American Chemistry Council v. Depart. of Transp.

• Citation: 468 F.3d 810
• Decision Date: 13 October 2006
• Docket Number: No. 03-1456.,No. 05-1191.,03-1456.,05-1191.
• Parties: AMERICAN CHEMISTRY COUNCIL, et al., Petitioners v. DEPARTMENT OF TRANSPORTATION, Respondent Utility Solid Waste Activities Group, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 810

468 F.3d 810

AMERICAN CHEMISTRY COUNCIL, et al., Petitioners v. DEPARTMENT OF TRANSPORTATION, Respondent

Utility Solid Waste Activities Group, et al., Intervenors.

No. 03-1456.

No. 05-1191.

United States Court of Appeals, District of Columbia Circuit.

Argued March 20, 2006.

Decided October 13, 2006.

On Petitions for Review of an Order of the United States Department of Transportation.

Paul M. Donovan argued the cause for petitioner. With him on the briefs was Nicholas J. DiMichael.

William R. Weissman and Paul D. Ackerman were on the brief for intervenors Utility Solid Waste Activities Group, et al. Douglas H. Green entered an appearance.

Jonathan H. Levy, Attorney, U.S. Department of Justice, argued the cause for respondent. On the brief were Peter D. Keisler, Assistant Attorney General, Douglas N. Letter and August E. Flentje, Attorneys, Jeffrey A. Rosen, General Counsel, U.S. Department of Transportation, Paul M. Geier, Assistant General Counsel, and Peter J. Plocki, Senior Trial Attorney.

Before SENTELLE, ROGERS and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Dissenting opinion filed by Circuit Judge ROGERS.

GRIFFITH, Circuit Judge.

Several associations of hazardous materials manufacturers, shippers, and transporters challenge a Department of Transportation ("Department") rule defining when hazardous materials are being "load[ed], unload[ed], or stor[ed] incidental to the[ir] movement," 49 U.S.C. § 5102(13), which largely controls whether such materials will be subject to federal regulation by the Department under the Hazardous Materials Transportation Act, 49 U.S.C. § 5101, et seq. Because the associations have not demonstrated Article III standing under the United States Constitution to bring their challenge, we dismiss their petitions for review.

I.

Congress enacted the Hazardous Materials Transportation Act (the "HMTA" or "Act") in 1975 to "improve the regulatory and enforcement authority of the Secretary of Transportation to protect the Nation adequately against the risks to life and property which are inherent in the transportation of hazardous materials in commerce." Pub.L. No. 93-633, § 102, 88 Stat. 2156, 2156 (1975) (codified as amended at 49 U.S.C. § 5101); see generally id. §§ 101-115, 88 Stat. at 2156-64 (codified as amended at 49 U.S.C. §§ 5101-5128). A key feature of the Act is its broad mandate providing that the Secretary of Transportation (the "Secretary") "shall prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce." 49 U.S.C. § 5103(b)(1). The Department has done so, resulting in the Hazardous Materials Regulations ("HMR"), found at 49 C.F.R. parts 171-180. This case involves continued efforts by the Department to comply with that mandate and develop regulations seeking to ensure "safe transportation." 49 U.S.C. § 5103(b)(1).

The Act provides that the Department's regulations:

(A) apply to a person who—

(i) transports hazardous material in commerce;

(ii) causes hazardous material to be transported in commerce;

(iii) designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs, or tests a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce;

(iv) prepares or accepts hazardous material for transportation in commerce;

(v) is responsible for the safety of transporting hazardous material in commerce;

(vi) certifies compliance with any requirement under this chapter; or

(vii) misrepresents whether such person is engaged in any activity under clause (i) through (vi); and

(B) shall govern safety aspects, including security, of the transportation of hazardous material the Secretary considers appropriate.

Id. § 5103(b)(1) (emphasis added). Thus, as the name of the Act suggests and the terms of the Act provide, the Department's regulatory authority under the Act often begins—and ends—with the phrase "transportation in commerce." See also id. ("[t]he Secretary shall prescribe regulations for the safe transportation . . . in . . . commerce") (emphasis added). This case focuses on the former term, transportation, as opposed to commerce. The Act defines "transports" or "transportation" as "the movement of property and loading, unloading, or storage incidental to the movement." Id. § 5102(13).

After initially promulgating the HMR, the Department "issued a number of interpretations . . . in response to public requests for clarification regarding the meaning of the term `transportation in commerce' and whether particular activities fall under that term and, therefore, are subject to the HMR." Advanced Notice of Proposed Rulemaking, Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage, 61 Fed. Reg. 39522, 39522 (July 29, 1996). In 1996, the Department sought "to consolidate, clarify, and revise, as necessary, these interpretations, rulings and decisions, and make them part of the HMR." Id. The Department requested comments from the public in its Advanced Notice, held a series of public meetings, [66 Fed. Reg. 32420, 32420] sought further comments on approaches to defining "transportation," see Supplemental Advance Notice of Proposed Rulemaking, Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage, 64 Fed. Reg. 22718, 22719-23 (Apr. 27, 1999), and then proposed "a list of specific functions to which the HMR apply and . . . the types of persons or entities responsible for compliance with the HMR," Notice of Proposed Rulemaking, Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage, 66 Fed. Reg. 32420, 32421 (June 14, 2001).

After the Department's notice of proposed rulemaking, but prior to promulgation of its final rule, Congress amended the Department's mandate to add the phrase "including security" twice to § 5103(b). Homeland Security Act of 2002, Pub.L. No. 107-296, § 1711(a), 116 Stat. 2135, 2319 (2002). Section 5103(b)(1) thus directs the Secretary to "prescribe regulations for the safe transportation, including security, of hazardous material," id. (emphasis added), and to ensure that such regulations "govern safety aspects, including security, of the transportation of hazardous material the Secretary considers appropriate," id. § 5103(b)(1)(B) (emphasis added). The Department first issued its long-coming rule on October 30, 2003. Final Rule, Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage, 68 Fed.Reg. 61906 (Oct. 30, 2003) (the "October 2003 Rule"). As relevant here, the Department sought to interpret the meaning of the statutory term "transportation," see 49 U.S.C. § 5102(13) ("`transportation' means the movement of property and loading, unloading, or storage incidental to the movement"), by defining four related terms: the "pre-transportation function," "loading incidental to movement," "unloading incidental to movement," and "storage incidental to movement." 68 Fed.Reg. at 61907.¹ Several parties filed administrative appeals. The Department denied several of the appeals, but made substantive revisions to its rule in response to others. See Final Rule, Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage, 70 Fed.Reg. 20018, 20020 (Apr. 15, 2005) (the "Final Rule").

In defining "pre-transportation function," the Department's Final Rule set out several specific "function[s] . . . that [are] required to assure the safe transportation of a hazardous material in commerce." 70 Fed.Reg. at 20033 (codified at 49 C.F.R. § 171.8). It concluded that these enumerated "pre-transportation functions" would be subject to regulation under the HMR when performed by any person. See 68 Fed.Reg. at 61937 (codified at 49 C.F.R. § 171.1(b)). In contrast, the Department concluded that it would not regulate the unloading of hazardous materials when, generally speaking, a shipping company leaves the premises of a receiver of hazardous materials. See 70 Fed.Reg. at 20032 (codified at 49 C.F.R. § 171.1(c)(3)). "Unloading incidental to movement" was defined as

removing a . . . containerized hazardous material from a transport vehicle . . . , or for a bulk packaging, emptying a hazardous material from the bulk packaging after the hazardous material has been delivered to the consignee when performed by carrier personnel or in the presence of carrier personnel or, in the case of a private motor carrier, while the driver of the motor vehicle from which the hazardous material is being unloaded immediately after movement is completed is present during the unloading operation.

Id. at 20034 (codified at 49 C.F.R. § 171.8). The Department defined "loading incidental to movement" to mean the "loading by carrier personnel or in the presence of carrier personnel of . . . hazardous material onto a transport vehicle . . . for the purpose of transporting it." 68 Fed.Reg. at 61940 (codified at 49 C.F.R. § 171.8). Finally, the Department determined "storage incidental to movement" means

storage of a transport vehicle . . . containing a hazardous material by any person between the time that a carrier takes physical possession of the hazardous material for the purpose of transporting it in commerce until the package containing the hazardous material is physically delivered to the destination indicated on a shipping document, package marking, or other medium, or, in the case of a private motor carrier, between the time that a motor vehicle driver takes physical possession of the hazardous material for the purpose of transporting it in commerce until the driver relinquishes possession of the package at its destination and is no longer responsible for performing functions subject to the HMR with respect to that particular package.

70 Fed.Reg. at 20033 (codified at 49 C.F.R. §...