[Federal Register Volume 62, Number 111 (Tuesday, June 10, 1997)]
[Notices]
[Pages 31661-31665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15074]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
[Docket No. RSPA-97-2581 (PDA-16(R))]
Application by New York Propane Gas Association for a Preemption
Determination as to Nassau County, New York, Ordinance on
Transportation of Liquefied Petroleum Gases
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Public notice and invitation to comment.
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SUMMARY: The New York Propane Gas Association (NYPGA) has applied for
an administrative determination whether Federal hazardous materials
transportation law preempts certain sections of a Nassau County, New
York, ordinance that require a permit for any motor vehicle used to
deliver liquefied petroleum gas (LPG) within Nassau County and a
``certificate of fitness'' for any person who delivers LPG.
DATES: Comments received on or before July 25, 1997, and rebuttal
comments received on or before September 8, 1997, will be considered
before an administrative ruling is issued by RSPA's Associate
Administrator for Hazardous Materials Safety. Rebuttal comments may
discuss only those issues raised by comments received during the
initial comment period and may not discuss new issues.
ADDRESSES: The application and all comments received may be reviewed in
the Dockets Office, U.S. Department of Transportation, Room PL-401, 400
Seventh Street, SW., Washington, DC 20590-0001. Comments may be
submitted to the Dockets Office at the above address. Three copies of
each written comment should be submitted. Comments may also be
submitted by E-mail to rspa.counsel@rspa.dot.gov.'' In every case,
the comment should refer to the Docket Number set forth above.
[[Page 31662]]
A copy of each comment must also be sent to (1) Mr. Richard
Brescia, New York Capitol Consultants, Inc., 120 Washington Avenue,
Albany, New York 12210 (who submitted the application on behalf of
NYPGA), and (2) The Honorable Thomas S. Gulotta, County Executive,
Nassau County, 1 West Street, Mineola, New York, 11501. A certification
that a copy has been sent to these persons must also be included with
the comment. (The following format is suggested: ``I hereby certify
that copies of this comment have been sent to Messrs. Brescia and
Gulotta at the addresses specified in the Federal Register.'')
FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief
Counsel, Research and Special Programs Administration, U.S. Department
of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).
SUPPLEMENTARY INFORMATION:
I. NYPGA's Application for a Preemption Determination
NYPGA has applied for a determination that Federal hazardous
material transportation law, 49 U.S.C. 5101 et seq., preempts Sections
6.7 (A) and (B) and Section 6.8 of Nassau County, New York, Ordinance
No. 344-1979, concerning Fire Department permits and ``certificates of
fitness'' for the delivery of LPG within Nassau County. NYPGA
challenges requirements of the Fire Department for issuance of these
permits and certificates of fitness, including fees, inspections, and
written and practical examinations.
A. Permit
Sections 6.7 (A) and (B) of Ordinance No. 344-1979 provide as
follows:
A. No person, firm or corporation shall use or cause to be used,
any motor vehicle, tank truck, tank semi-trailer, or tank truck
trailer for the transportation of Liquefied Petroleum Gas, unless
after complying with these regulations a permit to operate any such
vehicle has been obtained from the Nassau County Fire Marshal. No
permit shall be required under this section for any motor vehicle
that is used for the transportation of Liquefied Petroleum Gas, not
operated or registered by an authorized dealer, in containers not
larger than ten (10) gallons water capacity each (approximately
thirty-four (34) pounds propane capacity) with aggregate, water
capacity of twenty-five gallons (approximately eighty-seven (87)
pounds propane capacity) or when used in permanently installed
containers on the vehicle as motor fuel. This section shall not
apply to any motor vehicle, tank truck, tank semi-trailer or tank
truck trailer traveling through Nassau County and making no
deliveries within the County.
B. The permit shall be given full force and effect for a period
of one (1) year.
NYPGA states that, in order to obtain a permit, the owner of a
vehicle used to deliver LPG must (1) Pay a fee of $150, or $75 for
renewal, and (2) have the vehicle inspected. According to NYPGA,
inspections are conducted by appointment only on two days each month
(the first and fourth Tuesdays). NYPGA also states that, when a permit
is issued, a ``windshield sticker'' must be placed on the vehicle.
NYPGA asserts that the fee is ``inherently unfair'' and preempted
by 49 U.S.C. 5125(g) which provides that ``a political subdivision * *
* may impose a fee related to transporting hazardous materials only if
the fee is fair and used for a purpose related to transporting
hazardous material * * *'' NYPGA states that the inspection requirement
is preempted by 49 U.S.C. 5125(a) as an ``obstacle'' to accomplishing
RSPA's regulations, because the limited inspection times created delays
in conflict with 49 CFR 177.853(a), which prohibits ``unnecessary
delays'' in the transportation of hazardous materials. And NYPGA
contends that the windshield sticker is a labeling requirement that is
not substantively the same as RSPA's regulations and thus is preempted
as a ``covered subject'' under 49 U.S.C. 5125(b).
B. Certificate of Fitness
Section 6.8(A) of Ordinance No. 344-1979 requires a ``Certificate
of Fitness issued by the Fire Marshal,'' effective for a year and
renewable, to be held by ``[a]ny person filling containers at locations
where Liquefied Petroleum Gas is sold and/or transferred from one
vessel to another * * *'' Section 6.8(I) of the ordinance further
specifies that a certificate of fitness is required for any person who
``Fill[s] containers permanently located and installed outdoors with
appurtenances for filling by a cargo vehicle at consumer sites,'' or
``Sell[s] Liquefied Petroleum Gas or transfer[s] Liquefied Petroleum
Gas from one vessel into another.'' NYPGA states that this means that
each driver of a vehicle used to deliver propane in Nassau County must
hold a certificate of fitness.
Other subsections of Sec. 6.8 provide that an applicant for a
certificate of fitness must complete ``forms provided by the Fire
Marshal * * * accompanied by the applicable fee'' (Sec. 6.8(B)); must
demonstrate proof of qualifications and physical competence (Sec.
6.8(C)); and must undergo an investigation that ``include[s] a written
examination regarding the use, makeup and handling of Liquefied
Petroleum Gas and * * * a practical test'' (Sec. 6.8(D)). According to
Exhibits 8 and 9 to NYPGA's application, an applicant for a certificate
of fitness must, among other requirements:
--Submit a notarized application form (Exhibit 7) accompanied by a $150
fee;
--Schedule an appointment for having photographs taken by the Fire
Marshal's Office;
--Schedule an appointment for taking the written examination at the
Fire Marshal's Office; and
--Arrange for the practical examination to be given at the applicant's
place of employment.
NYPGA asserts that the certificate of fitness is a second driver's
license required by Nassau County that is prohibited under the Federal
Highway Administration's regulations concerning commercial driver's
licenses (see 49 CFR 383.21(a)) and, accordingly, preempted under both
the ``dual compliance'' and ``obstacle'' standards in 49 U.S.C.
5125(a). NYPGA further states that Nassau County's requirement for a
certificate of fitness conflicts with 49 CFR 172.701 that allows a
State, rather than a political subdivision, to impose more stringent
training requirements on drivers who are domiciled within the State.
The text of NYPGA's application is set forth in Appendix A. The
following attachments to NYPGA's application are not reproduced, but
copies will be provided at no cost upon request to RSPA's Dockets Unit,
located in Room 8421, 400 Seventh Street, SW., Washington, DC 20590-
0001; telephone 202-366-4453:
1. Ordinance No. 344-1979.
2. Application for Motor Vehicle Transportation Permit.
3. Permit for Use of Motor Vehicle or Trailer to Transport LPG.
4. Windshield Sticker.
5. Affidavit of John DiBiasi, President, Star-Lite Propane Gas Corp.
6. Letter concerning renewal of permit.
7. Application for Certificate of Fitness.
8. Letter concerning renewal of Certificate of Fitness.
9. Information for Liquefied Petroleum Gas Certificate of Fitness.
II. Federal Preemption
The Hazardous Materials Transportation Act (HMTA) was enacted in
1975 to give the Department of Transportation greater authority ``to
protect the Nation adequately against the risks to life and property
which are inherent in the transportation of hazardous materials in
commerce.''
[[Page 31663]]
Public Law 93-633 section 102, 88 Stat. 2156, amended by Public Law
103-272 and codified as revised in 49 U.S.C. 5101. The HMTA
``replace[d] a patchwork of state and federal laws and regulations * *
* with a scheme of uniform, national regulations.'' Southern Pac.
Transp. Co. v. Public Serv. Comm'n, 909 F.2d 352, 353 (9th Cir. 1980).
On July 5, 1994, the HMTA was among the many Federal laws relating to
transportation that were revised, codified and enacted ``without
substantive change'' by Public Law 103-272, 108 Stat. 745. The Federal
hazardous material transportation law is now found in 49 U.S.C. Chapter
51.
A statutory provision for Federal preemption was central to the
HMTA. In 1974, 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). More recently, a Federal
Court of Appeals found that uniformity was the ``linchpin'' in the
design of the HMTA, including the 1990 amendments which expanded the
preemption provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d
1571, 1575 (10th Cir. 1991). 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.
Pub. L.101-615 sec. 2, 104 Stat. 3244.
Following the 1990 amendments and the subsequent 1994 codification
of the Federal hazardous material transportation law, in the absence of
a waiver of preemption by DOT under 49 U.S.C. 5125(e), ``a requirement
of a State, political subdivision of a State, or Indian tribe'' is
explicitly preempted (unless it is authorized by another Federal law)
if
(1) Complying with a requirement of the State, political
subdivision or tribe and a requirement of this chapter or a
regulation issued under this chapter is not possible; or
(2) The requirement of the State, political subdivision, or
Indian tribe, as applied or enforced, is an obstacle to the
accomplishing and carrying out this chapter or a regulation
prescribed under this chapter.
49 U.S.C. 5125(a). These two paragraphs set forth the ``dual
compliance'' and ``obstacle'' criteria which RSPA had applied in
issuing inconsistency rulings before 1990. While advisory in nature,
these inconsistency rulings were ``an alternative to litigation for a
determination of the relationship of Federal and State or local
requirements'' and also a possible ``basis for an application * * *
(for) a waiver of preemption.'' Inconsistency Ruling (IR) No. 2, Rhode
Island Rules and Regulations Governing the Transportation of Liquefied
Natural Gas and Liquefied Propane Gas, etc. 44 FR 75566, 76657 (Dec.
20, 1979). 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).
In the 1990 amendments, Congress also confirmed that there is no
room for differences from Federal requirements in certain key matters
involving the transportation of hazardous material. As now codified, a
non-Federal requirement ``about any of the following subjects, that is
not substantively the same as a provision of this chapter or a
regulation prescribed under this chapter,'' is preempted unless it is
authorized by another Federal law or DOT grants a waiver of preemption:
(A) The designation, description, and classification of
hazardous material.
(B) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material.
(C) The preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the
number, contents, and placement of those documents.
(D) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material.
(E) The design, manufacturing, fabricating, marking,
maintenance, reconditioning, repairing, or testing of a packaging or
a container represented, marked, certified, or sold as qualified for
use in transporting hazardous material.
49 U.S.C. 5125(b)(1). RSPA has defined ``substantively the same'' to
mean ``conforms in every significant respect to the Federal
requirement. Editorial and other similar de minimis changes are
permitted.'' 49 CFR 107.202(d).
Since 1990, Federal hazardous material transportation law has also
limited the fees that a State, political subdivision, or Indian tribe
may impose ``related to the transportation of hazardous material.''
These fees must be ``fair and used for a purpose related to
transporting hazardous material, including enforcement and planning,
developing, and maintaining a capability for emergency response.'' 49
U.S.C. 5125(g)(1).
Under 49 U.S.C. 5125(d)(1), any directly affected person may apply
to the Secretary of Transportation for a determination whether a State,
political subdivision or Indian tribe requirement is preempted. This
administrative determination replaced RSPA's process for issuing
inconsistency rulings. The Secretary of Transportation has delegated to
RSPA the authority to make determinations of preemption, except for
those concerning highway routing which have been delegated to FHWA. 49
CFR 1.53(b). Under RSPA's regulations, preemption determinations are
issued by RSPA's Associate Administrator for Hazardous Materials
Safety. 49 CFR 107.209(a).
Section 5125(d)(1) requires that notice of an application for a
preemption determination must be published in the Federal Register. Id.
Following the receipt and consideration of written comments, RSPA
publishes its determination in the Federal Register. See 49 CFR
107.209(d). 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 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. 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 policy set forth in Executive Order No.
12,612, entitled ``Federalism'' (52 FR 41685, Oct. 30, 1987). Section
4(a) of that Executive Order authorizes preemption of State laws only
when a statute contains an express preemption provision, there is other
firm and
[[Page 31664]]
palpable evidence of Congressional intent to preempt, 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. Public Comment
All comments should be limited to the issue whether Federal
hazardous material transportation law preempts the Nassau County LPG
permit and certificate of fitness requirements in Section 6.7 (A) and
(B) and Section 6.8, respectively. Comments should:
(1) Set forth in detail the manner in which these permit and
certificate of fitness requirements are applied and enforced; and
(2) Specifically address the preemption criteria described in Part
II, above (``dual compliance,'' ``obstacle,'' and ``covered
subjects'').
Persons intending to comment should review the standards and
procedures governing RSPA's consideration of applications for
preemption determinations, set forth at 49 CFR 107.201-107.211.
Issued in Washington, DC, on June 3, 1997.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
Appendix A
Associate Administrator for Hazardous Materials Safety Research
and Special Programs Administration, U.S. Department of
Transportation, Washington, DC 20590-0001.
Attention: Hazardous Materials Preemption Docket.
Political Subdivision Ordinance: County of Nassau, State of New
York
The New York Propane Gas Association, a group consisting of
refiners, wholesale suppliers, transporters and marketers supplying
propane by vehicle to customers in Nassau County and other
jurisdictions, applies for an administrative determination that
Section 6.7 (A) and (B) and Section 6.8 of the Nassau County Fire
Prevention Ordinance, Art III, Liquefied Petroleum Gases, Ordinance
No. 344-1979, As Amended By Ordinance No. 415-82 are preempted by
the Hazardous Materials Transportation Act (HMTA) (49 USC 5101, et
seq.) and its regulations, 49 CFR, Sec. 107.202: Standards for
Determining Preemption.
Section 6.7 (A) and (B)
The subject Nassau County (NC) ordinance (hereinafter, the
ordinance) at Sec. 6.7(A) reads in part ``[no] person, firm or
corporation shall use or cause to be used, any motor vehicle, tank
truck, tank semi-trailer, or tank truck trailer for the
transportation of Liquefied Petroleum Gas, unless after complying
with these regulations a permit to operate any such vehicle has
first been secured from the Nassau County Fire Marshall.'' The last
sentence of Sec. 6.7(A) limits the applicability of the permit
requirement: ``[t]his section shall not apply to any motor vehicle,
tank truck, tank semi trailer or tank truck trailer traveling
through Nassau County and making no deliveries within the County.''
Section 6.7(B) sets the length of the permit at one year. (Exhibit
#1)
Fees, Inspection and Labeling
A renewal fee of seventy-five dollars is required with the
``Application for Motor Vehicle Transportation Permit'' and by
custom and practice, a vehicle inspection time and date is specified
by the Fire Marshall as the only time and date on which an
inspection will be conducted. New vehicle fees are $150.00. Upon
application and satisfactory inspection, the Nassau County Fire
Marshall issues a permit and windshield sticker reading
``Transportation Permit, Nassau County Fire Marshall'' with a permit
number specific to that vehicle. (See attached two page application
[exhibit #2], a permit, 2538, for NY plate #VR 2395 [exhibit #3] and
photograph of windshield sticker #3126 [exhibit #4] of a vehicle
owned by John DiBiasi, President, Star-Lite Propane Gas Corp., 111
So. 4th St., North Bayshore, N.Y. 11706, and described in attached
affidavit, [exhibit #5]. The effect of Sec. 6.7 of the ordinance is
to impose fee, inspection and labeling requirements on propane
vehicles, as therein defined, delivering to a sites within the
County of Nassau (NC) regardless of the origin of the product or
vehicle or the domicile of the driver. Based on previous rulings, we
believe, these requirements for flat fees, specified limits on
inspection hours and the display of a label on the vehicle as
evidence of compliance with the ordinance are inconsistent with the
HMTA and HMR. Accordingly, the petitioner seeks review and relief
from the Research and Special Programs Administration (RSPA) under
49 USC 5125 and 49 CFR Sec. 107.202.
Fees
The HMTA (5125[g]) provides that a ``political subdivision * * *
may impose a fee related to transporting hazardous materials only if
the fee is fair and used for a purpose related to transporting
hazardous material * * *'', but the NC fee is inherently unfair by
disproportionately taxing users who are differently situated: a one-
time entrant to NC from any jurisdiction, would pay the same as a
frequent entrant. Further, because under any different reading all
jurisdictions would be able to impose such fees, the NC fee is an
obstacle to transportation and is preempted if ``the requirement of
the * * * political subdivision, * * * as applied or enforced, is an
obstacle to accomplishing and carrying out this chapter or a
regulation prescribed under this chapter.'' (49 USC 5125[a][2]).
While the fees reach all carriers delivering to the NC, not just
carriers domiciled within the county, any attempt to limit fees to
in-county propane carriers would similarly run afoul of the obstacle
test, since no two carriers are likely to be equally situated, i.e.,
same number of deliveries, same amount of product per drop, same
risk of accidents, etc. And while any carrier could choose not to
deliver propane to NC or any jurisdictions because of such fees,
their existence make them obstacles to transportation and commerce
and impermissible under the HMTA.
Inspections
The ordinance at Sec. 6.7 requires that a vehicle, as defined,
undergo an annual inspection by submitting an Application for Motor
Vehicle Transportation Permit, (exhibit #2), paying $75.00 in
advance, appearing with the vehicle at a point in NC where
inspections are conducted by appointment only (see exhibit #6), and
as a matter of practice, (see exhibit #5) only on the first and
fourth Tuesday each month. A driver must accompany the vehicle
making him and the vehicle unavailable for deliveries for two to
three hours, minimum. These requirements have the effect of making a
new vehicle which has met all state and federal requirements
unusable until a NC inspection can be performed. A windshield
sticker (exhibit #4) must be affixed to the vehicle which indicates
a ``PERMIT FOR USE OF A MOTOR VEHICLE OR TRAILER TO TRANSPORT LIQUID
PETROLEUM GAS'' (exhibit #3) has been issued to the owner. These
requirements apply to any carrier seeking to deliver to points
within NC, regardless of location of vehicle registrant or domicile
of driver.
These requirements are in conflict with 49 CFR Sec. 177.853(a)
``No unnecessary delay in movement of shipments. All shipments of
hazardous material shall be transported without unnecessary delay,
from and including the time of commencement of the loading of the
cargo until its final discharge at destination.'' We believe the NC
ordinance ``creates an obstacle to the accomplishment and execution
of the Act or the regulations issued under the Act.''
(Sec. 107.202(b)(2).
An out-of-state carrier who attempted to deliver propane to a
customer in NC would be barred if the ordinance were not preempted,
for it would not be reasonable or possible to obtain a permit from
NC without violating the ``unnecessary delay'' standard the HMTA
mandates at 5125(a)(2). A less extreme example of a carrier in any
in-state jurisdiction provides no protection for the ordinance from
preemption under the ``obstacle test,'' since inspections are
provided only by appointment at the office of the Fire Marshall and
only on the first and fourth Tuesday of each month. For NC to argue
that its inspections by appointment are verification of New York
State roadside inspections of hazardous materials transport vehicles
similarly should run afoul of the ``obstacle test,'' since roadside
checks on previously inspected vehicles can be conducted with the
least delay to transportation, a stated purpose of the Act. Because
both the driver and vehicle are unavailable for long periods of
time, the effect of the inspection is to cause unnecessary delay and
should be preempted under 5125(a)(2).
It should not matter which class of propane carrier Sec. 6.7
attempts to regulate since NC's requirements for non-federal
registration and permitting forms and procedures are not
``substantively the same'' as federal
[[Page 31665]]
regulations and are therefore preempted under the ``dual
compliance'' standard at Sec. 5125(a)(1). In addition, the
applicability of the NC fee, inspection and labeling requirements
exclusively to propane, or even to other hazardous materials, runs
contrary to section 5125(b), which reserves ``the designation,
description, and classification of hazardous materials'' to US DOT.
By singling out propane for special or exclusive treatment, NC has
impinged on the jurisdiction of the US DOT, reserved to it by
Congress.
Labeling
NC uses permits to meet its goal of vehicle registration and the
display of a numbered permit ``on exterior of vehicle'' as evidence
of compliance. (Exhibit #4). Information provided by NC Fire
Marshall directs vehicle owners to display the registration permit
number on the windshield of vehicles. While this is merely a
consequence of the registration requirement for which preemption is
sought, it is a separate labeling requirement of a hazardous
material and should be preempted, per se, as a covered subject under
section 5125 and 49 CFR 107.202(a)(2).
Section 6.8 (A) Through (L)
Section 6.8(A) requires a certificate of fitness issued by the
NC Fire Marshall be secured by ``[a]ny person filling containers at
a location where Liquefied Petroleum Gas is sold and/or transferred
from one vessel into another.'' [Emphasis added]. After application
(Sec. 6.8[B]), proof of qualifications (Sec. 6.8[C]), investigation
and examination (Sec. 6.8[D]), etc., Sec. 6.8(I) ``Certificate of
Fitness Issued'' requires said certificate ``of any person
performing the following activities: 2. [s]elling Liquefied
Petroleum Gas or Transferring Liquefied Petroleum Gas from one
vessel to another.'' Section 6.8(K), 1 through 6 specifies the
contents of the certificate of fitness and section (L) the
requirement of the holder to display or produce same upon request
``to anyone for whom he seeks to render his services or to the Fire
Marshall.''
By custom and practice no driver of a vehicle used to deliver
propane is exempt from these requirements, since he necessarily
engages in ``transferring Liquefied Petroleum Gas from one vessel to
another.'' The two activities are inextricably linked. Under the NC
ordinance, drivers of propane vehicles without certificates of
fitness would be barred from delivering propane, since section 6.0
(C) states ``[t]he provisions of this Article shall apply to all
uses of Liquefied Petroleum Gas and installation of all apparatus,
piping, and equipment pertinent to systems for such uses.''
[Emphasis added]. (See exhibit [#1]). Even more compelling, NC's
``Application for Certificate of Fitness,'' (exhibit #7) specifying
categories of licenses including, among others, ``Flammable Gas Bulk
Transport (1)'' and ``Flammable/Compressed Gas Transport/Handling
(3),'' clearly demonstrates the intent and purpose of the ordinance
to license hazardous materials transport drivers delivering to
points within NC no matter where domiciled.
Certificate of Fitness
This requirement of the ordinance has several discreet steps the
applicants must take in order to secure certification. The
application (exhibit #7), the NC letter to Certificate of Fitness
holders (exhibit #8) and the Information for Liquefied Petroleum Gas
Certificate of Fitness instructions (exhibit #9) clearly represent a
protocol designed to regulate the qualifications of hazardous
material transportation drivers: applicant must, ``be employed by
company with valid permits, (i.e., meet the requirements of section
6.7); must possess valid medical certification; must file a complete
notarized application; must pass written examination by N.C.F.D;
must pass practical examination by N.C.F.D.'' Further, ``[a]ll
applications must be accompanied by: two (2) color (Passport Type)
photos of applicant; one-hundred and fifty dollars ($150) check,
etc.,'' and all tests are by appointment only. Recent telephonic
communications from NC to applicants instruct that photographs must
now be taken at NC offices and only by appointment. (Exhibit #5) Any
driver entering or delivering propane within NC, no matter where
domiciled, needs such certification, as do, presumably, domiciled
drivers, though section 6.8, unlike section 6.7, makes no
distinction.
The HMTA and its regulations require that hazardous materials
transportation employees receive training, and allow that ``a State
may impose more stringent training requirements only if those
requirements--(a) [d]o not conflict with the training requirements
in this subpart and in 177 of this subchapter; and (b) [a]pply only
to drivers domiciled in that state.'' (49 CFR 172.701). NC is a
political subdivision of New York State and has no jurisdiction over
licensing requirements, and even state jurisdiction over such
requirements applies only to domiciled drivers, and only if those
requirements are imposed under New York State Department of Motor
Vehicle law.
The NC ordinance certification requirement is preempted since it
cannot meet the ``dual compliance'' and ``obstacle'' standards
because ``[t]o the extent the HMRs recognize the CDL with its
hazardous materials and/or cargo tank endorsements as
`certification' of federal training requirements, a driver cannot
comply with the requirement that `no person who operates a
commercial motor vehicle * * * have more than one drivers license'
'' (See FR/Vol. 58, No. 95 / Wednesday, May 19, 1993). Since persons
engaged in the transportation and off-loading of propane within the
County of Nassau are required to demonstrate evidence of
certification to the Fire Marshall, the requirement is duplicative
of the CDL.
The Federal Register of May 19, 1993 makes it clear that
proliferation of such training and licensing requirements by other
jurisdictions (states) would make it ``burdensome for non-domiciled
drivers who must preregister for tests at specified times and
locations * * *''. By parity of reasoning, counties or other
political subdivisions would cause ``obstacles'' to transportation
that are at least as great, if not greater.
For the foregoing reasons, petitioner seeks preemption of those
portions of the Nassau County Fire Prevention ordinance as
described.
Submitted by: Richard Brescia, New York Capitol Consultants, 120
Washington Ave., Albany, New York 12210.
For Petitioner: New York Propane Gas Association, P.O. Box 5006,
Albany, New York 12205.
[FR Doc. 97-15074 Filed 6-9-97; 8:45 am]
BILLING CODE 4910-60-P
