[Federal Register Volume 84, Number 142 (Wednesday, July 24, 2019)]
[Notices]
[Pages 35707-35709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15675]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-2019-0149; PDA-40(R)]
Hazardous Materials: The State of Washington Crude Oil by Rail--
Vapor Pressure Requirements
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Public Notice and Invitation to comment.
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SUMMARY: Interested parties are invited to comment on an application by
the State of North Dakota and the State of Montana for an
administrative determination as to whether Federal hazardous material
transportation law preempts the State of Washington's rules relating to
the volatility of crude oil received in the state.
DATES: Comments received on or before August 23, 2019 and rebuttal
comments received on or before September 23, 2019 will be considered
before an administrative determination is issued by PHMSA's Chief
Counsel. Rebuttal comments may discuss only those issues raised by
comments received during the initial comment period and may not discuss
new issues.
ADDRESSES: North Dakota and Montana's application and all comments
received may be reviewed in the Docket Operations Facility (M-30), U.S.
Department of Transportation, West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590. The application and
all comments are available on the U.S. Government Regulations.gov
website: http://www.regulations.gov.
Comments must refer to Docket No. PHMSA-2019-0149 and may be
submitted by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: 1-202-493-2251.
Mail: Docket Operations Facility (M-30), U.S. Department
of Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.
Hand Delivery: Docket Operations Facility (M-30), U.S.
Department of Transportation, West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590, between 9:00 a.m. and
5:00 p.m., Monday through Friday, except Federal holidays.
A copy of each comment must also be sent to (1) Wayne Stenehjem,
Attorney General, The State of North Dakota, Office of the Attorney
General, 600 East Boulevard Avenue, Department 125, Bismarck, ND 58505-
0040, and (2) Tim Fox, Attorney General, The State of Montana, Office
of the Attorney General, Justice Building, Third Floor, 215 North
Sanders, Helena, MT 59620-1401. A certification that a copy has been
sent to these persons must also be included with the comment. (The
following format is suggested: I certify that copies of this comment
have been sent to Mr. Stenehjem and Mr. Fox at the addresses specified
in the Federal Register.'')
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing a comment submitted on behalf of an
association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78), or you may visit http://www.regulations.gov.
A subject matter index of hazardous materials preemption cases,
including a listing of all inconsistency rulings and preemption
determinations, is available through PHMSA's home page at http://phmsa.dot.gov. From the home page, click on ``Hazardous Materials
Safety,'' then on ``Standards & Rulemaking,'' then on ``Preemption
Determinations'' located on the right side of the page. A paper copy of
the index will be provided at no cost upon request to Mr. Lopez, at the
address and telephone number set forth in the FOR FURTHER INFORMATION
CONTACT section below.
FOR FURTHER INFORMATION CONTACT: Vincent Lopez, Office of Chief Counsel
(PHC-10), Pipeline and Hazardous Materials Safety Administration, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC
20590; telephone No. 202-366-4400; facsimile No. 202-366-7041.
SUPPLEMENTARY INFORMATION:
I. Application for a Preemption Determination
The State of North Dakota and the State of Montana have applied to
PHMSA for a determination whether Federal hazardous material
transportation law (HMTA), 49 U.S.C. 5101 et seq., preempts the State
of Washington's Engrossed Substitute Senate Bill 5579, Crude Oil By
Rail--Vapor Pressure. Specifically, North Dakota and Montana allege the
law, which purports to regulate the volatility of crude oil transported
in Washington state for loading and unloading, amounts to a de facto
ban on Bakken \1\ crude.
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\1\ According to the applicants, North Dakota and Montana are
home to the Bakken Shale Formation, a subsurface formation within
the Williston Basin. It is one of the top oil-producing regions in
the country and one of the largest oil producers in the world.
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North Dakota and Montana present two main arguments for why they
believe Washington's law should be preempted. First, North Dakota and
Montana contend that the law's prohibition on the loading or unloading
of crude oil with more than 9 psi vapor pressure poses obstacles to the
HMTA because compliance with the law can only be accomplished by (1)
pretreating the crude oil prior to loading the tank car; (2) selecting
an alternate mode of
[[Page 35708]]
transportation; or (3) redirecting the crude oil to facilities outside
Washington state. Accordingly, North Dakota and Montana say these
avenues for complying with the law impose obstacles to accomplishing
the purposes of the HMTA. Similarly, they contend that the law's pre-
notification requirements are an obstacle. Last, North Dakota and
Montana contend that Washington's law is preempted because aspects of
the law are not substantively the same as the federal requirements for
the classification and handling of this type of hazardous material.
In summary, North Dakota and Montana contend the State of
Washington's Engrossed Substitute Senate Bill 5579, Crude Oil By Rail--
Vapor Pressure, should be preempted because:
It is an obstacle to the federal hazardous material
transportation legal and regulatory regime; and
It is not substantively the same as the federal
regulations governing the classification and handling of crude oil in
transportation.
II. Federal Preemption
Section 5125 of 49 U.S.C. contains express preemption provisions
relevant to this proceeding. As amended by Section 1711(b) of the
Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2319), 49
U.S.C. 5125(a) provides that a requirement of a State, political
subdivision of a State, or Indian tribe is preempted--unless the non-
Federal requirement is authorized by another Federal law or DOT grants
a waiver of preemption under section 5125(e)--if (1) complying with the
non-Federal requirement and the Federal requirement is not possible; or
(2) the non-Federal requirement, as applied and enforced, is an
obstacle to accomplishing and carrying out the Federal requirement.
These two sentences set forth the ``dual compliance'' and
``obstacle'' criteria that PHMSA's predecessor agency, the Research and
Special Programs Administration, 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 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 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 Department of Homeland
Security. The five subject areas include: the designation, description,
and classification of hazardous material; the packing, repacking,
handling, labeling, marking, and placarding of hazardous material; the
preparation, execution, and use of shipping documents related to
hazardous material and requirements related to the number, contents,
and placement of those documents; the written notification, recording,
and reporting of the unintentional release in transportation of
hazardous material and other written hazardous materials transportation
incident reporting involving State or local emergency responders in the
initial response to the incident; and the designing, manufacturing,
fabricating, inspecting, marking, maintaining, reconditioning,
repairing, or testing a package, container, or packaging component that
is represented, marked, certified, or sold as qualified for use in
transporting hazardous material in commerce.
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).\2\
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\2\ Additional standards apply to preemption of non-Federal
requirements on highway routes over which hazardous materials may or
may not be transported and fees related to transporting hazardous
material. See 49 U.S.C. 5125(c) and (f). See also 49 CFR 171.1(f)
which explains that a ``facility at which functions regulated under
the HMR are performed may be subject to applicable laws and
regulations of state and local governments and Indian tribes.''
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The 2002 amendments and 2005 reenactment of the preemption
provisions in 49 U.S.C. 5125 reaffirmed Congress's long-standing view
that a single body of uniform Federal regulations promotes safety
(including security) in the transportation of hazardous materials. More
than 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 Congress expanded the preemption provisions in
1990, it specifically found that 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. And 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. Therefore, 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.\3\
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\3\ Public Law 101-615 Sec. 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 (July 5, 1994).)
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A United States Court of Appeals has found 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).
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 PHMSA to make determinations of preemption, except for
those concerning highway routing (which have been delegated to the
Federal Motor Carrier Safety Administration). 49 CFR 1.97(b).
Section 5125(d)(1) requires notice of an application for a
preemption determination to be published in the Federal Register.
Following the receipt and consideration of written comments, PHMSA
publishes its determination in the Federal Register. See 49 CFR
107.209(c). A short period of time is allowed for filing of petitions
for reconsideration. 49 CFR 107.211. A petition for judicial review of
a final preemption determination must be filed
[[Page 35709]]
in the United States Court of Appeals for the District of Columbia or
in the Court of Appeals for the United States for the circuit in which
the petitioner resides or has its principal place of business, within
60 days after the determination becomes final. 49 U.S.C. 5127(a).
Preemption determinations do not address issues of preemption
arising under the Commerce Clause, the Fifth Amendment or other
provisions of the Constitution, or 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(f)(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), PHMSA
is guided by the principles and policies set forth in Executive Order
No. 13132, entitled ``Federalism'' (64 FR 43255 (Aug. 10, 1999)), and
the President's May 20, 2009 memorandum on ``Preemption'' (74 FR 24693
(May 22, 2009)). 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 Congress intended
to preempt State law, or the exercise of State authority directly
conflicts with the exercise of Federal authority. The President's May
20, 2009 memorandum sets forth the policy ``that preemption of State
law by executive departments and agencies should be undertaken only
with full consideration of the legitimate prerogatives of the States
and with a sufficient legal basis for preemption.'' Section 5125
contains express preemption provisions, which PHMSA has implemented
through its regulations.
IV. Public Comments
All comments should be directed to whether 49 U.S.C. 5125 preempts
the State of Washington's rules relating to the volatility of crude oil
received in the state. Comments should specifically address the
preemption criteria discussed in Part II above.
Issued in Washington, DC, on July 18, 2019.
Paul J. Roberti,
Chief Counsel.
[FR Doc. 2019-15675 Filed 7-23-19; 8:45 am]
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