[Federal Register Volume 65, Number 201 (Tuesday, October 17, 2000)]
[Notices]
[Pages 61370-61373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25589]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. RSPA-00-7906 (PDA-27(R))]


Application by ATOFINA Chemicals, Inc. for a Preemption 
Determination as to Louisiana Requirements for Hazardous Materials 
Incident Notification

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Public notice and invitation to comment.

-----------------------------------------------------------------------

SUMMARY: Interested parties are invited to submit comments on an 
application by ATOFINA Chemicals, Inc. (ATOFINA) for an administrative 
determination whether Federal hazardous material transportation law 
preempts certain Louisiana requirements concerning hazardous materials 
incident notification and reporting.

DATES: Comments received on or before December 1, 2000, and rebuttal 
comments received on or before January 16, 2001, 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 in 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 must refer to Docket No. RSPA-00-7906 and may be submitted 
to the Dockets Office either in writing or electronically. Send three 
copies of each written comment to the Dockets Office at the above 
address. If you wish to receive confirmation of receipt of your 
comments, include a self-addressed, stamped postcard. To submit 
comments electronically, log onto the Docket Management System website 
at ``http://dms.dot.gov'' and click on ``Help & Information'' to obtain 
instructions.
    A copy of each comment must also be sent to (1) Ms. Karen P. Flynn, 
Associate General Counsel, ATOFINA Chemicals, Inc., 2000 Market Street, 
Philadelphia, PA 19103-3222, and (2) Mr. Paul Schexnayder (Attorney 3), 
State of Louisiana, Department of Public Safety and Corrections, Office 
of Legal Affairs, P.O. Box 66614, Baton Rouge, LA 70896-6614. 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 Ms. Flynn and Mr. 
Schexnayder 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 issued, are available through the home page of RSPA's 
Office of the Chief Counsel, at ``http://rspa-atty.dot.gov.'' You may 
obtain a paper copy of this list and index by contacting Donna O'Berry 
by mail or telephone as provided below under the heading ``For Further 
Information Contact.''

FOR FURTHER INFORMATION CONTACT: Donna L. O'Berry, Office of the Chief 
Counsel, Research and Special Programs Administration, 400 Seventh 
Street, SW., Washington, DC 20590-0001 (Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:

I. Application for a Preemption Determination

    ATOFINA has applied for a determination that Federal hazardous 
material transportation law, 49 U.S.C. 5101 et seq., preempts the 
requirements in Title 32 section 1510 of Louisiana Revised Statutes 
(32:1510) applicable to the oral and written reporting of incidents, 
accidents and cleanups. The text of ATOFINA's application is set forth 
in Appendix A to this Notice. A paper copy of ATOFINA's application 
(which has been placed in the public docket) 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.
    In the application for preemption, ATOFINA's challenges section 
32:1510, which provides, in part, that:

    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

[[Page 61371]]

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 identity and classification of the 
material, and any other pertinent details.
    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.

    ATOFINA argues that the reporting requirements in section 32:1510 
are preempted because they concern ``the written notification, 
recording, and reporting of the unintentional release in transportation 
of hazardous material'' and are not substantively the same as the 
requirements in 49 CFR 171.15 and 171.16. Section 171.15 contains the 
Federal requirements for immediate notification of certain hazardous 
materials incidents, and Sec. 171.16 contains the Federal requirements 
for submitting detailed hazardous materials incident reports to DOT. 
ATOFINA states that Secs. 171.15 and 171.16 require the carrier to 
provide immediate notification of certain hazardous materials 
incidents, whereas Louisiana's statute is much broader and requires 
that each person involved in certain hazardous material incidents or 
accidents immediately notify the state. ATOFINA asserts that there can 
be many persons involved in an incident, such as a carrier or the owner 
of the goods, and that this ``duplicate reporting'' could be confusing 
to the people responding to the incident. Finally, ATOFINA contends 
that it is impractical to apply section 32:1510 to manufacturers and 
that it will be difficult for manufacturers to comply with the 
requirement. ATOFINA contends that manufacturers and carriers do make 
arrangements to ensure that the carrier has the responsibility for 
making the immediate notification required under Federal regulations.
    ATOFINA indicates that it has received a Notice of Violation of 
section 32:1510 from the Louisiana State Police. ATOFINA states that it 
believed the carrier would make the notification since the carrier was 
directly involved with the incident. ATOFINA argues that to the extent 
Louisiana believes that immediate notification is necessary for 
emergency response purposes, the State's concern is satisfied by 
imposing the immediate notification requirement on the carrier and not 
on each person involved in the incident. ATOFINA asserts 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 different jurisdictions, particularly those which 
impose the same duty on multiple parties.

II. Federal Preemption

    Section 5125 of Title 49 U.S.C. contains the preemption provisions 
that are relevant to ATOFINA'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 reflect 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. 93-633 112(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.

    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).
    These preemption provisions in 49 U.S.C. 5125 carry out Congress' 
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, Congress revised, codified and

[[Page 61372]]

enacted the HMTA ``without substantive change,'' at 49 U.S.C. Chapter 
51. Pub. L. 103-272, 108 Stat. 745.)

III. Preemption Determinations

    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 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(d). A short period of time is allowed for filing 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 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. 
13132, entitled ``Federalism'' (64 FR 43255, August 4, 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 of Congress intent 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.

IV. Public Comment

    All comments should be limited to the issue of whether 49 U.S.C. 
5125 preempts the Louisiana requirements applicable to the oral and 
written reporting of certain hazardous materials incidents. Comments 
should specifically address the preemption criteria detailed in Part 
II, above, and set forth in detail the manner in which the Louisiana 
requirements are applied and enforced.
    Persons intending to comment should review the standards and 
procedures governing consideration of applications for preemption 
determinations, set forth at 49 CFR 107.201-107.211.

    Issued in Washington, DC, on September 29, 2000.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety, Research and 
Special Programs Administration.

Appendix A

August 30, 2000

Associate Administrator for Hazardous Materials Safety, Research 
and Special Programs Administration, U.S. Department of 
Transportation, Washington, DC 20590-0001, Attn: Hazardous 
Materials Preemption Docket

    Dear Sir or Madam: Enclosed is ATOFINA Chemicals, Inc.'s 
Application for Determination of Preemption. If you need additional 
information, please feel free to contact me.
        Sincerely,
Karen P. Flynn,
Associate General Counsel.

cc: William Oister (w/ encl.)
    Andrea E. Utecht, Esq., (w/o encl.)

Application for Determination of Preemption

    Pursuant to 49 CFR 107.203, ATOFINA Chemicals, Inc. (formerly 
known as Elf Atochem North America, Inc.) is making an application 
for a determination that 49 CFR 171.15 and 171.16 preempt La. R. S. 
Sec. 32:1510.

I. Applicable State Statute

    La. R. S. Sec. 32:1510 states as follows:

Reporting of Incidents, Accidents, and Cleanups

    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 identity and classification of the 
material, and any other pertinent details.
    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.
    D. The secretary shall adopt and promulgate rules and 
regulations in accordance with the Administrative Procedures Act to 
coordinate the implementation of a Transportation emergency response 
system.
    E. 1. Notwithstanding any other provision of law to the 
contrary, the provisions of this Section shall not apply to any 
incidents, accidents, or cleanup of incidents or accidents that 
occur within a facility that is subject to the release reporting 
requirements of R.S. 30:2373(B) and is engaged in activities defined 
or classified under one or more of the following subsectors, 
industry groups, or industries of the 1997 North American Industry 
Classification System (NAICS):
    a. 211 (oil and gas extraction).
    b. 22111 (electric power generation).
    c. 3221 (pulp, paper and paperboard mills).
    d. 324 (petroleum and coal products manufacturing).
    e. 325 (chemical manufacturing).
    f. 326 (plastics and rubber products manufacturing).
    g. 331 (primary metal manufacturing).
    h. 4953 (refuse systems).
    i. 4212 (local trucking without storage).
    j. 4789 (trucking without storage).
    2. Notwithstanding the provisions of Paragraph 1 of this 
Subsection, this Section shall apply to any carrier involved in any 
incident, accident, or clean up of an incident or accident which 
occurs outside the perimeter of any facility exempted from this 
Section pursuant to Paragraph 1 of this Subsection.
    3. The secretary may develop rules and regulations to implement 
and clarify the reporting requirements of this Subsection and to 
address any changes in federal law, rules, or regulations.

II. Applicable Federal Regulations

    Section 171.15 of Title 49 of the Code of Federal Regulations 
provides as follows:

Sec. 171.15  Immediate notice of the certain hazardous materials 
incidents.

    (a) At the earliest practicable moment, each carrier who 
transports hazardous materials (including hazardous wastes) shall 
give notice in accordance with paragraph
    (b) of this section after each incident that occurs during the 
course of transportation (including loading, unloading and temporary 
storage) in which--
    (1) As a direct result of hazardous materials--
    (i) A person is killed; or
    (ii) A person received injuries requiring his or her 
hospitalization; or
    (iii) Estimated carrier or other property damage exceeds 
$50,000; or

[[Page 61373]]

    (iv) An evacuation of the general public occurs lasting one or 
more hours; or
    (v) One or more major transportation arteries or facilities are 
closed or shut down for one hour or more; or
    (vi) The operational flight pattern or routine of an aircraft is 
altered; or
    (2) Fire, breakage, spillage, or suspected radioactive 
contamination occurs involving shipment of radioactive material (see 
also Secs. 174.45, 176.48, and 177.807 of this subchapter); or
    (3) Fire, breakage, spillage, or suspected contamination occurs 
involving shipment of infectious substances (etiologic agents); or
    (4) There has been a release of a marine pollutant in a quantity 
exceeding 450 L (119 gallons) for liquids or 400 kg (882 pounds) for 
solids; or
    (5) A situation exists of such a nature (e.g., a continuing 
danger to life exists at the scene of the incident) that, in the 
judgment of the carrier, it should be reported to the Department 
even though it does not meet the criteria of paragraph (a) (1), (2) 
or (3) of this section.
    (b) Except for transportation by aircraft, each notice required 
by paragraph (a) of this section shall be given to the Department by 
telephone (toll-free) on 800-424-8802. Notice involving shipments 
transported by aircraft must be given to the nearest FAA Civil 
Aviation Security Office by telephone at the earliest practical 
moment after each incident in place of the notice to the Department. 
Notice involving etiologic agents may be given to the Director, 
Centers for Disease Control, U. S. Public Health Service, Atlanta, 
GA (800) 232-0124, in place of the notice to the Department or (toll 
call) on 202-267-2675. Each notice must include the following 
information:
    (1) Name of reporter;
    (2) Name and address of carrier represented by reporter;
    (3) Phone number where reporter can be contacted;
    (4) Date, time, and location of incident;
    (5) The extent of injuries, if any;
    (6) Classification, name, and quantity of hazardous materials 
involved, if such information is available;
    (7) Type of incident and nature of hazardous material 
involvement and whether a continuing danger to life exists at the 
scene.
    (c) Each carrier making a report under this section shall also 
make the report required by Sec. 171.16.
    Section 171.16 of Title 49 of the Code of Federal Regulations 
provides as follows:

Sec. 171.16  Detailed hazardous materials incident reports.

    (a) Each carrier who transports hazardous materials shall report 
in writing, in duplicate, on DOT Form F 5800.1 (Rev. 6/89) to the 
Department within 30 days of the date of discovery, each incident 
that occurs during the course of transportation (including loading, 
unloading, and temporary storage) in which any of the circumstances 
set forth in 171.15(a) occurs or there has been an unintentional 
release of hazardous materials from a package (including a tank) or 
any quantity of hazardous waste has been discharged during 
transportation. If a report pertains to a hazardous waste discharge:
    (1) A copy of the hazardous waste manifest for the waste must be 
attached to the report; and
    (2) An estimate of the quantity of the waste removed from the 
scene, the name and address of the facility to which it was taken, 
and the manner of disposition of any removed waste must be entered 
in Section IX of the report form (Form F 5800.1) (Rev. 6/89).
    (b) Each carrier making a report under this section shall send 
the report to the Information Systems Manager, DHM-63, Research and 
Special Programs Administration, Department of Transportation, 
Washington, DC 20590-0001; and, for incidents involving 
transportation by aircraft, a copy of the report shall also be sent 
to the FAA Civil Aviation Security Office nearest the location of 
the incident. A copy of the report shall be retained for a period of 
two years, at the carrier's principal place of business, or at other 
places as authorized and approved in writing by an agency of the 
Department of Transportation.
    (c) Except as provided in paragraph (d) of this section, the 
requirements of paragraph (a) of this section do not apply to 
incidents involving the unintentional release of a hazardous 
material--
    (1) Transported under one of the following proper shipping 
names:
    i. Consumer commodity;
    ii. Battery, electric storage, wet, filled with acid or alkali;
    iii. Paint and paint related material when shipped in packaging 
of five gallons or less.
    (2) Prepared and transported as a limited quantity shipment in 
accordance with this subchapter .
    (d) The exceptions to incident reporting provided in paragraph 
(c) of this section do not apply to:
    (1) Incidents required to be reported under Sec. 171.15(a);
    (2) Incidents involving transportation aboard aircraft;
    (3) Except for consumer commodities, materials in Packing Group 
I; or
    (4) Incidents involving the transportation of hazardous waste.

III. Basis for Preemption

    Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-federal 
requirement concerning ``(D) the written notification, recording, 
and reporting of the unintentional release in transportation of 
hazardous material'' is preempted if ``it is not substantively the 
same as'' a provision of federal transportation law or a regulation 
prescribed under that law. La. R. S. Sec. 32:1510 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.
    The federal regulations in 49 CFR 171.15 and 171.16 clearly 
require ``the carrier'' to fulfill the immediate reporting 
requirements for hazardous material accidents. The Louisiana statute 
is much broader and requires that ``each person involved in an 
incident'' make an immediate report to the state police. There can 
be many persons involved in an incident, such as the carrier, the 
owner of the goods, or agents of each of them. Thus, the Louisiana 
statute requires duplicate reporting which could be confusing to 
those who may have to respond to the incident. From the standpoint 
of the manufacturer of the goods, it is an impractical regulation 
and will be difficult to achieve compliance. Arrangements are made 
between the manufacturer and the carrier to make sure that the 
carrier has the responsibility to make the immediate notification 
required under the federal regulations. The Louisiana requirement is 
much broader than the applicable federal requirement. Thus, La. R.S. 
Sec. 32:1510 does not ``conform in every significant respect to the 
Federal requirement,'' 49 CFR 107.202(d). As such, it is not 
substantively the same and should be preempted.
    ATOFINA Chemicals, Inc. requests this preemption determination 
because it received a Notice of Violation from the Louisiana State 
Police identifying a violation of La. R. S. Sec. 32:1510. For the 
incident in question, ATOFINA believed that the carrier would make 
any necessary notification since it was directly present on the 
scene. Thus, 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 and who would 
be making a notification based on second hand information received 
from those at the scene. It would be 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's 
which impose the same duty on multiple parties. Procedures would 
become so cumbersome that ultimately they would not be useful at 
all. Therefore, ATOFINA Chemicals, Inc. requests that a 
determination be made that La. R. S. Sec. 32:1510 is preempted by 49 
CFR 171.15 and 171.16.
[FR Doc. 00-25589 Filed 10-16-00; 8:45 am]
BILLING CODE 4910-60-P