proving its case by a
preponderance of the evidence. At the conclusion of the hearing,
the ALJ will either issue an oral initial decision or will issue a written initial decision shortly thereafter. The parties may appeal the
ALJ’s decision, within prescribed time limits, to the FAA Decisionmaker by filing a notice of appeal with the FAA Hearing Docket. The
party perfects the appeal by filing an appeal brief, within prescribed
time limits, with the FAA Decisionmaker and serves a copy on each
party. The reply brief is filed with the FAA Decisionmaker and a
copy is served on each party. The FAA Decisionmaker reviews the
record, the briefs on appeal, and the oral argument, if any, and issues
a final decision affirming, modifying, or reversing the ALJ’s initial
decision.19 A party other than the FAA may seek judicial review of
the FAA Decisionmaker’s final decision and order, within prescribed
time limits, by filing a petition for review in the United States Court
of Appeals for the District of Columbia Circuit or in the court of
appeals of the United States in which the person resides or has its
principal place of business.20
FAA Inspection and Investigation History
The FAA’s hazardous materials safety program initiated nearly
10,000 inspections per year during 2006 and 2007. Each inspection
focuses on the evaluation of the air carrier, repair station, or shipper’s
compliance with the regulations established within C.F.R. titles 14
and 49. In 2006, FAA’s hazardous materials safety program initiated
9,840 hazardous materials inspections and closed with civil penalty
2,804 hazardous materials cases, averaging 20 cases for each of the
FAA’s 140 agents. In 2007, the hazardous materials safety program
initiated 9,735 hazardous material inspections and closed with civil
penalty 2,276 hazardous materials cases with approximately the same
number of agents.
Table 2 reflects the number of hazardous materials cases opened
and closed with civil penalties. The table also provides a summary of
how much the FAA’s compliance and enforcement program has collected for noncompliance of the hazardous materials regulations and
the hazardous materials training requirements that were established
by the FAA. Although Table 2 provides a summary of cases closed
in each of the years between 1999 and 2007, enforcement cases with
civil penalties are frequently closed in a different year from when they
18
19
20
See 14 C.F.R. §§ 13.16(f )-(h).
See 14 C.F.R. §§ 13.223-13.224, 13.232, and 13.233.
See 49 U.S.C. § 5127.
are opened and in certain instances these cases can take several years.
Civil penalties are not the only tool the FAA’s hazardous materials
safety program uses to address non-compliance. The vast majority of
the hazardous materials investigations initiated by the FAA are closed
with the use of “administrative” enforcement such as warning letters.
As an indirect result of increased security screening of baggage and
cargo, air carriers’ have filed more discrepancy reports required under 49 C.F.R. § 175.31 than ever before in the history of aviation.21
Since its implementation in January 2005, the Suspected Hazardous
Objects Encountered in Screening (SHOES) program has enabled
the FAA’s Office of Hazardous Materials to issue at least 32,542 outreach letters to passengers that attempt to transport undeclared hazardous materials on their person or within their checked baggage.
These outreach letters are provided to passengers that are involved in
“lower risk” types of apparent non-compliance. The SHOES program generates approximately 97% of passenger hazardous materials
violations. Only 3% of the violations involve “higher risk” categories
of hazardous materials and investigations are opened on those incidents.
Another way FAA is implementing more of a risk-based approach
is through the use of Pipeline and Hazardous Materials Safety Administration’s new Hazmat Intelligence Portal (HIP) and its prototype database. This system allows the Department to more easily
search the records of regulated parties, particularly shippers. As this
system is fully implemented, the FAA anticipates that it will enable its
Special Agents enforcing the HMR to obtain a more comprehensive
understanding of the Department’s inspection, enforcement, special
permit, registration, approval and incident records attributed to particular regulated parties.
Conclusion
The FAA’s hazmat enforcement program strives to have full compliance with the regulations by individuals and companies that offer,
accept, and transport hazardous materials to achieve the lowest possible accident rate, and to constantly improve aviation safety. This
can only be achieved by preventing hazardous materials accidents and
incidents aboard aircraft before they occur by decreasing all unnecessary risks to the traveling public and cargo aircraft operations. The
regulated community must comply with the safety regulations to ensure the safety of the American people.
21
49 C.F.R. § 175.31(b) (discrepancy reports are “those involving hazardous
materials which are improperly described, certified, labeled, marked, or packaged in
a manner not ascertainable when acceppted under the provisions of § 175.30(a) …
including packages or baggage which are found to contain hazardous materials subsequent to their being offered and accepted as other than hazardous materials.”).
Christopher J. Bonanti, the Director of the Office of Hazardous Materials for
the Federal Aviation Administration, is responsible for and has oversight of
FAA’s Hazardous Materials Safety Program. Previously, Mr. Bonanti served
as Special Assistant to the Federal Railroad Administrator, as a Congressional Fellow to the U.S. Senate Committee on Commerce, Science and Transportation where he was instrumental in drafting the Hazardous Material
Transportation Security and Safety Reauthorization Act of 2003, as a General Engineer and Investigator-in-Charge with the National Transportation
Safety Board on hazardous materials transportation accidents, and as an
explosives expert in the United States Marine Corps.
24
Hot Rulemakings
continued from page 8
vide a uniform national approach to hazmat rail routing to ensure
that railroads utilize the safest, most secure route that is economically
practicable for the transport of hazmat and preempts any contrary
non-federal regulations.
Specifically, this rule requires railroads to aggregate data on their
shipments of hazmat to create a baseline and then analyze the safety
and security risks along rail routes where that hazmat is transported,
assess alternative routing options, and then make routing decisions
based on those assessments. If railroads are already using the safest
and most secure route, then no routing changes would need to be
made; however, if the analysis indicates that another route should
be used, the railroad would have the choice of switching routes or
upgrading the current
route so that it is then
the safest and most secure route.
The average discounted cost of compliance with this rule
is $16,127 per year for
large and medium-sized
railroads and $2,417
for the twenty percent
of affected small railroads. Quantifying the
benefits of preventing
an accidental or terrorist release is difficult, so
as a baseline the hazmat
rail accident in Graniteville, SC, was used. In
Graniteville, a release
of chlorine in the early
morning hours in a relatively small town resulted in $62.2 million
in injuries and fatalities, $10.5 million in evacuation expenses, $7.1
million in property and environmental damage, and $46 million in
track out-of-service time. Thus, if this rulemaking prevented only
one hazmat release, it could pay for itself many times over.
Design Standards for Pressurized Rail Tank Cars, 74 Fed. Reg. 1770
(Jan. 13, 2008)
This rule addresses increasing safety for the hazmat heavy hitters
known as poisonous by inhalation (PIH) materials. Chlorine and
anhydrous ammonia are the two PIH materials that make up the vast
majority of PIH rail traffic. Chlorine is used in water treatment and
anhydrous ammonia is used as an agricultural fertilizer, so until less
hazardous substitutes are found, our nation’s current way of life requires that these materials continued to be shipped in large quantities
throughout the country. In the face of skyrocketing insurance rates
for PIH shipments, the rail industry began developing requirements
for more impact-resistant PIH tank cars. While these cars increased
safety, FRA hoped to develop a car utilizing next-generation technology that provided considerably larger safety gains, so it began work
on this rulemaking to mandate those cars. Reaction to this rule’s
resulting notice of proposed rulemaking (NPRM) was positive across
the board in relation to its goal for safer PIH tank cars, but the rule’s
requirements were staunchly opposed by all facets of industry as not
being technologically feasible at this time. Being at an impasse between where FRA wanted to be and industry’s need for safer cars to
replace aging cars and expand business, industry submitted petitions
for an interim standard
which would provide
safer PIH cars today
and serve as a bridge to
the future next-generation standard.
This final rule drops
the technical approach
of the NPRM and
adopts in large part the
petitions from industry relating to designs
for PIH tank cars. The
new tank cars will be
built with current technology, but use thicker
steel, incorporate newly-developed designs
to provide protection
to the top fittings and
valves of the tank cars,
and allow for commodity-specific cars that can tailor safety enhancements more effectively. The rule also provides for an increase of the
allowable gross weight of tank cars and imposes a 50 mph speed limit
for trains hauling PIH tank cars. Importantly for the financial state
of the industry, cars built to this rule’s standards will also be granted a
service life of 20 years, no matter when the next-generation standard
is implemented, ensuring industry’s ability to recover its investment
in these cars.
The significant components of the cost of this rule include $29.8
million in increased parts and labor costs to build these new tank
cars over the cost of current tank cars, $18.5 million in increased fuel
costs to haul the heavier new cars, and $30.8 million as a result of the
logistics involved in complying with the 50 mph speed restrictions
for trains hauling PIH materials. To be a cost-effective rule, the new
tank cars must be only 64 percent effective in preventing releases,
which equates to a $2.4 million yearly safety benefit.
Brett Jortland is a regulatory attorney specializing in the areas
of rail, pipelines, and hazardous materials in the Department’s
Office of General Counsel. His prior work experience includes a
Presidential Management Fellowship and service as a U.S. Army
Officer. You may contact Brett at [email protected].
25
Bullets
in the Blue Sky
continued from page 6
commercial aircraft, several conditions must be met: (a) the officer
must be a federal LEO or a full-time state, county, or municipal LEO
directly employed by a government agency; (b) the LEO must be
sworn and commissioned to enforce criminal or immigration statues;
(c) the employing government agency must authorize the LEO to
carry the firearm onboard the flight; (d) the LEO must complete
a TSA required training course, “Law Enforcement Officers Flying
Armed”; offered through a variety of federal, state,
and local LEO training programs; and (e) the LEO
must have a need to carry the firearm on board the
aircraft. Need may be based on a number of factors, including whether the LEO is: on protective
duty (i.e. assigned to a principal or advanced team);
conducting a hazardous surveillance operation; on
official travel and required to report to the new location armed and prepared for duty; employed as a
federal LEO with an agency-wide policy supporting
armed air travel; and is controlling a prisoner in accordance with Part 1544.221.
Armed LEOs must follow certain procedures
when carrying an accessible firearm on board a commercial aircraft. For instance, an armed LEO must
notify the airline at least one hour prior to take-off,
or as soon as possible in case of an emergency and
identify himself to the airline by presenting credentials that include a full-face picture, the signature of
the armed LEO, and the signature of the authorizing official of the
agency, or the official seal of the agency; a badge or shield alone is not
sufficient. If the armed LEO is a state/county/municipal officer, he or
she must present an original letter of authorization signed by an authorizing official from his or her agency. If escorting a foreign official,
a State Department notification will be sufficient.
In addition to the check-in procedures, armed LEOs may not consume alcohol on the flight or within the 8 hours prior to boarding the
flight. Also, armed LEOs must keep the firearm concealed and out of
view, and on their person or immediate reach unless they are in uniform, in which case the firearm may be visible. No armed LEO may
place his or her firearm in an overhead bin at any time. If a Federal
Air Marshall is on board the same flight, he or she will contact the
armed LEO directly.
Transporting Prisoners on Commercial Aircrafts
When escorting prisoners aboard commercial aircraft, the LEO
must notify the airline at least 24 hours in advance or, if that is not
possible, as early as possible before the flight departure.6 Airlines
must be given the prisoner’s name and the flight on which he or she
will be taken. All prisoners and their escorting LEOs must arrive for
check-in at least one hour in advance of the flight. Also, airlines must
6
49 C.F.R. § 1544.221 (e)(l).
receive a guarantee that the prisoners have been fully searched for
anything that may be used as a weapon.
In addition, the airline must be told whether the prisoner is “high
risk” or “low risk” as determined by the escorting agency. To be
deemed “high risk,” a prisoner must be an “exceptional escape risk”
and must be charged with a violent crime. All other prisoners are
considered “low risk.” Non-violent detainees of the Immigration and
Naturalization Service are not covered under either
category.
Only one “high risk” prisoner may be placed
on any flight unless otherwise authorized by TSA.
Each “high risk” prisoner must be escorted by at
least two armed LEOs, neither of whom may be
escorting another prisoner on the same flight.
“Low risk” prisoners require at least one armed
LEO escort for all flights less than four hours in
length, and a single armed LEO may not control
more than two “low risk” prisoners on such flights.
For flights over four hours, a “low risk” prisoner
must be escorted by two armed LEOs, neither of
whom may escort another prisoner on the flight.
When on board an aircraft, armed LEO escorts
must sit between the prisoner they are escorting
and the aisle and must accompany the prisoner at
all times. When possible, prisoners and escorts will
be boarded before all other boarding passengers
and will be deplaned after all other deplaning passengers. Further,
when possible, prisoners and armed LEO escorts will be seated in the
rearmost seats in the passenger cabin, and in no instances may they
be seated in a lounge area or across from an exit. While on board
planes, prisoners must have their hands restrained from full use at all
times, and may not wear leg irons. Prisoners may only be given food,
beverages, and eating utensils when the escorting officer approves,
and prisoners may never be served alcohol while on board any commercial aircraft.
It should be noted that the FAA grants the pilot in command of an
aircraft the final authority as to the operation on his aircraft.7 While
not specifically addressed in the regulation, final operational authority may allow pilots in command to reject the carriage of prisoners in
situations where the pilot determines the safety of the aircraft may be
compromised by their being on board during flight.
Conclusion
Any local or national law enforcement officer planning to carry
a firearm onto an aircraft should become familiarized with the applicable regulations governing such activities. The rules intend to
protect the traveling public and other officers of the law who may also
be handling firearms onboard.
7
14 C.F.R. § 91.3.
Thomas Lehrich is chief counsel to the Inspector General, U.S. Department
of Transportation. The author thanks Jeff Luoma, an intern in the Office of
Inspector General and a third year law student at the Georgetown University Law Center.
26
Reverse Logistics
continued from page 7
Reverse Logistics
Regular logistics can be difficult; reverse logistics is even more so.1
Companies have awoken to a startling statistic: product returns cost
U.S. manufacturers and retailers $100 billion every year in lost sales,
transportation, handling, processing, and disposal.2 Reverse logistics costs account for approximately 4 percent of total logistics costs,
which, when applied to gross domestic production, estimate to be
approximately one-half percent of the nation’s total Gross Domestic
Product, or more than $58 billion in 2004.3 In the past, most companies did not pay much attention to reverse logistics. Companies
can no longer ignore reverse logistics due to its significant financial
impact on their profits.
To understand reverse logistics, one must initially understand logistics. Logistics is the process of planning, implementing, and controlling the efficient, cost-effective flow of raw materials, in-process
inventory, finished goods, and related information from the point of
origin to the point of consumption for the purpose of conforming to
customer requirements.4 It is often referred to as the forward supply
chain, which involves transporting the product from the manufacturer to the retailer. In contrast, reverse logistics is defined as the
process of planning, implementing, and controlling the efficient, cost
effective flow of raw materials, in-process inventory, finished goods,
and related information from the point of consumption to the point
of origin for the purpose of recapturing value or proper disposal.5
It includes processing returned merchandise due to damage, seasonal inventory, restock, salvage, recalls, and excess inventory, as well
as packaging and shipping materials from the end user or reseller.6
Companies, especially retail stores, have always had elaborate forward supply chains due to their desire to deliver the product to the
consumer to maximize profits. Retail stores now realize that more
attention must be devoted to reverse logistics processes. To remain
competitive and promote customer service, retail stores have created
very liberal return policies, creating a problem when the returned
item could be considered a hazardous material.
Reverse Logistics and Hazardous Materials
Retail stores have relatively few concerns with hazardous materials in their retail business supply chains, because they may ship
goods under the consumer commodity exception to the HMRs. The
HMRs define a “consumer commodity” as a material that is packaged
and distributed in a form intended or suitable for sale through retail
sales agencies or instrumentalities for consumption by individuals for
purposes of personal care or household use. This term also includes
drugs and medicines.7 In other words, the HMRs provide an exception to unopened packages that are ready for sale to a consumer.
However, once the package is opened, it may no longer fall within
1
Bill DiBenedetto, Reverse Logistics: Be Prepared, 9/3/07 J. Com. (Pg. Unavail. Online) 2007 WLNR 19191183.
2
David Blanchard, Supply Chains Also Work in Reverse, 5/1/07 Indus. Wk.
48, 2007 WLNR 11754949.
3
Bill DiBenedetto, Widespread Product Recalls Stretch Reverse Logistics Networks, 9/10/07 Pac. Shipper (Pg. Unavail. Online) 2007 WLNR 17723990.
4
Dale S. Rogers & Ronald S. Tibben-Lembke, Going Backwards: Reverse
Logistics Trends and Practices 2 (Reverse Logistics Executive Council 1998).
5
Id.
6
David Blanchard, At a Glance: Reverse Logistics, 5/1/07 Indus. Wk. 48,
2007 WLNR 9263591.
7
49 C.F.R. § 171.8.
the purview of the consumer commodity exception. A package that
met the consumer commodity definition when purchased which has
been removed from its original outer packaging, opened and partially or fully used, may still qualify as a consumer commodity as
long as the applicable packaging requirements in Part 173 for limited
quantity and consumer commodity materials are met.8 An example
of a consumer commodity that has been returned to the originator
is a container of pharmaceuticals that has been removed from the
original outer packaging, placed into a drum and shipped as a hazardous waste to a disposal facility. The rule is explained in PHMSA
Interpretation letter 08-0073, dated May 20, 2008: Exceptions for
shipment of a material described as “Waste Consumer Commodity,
ORM-D” are provided in §173.156. Strong outer packagings, the
marking requirements specified in Part 172 of the HMR, and the 30
kg (66 pounds) gross weight limitations are not required for materials classed as ORM-D when: (1) unitized in cages, carts, boxes or
similar overpacks; (2) transported by rail, private or contract motor
carrier, or common carrier in a vehicle under exclusive use for such
service; and (3) transported to or from a manufacturer, a distribution
center, or a retail outlet, or transported to a disposal facility from
one offerer.9 Packages may even be considered hazardous waste under the Environmental Protections Agency’s Resource, Conservation
and Recovery Act and still be considered a consumer commodity.
A consumer commoditybeyond its stock expiration date and being
transported for disposal may continue to be described as “Consumer
commodity, ORM-D” or, if meeting the definition of a hazardous
waste, “Waste Consumer commodity, ORM-D.”10
If the consumer commodity exception does not apply, the package
is considered fully regulated (a substance or material that the Secretary of Transportation has determined is posing an unreasonable risk
to health, safety, and property when transported in commerce, and
has designated as hazardous under section 5103 of Federal hazardous materials transportation law (49 U.S.C. § 5103)). For example,
as stated in PHMSA Interpretation letter 06-0152, dated August 9,
2006, a shipment of damaged, defective, or leaking consumer commodities of various hazard classes transported from retail outlets to
a central distribution center for reclamation, recycling or other appropriate usemay not be shipped in zip-loc bags with absorbent material and then unitized in rigid plastic totes with interlocking lids,
pursuant to §173.156(b)(1)(i). Packagings unable to meet the general packaging requirements in Part 173, Subpart B are ineligible for
transportation.11
A recent example in this area occurred when PHMSA investigators responded to a complaint that was reported by state environmental officials. A retail store’s liberal return policy allowed customers to
return any item. The retail store accepted the returned item and sent
it to its regional return center for processing. The PHMSA investigators discovered that the return was improperly packaged, marked,
and mixed together with other non-hazmat returns. This problem
appears rampant not only with this particular retail establishment,
8
Interpretation letter from PHMSA, 08-219, dated July 22, 1997 (on file
with author).
9
The PHMSA Website, http://www.phmsa.dot.gov/portal/site/PHMSA/
menuitem.ebdc7a8a7e39f2e55cf2031050248a0c/?vgnextoid=2f142d7dd210a110Vg
nVCM1000001ecb7898RCRD (last visited Dec. 9, 2008).
10
Interpretation letter from PHMSA, 96-1010, dated December 9, 1996 (on
file with author).
11
The PHMSA Website, http://www.phmsa.dot.gov/portal/site/PHMSA/
menuitem.ebdc7a8a7e39f2e55cf2031050248a0c/?vgnextoid=a71bc0515d544110Vg
nVCM1000009ed07898RCRD ((last visited Dec. 9, 2008).
27
but throughout the entire retail industry. PHMSA’s objective is safety
and compliance with the HMRs. Rather than proceed with the traditional enforcement case, PHMSA decided it would be more beneficial to the safety of the industry and the traveling public to work
with this particular retail establishment rather than pursuing a civil
penalty case against it. The retail store in the above example has been
placed into PHMSA’s newest program, the Systems Integrity Safety
Program.
The Systems Integrity Safety Program
The Systems Integrity Safety Program (SISP)–developed by the
PHMSA Office of Hazardous Materials Enforcement (OHME) to
enhance and improve safety and security outcomes thru stakeholder
collaborations—is a risk-based enforcement program allowing PHMSA to: prioritize who is inspected, what avenues are explored with the
regulated entity to bring about compliance, and how business data is
reviewed. PHMSA’s target company for SISP is the company posing
the greatest risk to transportation safety and security.12
SISP serves as an alternative to the traditional enforcement process; PHMSA will provide in-depth analyses, observations, and cooperative follow-up investigations to identify the root causes of the
company’s safety problems. Through the agreement, SISP will encourage continuous improvement and quality assurance programs to
ensure sustained compliance and improved safety performance. SISP
is designed to achieve PHMSA’s goal of enhancing the safe transportation of hazardous materials while collaborating with its stakeholders to achieve compliance.13
PHMSA identifies companies as candidates for SISP based on a
history of non-compliance and other indications of risk. The SISP
candidate company would normally be the subject of a traditional enforcement inspection. However, it will be offered the unique opportunity to participate in SISP to ensure better compliance through the
implementation of safety processes. Participation in SISP is entirely
voluntary. The decision of any party not to participate in SISP is not
a selection factor for enforcement inspections; however, a decision
not to participate will return that party to the traditional enforcement inspection pool.14
After PHMSA identifies the SISP candidate company and the
company accepts, they will execute a SISP Agreement identifying
three phases. The first “free consultation” phase involves the SISP
investigator providing data analysis of the company’s comprehensive
systems information in order to identify the safety problems. The
second phase will involve site visits, interviews, and implementation
of corrective action. The third phase is designed to provide long-term
solutions to ensure continued compliance and safety.15 These phases
are further discussed below.
The information gathered during the SISP assessment may be
used to initiate separate investigations of third parties associated with
the SISP company. PHMSA will not take enforcement action against
a third party based solely on observations made during the assessment
phase, but will use the information that it gathers to gain insight into
the business processes of the regulated community and to develop
and implement PHMSA’s future regulatory activities.16
Any violations discovered during the terms of the SISP Agree12
The PHMSA website, http://www.phmsa.dot.gov/hazmat/enforcement/
programs (last visited Nov. 28, 2008).
13
Id.
14
Id.
15
Id.
16
Id.
28
ment will not be subject to any enforcement actions if the participant
comes into full compliance with the HMRs. If there are any willful
violations of the HMRs, or violations that present an imminent danger, the SISP Agreement will be terminated. Once the SISP Agreement has terminated, any violations may be subject to enforcement
action. Participation in SISP is limited to specific eligibility criteria
to ensure maximum efficiency of agency resources.
A person (49 C.F.R. § 171.8) must meet at least one of the following SISP criteria within the prior three (3) year period:
(1) More than 50 hazardous materials incidents of a Section
172.504 Table 2 material in non-bulk packaging;
(2) More than 3 hazardous materials incidents of a Section
172.504 Table 2 material in an intermediate bulk or portable tank
packaging;
(3) More than 1 hazardous materials incidents of a Section
172.504 Table 1 material in a packaging other than a cargo tank motor vehicle or railroad tank car;
(4) More than 1 “serious incident” as defined by Section 171.8
or any hazardous material in a packaging other than a cargo tank motor vehicle or railroad tank car; or
(5) Has been ordered or recommended by PHMSA to perform
a safety recall of a DOT specification, UN Standard, or DOT Special
Permit packaging.
A person meets these criteria irrespective of whether it was directly
or indirectly involved. For example, the carrier, the freight forwarder
and the original shipper could all be identified with a hazardous material incident. In addition, a person is eligible if it:
(6) Is identified through adverse trends based on data analysis of
accidents and/or investigations, or
(7) Has more than three (3) separate closed PHMSA civil enforcement case actions or five (5) separate closed PHMSA enforcement
actions and/or Warning Letters within the prior five (5) year period.
PHMSA will use the following criteria to prioritize the entities
meeting the eligibility criteria:
(1) Regulated entity meets the requirements of more than one
eligibility criteria;
(2) Regulated entity’s operations include multiple facilities;
(3) Documented OHME investigations identifying safety related trends;
(4) Regulated entity is engaged in high risk/high consequence
functions relating to the transportation of hazardous materials;
(5) Regulated entity is registered as a shipper of TIH, radioactive, and/or explosive materials; and
(6) Resource availability.17
The SISP program or SISP Agreement does not authorize noncompliance activity or allow transportation in violation of the HMRs.
The SISP Agreement describes the basic framework for participation
in the program, but is designed to give both parties flexibility as activities under the agreement progress. Accordingly, a minimum of
three (3) addenda to the SISP Agreement are contemplated to detail
the requirements and responsibilities of each party. These addenda
will be negotiated between PHMSA and the participant. An addendum will be created at the beginning of each of three phases.
In Phase 1, PHMSA will discuss the basis for the person’s
selection to participate in the program. Based on that information,
PHMSA and the person will identify the documents and informa17
Id.
tion PHMSA investigators need to conduct an initial analysis of the
participant’s systems (e.g., operations, quality assurance). The Phase
1 Addendum will detail the information the person will provide to
PHMSA and will set timetables for the production and the analysis
of that information.
Under Phase 2, PHMSA and the person will cooperatively determine sites (facilities, locations) for inspection based on the probable causes of the person’s transportation safety problems identified
in Phase 1. The sites for inspection will be identified in the Phase 2
Addendum. Phase 2 may be an iterative process and may require the
adoption of multiple addenda. Site visits will provide the opportunity for the person and PHMSA to observe jointly the current operations and any improvements resulting from prior site visits. PHMSA
will conduct an exit briefing following each site visit and will identify
any probable violations. PHMSA will also provide feedback regarding quality assurance items and best business practices.
PHMSA will prepare in Phase 3 a recommendation report summarizing its findings throughout the Agreement. In addition, PHM-
SA will suggest actions the person could take to ensure continued
compliance with the Hazardous Materials Regulations. PHMSA
may also suggest actions the person could take that would promote
safety beyond the minimum regulatory requirements; however, there
is no obligation to implement the latter actions.18
Conclusion
Reverse logistics has grown in importance to the transportation
industry, especially with major retail stores. The competitive market
demands improved customer service, which means that retail stores
must receive returned items that they would not normally accept. As
an alternative to the traditional enforcement process, PHMSA created the innovative SISP program, intending to assist participants
by offering guidance and instruction towards HMR compliance.
PHMSA may consider a future rulemaking on reverse logistics and
hazardous materials.
18
Id.
Shawn Wolsey is an Attorney-Advisor for the Hazardous Materials Safety
Division for U.S. DOT’s Pipeline and Hazardous Materials Safety Administration, Washington, DC. Mr. Wolsey is one of seven attorneys responsible for
the national enforcement and adjudication of hazardous materials regulatory violations, the exceptions and approvals program, and security issues
related to the movement of hazmat in commerce.
Hot Litigation
continued from page 8
ever, the statute also recognizes the “concurrent power and duty of
both Federal and state courts to administer the rights conferred by
the statute . . . .” Minneapolis & St. Louis Ry. v. Bombolis, 241 U.S.
211, 218 (1916). And, as the Ohio Supreme Court observed, “FELA
cases adjudicated in state courts are subject to state procedural rules.”
As the United States’ amicus brief pointed out, this presupposes, that
procedures will differ as between FELA cases brought in State courts
and those brought in Federal courts, and that State procedural differences are not preempted by Federal law unless the State procedures in
application impose what amounts to more onerous substantive standards than are applicable in Federal courts. Our brief concluded that
such was not the case concerning the Ohio statute, and that imposing a prioritizing system on asbestos claims is not only procedural in
nature, but also is consistent with an analogous prioritizing system
imposed by Federal courts when they adjudicate FELA claims.
The United States’ amicus brief is available at:
http://www.usdoj.gov/osg/briefs/2008/2pet/6invit/2007-1152.
pet.ami.inv.pdf
Railroads Seek Supreme Court Review of Eighth Circuit’s Decision
Upholding Constitutionality of Amendments to Federal Rail Safety Act
On January 8, a petition for certiorari was filed in Canadian Pacific
Railroad Co. v. Lundeen (Supreme Court Cert. Petition No. 08-871),
seeking review of the decision of the U.S. Court of Appeals for the
Eighth Circuit in Lundeen v. Canadian Pacific Railway Co. (8th Cir.
04-03220). The Eighth Circuit’s 2 to 1 decision upheld the constitutionality of newly-revised provisions of the Federal Railroad Safety
Act (FRSA) clarifying the scope of Federal rail preemption.
The Eighth Circuit sought the views of the United States, and,
rather than filing an amicus brief the Federal government intervened
in the case and argued in support of the Constitutionality of the statutory enactment.
The statutory provisions, which previously had been held unconstitutional by a Minnesota district court based on separation of powers concerns, amends the preemption provisions of the FRSA to clarify that even in circumstances where the Department has preempted
State rail safety jurisdiction, a private action seeking damages may
nonetheless be brought alleging that a railroad violated the Federal
standard. On October 10 the Eighth Circuit denied a rehearing motion, again with one dissent.
The basis for the district court’s decision that the statute is unconstitutional relates to the fact that it applies retroactively to the date
of the 2002 Minot, North Dakota derailment, and specifically was
aimed at reversing prior decisions in the district court and the U.S.
Court of Appeals for the Eighth Circuit, which had held that any actions seeking damages related to the derailment in which hazardous
gasses were released were preempted by Federal law even if it could be
shown that the railroad had failed to adhere to the required Federal
safety standards. In reversing the district court decision the Eighth
Circuit agreed with the views expressed by the United States last October that the statute is constitutional and does not attempt to reverse
a final judicial decision.
Oppositions to the certiorari petition by the respondents and the
United States are due to be filed in mid-February.
The Eighth Circuit’s decision is available at the following site.
http://www.ca8.uscourts.gov/opinions/opinions.html
(After the site loads, then search for “Lundeen” in the “party
name” search field.)
29
Supreme Court Will Decide Alaska Tonnage Clause Case
On December 12, the Supreme Court granted certiorari in Polar
Tankers v. Valdez, Alaska (Supreme Court No. 08-310). The petition
seeks review of a decision by the Supreme Court of Alaska upholding
a tax imposed by the City of Valdez on tanker vessels serving the port.
Petitioner Polar Tankers argues that the tax is unconstitutional under
the Tonnage Clause and the Commerce Clause of the Constitution
for two basic reasons.
First, through a series of exemptions and alternative tax structures
that shield other forms of property from the City’s personal property tax, Polar Tanker argues that the Valdez tax discriminates against
tanker vessels since it apparently applies only, or virtually only, to
such vessels. As such it does not appear to be a legitimate property
tax. Rather, Polar Tanker argues, it is a tax on tonnage masquerading
as a personal property tax.
Second, through the use of an expansive apportionment formula
the City, it is argued, in effect, imposes the tax on tanker vessels for
days as to which those vessels are not using, and have no nexus to,
the Valdez port facilities. Polar Tankers argues that that approach is
contrary to principles of fair apportionment and violates the Tonnage
Clause and the Commerce Clause for that reason as well.
The Tonnage Clause of the Constitution, Art. I, § 10, cl. 2, provides that “No State shall, without the Consent of Congress, lay any
Duty of Tonnage.” As Polar Tankers points out in its brief, the Tonnage Clause supplements the Import-Export Clause, which denies
States the authority to impose taxes or duties on imports or exports.
As such, the Tonnage Clause is broad enough to preclude a State from
collecting as a vessel charge that which it is also precluded from collecting as a tax or duty imposed on an import or export. Clyde Mallory Lines v. Alabama, 296 U.S. 261, 265-66 (1935) (“the prohibition
against tonnage duties has been deemed to embrace all taxes and duties regardless of their name or form, and even though not measured
by the tonnage of the vessel, which operate to impose a charge for the
privilege of entering, trading in, or lying in a port”).
The attempt by the City of Valdez to secure tax revenue from the
tanker fleet that utilizes its harbor for loading petroleum shipments
is generically a recurring transportation problem. Historically, States
and localities have often attempted to treat the carriers that deliver
the nation’s passengers and goods as captive audiences for purposes of
local taxation policies, particularly in the area of discriminatory personal property taxation. Those practices, both in the maritime sector
and in other transportation sectors, have prompted both statutory
provisions and judicial holdings founded on Constitutional provisions, which collectively recognize that States and localities cannot be
allowed to engage in unfair or discriminatory taxation of the instrumentalities of interstate commerce.
Polar Tanker’s brief on the merits was filed with the Court on
February 2. The City of Valdez should be filing their brief in early
March.
United States Files Amicus Brief Challenging California Ports’ Mandatory Concession Agreements
On October 20, the United States filed an amicus brief in support
of the American Trucking Association in American Trucking Ass’ns. v.
City of Los Angeles (9th Cir. No. 08-56503). The litigation seeks to
halt implementation of mandatory concession agreements for motor
carriers serving the Ports of Long Beach and Los Angeles.
ATA challenges the legality of the local orders instructing the ports
to deny access to any drayage truck if the operator has not entered
into an approved concession agreement. The State of California, the
National Industrial Transportation League, and the National Association of Waterfront Employers also submitted amicus briefs, while the
Natural Resources Defense Council, the Sierra Club, and the Coalition for Clean Air have joined as defendant-intervenors.
The United States’ amicus brief agrees that the concession agreements are preempted under the Federal Aviation Administration Authorization Act (“FAAAA”), which generally prohibits State or local
regulations “related to a price, route, or service of any motor carrier.”
49 U.S.C. § 14501(c)(2)(A). The United States rejected the cities’
argument that the agreements fall within the statute’s public safety
exception to the prohibition on State regulation. The United States
also relied on the Supreme Court’s expansive holding in Rowe v. New
Hampshire Motor Transport Ass’n, 128 S. Ct. 989 (2008), in support
of the argument that the public health purpose raised by the ports
does not fall within the safety exception of the preemption statute.
The Ninth Circuit has scheduled oral argument for March 4, in
Pasadena, California.
In a related action, the Federal Maritime Commission issued an
order administratively determining that the two ports likely violated
the Shipping Act of 1984 by agreeing to mandate that motor carriers
obtain port-issued access licenses, a requirement that the Commission
concluded was concerted activity that illegally discriminated against
the carriers. As contemplated under the Shipping Act, the FMC filed
a motion for preliminary injunction in the U.S. District Court for
the District of Columbia on November 17, 2008 asking the court to
enjoin the effectiveness of the agreement filed with the Commission
by the two ports. Argument was heard on December 5.
Dale Andrews is Deputy Assistant General Counsel for Litigation at the U.S.
Department of Transportation, a position he has held for the past 18 years.
Prior to joining the Department he was in private practice specializing in
transportation law.
30
Hazmat Security
continued from page 7
transportation security across all modes. After the 9/11 terrorists had
transformed innocuous passenger aircraft into lethal missiles, our government came to view sea containers and other seemingly harmless
conveyances as weapons delivery systems. We must now acknowledge
a new threat vector targeting chemical infrastructure vulnerabilities.5
In addition to hazardous material safety, we must now also be concerned with its security.6
What began in 1975 as a federal effort to prevent accidents must
now also address the risk of asymmetric attack. Our government
recognizes that we must now quickly develop a new regulatory regime
concerning new threats to old hazards. In light of perceived imminent threats, the rules may come fast, and they are likely to make
unprecedented demands on daily business processes.
Thus began a massive federal effort to protect the transportation
infrastructure from asymmetric attack. While the first efforts began most immediately with securing scheduled passenger air travel,7
Congress also established a new cabinet department charged with
(among other duties) protecting all modes of transportation from
such attacks.8
Traditionally, DOT has been responsible for hazmat regulation
since 1975. The federal government initially responded to the attacks
by reorganizing the nation’s security infrastructure. In the midst of
this bureaucratic shell game, debate ensued as to whether DOT or
the U.S. Department of Homeland Security (DHS) should also take
the lead in protecting the public against asymmetric hazmat attacks.
Originally agreed upon by a Memorandum of Understanding on
Roles and Responsibilities signed by both departments on September 28, 2004, and later codified by legislation, the responsibility to
protect dangerous goods against terrorist intervention has been assigned to the DHS, leaving the traditional hazmat regulatory duties
and authority with DOT.9 At this time, it is not clear whether this
bifurcation of institutional roles will lead to inconsistent or duplicative demands on hazmat transporters.
Jurisdictional Overlap
This presumably neat dissection of safety and security powers,
5
The term “threat vector” denotes the path or tool that a person uses to
reach a target. While this is a concept more associated with military thinking, this article uses the term as it has been adopted by the U.S. Department of Homeland Security.
Michael Chertoff, Sec’y, U.S. Dept. of Homeland Security, Remarks at the National
Marine Manufacturers Association American Boating Congress (Apr. 28, 2008); Siobhan Chapman and Martin Veitch, Homeland Security Undersecretary Defends Security
Record,” Computerworld, October 28, 2008.
6
“Safety” has been used to describe dangers inherent in the materials themselves without intervention by anyone acting with harmful intent. The hazardous material statutes and regulations are generally referred to as “safety” rules.
“Security,” on the other hand, has referred in this context to dangers extrinsic to
the materials hauled – a terrorist’s intentional and malicious use of a hazmat’s inherently dangerous properties. In contrast to decades of hazardous materials “safety”
incidents, there have been no recorded attacks on hazmat freight movements. Nevertheless, concern runs high – among agency officials and the public – that the perceived
terrorist threat has rendered some hazmat moves, particularly via rail and truck, to be
viewed as a target of opportunity for asymmetric attacks.
7
Aviation and Transportation Security Act of 2001, Pub. L. No. 107-71,
115 Stat. 597 (2001).
8
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135
(2002).
9
Implementing Recommendations of the 9/11 Commission Act of 2007,
Pub. L. No. 110-53, 121 Stat. 266 (2007). The Act directs the Secretary of Homeland
Security to consult with the Secretary of Transportation to “determine” what material
“pose[s] a significant risk to national security while being transported in commerce due
to the potential use of the material in an act of terrorism.” Id., at § 1501(13).
however, has not prevented the issue from reaching the courts. For
instance, a Washington, D.C. 2005 ordinance banning certain “ultrahazardous materials” (defined to include chlorine, explosives, flammable and poisonous gases) from transport by rail within 2.2 miles
of “iconic” national symbols like the United State Capitol Building
drew the most public attention. A rail carrier of hazardous materials,
CSX Transportation, Inc. (CSXT), sought a preliminary injunction
against the ordinance. The U.S. Court of Appeals for District of
Columbia Circuit reversed the district court’s denial of the injunction
and remanded the case, directing the district court to enter a preliminary injunction. The case is now pending with the district court.
Another example of the conflict between safety and security concerns lies in American Trucking Associations, Inc. v. City of Los Angeles, in which a federal district court in California heard a challenge
by the American Trucking Associations (ATA) seeking a preliminary
injunction against the Ports of Los Angeles and Long Beach.10 A
concession agreement between the ATA and the Ports required that,
inter alia, each truck driver with port access to have a Transportation
Worker Identity Card (TWIC) issued by the Transportation Security
Administration. The district court addressed the question of whether
security concerns analogous to the concerns identified by the Ports
fall within the Federal Aviation Administration Authorization Act’s
(FAAA) so-called “safety exception” – which states that the preemptive effect of the applicable statute “shall not restrict the safety regulatory authority of a State which respect to motor vehicles.”11 According to the court, “there is a significant probability that the concession
agreements fall under the safety exception to the FAAA, and that they
may therefore be saved from preemption.”
A third case concerned a citizens group’s challenge to the U.S.
Nuclear Regulatory Commission’s (NRC) issuance of an environmental impact statement (EIS) relating to a major addition to a
nuclear power facility. The citizens group argued that the EIS must
analyze and account for potential assymetmric attacks on the nuclear
power facility in question. NRC argued that the EIS need not take
such threats into account, since the legislation mandating the EIS,
the National Environmental Policy Act of 1969 (NEPA),12 did not
contemplate the threat vector of intentional terrorist intervention.13
Nevertheless, the U.S. Court of Appeals for the 9th Circuit granted
the group’s petition, requiring the NRC to consider this threat vector
while developing the subject EIS.14 While the court did not explicitly distinguish between the parties’ safety and security concerns, the
court did recognize what could be reasonably anticipated before and
after the events of 9/11. Ultimately, the court determined that the
environmental harm caused is at issue regardless of its threat vector
source.
Resulting Complications
While a hazmat transporter or shipper must normally be cogni10
577 F. Supp. 2d 1110, 1115 (C.D. Cal. Sept. 9, 2008).
11
49 U.S.C. § 14501(c)(2)(A).
12
Pub. L. No. 91-190, 83 Stat. 852 (1970), as amended by Pub. L. 94-52, 89
Stat. 258 (1975).
13
See In the Matter of Pacific Gas and Electric Company, 57 N.R.C. 1 (2003).
14
San Luis Obispo Mothers for Peace v. Nuclear Reg. Comm’n, 449 F.3d 1016,
1035 (9th Cir. 2006) (“because we conclude that the NRC’s determination that NEPA
does not require a consideration of the environmental impact of terrorist attacks does
not satisfy reasonableness review, we hold that the [environmental assessment] prepared in reliance on that determination is inadequate and fails to comply with NEPA’s
mandate.”).
31
zant of accidental causes of harm, it must also be concerned with
regulations from multiple agencies intended to protect the public
from intentional malicious acts by third parties.
Between October 2001 and April 2002, FMCSA engaged in
30,000 compliance visits to operators. Based partly on those visits’
findings, in 2003, RSPA and FMCSA jointly developed “HM 232,”
an amendment to the HMR requiring each hazmat offeror or carrier create a “security plan” that includes a risk assessment, a routing
evaluation, training requirements, and a host of other prescriptions
that PHMSA deems necessary to offer for shipment or carry dangerous chemicals.15 FMCSA has also issued guidelines to assist motor
carriers of hazardous materials comply with HM 232.16
TSA has issued a list of voluntary “Security Action Items” (SAIs)
for motor carriers and chemical shippers concerning general, personnel, and vehicle and facility access security.17 Many of the SAI procedures substantially overlap the security plan elements required under
HM 232.
In addition, TSA enacted regulations in 2003 requiring background checks for drivers as a condition of their receiving a “hazmat
endorsement” on their state issued Commercial Driver’s License.
Notably, this background check includes (i) state criminal records,
(ii) immigration status, and (iii) certain records maintained by the
FBI.18
TSA has further complicated compliance by creating a category
of “Highway Security Sensitive Materials (HSSM) as part of the
“security sensitive materials” requiring listing the 9/11 Commission
Implementation Act.
In September 2008, PHMSA proposed a rulemaking that could
directly impact hazmat trucking operations if actually adopted: “RiskBased Adjustment of Transportation Security Plan Requirements”
(HM-232F).19 This would make two changes to the HM 232 rule.
First, it proposes what it calls a “risk-based” approach to dangerous
chemicals freight regulation, in contrast to the list-dependent scheme
set forth in the HMR. HM-232F’s premise is that merely identifying
the type, amount, and concentration of a particular chemical as occupying a specified place in the HMR – while a necessary beginning
to risk analysis – is insufficient by itself. Various industry representatives would welcome a more narrow focus of “security” requirements
on more demonstrably dangerous substances.20 Moreover, part of
the risk analysis that PHMSA proposes to add to the identification
of specified commodities requires analyzing the material’s transport
route. For instance, a specified quantity of chlorine may pose different risks whether it would travel via a secondary highway located in a
densely populated area or an interstate located in a desert.
Finally, TSA is actively exploring – through a pilot program involving TSA and General Dynamics Advanced Information Systems
– mandatory wireless tracking of motor carriers carrying specified
hazmats on our nation’s highways.21 While TSA initiated this proj15
49 CFR. § 172.800. Strictly speaking, this HMR amendment was solely a
Research and Special Program Administration action.
16
Hazardous Materials: Security Requirements for Offerors and Transporters
of Hazardous Materials, 69 Fed. Reg. 14,510 (Mar. 25, 2003).
17
These SAIs are not the subject of any regulation. They are contained as
Appendices A and B to a memorandum from a senior TSA official, John Sammon,
Assistant Administrator, Transportation Sector Network Management, to “Highway
and Motor Carrier Stakeholders” (June 25, 2008) (on file with author).
18
68 Fed. Reg. 23,852 (July 3, 2003).
19
73 Fed. Reg. 52,558 (Sept. 9, 2008).
20
See, e.g., Letter from Jennifer Gibson, Vice President of Government Affairs, National Association of Chemical Distributors, to PHMSA Docket No. 0625885 (Nov. 10, 2008).
21
Advanced Hazmat Tracking Decision Support System: A 2010 Vision for
Hazmat Vehicle Transportation Safety, University of Virginia Accelerated Masters Pro-
32
ect independently, Congress subsequently tasked TSA with exploring
whether or not such wireless tracking of truck-borne dangerous goods
is feasible.22 Similarly for the rail sector, TSA has been instructed to
“develop a program that will encourage the equipping” of PIH rail
tank cars with wireless tracking functionalities.23
This jurisdictional overlap also exists in the rail sector. For example, in 2006, PHMSA and FRA began, “a comprehensive review
of design and operational factors that affect rail tank car safety.”24 In
2008, PHMSA and FRA held multiple public meetings in Washington, DC, where shippers and carriers of chlorine, anhydrous ammonia, and other highly volatile and harmful poisonous-by-inhalation
(PIH) substances addressed tank car structural integrity. PHMSA has
issued a final rule in defering any conclusive structural specifications
“pending validation and implementation of the crashworthiness performance standard proposed” in 2008.25 While these deliberations
are still pending within PHMSA and FRA and the regulatory framework remains undetermined, the builders, lessors, and shippers of
new tank cars must evaluate whether they are willing to invest in new
rail tank cars for the shipment of PIH commodities.26
Illustrating the overlapping and duplicative nature of hazmat
hauling regulation, Congress has contemporaneously directed TSA
to study the structural integrity of rail tank cars.27 To date, U.S. DHS
has not issued any rules. They have, however, conducted physical testing of rail tank cars – assessing their structural capability of withstanding an asymmetric attack – at the DHS facility in Aberdeen,
Maryland.28
Separately, DHS has regulated “security” for dangerous chemicals in a landmark rulemaking addressing PIH hazardous materials
carried by rail.29 Originally proposed December 2006, the rule includes “chain of custody” requirements designed to avoid unattended
hazmat tank cars – together with specified reporting requirements
by carriers as to hazmat moves. In addition to rail carriers, this new
regulation equally applies to shippers, recipients, and other parties
handling such chemical freight.30
Hazmat compliance will demand more than adherence to the
HMR, PHMSA’s shipment process requirements, and the edicts of
the applicable “modal” agencies. Full compliance will also require a
watchful eye on pronouncements of DHS’ Infrastructure Directorate
for new chemical facilities requirements and DHS’ Transportation
gram in Systems Engineering (Apr. 6, 2007), available at http://www.sys.virginia.edu/
accelerated/hazmatpdfs/Red.pdf, last visited February 2, 2009.
22
Implementing Recommendations of the 9/11 Commission Act of 2007,
Pub. L. No. 110-53, § 1554, 121 Stat. 266 (2007) (“[TSA] shall develop a program
to facilitate the tracking of motor carrier shipments of security-sensitive materials and
equip vehicles used in such shipments with technology that provides…frequent or
continuous communications,…vehicle positions location and tracking capabilities,…
and a feature that allows a driver of such vehicles to broadcast an emergency distress
signal.”).
23
Id., at § 1552.
24
71 Fed. Reg. 67,015 (Nov. 17, 2006).
25
74 Fed. Reg. 1,770 (Jan. 13, 2009).
26
This tank car structural integrity issue illustrates the overlapping and duplicative nature of hazmat hauling regulation. PHMSA’s and FRA’s 2008 proposed
rulemaking was authorized by SAFETEA-LU 2005, which adopts the HMR’s hazmat
definitions and requires the initiation of such a rulemaking. SAFETEA-LU § 9005,
Pub. L. No. 109-59, 11 Stat. 1184 (2005). See also Pub. L. No. 110-53, § 1519, 121
Stat. 266 (2007). Please also see Brett Jortland’s column on p. 8.
27
Pub. L. No. 110-53, § 1519.
28
Interview with Jason Ahern, TSA Rail Freight Security (May 15, 2008).
29
73 Fed. Reg. 72,131 (Nov. 26, 2008).
30
This final rule distinguishes the safety and security roles of FRA and TSA.
Moreover TSA and FRA have agreed that TSA would be the lead federal entity for
tranpsortation security in general and rail security in particular and that FRA would
have authority over every area of railroad safety (including security) and would enforce
the HMRs. 73 Fed. Reg. at 72,133.
Security Administration (TSA) regarding the transport of dangerous
chemicals.
In addition to the list of hazardous materials defined by the HMR,
the introduction of a new threat vector has prompted Congress to
prescribe–and DHS to define in consultation with DOT–a new list
of those chemicals deemed dangerous for security purposes.31 Accordingly, DHS has started developing two separate lists for two separate security protocols. For materials stationed in fixed locations, the
Infrastructure Protection Directorate of DHS promulgated a list of
chemicals called Appendix A to the new Chemical Facilities AntiTerror Standards (“CFATS”) regulations.32 For dangerous materials
in transport via rail or motor carrier, a new “security sensitive materials” framework will be enforced by TSA.33
To illustrate the multiplicity of dangerous chemicals frameworks
to which a complying business might need to conform, consider a rail
tank car or truck trailer with qualifying quantities and concentrations
of chlorine gas:
(i) The presence of chlorine would trigger application of the
safety rules within the HMRs;
(ii) Chlorine’s toxicity when released in air will almost certainly
place this commodity on TSA’s eventual list of “security sensitive ma31
Homeland Security Appropriations Act of 2007, Pub. L. No. 109-90, §
550, 119 Stat. 2070 (2006).
72 Fed. Reg. 62,396 (Nov. 20, 2007).
32
33
Pub. L. 110-53, §§ 1301-1558, 119 Stat. 462 (2007).
terials”; and
(iii) Prior to or following a move of chlorine by rail or motor
carrier, its presence in a fixed facility would trigger application of
CFATS’ Appendix A. Appendix A would also apply en route whenever the rail tank or truck tank trailer containing chlorine is detached
from the locomotive or truck tractor.34
Conclusion
According to Brigham McCown–PHMSA’s first acting administrator and former chief counsel to the FMCSA–this distinction between “safety” and “security” jurisdiction in hauling hazmat has tangible implications for business, given the duplicative and sometimes
competing federal jurisdiction between various transportation and
security agencies. Defining their respective roles according to dangers inherent in specified chemicals versus threats of external attacks
upon them, PHMSA, FMCSA, FRA and TSA have a complex task
in protecting the American public. Arguably, this task is closer to its
beginnings than to its conclusion.
For the foreseeable future, those who move and ship dangerous
chemicals should expect prolific issuance of new rules, need to become accustomed to dual accountability to DOT and DHS, and will
have to maintain a close watch on developments in this area.
34
See id.; 6 C.F.R. § 27.203(b)(i).
Joel Webber is a commercial lawyer with the Chicago area firm of Couri and
Couri, whose clients consist largely of businesses involved in the freight
transportation sector as carriers, shippers and suppliers of technology to
that sector. Following his earlier career with Cleary Gottlieb Steen & Hamilton and then as a prosecutor in the office of Manhattan District Attorney
Robert Morgenthau, Joel was a business executive doing transactions
involving aircraft and other transportation equipment, corporate finance,
and work-outs at Whirlpool Financial and GE Capital. Joel conducts graduate classes for non-U.S. lawyers in commercial and transportation law as an
adjunct professor in the John Marshall Law School’s Center for International Law in Chicago.
33
American Bar Association Enrollment Form
Thank you for your interest in the ABA. Please print all information.
Fill out this form completely and return with appropriate payment to the ABA.
If your firm/organization is part of the ABA’s Group Program please talk to your Group Administrator regarding enrollment.
PLEASE TELL US ABOUT YOURSELF
Personal
Name (for membership roster and card)
Birth Date (month/day/year)
Original Admission to Bar in the United States (required)
An ABA member must be licensed to practice law in one of the
states, territories, or possessions of the U.S. Otherwise, please use
an Associate application.
Bar Admission Date (mm/yy)
� Female
� No
Are you a former member of the ABA?
State
� Yes
Former ID #
� Yes, I am currently licensed to practice law in the United States,
Law School Attended
territories, or possessions.
Mailing Address
� Male
� Home
Secondary Address
� Business
Company
� Home
� Business
Address
Address
Suite
Floor
City
City
State
ZIP/Postal Code
Province
State
ZIP/Postal Code
Country (use only if outside U.S.)
Province
Country (use only if outside U.S.)
Telephone
Telephone
Fax
Practice Setting
Which setting best describes your work environment?
E-mail
Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to
anyone outside the ABA. To change your e-mail address or remove your name from any future general
distribution e-mails, complete the form at www.abanet.org/members/join/coa2.html. If you prefer,
call us at 1.800.285.2221 or write to: American Bar Association, Service Center, 321 North Clark Street,
Chicago, IL 60610.
�
�
�
�
�
Private Practice
Government*
Judiciary*
Legal Service*
Military*
�
�
�
�
�
In-house/Corporate Counsel
Law School
Inactive
Retired
Non Law-Related
*You may be eligible for reduced dues. Please see ABA Dues information on the
following page.
How many attorney(s) are in your office? ____________
REASONS FOR JOINING
ABA DUES
Please indicate what prompted you
to join the ABA:
� ABA Executive Director/President
Referral
� Attended ABA Meeting/CLE
� Bought an ABA Book/Product
� Firm/Colleague Recommendation
� Read about ABA in article/review
� Received a mailer or phone call
� I am a former member
� Other
Years since original U.S. admission as of January 1, 2009
� less than 1 year
� 1 year but less than 2 years
� 2 years but less than 3 years
� 3 years but less than 4 years
� 4 years but less than 5 years
� 5 years but less than 6 years
� 6 years but less than 7 years
� 7 years but less than 8 years
� 8 years but less than 9 years
� 9 years but less than 10 years
� 10 years or more.
34
Please enter ABA Dues amount in Line 4A of the Dues worksheet.
Regular ABA Dues
$ 0
$125
$135
$145
$155
$175
$210
$250
$275
$299
$399
page 1 of 3
RMM8ILFX
DUES WORKSHEET
PAYMENT INFORMATION
4A $____________
Payment options:
Section, Division, Forum, and Center Dues
4B $____________
� Check payable to American Bar Association
� Visa®
� MasterCard®
� American Express®
FJE $15 Contribution
4C $____________
ABA Dues
Voluntary to the ABA Fund for Justice and Education**
TOTAL $____________
Name as it appears on credit card
Account Number
Expiration Date
X
Signature
� Please send me information on insurance for ABA members.
Please Complete and Return to:
ABA Membership/Application Processing
321 North Clark Street
Chicago, IL 60610
Phone: 312.988.5522
Fax: 312.988.5528
www.abanet.org/join
e-mail: [email protected]
Submission of this application constitutes agreement to abide by the Association’s Constitution and Bylaws. These can be found on the ABA website at www.abanet.org. The ABA fiscal year runs from September 1 through August 31.
Members joining after October 1 receive a prorated credit towards next year’s dues. Section, Division, and Forum dues are not prorated. Membership dues are not deductible as a charitable contribution for income tax purposes but may be
deductible in part as a business expense. The ABA estimates that 21/2 % of your membership dues are allocable to lobbying activities of the Association, and therefore are not deductible for income tax purposes as ordinary and necessary
business expenses.
**The ABA Fund for Justice and Education (FJE) is a 501(c)(3) charitable fund that supports law-related public service and educational programs. Each year, the FJE supports nearly 200 public service programs conducted by the
ABA. Your voluntary contribution to the FJE is tax deductible to the full extent allowed by the law.
We suggest that you save this communication for your tax advisor. Application valid through August 31, 2009.
ABA membership dues include $5.50 for a basic annual subscription to ABA Journal (12x/yr), which is not deductible from the dues. Section membership dues include a basic annual subscription for the following periodicals
which are not deductible from the respective Section’s dues and may not be purchased at these rates: Administrative Law and Regulatory Practice (Administrative Law Review, 4x/yr, $17.50); Affordable Housing and Community
Development Law (Journal of Affordable Housing and Community Development Law, 4x/yr, $8.00); Business Law (Business Law Today, 6x/yr, $14.00; The Business Lawyer, 4x/yr, $20.00); Criminal Justice (Criminal Justice, 4x/yr,
$16.50); Dispute Resolution (Dispute Resolution Magazine, 4x/yr, $10.00); Environment, Energy, and Resources (Natural Resources & Environment, 4x/yr, $17.50); Family Law (Family Law Quarterly, 4x/yr, $19.75; Family Advocate,
4x/yr, $19.75); General Practice, Solo & Small Firm (GPSOLO, 8x/yr, $10.00); Intellectual Property Law (IPL Newsletter, 4x/yr, $6.00); International Law (The International Lawyer, 4x/yr, $16.50; International Law News, 4x/yr,
$4.00); Judicial Division (The Judges’ Journal, 4x/yr, $13.00); Law Practice Management (Law Practice 8x/yr, $16.00); Litigation (Litigation, 4x/yr, $20.00); Public Contract Law (Public Contract Law Journal, 4x/yr, $10.00); Real
Property, Trust and Estate Law (Probate & Property, 6x/yr, $20.00; Real Property, Probate, and Trust Journal, 4x/yr, $11.50); Science & Technology Law (Jurimetrics Journal, 4x/yr, $14.50); Senior Lawyers Division (Experience, 4x/yr,
$12.50); State and Local Government Law (The Urban Lawyer, 4x/yr, $18.00); Taxation (The Tax Lawyer, 4x/yr, $26.50); Tort Trial and Insurance Practice (The Brief, 4x/yr, $15.00; Tort Trial & Insurance Law Journal, 4x/yr,
$20.00).
35
page 3 of 3
RMM8ILFX
Eligibility Statement for Reduced ABA Dues
�
Yes, I qualify for reduced dues for Judges and Lawyers in
Public Service as I certify that I am:
� An employee of a governmental unit
� An employee of a Legal Services, Legal Aid,
or Indigent Defense Agency
� An active service military lawyer
� A judge
� A court personnel lawyer
And have been in practice:
�
�
�
�
�
�
�
�
�
�
�
less than 1 year
1 year but less than 2 years
2 years but less than 3 years
3 years but less than 4 years
4 years but less than 5 years
5 years but less than 6 years
6 years but less than 7 years
7 years but less than 8 years
8 years but less than 9 years
9 years but less than 10 years
10 years or more.
$ 0
$93.75
$101.25
$108.75
$116.25
$131.25
$157.50
$187.50
$206.25
$224.25
$299.25
SECTION, DIVISION, AND FORUM ENROLLMENT DUES
To learn more about these specialty Sections, Divisions, and Forums,
please visit our website at www.abanet.org/sections
ABA Sections
� Administrative Law and Regulatory Practice
� Antitrust Law
� Business Law
� Criminal Justice
� Dispute Resolution
� Environment, Energy, and Resources
� Family Law
� Health Law
� Individual Rights and Responsibilities
� Intellectual Property Law
� International Law
� Labor and Employment Law
� Law Practice Management
� Legal Education and Admissions to the Bar
� Litigation
� Public Contract Law
� Public Utility, Communications and Transportation Law
� Real Property, Trust and Estate Law
� Science and Technology Law
� State and Local Government Law
� Taxation
� Tort Trial and Insurance Practice
$60.00
$50.00
$55.00
$45.00
$45.00
$75.00
$50.00
$50.00
$45.00
$75.00
$55.00
$40.00
$50.00
$40.00
$55.00
$45.00
$40.00
$55.00
$45.00
$40.00
$60.00
$50.00
ABA Divisions
General Practice, Solo and Small Firm Division
Government and Public Sector Lawyers Division
Senior Lawyers Division
Young Lawyers Division
$45.00
$40.00 �
$40.00
FREE
�
�
�
�
Age 35 or younger or in practice five years or less.
$35.00
� Judicial Division
Judicial Division membership requires enrollment, at no extra cost, in one
of six conferences. Please choose the one that most applies:
� Appellate Judges Conference
� Nat’l Conf. of Specialized Court Judges
� Nat’l Conf. of Federal Trial Judges
� Nat’l Conf. of the Admin. Law Judiciary
� Nat’l Conf. of State Trial Judges
� Lawyers Conference
ABA Forums
You must belong to at least one Section or Division in order to join a
Forum; the Young Lawyers Division qualifies.
� Affordable Housing and Community Development Law $50.00
� Air and Space Law
$40.00
� Communications Law
$45.00
� Construction Industry
$50.00
� Entertainment and Sports Industries
$50.00
� Franchising
$50.00
ABA Centers
� ABA Center for Professional Responsibility
$100.00
� Special Joint Rate Offer
A single fee covers rates for Government and Public Sector
Lawyers Division and any one of the following:
� Administrative Law
� Antitrust Law
� Criminal Justice
� Dispute Resolution
� Environment, Energy, and Resources
� General Practice, Solo and Small Firm Division
� Health Law
� International Law
� Public Contract Law
� Public Utility, Communications and Transportation Law
� State and Local Government Law
� Tort Trial and Insurance Practice
$59.00
$60.00
$60.00
$69.00
$85.00
$68.00
$55.00
$80.00
$65.00
$60.00
$68.00
$70.00
Section, Division, Forum, and Center Subtotal $________________
Please enter this amount in line 4B of the worksheet.
Those experiencing financial hardship may be eligible for a dues discount through the ABA’s Affordable Dues Program. In addition, many Sections and Divisions allow a financial hardship discount.
Call 1.800.285.2221 for details.
36
page 2 of 3
RMM8ILFX