[Federal Register Volume 63, Number 105 (Tuesday, June 2, 1998)]
[Notices]
[Pages 30032-30035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14562]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
[Docket No. RSPA-98-3599 (PDA-19(R))]


Application by National Tank Truck Carriers, Inc. for a 
Preemption Determination as to New York Department of Environmental 
Conservation Requirements on Gasoline Transport Vehicles

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

ACTION: Public Notice and Invitation to Comment.

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SUMMARY: Interested parties are invited to submit comments on an 
application by the National Tank Truck Carriers, Inc. (NTTC) for an 
administrative determination whether Federal hazardous material 
transportation law preempts certain requirements of the New York 
Department of Environmental Conservation applicable to gasoline 
transport vehicles.

DATES: Comments received on or before July 17, 1998, and rebuttal 
comments received on or before August 31, 1998, 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. The application and all 
comments are also available on-line through the home page of DOT's 
Docket Management System, at ``http://dms.dot.gov.''
    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].'' Each comment should refer to the Docket 
Number set forth above. A copy of each comment must also be sent to (1) 
Mr. Clifford J. Harvison, President, National Tank Truck Carriers, 
Inc., 2200 Mill Road, Alexandria, VA 22314, and (2) Mr. John P. Cahill, 
Commissioner, Department of Environmental Conservation, State of New 
York, 50 Wolf Road, Albany, NY 12233. A certification that a copy has 
been sent to these persons must also be included with the comment. (The 
following format is suggested: ``I certify that copies of this comment 
have been sent to Messrs. Harvison and Cahill at the addresses 
specified in the Federal Register.'')
    A list and subject matter index of hazardous materials preemption 
cases, including all inconsistency rulings and preemption 
determinations, are available through the home page of RSPA's Office of 
the Chief Counsel, at ``http://rspa-atty.dot.gov.'' A paper copy of 
this list and index will be provided at no cost upon request to Ms. 
O'Berry, at the address and telephone number set forth in For Further 
Information Contact below.

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


[[Page 30033]]


SUPPLEMENTARY INFORMATION:

I. Application for a Preemption Determination

    NTTC has applied for a determination that Federal hazardous 
material transportation law, 49 U.S.C. 5101 et seq., preempts New York 
Codes, Rules and Regulations (NYCRR) Sections 230.4(a)(3) and 230.6(b) 
and (c). These provisions were issued by the New York State Department 
of Environmental Conservation and concern marking and recordkeeping and 
reporting requirements applicable to vehicles used to transport 
gasoline. Part 230 of NYCRR pertains to gasoline-dispensing sites and 
transport vehicles. The text of NTTC's application and a list of the 
attachments are set forth in Appendix A. A paper copy of the 
attachments to NTTC's application will be provided at no cost upon 
request to Ms. O'Berry, at the address and telephone number set forth 
in For Further Information Contact above.
    Marking. Section 230.4(a)(3) provides as follows:

    (a) No owner or operator of a gasoline transport vehicle subject 
to the Part will allow said vehicle to be filled or emptied unless 
the gasoline transport vehicle:
    (3) displays a marking, near the U.S. Department of 
Transportation certificate plate, in letters and numerals at least 
two inches high, which reads NYS DEC and the date on which the 
gasoline transport vehicle was last tested.

    NTTC asserts this section is preempted because the requirement is 
not substantively the same as requirements in 49 CFR 180.415 for 
marking cargo tank motor vehicles used to transport hazardous 
materials.
    Recordkeeping and Reporting. NTTC challenges subsections (b) and 
(c) of Section 230.6. That section provides as follows:

    (a) The owner of any gasoline transport vehicle subject to this 
Part must maintain records of pressure-vacuum testing and repairs. 
The records must include the identity of the gasoline transport 
vehicle, the results of the testing, the date that the testing and 
repairs, as needed were done, the nature of needed repairs and the 
date of retest where appropriate.
    (b) A copy of the most recent pressure-vacuum test results, in a 
form acceptable to the commissioner, must be kept with the gasoline 
transport vehicle.
    (c) Records acceptable to the commissioner must be retained for 
two years after the testing occurred, and must be made available to 
the commissioner or his representative on request at any reasonable 
time.

    NTTC claims that subsections (b) and (c) are preempted under the 
``obstacle'' test. NTTC compares the requirements to maintain test 
results with the vehicle with 49 CFR 180.417(a)(2). That Federal 
regulation requires a motor carrier who is not the owner of the cargo 
tank motor vehicle to retain a copy of the vehicle certification report 
at its principal place of business or, upon approval from the Federal 
Highway Administration, at a regional or terminal office. NTTC also 
compares the requirement to retain test records for two years after 
testing occurs with Section 180.417(c)(2), which requires retention for 
the time the cargo tank is in the carrier's service, plus one year.
    NTTC asserts that New York's regulation requiring documents to be 
retained in vehicles creates an unnecessary delay by forcing a carrier 
to maintain and reproduce documents and ensure that copies are placed 
in vehicles that are moved from State to State. NTTC further contends 
that this regulation could create a multiplicity of non-uniform 
restrictions that could potentially compromise safety if it is 
replicated by other jurisdictions.

II. Federal Preemption

    Section 5125 of Title 49 U.S.C. contains several preemption 
provisions that are relevant to NTTC's application. Subsection (a) 
provides that--in the absence of a waiver of preemption by DOT under 
section 5125(e) or specific authority in another Federal law--a 
requirement of a State, political subdivision of a State, or Indian 
tribe is preempted 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.

These two paragraphs set forth the ``dual compliance'' and ``obstacle'' 
criteria which RSPA had applied in issuing inconsistency rulings before 
1990, under the original preemption provisions in the Hazardous 
Materials Transportation Act (HMTA). Pub. L. 93-633 section 112(a), 88 
Stat. 2161 (1975). 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).
    Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal 
requirement concerning any of the following subjects, that is not 
``substantively the same as'' a provision of Federal hazardous 
materials transportation law or a regulation prescribed under that law, 
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.

    These preemption provisions in 49 U.S.C. carry out Congress's view 
that a single body of uniform Federal regulations promotes safety in 
the transportation of hazardous materials. In considering the HMTA, 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). When it amended the HMTA 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 section 2, 104 Stat. 3244. A Federal Court of Appeals 
has 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 1994, the HMTA was revised, codified

[[Page 30034]]

and enacted ``without substantive change,'' at 49 U.S.C. Chapter 51. 
Pub. L. 103-272, 108 Stat. 745.)
    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. The 
Secretary of Transportation has delegated authority to make 
determinations of preemption that concern highway routing to FHWA and 
those concerning all other hazardous materials transportation issues to 
RSPA. 49 CFR 1.48(u)(2), 1.53(b).
    Section 5125(d)(1) requires that notice of an application for a 
preemption determination must be published in the Federal Register. 
Following the receipt and consideration of written comments, RSPA will 
publish 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 materials 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 statue. Colorado Pub. Util. Comm'n 
v. Harmon, above, 951 F2d 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. 12612, 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 
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

    Comments should be limited to whether Federal hazardous material 
transportation law preempts the provision of New York state's marking 
requirements in Section 230.4(a)(3) and recordkeeping and retention 
requirements in Section 230.6, respectively. Comments should:
    (1) Set forth in detail the manner in which these marking and 
recordkeeping and retention requirements are applied and enforced; and
    (2) Specifically address the preemption criteria described in Part 
II above (``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 May 22, 1998.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety, Research and 
Special Programs Administration.

Appendix A

Before the Research & Special Programs Administration, United States 
Department of Transportation

In the matter of: An Application For A Preemption Determination In 
the Matter of Certain Regulations Codified and Enforced By the State 
of New York
Petition filed by: National Tank Truck Carriers, Inc., 2200 Mill 
Road, Alexandria, VA 22314, (703) 838-1960; Fax (703) 684-5753, 
Clifford J. Harvison, President

February 1, 1998.
    Before the Administrator: National Tank Truck Carriers, Inc. 
(NTTC) is a trade association representing over 200 corporate 
members specializing in the highway transportation of hazardous 
materials, hazardous substances and hazardous wastes, in cargo tank 
motor vehicles, throughout the continental United States. Several 
NTTC members conduct high volume operations within the State of New 
York. Certain regulations (codified and enforced by that state) are 
the subject of this petition.
    The Regulations In Question--New York State's Department of 
Environmental Conservation (DEC) is charged with enforcement of 6 
NYCRR, Part 230 entitled ``Gasoline Dispensing Sites and Transport 
Vehicles (a copy of relevant portions is attached). Therein, Section 
230.6 (Gasoline transport vehicles--recordkeeping and reporting) 
proscribes the following:
    ``(a) The owner of any gasoline transport vehicle subject to 
this Part must maintain records of pressure-vacuum testing and 
repairs. The records must include the identity of the gasoline 
transport vehicle, the results of the testing, the date that the 
testing and repairs, as needed, were done, the nature of needed 
repairs and the date of retests where appropriate.
    ``(b) A copy of the most recent pressure-vacuum test results, in 
a form acceptable to the commissioner, must be kept with the 
gasoline transport vehicle.
    ``(c) Records acceptable to the commissioner must be retained 
for two years after the testing occurred, and must be made available 
to the commissioner or his representative on request at any 
reasonable time.''
    Furthermore, that same body of state regulations contains the 
following provision at 230.4 (a) and (a) (3):
    ``(a) No owner or operator of a gasoline transport vehicle 
subject to this Part will allow said vehicle to be filled or emptied 
unless the gasoline transport vehicle:
    ``(3) displays a marking, near the U.S. Department of 
Transportation certificate plate, in letters and numerals at least 
two inches high, which reads: NYS DEC and the date on which the 
gasoline transport vehicle was last tested.''
    NTTC has been informed (by various members) that they have 
received citations, issued by (DEC) enforcement personnel for 
violations of these regulations; thus, it is evident that they are 
being actively enforced.
    NTTC's Position--NTTC holds that Section 230.4 (a)(3) is 
preempted because it is not ``substantively the same'' as current 
Federal requirements dealing with the ``marking'' of a container or 
package which is represented, marked, certified or sold as qualified 
for use in the transportation of a hazardous material. This latter 
state requirement is (in the vernacular of the Administrator) a 
``covered subject''.
    Additionally, this Association holds that Section 230.6 is 
preempted by applicable provisions of the Hazardous Materials 
Transportation Uniform Safety Act (HMTUSA) (as amended) in that the 
provisions violate the so-called ``obstacle test'' (a traditional 
criterion used by the Administrator in evaluating non-Federal laws 
and regulations in applications for preemption determination). 
Moreover, as enforced, the state regulation creates unnecessary 
delay, and--if replicated by other jurisdictions--would serve to 
create a multiplicity of non-uniform restrictions that would 
(potentially) compromise safety.
    In the alternative, the State of New York may petition the 
Administrator to amend Federal regulations (should the state feel 
that the amendments would enhance safety); or, the State may 
acknowledge Federal preemption and apply for a ``Waiver of 
Preemption'' under procedures established by the Administrator.
    The Relevant Element of the Hazardous Materials Regulations 
(HMR)--Pursuant to HMTUSA's mandate, the Secretary of Transportation 
has delegated to the Administrator of the Department's Research and 
Special Programs Administration (RSPA) the authority to issue 
regulations specific to the transportation of hazardous materials. 
The Administrator has fulfilled that mandate by promulgation of the 
HMR, Parts 171-180.
    Specifically, Part 180 of the HMR (``Continuing Qualification 
And Maintenance of Packagings'') sets forth a comprehensive series 
of regulations dealing with the inspection, testing, maintenance and 
repair of cargo tank motor vehicles which are represented (by the 
owner/operator) as being constructed and operated in compliance with 
the HMR.
    Argument--In terms of the requested preemption of Section 230.6 
of New York's

[[Page 30035]]

Code, we wish to note at the outset that we have no quarrel with the 
provisions of subsection ``(a)'' of that Section.
    In contrast, however, NTTC notes that 49 CFR 180.417 contains 
direct requirements for ``Reporting and Record Retention 
Requirements''. Significantly, there is no Federal requirement for 
copies of reports and/or records to be carried in the cargo tank 
motor vehicle. Instead, the Administrator relies on certain (and 
specified) markings on the cargo tank as indicia of compliance. 
Moreover, 49 CFR 180.417(a)(2) allows carriers to retain relevant 
documents at either their ``principal place of business'', or (upon 
application to the Federal Highway Administration) ``at a regional 
or terminal office''.
    Conversely, the state's regulations require documentation to be 
retained ``in the vehicle.'' NTTC holds that Section 230.6(b) is 
preempted by the HMR. As the Administrator well knows, cargo tanks 
regularly move from jurisdiction to jurisdiction. For instance, 
nationwide carriers may move vehicles from southern states into the 
New England area to move gasoline when transportation demands for MC 
306/DOT406 equipment accelerate because of the winter ``fuel oil 
season''. Unnecessary delay is created when carriers are compelled 
to retrieve documents from storage, reproduce those documents, and 
exercise the management controls necessary to put copies in some 
vehicles but not in others. The situation is compounded when one 
realizes the potential for other jurisdictions to play havoc with 
the current system. For instance, should the Administrator not 
preempt, what would prevent a state or locality from requiring all 
service and maintenance records (including the vehicle 
manufacturer's original certification) to be retained in the 
vehicle?
    In Docket HM-183 (the administrative proceeding which created 
Part 180), the Administrator decided that the proper indicia for 
compliance with Part 180 is vehicle marking (as codified at 
180.415). As has often been noted in both (the former) 
``inconsistency petitions'' and in ``preemption determinations'', 
the Administrator's regulations are ``presumed safe''. New York 
State is not free to unilaterally amend RSPA's requirements.
    With regard to the state's requirement at 230.6(c), the same 
arguments and fact patterns apply. At 49 CFR 180.417(c)(2), the 
specified retention time is length of (cargo tank) ownership plus 
one year. New York requires ``. . . two years after the testing 
occurred.'' It, too, must be preempted.
    Our problem with New York's requirement at 230.4(a)(3) is more 
direct and concise. Simply stated, this regulation is a ``hazardous 
materials specific'' marking requirement. It applies only to DOT 
Specification tanks (authorized for the transportation of gasoline). 
HMTUSA specifies that ``marking'' (of a package or container) is a 
``covered subject''. The Administrator's relevant requirements at 49 
CFR 180.415 ``occupy the field''. New York's regulation must be 
stricken.
    Precedent On These Issues Is Abundant--NTTC believes that the 
Administrator's decisions in both ``Inconsistency Rulings'' (IR) and 
``Preemption Determinations'' (PD) buttress our claims with respect 
to the New York State regulations under question.
    For instance, in both IR#19 and #IR 28, the Administrator ruled 
that, ``. . . the HMTA and HMR provide sufficient information and 
documentation requirements for the safe transportation of hazardous 
materials; state and local requirements in excess of them constitute 
obstacles to implementation of the HMTA and HMR and thus are 
inconsistent with them.''
    Similarly, in those two rulings (plus a host of others), it was 
ruled that, ``Requirements for information or documentation in 
excess of Federal requirements create potential delay, constitute an 
obstacle to execution of the Federal hazmat law and the HMR, and 
thus are preempted.''
    In at least 14 prior proceedings of this type (IR's and PD's), 
RSPA has struck down state and local requirements found to be ``* * 
* likely to cause'' and/or ``* * * the mere threat'' of unnecessary 
delays in hazardous materials transportation.
    As the Administrator ruled in PD-4 (R), ``Required markings of 
packagings (cargo tanks and portable tanks) to certify current 
registration and inspection are preempted since they are not 
substantively the same as the markings required by the HMR.'' 
(emphasis added)
    Even the United States Court of Appeals for the 10th Circuit 
weighed in most directly. In reversing a District Court decision in 
the matter of Colorado Pub. Utilities Commission v. Harmon, the 
Court went to the heart of NTTC's complaint specifying that a state 
may not require a carrier to retain inspection reports in a vehicle; 
and, that such an additional documentation requirement could ``* * * 
create confusion and increase hazards.''
    Given the fact that the State of New York is aggressively 
enforcing the regulations cited above, we ask expedited 
consideration of NTTC's application for a preemption determination.
    I hereby certify that I have sent a copy of this petition to: 
Mr. John P. Cahill, Commissioner, Department of Environmental 
Conservation, State of New York, 50 Wolf Road, Albany, NY 12233.

        Respectfully submitted:
Clifford J. Harvison,
President.

Attachments

    (A) Part 230 of New York Codes, Rules and Regulations.

[FR Doc. 98-14562 Filed 6-1-98; 8:45 am]
BILLING CODE 4910-60-P