[Federal Register Volume 61, Number 13 (Friday, January 19, 1996)]
[Notices]
[Pages 1432-1434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-547]



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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
[Docket No. PDA-14(R)]


Application by National Tank Truck Carriers, Inc., for a 
Preemption Determination as to Hazardous Materials Requirements Imposed 
by the City of El Paso, Texas

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

ACTION: Public notice and invitation to comment.

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SUMMARY: The National Tank Truck Carriers, Inc. (NTTC) has applied for 
an administrative determination as to whether the Federal hazardous 
material transportation law preempts certain provisions of Chapter 9.56 
of the City of El Paso, Texas Municipal Code requiring motor carriers 
or operators that transport hazardous materials to obtain a permit 
based on inspections which are conducted only during limited time 
periods, from November 1 through December 31 of each year.

DATES: Comments received on or before March 4, 1996, and rebuttal 
comments received on or before April 18, 1996, will be considered 
before an administrative ruling is issued by RSPA's Associate 
Administrator for Hazardous Materials Safety. Rebuttal comments may 
discuss only those issues raised in comments received during the 
initial comment period and may not discuss new issues.

ADDRESSES: The application and any comments received may be reviewed in 
the Dockets Unit, Research and Special Programs Administration, Room 
8421, 400 Seventh Street, SW, Washington, DC 20590-0001 (Tel. No. [202] 
366-4453). Comments and rebuttal comments on the application may be 
submitted to the Dockets Unit at the above address, and should include 
the Docket Number (PDA-14(R)). Three copies of each should be 
submitted. In addition, a copy of each comment and each rebuttal 
comment must be sent to: (1) Mr. Clifford J. Harvison, President, 
National Tank Truck Carriers, Inc., 2200 Mill Road, Alexandria, VA 
22314; and (2) Mr. David Caylor, City Attorney, City of El Paso, #2 
Civic Center Plaza, Ninth Floor, El Paso, TX 79901. A certification 
that a copy has been sent to each person must also be included with 
each comment. (The following format is suggested: ``I hereby certify 
that copies of this comment have been sent to Messrs. Harvison and 
Caylor at the addresses specified in the Federal Register.'')

FOR FURTHER INFORMATION CONTACT: Karin V. Christian, Attorney, Office 
of the Chief Counsel, Research and Special Programs Administration, 
U.S. Department of Transportation, 400 Seventh Street SW, Washington, 
DC 20590-0001 (Tel. No. [202] 366-4400).

SUPPLEMENTARY INFORMATION:

I. NTTC'S Application for a Preemption Determination

    On December 10, 1995, NTTC applied for a determination that the 
Federal hazardous material transportation law preempts certain 
provisions of Chapter 9.56 of the City of El Paso, Texas Municipal Code 
requiring motor carriers or operators transporting hazardous materials 
to obtain permits based on inspections conducted only during limited 
periods of time, from November 1 through December 31 of each year.
    Section 9.56.080 of the City of El Paso Municipal Code states:
    (a) It is unlawful for any motor carrier or operator to transport 
hazardous materials from a point of origin within the city or to a 
point of destination within the city without a permit issued by the 
Fire Marshal, or his designee.
    (b) The annual inspection period shall be from November 1 through 
December 31 of each year.
    (c) A permit fee of Fifty Dollars ($50.00) per vehicle shall be 
paid upon inspection of the vehicle. Vehicles failing inspection shall 
be assessed an additional Twenty-Five Dollars ($25.00) fee for 
reinspection.
    (d) No permit issued under this Chapter shall be transferable from 
one person to another nor from one vehicle to another. The permit shall 
be visibly posted in each vehicle.
    The text of NTTC's application is set forth in Appendix A. The 
attachments to the application, consisting of a copy of the ordinance 
adopting a new Chapter 9.56 of the El Paso Municipal Code and an El 
Paso Fire Department letter confirming active enforcement of the 
ordinance, may be examined at RSPA's Dockets Unit. Copies of the 
attachments will be provided at no cost, upon request to RSPA's Dockets 
Unit (see the address and telephone number set forth in the Addresses 
section above.)

II. Preemption Under the Federal Hazardous Material Transportation Law

    The Hazardous Materials Transportation Act (HMTA) was enacted in 
1975 to give the Department of Transportation greater authority ``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. 93-633 Sec. 102, 88 Stat. 2156, amended by Pub. L. 
103-272 and codified as revised in 49 U.S.C. 5101. A key aspect of HMTA 
is that it replaced a patchwork of State and local laws. On July 5, 
1994, the HMTA was among the many Federal laws relating to 
transportation that were revised, codified and enacted ``without 
substantive change'' by Public Law 103-272, 108 Stat. 745. The Federal 
hazardous material transportation law is now found in 49 U.S.C. Chapter 
51.
    A statutory provision for Federal preemption was central to the 
HMTA. In 1974, the Senate Commerce Committee ``endorse[d] the principle 
of preemption in order to preclude a multiplicity of State and local 
regulations and the potential for varying as well as conflicting 
regulations in the area of hazardous materials transportation.'' S. 
Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974). More recently, the U.S. 
Court of Appeals for the Tenth Circuit found that uniformity was the 
``linchpin'' in the design of the HMTA, including the 1990 amendments 
which expanded the preemption provisions. Colorado Public Utilities 
Comm. v. Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991).
    Following the 1990 amendments and the subsequent 1994 codification 
of the Federal law governing the transportation of hazardous material, 
in the absence of a waiver of preemption by the Department of 
Transportation (DOT) under 49 U.S.C. 5125(e), ``a requirement of a 
State, political subdivision of a State, or Indian tribe'' is 
explicitly preempted (unless it is authorized by another Federal law) 
if--

    (1) complying with a requirement of the State, political 
subdivision or tribe and a requirement of this chapter or a 
regulation issued under this chapter is not possible; or
    (2) the requirement of the State, political subdivision, or 
Indian tribe, as applied or enforced, is an obstacle to 
accomplishing and carrying out this chapter or a regulation 
prescribed under this chapter.

49 U.S.C. 5125(a). These two paragraphs set forth the ``dual 
compliance'' and ``obstacle'' criteria which RSPA consistently has 
applied since 1978.
    In the 1990 amendments to the HMTA, Congress also confirmed that 
there is no room for deviations from 

[[Page 1433]]
Federal requirements in certain key matters involving the 
transportation of hazardous material. Under the present codified 
statute, a non-Federal requirement ``about any of the following 
subjects, that is not substantively the same as a provision of this 
chapter or a regulation prescribed under this chapter,'' is preempted 
unless it is authorized by another Federal law or DOT grants a waiver 
of preemption. Section 5125(b)(1) lists these five ``covered subjects'' 
as:

    (A) the designation, description, and classification of 
hazardous material.
    (B) the packing, repacking, handling, labeling, marking, and 
placarding of hazardous material.
    (C) the preparation, execution, and use of shipping documents 
related to hazardous material and requirements related to the 
number, contents, and placement of those documents.
    (D) the written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material.
    (E) 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.

RSPA has defined ``substantively the same'' to mean ``conforms in every 
significant respect to the Federal requirement. Editorial and other 
similar de minimis changes are permitted.'' 49 CFR 107.202(d).
    Under 49 U.S.C. 5125(d)(1), any person directly affected by a 
requirement may apply to the Secretary of Transportation for a 
determination whether a State, political subdivision, or Indian tribe 
requirement is preempted by the Federal hazardous material 
transportation law. Notice of an application for a preemption 
determination must be published in the Federal Register, and the 
applicant is precluded from seeking judicial relief on the ``same or 
substantially the same issue'' of preemption for 180 days after the 
application, or until the Secretary takes final action on the 
application, whichever occurs first. Following the receipt and 
consideration of written comments, RSPA publishes its determination in 
the Federal Register. See 49 C.F.R. 107.209(d). A party to a preemption 
determination proceeding may seek judicial review of the determination 
in U.S. district court within 60 days after the determination becomes 
final. 49 U.S.C. 5125((f).
    The Secretary of Transportation has delegated to RSPA the authority 
to make determinations of preemption, except for those concerning 
highway routing, which have been delegated to the Federal Highway 
Administration. 49 CFR 1.53(b). RSPA's regulations concerning 
preemption determinations are set forth at 49 CFR 107.201-107.211. 
Under these regulations, RSPA's Associate Administrator for Hazardous 
Materials Safety issues preemption determinations. Any person aggrieved 
by RSPA's decision on an application for a preemption determination may 
file a petition for reconsideration within 20 days of service of that 
decision. 49 CFR 107.211(a).
    The decision by RSPA's Associate Administrator for Hazardous 
Materials Safety becomes RSPA's final decision 20 days after service if 
no petition for reconsideration is filed within that time; the filing 
of a petition for reconsideration is not a prerequisite to seeking 
judicial review under 49 U.S.C. 5125(f). If a petition for 
reconsideration is filed, the action by RSPA's Associate Administrator 
for Hazardous Materials Safety on the petition for reconsideration is 
RSPA's final agency action. 49 CFR 107.211(d).
    Preemption determinations do not address issues of preemption 
arising under the Commerce Clause of the Constitution or under statutes 
other than the Federal hazardous material transportation law unless it 
is necessary to do so in order to determine whether a requirement is 
authorized by another Federal law.
    In making preemption determinations under 49 U.S.C. 5125(d), RSPA 
is guided by the principles and policy set forth in Executive Order No. 
12,612, entitled ``Federalism'' (52 FR 41685 [Oct. 30, 1987]). Section 
4(a) of that Executive Order authorizes preemption of State laws only 
when a statute contains 10 an express preemption provision, there is 
other firm and palpable evidence of Congressional intent to preempt, or 
the exercise of State authority directly conflicts with the exercise of 
Federal authority. Section 5125 contains express provisions, which RSPA 
has implemented through its regulations.

III. Public Comment

    All comments should be limited to the issue of whether the cited 
provisions of Chapter 9.56 of the City of El Paso Municipal Code are 
preempted by the Federal hazardous material transportation law. 
Comments should specifically address the preemption criteria 
(``substantively the same,'' ``dual compliance,'' and ``obstacle'' 
tests described in Part II above) and whether the City of El Paso 
Municipal Code requirements are ``otherwise authorized by Federal 
law.''
    Persons intending to comment should review the standards and 
procedures governing RSPA's consideration of applications for 
preemption determinations, set forth at 49 CFR 107.201-107.211.

    Issued in Washington, DC on January 11, 1996.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
    Appendix A--A Petition Seeking a ``Preemption Determination'' With 
Regard to Specified Laws and Ordinances of the City of El Paso, Texas. 
Filed by: National Tank Truck Carriers, Inc.
    Before The Administrator:
    National Tank Truck Carriers, Inc. (NTTC) is a trade association 
representing over 200 motor carriers specializing in the transportation 
of hazardous materials, hazardous substances and hazardous wastes in 
cargo tank motor vehicles. Typically, this association's membership 
operates vehicles over irregular routes throughout the continental 
United States.
    Virtually all of the members of NTTC are involved in the ``common 
carrier'' transportation of commodities regulated as ``hazardous 
materials'' by the Administrator. Given the nature of ``common 
carriage'', individual members of this [association], having neither a 
domicile nor a terminal in El Paso, Texas, are (nonetheless) called 
upon to perform transportation services into, out of and through that 
City. Thus, the interests of this Association (and its individual 
members) are impacted.
    Most recently, this association has become aware that the City of 
El Paso, Texas intends an active enforcement program relative to 
provisions of Chapter 9.56 of that city's ``Municipal Code'' (herein 
referred to, alternatively, as ``the Ordinance''). A copy of Chapter 
9.56 (as forwarded to NTTC by the City Clerk's office of the City) is 
appended to this petition. Also attached is a copy of a letter from the 
City's Fire Department underscoring the intention of the City to 
conduct vehicle inspections, during a limited period of time. 
Presumably, the vehicular inspections are a prerequisite to obtaining a 
permit mandated by the Ordinance. We enclose this letter only to 
underscore the fact that active enforcement is contemplated by the 
City. The issue is not moot.

NTTC's Position

    NTTC believes that substantial provisions of the City of El Paso's 
Chapter 9.56, as enforced, are preempted by the Hazardous Materials 
Transportation Uniform Safety Act (as amended) (``the Act''), and we 
ask that 

[[Page 1434]]
following public notice and opportunity for comment the Administrator 
issue a formal determination of preemption. Specifically, NTTC believes 
that the El Paso regulation, as currently applied and enforced, would 
cause a motor carrier to violate 49 CFR 177.853(a).

A Brief Description of the Issue

    On December 29, 1993, officials of the City of El Paso codified 
revisions of Chapter 9.56 of the city's Municipal Code. Certain 
provisions of the new Ordinance encompass ``findings'', various 
definitions, ``minimum safety requirements'', a routing scheme 
(including allowable circumstances for deviation), ``permits and 
fees'', ``violations and penalties'', etc. It would appear that the 
Ordinance is enforceable against any commercial vehicle laden with 
hazardous materials, regardless of configuration (e.g. cargo tank vs. 
van trailer, etc.). Moreover, via the Ordinance the city adopts certain 
portions of the Administrator's Hazardous Materials Regulations (HMR) 
as its own.
    According to NTTC's interpretation of Chapter 9.56, virtually any 
transporter having cause to pick-up and/or deliver regulated quantities 
of any hazardous material (as defined within the HMR), at any time in a 
given year at any place in the City, would be required to present any 
and all vehicles used in such transportation at designated points 
within the city, between November 1 and December 31, each year, for 
inspection. We assume that the inspection would evaluate compliance 
with relevant Federal regulations. Presuming satisfactory completion of 
the inspection, the vehicle owner would pay a fee (for the inspection) 
and be issued a ``permit''. That permit would be valid for one year and 
must be ``visibly posted'' in the vehicle. Permits may not be 
transferred from vehicle to vehicle.
    The permit is subject to revocation, suspension, modification or 
denial, and an appeal process is in place. The provisions of the 14 
Ordinance are enforceable by designated city employees and the 
penalties for non-compliance are substantial.

Safety and Operational Considerations

    From the standpoint of its impact on the tank truck industry, 
Chapter 9.56 is little more than a series of enforceable requirements 
rolled into one. Herein, NTTC will concentrate on two areas of concern; 
namely, the ``permit'' and the ``inspection''.
    Historically, the Administrator has charged petitioners (in these 
disputes) to evaluate state and local restrictions in terms of the 
``dual compliance test'' and/or the ``obstacle test''.
    Standing alone, neither the inspection program nor the permit 
scheme invite review. Certainly, NTTC would not question the efficacy 
of safety inspections conducted by trained personnel and aimed at 
measuring compliance with Federal safety regulations. Similarly (and 
beginning with IR#2), the Administrator has held that a permit, per se, 
is not necessarily preempted.
    In the case of the El Paso law, however, the inspection and the 
permit are linked, inexorably. One cannot obtain a permit without an 
inspection and one cannot have a vehicle inspected unless he/she 
presents that vehicle before city officials at specific points and 
within a very narrow time frame.

Argument

    NTTC believes that the Administrator need not go beyond his 
findings and ruling in the matter of PD-4(R); Docket No. PDA-6(R) 
``California Requirements Applicable to Cargo Tanks Transporting 
Flammable and Combustible Liquids; Decision on Petition for 
Reconsideration'' to justify a ruling that the El Paso Ordinance is 
(similarly) preempted.
    Perhaps unknowingly, the City of El Paso has taken the preempted 
provisions of the California Vehicle Code and added a new and sharply 
limiting twist. California required an in-bound vehicle to remain in 
that state (whether loaded or empty) until a safety inspection had been 
performed. In the alternative, a carrier could ``pre-notify'' 
California officials of a shipment bound for its jurisdiction and 
``schedule'' an inspection. El Paso, on the other hand, would not only 
replicate California's preempted ``waiting'' period, it would compound 
the felony by limiting inspection times to a time frame within November 
1 and December 31.
    As we noted in the California docket, ``the call and demand nature 
of common carriage means that management may be unaware that a given 
vehicle, dispatched from a given terminal at a given time, is destined 
for California.'' Obviously, the same holds true for El Paso.
    Even if the City amends its current procedures for performing 
inspections and issuing permits such must only be done within 
constraints clearly outlined by the Administrator, to wit: (a 
jurisdiction) may not require an inspection as a condition of 
travelling on (that jurisdiction's) roads when the inspection cannot be 
conducted without delay because an inspector must come to the place of 
inspection from another location. (PD-4(R); Docket No. PDA-6(R); 
Decision on Petition for Reconsideration. Issued February 7, 1995).
    We grant the fact that, in the case of El Paso's ordinance some 
circumstances differ from those explored in the California decision, 
but the burden is the same, to wit: the carrier is compelled to present 
its vehicle (whether laden or empty) for inspection at a specific place 
and within a narrow time frame. The net impact of the city's law 
replicates the opportunities (and actualities) for delay preempted in 
California.
    Paraphrasing the Administrator's rationale in preempting the 
California regulations, we suggest that, ``. . . (El Paso) is free, and 
is encouraged, to conduct inspections of cargo tanks and portable tanks 
at POEs, other roadside inspection locations, and terminals. However, 
it may not require an inspection as a condition of travelling on (El 
Paso's) roads when the inspection cannot be conducted without 
(unnecessary) delay. . . .''
    Additionally, and as noted by NTTC in other proceedings, should 
other state or local jurisdictions enact requirements replicating El 
Paso's the result would be chaotic. We foresee wandering parades of 
trucks, of all shapes and sizes, crossing the nation's landscape 
seeking safety inspections in the off-hand chance that sometime in the 
next 365 days they might required to pick up and/or deliver a load to 
one or more of the inspecting jurisdictions. We see the windshields of 
those trucks so plastered with ``permits'' that the driver's field of 
vision is through a ``paper tunnel''.
    Frankly, we doubt that the City has any realistic idea of the 
tumult that would result from comprehensive enforcement of Chapter 
9.56.

Summary

    Chapter 9.56 of the El Paso Municipal Code imposes an inspection 
and permit scheme which, in substance and enforcement, replicates that 
of the State of California which was preempted by the Administrator. As 
such, it deserves (indeed, mandates) a similar fate.

    (Note: A copy of this petition has been sent via first class 
mail to the Office of the City Clerk and the Office of the Mayor of 
El Paso, Texas).

    Respectfully submitted:
Clifford J. Harvison,
President.
[FR Doc. 96-547 Filed 1-18-96; 8:45 am]
BILLING CODE 4910-60-P