[Federal Register Volume 63, Number 105 (Tuesday, June 2, 1998)]
[Notices]
[Pages 30032-30035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14562]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
[Docket No. RSPA-98-3599 (PDA-19(R))]
Application by National Tank Truck Carriers, Inc. for a
Preemption Determination as to New York Department of Environmental
Conservation Requirements on Gasoline Transport Vehicles
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Public Notice and Invitation to Comment.
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SUMMARY: Interested parties are invited to submit comments on an
application by the National Tank Truck Carriers, Inc. (NTTC) for an
administrative determination whether Federal hazardous material
transportation law preempts certain requirements of the New York
Department of Environmental Conservation applicable to gasoline
transport vehicles.
DATES: Comments received on or before July 17, 1998, and rebuttal
comments received on or before August 31, 1998, 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. The application and all
comments are also available on-line through the home page of DOT's
Docket Management System, at ``http://dms.dot.gov.''
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.'' Each comment should refer to the Docket
Number set forth above. A copy of each comment must also be sent to (1)
Mr. Clifford J. Harvison, President, National Tank Truck Carriers,
Inc., 2200 Mill Road, Alexandria, VA 22314, and (2) Mr. John P. Cahill,
Commissioner, Department of Environmental Conservation, State of New
York, 50 Wolf Road, Albany, NY 12233. 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 Messrs. Harvison and Cahill at the addresses
specified in the Federal Register.'')
A list and subject matter index of hazardous materials preemption
cases, including all inconsistency rulings and preemption
determinations, are available through the home page of RSPA's Office of
the Chief Counsel, at ``http://rspa-atty.dot.gov.'' A paper copy of
this list and index will be provided at no cost upon request to Ms.
O'Berry, at the address and telephone number set forth in For Further
Information Contact below.
FOR FURTHER INFORMATION CONTACT: Donna L. O'Berry, Office of the Chief
Counsel, Research and Special Programs Administration, U.S. Department
of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).
[[Page 30033]]
SUPPLEMENTARY INFORMATION:
I. Application for a Preemption Determination
NTTC has applied for a determination that Federal hazardous
material transportation law, 49 U.S.C. 5101 et seq., preempts New York
Codes, Rules and Regulations (NYCRR) Sections 230.4(a)(3) and 230.6(b)
and (c). These provisions were issued by the New York State Department
of Environmental Conservation and concern marking and recordkeeping and
reporting requirements applicable to vehicles used to transport
gasoline. Part 230 of NYCRR pertains to gasoline-dispensing sites and
transport vehicles. The text of NTTC's application and a list of the
attachments are set forth in Appendix A. A paper copy of the
attachments to NTTC's application will be provided at no cost upon
request to Ms. O'Berry, at the address and telephone number set forth
in For Further Information Contact above.
Marking. Section 230.4(a)(3) provides as follows:
(a) No owner or operator of a gasoline transport vehicle subject
to the Part will allow said vehicle to be filled or emptied unless
the gasoline transport vehicle:
(3) displays a marking, near the U.S. Department of
Transportation certificate plate, in letters and numerals at least
two inches high, which reads NYS DEC and the date on which the
gasoline transport vehicle was last tested.
NTTC asserts this section is preempted because the requirement is
not substantively the same as requirements in 49 CFR 180.415 for
marking cargo tank motor vehicles used to transport hazardous
materials.
Recordkeeping and Reporting. NTTC challenges subsections (b) and
(c) of Section 230.6. That section provides as follows:
(a) The owner of any gasoline transport vehicle subject to this
Part must maintain records of pressure-vacuum testing and repairs.
The records must include the identity of the gasoline transport
vehicle, the results of the testing, the date that the testing and
repairs, as needed were done, the nature of needed repairs and the
date of retest where appropriate.
(b) A copy of the most recent pressure-vacuum test results, in a
form acceptable to the commissioner, must be kept with the gasoline
transport vehicle.
(c) Records acceptable to the commissioner must be retained for
two years after the testing occurred, and must be made available to
the commissioner or his representative on request at any reasonable
time.
NTTC claims that subsections (b) and (c) are preempted under the
``obstacle'' test. NTTC compares the requirements to maintain test
results with the vehicle with 49 CFR 180.417(a)(2). That Federal
regulation requires a motor carrier who is not the owner of the cargo
tank motor vehicle to retain a copy of the vehicle certification report
at its principal place of business or, upon approval from the Federal
Highway Administration, at a regional or terminal office. NTTC also
compares the requirement to retain test records for two years after
testing occurs with Section 180.417(c)(2), which requires retention for
the time the cargo tank is in the carrier's service, plus one year.
NTTC asserts that New York's regulation requiring documents to be
retained in vehicles creates an unnecessary delay by forcing a carrier
to maintain and reproduce documents and ensure that copies are placed
in vehicles that are moved from State to State. NTTC further contends
that this regulation could create a multiplicity of non-uniform
restrictions that could potentially compromise safety if it is
replicated by other jurisdictions.
II. Federal Preemption
Section 5125 of Title 49 U.S.C. contains several preemption
provisions that are relevant to NTTC's application. Subsection (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 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.
These two paragraphs set forth the ``dual compliance'' and ``obstacle''
criteria which RSPA had applied in issuing inconsistency rulings before
1990, under the original preemption provisions in the Hazardous
Materials Transportation Act (HMTA). Pub. L. 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, that is not
``substantively the same as'' a provision of Federal hazardous
materials transportation law or a regulation prescribed under that law,
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.
These preemption provisions in 49 U.S.C. carry out Congress's view
that a single body of uniform Federal regulations promotes safety in
the transportation of hazardous materials. In 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 amended the HMTA 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 section 2, 104 Stat. 3244. A Federal Court of Appeals
has 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 1994, the HMTA was revised, codified
[[Page 30034]]
and enacted ``without substantive change,'' at 49 U.S.C. Chapter 51.
Pub. L. 103-272, 108 Stat. 745.)
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. The
Secretary of Transportation has delegated authority to make
determinations of preemption that concern highway routing to FHWA and
those concerning all other hazardous materials transportation issues to
RSPA. 49 CFR 1.48(u)(2), 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(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 materials 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 statue. Colorado Pub. Util. Comm'n
v. Harmon, above, 951 F2d 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. 12612, 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
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
Comments should be limited to whether Federal hazardous material
transportation law preempts the provision of New York state's marking
requirements in Section 230.4(a)(3) and recordkeeping and retention
requirements in Section 230.6, respectively. Comments should:
(1) Set forth in detail the manner in which these marking and
recordkeeping and retention requirements are applied and enforced; and
(2) Specifically address the preemption criteria described in Part
II above (``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 May 22, 1998.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety, Research and
Special Programs Administration.
Appendix A
Before the Research & Special Programs Administration, United States
Department of Transportation
In the matter of: An Application For A Preemption Determination In
the Matter of Certain Regulations Codified and Enforced By the State
of New York
Petition filed by: National Tank Truck Carriers, Inc., 2200 Mill
Road, Alexandria, VA 22314, (703) 838-1960; Fax (703) 684-5753,
Clifford J. Harvison, President
February 1, 1998.
Before the Administrator: National Tank Truck Carriers, Inc.
(NTTC) is a trade association representing over 200 corporate
members specializing in the highway transportation of hazardous
materials, hazardous substances and hazardous wastes, in cargo tank
motor vehicles, throughout the continental United States. Several
NTTC members conduct high volume operations within the State of New
York. Certain regulations (codified and enforced by that state) are
the subject of this petition.
The Regulations In Question--New York State's Department of
Environmental Conservation (DEC) is charged with enforcement of 6
NYCRR, Part 230 entitled ``Gasoline Dispensing Sites and Transport
Vehicles (a copy of relevant portions is attached). Therein, Section
230.6 (Gasoline transport vehicles--recordkeeping and reporting)
proscribes the following:
``(a) The owner of any gasoline transport vehicle subject to
this Part must maintain records of pressure-vacuum testing and
repairs. The records must include the identity of the gasoline
transport vehicle, the results of the testing, the date that the
testing and repairs, as needed, were done, the nature of needed
repairs and the date of retests where appropriate.
``(b) A copy of the most recent pressure-vacuum test results, in
a form acceptable to the commissioner, must be kept with the
gasoline transport vehicle.
``(c) Records acceptable to the commissioner must be retained
for two years after the testing occurred, and must be made available
to the commissioner or his representative on request at any
reasonable time.''
Furthermore, that same body of state regulations contains the
following provision at 230.4 (a) and (a) (3):
``(a) No owner or operator of a gasoline transport vehicle
subject to this Part will allow said vehicle to be filled or emptied
unless the gasoline transport vehicle:
``(3) displays a marking, near the U.S. Department of
Transportation certificate plate, in letters and numerals at least
two inches high, which reads: NYS DEC and the date on which the
gasoline transport vehicle was last tested.''
NTTC has been informed (by various members) that they have
received citations, issued by (DEC) enforcement personnel for
violations of these regulations; thus, it is evident that they are
being actively enforced.
NTTC's Position--NTTC holds that Section 230.4 (a)(3) is
preempted because it is not ``substantively the same'' as current
Federal requirements dealing with the ``marking'' of a container or
package which is represented, marked, certified or sold as qualified
for use in the transportation of a hazardous material. This latter
state requirement is (in the vernacular of the Administrator) a
``covered subject''.
Additionally, this Association holds that Section 230.6 is
preempted by applicable provisions of the Hazardous Materials
Transportation Uniform Safety Act (HMTUSA) (as amended) in that the
provisions violate the so-called ``obstacle test'' (a traditional
criterion used by the Administrator in evaluating non-Federal laws
and regulations in applications for preemption determination).
Moreover, as enforced, the state regulation creates unnecessary
delay, and--if replicated by other jurisdictions--would serve to
create a multiplicity of non-uniform restrictions that would
(potentially) compromise safety.
In the alternative, the State of New York may petition the
Administrator to amend Federal regulations (should the state feel
that the amendments would enhance safety); or, the State may
acknowledge Federal preemption and apply for a ``Waiver of
Preemption'' under procedures established by the Administrator.
The Relevant Element of the Hazardous Materials Regulations
(HMR)--Pursuant to HMTUSA's mandate, the Secretary of Transportation
has delegated to the Administrator of the Department's Research and
Special Programs Administration (RSPA) the authority to issue
regulations specific to the transportation of hazardous materials.
The Administrator has fulfilled that mandate by promulgation of the
HMR, Parts 171-180.
Specifically, Part 180 of the HMR (``Continuing Qualification
And Maintenance of Packagings'') sets forth a comprehensive series
of regulations dealing with the inspection, testing, maintenance and
repair of cargo tank motor vehicles which are represented (by the
owner/operator) as being constructed and operated in compliance with
the HMR.
Argument--In terms of the requested preemption of Section 230.6
of New York's
[[Page 30035]]
Code, we wish to note at the outset that we have no quarrel with the
provisions of subsection ``(a)'' of that Section.
In contrast, however, NTTC notes that 49 CFR 180.417 contains
direct requirements for ``Reporting and Record Retention
Requirements''. Significantly, there is no Federal requirement for
copies of reports and/or records to be carried in the cargo tank
motor vehicle. Instead, the Administrator relies on certain (and
specified) markings on the cargo tank as indicia of compliance.
Moreover, 49 CFR 180.417(a)(2) allows carriers to retain relevant
documents at either their ``principal place of business'', or (upon
application to the Federal Highway Administration) ``at a regional
or terminal office''.
Conversely, the state's regulations require documentation to be
retained ``in the vehicle.'' NTTC holds that Section 230.6(b) is
preempted by the HMR. As the Administrator well knows, cargo tanks
regularly move from jurisdiction to jurisdiction. For instance,
nationwide carriers may move vehicles from southern states into the
New England area to move gasoline when transportation demands for MC
306/DOT406 equipment accelerate because of the winter ``fuel oil
season''. Unnecessary delay is created when carriers are compelled
to retrieve documents from storage, reproduce those documents, and
exercise the management controls necessary to put copies in some
vehicles but not in others. The situation is compounded when one
realizes the potential for other jurisdictions to play havoc with
the current system. For instance, should the Administrator not
preempt, what would prevent a state or locality from requiring all
service and maintenance records (including the vehicle
manufacturer's original certification) to be retained in the
vehicle?
In Docket HM-183 (the administrative proceeding which created
Part 180), the Administrator decided that the proper indicia for
compliance with Part 180 is vehicle marking (as codified at
180.415). As has often been noted in both (the former)
``inconsistency petitions'' and in ``preemption determinations'',
the Administrator's regulations are ``presumed safe''. New York
State is not free to unilaterally amend RSPA's requirements.
With regard to the state's requirement at 230.6(c), the same
arguments and fact patterns apply. At 49 CFR 180.417(c)(2), the
specified retention time is length of (cargo tank) ownership plus
one year. New York requires ``. . . two years after the testing
occurred.'' It, too, must be preempted.
Our problem with New York's requirement at 230.4(a)(3) is more
direct and concise. Simply stated, this regulation is a ``hazardous
materials specific'' marking requirement. It applies only to DOT
Specification tanks (authorized for the transportation of gasoline).
HMTUSA specifies that ``marking'' (of a package or container) is a
``covered subject''. The Administrator's relevant requirements at 49
CFR 180.415 ``occupy the field''. New York's regulation must be
stricken.
Precedent On These Issues Is Abundant--NTTC believes that the
Administrator's decisions in both ``Inconsistency Rulings'' (IR) and
``Preemption Determinations'' (PD) buttress our claims with respect
to the New York State regulations under question.
For instance, in both IR#19 and #IR 28, the Administrator ruled
that, ``. . . the HMTA and HMR provide sufficient information and
documentation requirements for the safe transportation of hazardous
materials; state and local requirements in excess of them constitute
obstacles to implementation of the HMTA and HMR and thus are
inconsistent with them.''
Similarly, in those two rulings (plus a host of others), it was
ruled that, ``Requirements for information or documentation in
excess of Federal requirements create potential delay, constitute an
obstacle to execution of the Federal hazmat law and the HMR, and
thus are preempted.''
In at least 14 prior proceedings of this type (IR's and PD's),
RSPA has struck down state and local requirements found to be ``* *
* likely to cause'' and/or ``* * * the mere threat'' of unnecessary
delays in hazardous materials transportation.
As the Administrator ruled in PD-4 (R), ``Required markings of
packagings (cargo tanks and portable tanks) to certify current
registration and inspection are preempted since they are not
substantively the same as the markings required by the HMR.''
(emphasis added)
Even the United States Court of Appeals for the 10th Circuit
weighed in most directly. In reversing a District Court decision in
the matter of Colorado Pub. Utilities Commission v. Harmon, the
Court went to the heart of NTTC's complaint specifying that a state
may not require a carrier to retain inspection reports in a vehicle;
and, that such an additional documentation requirement could ``* * *
create confusion and increase hazards.''
Given the fact that the State of New York is aggressively
enforcing the regulations cited above, we ask expedited
consideration of NTTC's application for a preemption determination.
I hereby certify that I have sent a copy of this petition to:
Mr. John P. Cahill, Commissioner, Department of Environmental
Conservation, State of New York, 50 Wolf Road, Albany, NY 12233.
Respectfully submitted:
Clifford J. Harvison,
President.
Attachments
(A) Part 230 of New York Codes, Rules and Regulations.
[FR Doc. 98-14562 Filed 6-1-98; 8:45 am]
BILLING CODE 4910-60-P
