[Federal Register Volume 62, Number 111 (Tuesday, June 10, 1997)]
[Notices]
[Pages 31661-31665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15074]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
[Docket No. RSPA-97-2581 (PDA-16(R))]


Application by New York Propane Gas Association for a Preemption 
Determination as to Nassau County, New York, Ordinance on 
Transportation of Liquefied Petroleum Gases

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

ACTION: Public notice and invitation to comment.

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SUMMARY: The New York Propane Gas Association (NYPGA) has applied for 
an administrative determination whether Federal hazardous materials 
transportation law preempts certain sections of a Nassau County, New 
York, ordinance that require a permit for any motor vehicle used to 
deliver liquefied petroleum gas (LPG) within Nassau County and a 
``certificate of fitness'' for any person who delivers LPG.

DATES: Comments received on or before July 25, 1997, and rebuttal 
comments received on or before September 8, 1997, 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 by comments received during the 
initial comment period and may not discuss new issues.

ADDRESSES: The application and all comments received may be reviewed in 
the Dockets Office, U.S. Department of Transportation, Room PL-401, 400 
Seventh Street, SW., Washington, DC 20590-0001. Comments may be 
submitted to the Dockets Office at the above address. Three copies of 
each written comment should be submitted. Comments may also be 
submitted by E-mail to ``[email protected].'' In every case, 
the comment should refer to the Docket Number set forth above.

[[Page 31662]]

    A copy of each comment must also be sent to (1) Mr. Richard 
Brescia, New York Capitol Consultants, Inc., 120 Washington Avenue, 
Albany, New York 12210 (who submitted the application on behalf of 
NYPGA), and (2) The Honorable Thomas S. Gulotta, County Executive, 
Nassau County, 1 West Street, Mineola, New York, 11501. A certification 
that a copy has been sent to these persons must also be included with 
the comment. (The following format is suggested: ``I hereby certify 
that copies of this comment have been sent to Messrs. Brescia and 
Gulotta at the addresses specified in the Federal Register.'')

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief 
Counsel, Research and Special Programs Administration, U.S. Department 
of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:

I. NYPGA's Application for a Preemption Determination

    NYPGA has applied for a determination that Federal hazardous 
material transportation law, 49 U.S.C. 5101 et seq., preempts Sections 
6.7 (A) and (B) and Section 6.8 of Nassau County, New York, Ordinance 
No. 344-1979, concerning Fire Department permits and ``certificates of 
fitness'' for the delivery of LPG within Nassau County. NYPGA 
challenges requirements of the Fire Department for issuance of these 
permits and certificates of fitness, including fees, inspections, and 
written and practical examinations.

A. Permit

    Sections 6.7 (A) and (B) of Ordinance No. 344-1979 provide as 
follows:

    A. No person, firm or corporation shall use or cause to be used, 
any motor vehicle, tank truck, tank semi-trailer, or tank truck 
trailer for the transportation of Liquefied Petroleum Gas, unless 
after complying with these regulations a permit to operate any such 
vehicle has been obtained from the Nassau County Fire Marshal. No 
permit shall be required under this section for any motor vehicle 
that is used for the transportation of Liquefied Petroleum Gas, not 
operated or registered by an authorized dealer, in containers not 
larger than ten (10) gallons water capacity each (approximately 
thirty-four (34) pounds propane capacity) with aggregate, water 
capacity of twenty-five gallons (approximately eighty-seven (87) 
pounds propane capacity) or when used in permanently installed 
containers on the vehicle as motor fuel. This section shall not 
apply to any motor vehicle, tank truck, tank semi-trailer or tank 
truck trailer traveling through Nassau County and making no 
deliveries within the County.
    B. The permit shall be given full force and effect for a period 
of one (1) year.

    NYPGA states that, in order to obtain a permit, the owner of a 
vehicle used to deliver LPG must (1) Pay a fee of $150, or $75 for 
renewal, and (2) have the vehicle inspected. According to NYPGA, 
inspections are conducted by appointment only on two days each month 
(the first and fourth Tuesdays). NYPGA also states that, when a permit 
is issued, a ``windshield sticker'' must be placed on the vehicle.
    NYPGA asserts that the fee is ``inherently unfair'' and preempted 
by 49 U.S.C. 5125(g) which provides that ``a political subdivision * * 
* may impose a fee related to transporting hazardous materials only if 
the fee is fair and used for a purpose related to transporting 
hazardous material * * *'' NYPGA states that the inspection requirement 
is preempted by 49 U.S.C. 5125(a) as an ``obstacle'' to accomplishing 
RSPA's regulations, because the limited inspection times created delays 
in conflict with 49 CFR 177.853(a), which prohibits ``unnecessary 
delays'' in the transportation of hazardous materials. And NYPGA 
contends that the windshield sticker is a labeling requirement that is 
not substantively the same as RSPA's regulations and thus is preempted 
as a ``covered subject'' under 49 U.S.C. 5125(b).

B. Certificate of Fitness

    Section 6.8(A) of Ordinance No. 344-1979 requires a ``Certificate 
of Fitness issued by the Fire Marshal,'' effective for a year and 
renewable, to be held by ``[a]ny person filling containers at locations 
where Liquefied Petroleum Gas is sold and/or transferred from one 
vessel to another * * *'' Section 6.8(I) of the ordinance further 
specifies that a certificate of fitness is required for any person who 
``Fill[s] containers permanently located and installed outdoors with 
appurtenances for filling by a cargo vehicle at consumer sites,'' or 
``Sell[s] Liquefied Petroleum Gas or transfer[s] Liquefied Petroleum 
Gas from one vessel into another.'' NYPGA states that this means that 
each driver of a vehicle used to deliver propane in Nassau County must 
hold a certificate of fitness.
    Other subsections of Sec. 6.8 provide that an applicant for a 
certificate of fitness must complete ``forms provided by the Fire 
Marshal * * * accompanied by the applicable fee'' (Sec. 6.8(B)); must 
demonstrate proof of qualifications and physical competence (Sec. 
6.8(C)); and must undergo an investigation that ``include[s] a written 
examination regarding the use, makeup and handling of Liquefied 
Petroleum Gas and * * * a practical test'' (Sec. 6.8(D)). According to 
Exhibits 8 and 9 to NYPGA's application, an applicant for a certificate 
of fitness must, among other requirements:

--Submit a notarized application form (Exhibit 7) accompanied by a $150 
fee;
--Schedule an appointment for having photographs taken by the Fire 
Marshal's Office;
--Schedule an appointment for taking the written examination at the 
Fire Marshal's Office; and
--Arrange for the practical examination to be given at the applicant's 
place of employment.

    NYPGA asserts that the certificate of fitness is a second driver's 
license required by Nassau County that is prohibited under the Federal 
Highway Administration's regulations concerning commercial driver's 
licenses (see 49 CFR 383.21(a)) and, accordingly, preempted under both 
the ``dual compliance'' and ``obstacle'' standards in 49 U.S.C. 
5125(a). NYPGA further states that Nassau County's requirement for a 
certificate of fitness conflicts with 49 CFR 172.701 that allows a 
State, rather than a political subdivision, to impose more stringent 
training requirements on drivers who are domiciled within the State.
    The text of NYPGA's application is set forth in Appendix A. The 
following attachments to NYPGA's application are not reproduced, but 
copies will be provided at no cost upon request to RSPA's Dockets Unit, 
located in Room 8421, 400 Seventh Street, SW., Washington, DC 20590-
0001; telephone 202-366-4453:

1. Ordinance No. 344-1979.
2. Application for Motor Vehicle Transportation Permit.
3. Permit for Use of Motor Vehicle or Trailer to Transport LPG.
4. Windshield Sticker.
5. Affidavit of John DiBiasi, President, Star-Lite Propane Gas Corp.
6. Letter concerning renewal of permit.
7. Application for Certificate of Fitness.
8. Letter concerning renewal of Certificate of Fitness.
9. Information for Liquefied Petroleum Gas Certificate of Fitness.

II. Federal Preemption

    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.''

[[Page 31663]]

Public Law 93-633 section 102, 88 Stat. 2156, amended by Public Law 
103-272 and codified as revised in 49 U.S.C. 5101. The HMTA 
``replace[d] a patchwork of state and federal laws and regulations * * 
* with a scheme of uniform, national regulations.'' Southern Pac. 
Transp. Co. v. Public Serv. Comm'n, 909 F.2d 352, 353 (9th Cir. 1980). 
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, a Federal 
Court of Appeals found that uniformity was the ``linchpin'' in the 
design of the HMTA, including the 1990 amendments which expanded the 
preemption provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 
1571, 1575 (10th Cir. 1991). In 1990, Congress specifically found that:

    (3) Many States and localities have enacted laws and regulations 
which vary from Federal laws and regulations pertaining to the 
transportation of hazardous materials, thereby creating the 
potential for unreasonable hazards in other jurisdictions and 
confounding shippers and carriers which attempt to comply with 
multiple and conflicting registration, permitting, routing, 
notification, and other regulatory requirements,
    (4) Because of the potential risks to life, property, and the 
environment posed by unintentional releases of hazardous materials, 
consistency in laws and regulations governing the transportation of 
hazardous materials is necessary and desirable,
    (5) In order to achieve greater uniformity and to promote the 
public health, welfare, and safety at all levels, Federal standards 
for regulating the transportation of hazardous materials in 
intrastate, interstate, and foreign commerce are necessary and 
desirable.

Pub. L.101-615 sec. 2, 104 Stat. 3244.
    Following the 1990 amendments and the subsequent 1994 codification 
of the Federal hazardous material transportation law, in the absence of 
a waiver of preemption by 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 the 
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 had applied in 
issuing inconsistency rulings before 1990. While advisory in nature, 
these inconsistency rulings were ``an alternative to litigation for a 
determination of the relationship of Federal and State or local 
requirements'' and also a possible ``basis for an application * * * 
(for) a waiver of preemption.'' Inconsistency Ruling (IR) No. 2, Rhode 
Island Rules and Regulations Governing the Transportation of Liquefied 
Natural Gas and Liquefied Propane Gas, etc. 44 FR 75566, 76657 (Dec. 
20, 1979). The dual compliance and obstacle criteria are based on U.S. 
Supreme Court decisions on preemption. Hines v. Davidowitz, 312 U.S. 52 
(1941); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 
(1963); Ray v. Atlantic Richfield, Inc., 435 U.S. 151 (1978).
    In the 1990 amendments, Congress also confirmed that there is no 
room for differences from Federal requirements in certain key matters 
involving the transportation of hazardous material. As now codified, 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:

    (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.

49 U.S.C. 5125(b)(1). 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).
    Since 1990, Federal hazardous material transportation law has also 
limited the fees that a State, political subdivision, or Indian tribe 
may impose ``related to the transportation of hazardous material.'' 
These fees must be ``fair and used for a purpose related to 
transporting hazardous material, including enforcement and planning, 
developing, and maintaining a capability for emergency response.'' 49 
U.S.C. 5125(g)(1).
    Under 49 U.S.C. 5125(d)(1), any directly affected person may apply 
to the Secretary of Transportation for a determination whether a State, 
political subdivision or Indian tribe requirement is preempted. This 
administrative determination replaced RSPA's process for issuing 
inconsistency rulings. 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 FHWA. 49 
CFR 1.53(b). Under RSPA's regulations, preemption determinations are 
issued by RSPA's Associate Administrator for Hazardous Materials 
Safety. 49 CFR 107.209(a).
    Section 5125(d)(1) requires that notice of an application for a 
preemption determination must be published in the Federal Register. Id. 
Following the receipt and consideration of written comments, RSPA 
publishes its determination in the Federal Register. See 49 CFR 
107.209(d). A short period of time is allowed for filing of petitions 
for reconsideration. 49 CFR 107.211. Any party to the proceeding may 
seek judicial review in a Federal district court. 49 U.S.C. 5125(f).
    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. A State, local or Indian tribe 
requirement is not authorized by another Federal law merely because it 
is not preempted by another Federal statute. Colorado Pub. Util. Comm'n 
v. Harmon, above, 951 F.2d at 1581 n.10.
    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 an express preemption provision, there is other 
firm and

[[Page 31664]]

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 preemption provisions, which 
RSPA has implemented through its regulations.

III. Public Comment

    All comments should be limited to the issue whether Federal 
hazardous material transportation law preempts the Nassau County LPG 
permit and certificate of fitness requirements in Section 6.7 (A) and 
(B) and Section 6.8, respectively. Comments should:
    (1) Set forth in detail the manner in which these permit and 
certificate of fitness requirements are applied and enforced; and
    (2) Specifically address the preemption criteria described in Part 
II, above (``dual compliance,'' ``obstacle,'' and ``covered 
subjects'').
    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 June 3, 1997.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.

Appendix A

    Associate Administrator for Hazardous Materials Safety Research 
and Special Programs Administration, U.S. Department of 
Transportation, Washington, DC 20590-0001.
    Attention: Hazardous Materials Preemption Docket.

Political Subdivision Ordinance: County of Nassau, State of New 
York

    The New York Propane Gas Association, a group consisting of 
refiners, wholesale suppliers, transporters and marketers supplying 
propane by vehicle to customers in Nassau County and other 
jurisdictions, applies for an administrative determination that 
Section 6.7 (A) and (B) and Section 6.8 of the Nassau County Fire 
Prevention Ordinance, Art III, Liquefied Petroleum Gases, Ordinance 
No. 344-1979, As Amended By Ordinance No. 415-82 are preempted by 
the Hazardous Materials Transportation Act (HMTA) (49 USC 5101, et 
seq.) and its regulations, 49 CFR, Sec. 107.202: Standards for 
Determining Preemption.

Section 6.7 (A) and (B)

    The subject Nassau County (NC) ordinance (hereinafter, the 
ordinance) at Sec. 6.7(A) reads in part ``[no] person, firm or 
corporation shall use or cause to be used, any motor vehicle, tank 
truck, tank semi-trailer, or tank truck trailer for the 
transportation of Liquefied Petroleum Gas, unless after complying 
with these regulations a permit to operate any such vehicle has 
first been secured from the Nassau County Fire Marshall.'' The last 
sentence of Sec. 6.7(A) limits the applicability of the permit 
requirement: ``[t]his section shall not apply to any motor vehicle, 
tank truck, tank semi trailer or tank truck trailer traveling 
through Nassau County and making no deliveries within the County.'' 
Section 6.7(B) sets the length of the permit at one year. (Exhibit 
#1)

Fees, Inspection and Labeling

    A renewal fee of seventy-five dollars is required with the 
``Application for Motor Vehicle Transportation Permit'' and by 
custom and practice, a vehicle inspection time and date is specified 
by the Fire Marshall as the only time and date on which an 
inspection will be conducted. New vehicle fees are $150.00. Upon 
application and satisfactory inspection, the Nassau County Fire 
Marshall issues a permit and windshield sticker reading 
``Transportation Permit, Nassau County Fire Marshall'' with a permit 
number specific to that vehicle. (See attached two page application 
[exhibit #2], a permit, 2538, for NY plate #VR 2395 [exhibit #3] and 
photograph of windshield sticker #3126 [exhibit #4] of a vehicle 
owned by John DiBiasi, President, Star-Lite Propane Gas Corp., 111 
So. 4th St., North Bayshore, N.Y. 11706, and described in attached 
affidavit, [exhibit #5]. The effect of Sec. 6.7 of the ordinance is 
to impose fee, inspection and labeling requirements on propane 
vehicles, as therein defined, delivering to a sites within the 
County of Nassau (NC) regardless of the origin of the product or 
vehicle or the domicile of the driver. Based on previous rulings, we 
believe, these requirements for flat fees, specified limits on 
inspection hours and the display of a label on the vehicle as 
evidence of compliance with the ordinance are inconsistent with the 
HMTA and HMR. Accordingly, the petitioner seeks review and relief 
from the Research and Special Programs Administration (RSPA) under 
49 USC 5125 and 49 CFR Sec. 107.202.

Fees

    The HMTA (5125[g]) provides that a ``political subdivision * * * 
may impose a fee related to transporting hazardous materials only if 
the fee is fair and used for a purpose related to transporting 
hazardous material * * *'', but the NC fee is inherently unfair by 
disproportionately taxing users who are differently situated: a one-
time entrant to NC from any jurisdiction, would pay the same as a 
frequent entrant. Further, because under any different reading all 
jurisdictions would be able to impose such fees, the NC fee is an 
obstacle to transportation and is preempted if ``the requirement of 
the * * * political subdivision, * * * as applied or enforced, is an 
obstacle to accomplishing and carrying out this chapter or a 
regulation prescribed under this chapter.'' (49 USC 5125[a][2]). 
While the fees reach all carriers delivering to the NC, not just 
carriers domiciled within the county, any attempt to limit fees to 
in-county propane carriers would similarly run afoul of the obstacle 
test, since no two carriers are likely to be equally situated, i.e., 
same number of deliveries, same amount of product per drop, same 
risk of accidents, etc. And while any carrier could choose not to 
deliver propane to NC or any jurisdictions because of such fees, 
their existence make them obstacles to transportation and commerce 
and impermissible under the HMTA.

Inspections

    The ordinance at Sec. 6.7 requires that a vehicle, as defined, 
undergo an annual inspection by submitting an Application for Motor 
Vehicle Transportation Permit, (exhibit #2), paying $75.00 in 
advance, appearing with the vehicle at a point in NC where 
inspections are conducted by appointment only (see exhibit #6), and 
as a matter of practice, (see exhibit #5) only on the first and 
fourth Tuesday each month. A driver must accompany the vehicle 
making him and the vehicle unavailable for deliveries for two to 
three hours, minimum. These requirements have the effect of making a 
new vehicle which has met all state and federal requirements 
unusable until a NC inspection can be performed. A windshield 
sticker (exhibit #4) must be affixed to the vehicle which indicates 
a ``PERMIT FOR USE OF A MOTOR VEHICLE OR TRAILER TO TRANSPORT LIQUID 
PETROLEUM GAS'' (exhibit #3) has been issued to the owner. These 
requirements apply to any carrier seeking to deliver to points 
within NC, regardless of location of vehicle registrant or domicile 
of driver.
    These requirements are in conflict with 49 CFR Sec. 177.853(a) 
``No unnecessary delay in movement of shipments. All shipments of 
hazardous material shall be transported without unnecessary delay, 
from and including the time of commencement of the loading of the 
cargo until its final discharge at destination.'' We believe the NC 
ordinance ``creates an obstacle to the accomplishment and execution 
of the Act or the regulations issued under the Act.'' 
(Sec. 107.202(b)(2).
    An out-of-state carrier who attempted to deliver propane to a 
customer in NC would be barred if the ordinance were not preempted, 
for it would not be reasonable or possible to obtain a permit from 
NC without violating the ``unnecessary delay'' standard the HMTA 
mandates at 5125(a)(2). A less extreme example of a carrier in any 
in-state jurisdiction provides no protection for the ordinance from 
preemption under the ``obstacle test,'' since inspections are 
provided only by appointment at the office of the Fire Marshall and 
only on the first and fourth Tuesday of each month. For NC to argue 
that its inspections by appointment are verification of New York 
State roadside inspections of hazardous materials transport vehicles 
similarly should run afoul of the ``obstacle test,'' since roadside 
checks on previously inspected vehicles can be conducted with the 
least delay to transportation, a stated purpose of the Act. Because 
both the driver and vehicle are unavailable for long periods of 
time, the effect of the inspection is to cause unnecessary delay and 
should be preempted under 5125(a)(2).
    It should not matter which class of propane carrier Sec. 6.7 
attempts to regulate since NC's requirements for non-federal 
registration and permitting forms and procedures are not 
``substantively the same'' as federal

[[Page 31665]]

regulations and are therefore preempted under the ``dual 
compliance'' standard at Sec. 5125(a)(1). In addition, the 
applicability of the NC fee, inspection and labeling requirements 
exclusively to propane, or even to other hazardous materials, runs 
contrary to section 5125(b), which reserves ``the designation, 
description, and classification of hazardous materials'' to US DOT. 
By singling out propane for special or exclusive treatment, NC has 
impinged on the jurisdiction of the US DOT, reserved to it by 
Congress.

Labeling

    NC uses permits to meet its goal of vehicle registration and the 
display of a numbered permit ``on exterior of vehicle'' as evidence 
of compliance. (Exhibit #4). Information provided by NC Fire 
Marshall directs vehicle owners to display the registration permit 
number on the windshield of vehicles. While this is merely a 
consequence of the registration requirement for which preemption is 
sought, it is a separate labeling requirement of a hazardous 
material and should be preempted, per se, as a covered subject under 
section 5125 and 49 CFR 107.202(a)(2).

Section 6.8 (A) Through (L)

    Section 6.8(A) requires a certificate of fitness issued by the 
NC Fire Marshall be secured by ``[a]ny person filling containers at 
a location where Liquefied Petroleum Gas is sold and/or transferred 
from one vessel into another.'' [Emphasis added]. After application 
(Sec. 6.8[B]), proof of qualifications (Sec. 6.8[C]), investigation 
and examination (Sec. 6.8[D]), etc., Sec. 6.8(I) ``Certificate of 
Fitness Issued'' requires said certificate ``of any person 
performing the following activities: 2. [s]elling Liquefied 
Petroleum Gas or Transferring Liquefied Petroleum Gas from one 
vessel to another.'' Section 6.8(K), 1 through 6 specifies the 
contents of the certificate of fitness and section (L) the 
requirement of the holder to display or produce same upon request 
``to anyone for whom he seeks to render his services or to the Fire 
Marshall.''
    By custom and practice no driver of a vehicle used to deliver 
propane is exempt from these requirements, since he necessarily 
engages in ``transferring Liquefied Petroleum Gas from one vessel to 
another.'' The two activities are inextricably linked. Under the NC 
ordinance, drivers of propane vehicles without certificates of 
fitness would be barred from delivering propane, since section 6.0 
(C) states ``[t]he provisions of this Article shall apply to all 
uses of Liquefied Petroleum Gas and installation of all apparatus, 
piping, and equipment pertinent to systems for such uses.'' 
[Emphasis added]. (See exhibit [#1]). Even more compelling, NC's 
``Application for Certificate of Fitness,'' (exhibit #7) specifying 
categories of licenses including, among others, ``Flammable Gas Bulk 
Transport (1)'' and ``Flammable/Compressed Gas Transport/Handling 
(3),'' clearly demonstrates the intent and purpose of the ordinance 
to license hazardous materials transport drivers delivering to 
points within NC no matter where domiciled.

Certificate of Fitness

    This requirement of the ordinance has several discreet steps the 
applicants must take in order to secure certification. The 
application (exhibit #7), the NC letter to Certificate of Fitness 
holders (exhibit #8) and the Information for Liquefied Petroleum Gas 
Certificate of Fitness instructions (exhibit #9) clearly represent a 
protocol designed to regulate the qualifications of hazardous 
material transportation drivers: applicant must, ``be employed by 
company with valid permits, (i.e., meet the requirements of section 
6.7); must possess valid medical certification; must file a complete 
notarized application; must pass written examination by N.C.F.D; 
must pass practical examination by N.C.F.D.'' Further, ``[a]ll 
applications must be accompanied by: two (2) color (Passport Type) 
photos of applicant; one-hundred and fifty dollars ($150) check, 
etc.,'' and all tests are by appointment only. Recent telephonic 
communications from NC to applicants instruct that photographs must 
now be taken at NC offices and only by appointment. (Exhibit #5) Any 
driver entering or delivering propane within NC, no matter where 
domiciled, needs such certification, as do, presumably, domiciled 
drivers, though section 6.8, unlike section 6.7, makes no 
distinction.
    The HMTA and its regulations require that hazardous materials 
transportation employees receive training, and allow that ``a State 
may impose more stringent training requirements only if those 
requirements--(a) [d]o not conflict with the training requirements 
in this subpart and in 177 of this subchapter; and (b) [a]pply only 
to drivers domiciled in that state.'' (49 CFR 172.701). NC is a 
political subdivision of New York State and has no jurisdiction over 
licensing requirements, and even state jurisdiction over such 
requirements applies only to domiciled drivers, and only if those 
requirements are imposed under New York State Department of Motor 
Vehicle law.
    The NC ordinance certification requirement is preempted since it 
cannot meet the ``dual compliance'' and ``obstacle'' standards 
because ``[t]o the extent the HMRs recognize the CDL with its 
hazardous materials and/or cargo tank endorsements as 
`certification' of federal training requirements, a driver cannot 
comply with the requirement that `no person who operates a 
commercial motor vehicle * * * have more than one drivers license' 
'' (See FR/Vol. 58, No. 95 / Wednesday, May 19, 1993). Since persons 
engaged in the transportation and off-loading of propane within the 
County of Nassau are required to demonstrate evidence of 
certification to the Fire Marshall, the requirement is duplicative 
of the CDL.
    The Federal Register of May 19, 1993 makes it clear that 
proliferation of such training and licensing requirements by other 
jurisdictions (states) would make it ``burdensome for non-domiciled 
drivers who must preregister for tests at specified times and 
locations * * *''. By parity of reasoning, counties or other 
political subdivisions would cause ``obstacles'' to transportation 
that are at least as great, if not greater.
    For the foregoing reasons, petitioner seeks preemption of those 
portions of the Nassau County Fire Prevention ordinance as 
described.
    Submitted by: Richard Brescia, New York Capitol Consultants, 120 
Washington Ave., Albany, New York 12210.
    For Petitioner: New York Propane Gas Association, P.O. Box 5006, 
Albany, New York 12205.

[FR Doc. 97-15074 Filed 6-9-97; 8:45 am]
BILLING CODE 4910-60-P