[Federal Register Volume 67, Number 61 (Friday, March 29, 2002)]
[Notices]
[Pages 15276-15281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7715]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

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


Town of Smithtown, New York Ordinance on Transportation of 
Liquefied Petroleum Gas

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

ACTION: Notice of administrative determination of preemption by RSPA's 
Associate Administrator for Hazardous Materials Safety.

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    Local Laws Affected: Smithtown Town Code Sections 164-108 and 164-
109.
    Applicable Federal Requirements: Federal hazardous material 
transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials 
Regulations (HMR), 49 CFR parts 171-180.
    Modes Affected: Highway.
SUMMARY: Federal hazardous material transportation law preempts:
    (1) The requirement in Section 164-108 of the Smithtown Town Code 
for a permit to deliver liquefied petroleum gas (LPG) within the Town 
of Smithtown with respect to trucks that are based outside of Smithtown 
because it is not possible to schedule and conduct an inspection of the 
truck (required for a permit) without causing unnecessary delays in the 
transportation of hazardous materials from locations outside Smithtown.
    (2) the requirement in Section 164-109 of the Smithtown Town Code 
for a certificate of fitness insofar as that requirement is applied to 
a motor vehicle driver who sells or delivers LPG, because Section 164-
109 imposes on drivers of motor vehicles used to deliver LPG more 
stringent training requirements than provided in the HMR.

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

SUPPLEMENTARY INFORMATION:

I. Background

    The Town of Smithtown, New York (the Town) has asked RSPA to 
determine whether Federal hazardous material transportation law 
preempts requirements in Sections 164-108 and 164-109 of the Town Code 
for permits and ``certificates of fitness'' for the delivery of LPG 
within the Town. According to the Town's application these requirements 
were adopted in 1983, and they are similar to provisions of Nassau 
County Ordinance No. 344-1979 that RSPA considered in Preemption 
Determination (PD) No. 13(R), Nassau County, New York Ordinance on 
Transportation of Liquefied Petroleum Gases, 63 FR 45283 (Aug. 25, 
1998), decision on petition for reconsideration, 65 FR 60238 (Oct. 10, 
2000), complaint for judicial review dismissed, Office of the Fire 
Marshal of the County of Nassau v. U.S. Dep't of Transportation, Civil 
Action No. 00-7200 (E.D.N.Y. Mar. 18, 2002). The Town is located on 
Long Island in Suffolk County, which is adjacent to Nassau County.
    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 HMR because it is not possible to schedule 
and conduct an inspection of the truck (required for a permit) without 
causing unnecessary delays in the transportation of hazardous materials 
from locations outside the County. 65 FR at 60245. RSPA also found 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 at 45288.
    In a notice published in the Federal Register on August 9, 2001, 
RSPA invited interested persons to submit comments on the Town's 
similar permit and certificate of fitness requirements. 66 FR 41931. In 
response to that notice, RSPA received written comments from National 
Tank Truck Carriers, Inc. (NTTC) and the National Propane Gas 
Association (NPGA). The Town submitted a response to NTTC's comments.
    RSPA believes that it received all comments on the Town's 
application despite the disruption of mail delivery to DOT between mid-
October and the end of November 2001. On October 25, 2001, DOT posted 
on its Docket Management System Web site (http://dms.dot.gov) a notice 
that comments could also be submitted in person, electronically, and by 
alternate delivery services, and that DOT would consider late-filed 
comments to the extent possible. See also DOT's Notice that ``we will 
do everything possible to ensure that we consider comments that we 
otherwise would have received before the close of the comment period,'' 
and advising interested persons ``to check our Dockets Web page * * * 
to see if we received and processed your document(s).'' 67 FR 1391, 
1392 (Jan. 10, 2002). RSPA's procedural regulations specifically 
provide that ``Late-filed comments are considered so far as 
practicable'' in a preemption determination proceeding. 49 CFR 
107.205(c)

II. Federal Preemption

    RSPA explained in its August 9, 2001 notice that 49 U.S.C. 5125 
contains express preemption provisions that are relevant to this 
proceeding. 66 FR at 41933-34. 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

[[Page 15277]]

prescribed under this chapter is not possible; or
    (2) The requirement of the State, political subdivision, or 
tribe, as applied or enforced, is an obstacle to 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). Pub. L. 93-633 
Sec. 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 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.

    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:

    A State, political subdivision of a State, 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. Public Law 103-272, 108 Stat. 745.)
    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 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, 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.
    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.

III. Discussion

A. Inspection and Permit Requirement

    According to the Town, 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.

[[Page 15278]]

    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.

    With its application, the Town submitted an affidavit of its Chief 
Fire Marshal stating that the inspection and permit requirement in 
Section 164-108 applies to both bulk carriers and rack trucks that are 
used to deliver LPG within the Town, but that a permit is not required 
for ``vehicles that are only passing through the Town of Smithtown and 
not making any deliveries within the Town.'' It appears that a truck 
would have to be inspected in both the Town and Nassau County (and hold 
a permit from each) in order to make propane deliveries in both 
jurisdictions.
    The Town Code provides that a permit is valid for one year (Section 
164-108.C.), but it does not refer to fees. According to the Chief Fire 
Marshal, the permit fee is $150 for a new permit, and $75 for a 
renewal, and these fees ``are used to offset the work performed by the 
Fire Prevention Division,'' such as ``responding to hazardous material 
incidents, including, but not limited to, gas leaks and spills.''
    The Town acknowledged that ``Section 164-108 is essentially 
identical'' to the inspection and permit requirement of Nassau County 
that RSPA has found to be preempted with respect to trucks based 
outside the jurisdiction performing the inspections and issuing the 
permit. Nonetheless, the Town asserted in its application that 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 his affidavit, the Chief Fire Marshal also stated:

    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. 
Adjustments in scheduling are made for inspections that would be due 
to expire during a winter month. In order to eliminate the delay in 
having to wait for the inspection to take place, no more than four 
trucks are scheduled to be inspected within a 30 minute time frame.

    In its responding comments, the Town again argued that RSPA based 
its finding in PD-13(R) that Nassau County's inspection and permit 
requirement is preempted with respect to trucks based outside the 
County ``on evidence that transportation of propane was interrupted for 
several hours or longer while Nassau County conducted inspections and 
issued permits.'' The Town stated that, ``[u]nlike the Nassau County 
inspections, the Town of Smithtown conducts its inspections within a 
thirty-minute time frame,'' and it referred to the Chief Fire Marshal's 
affidavit indicating that the inspection of a bulk carrier takes ``from 
15 to 20 minutes'' and only ``10 to 15 minutes'' for a rack truck.
    NTTC stated that RSPA's decision in PD-13(R) provides the ``ground 
rules'' regarding a local requirement for an inspection of ``hazmat-
laden vehicles.'' It quoted the following language:

A city or county may apply an annual inspection requirement to 
trucks based outside its jurisdictional boundaries only if the city 
or county can actually conduct the equivalent of a ``spot'' 
inspection upon the truck's arrival within the local jurisdiction. 
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.

65 FR at 60244.
    NPGA agreed that the Smithtown permit requirement ``is 
substantively identical'' to the same requirement of Nassau County that 
RSPA found to be preempted in PD-13(R) with respect to trucks based 
outside the County. NPGA urged RSPA to extend its decision in PD-13(R) 
to ``companies based outside of the County and those based within the 
County'' because NPGA ``believes that, under most conditions, permit 
requirements such as the one [in Nassau County] create obstacles to the 
safe and efficient transportation of propane for delivery companies 
based within the jurisdiction.''
    NPGA disagreed with RSPA's conclusion in PD-13(R) that it should be 
possible to schedule an inspection of a truck based within the 
inspecting jurisdiction ``at a time that does not disrupt or 
unnecessarily delay deliveries.'' 65 FR at 60243. It stated that, 
``[d]uring peak propane delivery seasons, it may be impossible for a 
propane retailer to take a propane vehicle out of service for 
inspection.'' NPGA contends that ``the same delay of a loaded vehicle 
with a hazardous material could occur,'' whether the truck is based 
within or outside of the inspecting jurisdiction. It stated that, if 
the ``tens of thousands of state, county and local jurisdictions 
nationwide . . . required inspections in addition to those already 
required under the HMRs, the delay of hazardous materials 
transportation would be indisputable.'' NPGA also stated that ``the 
Nassau County and Smithtown inspection requirements are duplicative'' 
of the annual and roadside inspections required under 49 CFR part 396 
and the inspection, repair and maintenance requirements for cargo tanks 
in 49 CFR part 180.
    RSPA considers that vehicle and container inspections are an 
integral part of a program to assure the safe transportation of 
hazardous materials in compliance with the HMR (including those parts 
of the Federal Motor Carrier Safety Regulations in 49 CFR parts 390-397 
incorporated by reference in the HMR, at 49 CFR 177.804). See, for 
example, 49 CFR 396.17 (annual inspection of motor vehicle); 396.11 and 
396.13 (daily inspection by driver); 180.407 (periodic inspection of 
cargo tanks); 173.34(e) (periodic inspection of cylinders).
    RSPA has also specifically found that inspections conducted by 
State or local governments ``to assure compliance with Federal or 
consistent requirements are themselves consistent'' with Federal 
hazardous material transportation law and not preempted. IR-20, 
Triborough Bridge and Tunnel Authority Regulations, etc., 52 FR 24396, 
24398 (June 30, 1987), quoted in PD-4(R), California Requirements 
Applicable to Cargo Tanks Transporting Flammable and Combustible 
Liquids, 58 FR 48933, 48940 (Sept. 20, 1993), decision on petition for 
reconsideration, 60 FR 8800 (Feb. 15, 1995). Accordingly, RSPA ``has 
encouraged States and local governments to adopt and enforce the 
requirements in the HMR `through both periodic and roadside spot 
inspections.' '' PD-4(R), 58 FR at 48940, and PD-13(R), 63 FR at 45286, 
quoting from Waiver of Preemption Determination No. 1, New York City 
Fire Department Regulations, etc., 57 FR 23276, 23295 (June 2, 1992).
    To be consistent with Federal hazardous materials transportation 
law and the HMR, however, a non-Federal inspection of a vehicle or 
container used to transport a hazardous material must not conflict with 
the requirement in 49 CFR 177.800(d):

    All shipments of hazardous materials must be transported without 
unnecessary delay, from and including the time of commencement of 
the loading of the hazardous material until its final unloading at 
destination.

    In PD-4(R), RSPA determined that Federal hazardous material 
transportation law preempts a California requirement for an annual 
inspection of cargo tanks and portable tanks used to transport 
flammable and combustible liquids. In that situation, the evidence 
showed that these tanks were not being inspected for several days (or 
longer) after their arrival in the State, and RSPA

[[Page 15279]]

found that ``the instances when a vehicle must wait, or a portable tank 
must be held, for the arrival of State inspectors from another location 
create unnecessary delays.'' 58 FR 48941. In PD-13(R), RSPA found a 
similar problem with Nassau County's annual inspection requirement for 
trucks used to transport LPG, because the evidence showed that the 
County could not conduct the equivalent of a ``roadside or spot'' 
inspection on vehicles arriving in Nassau County from outside the 
County. 65 FR at 60244.
    These principles apply to the Town's permit requirement in Section 
164-108 of the Town Code. It is clear that any State or local periodic 
inspection requirement has an inherent potential to cause unnecessary 
delays in the transportation of hazardous materials when that 
requirement is applied to vehicles based outside of the inspecting 
jurisdiction. The comments submitted in PD-4(R) and PD-13(R) establish 
that the ``call and demand'' nature of common carriage makes it (1) 
impossible to predict in advance which vehicles may be needed for a 
pick-up or delivery within a particular jurisdiction and (2) 
impractical to have all vehicles inspected every year or, 
alternatively, have a few vehicles inspected in order to be 
``dedicated'' to the inspecting jurisdiction. See the discussion in PD-
4(R), 58 FR at 48938-41, and PD-13(R), 65 FR at 60242-44. More specific 
evidence of the effect of the Town's inspection requirement is not 
necessary.
    The inherent potential for unnecessary delay, when a periodic 
inspection requirement applies to a vehicle based outside the 
inspecting jurisdiction, is not eliminated by a ``flexible'' scheduling 
policy. The impracticability of scheduling an inspection in advance of 
knowing whether a particular truck will be needed to make a delivery 
within the inspecting jurisdiction creates unnecessary delay--not the 
time that the inspection actually takes to be conducted. As discussed 
in PD-4(R) and PD-13(R), that unnecessary delay would be eliminated if 
the Town performed the equivalent of a spot or roadside inspection, 
upon the unannounced arrival of a truck carrying LPG.
    Whether or not the inspection performed by the Town lasts longer 
than that performed by the Nassau County Fire Marshal does not 
distinguish the requirements of the two jurisdictions. In PD-13(R), 
RSPA did not focus on the actual time that Nassau County took to 
conduct an inspection but referred to its earlier determinations that 
``the minimal increase in travel time when an inspection is actually 
being conducted, or the vehicle is waiting its ``turn'' for an 
inspector to finish inspecting another vehicle that arrived earlier at 
the same facility is not unnecessary delay.'' 65 FR at 60243 and 63 FR 
45286, quoting from IR-4(R), 58 FR at 48941.
    RSPA appreciates NPGA's argument that the Town's inspections may 
duplicate inspections performed by the carrier itself or by Federal or 
State inspectors. Nonetheless, RSPA cannot find that, by itself, a non-
Federal inspection requirement is preempted by Federal hazardous 
material transportation law when the inspection is performed without 
causing unnecessary delay in the transportation of hazardous material 
or otherwise creating an obstacle to accomplishing and carrying out 
that law and the HMR. (In PD-13(R), RSPA specifically noted that a 
separate statutory procedure exists for DOT to review and determine 
whether a State or local inspection requirement is preempted by 49 
U.S.C. 31142. 65 FR at 60243.) Under the principles set forth in RSPA's 
decisions in PD-4(R) and PD-13(R), the potential for duplication is 
limited to the jurisdiction in which the vehicle is based. Under these 
circumstances, there is no basis for NPGA's concern that numerous 
States, counties, and other local jurisdictions may require periodic 
inspections of the same vehicle. Moreover, the limitation on the number 
of non-Federal inspections that may be performed should also make it 
feasible for the owner of a truck based within the Town to schedule an 
inspection outside of the ``peak propane delivery seasons.''
    For all the reasons set forth above and in RSPA's prior 
determinations in PD-4(R) and PD-13(R), RSPA finds that Federal 
hazardous material transportation law does not preempt the Town's 
annual permit requirement in Section 164-108 of the Town Code with 
respect to trucks that are based within the Town. On the other hand, 
RSPA finds that the Town's annual permit requirement creates an 
obstacle to accomplishing and carrying out the HMR's prohibition 
against unnecessary delays in the transportation of hazardous materials 
on vehicles based outside of the Town and, accordingly, Federal 
hazardous materials transportation law preempts Section 164-108 of the 
Town Code with respect to trucks based outside of the Town.

B. Certificate of Fitness Requirement

    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.

    In its application, the Town stated that two categories of persons 
must have a certificate of fitness, those 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's Chief Fire Marshal explained that a ``Type One'' certificate is 
required for ``individuals who fill and sell propane tanks at a fixed 
site,'' and the persons who ``transfer LPG at a fixed site and/or 
transport and deliver LPG to locations within the Town of Smithtown'' 
must hold a ``Type Two'' certificate. The Town Code specifies that a 
certificate of fitness is valid for three years (Section 164-109.E), 
upon payment of ``the applicable fees'' (Section 164-109.B), which the 
Chief Fire Marshal states are $150 for the initial issuance and $75 for 
renewal.
    According to the Chief Fire Marshal, both ``a written examination 
and investigation'' are required to obtain the initial certificate of 
fitness. He stated that ``testing covers the makeup, uses, and proper 
handling of the product as outlined within'' the Town's Fire Prevention 
Code, the New York State Uniform Fire Prevention and Building Code, and 
standards of the National Fire Prevention Association. He also stated 
that the ``written exam is a multiple choice exam that lasts 
approximately 30 minutes. The investigation is a practical test during 
which the applicant is observed performing the necessary operations.'' 
The Chief Fire Marshal explained that the written and practical 
examinations are not required for a renewal or ``when the applicant can 
produce a valid certificate of fitness from another jurisdiction.''
    The Town stated that its certificate of fitness requirement is 
``consistent with 49 CFR 172.701 which proscribes only `minimum 
training requirements for the transportation of hazardous materials.' 
'' It stated that its written examination

[[Page 15280]]

and investigation are ``in no way duplicative of the training 
requirements'' in the HMR and address different matters than covered in 
the HMR: because ``the Town Code deals primarily with the handling of 
LPG, i.e. transporting cylinders and delivering cylinders * * * no 
conflict exists between the federal code of regulations and the Town 
Code.''
    The Town acknowledged that ``a transporter who delivers LPG must 
obtain a Type II Certificate of Fitness,'' but stated that 
``transporters can anticipate the need to schedule the certification 
process in advance,'' so there should not be any delay in 
transportation. It cited the decision in New Hampshire Motor Transport 
Ass'n versus Flynn, 751 F.2d 43 (1st Cir. 1984), as upholding a State 
requirement for hazardous materials and waste transporters to obtain an 
annual $25 permit or $15 single-trip permit from offices that were not 
open at night or on weekends.
    NPGA stated that RSPA should find that the Town's certificate of 
fitness requirement is preempted for the same reasons that RSPA found 
Nassau County's similar requirement to be preempted in PD-13(R). The 
only difference, as noted by NPGA, is that the Town has two different 
certificates of fitness, ``one for refillers and one for domestic 
delivery drivers.'' NPGA also called attention to the decision of a 
local court that the Town's certificate of fitness requirement is 
preempted with respect to motor vehicle drivers. People versus Paraco 
Gas Corp., No. SMTO 398-99 (Dist. Ct. Suffolk Co., Mar. 20, 2000).
    As discussed in PD-13(R), 63 FR at 45287, the HMR set minimum 
training requirements for hazmat employees but also contain a specific 
limitation on additional training that may be required for drivers of 
motor vehicles transporting hazardous materials. Section 172.701 in the 
HMR provides that, ``a State may impose more stringent training 
requirements [on motor vehicle drivers] only if those requirements-- 
(a) Do not conflict with the training requirements in [the HMR]; and 
(b) Apply only to drivers domiciled in that State.'' As explained in 
the preamble to RSPA's final rule, this ``language recognizes the 
traditional regulation by States of their own resident drivers, 
particularly through drivers' licensing requirements and procedures,'' 
but it ``does not authorize States to impose [additional training] 
requirements on non-residents and also does not authorize other 
governmental agencies to impose requirements.'' 57 FR 20944, 20947 (May 
15, 1992), quoted at 63 FR at 45287.
    The HMR are consistent with the prohibition against holding a 
commercial driver's license from more than one State and the 
requirement that a State must honor a valid commercial driver's license 
issued by another State that has not been revoked, suspended or 
canceled. 49 U.S.C. 31311(a)(11), (14), 49 CFR 383.21, 384.214. In this 
State-administered scheme for licensing drivers of commercial motor 
vehicles (including those used to deliver propane), there is no room 
for ``other governmental agencies'' (such as a city or county) to 
impose additional training requirements, either as part of a licensing 
procedure or otherwise. Any such additional training requirements are 
an obstacle to carrying out the Federal hazardous material 
transportation law and the HMR.
    The hazmat employee training requirements in the HMR specifically 
include testing ``by appropriate means'' in three required areas: 
general-awareness/familiarization training, function-specific training, 
and safety training. 49 CFR 172.702(d). Records of training must 
include a written ``[c]ertification that the hazmat employee has been 
trained and tested, as required by this subpart.'' 49 CFR 172.704(d). 
Hazmat training and testing must be conducted ``at least once every 
three years'' and whenever there is ``a change in job function.'' 49 
CFR 172.704(c).
    RSPA found that Nassau County's written and practical tests on the 
use, makeup, and handling of LPG clearly fall within the definition of 
``training'' in 49 CFR 172.700(b):

A systematic program that ensures a hazmat employee has familiarity 
with the general provisions of this subchapter, is able to recognize 
and identify hazardous materials, has knowledge of specific 
requirements of this subchapter applicable to functions performed by 
the employee, and has knowledge of emergency response information, 
self-protection measures, and accident prevention methods and 
procedures.

See 63 FR at 45287. Accord, PD-7(R), Maryland Certification 
Requirements for Transporters of Oil or Controlled Hazardous 
Substances, 59 FR 28913, 28919 (June 3, 1994), where RSPA found that 
Federal hazardous material transportation law preempts Maryland's 
additional certification requirements for operators of vehicles 
transporting oil and hazardous wastes, when applied to drivers not 
domiciled within the State.
    When applied to motor vehicle drivers, the Town's certificate 
fitness requirement conflicts with the limitation against additional 
training requirements in 49 CFR 172.701 and is an obstacle to 
accomplishing and carrying out the HMR's training requirements. For 
that reason, Federal hazardous material transportation law preempts the 
Town's certificate of fitness requirement in Section 164-109 of the 
Town Code.

IV. Ruling

    Federal hazardous material transportation law preempts:
    (1) the requirement in Section 164-108 of the Smithtown Town Code 
for a permit to deliver liquefied petroleum gas (LPG) within the Town 
of Smithtown with respect to trucks that are based outside of Smithtown 
because it is not possible to schedule and conduct an inspection of the 
truck (required for a permit) without causing unnecessary delays in the 
transportation of hazardous materials from locations outside Smithtown.
    (2) the requirement in Section 164-109 of the Smithtown Town Code 
for a certificate of fitness insofar as that requirement is applied to 
a motor vehicle driver who sells or delivers LPG, because Section 164-
109 imposes on drivers of motor vehicles used to deliver LPG more 
stringent training requirements than provided in the HMR.

V. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), any person aggrieved by this 
decision may file a petition for reconsideration within 20 days of 
publication of this decision in the Federal Register. Any party to this 
proceeding may seek review of RSPA's decision ``in an appropriate 
district court of the United States . . . not later than 60 days after 
the decision becomes final.'' 49 U.S.C. 5125(f).
    This decision will become RSPA's final decision 20 days after 
publication in the Federal Register 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 of this decision under 
49 U.S.C. 5125(f).
    If a petition for reconsideration of this decision is filed within 
20 days of publication in the Federal Register, the action by RSPA's 
Associate Administrator for Hazardous Materials Safety on the petition 
for reconsideration will be RSPA's final decision. 49 CFR 107.211(d).


[[Page 15281]]


    Issued in Washington, DC on March 25, 2002.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 02-7715 Filed 3-28-02; 8:45 am]
BILLING CODE 4910-60-P