[Federal Register Volume 86, Number 107 (Monday, June 7, 2021)]
[Notices]
[Pages 30371-30372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11494]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-98-3599; PD-19(R)]


Hazardous Materials: The New York State Department of 
Environmental Conservation Requirements on Gasoline Transport Vehicles

AGENCY: Pipeline and Hazardous Materials Safety Administration, 
Department of Transportation (DOT).

ACTION: Dismissal of petition for reconsideration of an administrative 
determination of preemption.

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SUMMARY: This proceeding was initiated in February 1998, when the 
National Tank Truck Carriers, Inc. (NTTC) applied to the Pipeline and 
Hazardous Materials Safety Administration \1\ (PHMSA) for a 
determination that the HMTA preempted certain marking and record 
keeping requirements of the New York State Department of Environmental 
Conservation (NYSDEC). PHMSA found that the HMTA preempted the NYSDEC 
requirements because the requirements were not substantively the same 
as requirements in the HMR on the marking, maintaining, repairing, or 
testing of a package or container that is represented, marked, 
certified, or sold as qualified for transporting hazardous material. 
NYSDEC's petition for reconsideration of that decision is dismissed on 
the grounds of mootness. NYSDEC has made significant revisions to its 
regulations, and the revised rules do not appear to impose the same 
requirements on regulated entities as the previous version of the rules 
that were challenged in this proceeding. It therefore does not appear 
that reconsidering PHMSA's preemption determination regarding the now-
superseded NYSDEC rules would have any practical effect.
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    \1\ At the time of NTTC's application, PHMSA did not exist. 
PHMSA was created on February 20, 2005, when the Secretary of 
Transportation redelegated hazardous materials safety functions from 
the Research and Special Programs Administration (RSPA) to PHMSA's 
Administrator. For consistency, the terms ``PHMSA,'' ``the agency,'' 
and ``we'' are used throughout this decision, regardless of whether 
an action was taken by RSPA before February 20, 2005, or by PHMSA 
after that date.

FOR FURTHER INFORMATION CONTACT: Vincent Lopez, Office of Chief 
Counsel, Pipeline and Hazardous Materials Safety Administration, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 
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20590; Telephone No. 202-366-4400; Facsimile No. 202-366-7041.

SUPPLEMENTARY INFORMATION:

    Petitioner: New York State Department of Environmental 
Conservation.
    Local Law Affected: New York Codes, Rules and Regulations (NYCRR), 
Chapter 6, Sections 230.4(a)(3), 230.6(b) & (c).\2\
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    \2\ The NYSDEC repealed and replaced Part 230, with an effective 
date of February 11, 2021. The marking requirement in 6 NYCRR 
230.4(a)(3), as amended, was recodified in 6 NYCRR 230.6(a)(2). The 
recordkeeping and retention requirements of 6 NYCRR 230.6(b) and 
(c), as amended, were recodified in 6 NYCRR 230.7(a)(1) and (a)(2), 
respectively.
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    Applicable Federal Requirements: Federal Hazardous Material 
Transportation Law (HMTA), 49 U.S.C. 5101 et seq., and the Hazardous 
Materials Regulations (HMR), 49 CFR parts 171-180.
    Mode Affected: Highway.

I. Background

    This proceeding was initiated in February 1998, when NTTC applied 
to PHMSA for a determination that the HMTA preempted certain marking 
and record keeping requirements of NYSDEC.
    After NTTC filed its application, two key rulemakings occurred that 
delayed PHMSA's decision on NTTC's claims. The rulemakings, one 
initiated by PHMSA, and the other by the United States Environmental 
Protection Agency (EPA), although not related, addressed many of the 
issues raised in NTTC's application. The agencies' rulemaking 
activities spanned several years and culminated in December 2009, when 
EPA issued a rule change and clarification of its rules.\3\
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    \3\ Final Rule, 73 FR 1916 (January 10, 2008); corrections, 73 
FR 12275 (March 7, 2008); Final Rule with amendments and 
clarifications, 76 FR 4156 (January 24, 2011).

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[[Page 30372]]

    Earlier in 2009, and subsequent to the publication of final rules 
in each of the PHMSA and EPA rulemakings, but before EPA's 
clarification of its rules, PHMSA issued its decision on NTTC's 
application. On January 23, 2009, PHMSA published in the Federal 
Register its determination of NTTC's application in Preemption 
Determination No. 19(R) (PD-19(R)), 74 FR 4291.\4\ PHMSA found that the 
HMTA preempted the following NYSDEC requirements because the 
requirements were not substantively the same as requirements in the HMR 
on the marking, maintaining, repairing, or testing of a package or 
container that is represented, marked, certified, or sold as qualified 
for transporting hazardous material:
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    \4\ As published in the Federal Register, the agency's January 
23, 2009 determination in PD-19(R) indicated an incorrect docket 
number (99-3559, instead of 98-3559).
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     6 NYCRR 230.4(a)(3)--requirement that the marking must be 
a minimum two inches and contain ``NYS DEC'';
     6 NYCRR 230.6(b)--requirement for maintaining a copy of 
the most recent pressure-vacuum test results with the gasoline 
transport vehicle; and
     6 NYCRR 230.6(c)--requirement to retain pressure-vacuum 
test and repair results for two years.
    Within the 20-day time period provided in 49 CFR 107.211(a), NYSDEC 
submitted a petition for reconsideration of PHMSA's decision in PD-
19(R). NYSDEC asked PHMSA to rescind its preemption determination and 
dismiss the application by NTTC. In April 2009, PHMSA extended the 
period for comments on NYSDEC's petition due to the unusually long 
period it took for the agency to issue PD-19(R). This action was 
followed by another extended period of inactivity until August 26, 
2010, when PHMSA reopened the period for comments on NYSDEC's petition 
for reconsideration to receive comments on EPA's rule changes. The 
matter has remained dormant since that time based on PHMSA's 
understanding that NYSDEC was planning to revise its regulations.
    On February 12, 2020, NYSDEC proposed a rulemaking to repeal and 
replace 6 NYCRR Part 230 Gasoline Dispensing Sites and Transport 
Vehicles. Volume XLII, Issue 6, N.Y. Reg, 8 (February 12, 2020). The 
adopted requirements in 6 NYCRR Part 230, sections 230.6 and 230.7, 
became effective on February 11, 2021. These provisions contain revised 
versions of the requirements that were at issue in this proceeding for 
marking gasoline transport vehicles and recordkeeping and reporting 
requirements.

II. Dismissal on Grounds of Mootness

    NYSDEC's legislative changes to its rules have rendered moot 
NYSDEC's petition for reconsideration of PHMSA's 2009 preemption 
determination.
    NYSDEC, in its February 12, 2020, rulemaking proposal, required 
pressure-vacuum cargo tank testing and markings that align with DOT's 
testing and marking requirements. NYSDEC indicated that the proposed 
amendments would make the requirements consistent on the state and 
federal level. Furthermore, NYSDEC proposed to revise the gasoline 
transport vehicle recordkeeping retention requirements from 2 years to 
5 years in order to align with the current version of the EPA's 
recordkeeping requirement located at 40 CFR part 63 subpart CCCCCC.
    The recently adopted requirements in 6 NYCRR Part 230, sections 
230.6 and 230.7, became effective on February 11, 2021. These 
provisions contain the requirements that were at issue in this 
proceeding for marking gasoline transport vehicles and recordkeeping 
and reporting requirements. The provision for the marking of gasoline 
transport vehicles states:

    (a) No owner or operator of a gasoline transport vehicle may 
transport gasoline or allow the vehicle to be filled or emptied in 
New York State unless the gasoline transport vehicle meets:
    (1) the federal Department of Transportation (DOT) requirements 
for leak testing as required by 49 CFR 180.407(h) (see Table 1, 
Section 200.9 of this Title); and
    (2) the federal DOT requirements for test markings as required 
by 49 CFR 180.415 (see Table 1, Section 200.9 of this Title).

6 NYCRR 230.6.

    The recordkeeping and reporting provision states:

    (a) The owner of any gasoline transport vehicle subject to the 
leak testing requirements outlined in section 230.6(a) of this Part 
shall keep:
    (1) leak testing records with information as prescribed by 49 
CFR 180.417(b)(1) and (2) (see Table 1, Section 200.9 of this Title) 
for 5 years; and
    (2) a copy of the most recent leak testing results with the 
gasoline transport vehicle.

6 NYCRR 230.7.

    In light of the facts and circumstances described above, it is 
apparent the NYSDEC rules that PHMSA found were preempted under the 
HMTA--and subject of NYSDEC's petition for reconsideration--have been 
significantly revised. On their face, the revised rules do not appear 
to impose the same requirements on regulated entities as the previous 
version of the rules that were challenged in this proceeding. 
Consequently, it would be inappropriate for PHMSA to render a decision 
on a petition for reconsideration that was filed more than a decade 
ago, for relief from the agency's preemption determination that was 
based on a previous version of NYSDEC's pressure-vacuum cargo tank 
testing and markings requirements when those requirements have recently 
undergone significant revisions. It appears that issuing a decision on 
the petition for reconsideration would have no practical effect on any 
party.

III. Ruling

    For the reasons set forth above, NYSDEC's petition for 
reconsideration is dismissed because the issues raised in the petition 
are moot.
    Going forward, any person directly affected by the revised NYSDEC 
rules (including a State, political subdivision of a State, or Indian 
tribe) may apply to PHMSA for a decision on whether the revised rules 
are preempted by the HMTA. 49 U.S.C. 5125(d); 49 CFR 107.203. 
Similarly, any person who thinks there is a practical reason for PHMSA 
to revisit its preemption decision regarding the now-superseded rules 
may apply to PHMSA for a new decision on that question.

    Issued in Washington, DC, on May 26, 2021.
Vasiliki Tsaganos,
Acting Chief Counsel.
[FR Doc. 2021-11494 Filed 6-4-21; 8:45 am]
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