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Business Taxes Law Guide—Revision 2024
Regional Railroad Accident Preparedness and Immediate Response Fee
Government Code
Title 2. Government of the State of California
Chapter 7. California Emergency Services Act
Article 3.9. Regional Railroad Accident Preparedness and Immediate Response
Inoperative pursuant to BNSF Railway Co., et al. v. California Department of Tax and Fee Administration, et al. (9th Cir. 2018) 904 F.3d 755
Section 8574.32
8574.32. Fee schedule; Application; Industry advisory committee. (a) (1) The director shall establish a schedule of fees, to be paid by each person owning any of the 25 most hazardous material commodities, as identified in regulations adopted by the office, that are transported by rail in California, that shall be sufficient to fund the appropriation from the fund pursuant to Section 8574.44, to reimburse the California High-Cost Fund-B Administrative Committee Fund for any moneys loaned, and to maintain a reserve for operating costs. The fee shall be based on each loaded rail car as described in subdivision (b).
(2) Prior to the adoption of regulations identifying the 25 most hazardous material commodities, the fee shall apply to the top 25 hazardous material commodities identified by the Association of American Railroads Bureau of Explosives' Annual Report of Non-Accident Releases of Hazardous Materials Transported by Rail, published in August, 2013.
(b) (1) Within six months of the director establishing a schedule of fees pursuant to subdivision (a), the fee shall be imposed on a person owning hazardous material at the time that hazardous material is transported by loaded rail car. The fee shall be based on each loaded rail car.
(A) If the loaded rail car enters the state from outside this state, the fee shall be imposed on the owner of the hazardous material at the time the loaded rail car enters this state. The person operating the train containing the rail car shall collect the fee from the owner of the hazardous material and shall pay the fee to the board. The fee shall be collected consistent with the requirements of the commerce clause of the United States Constitution.
(B) If the rail car is loaded within this state, the fee shall be imposed upon the loading of hazardous material into or onto the rail car for transport in or through this state. The person operating the train containing the rail car shall collect the fee from the owner of the hazardous material at the time the rail car is loaded and shall pay the fee to the board. The fee shall be collected consistent with the requirements of the commerce clause of the United States Constitution.
(2) The fee shall be paid to the board by the person operating the train containing the rail car at the time the return is required to be filed, as specified in Section 8574.38, based on the number of loaded hazardous material rail cars transported within the state.
(3) Any fee collected from an owner of hazardous materials pursuant to this section that has not been remitted to the board shall be deemed a debt owed to the state by the person required to collect and remit the fee.
(4) (A) The owner of the hazardous material is liable for the fee until it has been paid to the board, except that payment to a person operating the train containing the rail car registered under this article is sufficient to relieve the owner from further liability for the fee.
(B) The railroad shall be entitled to collect an amount not to exceed 5 percent of the fee collected pursuant to this section to offset the administrative cost to collect the fee.
(5) Any owner or railroad that has paid the fee pursuant to this section shall not be assessed any additional fee under this section for further transporting the same hazardous materials in the same rail cars on a different railroad within the state.
(c) The fee shall be fair, as required by subsection (f) of Section 5125 of Title 49 of the United States Code and subsection (c) of Section 107.202 of Title 49 of the Code of Federal Regulations. It is the intent of the Legislature that: (1) the fee shall reflect the cost of preparations to respond to the release of hazardous materials from a rail car or a railroad accident involving a rail car, (2) these preparations shall help contain the damage to railroad systems and operations within the state caused by the release of hazardous materials and better enable owners of hazardous materials to expeditiously transport their materials using the railroad after the release of hazardous materials, and (3) these preparations shall mitigate the exposure of the owners of hazardous materials to compensable damages caused by the release of hazardous materials. The director may exempt from the fee those shipments of hazardous materials that do not merit inclusion in the state regional railroad accident preparedness and immediate response plan developed pursuant to Section 8574.48, and those shipments of hazardous materials that do not merit additional governmental preparation to respond to their release in the event of a railroad accident.
(d) The fee shall not result in the collection of moneys that exceed the reasonable regulatory costs to the state for the purposes specified in subdivision (e) of Section 8574.44. The director shall set the fee consistent with Section 3 of Article XIII A of the California Constitution.
(e) The director shall be responsible for reporting fee information to the federal Secretary of Transportation pursuant to paragraph (2) of subsection (f) of Section 5125 of Title 49 of the United States Code.
(f) The director may authorize payment of a portion, but not the entire amount, of fees owed through contributions in kind of equipment, materials, or services.
(g) The director shall create an industry advisory committee to advise the director on setting the fee and on other policy matters related to industry-based shipment of hazardous materials and private sector-based accident response. The committee shall consist of representatives from the following:
(1) Hazardous materials specialist from the railroad industry.
(2) Operation specialist from the railroad industry.
(3) Fire and safety specialist from refinery industry.
(4) Chemical hazardous materials specialists.
(5) Agricultural chemical industry.
(6) Firefighting Resources of California Organized for Potential Emergencies (FIRESCOPE).
(7) Local emergency preparedness commissions (LEPCs).
(8) California Fire Chiefs Association.
(9) California Professional Firefighters.
(10) California State Firefighters Association.
(11) California Emergency Services Association.
(12) Fire Districts Association of California.
(13) The public.
(h) (1) The director shall reconsider the amount of the fee, and adjust the fee if appropriate, not less frequently than every three years, with due consideration for existing and expected operational and continued resource requirements.
(2) The director shall conduct an analysis of industry capabilities and resource requirements to assist in the reconsideration of the amount of the established fee. The director may arrange for the analysis to be performed by a third party that is either a public or private entity. Upon finalization of the analysis, the analysis shall be delivered as a report to the Department of Finance, the Legislature, and the Legislative Analyst's Office.
(3) The submission of the analysis to the Legislature shall be submitted in compliance with Section 9795 of the Government Code.
History—Added by Stats. 2015, Ch. 25 (SB 84), in effect June 24, 2015.