[Federal Register Volume 66, Number 154 (Thursday, August 9, 2001)]
[Notices]
[Pages 41931-41935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20048]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. RSPA-01-10293 (PDA-28(R))]


Application by the Town of Smithtown, NY for a Preemption 
Determination as to Ordinance on Transportation of Liquefied Natural 
Gas

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 Town of Smithtown, New York for an administrative 
determination whether Federal hazardous material transportation law 
preempts certain sections of the Town Code that require a permit for 
any motor vehicle used to deliver liquefied petroleum gas (LPG) within 
the Town and a ``certificate of fitness'' for any person who delivers 
LPG.

DATES: Comments received on or before September 24, 2001, and rebuttal 
comments received on or before November 7, 2001, will be considered 
before issuance of an administrative

[[Page 41932]]

ruling. 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 must refer to Docket No. RSPA-01-10293 and may be 
submitted to the docket either in writing or electronically. Send three 
copies of each written comment to the Dockets Office at the above 
address. If you wish to receive confirmation of receipt of your written 
comments, include a self-addressed, stamped postcard. To submit 
comments electronically, log onto the Docket Management System website 
at http://dms.dot.gov, and click on ``Help,'' ``DMS Web Site,'' or 
``DMS Frequently Asked Questions'' to obtain instructions for filing a 
document electronically.
    A copy of each comment must also be sent to John B. Zollo, Esq., 
Town Attorney, 99 West Main Street, P.O. Box 575, Smithtown, NY 11787. 
A certification that a copy has been sent to him must also be included 
with the comment. (The following format is suggested: ``I certify that 
a copy of this comment have been sent to Mr. Zollo at the address 
specified in the Federal Register.'')
    A list and subject mater index of hazardous materials preemption 
cases, including all inconsistency rulings and preemption 
determinations issued, 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 
the individual named in For Further Information Contact below.

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

SUPPLEMENTARY INFORMATION:

I. Application for a Preemption Determination

    The Town of Smithtown (Town), New York has asked RSPA to determine 
whether Federal hazardous material transportation law preempts sections 
164-108 and 164-109 of the Town Code, concerning Fire Prevention 
Division permits and ``certificates of fitness'' for the delivery of 
LPG within the Town.
    In its application, the Town stated that ``Section 164-108 is 
essentially identical'' to provisions in Nassau County Ordinance No. 
344-1979 that RSPA found are preempted with respect to trucks based 
outside Nassau County. PD-13(R), Nassau County, New York Ordinance on 
Transportation of Liquefied Petroleum Gas, 65 FR 60238 (Oct. 10, 2000) 
(decision on petition for reconsideration), judicial review pending, 
Office of the Fire Marshal v. U.S. Dep't of Transportation, Civil 
Action No. 00-7200 (E.D.N.Y.). In PD-13(R), RSPA found that, as 
enforced and applied to vehicles based outside Nassau County, that 
County's permit requirement is an obstacle to accomplishing and 
carrying out Federal hazardous material transportation law and the 
Hazardous Materials Regulations (HMR), 49 CFR parts 171-180, because 
the County does not appear to be able to schedule and conduct 
inspections of trucks (required for a permit) without causing 
unnecessary delays in the transportation of hazardous materials from 
locations outside the County. 65 FR at 60245.
    The Town stated that the relevant provisions of Section 164-108 are 
as follows:

    A. No person, firm or corporation shall use or cause to be used 
any motor vehicle, tank truck, tank truck semitrailer 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 Fire Prevention Division. No 
permit shall be required under this section for any motor vehicle 
that is used for the transportation of LPG not operated or 
registered by an authorized dealer, in containers not larger than 10 
gallons water capacity each (approximately 34 pounds' propane 
capacity) with an aggregate water capacity of 25 gallons 
(approximately 87 pounds) or when used in permanently mounted 
containers on the vehicle as motor fuel. This section shall not 
apply to any motor vehicle, tank truck, tank truck semitrailer or 
tank truck trailer traveling through the town and making no 
deliveries within the town.
    B. Permits shall be issued to a vehicle for the transportation 
of LPG only after a full safety inspection of the vehicle by the 
Fire Prevention Division and the Fire Marshal approves of the 
issuance of the permit.

    The Town also stated that, ``[i]n practice,'' its inspection and 
permit requirement ``is distinguishable from the Nassau County 
Ordinance,'' because its inspections do not last ``several hours''; 
they ``are scheduled in advance and scheduling is flexible.'' In an 
affidavit submitted with the application, the Town's Chief Fire Marshal 
stated that ``Appointments are available on a monthly basis (with the 
exception of winter months at the request of the LPG companies) and are 
made one month prior to the expiration of the permit.'' The permit is 
valid for one year, and the fee is $150 for a new permit and $75 for a 
renewal.
    The Town stated that the relevant provisions of section 164-109, 
concerning certificates of fitness, are the following:

    A. Certificate of fitness required. Any person filling 
containers at locations where LPG is sold and/or transferred from 
one vessel into another shall hold a valid certificate of fitness 
issued by the Fire Prevention Division. Such certificate is subject 
to revocation by the Fire Prevention Division at any time where the 
certificate holder displays evidence of noncompliance with the 
provisions of this chapter.
    E. The certificate of fitness shall be given full force and 
effect for a period of three years.
    I. Certificate of fitness issued. A certificate of fitness will 
be required of any person performing the following activities:
    (1) Filling containers permanently located at consumer sites 
from a cargo vehicle.
    (2) Selling LPG or transferring LPG from one vessel to another

    The Town acknowledged that its certificate of fitness requirement 
applies to both persons who ``handle (fill and sell) LPG at commercial 
dispensing stations'' and ``operators of vehicles (bulk and rack type 
carriers) used for domestic delivery of LPG.'' The Town referred to 
RSPA's finding in PD-13(R) that Nassau County's certificate of fitness 
requirement is preempted insofar as that requirement is applied to a 
motor vehicle driver who sells or delivers LPG because it imposes more 
stringent training requirements than provided in the HMR. 63 FR 45283, 
45288 (Aug. 25, 1998). The Town did not acknowledge that its own 
certificate of fitness requirement was found to be preempted with 
respect to motor vehicle drivers last year, in People v. Parago Gas 
Corp., No. SMTO 398-99 (Dist. Ct. Suffolk Co., Mar. 20, 2000).
    The Town stated that its certificate of fitness requirement ``is in 
no way duplicative of the training requirements'' in the HMR and that 
the Federal Motor Carrier Safety Regulations in 49 CFR parts 390-397 
``do not specifically address the safety provisions that are tested for 
a certificate of fitness.'' The Town stated that, to obtain a 
certificate of fitness, an applicant must pay $150, or $75 for renewal, 
and take ``a written examination that tests the applicant's knowledge 
of the required safety standards * * * in the Town's handbook'' as well 
as ``a practical test during which a fire marshal observes

[[Page 41933]]

the applicant performing the necessary operations.'' According to the 
application, these examinations ``are scheduled in advance, * * * given 
on several occasions in order to accommodate the applicant's 
schedule,'' and ``waived for applicants who possess a valid certificate 
of fitness from another jurisdiction.''
    The text of the Town's application is set forth in Appendix A. The 
following exhibits to the application are not reproduced, but copies 
will be provided at no cost upon request to the person identified in 
For Further Information Contact:
    1. Sections 164-108 and 164-109 of the Code of the Town of 
Smithtown.
    2. Application for LPG Certificate of Fitness form.
    3. LPG-Certificate of Fitness Study Guide.
    4. Affidavit of Richard L. McKay, Chief Fire Marshal.
    5. Application for LPG Motor Vehicle Transportation Permit and 
Motor Vehicle Inspection for LPG Transportation Permit forms.

II. Federal Preemption

    Section 5125 of Title 49 U.S.C. contains several preemption 
provisions that are relevant to this 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 subdivison, 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 that RSPA had applied in issuing inconsistency rulings prior 
to 1990, under the original preemption provision in the Hazardous 
Materials Transportation Act (HMTA). Public Law 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 material 
transportation law or a regulation prescribed under that law, is 
preempted unless it is authorized by another Federal law or DOT grants 
a wavier 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.

To be ``substantively the same,'' the non-Federal requirement must 
``conform[] in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d).
    Subsection g(1) of 49 U.S.C. 5125 provides that a State, political 
subdivision, or Indian tribe may:

    Impose a fee related to transporting hazardous material only if 
the fee is fair and used for a purpose relating to transporting 
hazardous material, including enforcement and planning, developing, 
and maintaining a capability for emergency response.

    These preemption provisions in 49 U.S.C. 5125 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.

Public Law 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 that expanded the original 
preemption provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F. 2d 
1571, 1575 (10th Cir. 1991). (In 1994, Congress revised, codified and 
enacted the HMTA ``without substantive change,'' at 49 U.S.C. Chapter 
51. Pub. L. 103-272, 108 Stat. 745.)

III. Preemption Determinations

    Under 49 U.S.C. 5125(d)(1), any person (including a State, 
political subdivision of a State, or Indian tribe) directly affected by 
a requirement of a State, political subdivision or tribe may apply to 
the Secretary of Transportation for a determination whether the 
requirement is preempted. The Secretary of Transportation has delegated 
authority to RSPA to make determinations of preemption, except for 
those that concern highway routing, which have been delegated to the 
Federal Motor Carrier Safety Administration. 49 CFR 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. 
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, the Fifth Amendment or other 
provisions of the Consititution 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 or whether a fee is ``fair'' within the meaning of 
49 U.S.C. 5125(g)(1). 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.

[[Page 41934]]

    In making preemption determinations under 49 U.S.C. 5125(d), RSPA 
is guided by the principles and policies set forth in Executive Order 
No. 13132, entitled ``Federalism'' (64 FR 43255 (August 10, 1999). 
Section 4(a) of that Executive Order authorizes preemption of State 
laws only when a statute contains an express preemption provision, 
there is other clear evidence that Congress intended to preempt State 
law, 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.

IV. Public Comments

    All comments should address the issue whether Federal hazardous 
material transportation law preempts the Town's LPG permit and 
certificate requirements in sections 164-108 and 164-109 of the Town 
Code. 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 detailed in Part 
II, above.
    Persons intending to comment should review the standards and 
procedures governing consideration of applications for preemption 
determinations, set forth at 49 CFR 107.201-107.211.

    Issued in Washington, DC, on August 6, 2001.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.

Appendix A--Application by the Town of Smithtown for Preemption 
Determination as to Smithtown Town Code on Transportation of Liquefied 
Petroleum Gases

Submitted to: 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: Town of Smithtown, County of 
Suffolk, State of New York

Argument

    The Town of Smithtown applies for an administrative 
determination that the Hazardous Materials Transportation Act (HMTA) 
(49 U.S.C. 5101, et seq.) and its regulations, 49 CFR, 107.202: 
Standards for Determining Preemption, does not preempt Section 164-
108 of the code of the Town of Smithtown, Fire Prevention, 
Transportation, Local Law No. 4-2000, and Section 164-109 of the 
Code of Town of Smithtown, Fire Prevention, Certificate of fitness, 
Local Law No. 4-2000.

Section 164-108/Transportation, Permits

    The relevant sections of the Code of the Town of Smithtown 
(hereinafter, the Town Code) are sections 164-108 (A) and (B). The 
Town of Smithtown submits that the HMTA does not preempt section 
164-108. Sections 164-108 (A) and (B) provides as follows:

    A. No person, firm or corporation shall use or cause to be used 
any motor vehicle, tank truck, tank truck semitrailer 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 Fire Prevention Division. No 
permit shall be required under this section for any motor vehicle 
that is used for the transportation of LPG not operated or 
registered by an authorized dealer, in containers not larger than 10 
gallons' water capacity each (approximately 34 pounds' propane 
capacity) with an aggregate water capacity of 25 gallons 
(approximately 87 pounds) 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 truck semitrailer, or 
tank truck trailer traveling through the town and making no 
deliveries within the town. (Exhibit 1).

In order to obtain a permit, the owner of a vehicle used to deliver 
LPG must pay a fee of $150 or $75 for renewal.
    Town Code Section 164-108 is essentially identical to Section 
6.7(A) and (B) of Nassau County ordinance No. 344-1979. In its 
preemption determination in PD-13(R), 63 FR 45283, the Research and 
Programs Administration (RSPA) determined that the Nassau County 
ordinance was to preempted by the HMTA. In doing so, the RSPA 
concluded that the Nassau County ordinance did not create an 
obstacle to the transportation of LPG. According to the RSPA, the 
time necessary to undergo an inspection and pay the permit fee did 
not create an unnecessary delay in the transportation of hazardous 
materials as long as ``the County does not cause the loaded truck to 
wait for a permit to be issued''. 63 FR at 45286.
    On reconsideration, the RSPA considered evidence of significant 
delays occurring during inspections of trucks based outside the 
County. The RSPA then determined that the Nassau County Ordinance 
was preempted with respect to trucks based outside the County, but 
was not preempted with respect to trucks based in Nassau County. 
According to the RSPA. ``The city or county may not require a permit 
or inspection for trucks that are not based within the local 
jurisdiction if the truck must interrupt its transportation of 
propane for several hours or longer in order for an inspection to be 
conducted and a permit to be issued.'' (PD-13(R) Determination on 
reconsideration.) Still, the RSPA emphasized that the County has an 
interest the safe delivery and transportation of LPG, whether the 
transportation companies are based in the County or not. To be 
clear, the RSPA did not find that all inspections of this nature 
were preempted by the HMTA. Instead, the reconsideration decision 
finding that the Nassau County ordinance was preempted was based on 
the unreasonable delay incurred by the transporter outside the 
jurisdiction.
    In practice, the Town Code is distinguishable from the Nassau 
County ordinance. Unlike the case in Nassau County, the Town of 
Smithtown does not conduct in inspections that last several hours. 
The inspections are scheduled in advance and scheduling is flexible. 
In addition, steps are implement that eliminate delay during the 
actual inspection. (see Exhibit #4) As a result, the town conducts 
its inspections without transporters having to wait longer than 30 
minutes. (Exhibit #4)
    Like the permit requirement in Nassau County, in order to obtain 
a permit, the owner of a vehicle used to deliver LPG must pay a fee 
of $150 or $75 for renewal, and have the vehicle inspected. Once the 
fees are obtained, they are used to offset the work performed by the 
Fire Prevention Division. (Exhibit $4) The permit fee is not applied 
to all trucks that transport the LPG within the Town of Smithtown, 
but only to those who deliver LPG within the Town. (Exhibit #4) The 
RSPA previously held that such fees are reasonable. (See Preemption 
Determination PD-13 (R) and 63 FR at 4587.
    Therefore, absent evidence of a significant delay in the actual 
transportation of LPG, there is not basis for determination finding 
that the HMTA preempts Town Code Section 164-108.

Section 164-109 (A), (I), and (E)/Certificate of Fitness

    The relevant sections of the Town Code regarding Certificate of 
Fitness are sections 164-109 (A), (I) and (E). (Exhibit 1). The Town 
of Smithtown submits that the HMTA does not preempt section 164-109. 
The Town Code at 164-109(A) states in part, ``Certificate of fitness 
required. Any person filling containers at locations where LPG is 
sold and/or transferred from one vessel into another shall hold a 
valid certificate of fitness issued by the Fire Prevention 
Division.'' Section 164-109(I) states in part, ``A certificate of 
fitness will be required of any person performing the following 
activities: (1) Filling containers permanently located at consumer 
sites from a cargo vehicle. (2) Selling LPG or transferring LPG from 
one vessel to another.'' Section 164-109(E) gives full force and 
effect to the certificate of fitness for three years.
    It is important to note that the Town of Smithtown offers two 
types of certificates of fitness. A Type I certificate of fitness 
allows the holder to handle (fill and sell) LPG at commercial 
dispensing stations. A Type II certificate of fitness is for 
operators of vehicles (bulk and rack type carriers) used for 
domestic delivery of LPG. (see Exhibits 3 and 4). In other words, 
only the holder of a Type II certificate of fitness may engage in 
the delivery of LPG within the Town of Smithtown.

Investigation and Exam Requirements

    Contrary to the RSPA's finding in 63 FR 45283 with respect to 
Nassau County's certificate of fitness requirement, the inspection 
and exam requirements of the

[[Page 41935]]

Town Code are consistent with 49 CFR 172.701 which proscribes only 
``minimum training requirements for the transportation of hazardous 
materials.'' Section 164-109 is in no way duplicative of the 
training requirements proscribed by 49 CFR parts 172, 174, 175, 176, 
and 177. Furthermore, 49 CFR parts 390 through 397, referenced by 49 
CFR 177.804, do not specifically address the safety provisions that 
are tested for a certificate of fitness under Town Code 164-109. 
(see Exhibit #5) The federal code of regulations deals primarily 
with the operation of the transferring vehicle itself, i.e. brakes, 
lights, windshield wipers, and rules of the road. (see 49 CFR 392) 
However, the Town Code deals primarily with the handling of LPG, 
i.e. transporting cylinders and delivering cylinders. (see Exhibit 
#5) Therefore, no conflict exists between the federal code of 
regulations and the Town Code.
    Section 164-152 lists the applicable fee for the initial 
certificate of fitness at one hundred fifty dollars and the renewal 
fee at seventy-five dollars. The applicable fees are payable upon 
the commencement of the application process. The application itself 
is a brief from. (Exhibit 2). This is followed by a written 
examination that tests the applicant's knowledge of the required 
safety standards, as provided in the Town's handbook. (Exhibit 3). 
Next, the applicant takes a practical test during which a fire 
marshal observes the applicant performing the necessary operations. 
(see Exhibit 4).
    The exams are scheduled in advance, and are given on several 
occasions in order to accommodate the applicant's schedule. Because 
Sec. 164-109(H) eliminates the investigation phase for the renewal 
process, applicants applying to renew a certificate of fitness are 
not required to take the written and practical examinations. Also, 
examinations are waived for applicants who possess a valid 
certificate of fitness from another jurisdiction. (see Exhibit 4).
    The effect of section 164-109 of the Town Code is to ensure that 
individuals engaged in the proscribed activity are capable of 
conducting this activity safely. The certification process generally 
occurs well in advance of the delivery of LPG and, as such, does not 
create a delay in delivery. (see Exhibit 4).

The Obstacle Test

    Because the HMTA does not address certificates of fitness and 
certificates of fitness are not included among the enumerated 
covered subjects in section 49 U.S.C. 5125(b), the ``dual compliance 
test'' and the ``covered subject test'' do not apply here. 
Therefore, the issue here is whether the submitted statutes pass the 
``obstacle test''.
    Town Code section 164-109 passes the obstacle test, as it does 
not create a significant delay in the transportation of LPG so as to 
conflict with 49 CFR 177.853(a), which prohibits ``unnecessary 
delays'' in the transportation of hazardous materials. First, this 
requirement does not explicitly pertain to the transporters of LPG, 
only to those who engage in filling, selling, and transferring LPG. 
It is true that, in practice, a transporter who delivers LPG must 
obtain a Type II Certificate of Fitness; however, this requirement 
does not create an obstacle to cause a delay in LPG delivery. (see 
Exhibit 4)
    For instance, in New Hampshire v. Motor Transport Association, 
et. al. v. Flynn, 751 F. 2d 43 (1st Cir. 1984), the U.S. Appeals 
Court considered whether a statute requiring transporters to obtain 
a license at a twenty-five dollar annual fee created an unnecessary 
delay in the transportation of hazardous materials. In that case, 
transporters seeking to obtain a licenses could only purchase the 
license during the week. The Court acknowledge that a delay in 
transportation would result for transporters who need to obtain a 
license for a weekend delivery. However, the court found that 
because transporters could anticipate this requirement, no 
significant delay should result. Therefore, the court held that the 
license requirement was not preempted by the HMTA.
    Here, the extent to which sec. 164-109 is enforced against 
transporters of LPG is limited to those situations where the 
transporters of LPG were also engaged in the delivery of LPG. In 
theses situations, transporters can anticipate the need to schedule 
the certification process in advance. (See Exhibit 4). Therefore, 
the fact that transporters consequently become involved, should not 
be a basis for determining that section 164-109 creates an obstacle 
to the accomplishment of the federal law.
    For the foregoing reasons, the HMTA does not preempt Town Code 
Sections 164-108 and 164-109.

    Submitted by:
John B. Zollo,
Town Attorney, Town of Smithtown.

Jennifer Marin,
Assistant Town Attorney, 99 West Main Street, P.O. Box 575, 
Smithtown, New York 11787.

    For Petitioner:
The Town of Smithtown,
99 West Main Street, P.O. Box 575, Smithtown, New York 11787.

[FR Doc. 01-20048 Filed 8-8-01; 8:45 am]
BILLING CODE 4910-60-P