Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Notices 69677

[FR Doc. 04–26351 Filed 11–29–04; 8:45 am] 

BILLING CODE 4910–59–C

DEPARTMENT OF TRANSPORTATION

Research and Special Programs 

Administration 

[Docket No. RSPA–00–7096 (PD–27(R))] 

Louisiana Requirements for Hazardous 

Materials Incident Notification

AGENCY: Research and Special Programs 

Administration (RSPA), Department of 

Transportation (DOT).

ACTION: Notice of administrative 

determination of preemption by RSPA’s 

Associate Administrator for Hazardous 

Materials Safety. 

Local Laws Affected: Louisiana 

Revised Statutes (La. R.S.) 32:1510. 

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. 

Modes Affected: Rail and highway.

SUMMARY: Federal hazardous material 

transportation law: (1) Does not preempt 

Louisiana’s immediate telephone 

notification requirement in La. R.S. 

32:1510A, and (2) preempts Louisiana’s 

written incident reporting requirements 

in La. R.S. 32:1510B & C.

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 (Tel. 

No. (202)–366–4400).

SUPPLEMENTARY INFORMATION: 

I. Background 

ATOFINA Chemicals, Inc. 

(ATOFINA) has applied for an 

administrative determination whether 

Federal hazardous material 

transportation law preempts the 

incident reporting requirements in La. 

R.S. 32:1510. Subsections A and B of La. 

R.S. 32:1510 require ‘‘[e]ach person 

involved’’ in a hazardous materials 

incident, accident, or the clean up of an 

incident or accident that has certain 

consequences to: (1) Make an immediate 

telephone report to the Louisiana 

Department of Public Safety and 

Corrections (DPSC), and (2) submit a 

follow-up written report ‘‘on an 

approved form’’ to DPSC. With respect 

to a hazardous materials transportation 

incident or accident that is not subject 

to the reporting requirements in 

subsections A and B, but must be 

reported to DOT, La. R.S. 32:1510C 

requires the carrier to submit a copy of 

the written report it files with DOT in 

accordance with 49 CFR 171.16. Other 

subsections of La. R.S. 32:1510, 

concerning the issuance or 

implementation of an emergency 

response system and exceptions from 

these reporting requirements for 

incidents that must be reported under 

another statute, do not appear to be 

relevant to ATOFINA’s application. 

In its application, ATOFINA 

explained that it had received a notice 

of violation from the Louisiana State 

Police for failing to provide immediate 

notification of an incident when it 

‘‘believed that the carrier would make 

any necessary notification since it was 

directly present on the scene.’’

Additional background on this incident 

and ATOFINA’s application is 

contained in DPSC’s comments and 

ATOFINA’s rebuttal comments, 

submitted in response to RSPA’s 

October 17, 2000 notice in the Federal 

Register inviting interested persons to 

comment on ATOFINA’s application. 65 

FR 61370. 

According to those comments, 

approximately a year before ATOFINA’s 

application, employees of the New 

Orleans Public Belt Railroad discovered 

that ethyl acrylate (a hazardous 

material) was leaking from a tank car. 

ATOFINA stated that it had 

manufactured this material and (through 

its agent, StanTrans) shipped it on the 

Burlington Northern Santa Fe Railway 

(BNSF). ATOFINA explained that, when 

it learned of the incident several hours 

after it occurred, it sent a representative 

to the scene. At that time, according to 

ATOFINA, the New Orleans Fire 

Department and the Louisiana State 

Police were already present, and the 

Fire Department ‘‘had assumed control 

of the situation and, in fact, refused to 

permit the contractors who were called 

in by ATOFINA to assist with the 

repairs to the railcar.’’ ATOFINA stated 

that the Louisiana State Police received 

notice of the incident from both 

StanTrans and BNSF although 

apparently that notice ‘‘was not 

considered to be timely.’’

DPSC acknowledged that ATOFINA’s 

representative arrived at the scene of the 

incident ‘‘within five hours of its being 

made aware of the situation,’’ but stated 

that ‘‘the ATOFINA employee took no 

action whatsoever,’’ and ‘‘neither 

Burlington, the carrier, nor ATOFINA, 

the manufacturer/shipper, notified the 

Louisiana State Police of the incident.’’

DPSC stated that notices of violation 

were issued to both ATOFINA and 

BNSF ‘‘for failure to make the required 

telephonic notification.’’

DPSC also referred to Inconsistency 

Ruling (IR) No. 31, Louisiana Statutes 

and Regulations on Hazardous Materials 

Transportation, 55 FR 25572, (June 21, 

1990), appeal dismissed as moot, 57 FR 

41165, 41167 (Sept. 9, 1992). In that 

decision, RSPA previously considered 

the incident reporting requirements in 

32:1510A–C and found that ‘‘the State’s 

requirements for telephonic notification 

concerning hazardous materials 

incidents/accidents are consistent with 

the HMTA and the HMR,’’ but that ‘‘the 

provisions of State law which require 

the submission of written accident/

incident reports, are redundant with 

Federal requirements (particularly 49 

CFR 171.16), tend to undercut 

compliance with the HMR 

requirements, and thus are 

inconsistent.’’ 55 FR at 25582. In IR–31, 

RSPA also found that provisions in La. 

R.S. 32:1502 are

inconsistent with the HMTA and the HMR 

insofar as they authorize the State’s Secretary 

of the Department of Public Safety and 

Corrections to designate as ‘‘hazardous 

materials’’ any materials, including 

hazardous wastes, other than those 

designated as such in the HMR. It follows 

that the State’s section 32:1502(b) definition 

of ‘‘explosives’’ is inconsistent with the HMR 

to the extent that it defines ‘‘explosives’’ any 

materials other than those defined as such in 

the HMR.

55 FR at 25581. 

National Tank Truck Carriers, Inc. 

(NTTC) and the Institute of Makers of 

Explosives (IME) also submitted 

comments on ATOFINA’s application, 

in response to RSPA’s October 17, 2000 

notice in the Federal Register.

II. Federal Preemption 

As discussed in the October 17, 2000 

notice, 49 U.S.C. 5125 contains express 

preemption provisions that are relevant 

to this proceeding. 65 FR at 61371–72. 

As amended by Section 1711(b) of the 

Homeland Security Act of 2002 (Pub. L. 

107–296, 116 Stat. 2320), 49 U.S.C. 

5125(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, a regulation 

prescribed under this chapter, or a hazardous 

materials transportation security regulation 

or directive issued by the Secretary of 

Homeland Security is not possible; or 

(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 

69678 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Notices 

issued by the Secretary of Homeland 

Security.

These two paragraphs set forth the 

‘‘dual compliance’’ and ‘‘obstacle’’

criteria that RSPA had applied in 

issuing inconsistency rulings prior to 

1990, under the original preemption 

provision in the Hazardous Materials 

Transportation Act (HMTA). Public Law 

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 

is preempted—unless authorized by 

another Federal law or DOT grants a 

waiver of preemption—when the nonFederal requirement is not 

‘‘substantively the same as’’ a provision 

of Federal hazardous material 

transportation law, a regulation 

prescribed under that law, or a 

hazardous materials security regulation 

or directive issued by the Secretary of 

Homeland Security:

(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.

To be ‘‘substantively the same,’’ the 

non-Federal requirement must conform 

‘‘in every significant respect to the 

Federal requirement. Editorial and other 

similar de minimis changes are 

permitted.’’ 49 CFR 107.202(d). 

The November 2002 amendments to 

the preemption provisions in 49 U.S.C. 

5125 reaffirmed Congress’ long-standing 

view that a single body of uniform 

Federal regulations promotes safety 

(including security) in the 

transportation of hazardous materials. 

Thirty years ago, when it was 

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 expanded the preemption 

provisions 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.

Public Law 101–615 section 2, 104 Stat. 

3244. (In 1994, Congress revised, 

codified and enacted the HMTA 

‘‘without substantive change,’’ at 49 

U.S.C. Chapter 51. Public Law 103–272, 

108 Stat. 745.) A United States Court of 

Appeals has found that uniformity was 

the ‘‘linchpin’’ in the design of the 

Federal laws governing the 

transportation of hazardous materials. 

Colorado Pub. Util. Comm’n v. Harmon,

951 F.2d 1571, 1575 (10th Cir. 1991). 

Under 49 U.S.C. 5125(d)(1), any 

person (including a State, political 

subdivision of a State, or Indian tribe) 

directly affected by a requirement of a 

State, political subdivision or tribe may 

apply to the Secretary of Transportation 

for a determination whether the 

requirement is preempted. The 

Secretary of Transportation has 

delegated authority to RSPA to make 

determinations of preemption, except 

for those that concern highway routing 

(which have been delegated to the 

Federal Motor Carrier Safety 

Administration). 49 CFR 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. 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, the Fifth 

Amendment or other provisions 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, or whether a fee is ‘‘fair’’

within the meaning of 49 U.S.C. 

5125(g)(1). 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 policies set 

forth in Executive Order No. 13132, 

entitled ‘‘Federalism.’’ 64 FR 43255 

(Aug. 10, 1999). Section 4(a) of that 

Executive Order authorizes preemption 

of State laws only when a statute 

contains an express preemption 

provision, there is other clear evidence 

that Congress intended to preempt State 

law, 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. Discussion 

A. Reporting Incidents and Accidents 

Involving Hazardous Materials in 

Transportation 

Louisiana’s hazardous material 

incident reporting requirements in La. 

R.S. 32:1510A–C provide as follows:

A. Each person involved in an incident, 

accident, or the cleanup of an incident or 

accident during the transportation, loading, 

unloading, or related storage in any place of 

a hazardous material subject to this Chapter 

shall report immediately by telephone to the 

department if that incident, accident, or 

cleanup of an incident or accident involves: 

(1) A fatality due to fire, explosion, or 

exposure to any hazardous material.

(2) The hospitalization of any person due 

to fire, explosion, or exposure to any 

hazardous material. 

(3) A continuing danger to life, health, or 

property at the place of the incident or 

accident. 

(4) An estimated property damage of more 

than ten thousand dollars. 

B. A written report shall be submitted to 

the department on an approved form. Each 

report submitted shall contain the time and 

date of the incident or accident, a description 

of any injuries to persons or property, any 

continuing danger to life at the place of the 

accident or incident, the identify and 

classification of the material, and any other 

pertinent details. 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Notices 69679

C. In the case of an incident or accident 

involving hazardous materials which is not 

subject to this Chapter but which is subject 

to Title 49 and Title 46 of the Code of Federal 

Regulations, the carrier shall send a copy of 

the report filed with the United States 

Department of Transportation to the 

department.

B. Summary of Comments 

In its application, ATOFINA asserted 

that the Louisiana statute ‘‘is much 

broader’’ than the incident reporting 

requirements in the HMR and is 

preempted because it ‘‘is a non-federal 

requirement relating to the written 

notification and reporting of an 

unintentional release in transportation 

of hazardous materials that is not 

‘‘substantively the same as’’ the federal 

regulations in 49 CFR 171.15 and 

171.16. However, ATOFINA’s 

application and the other comments 

focused on the immediate telephone 

notification required by La. R.S. 

32:1510A, rather than the follow-up 

written reports required by La. R.S. 

32:1510B and C. 

ATOFINA argued that, ‘‘to the extent 

that Louisiana believes that immediate 

notification is necessary for emergency 

response purposes, that concern is 

satisfied by imposing the immediate 

notification obligation on the carrier 

rather than on each person involved in 

the incident, some of whom may not be 

present at the scene.’’ It stated that 

‘‘[t]here can be many persons involved 

in an accident, such as the carrier, the 

owner of the goods, or agents of each of 

them,’’ and ‘‘duplicate reporting * * * 

could be confusing to those who may 

have to respond to an incident.’’

ATOFINA also stated that Louisiana’s 

immediate reporting requirement is 

impractical for ‘‘the manufacturer of the 

goods’’ that has made arrangements 

with the carrier ‘‘to make the immediate 

notification required under the federal 

regulations,’’ and that it is

impractical and a burden on interstate 

commerce to require a large national 

company to comply with a multitude of 

different reporting requirements in the 

different state jurisdictions, particularly 

those like Louisiana which impose the same 

duty on multiple parties. Procedures would 

become so cumbersome that ultimately they 

would not be useful at all.

In its rebuttal comments, ATOFINA 

urged that Louisiana’s immediate 

reporting requirement in La. R.S. 

32:1510A is preempted ‘‘as applied to 

persons other than carriers,’’ under the 

‘‘obstacle’’ test in 49 U.S.C. 5125(a)(2). 

ATOFINA acknowledged that ‘‘states 

are permitted to impose some 

notification requirements for emergency 

response purposes,’’ but these 

requirements ‘‘should not apply to 

persons other than the person who has 

possession or control of the leaking 

vehicle or container (i.e., the carrier).’’ It 

stated that ‘‘it is unclear how Louisiana 

defines ‘each person involved’ in a 

hazardous materials incident,’’ and 

concluded that, if it had not sent a 

representative to the incident scene and 

‘‘attempted to assist in the response 

effort, it would not have been fined.’’

ATOFINA stated that, in this manner, 

the immediate reporting requirement in 

La. R.S. 32:1510A ‘‘discourage[s] 

persons from responding to an incident 

involving the release of a hazardous 

substance.’’

ATOFINA also noted that the 

Louisiana State Police is ‘‘a non-911 

number and is not specified in the 

regulations.’’ It supported the position 

advanced by IME that requirements for 

telephone notification should be limited 

to ‘‘911’’ calls. IME stated that 

‘‘notifications to locally-specified 

telephone numbers is unacceptable in a 

transportation setting, and is a burden 

that is exacerbated for motor carriers 

that operate over irregular routes.’’ IME 

referred to the decision in Colorado 

Pub. Util. Comm’n v. Harmon, above, 

951 F.2d at 1578, that Federal hazardous 

material transportation law preempts a 

State requirement for a carrier of 

hazardous materials to carry the 

telephone number of the State Patrol in 

the vehicle because that requirement is 

not substantively the same as the 

shipping paper requirements in the 

HER. ATOFINA stated that it would be 

a ‘‘tremendous burden * * * to 

maintain and continuously update a 

directory of emergency numbers for 

more than 30,000 or so local 

jurisdictions,’’ and, without such a 

directory, ‘‘the carrier (and other 

entities, if required) would be forced to 

divert valuable resources away from 

responding to an incident in order to 

ensure compliance with local 

notification requirements.’’

In its comments, DISC stated that 

RSPA has previously stated that the 

immediate notification requirement in 

La. R.S. 32:1510A is not one of the 

subjects in 49 U.S.C. 5125(b)(1) where 

non-Federal requirements must be 

‘‘substantively the same as’’

requirements in the HMR. It referred to 

a brief filed by the United States (on 

behalf of DOT) in Union Pacific RR v.

California Pub. Util. Comm’n, No. C–

97–3660–THE (N.D. Cal.), which stated 

that ‘‘DOT interprets [the ‘substantively 

the same as’ test in] 49 U.S.C. 

5125(b)(1)(D), to preempt only state and 

local requirements to provide 

notification or reports in writing.’’ From 

the same brief, DPSC also quoted 

language in a 1990 report of the House 

Committee on Energy and Commerce 

concerning the nature of the provision 

in 49 U.S.C. 5125(b)(1)(D) that nonFederal requirements on the ‘‘[w]ritten 

notification, recording, and reporting of 

the unintentional release in 

transportation of hazardous materials’’

must be ‘‘substantively the same as’’

requirements in the HMR:

The oral notification and reporting of 

unintentional releases has specifically been 

excluded from this paragraph in order to 

permit State and local jurisdictions to 

develop the full range of possible alternatives 

in emergency response capabilities (such as 

requiring carriers to telephone local 

emergency responders).

In their comments, IME and NTTC 

raised questions about the definitions of 

‘‘hazardous materials’’ and ‘‘explosives’’

in La. R.S. 32:1502(5). As already 

discussed, IME argued that 

requirements to make immediate 

telephone notifications should be 

limited to ‘‘911’’ numbers, and that 

additional ‘‘locally-specified telephone 

numbers’’ constitute such a burden that 

RSPA should find that they are 

preempted under the ‘‘obstacle’’ test. 

IME commented that ATOFINA 

‘‘overreached in suggesting that’’ the 

‘‘substantively the same as’’ standard in 

49 U.S.C. 5125(b)(1)(D) applies to 

immediate telephone reports of 

hazardous materials incidents in 

transportation, in contrast to Louisiana’s 

written follow-up reporting 

requirements in La. R.S. 32:1510B & C, 

to which the ‘‘substantively the same 

as’’ standard applies. IME also stated 

that the exceptions in La. R.S. 32:1510E 

for incidents at fixed facilities involving 

certain materials have ‘‘no bearing on 

‘transportation-related releases’ ’’ which 

are covered under La. R.S. 32:1510A–C. 

NTTC argued that both the immediate 

telephonic and follow-up written 

reporting requirements are not 

‘‘substantively the same as’’ the 

requirements in the HMR because ‘‘the 

monetary thresholds for property 

damage(s) differ’’ Louisiana has 

exceptions for incidents involving 

certain materials that occur at a fixed 

facility; and the HMR require reports for 

incidents involving ‘‘etiologic agents, 

marine pollutants and transportation by 

aircraft not found within Louisiana’s 

rules.’’

C. Decision 

There does not appear to have been 

any change to the Louisiana incident 

reporting requirements that were 

previously considered in IR–31. 55 FR 

at 25582. In that decision (id.), RSPA 

carefully differentiated between 

immediate telephonic notification and 

follow-up written reports, as follows:

69680 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Notices 

Requirements for immediate telephonic 

hazardous materials transportation accident/

incident reports for emergency response 

purposes are generally consistent with the 

HMTA and the HMR. IR–2, IR–3, IR–28, all 

supra; National Tank Truck Carriers, Inc. v. 

Burke, 535 F. Supp. 509 (D.R.I. 1982), aff’d,

698 F.2d 559 (1st Cir. 1983).

* * * * *

Therefore, the State’s requirements for 

telephonic notification concerning hazardous 

materials incidents/accidents are consistent 

with the HMTA and the HMR. 

Furthermore, the provisions of State law 

which require the submission of written 

accident/incident reports, are redundant with 

Federal requirements (particularly 49 CFR 

171.16), tend to undercut compliance with 

the HMR requirements, and thus are 

inconsistent. IR–2, IR–3 (Decision on 

Appeal), all supra; IR–30, 55 FR 9676 (Mar. 

14, 1990), correction, 55 FR 12111 (Mar. 30, 

1990). This rationale also applies to 

requirements to provide copies of the 

incident reports filed with [RSPA]; as 

indicated in IR–3, supra, such a requirement 

is inconsistent but [RSPA] is prepared to 

routinely send copies of those reports to a 

designated state agency on request.

Additional explanation of RSPA’s 

decision in IR–31 is contained in the 

prior decisions cited in the above 

quotations. In IR–2, Rhode Island Rules 

and Regulations Governing the 

Transportation of Liquefied Natural Gas, 

etc., 44 FR 75566 (Dec. 20, 1979), RSPA 

stated that ‘‘when an accident does 

occur, response is, of necessity, a local 

responsibility’’ (id. at 75568), and that a 

State’s ‘‘requirement for immediate 

notification in certain situations furthers 

the State’s activity in protecting persons 

and property through emergency 

response measures.’’ Id. at 75572. 

RSPA’s findings in IR–2 were upheld in 

Federal court, which stated that, while 

‘‘[t]he need for uniform written report 

standards is imperative,’’ immediate 

‘‘emergency notice to the State Police 

* * * promotes the public safety by 

facilitating a prompt emergency 

response. * * * It is neither 

inconsistent nor in conflict with nor 

contrary to the purpose of Congressional 

policy.’’ National Tank Truck Carriers, 

Inc. v. Burke, 535 F. Supp. 509, 519 

(D.R.I. 1982), aff’d, 698 F.2d 559 (1st 

Cir. 1983). 

Similarly, in IR–3, City of Boston 

Rules Governing Transportation of 

Certain Hazardous Materials, etc., 46 FR 

18918 (Mar. 26, 1981), decision on 

administrative appeal, 47 FR 18457 

(Apr. 29, 1982), RSPA stated that:

For an incident that requires the City to 

undertake emergency response, we reiterate 

our agreement that the City must be able to 

require the carrier to notify it immediately. 

If the City wishes to conduct a thorough 

investigation of the events at the scene, it 

may do so then * * * For data the City 

thinks it must have immediately from the 

carrier, the appropriate time to acquire it is 

in the emergency response phase.

47 FR at 18462. On the other hand, 

‘‘[w]ritten incident reports * * * do not 

provide time-sensitive data,’’ and a State 

or local government is able to ‘‘directly 

access the computer data base where all 

of the information from written incident 

reports [to RSPA] is kept.’’ Id. RSPA 

concluded that:

If the City in fact intends to make serious 

use of the information in DOT incident 

reports, the effort to obtain it from [RSPA] 

should not be significant. Accordingly, we 

reaffirm our previous conclusion that 

Boston’s requirement that carrier submit 

written incident reports is redundant, 

unnecessary and inconsistent with the 

HMTA and the HMR. Id.

The different nature of immediate 

telephonic notification and follow-up written 

reports was specifically recognized in the 

amendments to the HMTA enacted in the 

Hazardous Materials Transportation Uniform 

Safety Act (HMTUSA) of 1990 (Pub. L. 101–

615, 104 Stat. 3244, Nov. 16, 1990). Section 

4 of HMTUSA amended the preemption 

provisions in the HMTA to provide that a 

State requirement on the ‘‘written 

notification, recording, and reporting of the 

unintentional release in transportation of 

hazardous materials’’ is preempted unless it 

is ‘‘substantively the same as’’ the Federal 

requirements in the HMR. 49 U.S.C. 

5125(b)(1)(D). However, ‘‘oral notification 

and reporting of unintentional releases’’ was 

‘‘specifically excluded’’ from Federal 

preemption ‘‘to permit State and local 

jurisdictions to develop the full range of 

possible alternative in emergency response 

capabilities.’’ H.R. Report No. 101–444, Part 

1, at 35 (Apr. 3, 1990). 

In the Union Pacific RR case, above, the 

court noted that ‘‘DOT has long construed the 

HMTA to preempt only state laws pertaining 

to written reports, and not those that require 

oral notice to local emergency response 

teams.’’ Order on Motion for 

Reconsideration, pp. 6–7 (slip op., Dec. 14, 

1998). The court found that the ‘‘notification 

and reporting’ subject area delineated in 49 

U.S.C. 5125(b)(1)(D) does not include the 

subject area of providing immediate verbal 

reports to local entities so that emergency 

personnel can effectively respond to a release 

or other incident involving the transportation 

of hazardous materials.’’ Id., p. 8. 

Accordingly, State requirements for 

immediate telephone notification of an 

accident or incident need not be 

‘‘substantively the same as’’ Federal 

requirements in the HMR, and these 

requirements are not ‘‘preempted as an 

‘obstacle’ since they do not interfere with the 

federal government’s ability to obtain prompt 

reports of serious accidents or to otherwise 

investigate those accidents and compile data 

for transportation planning.’’ Id.

There is no evidence that it is impossible 

for persons that are ‘‘involved’’ in an incident 

(or its cleanup) in Louisiana, in addition to 

the carrier or other person who had physical 

possession of the hazardous material at the 

time of the incident, to immediately notify 

DPSC. Nor is there evidence that requiring 

immediate notification by each person 

‘‘involved in an incident, accident, or the 

cleanup of an incident or accident’’ will 

interfere with either the specific notification 

requirements in the HMR or the safe 

transportation of hazardous materials overall. 

In a recent rulemaking, RSPA recognized that 

other persons who are not carriers (such as 

operators of transportation facilities) may 

have ‘‘physical control of a hazardous 

material when an incident occurs during 

transportation [and] should be responsible 

for reporting that incident.’’ See the preamble 

to the final rule in Docket No. RSPA–99–

5013 (HM–229), Revisions to Incident 

Reporting Requirements, etc., 68 FR 67746, 

67750 (Dec. 3, 2003), corrections, 69 FR 

30114 (May 26, 2004). Effective January 1, 

2005, the incident reporting requirements in 

49 CFR 171.15 and 171.16 will apply to the 

‘‘person in physical possession of the 

hazardous material’’ at the time of the 

incident. 68 FR at 67759. 

ATOFINA’s claim that Louisiana’s 

requirement is a ‘‘burden on interstate 

commerce’’ does not meet the preemption 

criteria in 49 U.S.C. 5125, for RSPA’s 

administrative determinations do not address 

issues of preemption arising under the 

Commerce Clause, except in the limited 

situations discussed in Part II (Federal 

Preemption), above. Additional issues raised 

by ATOFINA concerning the proper 

interpretation of the immediate reporting 

requirement in La. R.S. 32:1510A are for 

State administrative or judicial bodies to 

resolve, such as:

—Whether ATOFINA was considered to be 

‘‘involved’’ in the incident or its cleanup 

as the shipper of the ethyl acrylate, or only 

when its representative arrived at the 

incident scene about five hours after 

learning of the incident; 

—whether timely telephone notification by 

the carrier (BNSF) or ATOFINA’s agent 

(StanTrans), on behalf of ATOFINA, would 

satisfy an obligation for ATOFINA to 

‘‘immediately’’ telephone DPSC; 

—whether notification within five hours of 

learning of the incident satisfies the 

requirement to ‘‘immediately’’ notify DPSC 

of the accident, and whether telephonic 

notification is still required once the State 

Police have arrived at the scene of the 

incident; and 

—whether there is sufficient notice of the 

‘‘non-911’’ telephone number to satisfy 

substantive due process requirements.

It is the role of the State, not RSPA, to 

interpret and apply its own requirements 

and, moreover, ‘‘isolated instances of 

improper enforcement (e.g., misinterpretation 

of regulations) do not render such provisions 

inconsistent.’’ IR–31, above, 55 FR at 25584. 

Thus, ‘‘[a]s a general matter, an inconsistent 

or erroneous interpretation of a non-Federal 

[statute or] regulation should be addressed to 

the appropriate State or local forum.’’ PD–

14(R), Houston, Texas, Fire Code 

Requirements, etc., 63 FR 67506, 67510 n.4 

(Dec. 7, 1998), decision on petition for 

reconsideration, 64 FR 33949 (June 24, 1999). 

In making administrative determinations of 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Notices 69681

1 In a decision in this proceeding served on 

November 22, 2004, the Board granted a request by 

INRD for waiver of the 60-day advance labor notice 

requirement of 49 CFR 1150.42(e).

2See The Indiana Rail Road Company—

Operation Exemption—Monon Rail Preservation 

Corporation, STB Finance Docket No. 33670 (STB 

served Feb. 21, 2001).

preemption, RSPA’s role to is to interpret and 

clarify the Federal-State relationship in the 

regulation of hazardous materials 

transportation, ‘‘within the rule-making 

process lying at the center of the 

responsibilities of federal executive 

agencies,’’ and not to ‘‘adjudicate’’ specific 

cases as a substitute for (or reviewing the 

decision of) the cognizant State or local 

forum. Tennessee v. U.S. Department of 

Transportation, 326 F3d 729, 736 (6th Cir.), 

cert. denied, ll U.S., lll, 124 S.Ct. 464 

(2003). There is also no basis for finding that 

Louisiana’s interpretation of ‘‘immediately’’

in La. R.S. 32:1510A must be the same as the 

standard of ‘‘no later than 12 hours after the 

occurrence’’ adopted in the revisions to 49 

CFR 171.15(a) in HM–229. 68 FR at 67759. 

In the HM–229 rulemaking, RSPA 

considered, and declined to adopt, the 

recommendation of the American Trucking 

Associations, Inc. ‘‘to incorporate one-call 

notification for both local and national 

requirements’’ for immediate notification of 

an incident involving hazardous material in 

transportation. In the preamble to the final 

rule, RSPA stated that, ‘‘In the case of any 

incident involving hazardous materials that 

requires immediate emergency response, the 

local authorities should be immediately 

notified.’’ Id. at 67750. While ‘‘contacting 

emergency response entities may be of 

primary concern immediately following an 

incident * * * notification of federal 

authorities through the NRC [National 

Response Center] is also essential.’’ Id. at 

67752. RSPA also noted that it ‘‘has a system 

for identifying duplicative reporting,’’ id. at 

67751, and we must assume that DPSC is 

able to deal with the possibility of duplicate 

reports without being confused, as ATOFINA 

seems to fear. In any event, that potential 

concern does not create an ‘‘obstacle’’ to 

accomplishing and carrying out Federal 

hazardous material transportation law or the 

HMR. 

There is also insufficient information to 

find it is impossible to comply with a State 

or local requirement to call a ‘‘non-911’’

number for emergency response, or that this 

requirement will frustrate the Federal law or 

regulations. In its comments to the docket in 

HM–229, Norfolk Southern Railway 

Company asked RSPA to confirm that it is 

not ‘‘the specific individual in physical 

control of the hazardous materials (who 

could be the engineer or conductor)’’ who 

must make the telephone call. ‘‘In other 

words, carriers can continue their existing 

practice of designating persons within the 

company to make such calls (such as the 

Chief Dispatcher or the Control Center) and 

file the follow-up written reports.’’ In this 

circumstance, it would not be practicable to 

limit immediate telephone reporting to ‘‘911’’

numbers because, whenever the designated 

company representative (such as the Chief 

Dispatcher or Control Center, as suggested by 

Norfolk Southern) is located at a distance 

from the scene of the incident, its call to a 

local ‘‘911’’ number would not reach the 

appropriate emergency response personnel. 

In the absence of information to the contrary, 

it must be assumed that a designated 

company representative is able to obtain and 

contact the required emergency response 

telephone number within a brief period of 

time after learning of an incident involving 

hazardous materials in transportation, 

without diverting resources from responding 

to the incident. It must also be assumed that 

a call to the local ‘‘911’’ number in the 

vicinity of the incident would yield the 

appropriate ‘‘non-911’’ telephone number of 

the State Police or other agency required to 

be notified. 

In sum, RSPA’s prior decisions make it 

clear that a State’s immediate notification 

requirement need not be ‘‘substantively the 

same as’’ 49 CFR 171.15, as the Union Pacific

case recognized. ATOFINA’s application and 

the other comments submitted in this 

proceeding do not show that it is impossible 

for persons that are ‘‘involved’’ in an incident 

(or its clean-up) in Louisiana to immediately 

notify DPSC, in addition to (and perhaps 

before) making the required telephonic 

notification to the National Response Center 

under 49 CFR 171.15. There is also 

insufficient information to find that La. R.S. 

32:1510A as enforced and applied, to require 

another person besides the carrier to provide 

immediate telephonic notification of an 

incident, is an ‘‘obstacle’’ to accomplishing 

and carrying out Federal hazardous material 

transportation law, the HMR, or a DHS 

security regulation or directive. 

IV. Ruling 

For all the reasons set forth above and in 

IR–31, Federal hazardous material 

transportation law: (1) Does not preempt 

Louisiana’s immediate telephone notification 

requirement in La. R.S. 32:1510A, and (2) 

preempts Louisiana’s written incident 

reporting requirement in La. R.S. 32:1510B & 

C. 

V. Petition for Reconsideration/Judicial 

Review 

In accordance with 49 CFR 107.211(a), any 

person aggrieved by this decision may file a 

petition for reconsideration within 20 days of 

publication of this decision in the Federal 

Register. Any party to this proceeding may 

seek review of RSPA’s decision ‘‘in an 

appropriate district court of the United States 

* * * not later than 60 days after the 

decision becomes final.’’ 49 U.S.C. 5125(f). 

This decision will become RSPA’s final 

decision 20 days after publication in the 

Federal Register if no petition for 

reconsideration is filed within that time. The 

filing of a petition for reconsideration is not 

a prerequisite to seeking judicial review of 

this decision under 49 U.S.C. 5125(f). 

If a petition for reconsideration of this 

decision is filed within 20 days of 

publication in the Federal Register, the 

action by RSPA’s Associate Administrator for 

Hazardous Materials Safety on the petition 

for reconsideration will be RSPA’s final 

decision. 49 CFR 107.211(d).

Issued in Washington, DC on November 22, 

2004. 

Robert A. McGuire, 

Associate Administrator for Hazardous 

Materials Safety.

[FR Doc. 04–26352 Filed 11–29–04; 8:45 am] 

BILLING CODE 4910–60–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board 

[STB Finance Docket No. 34531] 1

The Indiana Rail Road Company—

Acquisition Exemption—Line of Monon 

Rail Preservation Corporation 

The Indiana Rail Road Company 

(INRD), a Class III rail carrier, has filed 

a verified notice of exemption under 49 

CFR 1150.41 to acquire from Monon 

Rail Preservation Corporation (Monon), 

approximately 3.98 miles of rail line 

between milepost Q217.67 at Hunters, 

IN, and milepost Q213.69 at Ellettsville, 

IN, in Monroe County, IN. In 2001, 

INRD entered into an operating 

agreement with Monon, whereby INRD 

became the operator of the line.2

INRD certifies that its projected 

annual revenues as a result of this 

transaction will not result in the 

creation of a Class I or Class II rail 

carrier. 

INRD indicates that the parties would 

like to consummate the transaction on 

or shortly after December 6, 2004. 

If the notice contains false or 

misleading information, the exemption 

is void ab initio. Petitions to revoke the 

exemption under 49 U.S.C. 10502(d) 

may be filed at any time. The filing of 

a petition to revoke will not 

automatically stay the transaction. 

An original and 10 copies of all 

pleadings, referring to STB Finance 

Docket No. 34531, must be filed with 

the Surface Transportation Board, 1925 

K Street, NW., Washington, DC 20423–

0001. In addition, one copy of each 

pleading must be served on John 

Broadley, 1054 31st Street, NW., Suite 

200, Washington, DC 20007. 

Board decisions and notices are 

available on our Web site at

http://www.stb.dot.gov.

Decided: November 22, 2004.

By the Board, David M. Konschnik, 

Director, Office of Proceedings. 

Vernon A. Williams, 

Secretary.

[FR Doc. 04–26301 Filed 11–29–04; 8:45 am] 

BILLING CODE 4910–01–P