[Federal Register Volume 60, Number 31 (Wednesday, February 15, 1995)]
[Notices]
[Pages 8800-8804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3591]




[[Page 8799]]

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Part III





Department of Transportation





_______________________________________________________________________



Research and Special Programs Administration



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California Requirements Applicable to Cargo Tanks Transporting 
Flammable and Combustible Liquids; Decision on Petition for 
Reconsideration; Notice

  Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / 
Notices   
[[Page 8800]] 

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
[Preemption Determination No. PD-4(R); Docket No. PDA-6(R)]


California Requirements Applicable to Cargo Tanks Transporting 
Flammable and Combustible Liquids; Decision on Petition for 
Reconsideration

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Notice of decision on petition for reconsideration of 
administrative determination of preemption.

-----------------------------------------------------------------------

PETITIONER: California Highway Patrol (CHP).

STATE LAWS AFFECTED: California Vehicle Code (VC), Division 14.7 
(sections 34000-34102), and California Code of Regulations (CCR), Title 
13, Chapter 6, Article 3 (sections 1160-1168) and Article 6 (sections 
1190-1197).

APPLICABLE FEDERAL REQUIREMENTS: Federal hazardous material 
transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials 
Regulations (HMR), 49 CFR parts 171-180.

MODE AFFECTED: Highway.

SUMMARY: RSPA's Associate Administrator for Hazardous Materials Safety 
is denying CHP's petition for reconsideration of the determination that 
California's requirement for an annual inspection of cargo tanks and 
portable tanks used for highway transportation of flammable and 
combustible liquids was preempted by the former Hazardous Materials 
Transportation Act (HMTA) (since revised, codified and enacted without 
substantive change at 49 U.S.C. 5101 et seq.).
    This decision constitutes RSPA's final action on the July 27, 1992 
application for a preemption determination filed by Nalco Chemical Co. 
(Nalco). Any party who submitted comments in Docket No. PDA-6(R) 
(including the applicant) may seek judicial review within 60 days of 
this decision.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief 
Counsel, Research and Special Programs Administration, U.S. Department 
of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001, 
telephone 202-366-4400.

SUPPLEMENTARY INFORMATION:

I. Background

    The California Highway Patrol (CHP) administers a design, 
registration, and inspection program applicable to cargo tanks and 
portable tanks on vehicles that transport flammable and combustible 
liquids on highways within California. See VC Div. 14.7 and Sec. 34001. 
Excluded from the CHP's Cargo Tank (CT) program are, among others, a 
vehicle's own fuel tanks; tanks smaller than 120 gallons (or most tanks 
smaller than 500 gallons that meet DOT specifications); empty tanks 
(with less than 120 gallons of residue); and intermodal IM 101 and 102 
portable tanks when the highway portion of an interstate shipment is 
less than 25 miles from an ``ocean port or railroad loading or 
unloading terminal.'' VC 34003(a). See also the discussion in 
Preemption Determination (PD) No. 4(R), 58 FR 48933, 48934 (Sept. 20, 
1993).
    In July 1992, Nalco applied for a determination that the HMTA 
preempted major portions of California's CT program. Following notice 
of Nalco's application in the Federal Register, 57 FR 38081 (Aug. 21, 
1992), and the receipt of written comments from all interested parties, 
RSPA issued its determination in PD-4(R) that the former HMTA:
    (a) Preempted California's requirement for an annual inspection of 
cargo tanks and portable tanks used for highway transportation of 
flammable and combustible liquids, as that requirement is applied and 
enforced, because any wait for the arrival of State inspectors from 
another location constitutes an ``unnecessary'' delay;
    (b) did not preempt California's requirement for an annual 
registration, as applied and enforced, because there is no evidence 
that this requirement creates any delays separate from the wait for an 
inspection to be conducted;
    (c) did not preempt California's statute authorizing design and 
construction standards for cargo tanks and portable tanks used to 
transport flammable and combustible liquids, because there is no 
evidence that California enforces design and construction requirements, 
with respect to tanks meeting DOT specifications, that are not 
substantively the same as requirements in the HMR; and
    (d) preempted the following State marking requirements, when 
applied to DOT specification cargo tanks and portable tanks, because 
they are not substantively the same as requirements in the HMR: (1) 
That a metal identification plate be affixed to any tank for which such 
a plate is not required by the HMR (13 CCR 1195); (2) that a ``CT 
number'' be marked on the tank or on a metal identification plate on 
the tank (13 CCR 1194); and (3) that a certification label be affixed 
to the tank and a registration certificate be carried in a waterproof 
holder permanently attached to portable tanks (VC 34044 and 13 CCR 
1193).
    RSPA did not decide whether the former HMTA preempted either: (a) 
California's registration fees, since no party contended that the fees 
are inequitable or used for purposes other than those related to the 
transportation of hazardous materials, or (b) the requirement that the 
remote secondary control for internal valves be clearly labeled (13 CCR 
1197), in the absence of any evidence that Nalco or any other party 
submitting comments is directly affected by this requirement.
    RSPA's determination did not address similar California 
registration, inspection and certification requirements applicable to 
vehicles and tanks used to transport hazardous wastes, but noted that 
these requirements are subject to the same Federal preemption 
provisions and the general principles discussed in PD-4(R). RSPA also 
noted that its determination did not consider or affect State motor 
vehicle inspection and registration requirements that apply to all 
commercial vehicles.
    Within the 20-day time period provided in 49 CFR 107.211(a), CHP 
filed a petition for reconsideration of RSPA's decision in PD-4(R). CHP 
certified that it had mailed a copy of its petition to Nalco and all 
others who had submitted comments, in accordance with 49 CFR 
107.211(c). Four parties responded to CHP's petition for 
reconsideration: Nalco, National Tank Truck Carriers, Inc. (NTTC), 
Chemical Waste Transportation Institute (CWTI), and the 3M Corporation 
(3M).
    In Part II of the decision in PD-4(R), RSPA set forth the standards 
for making determinations of preemption under the former HMTA and the 
specific statutory provisions under which non-Federal requirements 
governing the transportation of hazardous materials are preempted. 58 
FR at 48934-35. On July 5, 1994, President Clinton signed Public Law 
103-272 which extensively revised, codified and enacted without 
substantive change numerous laws related to transportation. The former 
HMTA, 49 App. U.S.C. 1801 et seq., has been repealed and replaced by 49 
U.S.C. Chapter 51 (5101 et seq.), ``Transportation of Hazardous 
Material,'' except as to ``proceedings that were begun before July 5, 
1994.'' Accordingly, the preemption provisions in former 49 App. U.S.C. 
1804 and 1811, discussed in Part II of PD-4(R), remain applicable to 
RSPA's consideration of this petition for reconsideration. However, 
since Congress made no substantive change in [[Page 8801]] passing 49 
U.S.C Chapter 51, this decision will cite to the preemption criteria as 
presently set forth in 49 U.S.C. 5125.

II. Petition for Reconsideration

    CHP's petition seeks reconsideration of the decision in PD-4(R) 
that 49 U.S.C. 5125(a) preempts California's requirement for an annual 
inspection of cargo tanks and portable tanks used to transport 
flammable and combustible liquids. It does not contest RSPA's 
determination that 49 U.S.C. 5125(b) preempts certain requirements for 
marking these tanks, although CHP states that it ``will petition RSPA 
for a waiver of preemption'' as to the requirement for a ``metal 
identification plate on a non-spec cargo tank (13 CCR 1195).'' With 
respect to the annual inspection requirement, CHP asks for ``correction 
of [three alleged] factual errors,'' and it asks three questions for 
``written clarification of the application of the preemption 
[determination].''
    First, CHP contends that there was no ``current substantive 
evidence that significant delays were still being experienced.'' 
According to CHP, the comments by Union Pacific Railroad Co. (UPRR) and 
CWTI concerned the separate (but similar) requirements imposed on 
transporters of hazardous waste, under California's Hazardous Waste 
Vehicle and Container Inspection and Certification Program (HWIC), 
rather than the delays currently being experienced under the CT 
Program. CHP refers to the availability of temporary registration under 
the CT program, which supposedly eliminates the delays experienced in 
the HWIC Program. And it reiterates that it ``has more than doubled the 
number of inspectors statewide since UPRR's comments were made * * * 
and invited Nalco to update [its] experience.''
    CHP charges that comments by both Nalco and 3M are ``invalid,'' on 
the ground that these comments did not consider changes made to the CT 
Program between 1990 and 1993. CHP alleges that the Hazardous Materials 
Advisory Council (HMAC) and NTTC did not provide substantial or 
substantive evidence of a burden on commerce or an obstacle to 
compliance with the Federal hazardous material transportation law and 
the HMR. CHP also argues that comments ``about the proliferation of 
other states' programs failed to address the addition of 34120 and 
34121 VC which authorized reciprocity with CT Programs by other States 
and the Federal Government.''
    Second, CHP asserts that RSPA has improperly interpreted 49 CFR 
177.853(a) to prohibit ``safety related delays, including compliance 
with mandatory inspection programs [which] are legitimate reasons for 
delay.'' It argues that the intent of this regulation ``was to balance 
safe transportation of hazardous materials with the need for their 
expeditious delivery,'' and that RSPA's determination ``implies that 
delays for any reason (other than as specifically authorized)''--
including bad weather, road hazards, driver rest periods, and 
holidays--are ``unnecessary.'' CHP also argues that 177.853(a) should 
not apply to any delays after delivery of the tank's contents, since 
that is the ``point of `final discharge at destination.'''
    Third, CHP states that RSPA also may not clearly understand--and 
that HMAC and NTTC failed to investigate or address--California's

    Temporary registration process that allows the carrier to simply 
forward the registration fees via a telegraphic money order and 
carry a copy as temporary cargo tank registration for up to 10 days 
(see 13 CCR 1190.1(b)) as proof of registration.

CHP asserts that a carrier's ability to ``obtain a temporary cargo tank 
registration for any out-of-state based cargo tank 24 hours a day, 365 
days a year'' avoids delays, because the temporary registration allows 
the tank to enter the State, be unloaded, and then be presented for 
inspection. CHP continues that a 1992 amendment to the inspection 
requirement ``allows the carriers to freely move a tank that contains 
only residue throughout the State without current registration,'' so 
the carrier is subject to citation only if it reloads the tank with a 
flammable or combustible liquid after failing to be inspected within 10 
days of entering California.
    Besides these alleged errors, CHP asks RSPA to answer the following 
questions to clarify the ruling in PD-4(R):

    1. Given the fact that the HMTUSA allows the State the authority 
to require a cargo tank registration program (separate from the 
inspection program), can the State require some form of proof of 
registration be carried with the packaging (cargo or portable tank) 
either directly on the packaging or carried in the vehicle (or 
vehicle combination)?
    2. Based on the fact that HMTA allows the State to operate a 
registration program, can the State require some means of positively 
identifying the packaging in order to verify its registration 
(keeping in mind that nearly all bulk packagings have some type of 
unique identifier)? Please note that non-specification (DOT) 
packagings which require no identification are the central issue.
    3. Is our understanding of the ruling correct in that the 
mandatory inspection and certification is only preempted for tanks 
based out of California (i.e., the State is not preempted from 
requiring a mandatory inspection of tanks based in California as the 
operators of these tanks have adequate opportunity to have the tanks 
inspected prior (up to 60 days prior) to the expiration of the 
previous registration/certification)?

III. Comments Responding to the Petition for Reconsideration

    Three parties submitted comments opposing CHP's petition for 
reconsideration: Nalco, NTTC, and CWTI. In addition, 3M stated that it 
now uses portable tanks that are no longer covered by the CHP 
inspection requirement (although it incurred costs ``in reverting to 
drum shipments and back to portable tanks once the amendment became 
effective''), and thus was withdrawing its earlier comments.
    As it had earlier, Nalco acknowledges ``improvements in 
California's registration and inspection processing,'' but contends 
that ``delays continue to be encountered, both in this program and in 
the immediately parallel program on wastes.'' It asserts that CHP's 
``focus is misplaced,'' because the ``primary issue is not the minutes 
or hours of delay as they affect a particular tank on a particular day 
but, rather, whether the delay is `unnecessary' as that term is used in 
the regulations.'' Nalco contends that RSPA has not misinterpreted 49 
CFR 177.853(a) because ``[e]xpeditious delivery is a safety issue, not 
a commercial one.''
    NTTC disagrees that any of the parties had ``confused'' the 
requirements of California's HWIC and CT Programs or that there was any 
error from an alleged failure to respond to the changes in the CT 
Program which CHP implemented between 1990 and 1993. NTTC quotes the 
language at 58 FR 48933 stating that PD-4(R) ``does not address'' the 
HWIC Program, and it asserts that RSPA properly considered ``the fact 
patterns as presented in the original petitions.''
    NTTC contends that temporary registration will not prevent delays. 
It states that, even if a carrier's headquarters ``telegraphs a money 
order to CHP,'' the truck may depart before confirmation of 
registration, and ``geography and time zone differences assure that the 
driver will not have a copy of the documentation.'' NTTC also presents 
situations in which delays would exceed the 10-day period permitted for 
inspection, under a temporary registration:

    Truck deliveries may be made during weekends or at hours when 
inspectors are not available. Inspectors take holidays, they call in 
sick or they may be redispatched to more pressing duties. Surely the 
state is not asserting that a vehicle ``hang around'' until such 
contingencies are resolved?

    [[Page 8802]] NTTC also states that the ``reciprocity' provisions'' 
in the CT program are illusory, because ``CHP failed to give but one 
example of another state joined by such provisions.'' According to 
NTTC, ``the extension of reciprocity is discretionary. There are no 
readily-available criteria upon which a carrier (or even another state) 
can rely to determine whether or not an existing program is 
`reciprocal' with California.''
    CWTI similarly argues that ``reciprocity has not materialized.'' It 
asserts that CHP's discussion of ``factual errors'' and ``changes to 
the CT program'' miss the point of the decision in PD-4(R): ``To the 
extent [that] CHP can demonstrate to RSPA that its CT program no longer 
causes `unnecessary' delay, the CHP may begin to apply and enforce its 
requirements.'' CWTI contends that CHP has not eliminated unnecessary 
delay, even by hiring more inspectors:

    The unavailability of inspectors, however, is only part of the 
unnecessary delay problem. Delay also results from the advance 
notification of hazardous materials shipments which must attend all 
inspections in order to arrange for the inspection and routing of 
vehicles and bulk packagings to inspection locations, as well as 
delays which may result from the logistics of obtaining, completing, 
and filing authorized documentation of vehicle/bulk packaging 
registration and fees.

    CWTI likens delays for bad weather and holidays to ``acts of God,'' 
and states the ``key point'' to be that ``state program deficiencies 
evidenced by a lack of inspectors and/or inspection locations do not 
justify delay in the transportation of hazardous materials.'' Citing 
the legislative history and findings in the 1990 amendments to the 
former HMTA, CWTI argues that unnecessary delay inhibits safety, not 
just commerce. And it states that RSPA is the proper agency to balance 
what CHP asserts are competing goals of ``safe transportation'' and 
``expeditious delivery.''
    CWTI initially accepted statements in the petition for 
reconsideration that CHP ```routinely find(s) tanks that are not in 
compliance with the HMR,''' as short as one day after certification by 
a DOT-registered facility, but argued that this simply proves that 
``any inspection is as good as the point in time in which it is 
conducted,'' and ``roadside inspections are vital to ensuring the safe 
transportation of hazardous materials.'' (In supplemental comments 
dated November 17, 1993, CWTI disagreed with CHP's statements of 
routinely finding tanks in violation of the HMR, based on data in the 
Federal Highway Administration's 1992 Annual Report. These supplemental 
comments are not necessary for reaching a decision on CHP's petition 
for reconsideration.) CWTI asserted that, rather than proceeding with 
``unilateral state action,'' CHP should provide more specific data to 
support its concern that periodic inspections under DOT's regulations 
are inadequate.
    CWTI finds CHP's statements concerning the absence of temporary 
registration under the HWIC Program is an admission that ``the HWIC 
program causes `unnecessary delay.''' It requests that ``RSPA repeat in 
as strong of terms as possible its directive that the CHP desist 
applying and enforcing the HWIC program in a manner which is 
inconsistent with the principles contained in PD-4(R).'' CWTI also 
states that RSPA correctly decided that 49 U.S.C. 5125(b) preempts 
California's marking requirements, and that CHP should have 
``participate[d] in the formulation of federal requirements for the 
marking/certification of cargo tanks used for the transportation of 
hazardous materials,'' in RSPA's rulemaking Docket No. HM-183. CWTI 
notes that RSPA reached no conclusion about the registration fees under 
the CT Program, and comments that the requirement that fees be 
equitable, in former 49 App. U.S.C. 1811(b) (reworded as ``fair'' in 49 
U.S.C. 5125(g)), is generally violated when ``fees remain unapportioned 
for carriers operating in interstate commerce.''
    Nalco, NTTC and CWTI all challenge CHP's implicit positions, in the 
questions, that it would be appropriate to require proof of 
registration to ``be transported with the packaging (cargo or portable 
tank)'' and ``some means of positively identifying the packaging in 
order to verify its registration.'' NTTC states that all tanks have 
some means of identification; ``[e]ven non specification cargo tanks 
have VIN numbers.'' Nalco agrees, stating that as part of the 
registration process, States gather information about the registrant 
and its equipment and can ``provide it directly to their inspectors 
without having to decorate the interior or exterior of the vehicle for 
each jurisdiction for the inspectors' convenience.'' CWTI opposes what 
it calls CHP's ``efforts to reassert a linkage between specific 
vehicles and registration.'' It alleges the ``burden that would result 
if other states insisted on unique numbers and shipping paper 
requirements,'' and refers to recommendations of a working group on 
uniform forms and procedures for registration and permitting, under 49 
U.S.C. 5119. According to CWTI, the working group has recommended State 
registration of hazardous materials carriers, not specific vehicles or 
packagings.
    Nalco and NTTC disagree with CHP's conclusion that an annual 
inspection may still be required for cargo tanks and portable tanks 
based in California. They consider that the decision in PD-4(R) applies 
to all tanks regulated by the HMR, and Nalco comments that, ``in light 
of the anticipated rule in Docket No. HM-200,'' the small number of 
tanks presently not governed by the HMR ``does not warrant the 
confusion that would be caused by a State program addressed only to 
these units.''

IV. Discussion

    As discussed in PD-4(R), Nalco's original challenge to California's 
inspection requirement, in 1990, was accompanied by an affidavit 
setting forth specific dates that ``filled incoming tanks'' were held 
waiting the arrival of a CHP inspector, ``thereby delaying delivery to 
customers.'' 58 FR at 48938. Two parties submitting comments in the 
original proceeding (designated IRA-53) provided specific time periods 
for CHP's delays in inspecting tanks: Union Pacific cited waits of up 
to five days for inspections at its intermodal ramps (which CHP states 
referred only to tanks containing hazardous wastes), and CWTI stated 
that it had encountered ``delays of two to three days for an 
inspection'' of tanks used for hazardous wastes. 58 FR at 48939.
    After the application in IRA-53 was returned to Nalco, and Nalco 
petitioned for an administrative determination of preemption pursuant 
to what is now 49 U.S.C. 5125(d), no party submitted further 
information as to the specific periods that cargo tanks and portable 
tanks used for flammable and combustible liquids were being delayed. 
Rather, Nalco stated that ``improvements and pre-payment options have 
speeded the issuance of instructions to the field * * *, but 
unnecessary delays are still encountered * * * compounded by 
inspector[s'] schedules, vacations and sick leave.'' 48 FR at 48938. 
CHP acknowledged that some delays still exist, despite modifications 
such as reducing the number of tanks subject to inspection, increasing 
the number of inspectors, establishing inspection stations at four 
port-of-entry locations, and providing a 10-day temporary registration 
that allows a carrier to enter California and deliver its load before 
being inspected.
    At no time, however, in its prior comments or in its petition for 
reconsideration, has CHP contended that it has eliminated situations 
where the transportation of a loaded tank must be interrupted and wait 
for the arrival [[Page 8803]] of an inspector. Rather CHP acknowledged, 
in its opening comments in PDA-6(R), that ``some instances have 
resulted in inspections not being performed in as timely a manner as 
the CHP or industry would like * * * due to lack of adequate planning 
on the part of both the operator and the CHP.'' In its rebuttal 
comments, CHP stated that, with the ``current [inspection] staff and 
the four POE facilities we can inspect nearly all out-of-state 
domiciled cargo tanks without any diversion or delays.'' It contended 
that the remaining delays encountered in performing inspections are 
reasonable, justified and not ``unnecessary'' based on the number of 
violations found--as CHP again contends in its petition for 
reconsideration.
    RSPA's decision in PD-4(R) did not ignore safety, but rather 
followed the prior inconsistency rulings in which RSPA consistently 
found that the safe transportation of hazardous materials is advanced 
by 49 C.F.R. 177.853(a) which prohibits ``unnecessary'' delays. See the 
discussion at 58 FR 48939-41. The argument in CHP's petition for 
reconsideration that safety justifies delays does not provide any 
answer. Safety has been alleged as the basis of every non-Federal 
requirement that has been challenged, and considered by RSPA, since the 
former HMTA first provided for the preemption of ``inconsistent'' State 
and local requirements.
    The only difference cited by CHP to distinguish the CT inspection 
program and the HWIC program applicable to carriers of hazardous waste 
is the availability of a 10-day temporary registration under the CT 
program only. Whether or not the procedures for temporary registration 
can eliminate delays, there is no information that they have eliminated 
delays. Moreover, NTTC asserts that temporary registration will not 
always prevent delays.
    The CT and HWIC inspection programs appear to be otherwise similar, 
and the inspections under both are conducted by CHP. For that reason, 
RSPA must assume that waits experienced by transporters of hazardous 
waste (such as UPRR and CWTI) are representative of waits faced by an 
interstate carrier of flammable or combustible liquids, when that 
carrier is unable to obtain a temporary registration or plan its 
arrival to allow for inspection at a POE location.
    In addition, CHP's admissions that it has not eliminated situations 
where loaded tanks must wait for an inspector to arrive to conduct an 
inspection make the specific number of days' wait cited by UPRR and 
CWTI unnecessary for RSPA's decision.
    The decision in PD-4(R) was a narrow one. As specifically noted 
there, RSPA encourages State and local governments to adopt and enforce 
the requirements in the HMR through inspections. 58 FR 48940-41. During 
fiscal 1994, DOT provided grants in excess of $64 million to all 
States, and $3.2 million to California, to carry out inspections under 
the Federal Motor Carrier Assistance Program. See generally 49 CFR Part 
350 governing grants ``to encourage each State to enforce uniform motor 
carrier safety and hazardous materials regulations for both interstate 
and intrastate motor carriers and drivers.'' 49 CFR 350.5.
    Moreover, RSPA agreed with all parties that the time involved to 
conduct a tank inspection was reasonable, and not unnecessary, 
including any time waiting one's ``turn'' for an inspector already 
present. 58 FR at 48941. But RSPA found that forcing a tank to wait for 
the arrival of an inspector from another location was an 
``unnecessary'' delay, and because California's CT program was not free 
from these kinds of delays it created an obstacle to the accomplishment 
and execution of the Federal hazardous material transportation law and 
the HMR. California ``may not require an inspection as a condition of 
travelling on California's roads when the inspection cannot be 
conducted without delay because an inspector must come to the place of 
inspection from another location.'' Id. For that reason, RSPA found 
that the provision now codified at 49 U.S.C. 5125(a) preempted the 
inspection requirement in VC 34060 and 13 CCR 1192, as that requirement 
was being applied and enforced.
    If and when California eliminates the unreasonable delays in its 
inspection program, that requirement will no longer be preempted. 
Nothing in CHP's petition for reconsideration, however, provides any 
basis for RSPA to change the decision in PD-4(R).
    It is not possible to provide complete answers to CHP's three 
questions for clarification of the decision in PD-4(R), since 
preemption under the ``obstacle'' criterion depends upon the manner in 
which a non-Federal requirement is enforced and applied. (See also the 
statement in H.R. Rep. 101-444, 101st Cong., 2d Sess. 49, that Congress 
did not intend for DOT to be a ``clearing house for obtaining advisory 
opinions with respect to legislative or regulatory ideas and notions 
prior to enactment.'') However, the following responses can be made:
    1. CHP has asked about requirements for ``some proof of 
registration * * * directly on the packaging or carried in the 
vehicle.'' As specifically discussed in PD-4(R), unless otherwise 
authorized by Federal law, any non-Federal requirement for a ``marking 
* * * of a packaging or a container represented, marked, certified, or 
sold as qualified for use in transporting hazardous material'' is 
preempted unless it is ``substantively the same as'' the requirements 
in the Federal hazardous material transportation law and the HMR. 49 
U.S.C. 5125(b)(1)(E). See 58 FR at 48936-37. A requirement to carry 
additional documentation on a vehicle transporting hazardous materials, 
beyond that required in the HMR, may create an obstacle to the 
accomplishment and execution of the Federal hazardous material 
transportation law and the HMR. See Colorado Pub. Util. Comm'n v. 
Harmon, 951 F.2d 1571, 1581 (10th Cir. 1991).
    2. CHP has asked about ``some means of positively identifying the 
packaging'' and noted that its concern is primarily with non-DOT 
specification packagings, since all DOT specification tanks subject to 
the CT program have a metal identification plate and, in some 
instances, a separate metal certification plate. As discussed in PD-
4(R), any marking on the tank itself is a ``marking * * * of a 
packaging or a container represented, marked, certified, or sold as 
qualified for use in transporting hazardous material.'' 49 U.S.C. 
5125(b)(1)(E); 58 FR 48937. To the extent that non-specification 
packagings do not already contain some unique identifying 
characteristic and California believes that they must in order to 
transport hazardous materials, California may submit a petition for 
rulemaking in accordance with 49 CFR part 106.
    3. CHP has asked about the application of the decision in PD-4(R) 
to ``tanks based in California.'' However, it does not indicate whether 
it assumes that these tanks remain completely within California or 
travel throughout the United States. Tanks that never leave California 
would not experience delays associated with entering the State or being 
rerouted around California. See PD-5(R), Massachusetts Requirement for 
an Audible Back-up Alarm, etc., 58 FR 62707, 62710 (Nov. 29, 1993). On 
the other hand, ``tanks based in California'' which are used in other 
States may well experience the same types of delays as ``tanks based 
out of California.''

V. Ruling

    For the reasons stated above, the CHP petition for reconsideration 
is denied. [[Page 8804]] This decision incorporates and reaffirms the 
determination set forth at 58 FR 48933 that the provisions now codified 
at 49 U.S.C. 5125(a) and (b) preempt:
    A. California's requirement in VC 34060 and 13 CCR 1192 for an 
annual inspection of cargo tanks and portable tanks used for highway 
transportation of flammable and combustible liquids, as that 
requirement is applied and enforced, because any wait for the arrival 
of State inspectors from another location constitutes an 
``unnecessary'' delay.
    B. VC 34042(d) and 34061(c), which provide that the failure to make 
a cargo tank or portable tank available for inspection is a ground for 
denial, suspension or revocation of registration, and 13 CCR 1193, 
requiring that cargo tanks and portable tanks transporting flammable 
and combustible liquids pass an inspection to be certified.
    C. The following requirements to mark cargo tanks and portable 
tanks transporting flammable and combustible liquids, because they are 
not substantively the same as requirements in the HMR: (1) 13 CCR 1195, 
that a metal identification plate be affixed to any tank for which such 
a plate is not required by the HMR; (2) 13 CCR 1194, that a ``CT 
number'' be marked on the tank or on a metal identification plate; and 
(3) VC 34044, 34101 and 13 CCR 1193, that a certification label be 
affixed to the tank and that a registration certificate be carried in a 
waterproof holder permanently attached to a portable tank, together 
with the provisions for removal of the certification label in VC 34062-
63.

VI. Final Agency Action

    In accordance with 49 CFR 107.211(d), this decision constitutes 
RSPA's final agency action on Nalco's application for a determination 
of preemption as to the above-specified California requirements 
applicable to cargo tanks transporting flammable and combustible 
liquids. Any party to this proceeding ``may bring a civil action in an 
appropriate district court of the United States for judicial review of 
[this] decision * * * not later than 60 days after the decision becomes 
final.'' 49 U.S.C. 5125(f).

    Issued in Washington, D.C. on February 7, 1995.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 95-3591 Filed 2-14-95; 8:45 am]
BILLING CODE 4910-60-P