Comments to DOT PHMSA Information Collection Activity Notice

Docket PHMSA-2007-27181

Electronically submitted

Dear PHMSA:

Thank you for this opportunity to comment on what we believe to be a
very important notice.   

The Oklahoma Hazardous Materials Emergency Response Commission is
composed of representatives from the Oklahoma Department of
Environmental Quality, the Oklahoma Emergency Management Agency, The
Oklahoma Department of Public Safety, the Oklahoma State Fire Marshall,
the Oklahoma Office of Homeland Security, local emergency responders and
the regulated community. The Commission works to assist Oklahomans in
preparation for possible emergencies and disasters involving hazardous
materials, whether they are accidental releases or result from terrorist
acts. The Commission oversees the distribution of HMEP grants to Local
Emergency Planning Committees specifically for planning for hazardous
materials incidents and for training of local responders. The majority
of local fire departments in Oklahoma are volunteer departments, the
only hazardous materials training available to them is the training
provided by HMEP funding. The rural, volunteer fire departments are
expected to respond to transportation incidents throughout the state.

Local emergency responders and planning committees are almost entirely
dependant on HMEP funding distributed through the state.  The burdens
proposed by the current notice will fall on not just state agencies. 
Rather, it will fall primarily on local organizations that are users of
the funding.  These burdens are not trivial.  Our Local Emergency
Planning Committees and most of our rural fire departments are volunteer
groups.  Devoting time and energy to reports detracts from their other
very important missions.

We believe that DOT/PHMSA has broad authority to collect information
from grant recipients.  That authority should not be used absent some
actual purpose and proposed use for the information collected. 

The collection of additional information in the manner advocated by
petitioner and other commenters is unjustified because their suggested
use of that information is improper.  In any event, as DOT/PHMSA notes,
you already collect a large percentage of the information requested. 
Data collection for the sake of data collection is unreasonable.

We do not believe that DOT/PHMSA should impose the burden of information
collection without a clear plan and purpose to use the information in a
fashion that comports with statute and regulation.  At this point all we
really have is the advocacy of outsiders regarding the use of the
information.  Until and unless DOT/PHMSA is clear in its plans for the
use of the information it appears that the proposed collection activity
is simply an increased burden without a purpose.

Petitioner and commenters improperly characterizes the 1990 amendments
by making it seem as though the only important criteria for evaluating
registration fees is whether the fee collected is used for a purpose
related to transporting hazardous material.  The actual statute and
applicable FR excerpts state that this is only one factor to consider,
giving the Secretary of Transportation wide discretion in this area.  57
FR 43064 lists many possible factors that could be taken into
consideration by the Secretary for this purpose.   Any increased data
collection effort needs to reflect this broad discretion and be focused
upon some specific application of that discretion.

49 USC 5125(f)(1) does state that a fee can only be imposed on a
hazardous waste transporter if that fee is used for a purpose related to
the transporting of hazardous material.   However, this information only
need be reported to the Secretary of Transportation \"on the
Secretary\'s request\" and is not \"mandated\" by the statute. 
Petitioner and commenters characterizes this reporting \"requirement\"
as a \"congressional mandate,\" which is not correct.   The additional
information should only be collected if it serves some specific purpose
-- Congress did not mandate information collection for the sake of
information collection.

There are several arguments put forth by the petitioner and commenters
that need to be addressed in greater detail:

**1.         "\[I\]n instances where there is no clear demonstration
that State-levied hazardous materials fees are being used as required by
\[49 U.S.C. 5125(f)\], such state\[s\] should be prohibited from
receiving an award."**[^1]^1\]^

The above argument was specifically rejected by the Research and Special
Programs Administration's ("RSPA") September, 1992 discussion of public
comments to the final rule implementing the Public Sector Training and
Planning Grants Program ("PTPG")[^2]^2\]^.  RSPA responded to the above
argument by stating:

> RSPA is sensitive to the issue raised by this commenter and will
> carefully consider that information in its grants-review process.
> However, it is not necessary to revise the rule in the manner
> suggested by the commenter.[^3]^3\]^ 

RSPA chose not to revise the rule as suggested because whether a state
collects a fee and how that fee are only some factors to be considered
when allocating funds.  Other factors the RSPA considers include:  the
number of hazardous materials facilities; types and amounts of hazardous
materials transported; population at risk; frequency and number of
incidents recorded in past years; and high mileage transportation
corridors.[^4]^4\]^  These factors are also included in the statutory
section on monitoring and review of Planning and Training
Grants.[^5]^5\]^

Although state fees have been invalidated through either the preemption
determination process or by a court, "no state in any year has been
denied a PTPG"[^6]^6\]^ a fact which demonstrates that the RSPA
considers all of the above factors when allocating monies, not just
state fee collection and usage.   The additional information proposed
for collection simply will not inform this analysis in any way relative
to the burdens imposed on the grant recipients.

**2.         "\[The newly requested fee information\] would provide the
data necessary for both the agency and the regulated community to
determine if states are in compliance with applicable provisions of the
HMTA."**[^7]^7\]^

The Pipeline and Hazardous Materials Safety Administration ("PHMSA")
already receives almost all of the newly requested information.  When
discussing the expected burden of reporting the information the agency
stated:  "HMEP \[Hazardous Materials Emergency Preparedness\] grant
recipients are required to submit performance reports, most of which
should include some or all of the information we are
requesting."[^8]^8\]^  The fact that the PHMSA already has most of the
information suggest that the proposed information collection effort is
to appease industry since "some states were not willing to provide
industry with information sufficient to determine whether states with
hazmat fees were complying with the limitations of the HMTA."[^9]^9\]^ 
In such cases, the aggrieved industry party should pursue preemption if
they think it is appropriate rather than ask PHMSA to do its bidding.

**3.         "Our petition will not have the effect of denying states or
Indian tribes funds they are entitled to receive."**[^10]^10\]^

This comment is somewhat disingenuous.  By advocating an inappropriate
standard for preemption, the effort of collecting information for an
invalid purpose will be to deny states and tribes money to which they
are entitled.

Whether or not a state or tribe is denied funding depends on the
specifics of the fee in question.  While there appears to be some
disagreement regarding which fees might be preempted  -- in fact the
petitioner and commenters are quite inconsistent on this point - there
are some generalities that are useful in this determination.

The specific section discussing fees is § 5125 part (f) which states:

> Fees.\--(1) A State, political subdivision of a State, or Indian tribe
> may impose a fee related to transporting hazardous material only if
> the fee is fair and used for a purpose related to transporting
> hazardous material, including enforcement and planning, developing,
> and maintaining a capability for emergency response.

The key determinations are whether the fee is "fair" and whether used
for "a purpose related to transporting hazardous material."  Any fee
that is not "fair," or that is "used for" purposes other than those
specified in the § 5125(f), is preempted under 49 U.S.C. 5125(a)(2)
which states:

> \(a\) General.\--Except as provided in subsections (b), (c), and (e)
> of this section and unless authorized by another law of the United
> States, a requirement of a State, political subdivision of a State, or
> Indian tribe is preempted if---
>
> \(2\) the requirement of the State, political subdivision, or tribe,
> as applied or enforced, is an obstacle to accomplishing and carrying
> out this chapter, a regulation prescribed under this chapter, or a
> hazardous materials transportation security regulation or directive
> issued by the Secretary of Homeland Security.

Basically there are three categories of preemption under § 5125(a) and
(b).  First, is the "dual compliance test" which preempts a law when it
is not possible to comply with both the non-Federal requirement and the
Federal hazmat law or a regulation prescribed under Federal hazmat
law.[^11]^11\]^  Second, is the "obstacle test" which preempts a
non-Federal requirement if its application or enforcement is an obstacle
to accomplishing and carrying out the Federal hazmat law or a regulation
prescribed under Federal hazmat law.[^12]^12\]^  Third is the "covered
subjects test" which preempts a non-Federal requirement if it concerns
any of the five covered subjects and is not "substantively the same as"
the Federal hazmat law or regulations' requirements.[^13]^13\]^ 

Using existing information sources, State and tribal fees have been
found to be preempted by both courts and the RSPA through the preemption
determination process under 49 U.S.C 5125(d)(1).  RSPA has found that
fees which fail the fairness or "used for" test in 49 U.S.C.
5125(f)(1)[^14]^14\]^, create an obstacle to carrying out the Federal
hazardous materials transportation law and thus fail the "obstacle test"
under 49 U.S.C. § 5125(a)(2). The Supreme Court in
[Evansville-Vanderburgh]{.underline} came up with a test to determine
whether a fee is fair.[^15]^15\]^  Under the [Evansville]{.underline}
test, a fee is fair if it is:

> \(a\) based on fair approximation of use of facilities;
>
> \(b\) not excessive in relation to benefits conferred;
>
> \(c\) does not discriminate against interstate commerce[^16]^16\]^ 

The most common grounds for preemption is when the fee is not based on
some fair approximation of the use of facilities as is required under 49
U.S.C. § 5125(f)(1).[^17]^17\]^ 

A State may impose flat fees when \"administrative difficulties make
collection of more finely calibrated user charges
impracticable.\"[^18]^18\]^  The state bears the burden of demonstrating
the practical impossibility of employing any form of apportionment that
would render its tax better \"calibrated\" than a flat tax.[^19]^19\]^
 The Court has indicated that flat taxes are permissible when they are
shown to be \"the only practicable means of collecting revenues from
users and the use of a more finely gradated user-fee schedule would pose
genuine administrative burdens.\"[^20]^20\]^ 

**[Summary]{.underline}**

The party challenging the validity of a state statute on Commerce Clause
grounds bears the burden of proof.[^21]^21\]^  The criteria under which
fees will be evaluated are not specific, which justifies the broad
discretion given to the Secretary to determine whether the purpose of
the fee relates to hazardous materials transportation. 

States, tribes and local governments plan, train and exercise to deal
with the risks of hazardous materials in transportation.  Contrary to
the narrative in the current notice, DOT/PHMSA does already require that
states and tribes broadly report on their use of funds for planning,
training, and exercises.   Current reporting is more than adequate for a
determination under the second preemption test as evidenced by
preemption actions to this point. 

The petitioner and commenters certainly wish to ease their burden in
challenging fees.  They mischaracterize the obligations of DOT/PHMSA to
collect data to make a preemption evaluation as mandatory.   If these
entities are unhappy about a specific state fee they should challenge it
rather than attempt to shift the burdens of these arguments to states
and tribes.  

Congress has given the agency broad discretion to evaluate both grants
and the question of preemption.  Existing data collection would appear
to be fully adequate to serve the agency's needs in this regard.  Until
such time that DOT/PHMSA can articulate a specific use for the
information that is consistent with the statute and regulations, the
increased burdens should not be imposed.

Sincerely,

Montressa Jo Elder, Chairman

Oklahoma Hazardous Materials Emergency Response Commission

[^1]: ^\[1\]^ Letter from Interested Parties for Hazardous Materials
    Transportation, to The Honorable Thomas J. Barrett, VADM Ret.
    Administrator, Pipeline and Hazardous Materials Safety
    Administration, US Department of Transportation, at 1 (March 23,
    2007) \[hereinafter *Industry Letter*\].

[^2]: ^\[2\]^ Interagency Hazardous Materials Public Sector Training and
    Planning Grants, 57 Fed. Reg. 43062, 43064 (Sept. 17, 1992).

[^3]: ^\[3\]^ *Id.*

[^4]: ^\[4\]^ *Id.*

[^5]: ^\[5\]^ 49 U.S.C.A. § 5116(b)(4)(A-E).

[^6]: ^\[6\]^ *Industry Letter*, *supra* note 1, at 2.

[^7]: ^\[7\]^ *Industry Letter*, *supra* note 1, at 3.

[^8]: ^\[8\]^ Information Collection Activities, 72 Fed. Reg. 36754,
    36757 (July 5, 2007).

[^9]: ^\[9\]^ *Industry Letter*, *supra* note 1, at 2.

[^10]: ^\[10\]^ *Id.*, at 3.

[^11]: ^\[11\]^ Index to Preemption of State and Local Laws and
    Regulations Under the Federal Hazardous Material Transportation
    Law,  PHMSA Office of Chief Council, available at
    http://rspa-atty.dot.gov/preempt/preemption_index.pdf.

[^12]: ^\[12\]^ *Id.*

[^13]: ^\[13\]^ *Id.*

[^14]: ^\[14\]^ (f) FEES. (1) A State, political subdivision of a State,
    or Indian tribe may impose a fee related to transporting hazardous
    material only if the fee is fair and used for a purpose related to
    transporting hazardous material, including enforcement and planning,
    developing, and maintaining a capability for

    emergency response.

[^15]: ^\[15\]^ Evansville-Vanderburgh Airport Auth. V. Delta Airlines,
    Inc. 405 U.S. 707 (1972).

[^16]: ^\[16\]^ *Id.*

[^17]: ^\[17\]^ *Id.*

[^18]: ^\[18\]^ American Trucking Ass\'ns, Inc. v. Scheiner, 483 U.S.
    266, 297 (1987).

[^19]: ^\[19\]^ American Trucking Ass\'ns v. Secretary of
    Administration, 613 N.E.2d, 95,  100 (Mass. 1993).

[^20]: ^\[20\]^ American Trucking Ass\'ns, Inc. v. Scheiner, 483 U.S.,
    at 296.

[^21]: ^\[21\]^ American Trucking Ass'ns, Inc. v. State, 180 N.J. 377,
    396 (N.J., 2004).