20100809Decision Memo.pdf

~-r
DECISION MEMORANDUM
TO:COMMISSIONER KEMPTON
COMMISSIONER SMITH
COMMISSIONER REDFORD
COMMISSION SECRETARY
COMMISSION STAFF
~lJL -l¿ - )0- O(
FROM: DON HOWELL
DEPUTY ATTORNEY GENERAL
DATE: AUGUST 4, 2010
SUBJECT: UPDATING THE COMMISSION'S RAILROAD SAFETY AND
ACCIDENT REPORTING RULES, IDAPA DOCKET NO. 31-7103-1001
The Commission's Ralroad Safety and Accident Reporting Rules (IDAPA 31.71.03)
adopt by reference the federal safety regulations pertning to the transportation of hazardous
material by raiL. In paricular, Rules 103 and 104 adopt varous pars of Title 49, Code of
Federal Regulation (CFR). More specifically, Rule 103 adopts the federal safety rules pertning
to the transporttion of hazardous material by raiL. The curent rule adopted the October 1, 2008
edition of the CFRs. Rule 104 pertns to the reporting of railroad accidents. This rue
incorporates by reference 49 C.F .R. Par 225 from the October 1, 2007 edition of the CFRs.
The Staff proposes that the Commission adopt the curent version of the CFRs to be
published on October 1,2010. This would include 49 C.F.R. Pars 107, 171, 172-174, 178-180,
and 225.
CFR CHANGES SINCE 2007
Since Rule 103 was last updated, the Pipeline and Hazardous Material Safety
Administration (PHMSA) has made four changes to the railroad hazardous material rules. First,
in October 2009, PHMSA amended 49 C.F .R. Par 172 and 174 to clarfy requirements
governing emergency response information provided by shippers of hazardous materials. In
paricular, PHMSA required that the shippers' name and contact number be included on shipping
papers so tht emergency responders would be able to obtain additional information about the
hazdous material being shipped by raiL. Second, in March 2010, PHMSA modified the curent
security plan requirements applicable to the commercial transportation of hazardous materals by
DECISION MEMORANDUM 1
raiL. The agency amended 49 C.F .R. Par 172 to decrease the number of hadous materials
subject to securty plan requirement. This reduced reguatory cost and paperwork burden.
Third, PHMSA amended 49 C.F.R. Par 107.62 to adjust tle anual federal fee for
entities shipping hazdous material by raL. This change became effective on April 29, 2010.
Finally, PHMSA amended 49 C.F.R. Part 105, 107, 171, 173, 174, 176, 177, and 179
concerning the procedures for issuing special permits for hazdous shipments tht have an
established safety record. The revisions were intended to provide wider access to the regulatory
flexibility offered in special permits and eliminate the need for numerous requests. Ths change
is effective October 1,2010.
..
HOUSEKEEPING
The Staff is also. proposing that Rule 8 be modified to conform to changes that the
Legislatue made to Idaho Code § 67-5229. In House Bil 614 enacted this year, the Legislatue
required that agency rules indicate where electronic copies of incorporated material can be
obtaned "or provide an electronic link to the incorporated materials." Idaho Code § 67-5229(2);
HB No. 614, 2010 Sess. Law, ch. 280. The Commission's Notice of Rule making must also
include an explanation "of why the incorporation is neeed." Id.
The Staff recommends the Commission update its Railroad Safety Rules as described
above and set out in the attached proposed changes. Adoption of the curent CFRs would make
the rules consistent with the federal regulations and avoid confusion.
COMMISSION DECISION
Should Rule 103 of the Commssion's Railroad Safety and Accident Reportng Rules
be updated by the adoption of the curent CFR provisions concerning the transportation of
hazardous materials by rail? Should Rule 104 be updated to conform to the curent federal
reporting rules for railroad accident reporting? Does the Commission also wish to make the
housekeeping changes to Rule 8? Does the Commission wish to forward these proposed changes
to the Administrative Rules Coordinator for publication in the next Administrative Bulletin?
Ji~
Don Howell
Deputy Attorney General
blsI:3 1-7103-1001_Decision Memo_dh
DECISION MEMORANDUM 2
. '
,
IDAPA31
TITLE 71
CHAPTER 03
31.71.03 - RAILROAD SAFETY AND
ACCIDENT REPORTING RULES
008. INCORPORATION BY REFERENCE - CODE OF FEDERAL REGULATIONS
(RULE 008).
The Code of Federal Regulations (CFR) is referred to in Rules 103 and 104. The anual volumes
of the CFR may be obtained on the \Veb from the Sieerinendem of Doeuments, Attn: New
Orders, PO Box 371954, Pittsburgh, PA 15250 7954 U.S. Governent Bookstore at
http://bookstore.gpo.gov/ and click on "Code of Federal Regulations," or by calling toll-free 866-
512- 1800. The full text of the CFR is also available in electronic format at
lltt:l/erigiR. ",,,\vw.gpoaeeess.go'l/nafa/ ww.gpoaccess.gov/cfr/index.htrl. The incorporated
CFR Par are also available for inspection and copying at the offce of the Idaho Public Utilities
Commission and the Idaho State Law Librar. Whenever a federal regulation is adopted by
reference in these rules, subsequent anual recompilations are also adopted by reference, but
subsequent amendments to the CFR are not adopted by reference. ~
(BREAK IN CONTINUITY OF SECTIONS)
103. TRANSPORTATION OF HAZRDOUS MATERIL BY RAL (RULE 103).
01. Hazardous Material Defined. "Hazardous material" means a substace or material
which has been determined by the United States Secretary of Transporttion to be capable of
posing an unreasonable fisk to health, safety, and property when transported in commerce, and
which has been so designated by the Secretary of Transportation. The term includes hazardous
substaces, hazdous wastes, marne pollutants, elevated temperature materials as defined in 49
C.F .R. Section 171.8, materals designated as hazdous under the provisions of 49 C.F .R.
Section 172.101, and materials tht meet the defining criteria for hazardous classes and divisionsin 49 C.F.R. Part 173. (3-30-01)
. ,
02. Adoption of Federal Safety Regulations. The Commission hereby adopts by
reference 49 C.F.R. Pars 107,171,172,173,174,178,179, and 180 (October 1, 20G&10). All
customers offering hazdous materials for shipment by rail and all railroads operating in Idao
that transport hazardous materials listed in, defined by, or regulated by the adopted federal safety
regulations must comply with 49 C.F.R. Par 107, 171, 172, 173, 174, 178, i 79 and i 80.~
03. Recognition of Federal Exemptions. Whenever a railroad or shipper has applied to
a federal agency and has been grated an exemption from the transportation or packaging
requirements of the federal safety regulatîons adopted in Subsection 103.02, the federal
exemption will also be recognized under these rules. The Commission shall not administer a
program to duplicate consideration or approval of federal exemptions on a state leveL. (3-30-01)
104. REPORTING OF RAILROAD ACCIDENTS (RULE 104).
The Commission incorporates by reference 49 C.F.R. Par 225 (October 1, 20G+I0). Pursuat to
49 C.F.R. 225.1, all railroad that are required to fie a copy of any accident/incident report with
the Federal Ralroad Administration shall also file a copy of such report with the Commission
Secretary for accidents or incidents occurring in Idaho. Copies of accident or incident' reports
shall be mailed to: Commission Secreta, Idaho Public Utilties Commission, PO Box 83720,
Boise, Idaho 83720-0074 ([phone]). Copies of such report may also be provided by
facsimile at [phone] or by electronic mail to secretar(quc.daho.gov. ~