[Federal Register Volume 60, Number 31 (Wednesday, February 15, 1995)]
[Notices]
[Pages 8800-8804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3591]
[[Page 8799]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
California Requirements Applicable to Cargo Tanks Transporting
Flammable and Combustible Liquids; Decision on Petition for
Reconsideration; Notice
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 /
Notices
[[Page 8800]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
[Preemption Determination No. PD-4(R); Docket No. PDA-6(R)]
California Requirements Applicable to Cargo Tanks Transporting
Flammable and Combustible Liquids; Decision on Petition for
Reconsideration
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Notice of decision on petition for reconsideration of
administrative determination of preemption.
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PETITIONER: California Highway Patrol (CHP).
STATE LAWS AFFECTED: California Vehicle Code (VC), Division 14.7
(sections 34000-34102), and California Code of Regulations (CCR), Title
13, Chapter 6, Article 3 (sections 1160-1168) and Article 6 (sections
1190-1197).
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.
MODE AFFECTED: Highway.
SUMMARY: RSPA's Associate Administrator for Hazardous Materials Safety
is denying CHP's petition for reconsideration of the determination that
California's requirement for an annual inspection of cargo tanks and
portable tanks used for highway transportation of flammable and
combustible liquids was preempted by the former Hazardous Materials
Transportation Act (HMTA) (since revised, codified and enacted without
substantive change at 49 U.S.C. 5101 et seq.).
This decision constitutes RSPA's final action on the July 27, 1992
application for a preemption determination filed by Nalco Chemical Co.
(Nalco). Any party who submitted comments in Docket No. PDA-6(R)
(including the applicant) may seek judicial review within 60 days of
this decision.
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,
telephone 202-366-4400.
SUPPLEMENTARY INFORMATION:
I. Background
The California Highway Patrol (CHP) administers a design,
registration, and inspection program applicable to cargo tanks and
portable tanks on vehicles that transport flammable and combustible
liquids on highways within California. See VC Div. 14.7 and Sec. 34001.
Excluded from the CHP's Cargo Tank (CT) program are, among others, a
vehicle's own fuel tanks; tanks smaller than 120 gallons (or most tanks
smaller than 500 gallons that meet DOT specifications); empty tanks
(with less than 120 gallons of residue); and intermodal IM 101 and 102
portable tanks when the highway portion of an interstate shipment is
less than 25 miles from an ``ocean port or railroad loading or
unloading terminal.'' VC 34003(a). See also the discussion in
Preemption Determination (PD) No. 4(R), 58 FR 48933, 48934 (Sept. 20,
1993).
In July 1992, Nalco applied for a determination that the HMTA
preempted major portions of California's CT program. Following notice
of Nalco's application in the Federal Register, 57 FR 38081 (Aug. 21,
1992), and the receipt of written comments from all interested parties,
RSPA issued its determination in PD-4(R) that the former HMTA:
(a) Preempted California's requirement for an annual inspection of
cargo tanks and portable tanks used for highway transportation of
flammable and combustible liquids, as that requirement is applied and
enforced, because any wait for the arrival of State inspectors from
another location constitutes an ``unnecessary'' delay;
(b) did not preempt California's requirement for an annual
registration, as applied and enforced, because there is no evidence
that this requirement creates any delays separate from the wait for an
inspection to be conducted;
(c) did not preempt California's statute authorizing design and
construction standards for cargo tanks and portable tanks used to
transport flammable and combustible liquids, because there is no
evidence that California enforces design and construction requirements,
with respect to tanks meeting DOT specifications, that are not
substantively the same as requirements in the HMR; and
(d) preempted the following State marking requirements, when
applied to DOT specification cargo tanks and portable tanks, because
they are not substantively the same as requirements in the HMR: (1)
That a metal identification plate be affixed to any tank for which such
a plate is not required by the HMR (13 CCR 1195); (2) that a ``CT
number'' be marked on the tank or on a metal identification plate on
the tank (13 CCR 1194); and (3) that a certification label be affixed
to the tank and a registration certificate be carried in a waterproof
holder permanently attached to portable tanks (VC 34044 and 13 CCR
1193).
RSPA did not decide whether the former HMTA preempted either: (a)
California's registration fees, since no party contended that the fees
are inequitable or used for purposes other than those related to the
transportation of hazardous materials, or (b) the requirement that the
remote secondary control for internal valves be clearly labeled (13 CCR
1197), in the absence of any evidence that Nalco or any other party
submitting comments is directly affected by this requirement.
RSPA's determination did not address similar California
registration, inspection and certification requirements applicable to
vehicles and tanks used to transport hazardous wastes, but noted that
these requirements are subject to the same Federal preemption
provisions and the general principles discussed in PD-4(R). RSPA also
noted that its determination did not consider or affect State motor
vehicle inspection and registration requirements that apply to all
commercial vehicles.
Within the 20-day time period provided in 49 CFR 107.211(a), CHP
filed a petition for reconsideration of RSPA's decision in PD-4(R). CHP
certified that it had mailed a copy of its petition to Nalco and all
others who had submitted comments, in accordance with 49 CFR
107.211(c). Four parties responded to CHP's petition for
reconsideration: Nalco, National Tank Truck Carriers, Inc. (NTTC),
Chemical Waste Transportation Institute (CWTI), and the 3M Corporation
(3M).
In Part II of the decision in PD-4(R), RSPA set forth the standards
for making determinations of preemption under the former HMTA and the
specific statutory provisions under which non-Federal requirements
governing the transportation of hazardous materials are preempted. 58
FR at 48934-35. On July 5, 1994, President Clinton signed Public Law
103-272 which extensively revised, codified and enacted without
substantive change numerous laws related to transportation. The former
HMTA, 49 App. U.S.C. 1801 et seq., has been repealed and replaced by 49
U.S.C. Chapter 51 (5101 et seq.), ``Transportation of Hazardous
Material,'' except as to ``proceedings that were begun before July 5,
1994.'' Accordingly, the preemption provisions in former 49 App. U.S.C.
1804 and 1811, discussed in Part II of PD-4(R), remain applicable to
RSPA's consideration of this petition for reconsideration. However,
since Congress made no substantive change in [[Page 8801]] passing 49
U.S.C Chapter 51, this decision will cite to the preemption criteria as
presently set forth in 49 U.S.C. 5125.
II. Petition for Reconsideration
CHP's petition seeks reconsideration of the decision in PD-4(R)
that 49 U.S.C. 5125(a) preempts California's requirement for an annual
inspection of cargo tanks and portable tanks used to transport
flammable and combustible liquids. It does not contest RSPA's
determination that 49 U.S.C. 5125(b) preempts certain requirements for
marking these tanks, although CHP states that it ``will petition RSPA
for a waiver of preemption'' as to the requirement for a ``metal
identification plate on a non-spec cargo tank (13 CCR 1195).'' With
respect to the annual inspection requirement, CHP asks for ``correction
of [three alleged] factual errors,'' and it asks three questions for
``written clarification of the application of the preemption
[determination].''
First, CHP contends that there was no ``current substantive
evidence that significant delays were still being experienced.''
According to CHP, the comments by Union Pacific Railroad Co. (UPRR) and
CWTI concerned the separate (but similar) requirements imposed on
transporters of hazardous waste, under California's Hazardous Waste
Vehicle and Container Inspection and Certification Program (HWIC),
rather than the delays currently being experienced under the CT
Program. CHP refers to the availability of temporary registration under
the CT program, which supposedly eliminates the delays experienced in
the HWIC Program. And it reiterates that it ``has more than doubled the
number of inspectors statewide since UPRR's comments were made * * *
and invited Nalco to update [its] experience.''
CHP charges that comments by both Nalco and 3M are ``invalid,'' on
the ground that these comments did not consider changes made to the CT
Program between 1990 and 1993. CHP alleges that the Hazardous Materials
Advisory Council (HMAC) and NTTC did not provide substantial or
substantive evidence of a burden on commerce or an obstacle to
compliance with the Federal hazardous material transportation law and
the HMR. CHP also argues that comments ``about the proliferation of
other states' programs failed to address the addition of 34120 and
34121 VC which authorized reciprocity with CT Programs by other States
and the Federal Government.''
Second, CHP asserts that RSPA has improperly interpreted 49 CFR
177.853(a) to prohibit ``safety related delays, including compliance
with mandatory inspection programs [which] are legitimate reasons for
delay.'' It argues that the intent of this regulation ``was to balance
safe transportation of hazardous materials with the need for their
expeditious delivery,'' and that RSPA's determination ``implies that
delays for any reason (other than as specifically authorized)''--
including bad weather, road hazards, driver rest periods, and
holidays--are ``unnecessary.'' CHP also argues that 177.853(a) should
not apply to any delays after delivery of the tank's contents, since
that is the ``point of `final discharge at destination.'''
Third, CHP states that RSPA also may not clearly understand--and
that HMAC and NTTC failed to investigate or address--California's
Temporary registration process that allows the carrier to simply
forward the registration fees via a telegraphic money order and
carry a copy as temporary cargo tank registration for up to 10 days
(see 13 CCR 1190.1(b)) as proof of registration.
CHP asserts that a carrier's ability to ``obtain a temporary cargo tank
registration for any out-of-state based cargo tank 24 hours a day, 365
days a year'' avoids delays, because the temporary registration allows
the tank to enter the State, be unloaded, and then be presented for
inspection. CHP continues that a 1992 amendment to the inspection
requirement ``allows the carriers to freely move a tank that contains
only residue throughout the State without current registration,'' so
the carrier is subject to citation only if it reloads the tank with a
flammable or combustible liquid after failing to be inspected within 10
days of entering California.
Besides these alleged errors, CHP asks RSPA to answer the following
questions to clarify the ruling in PD-4(R):
1. Given the fact that the HMTUSA allows the State the authority
to require a cargo tank registration program (separate from the
inspection program), can the State require some form of proof of
registration be carried with the packaging (cargo or portable tank)
either directly on the packaging or carried in the vehicle (or
vehicle combination)?
2. Based on the fact that HMTA allows the State to operate a
registration program, can the State require some means of positively
identifying the packaging in order to verify its registration
(keeping in mind that nearly all bulk packagings have some type of
unique identifier)? Please note that non-specification (DOT)
packagings which require no identification are the central issue.
3. Is our understanding of the ruling correct in that the
mandatory inspection and certification is only preempted for tanks
based out of California (i.e., the State is not preempted from
requiring a mandatory inspection of tanks based in California as the
operators of these tanks have adequate opportunity to have the tanks
inspected prior (up to 60 days prior) to the expiration of the
previous registration/certification)?
III. Comments Responding to the Petition for Reconsideration
Three parties submitted comments opposing CHP's petition for
reconsideration: Nalco, NTTC, and CWTI. In addition, 3M stated that it
now uses portable tanks that are no longer covered by the CHP
inspection requirement (although it incurred costs ``in reverting to
drum shipments and back to portable tanks once the amendment became
effective''), and thus was withdrawing its earlier comments.
As it had earlier, Nalco acknowledges ``improvements in
California's registration and inspection processing,'' but contends
that ``delays continue to be encountered, both in this program and in
the immediately parallel program on wastes.'' It asserts that CHP's
``focus is misplaced,'' because the ``primary issue is not the minutes
or hours of delay as they affect a particular tank on a particular day
but, rather, whether the delay is `unnecessary' as that term is used in
the regulations.'' Nalco contends that RSPA has not misinterpreted 49
CFR 177.853(a) because ``[e]xpeditious delivery is a safety issue, not
a commercial one.''
NTTC disagrees that any of the parties had ``confused'' the
requirements of California's HWIC and CT Programs or that there was any
error from an alleged failure to respond to the changes in the CT
Program which CHP implemented between 1990 and 1993. NTTC quotes the
language at 58 FR 48933 stating that PD-4(R) ``does not address'' the
HWIC Program, and it asserts that RSPA properly considered ``the fact
patterns as presented in the original petitions.''
NTTC contends that temporary registration will not prevent delays.
It states that, even if a carrier's headquarters ``telegraphs a money
order to CHP,'' the truck may depart before confirmation of
registration, and ``geography and time zone differences assure that the
driver will not have a copy of the documentation.'' NTTC also presents
situations in which delays would exceed the 10-day period permitted for
inspection, under a temporary registration:
Truck deliveries may be made during weekends or at hours when
inspectors are not available. Inspectors take holidays, they call in
sick or they may be redispatched to more pressing duties. Surely the
state is not asserting that a vehicle ``hang around'' until such
contingencies are resolved?
[[Page 8802]] NTTC also states that the ``reciprocity' provisions''
in the CT program are illusory, because ``CHP failed to give but one
example of another state joined by such provisions.'' According to
NTTC, ``the extension of reciprocity is discretionary. There are no
readily-available criteria upon which a carrier (or even another state)
can rely to determine whether or not an existing program is
`reciprocal' with California.''
CWTI similarly argues that ``reciprocity has not materialized.'' It
asserts that CHP's discussion of ``factual errors'' and ``changes to
the CT program'' miss the point of the decision in PD-4(R): ``To the
extent [that] CHP can demonstrate to RSPA that its CT program no longer
causes `unnecessary' delay, the CHP may begin to apply and enforce its
requirements.'' CWTI contends that CHP has not eliminated unnecessary
delay, even by hiring more inspectors:
The unavailability of inspectors, however, is only part of the
unnecessary delay problem. Delay also results from the advance
notification of hazardous materials shipments which must attend all
inspections in order to arrange for the inspection and routing of
vehicles and bulk packagings to inspection locations, as well as
delays which may result from the logistics of obtaining, completing,
and filing authorized documentation of vehicle/bulk packaging
registration and fees.
CWTI likens delays for bad weather and holidays to ``acts of God,''
and states the ``key point'' to be that ``state program deficiencies
evidenced by a lack of inspectors and/or inspection locations do not
justify delay in the transportation of hazardous materials.'' Citing
the legislative history and findings in the 1990 amendments to the
former HMTA, CWTI argues that unnecessary delay inhibits safety, not
just commerce. And it states that RSPA is the proper agency to balance
what CHP asserts are competing goals of ``safe transportation'' and
``expeditious delivery.''
CWTI initially accepted statements in the petition for
reconsideration that CHP ```routinely find(s) tanks that are not in
compliance with the HMR,''' as short as one day after certification by
a DOT-registered facility, but argued that this simply proves that
``any inspection is as good as the point in time in which it is
conducted,'' and ``roadside inspections are vital to ensuring the safe
transportation of hazardous materials.'' (In supplemental comments
dated November 17, 1993, CWTI disagreed with CHP's statements of
routinely finding tanks in violation of the HMR, based on data in the
Federal Highway Administration's 1992 Annual Report. These supplemental
comments are not necessary for reaching a decision on CHP's petition
for reconsideration.) CWTI asserted that, rather than proceeding with
``unilateral state action,'' CHP should provide more specific data to
support its concern that periodic inspections under DOT's regulations
are inadequate.
CWTI finds CHP's statements concerning the absence of temporary
registration under the HWIC Program is an admission that ``the HWIC
program causes `unnecessary delay.''' It requests that ``RSPA repeat in
as strong of terms as possible its directive that the CHP desist
applying and enforcing the HWIC program in a manner which is
inconsistent with the principles contained in PD-4(R).'' CWTI also
states that RSPA correctly decided that 49 U.S.C. 5125(b) preempts
California's marking requirements, and that CHP should have
``participate[d] in the formulation of federal requirements for the
marking/certification of cargo tanks used for the transportation of
hazardous materials,'' in RSPA's rulemaking Docket No. HM-183. CWTI
notes that RSPA reached no conclusion about the registration fees under
the CT Program, and comments that the requirement that fees be
equitable, in former 49 App. U.S.C. 1811(b) (reworded as ``fair'' in 49
U.S.C. 5125(g)), is generally violated when ``fees remain unapportioned
for carriers operating in interstate commerce.''
Nalco, NTTC and CWTI all challenge CHP's implicit positions, in the
questions, that it would be appropriate to require proof of
registration to ``be transported with the packaging (cargo or portable
tank)'' and ``some means of positively identifying the packaging in
order to verify its registration.'' NTTC states that all tanks have
some means of identification; ``[e]ven non specification cargo tanks
have VIN numbers.'' Nalco agrees, stating that as part of the
registration process, States gather information about the registrant
and its equipment and can ``provide it directly to their inspectors
without having to decorate the interior or exterior of the vehicle for
each jurisdiction for the inspectors' convenience.'' CWTI opposes what
it calls CHP's ``efforts to reassert a linkage between specific
vehicles and registration.'' It alleges the ``burden that would result
if other states insisted on unique numbers and shipping paper
requirements,'' and refers to recommendations of a working group on
uniform forms and procedures for registration and permitting, under 49
U.S.C. 5119. According to CWTI, the working group has recommended State
registration of hazardous materials carriers, not specific vehicles or
packagings.
Nalco and NTTC disagree with CHP's conclusion that an annual
inspection may still be required for cargo tanks and portable tanks
based in California. They consider that the decision in PD-4(R) applies
to all tanks regulated by the HMR, and Nalco comments that, ``in light
of the anticipated rule in Docket No. HM-200,'' the small number of
tanks presently not governed by the HMR ``does not warrant the
confusion that would be caused by a State program addressed only to
these units.''
IV. Discussion
As discussed in PD-4(R), Nalco's original challenge to California's
inspection requirement, in 1990, was accompanied by an affidavit
setting forth specific dates that ``filled incoming tanks'' were held
waiting the arrival of a CHP inspector, ``thereby delaying delivery to
customers.'' 58 FR at 48938. Two parties submitting comments in the
original proceeding (designated IRA-53) provided specific time periods
for CHP's delays in inspecting tanks: Union Pacific cited waits of up
to five days for inspections at its intermodal ramps (which CHP states
referred only to tanks containing hazardous wastes), and CWTI stated
that it had encountered ``delays of two to three days for an
inspection'' of tanks used for hazardous wastes. 58 FR at 48939.
After the application in IRA-53 was returned to Nalco, and Nalco
petitioned for an administrative determination of preemption pursuant
to what is now 49 U.S.C. 5125(d), no party submitted further
information as to the specific periods that cargo tanks and portable
tanks used for flammable and combustible liquids were being delayed.
Rather, Nalco stated that ``improvements and pre-payment options have
speeded the issuance of instructions to the field * * *, but
unnecessary delays are still encountered * * * compounded by
inspector[s'] schedules, vacations and sick leave.'' 48 FR at 48938.
CHP acknowledged that some delays still exist, despite modifications
such as reducing the number of tanks subject to inspection, increasing
the number of inspectors, establishing inspection stations at four
port-of-entry locations, and providing a 10-day temporary registration
that allows a carrier to enter California and deliver its load before
being inspected.
At no time, however, in its prior comments or in its petition for
reconsideration, has CHP contended that it has eliminated situations
where the transportation of a loaded tank must be interrupted and wait
for the arrival [[Page 8803]] of an inspector. Rather CHP acknowledged,
in its opening comments in PDA-6(R), that ``some instances have
resulted in inspections not being performed in as timely a manner as
the CHP or industry would like * * * due to lack of adequate planning
on the part of both the operator and the CHP.'' In its rebuttal
comments, CHP stated that, with the ``current [inspection] staff and
the four POE facilities we can inspect nearly all out-of-state
domiciled cargo tanks without any diversion or delays.'' It contended
that the remaining delays encountered in performing inspections are
reasonable, justified and not ``unnecessary'' based on the number of
violations found--as CHP again contends in its petition for
reconsideration.
RSPA's decision in PD-4(R) did not ignore safety, but rather
followed the prior inconsistency rulings in which RSPA consistently
found that the safe transportation of hazardous materials is advanced
by 49 C.F.R. 177.853(a) which prohibits ``unnecessary'' delays. See the
discussion at 58 FR 48939-41. The argument in CHP's petition for
reconsideration that safety justifies delays does not provide any
answer. Safety has been alleged as the basis of every non-Federal
requirement that has been challenged, and considered by RSPA, since the
former HMTA first provided for the preemption of ``inconsistent'' State
and local requirements.
The only difference cited by CHP to distinguish the CT inspection
program and the HWIC program applicable to carriers of hazardous waste
is the availability of a 10-day temporary registration under the CT
program only. Whether or not the procedures for temporary registration
can eliminate delays, there is no information that they have eliminated
delays. Moreover, NTTC asserts that temporary registration will not
always prevent delays.
The CT and HWIC inspection programs appear to be otherwise similar,
and the inspections under both are conducted by CHP. For that reason,
RSPA must assume that waits experienced by transporters of hazardous
waste (such as UPRR and CWTI) are representative of waits faced by an
interstate carrier of flammable or combustible liquids, when that
carrier is unable to obtain a temporary registration or plan its
arrival to allow for inspection at a POE location.
In addition, CHP's admissions that it has not eliminated situations
where loaded tanks must wait for an inspector to arrive to conduct an
inspection make the specific number of days' wait cited by UPRR and
CWTI unnecessary for RSPA's decision.
The decision in PD-4(R) was a narrow one. As specifically noted
there, RSPA encourages State and local governments to adopt and enforce
the requirements in the HMR through inspections. 58 FR 48940-41. During
fiscal 1994, DOT provided grants in excess of $64 million to all
States, and $3.2 million to California, to carry out inspections under
the Federal Motor Carrier Assistance Program. See generally 49 CFR Part
350 governing grants ``to encourage each State to enforce uniform motor
carrier safety and hazardous materials regulations for both interstate
and intrastate motor carriers and drivers.'' 49 CFR 350.5.
Moreover, RSPA agreed with all parties that the time involved to
conduct a tank inspection was reasonable, and not unnecessary,
including any time waiting one's ``turn'' for an inspector already
present. 58 FR at 48941. But RSPA found that forcing a tank to wait for
the arrival of an inspector from another location was an
``unnecessary'' delay, and because California's CT program was not free
from these kinds of delays it created an obstacle to the accomplishment
and execution of the Federal hazardous material transportation law and
the HMR. California ``may not require an inspection as a condition of
travelling on California's roads when the inspection cannot be
conducted without delay because an inspector must come to the place of
inspection from another location.'' Id. For that reason, RSPA found
that the provision now codified at 49 U.S.C. 5125(a) preempted the
inspection requirement in VC 34060 and 13 CCR 1192, as that requirement
was being applied and enforced.
If and when California eliminates the unreasonable delays in its
inspection program, that requirement will no longer be preempted.
Nothing in CHP's petition for reconsideration, however, provides any
basis for RSPA to change the decision in PD-4(R).
It is not possible to provide complete answers to CHP's three
questions for clarification of the decision in PD-4(R), since
preemption under the ``obstacle'' criterion depends upon the manner in
which a non-Federal requirement is enforced and applied. (See also the
statement in H.R. Rep. 101-444, 101st Cong., 2d Sess. 49, that Congress
did not intend for DOT to be a ``clearing house for obtaining advisory
opinions with respect to legislative or regulatory ideas and notions
prior to enactment.'') However, the following responses can be made:
1. CHP has asked about requirements for ``some proof of
registration * * * directly on the packaging or carried in the
vehicle.'' As specifically discussed in PD-4(R), unless otherwise
authorized by Federal law, any non-Federal requirement for a ``marking
* * * of a packaging or a container represented, marked, certified, or
sold as qualified for use in transporting hazardous material'' is
preempted unless it is ``substantively the same as'' the requirements
in the Federal hazardous material transportation law and the HMR. 49
U.S.C. 5125(b)(1)(E). See 58 FR at 48936-37. A requirement to carry
additional documentation on a vehicle transporting hazardous materials,
beyond that required in the HMR, may create an obstacle to the
accomplishment and execution of the Federal hazardous material
transportation law and the HMR. See Colorado Pub. Util. Comm'n v.
Harmon, 951 F.2d 1571, 1581 (10th Cir. 1991).
2. CHP has asked about ``some means of positively identifying the
packaging'' and noted that its concern is primarily with non-DOT
specification packagings, since all DOT specification tanks subject to
the CT program have a metal identification plate and, in some
instances, a separate metal certification plate. As discussed in PD-
4(R), any marking on the tank itself is a ``marking * * * of a
packaging or a container represented, marked, certified, or sold as
qualified for use in transporting hazardous material.'' 49 U.S.C.
5125(b)(1)(E); 58 FR 48937. To the extent that non-specification
packagings do not already contain some unique identifying
characteristic and California believes that they must in order to
transport hazardous materials, California may submit a petition for
rulemaking in accordance with 49 CFR part 106.
3. CHP has asked about the application of the decision in PD-4(R)
to ``tanks based in California.'' However, it does not indicate whether
it assumes that these tanks remain completely within California or
travel throughout the United States. Tanks that never leave California
would not experience delays associated with entering the State or being
rerouted around California. See PD-5(R), Massachusetts Requirement for
an Audible Back-up Alarm, etc., 58 FR 62707, 62710 (Nov. 29, 1993). On
the other hand, ``tanks based in California'' which are used in other
States may well experience the same types of delays as ``tanks based
out of California.''
V. Ruling
For the reasons stated above, the CHP petition for reconsideration
is denied. [[Page 8804]] This decision incorporates and reaffirms the
determination set forth at 58 FR 48933 that the provisions now codified
at 49 U.S.C. 5125(a) and (b) preempt:
A. California's requirement in VC 34060 and 13 CCR 1192 for an
annual inspection of cargo tanks and portable tanks used for highway
transportation of flammable and combustible liquids, as that
requirement is applied and enforced, because any wait for the arrival
of State inspectors from another location constitutes an
``unnecessary'' delay.
B. VC 34042(d) and 34061(c), which provide that the failure to make
a cargo tank or portable tank available for inspection is a ground for
denial, suspension or revocation of registration, and 13 CCR 1193,
requiring that cargo tanks and portable tanks transporting flammable
and combustible liquids pass an inspection to be certified.
C. The following requirements to mark cargo tanks and portable
tanks transporting flammable and combustible liquids, because they are
not substantively the same as requirements in the HMR: (1) 13 CCR 1195,
that a metal identification plate be affixed to any tank for which such
a plate is not required by the HMR; (2) 13 CCR 1194, that a ``CT
number'' be marked on the tank or on a metal identification plate; and
(3) VC 34044, 34101 and 13 CCR 1193, that a certification label be
affixed to the tank and that a registration certificate be carried in a
waterproof holder permanently attached to a portable tank, together
with the provisions for removal of the certification label in VC 34062-
63.
VI. Final Agency Action
In accordance with 49 CFR 107.211(d), this decision constitutes
RSPA's final agency action on Nalco's application for a determination
of preemption as to the above-specified California requirements
applicable to cargo tanks transporting flammable and combustible
liquids. Any party to this proceeding ``may bring a civil action in an
appropriate district court of the United States for judicial review of
[this] decision * * * not later than 60 days after the decision becomes
final.'' 49 U.S.C. 5125(f).
Issued in Washington, D.C. on February 7, 1995.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 95-3591 Filed 2-14-95; 8:45 am]
BILLING CODE 4910-60-P
