[Federal Register Volume 69, Number 229 (Tuesday, November 30, 2004)]
[Notices]
[Pages 69677-69681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26352]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. RSPA-00-7096 (PD-27(R))]


Louisiana Requirements for Hazardous Materials Incident 
Notification

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: Louisiana Revised Statutes (La. R.S.) 32:1510.
    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: Rail and highway.

SUMMARY: Federal hazardous material transportation law: (1) Does not 
preempt Louisiana's immediate telephone notification requirement in La. 
R.S. 32:1510A, and (2) preempts Louisiana's written incident reporting 
requirements in La. R.S. 32:1510B & C.

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

    ATOFINA Chemicals, Inc. (ATOFINA) has applied for an administrative 
determination whether Federal hazardous material transportation law 
preempts the incident reporting requirements in La. R.S. 32:1510. 
Subsections A and B of La. R.S. 32:1510 require ``[e]ach person 
involved'' in a hazardous materials incident, accident, or the clean up 
of an incident or accident that has certain consequences to: (1) Make 
an immediate telephone report to the Louisiana Department of Public 
Safety and Corrections (DPSC), and (2) submit a follow-up written 
report ``on an approved form'' to DPSC. With respect to a hazardous 
materials transportation incident or accident that is not subject to 
the reporting requirements in subsections A and B, but must be reported 
to DOT, La. R.S. 32:1510C requires the carrier to submit a copy of the 
written report it files with DOT in accordance with 49 CFR 171.16. 
Other subsections of La. R.S. 32:1510, concerning the issuance or 
implementation of an emergency response system and exceptions from 
these reporting requirements for incidents that must be reported under 
another statute, do not appear to be relevant to ATOFINA's application.
    In its application, ATOFINA explained that it had received a notice 
of violation from the Louisiana State Police for failing to provide 
immediate notification of an incident when it ``believed that the 
carrier would make any necessary notification since it was directly 
present on the scene.'' Additional background on this incident and 
ATOFINA's application is contained in DPSC's comments and ATOFINA's 
rebuttal comments, submitted in response to RSPA's October 17, 2000 
notice in the Federal Register inviting interested persons to comment 
on ATOFINA's application. 65 FR 61370.
    According to those comments, approximately a year before ATOFINA's 
application, employees of the New Orleans Public Belt Railroad 
discovered that ethyl acrylate (a hazardous material) was leaking from 
a tank car. ATOFINA stated that it had manufactured this material and 
(through its agent, StanTrans) shipped it on the Burlington Northern 
Santa Fe Railway (BNSF). ATOFINA explained that, when it learned of the 
incident several hours after it occurred, it sent a representative to 
the scene. At that time, according to ATOFINA, the New Orleans Fire 
Department and the Louisiana State Police were already present, and the 
Fire Department ``had assumed control of the situation and, in fact, 
refused to permit the contractors who were called in by ATOFINA to 
assist with the repairs to the railcar.'' ATOFINA stated that the 
Louisiana State Police received notice of the incident from both 
StanTrans and BNSF although apparently that notice ``was not considered 
to be timely.''
    DPSC acknowledged that ATOFINA's representative arrived at the 
scene of the incident ``within five hours of its being made aware of 
the situation,'' but stated that ``the ATOFINA employee took no action 
whatsoever,'' and ``neither Burlington, the carrier, nor ATOFINA, the 
manufacturer/shipper, notified the Louisiana State Police of the 
incident.'' DPSC stated that notices of violation were issued to both 
ATOFINA and BNSF ``for failure to make the required telephonic 
notification.''
    DPSC also referred to Inconsistency Ruling (IR) No. 31, Louisiana 
Statutes and Regulations on Hazardous Materials Transportation, 55 FR 
25572, (June 21, 1990), appeal dismissed as moot, 57 FR 41165, 41167 
(Sept. 9, 1992). In that decision, RSPA previously considered the 
incident reporting requirements in 32:1510A-C and found that ``the 
State's requirements for telephonic notification concerning hazardous 
materials incidents/accidents are consistent with the HMTA and the 
HMR,'' but that ``the provisions of State law which require the 
submission of written accident/incident reports, are redundant with 
Federal requirements (particularly 49 CFR 171.16), tend to undercut 
compliance with the HMR requirements, and thus are inconsistent.'' 55 
FR at 25582. In IR-31, RSPA also found that provisions in La. R.S. 
32:1502 are

inconsistent with the HMTA and the HMR insofar as they authorize the 
State's Secretary of the Department of Public Safety and Corrections 
to designate as ``hazardous materials'' any materials, including 
hazardous wastes, other than those designated as such in the HMR. It 
follows that the State's section 32:1502(b) definition of 
``explosives'' is inconsistent with the HMR to the extent that it 
defines ``explosives'' any materials other than those defined as 
such in the HMR.

55 FR at 25581.
    National Tank Truck Carriers, Inc. (NTTC) and the Institute of 
Makers of Explosives (IME) also submitted comments on ATOFINA's 
application, in response to RSPA's October 17, 2000 notice in the 
Federal Register.

II. Federal Preemption

    As discussed in the October 17, 2000 notice, 49 U.S.C. 5125 
contains express preemption provisions that are relevant to this 
proceeding. 65 FR at 61371-72. As amended by Section 1711(b) of the 
Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2320), 49 
U.S.C. 5125(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, a 
regulation prescribed under this chapter, or a hazardous materials 
transportation security regulation or directive issued by the 
Secretary of Homeland Security 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, a regulation prescribed under this 
chapter, or a hazardous materials transportation security regulation 
or directive

[[Page 69678]]

issued by the Secretary of Homeland Security.

    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 is preempted--
unless authorized by another Federal law or DOT grants a waiver of 
preemption--when the non-Federal requirement is not ``substantively the 
same as'' a provision of Federal hazardous material transportation law, 
a regulation prescribed under that law, or a hazardous materials 
security regulation or directive issued by the Secretary of Homeland 
Security:
    (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).
    The November 2002 amendments to the preemption provisions in 49 
U.S.C. 5125 reaffirmed Congress' long-standing view that a single body 
of uniform Federal regulations promotes safety (including security) in 
the transportation of hazardous materials. Thirty years ago, when it 
was 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 expanded the preemption provisions 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. (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.) A United 
States Court of Appeals has found that uniformity was the ``linchpin'' 
in the design of the Federal laws governing the transportation of 
hazardous materials. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 
1571, 1575 (10th Cir. 1991).
    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 (Aug. 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. Reporting Incidents and Accidents Involving Hazardous Materials in 
Transportation

    Louisiana's hazardous material incident reporting requirements in 
La. R.S. 32:1510A-C provide as follows:

    A. Each person involved in an incident, accident, or the cleanup 
of an incident or accident during the transportation, loading, 
unloading, or related storage in any place of a hazardous material 
subject to this Chapter shall report immediately by telephone to the 
department if that incident, accident, or cleanup of an incident or 
accident involves:
    (1) A fatality due to fire, explosion, or exposure to any 
hazardous material.
    (2) The hospitalization of any person due to fire, explosion, or 
exposure to any hazardous material.
    (3) A continuing danger to life, health, or property at the 
place of the incident or accident.
    (4) An estimated property damage of more than ten thousand 
dollars.
    B. A written report shall be submitted to the department on an 
approved form. Each report submitted shall contain the time and date 
of the incident or accident, a description of any injuries to 
persons or property, any continuing danger to life at the place of 
the accident or incident, the identify and classification of the 
material, and any other pertinent details.

[[Page 69679]]

    C. In the case of an incident or accident involving hazardous 
materials which is not subject to this Chapter but which is subject 
to Title 49 and Title 46 of the Code of Federal Regulations, the 
carrier shall send a copy of the report filed with the United States 
Department of Transportation to the department.

B. Summary of Comments

    In its application, ATOFINA asserted that the Louisiana statute 
``is much broader'' than the incident reporting requirements in the HMR 
and is preempted because it ``is a non-federal requirement relating to 
the written notification and reporting of an unintentional release in 
transportation of hazardous materials that is not ``substantively the 
same as'' the federal regulations in 49 CFR 171.15 and 171.16. However, 
ATOFINA's application and the other comments focused on the immediate 
telephone notification required by La. R.S. 32:1510A, rather than the 
follow-up written reports required by La. R.S. 32:1510B and C.
    ATOFINA argued that, ``to the extent that Louisiana believes that 
immediate notification is necessary for emergency response purposes, 
that concern is satisfied by imposing the immediate notification 
obligation on the carrier rather than on each person involved in the 
incident, some of whom may not be present at the scene.'' It stated 
that ``[t]here can be many persons involved in an accident, such as the 
carrier, the owner of the goods, or agents of each of them,'' and 
``duplicate reporting * * * could be confusing to those who may have to 
respond to an incident.'' ATOFINA also stated that Louisiana's 
immediate reporting requirement is impractical for ``the manufacturer 
of the goods'' that has made arrangements with the carrier ``to make 
the immediate notification required under the federal regulations,'' 
and that it is

impractical and a burden on interstate commerce to require a large 
national company to comply with a multitude of different reporting 
requirements in the different state jurisdictions, particularly 
those like Louisiana which impose the same duty on multiple parties. 
Procedures would become so cumbersome that ultimately they would not 
be useful at all.

    In its rebuttal comments, ATOFINA urged that Louisiana's immediate 
reporting requirement in La. R.S. 32:1510A is preempted ``as applied to 
persons other than carriers,'' under the ``obstacle'' test in 49 U.S.C. 
5125(a)(2). ATOFINA acknowledged that ``states are permitted to impose 
some notification requirements for emergency response purposes,'' but 
these requirements ``should not apply to persons other than the person 
who has possession or control of the leaking vehicle or container 
(i.e., the carrier).'' It stated that ``it is unclear how Louisiana 
defines `each person involved' in a hazardous materials incident,'' and 
concluded that, if it had not sent a representative to the incident 
scene and ``attempted to assist in the response effort, it would not 
have been fined.'' ATOFINA stated that, in this manner, the immediate 
reporting requirement in La. R.S. 32:1510A ``discourage[s] persons from 
responding to an incident involving the release of a hazardous 
substance.''
    ATOFINA also noted that the Louisiana State Police is ``a non-911 
number and is not specified in the regulations.'' It supported the 
position advanced by IME that requirements for telephone notification 
should be limited to ``911'' calls. IME stated that ``notifications to 
locally-specified telephone numbers is unacceptable in a transportation 
setting, and is a burden that is exacerbated for motor carriers that 
operate over irregular routes.'' IME referred to the decision in 
Colorado Pub. Util. Comm'n v. Harmon, above, 951 F.2d at 1578, that 
Federal hazardous material transportation law preempts a State 
requirement for a carrier of hazardous materials to carry the telephone 
number of the State Patrol in the vehicle because that requirement is 
not substantively the same as the shipping paper requirements in the 
HER. ATOFINA stated that it would be a ``tremendous burden * * * to 
maintain and continuously update a directory of emergency numbers for 
more than 30,000 or so local jurisdictions,'' and, without such a 
directory, ``the carrier (and other entities, if required) would be 
forced to divert valuable resources away from responding to an incident 
in order to ensure compliance with local notification requirements.''
    In its comments, DISC stated that RSPA has previously stated that 
the immediate notification requirement in La. R.S. 32:1510A is not one 
of the subjects in 49 U.S.C. 5125(b)(1) where non-Federal requirements 
must be ``substantively the same as'' requirements in the HMR. It 
referred to a brief filed by the United States (on behalf of DOT) in 
Union Pacific RR v. California Pub. Util. Comm'n, No. C-97-3660-THE 
(N.D. Cal.), which stated that ``DOT interprets [the `substantively the 
same as' test in] 49 U.S.C. 5125(b)(1)(D), to preempt only state and 
local requirements to provide notification or reports in writing.'' 
From the same brief, DPSC also quoted language in a 1990 report of the 
House Committee on Energy and Commerce concerning the nature of the 
provision in 49 U.S.C. 5125(b)(1)(D) that non-Federal requirements on 
the ``[w]ritten notification, recording, and reporting of the 
unintentional release in transportation of hazardous materials'' must 
be ``substantively the same as'' requirements in the HMR:

    The oral notification and reporting of unintentional releases 
has specifically been excluded from this paragraph in order to 
permit State and local jurisdictions to develop the full range of 
possible alternatives in emergency response capabilities (such as 
requiring carriers to telephone local emergency responders).

    In their comments, IME and NTTC raised questions about the 
definitions of ``hazardous materials'' and ``explosives'' in La. R.S. 
32:1502(5). As already discussed, IME argued that requirements to make 
immediate telephone notifications should be limited to ``911'' numbers, 
and that additional ``locally-specified telephone numbers'' constitute 
such a burden that RSPA should find that they are preempted under the 
``obstacle'' test. IME commented that ATOFINA ``overreached in 
suggesting that'' the ``substantively the same as'' standard in 49 
U.S.C. 5125(b)(1)(D) applies to immediate telephone reports of 
hazardous materials incidents in transportation, in contrast to 
Louisiana's written follow-up reporting requirements in La. R.S. 
32:1510B & C, to which the ``substantively the same as'' standard 
applies. IME also stated that the exceptions in La. R.S. 32:1510E for 
incidents at fixed facilities involving certain materials have ``no 
bearing on `transportation-related releases' '' which are covered under 
La. R.S. 32:1510A-C.
    NTTC argued that both the immediate telephonic and follow-up 
written reporting requirements are not ``substantively the same as'' 
the requirements in the HMR because ``the monetary thresholds for 
property damage(s) differ'' Louisiana has exceptions for incidents 
involving certain materials that occur at a fixed facility; and the HMR 
require reports for incidents involving ``etiologic agents, marine 
pollutants and transportation by aircraft not found within Louisiana's 
rules.''

C. Decision

    There does not appear to have been any change to the Louisiana 
incident reporting requirements that were previously considered in IR-
31. 55 FR at 25582. In that decision (id.), RSPA carefully 
differentiated between immediate telephonic notification and follow-up 
written reports, as follows:


[[Page 69680]]


    Requirements for immediate telephonic hazardous materials 
transportation accident/incident reports for emergency response 
purposes are generally consistent with the HMTA and the HMR. IR-2, 
IR-3, IR-28, all supra; National Tank Truck Carriers, Inc. v. Burke, 
535 F. Supp. 509 (D.R.I. 1982), aff'd, 698 F.2d 559 (1st Cir. 1983).
* * * * *
    Therefore, the State's requirements for telephonic notification 
concerning hazardous materials incidents/accidents are consistent 
with the HMTA and the HMR.
    Furthermore, the provisions of State law which require the 
submission of written accident/incident reports, are redundant with 
Federal requirements (particularly 49 CFR 171.16), tend to undercut 
compliance with the HMR requirements, and thus are inconsistent. IR-
2, IR-3 (Decision on Appeal), all supra; IR-30, 55 FR 9676 (Mar. 14, 
1990), correction, 55 FR 12111 (Mar. 30, 1990). This rationale also 
applies to requirements to provide copies of the incident reports 
filed with [RSPA]; as indicated in IR-3, supra, such a requirement 
is inconsistent but [RSPA] is prepared to routinely send copies of 
those reports to a designated state agency on request.

    Additional explanation of RSPA's decision in IR-31 is contained in 
the prior decisions cited in the above quotations. In IR-2, Rhode 
Island Rules and Regulations Governing the Transportation of Liquefied 
Natural Gas, etc., 44 FR 75566 (Dec. 20, 1979), RSPA stated that ``when 
an accident does occur, response is, of necessity, a local 
responsibility'' (id. at 75568), and that a State's ``requirement for 
immediate notification in certain situations furthers the State's 
activity in protecting persons and property through emergency response 
measures.'' Id. at 75572. RSPA's findings in IR-2 were upheld in 
Federal court, which stated that, while ``[t]he need for uniform 
written report standards is imperative,'' immediate ``emergency notice 
to the State Police * * * promotes the public safety by facilitating a 
prompt emergency response. * * * It is neither inconsistent nor in 
conflict with nor contrary to the purpose of Congressional policy.'' 
National Tank Truck Carriers, Inc. v. Burke, 535 F. Supp. 509, 519 
(D.R.I. 1982), aff'd, 698 F.2d 559 (1st Cir. 1983).
    Similarly, in IR-3, City of Boston Rules Governing Transportation 
of Certain Hazardous Materials, etc., 46 FR 18918 (Mar. 26, 1981), 
decision on administrative appeal, 47 FR 18457 (Apr. 29, 1982), RSPA 
stated that:

    For an incident that requires the City to undertake emergency 
response, we reiterate our agreement that the City must be able to 
require the carrier to notify it immediately. If the City wishes to 
conduct a thorough investigation of the events at the scene, it may 
do so then * * * For data the City thinks it must have immediately 
from the carrier, the appropriate time to acquire it is in the 
emergency response phase.

47 FR at 18462. On the other hand, ``[w]ritten incident reports * * * 
do not provide time-sensitive data,'' and a State or local government 
is able to ``directly access the computer data base where all of the 
information from written incident reports [to RSPA] is kept.'' Id. RSPA 
concluded that:

    If the City in fact intends to make serious use of the 
information in DOT incident reports, the effort to obtain it from 
[RSPA] should not be significant. Accordingly, we reaffirm our 
previous conclusion that Boston's requirement that carrier submit 
written incident reports is redundant, unnecessary and inconsistent 
with the HMTA and the HMR. Id.
    The different nature of immediate telephonic notification and 
follow-up written reports was specifically recognized in the 
amendments to the HMTA enacted in the Hazardous Materials 
Transportation Uniform Safety Act (HMTUSA) of 1990 (Pub. L. 101-615, 
104 Stat. 3244, Nov. 16, 1990). Section 4 of HMTUSA amended the 
preemption provisions in the HMTA to provide that a State 
requirement on the ``written notification, recording, and reporting 
of the unintentional release in transportation of hazardous 
materials'' is preempted unless it is ``substantively the same as'' 
the Federal requirements in the HMR. 49 U.S.C. 5125(b)(1)(D). 
However, ``oral notification and reporting of unintentional 
releases'' was ``specifically excluded'' from Federal preemption 
``to permit State and local jurisdictions to develop the full range 
of possible alternative in emergency response capabilities.'' H.R. 
Report No. 101-444, Part 1, at 35 (Apr. 3, 1990).
    In the Union Pacific RR case, above, the court noted that ``DOT 
has long construed the HMTA to preempt only state laws pertaining to 
written reports, and not those that require oral notice to local 
emergency response teams.'' Order on Motion for Reconsideration, pp. 
6-7 (slip op., Dec. 14, 1998). The court found that the 
``notification and reporting' subject area delineated in 49 U.S.C. 
5125(b)(1)(D) does not include the subject area of providing 
immediate verbal reports to local entities so that emergency 
personnel can effectively respond to a release or other incident 
involving the transportation of hazardous materials.'' Id., p. 8. 
Accordingly, State requirements for immediate telephone notification 
of an accident or incident need not be ``substantively the same as'' 
Federal requirements in the HMR, and these requirements are not 
``preempted as an `obstacle' since they do not interfere with the 
federal government's ability to obtain prompt reports of serious 
accidents or to otherwise investigate those accidents and compile 
data for transportation planning.'' Id.
    There is no evidence that it is impossible for persons that are 
``involved'' in an incident (or its cleanup) in Louisiana, in 
addition to the carrier or other person who had physical possession 
of the hazardous material at the time of the incident, to 
immediately notify DPSC. Nor is there evidence that requiring 
immediate notification by each person ``involved in an incident, 
accident, or the cleanup of an incident or accident'' will interfere 
with either the specific notification requirements in the HMR or the 
safe transportation of hazardous materials overall. In a recent 
rulemaking, RSPA recognized that other persons who are not carriers 
(such as operators of transportation facilities) may have ``physical 
control of a hazardous material when an incident occurs during 
transportation [and] should be responsible for reporting that 
incident.'' See the preamble to the final rule in Docket No. RSPA-
99-5013 (HM-229), Revisions to Incident Reporting Requirements, 
etc., 68 FR 67746, 67750 (Dec. 3, 2003), corrections, 69 FR 30114 
(May 26, 2004). Effective January 1, 2005, the incident reporting 
requirements in 49 CFR 171.15 and 171.16 will apply to the ``person 
in physical possession of the hazardous material'' at the time of 
the incident. 68 FR at 67759.
    ATOFINA's claim that Louisiana's requirement is a ``burden on 
interstate commerce'' does not meet the preemption criteria in 49 
U.S.C. 5125, for RSPA's administrative determinations do not address 
issues of preemption arising under the Commerce Clause, except in 
the limited situations discussed in Part II (Federal Preemption), 
above. Additional issues raised by ATOFINA concerning the proper 
interpretation of the immediate reporting requirement in La. R.S. 
32:1510A are for State administrative or judicial bodies to resolve, 
such as:

--Whether ATOFINA was considered to be ``involved'' in the incident 
or its cleanup as the shipper of the ethyl acrylate, or only when 
its representative arrived at the incident scene about five hours 
after learning of the incident;
--whether timely telephone notification by the carrier (BNSF) or 
ATOFINA's agent (StanTrans), on behalf of ATOFINA, would satisfy an 
obligation for ATOFINA to ``immediately'' telephone DPSC;
--whether notification within five hours of learning of the incident 
satisfies the requirement to ``immediately'' notify DPSC of the 
accident, and whether telephonic notification is still required once 
the State Police have arrived at the scene of the incident; and
--whether there is sufficient notice of the ``non-911'' telephone 
number to satisfy substantive due process requirements.

    It is the role of the State, not RSPA, to interpret and apply 
its own requirements and, moreover, ``isolated instances of improper 
enforcement (e.g., misinterpretation of regulations) do not render 
such provisions inconsistent.'' IR-31, above, 55 FR at 25584. Thus, 
``[a]s a general matter, an inconsistent or erroneous interpretation 
of a non-Federal [statute or] regulation should be addressed to the 
appropriate State or local forum.'' PD-14(R), Houston, Texas, Fire 
Code Requirements, etc., 63 FR 67506, 67510 n.4 (Dec. 7, 1998), 
decision on petition for reconsideration, 64 FR 33949 (June 24, 
1999). In making administrative determinations of

[[Page 69681]]

preemption, RSPA's role to is to interpret and clarify the Federal-
State relationship in the regulation of hazardous materials 
transportation, ``within the rule-making process lying at the center 
of the responsibilities of federal executive agencies,'' and not to 
``adjudicate'' specific cases as a substitute for (or reviewing the 
decision of) the cognizant State or local forum. Tennessee v. U.S. 
Department of Transportation, 326 F3d 729, 736 (6th Cir.), cert. 
denied, ---- U.S., ------, 124 S.Ct. 464 (2003). There is also no 
basis for finding that Louisiana's interpretation of ``immediately'' 
in La. R.S. 32:1510A must be the same as the standard of ``no later 
than 12 hours after the occurrence'' adopted in the revisions to 49 
CFR 171.15(a) in HM-229. 68 FR at 67759.
    In the HM-229 rulemaking, RSPA considered, and declined to 
adopt, the recommendation of the American Trucking Associations, 
Inc. ``to incorporate one-call notification for both local and 
national requirements'' for immediate notification of an incident 
involving hazardous material in transportation. In the preamble to 
the final rule, RSPA stated that, ``In the case of any incident 
involving hazardous materials that requires immediate emergency 
response, the local authorities should be immediately notified.'' 
Id. at 67750. While ``contacting emergency response entities may be 
of primary concern immediately following an incident * * * 
notification of federal authorities through the NRC [National 
Response Center] is also essential.'' Id. at 67752. RSPA also noted 
that it ``has a system for identifying duplicative reporting,'' id. 
at 67751, and we must assume that DPSC is able to deal with the 
possibility of duplicate reports without being confused, as ATOFINA 
seems to fear. In any event, that potential concern does not create 
an ``obstacle'' to accomplishing and carrying out Federal hazardous 
material transportation law or the HMR.
    There is also insufficient information to find it is impossible 
to comply with a State or local requirement to call a ``non-911'' 
number for emergency response, or that this requirement will 
frustrate the Federal law or regulations. In its comments to the 
docket in HM-229, Norfolk Southern Railway Company asked RSPA to 
confirm that it is not ``the specific individual in physical control 
of the hazardous materials (who could be the engineer or 
conductor)'' who must make the telephone call. ``In other words, 
carriers can continue their existing practice of designating persons 
within the company to make such calls (such as the Chief Dispatcher 
or the Control Center) and file the follow-up written reports.'' In 
this circumstance, it would not be practicable to limit immediate 
telephone reporting to ``911'' numbers because, whenever the 
designated company representative (such as the Chief Dispatcher or 
Control Center, as suggested by Norfolk Southern) is located at a 
distance from the scene of the incident, its call to a local ``911'' 
number would not reach the appropriate emergency response personnel. 
In the absence of information to the contrary, it must be assumed 
that a designated company representative is able to obtain and 
contact the required emergency response telephone number within a 
brief period of time after learning of an incident involving 
hazardous materials in transportation, without diverting resources 
from responding to the incident. It must also be assumed that a call 
to the local ``911'' number in the vicinity of the incident would 
yield the appropriate ``non-911'' telephone number of the State 
Police or other agency required to be notified.
    In sum, RSPA's prior decisions make it clear that a State's 
immediate notification requirement need not be ``substantively the 
same as'' 49 CFR 171.15, as the Union Pacific case recognized. 
ATOFINA's application and the other comments submitted in this 
proceeding do not show that it is impossible for persons that are 
``involved'' in an incident (or its clean-up) in Louisiana to 
immediately notify DPSC, in addition to (and perhaps before) making 
the required telephonic notification to the National Response Center 
under 49 CFR 171.15. There is also insufficient information to find 
that La. R.S. 32:1510A as enforced and applied, to require another 
person besides the carrier to provide immediate telephonic 
notification of an incident, is an ``obstacle'' to accomplishing and 
carrying out Federal hazardous material transportation law, the HMR, 
or a DHS security regulation or directive.

IV. Ruling

    For all the reasons set forth above and in IR-31, Federal 
hazardous material transportation law: (1) Does not preempt 
Louisiana's immediate telephone notification requirement in La. R.S. 
32:1510A, and (2) preempts Louisiana's written incident reporting 
requirement in La. R.S. 32:1510B & C.

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).

    Issued in Washington, DC on November 22, 2004.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 04-26352 Filed 11-29-04; 8:45 am]
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