60238 Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Notices

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety

Administration

[Docket No. NHTSA 99–6207, Notice 2]

Bombardier Motor Corporation of

America, Inc.; Grant of Application for

Decision of Inconsequential

Noncompliance

This notice grants the application by

Bombardier Motor Corporation of

America, Inc. (BMCA) to be exempted

from the notification and remedy

requirements of 49 U.S.C. 30118 and

30120 for vehicles that fail to comply

with Federal Motor Vehicle Safety

Standard (FMVSS) No. 209, Seat Belt

Assemblies. By not complying with

FMVSS No. 209, the vehicles also fail to

comply with FMVSS No. 500, Low

Speed Vehicles. BMCA has filed an

appropriate report pursuant to 49 CFR

Part 573 ‘‘Defect and Noncompliance

Reports.’’ BMCA has also applied under

49 CFR Part 556 to be exempted from

the notification and remedy

requirements of 49 U.S.C. Chapter 301

‘‘Motor Vehicle Safety.’’ The basis of the

petition is that the noncompliance is

claimed to be inconsequential to motor

vehicle safety.

Notice of receipt of the application

was published in the Federal Register

November 8, 1999 and an opportunity

afforded for comment (64 FR 61178).

The comment closing date was

December 9, 1999.

No comments were received.

Background

BMCA is a Delaware corporation with

its principal place of business at 730

East Strawbridge Avenue, Melbourne,

FL 32901. BMCA is the importer

(manufacture) of a Low-Speed Vehicle

(‘‘LSV’’) under the brand name

Bombardier NV neighborhood vehicle.

This vehicle is built by Bombardier,

Inc., in Canada. On May 6, 1999, BMCA

sent the National Highway Traffic Safety

Administration (NHTSA) a letter

pursuant to Title 49, Part 573 of the

Code of Federal Regulations, for the

purpose of reporting to NHTSA a

noncompliance with FMVSS No. 209,

S4.1(j)—‘‘Marking.’’ FMVSS No. 500

Low-Speed Vehicles, requires vehicles

such as the Bombardier NV to be

equipped with seat belt assemblies that

comply with FMVSS No. 209.

FMVSS No. 209 S4.1 (j) requires that

each seat belt assembly be permanently

and legibly marked or labeled with the

year of manufacture, model, and name

or trademark of manufacturer or

distributor, or of importer if

manufactured outside the United States.

The seat belt assemblies, manufactured

by Good Success Corporation, model

AB401 (309), installed in Bombardier

NVs sold between June 17, 1998 and

April 9, 1999 do not have the requisite

marking or labeling. With the exception

of the marking, the seat belt assemblies

in question are said to comply fully

with FMVSS No. 209.

Bombardier argues that, because the

labeling noncompliance has no bearing

on the materials or performance

standards specified in FMVSS No. 209,

all the seat belt assemblies in question

were properly installed as original

equipment, and BMCA’s replacement

part system would preclude the

purchase and installation of an

improper replacement seat belt

assembly for a Bombardier NV, the

noncompliance poses no motor vehicle

safety risk.

Discussion

NHTSA has reviewed BMCA’s

application and, for the reasons

discussed below, has decided that the

noncompliance of the BMCA seat belt

assemblies and the Bombardier NVs

with the specified labeling

requirements, is inconsequential to

motor vehicle safety. Included in the

petition was a letter from Erlin, Himes

Associates to the seat belt assembly

manufacturer, Good Success

Corporation, indicating that the seat belt

assemblies tested meet the performance

requirements of FMVSS No. 209 for the

type of seat belt assemblies tested.

NHTSA agrees that the lack of the

correct label would not have any effect

on occupant safety in these

circumstances. BMCA produces only

one vehicle model for highway use, and

there is only one model of seat belt

retractor for these vehicles. Therefore, it

is highly unlikely that the wrong

assemblies will be provided for

replacement.

NHTSA has granted similar petitions

for noncompliance with seat belt

assembly labeling standards. See,

generally, TRW, Inc., Dkt. No. 92–67;

Notice 2, 58 FR 7171 (1993); Chrysler

Corporation, Dkt. No. 92–94–No.2, 57

Fed. Reg. 45,865 (1992). In both of these

cases, the petitioners demonstrated that

the noncompliant seatbelt assemblies

were properly installed, and due to their

respective replacement parts ordering

systems, improper replacement seat belt

assembly selection and installation

would not be likely to occur.

In consideration of the foregoing,

NHTSA has decided that the applicant

has met its burden of persuasion that

the noncompliance that it describes is

inconsequential to safety. The

determination is limited to the vehicles

and equipment covered by the Part 573

report.

Accordingly, BMCA’s application is

granted, and it is exempted from

providing the notification of

noncompliance that is required by 49

U.S.C. 30118, and from remedying the

noncompliance, as required by 49

U.S.C. 30120. All products

manufactured or sold on and after the

April 9, 1999, including any

replacement seat belt assemblies, must

comply fully with the requirements of

FMVSS Nos. 500 and 209.

Authority: 49 U.S.C. 30118, 30120;

delegations of authority at 49 CFR 1.50 and

49 CFR 501.8.

Issued on: October 4, 2000.

Stephen R. Kratzke,

Associate Administrator for Safety

Performance Standards.

[FR Doc. 00–25972 Filed 10–6–00; 8:45 am]

BILLING CODE 4910–59–P

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

[Preemption Determination No. PD–13(R);

Docket No. RSPA–97–2581 (PDA–16(R))]

Nassau County, New York, Ordinance

on Transportation of Liquefied

Petroleum Gases

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Decision on petition for

reconsideration of administrative

determination of preemption.

Petitioner: New York Propane Gas

Association (NYPGA)

Local Laws Affected: Nassau County,

New York, Ordinance No. 344–1979,

Sections 6.7(A) & (B) and Section 6.8.

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: Highway.

SUMMARY: Based on additional

information provided by NYPGA and

persons submitting comments on

NYPGA’s petition for reconsideration,

RSPA finds that the requirement in

Sections 6.7(A) and (B) of Ordinance

No. 344–1979 for a permit to deliver

liquefied petroleum gas (LPG) within

Nassau County is preempted with

respect to trucks that are based outside

of Nassau County. As applied to and

enforced against those vehicles, that

requirement causes unnecessary delays

in the transportation of hazardous

Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Notices 60239

materials to Nassau County from

locations outside the County and,

accordingly, creates an obstacle to

accomplishing and carrying out Federal

hazardous material transportation law

and the HMR. Nassau County’s permit

requirement does not create

unnecessary delays in the transportation

of hazardous materials, and is not

preempted, with respect to trucks that

are based within Nassau County.

No person requested reconsideration

of that part of RSPA’s August 25, 1998

determination which found that Federal

hazardous material transportation law

preempts Section 6.8 of Ordinance No.

344–1979 for a certificate of fitness,

insofar as that requirement is applied to

a motor vehicle driver who sells or

delivers LPG, because Section 6.8

imposes more stringent training

requirements than provided in the

HMR.

This decision constitutes RSPA’s final

action on NYPGA’s application for a

determination that Federal hazardous

material transportation law preempts

Sections 6.7(A) and (B) and 6.8 of

Nassau County Ordinance No. 344–

1979.

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, telephone

202–366–4400.

SUPPLEMENTARY INFORMATION:

I. Background

A. Preemption Determination (PD) No.

13(R)

NYPGA applied for a determination

that Federal hazardous material

transportation law preempts Sections

6.7(A) and (B) and Section 6.8 of Nassau

County, New York, Ordinance No. 344–

1979, concerning Fire Department

permits and ‘‘certificates of fitness’’ for

the delivery of liquefied petroleum gas

(LPG) within Nassau County. RSPA

published the text of NYPGA’s

application in the Federal Register and

invited interested parties to comment.

62 FR 61661 (June 10, 1997). Comments

were received from the National

Propane Gas Association, National Tank

Truck Carriers, Inc. (NTTC), New York

State Motor Truck Association, Star-Lite

Propane Gas Corp. (Star-Lite), the

Association of Waste Hazardous

Materials Transporters (AWHMT), and

Nassau County. NYPGA submitted

rebuttal comments.

On August 25, 1998, RSPA published

in the Federal Register its

determination that the requirement in

Section 6.8 for a certificate of fitness is

preempted, insofar as that requirement

is applied to a motor vehicle driver who

sells or delivers LPG, because Section

6.8 imposes on drivers of motor vehicles

used to deliver LPG more stringent

training requirements than provided in

the HMR. PD–13(R), 63 FR 45283.

At the same time, RSPA concluded

that there was insufficient information

to find that Federal hazardous material

transportation law preempts the

requirement in Sections 6.7(A) and (B)

of Ordinance No. 344–1979 for a permit

to pick up or deliver LPG within Nassau

County. NYPGA’s application and the

comments failed to show that: (1) the

inspection and fee required to obtain a

permit cause an unnecessary delay in

the transportation of hazardous

materials; (2) the permit fee is unfair or

used for purposes other than relating to

transporting hazardous materials,

including enforcement and planning,

developing, and maintaining a

capability for emergency response; or (3)

the permit sticker is a labeling or

marking of hazardous material within

the meaning and intent of the HMR’s

hazard communication requirements.

Id.

In Part I.B. of its August 25, 1998

determination, RSPA explained that

propane is a form of LPG that is used

throughout the United States for home

and commercial heating and cooking, in

agriculture, in industrial processing,

and as a clean-air alternative fuel for

both over-the-road vehicles and

industrial lift trucks. 63 FR at 45284.

Many propane gas dealers are small

businesses that serve customers within

50 miles, although larger dealers may

deliver to customers farther away. Id.

Because New York has adopted the

HMR as State law, any company that

delivers propane in Nassau County has

long been subject to the HMR’s

substantive requirements, even if that

company was an intrastate carrier and

not directly governed by the HMR

before October 1, 1998. Id.

In Part I.C. of PD–13(R), RSPA

discussed the standards for making

determinations of preemption under the

Federal hazardous material

transportation law. 63 FR at 45284–85.

As RSPA explained, unless there is

specific authority in another Federal

law or DOT grants a waiver, a local (or

other non-Federal) requirement is

preempted if:

—it is not possible to comply with both

the local requirement and a

requirement in the Federal hazardous

material transportation law or

regulations;

—the local requirement, as applied or

enforced, is an ‘‘obstacle’’ to the

accomplishing and carrying out of the

Federal hazardous material

transportation law or regulations; or

—the local requirement concerns any of

five specific subjects and is not

‘‘substantively the same as’’ a

provision in the Federal hazardous

material transportation law or

regulations. Among these five subjects

are ‘‘the designation, description, and

classification of hazardous material’’

and the labeling or marking of

hazardous material or a packaging or

container certified as ‘‘qualified for

use in transporting hazardous

material.’’

See 49 U.S.C. 5125(a) & (b).

In addition, a State, political

subdivision, or Indian tribe may impose

a fee related to transporting hazardous

material ‘‘only if the fee is fair and used

for a purpose relating to transporting

hazardous material, including

enforcement and planning, developing,

and maintaining a capability for

emergency response.’’ 49 U.S.C.

5125(g)(1).

These preemption provisions stem

from congressional findings that State

and local laws which vary from Federal

hazardous material transportation

requirements can create ‘‘the potential

for unreasonable hazards in other

jurisdictions and confounding shippers

and carriers which attempt to comply

with multiple and conflicting * * *

regulatory requirements,’’ and that

safety is advanced by ‘‘consistency in

laws and regulations governing the

transportation of hazardous materials.’’

Pub. L. 101–615 §§ 2(3) & 2(4), 104 Stat.

3244.

RSPA also explained that its

‘‘[p]reemption determinations do not

address issues of preemption under the

Commerce Clause of the Constitution or

under statutes other than the Federal

hazardous material transportation law

unless it is necessary to do so in order

to determine whether a requirement is

authorized by another Federal law.’’ 63

FR at 45285.

B. Petition for Reconsideration and

Further Submissions

Within the 20-day time period

provided in 49 CFR 107.211(a), NYPGA

filed a petition for reconsideration of

RSPA’s determination in PD–13(R) that

there was insufficient information to

find that Federal hazardous material

transportation law preempts the

requirement in Sections 6.7(A) and (B)

of Ordinance No. 344–1979 for a permit

to pick up or deliver LPG within Nassau

County. NYPGA certified that it had

mailed a copy of its petition to the

County Executive and all others who

had submitted comments.

60240 Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Notices

1According to materials submitted by Long Island

Bottle Gas Supply and Service Corp. (Long Island

Bottle Gas) in October 1998 and March 1999, that

company challenged similar requirements of the

Towns of Smithtown and Brookhaven, in Suffolk

County, that drivers hold a certificate of fitness to

deliver LPG. These materials appear to indicate that

a trial court granted summary judgment in favor of

the two Towns against Long Island Bottle Gas, but

that the Appellate Division of the New York

Supreme Court reversed the trial court’s decision.

In March 2000, the District Court of Suffolk County

found that Federal hazardous material

transportation law preempts Suffolk County’s

certificate of fitness requirement and referred to

RSPA’s decision in PD–13(R).

Neither NYPGA nor any other party

has petitioned RSPA to reconsider that

part of PD–13(R) that found that the

certificate of fitness requirement is

preempted. In its January 19, 1999

‘‘Affirmation in Opposition to Petition

for Reconsideration,’’ Nassau County

stated,

As of November 23, 1998, the County of

Nassau has stopped enforcing the provision

of Section 6.8 dealing with the requirement

for a Certificate of Fitness for LP truck

drivers.1

On September 17, 1998, RSPA

received an undated letter from NTTC

requesting reconsideration of RSPA’s

determination with respect to Nassau

County’s permit requirement. Because

this request was submitted more than 20

days after publication of PD–13(R) in

the Federal Register, it is not a timely

petition for reconsideration. 49 CFR

107.211(a). Nonetheless, NTTC’s letter

is being treated as a comment in support

of NYPGA’s petition for reconsideration.

RSPA has also received the following

additional submissions, all of which

have been placed in the docket:

—an October 26, 1998 letter from Long

Island Bottle Gas with an undated

extract from the New York Law

Journal and a copy of its brief to the

Appellate Division in the appeal of

the Suffolk County Supreme Court’s

dismissal of its actions against the

Towns of Smithtown and

Brookhaven.

—November 14, 1998 rebuttal

comments submitted by AWHMT in

Docket No. RSPA–98–3579 (PDA–

20(RF)), expressing concerns about

RSPA’s decision in PD–13(R);

—a January 18, 1999 letter from Atlantic

Bottle Gas Co., Inc., of Hicksville,

New York, describing its inability to

make deliveries of propane in Nassau

County for more than two days until

it had its ‘‘spare truck’’ inspected by

the Nassau County Fire Marshal;

—the January 19, 1999 ‘‘Affirmation’’

from Nassau County in opposition to

NYPGA’s petition for reconsideration

and NTTC’s submission;

—a February 16, 1999 response by

NYPGA to Nassau County’s

Affirmation;

—a facsimile transmission on March 2,

1999, from Long Island Bottle Gas,

forwarding a copy of a March 1, 1999

memorandum issued by the Oil Heat

Institute of Long Island concerning

inspection requirements in 49 CFR

396.11 and 395.17;

—a further undated extract from the

New York Law Journal, received from

Long Island Bottle Gas on March 8,

1999;

—a September 7, 1999 ‘‘Addenda’’ to

NYPGA’s petition for reconsideration

discussing and attaching a hearing

transcript in New York v. Star Lite

Propane Gas Corp., Nos. 19595/98,

20872/98 & 20879/98 (Nassau Cty.

Dist. Ct. Aug. 11, 1999), dismissing a

summons issued to Star Lite for

transporting LPG without a permit

from Nassau County;

—September 27 and October 1, 1999

letters from Nassau County requesting

an opportunity to respond to

NYPGA’s Addenda (Nassau County

did not submit any further response to

NYPGA’s petition for reconsideration,

February 16, 1999 response, or

September 7, 1999 Addenda); and

—a facsimile transmission on June 26,

2000, from NYPGA forwarding a

March 20, 2000 decision of the

District Court of Suffolk County that

Federal hazardous material

transportation law preempts Section

164–109(A) of the Smithtown Town

Code requiring any person filling

containers where LPG is sold or

transferred to hold a certificate of

fitness issued by the County Fire

Marshal.

At a March 29, 2000 public meeting

held by RSPA in Secaucus, New Jersey,

Star Lite’s president (who stated he was

also the president of NYPGA) expressed

concerns about the length of time since

NYPGA’s original application and

RSPA’s failure to call him with

questions. A summary of his remarks

has been placed in the docket.

Throughout this proceeding, and as

recently as September 2000, various

persons interested in this proceeding

have inquired as to the status of RSPA’s

decision on NYPGA’s petition for

reconsideration. In each instance, RSPA

stated that it was in the process of

preparing its decision, but that it was

impossible to predict when the decision

would be issued. Because there was no

discussion of the substantive issues

involved in this proceeding, it was not

considered necessary to place in the

docket a summary of these inquiries. All

the information on which this decision

is based is contained in the docket and,

to the extent considered relevant,

discussed below.

II. Discussion

NYPGA’s petition for reconsideration

and Nassau County’s response contain

many disagreements as to how Nassau

County’s permit and inspection

requirements are administered. When

all the arguments are sorted out,

however, NYPGA’s petition for

reconsideration appears to raise the

following five issues: (1) Whether

permit and inspection requirements

apply only to LPG and not to other

hazardous materials; (2) whether Nassau

County is authorized and qualified to

conduct leak testing or inspections of

cargo tanks and vehicles; (3) whether

the permit and inspection requirements

cause an unreasonable delay in the

transportation of hazardous materials;

(4) whether the permit fee is fair and

used for purposes relating to

transporting hazardous materials,

including enforcement and planning,

developing, and maintaining a

capability for emergency response; and

(5) whether the permit ‘‘sticker’’ is a

marking or labeling of hazardous

material, or of a packaging represented

as qualified for transporting hazardous

material, that is not substantively the

same as provided in the HMR. Each of

these issues is discussed below.

A. Materials Regulated by Nassau

County

NYPGA and Atlantic Bottle Gas Co.

both assert that a permit is not required

for the delivery of any other hazardous

material within the County. Nassau

County replies that the ‘‘same

requirements [for inspections, fees and

permits] are required by Nassau County

ordinance for oxidizers, compressed

gases, and combustible liquids.’’

Federal hazardous material law

preempts a State, local or Indian tribe

law on ‘‘the designation, description,

and classification of hazardous

material’’ that is not ‘‘substantively the

same as’’ the HMR. 49 U.S.C.

5125(b)(1)(A). However, in numerous

circumstances, RSPA has found that a

State or locality may regulate some

hazardous materials in a manner that is

consistent with the HMR, so long as the

non-Federal jurisdiction has not

attempted to create new hazardous

materials definitions or classifications.

In IR–5, City of New York

Administrative Code Governing

Definitions of Certain Hazardous

Materials, 47 FR 51991, 51993 (Nov. 18,

1982), RSPA found that the former

HMTA preempted definitions of

hazardous materials that

Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Notices 60241

broaden the scope of materials that are

subject to the City’s requirements to materials

that are not subject to the HMR [and] * * *

classify some materials differently, for

purposes of the City’s requirements, from

their classification for purposes of

application of the HMR.

Similarly, when a city assigned ‘‘an

entirely different meaning’’ to the term

‘‘radioactive material,’’ which ‘‘in effect,

created a new hazard class,’’ RSPA

concluded that this differing definition

was inconsistent with the HMR. IR–16,

Tucson City Code Governing

Transportation of Radioactive Materials,

50 FR 20872, 20874 (May 20, 1985).

RSPA has also found that imposing

local requirements on six specified

types of radioactive materials ‘‘created,

in effect, a new hazard class * * *’’ IR–

18, Prince Georges County, MD; Code

Section Governing Transportation of

Radioactive Materials, 52 FR 200, 202

(Jan. 2, 1987), decision on appeal, 53 FR

28850 (July 29, 1988). RSPA stated that:

If every jurisdiction were to assign

additional requirements on the basis of

independently created and variously named

subgroups of radioactive materials, the

resulting confusion of regulatory

requirements would lead directly to the

increased likelihood of reduced compliance

with the HMR and subsequent decrease in

public safety.

Id., quoting from IR–12, St. Lawrence

County, New York; Local Law

Regulating the Transportation of

Radioactive Materials Through St.

Lawrence County, 49 FR 46650, 46651

(Nov. 27, 1984).

As RSPA also noted in IR–19, Nevada

Public Service Commission Regulations

Governing Transportation of Hazardous

Materials, 52 FR 24404, 24406 (June 30,

1987), decision on appeal, 53 FR 11600

(Apr. 7, 1988),

ambiguity and selectivity of [a nonFederal] hazardous materials definition are

troublesome. State and local hazardous

materials definitions and classifications

which result in regulation of different

materials than the HMR are obstacles to

uniformity in transportation regulation and

thus are inconsistent with the HMR.

In contrast, however, RSPA has found

that a State or locality may regulate

hazardous materials in a manner

consistent with the HMR even if it does

not reach as broadly as the HMR. In IR–

18, 52 FR at 202, RSPA found that ‘‘an

otherwise consistent requirement will

not be found inconsistent merely

because it applies only to certain modes

of transportation.’’ In a similar manner,

RSPA has considered numerous

challenges to non-Federal requirements

that applied to only specific hazardous

materials without finding that the

specific requirements were preempted

because they did not apply to all hazard

classes and all materials listed in the

Hazardous Materials Table in 49 CFR

172.101.

In these cases, the non-Federal

requirements covered such materials as

(1) LPG, IR–2, Rhode Island Rules and

Regulations Governing the

Transportation of Liquefied Natural Gas

and Liquefied Propane Gas, 44 FR 75566

(Dec. 20, 1979), decision on appeal, 45

FR 71881 (Oct. 30, 1980); (2) flammable

and combustible liquids, PD–4(R),

California Requirements Applicable to

Cargo Tanks Transporting Flammable

and Combustible Liquids, 58 FR 48933

(Sept. 20, 1993), decision on petition for

reconsideration, 60 FR 8800 (Feb. 15,

1995); PD–5(R), Massachusetts

Requirement for an Audible Back-up

Alarm on Bulk Tank Carriers Used to

Deliver Flammable Material, 58 FR

62707 (Nov. 29, 1993); and PD–14(R),

Houston, Texas, Fire Code

Requirements, 63 FR 67506 (Dec. 7,

1998), decision on petition for

reconsideration, 64 FR 33949 (June 24,

1999); (3) hazardous wastes, IR–25,

Maryland Heights (Missouri) Ordinance

Requiring Bond for Vehicles, 54 FR

16308 (Apr. 21, 1989); IR–32,

Montevallo, Alabama Ordinance on

Hazardous Waste Transportation, 55 FR

36736 (Sept. 6, 1990), appeal dismissed

as moot, 57 FR 41165 (Sept. 9, 1992);

PD–1(R), Maryland, Massachusetts, and

Pennsylvania Bonding Requirements for

Vehicles Carrying Hazardous Wastes, 57

FR 58848 (Dec. 11, 1992), decision on

petition for reconsideration, 58 FR

32418 (June 9, 1993), reversed on other

grounds, Massachusetts v. United States

Dep’t of Transp., 93 F.3d 890 (D.C. Cir.

1996); PD–6(R), Michigan Marking

Requirements for Vehicles Transporting

Hazardous and Liquid Industrial

Wastes, 59 FR 6186 (Feb. 9, 1994); and

PD–12(R), New York Department of

Environmental Conservation

Requirements on the Transfer and

Storage of Hazardous Wastes, 60 FR

62527 (Dec. 6, 1995), decision on

petition for reconsideration, 62 FR

15970 (Apr. 3, 1997), judicial review

dismissed, New York v. United States

Dep’t of Transp., 37 F. Supp. 2d 152

(N.D.N.Y. 1999); and (4) radioactive

materials, e.g., IR–7–15, 49 FR 46632

(Nov. 27, 1984); IR–16, above; IR–18,

above.

Nassau County’s permit requirement

in Section 6.7 does not designate any

material as hazardous that is not

regulated by the HMR, nor does Nassau

County describe, define, or classify LPG

in a different manner than in the HMR.

Accordingly, that requirement is not

preempted merely because it applies to

those trucks that pick up or deliver LPG,

and not other hazardous materials,

within Nassau County. There is no

necessity that a State or locality always

regulate all materials, although a

specific non-Federal requirement that

applies only to one hazardous material

may, indeed, be an obstacle to

accomplishing and carrying out Federal

hazardous material transportation law

or the HMR. See, e.g., IR–15, Vermont

Rules for Transportation of Irradiated

Reactor Fuel and Nuclear Waste,

decision on appeal, 52 FR 13062, 13064

(Apr. 20, 1987), finding that a State may

need to justify a decision to ‘‘single out

radioactive materials for different types

of [traffic] control than hazardous

materials generally.’’

B. Nature of the Test or Inspection

NYPGA repeatedly states that Nassau

County conducts a leak test of the

propane tank on the vehicle, and that

the Fire Marshal may also conduct a

‘‘walk around’’ safety check of the

vehicle at the same time. NYPGA

indicates that the Fire Marshal also

inspects rack trucks that transport LPG

cylinders and other service vehicles of

propane companies. NYPGA contends

that the Fire Marshal is not qualified to

conduct the annual testing required

under 49 CFR 180.407(c), and that only

the New York State Department of

Motor Vehicle Regulations is authorized

to perform ‘‘an annual truck ‘Safety/

Emission’ inspection.’’ As discussed in

further detail below, both NYPGA and

AWHMT complain that Nassau County

does not recognize the inspection

conducted by New York State officials,

as required by 49 U.S.C. 31142(d).

AWHMT also suggests that the purpose

of Nassau County’s inspection is to

‘‘qualify the vehicle to contain

hazardous materials,’’ and that RSPA

should apply the ‘‘substantively the

same as’’ standard in 49 U.S.C.

5125(b)(1) to the actual inspection

process.

In response, Nassau County states that

it does not ‘‘test’’ tanks, but only checks

‘‘the accessories, e.g., pipes, fittings, and

connections,’’ for leaks. The County

‘‘does not certify the tank,’’ but rather

‘‘checks to see that the tank has been

certified by such an expert.’’ Nassau

County states that its

inspection includes checking the motor

fuel relief valve, head lights, brake lights,

turn signals, back-up lights, tires, horn,

wipers, inspection stickers, condition of the

windshield, defroster, air-brake indicators,

registration, and crash bar for roll-over

protection.

Nassau County also states that its

‘‘inspections are the same for new

trucks and trucks already in service’’ but

that ‘‘the computer and secretarial work

60242 Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Notices

2Under 49 CFR 173.315(k), a nonspecification

cargo tank motor vehicle with a capacity of 3,500

gallons or less may be used in intrastate commerce

where permitted by State law. However, these

nonspecification cargo tank motor vehicles must

also be ‘‘inspected, tested, and equipped in

accordance with subpart E of part 180’’ of the HMR.

49 CFR 173.315(k)(5).

needed for processing the paperwork for

new trucks’’ makes the amount of time

‘‘longer for new trucks.’’ NYPGA asserts

that the County’s position in this regard

contradicts the County’s prior

statements that it conducts a ‘‘modified’’

inspection of vehicles with less than

1,000 miles.

See 63 FR at 45285.

Cargo tank motor vehicles used to

transport LPG must meet DOT

specifications MC–330 or MC–331. 49

CFR 173.315(a). Certain requirements

for the continued qualification,

maintenance, and periodic testing of

MC–330 and MC–331 cargo tank motor

vehicles are set forth in 49 CFR Part 180,

subpart E, beginning at 49 CFR

180.401.2 The specific tests and

inspections are contained in § 180.407,

and a cargo tank that successfully passes

a specified test or inspection must be

marked in accordance with § 180.415.

While a person must possess certain

qualifications to perform the tests and

inspections specified in § 180.407, as set

forth in § 180.409, DOT has not

established qualifications for nonFederal personnel who inspect cargo

tank motor vehicles to determine

whether (1) the tank is marked as

required in § 180.415, (2) the vehicle

otherwise appears to meet the

applicable specification, or (3) the

vehicle meets the applicable

requirements in the Federal Motor

Carrier Safety Regulations (FMCSR), 49

CFR Parts 350–399.

As discussed in PD–13(R), DOT

encourages States and localities to adopt

and enforce requirements that are

consistent with the HMR and the

FMCSR. 63 FR at 45286. However, DOT

does not specify which State or local

agencies may enforce such consistent

non-Federal requirements, or which

personnel within a State or local agency

may conduct inspections. That is a

matter for State or local discretion,

within the boundaries of the governing

legal authority. Thus, issues of whether

State or local personnel lack authority to

enforce a non-Federal requirement

should be raised in the appropriate State

or local forum—the same as issues

related to whether a State or locality is

properly interpreting its own

requirement. RSPA has recently

reiterated that:

As a general matter, an inconsistent or

erroneous interpretation of a non-Federal

regulation should be addressed to the

appropriate State or local forum, because

isolated instances of improper enforcement

(e.g., misinterpretation of regulations) do not

render such provisions inconsistent with

Federal hazardous material transportation

law.

PD–15(R), Public Utilities Commission

of Ohio Requirements for Cargo Tanks,

64 FR 14965, 14967 (Mar. 29, 1999),

decision on petition for reconsideration,

64 FR 44265, 44266 (Aug. 13, 1999),

judicial review dismissed, William E.

Comley, Inc. v. U.S. Dep’t of

Transportation, Civil No. C1–99–880

(S.D. Ohio, June 6, 2000) (citations and

internal quotation marks omitted).

The record does not show that a

Nassau County’s fire inspectors are

purporting to certify that a cargo tank

motor vehicle has passed the tests and

inspections specified in 49 CFR

180.407. Nor is there any indication that

a cargo tank motor vehicle that passes

all DOT requirements for transporting

LPG must meet some additional

requirements of Nassau County or will

somehow fail to pass Nassau County’s

inspection. Federal hazardous material

transportation law does not preempt

inspections designed to enforce local

requirements that are consistent with

the HMR and the FMCSR, unless those

inspections cause an unreasonable delay

in the transportation of hazardous

material as discussed in the next

section. Any issues whether Nassau

County’s fire inspectors are authorized

or qualified to perform their inspections

cannot be considered by RSPA in a

preemption determination but must be

determined in an appropriate State or

local forum.

C. Unreasonable Delay

In PD–13(R), RSPA found that

NYPGA’s original application focused

on ‘‘the delay experienced by a propane

delivery company in being able to

compete or do business in the County—

rather than any delay in the

transportation of trucks loaded with

propane.’’ 63 FR at 45285. In its petition

for reconsideration, NYPGA asserts that

‘‘Long waits to undergo inspection are

typically experienced by regulated

parties.’’ It cites two specific

experiences: (1) An instance where a

truck owned by Star-Lite carrying

propane cylinders was stopped by the

Fire Marshal on June 23, 1998, and

delayed for three and a half hours

‘‘waiting for an inspection by the

Nassau Fire Marshal’’ and (2) a separate

‘‘delay of a tractor transport

combination of two [hours] and fortyfive minutes while awaiting inspection

in Nassau County.’’ NYPGA disputes

the prior statement of Nassau County

that the ‘‘two day a month schedule is

flexible and does not apply to new

vehicles.’’ Id. NYPGA also contends that

simply checking that the propane tank

has been properly inspected by a

registered inspector is a delay and an

obstacle to transportation.

With its February 16, 1999 response,

NYPGA provided an affidavit by the

president of Fort Edward Express Co.,

Inc., located near Glens Falls, north of

Albany. He described his company as

‘‘one of the largest propane transporters

in the Northeast’’ and stated that, while

his company’s trucks regularly travel

through Nassau County to serve

customers in Suffolk County, it does not

attempt to serve customers in Nassau

County because it ‘‘cannot endure the

delays and costs of scheduling our

tractors and tank trailers for inspection

by the Nassau County Fire Marshall.’’

He also stated that his trucks are

dispatched ‘‘based on customer need,’’

and that ‘‘inspection of all vehicles by

Nassau would be impractical, and

inspection of only a few would require

dedicated vehicles to that county.’’

AWHMT argues that all non-Federal

periodic (as opposed to roadside or

‘‘spot’’) inspections should be

preempted. It stated that Congress

enacted 49 U.S.C. 31142(d) because it

recognized ‘‘the unacceptable burden

that would result if states, let alone

localities, should require motor vehicles

to be produced periodically to be

inspected.’’ This section provides that a

periodic inspection under DOT

standards (prescribed under § 31142(b)),

an alternative State program approved

by DOT, or a State program meeting

Commercial Vehicle Safety Alliance

standards, ‘‘shall be recognized as

adequate in every State for the period of

the inspection,’’ but that a State may

continue to make ‘‘random inspections

of commercial motor vehicles.’’

According to AWHMT, ‘‘motor

vehicles operate over irregular routes

and the potential of inflicting ‘multiple

and conflicting’ requirements on

carriers is self-evident.’’ It also states

that an annual inspection requirement is

burdensome even if it is not applied to

vehicles that travel through the County

without stopping to pick up or deliver

hazardous materials, because

what is a ‘‘through’’ vehicle one day can

be a vehicle used in local delivery the next.

The requirement to produce a vehicle for

inspection applies whether or not any given

vehicle engages in local delivery or pick up

one day or 365 days of the permit year. RSPA

has to consider the consequences if every

locality demanded the production of vehicles

for inspection prior to transporting hazardous

materials. Hazardous materials

transportation, at least by motor vehicle,

would indeed become ‘‘local,’’ as companies

Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Notices 60243

3According to the transcript submitted with

NYPGA’s September 7, 1999 Addenda, the Nassau

County District Court found that Star Lite’s truck

was the subject of an ‘‘illegal stop,’’ and the

summons was dismissed. The Fire Marshal’s

inspector admitted that he did not have evidence

that the truck had made deliveries within the

County when he stopped the truck. According to its

January 19, 1999 response in this proceeding, the

County states that because the main route through

the County is the Long Island Expressway, it

assumes that vehicles on other roads are making a

delivery. NYPGA asserts that trucks use roads other

than the Long Island Expressway to reach Suffolk

County to the east of Nassau County.

4 In the Interstate Towing Ass’n case, the Court of

Appeals considered a local licensing requirement

for tow trucks based within 25 miles of the city

limits, including inspection of each truck, and an

$80 licensing fee. Besides finding that the licensing

requirement was not preempted by the Motor

Carrier Safety Act (now codified at 49 U.S.C. 31131

et seq.), the Court also found that the licensing fee

did not violate the Commerce Clause because it was

‘‘assessed to help defray the costs of inspecting

towing vehicles to ensure that all trucks providing

towing services within City limits, Ohio-based and

out-of-state-trucks alike, meet certain standards of

safety and are equipped sufficiently to provide

‘first-class’ service.’’ 6 F.3d at 1162–63.

would be unable to produce vehicles,

without limitation, for inspection by local

authorities prior to transporting such

materials.

AWHMT also argues that

‘‘unnecessary delay’’ should not be the

only standard for determining whether

there is an obstacle. It asserts that RSPA

should specifically consider effects on

commerce, rather than just safety, and

refers to a congressional finding that

‘‘the movement of hazardous materials

in commerce is necessary and desirable

to maintain economic vitality and meet

consumer demands, and shall be

conducted in a safe and efficient

manner.’’ Pub. L. 101–615 § 2(8), 104

Stat. 3244 (Nov. 20, 1990).

Nassau County specifically addressed

the two instances cited by NYPGA as

evidence of delay. The County does not

dispute that the Star-Lite truck was

stopped because it lacked a current

permit sticker. However, the County

states that this truck was placed out-ofservice because it had a flat tire and the

three and one-half hour delay was the

time that Star Lite took to inflate the

tire.3 With respect to the time involved

in the inspection of the tractor transport,

the County states that the vehicle

arrived early for its scheduled

inspection, before the Fire Marshal’s

starting time at 8:00 a.m. According to

the County, the inspection was

completed by 10:00 a.m., and two hours

is ‘‘not unreasonable, and does not

cause any delay in transportation.’’

Nassau County also provided a copy of

an internal July 31, 1995 memorandum

that any new vehicle (less than 1,000

miles) ‘‘shall be inspected as soon as

possible after receiving a request for

inspection,’’ rather than on the two-daya-month schedule.

Addressing the June 23, 1998 incident

involving the Star Lite truck, NTTC

assumes that the vehicle could not be

used for 14 days, until it could be

inspected on July 7 (the next ‘‘first

Tuesday’’ of the month). In contrast,

Atlantic Bottle Gas states that, when it

was cited for delivering propane in a

truck with an expired permit on the

afternoon of December 8, 1998, the Fire

Marshal conducted an inspection at 9:00

a.m. on December 11, 1998, and issued

a permit in less than two hours. Atlantic

Bottle Gas considers ‘‘not being able to

use my truck to make deliveries of

propane in the winter * * * some 2

plus days would fall into that category

of an unreasonable delay.’’

RSPA cannot find that Federal

hazardous material transportation law

provides a basis for preempting all

periodic inspections, as AWHMT

contends. The obstacle criterion for

preemption in 49 U.S.C. 5125(a)(2) is a

different standard for preemption than

whether there is a improper burden on

interstate commerce. If the two

standards were meant to be equivalent,

Congress would have said so, and it

would not require RSPA to make a

finding with regard to the burden on

commerce in considering whether to

waive preemption, under § 5125(e), or to

consider whether a non-Federal fee is

‘‘fair’’ or not, under § 5125(g)(1).

To the extent that the preemption

provisions in 49 U.S.C. 31142 apply,

there is a separate statutory procedure

in 49 U.S.C. 31141 for DOT to review

and decide whether a State or local law

is preempted. Under this procedure, a

State or local regulation remains in

effect until a Commercial Motor Vehicle

Safety Regulatory Review Panel reviews

the State or local requirement and DOT

acts on the Panel’s review. See Interstate

Towing Ass’n v. City of Cincinnati, 6

F.3d 1154, 1160 (6th Cir. 1993), where

the Court of Appeals stated that, under

the prior version of § 31141, ‘‘the statute

allows to remain in force individual

state regulations which have not been

affirmatively found, by the Secretary or

the Panel, to conflict with federal

regulations.’’4

As NTTC specifically recognized in

its original comments on NYPGA’s

application, Nassau County’s permit

and inspection requirements have a

different impact on a carrier that

operates entirely within Nassau County,

as opposed to a carrier that delivers

hazardous materials from outside the

County and does not know in advance

which vehicle may be needed to deliver

LPG in Nassau County. In PD–13(R), 63

FR at 45285–86, RSPA discussed

NTTC’s comment and the prior decision

in PD–4(R) that inspection requirements

which cause an ‘‘unnecessary delay’’ in

the transportation of hazardous

materials are preempted because they

violate the requirement currently set

forth in 49 CFR 177.800(d) that:

All shipments of hazardous materials must

be transported without unnecessary delay,

from and including the time of

commencement of the loading of the

hazardous material until its final unloading

at destination.

As explained in PD–4(R), an

inspection requirement is preempted

when, as applied and enforced, it

creates unnecessary delay in the

transportation of hazardous material.

RSPA discussed whether or not an

inspection creates unnecessary delay in

three situations.

First, RSPA reaffirmed earlier

decisions that ‘‘the minimal increase in

travel time when an inspection is

actually being conducted, or the vehicle

is waiting its ‘turn’ for an inspector to

finish inspecting another vehicle that

arrived earlier at the same facility’’ is

not unnecessary delay. 58 FR at 48941,

quoted in PD–13(R) at 63 FR at 45286.

Accord, IR–17, Illinois Fee on

Transportation of Spent Nuclear Fuel,

51 FR 20926 (June 9, 1986), decision on

appeal, 52 FR 36200, 36205 (Sept. 25,

1987)(a delay of 1.5 to 2 hours during

which a State inspection is actually

conducted is reasonable and

‘‘presumptively valid’’).

Second, RSPA found that a delay of

hours or days waiting for the arrival of

an inspector from another location is

‘‘unnecessary, because it substantially

increases the time [hazardous materials]

are in transportation, increasing

exposure to the risks of the hazardous

materials without corresponding

benefit.’’ 58 FR at 48941.

Third, RSPA indicated that a State’s

annual inspection requirement applied

to vehicles or tanks that operate solely

within the State is presumptively valid

because it would not create the potential

for delays ‘‘associated with entering the

State or being rerouted around’’ the

State. 60 FR at 8803, quoted at 63 FR at

45286. A carrier whose vehicles are

based within the inspecting jurisdiction

should be able to schedule an

inspection at a time that does not

disrupt or unnecessarily delay

deliveries, and such inspections are

consistent with the traditional authority

of a State or political subdivision to

license, inspect, and otherwise regulate

a motor vehicle based within its

jurisdictional boundaries.

Nassau County has an interest in the

safe transportation and delivery of LPG

60244 Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Notices

within the county limits, and that

interest extends to any vehicle operating

within the County, whether based

within the County or outside. Consistent

with the principles set forth in PD–4(R),

Nassau County may perform roadside or

spot inspections on any vehicle

transporting a hazardous material

within the County, without causing

unreasonable delay, so long as the

vehicle is not required to wait hours or

days for the arrival of an inspector from

another location. There is also no

obstacle to the County considering such

an inspection valid for a year, and

issuing an annual permit based on this

spot inspection. On the other hand, the

County may not require a company to

present its vehicles for an annual

scheduled inspection when that will

prevent a loaded vehicle from

completing its delivery for hours or days

waiting for the inspection to be

performed.

Those propane delivery companies

based within Nassau County should be

able to present their trucks for an

inspection by Nassau County without

incurring an unreasonable delay in the

delivery of propane. They should be

able to plan and schedule inspections

without any interruption of deliveries.

The few occasions on which an

inspection must be scheduled on short

notice, for a new truck placed into

service or a ‘‘reserve’’ truck placed back

in service, must be considered to be part

of a company’s plan for conducting its

business, rather than an unreasonable

delay in the transportation of a

hazardous material between ‘‘the time of

commencement of the loading of the

hazardous material until its final

loading at destination.’’ 49 CFR

177.800(d).

On the other hand, NTTC and Fort

Edward Express Co. explain that it is

not feasible for a company based outside

of Nassau County to predict which of its

trucks will be needed to deliver propane

to Nassau County within the coming

year, nor to have all of its trucks

permitted and inspected in any

jurisdiction to which any truck might

travel. Under the principles announced

in PD–4(R), a city or county may apply

an annual inspection requirement to

trucks based outside its jurisdictional

boundaries only if the city or county can

actually conduct the equivalent of a

‘‘spot’’ inspection upon the truck’s

arrival within the local jurisdiction. The

city or county may not require a permit

or inspection for trucks that are not

based within the local jurisdiction if the

truck must interrupt its transportation of

propane for several hours or longer in

order for an inspection to be conducted

and a permit to be issued.

In this case, Nassau County indicates

that there is some flexibility in

performing inspections, and that a

company need not always wait for one

of the two regular inspection days each

month. However, the County does not

appear to be able to conduct inspections

and issue permits ‘‘on demand.’’

According to Atlantic Bottle Gas, it took

the Fire Marshal until the morning of

the third day to schedule an inspection

and issue a permit, following issuance

of a citation for delivering propane

without a permit. Nassau County has

not shown that it can act more promptly

with respect to a truck that arrives

without notice in the County.

Based on the limited information

provided in the comments in this

proceeding, RSPA finds that Federal

hazardous material transportation law

does not preempt Nassau County’s

annual permit requirement in Sections

6.7(A) & (B) of Ordinance No. 344–1979

with respect to trucks that are based

within Nassau County. On the other

hand, RSPA finds that Nassau County’s

annual permit requirement creates an

obstacle to accomplishing and carrying

out the HMR’s prohibition against

unnecessary delays in the transportation

of hazardous material on vehicles based

outside of Nassau County, as those

requirements are presently applied and

enforced. Accordingly, Federal

hazardous material transportation law

preempts Sections 6.7(A) & (B) of

Ordinance No. 344–1979 with respect to

trucks that are based outside of Nassau

County.

D. Permit Fees

In PD–13(R), RSPA rejected NYPGA’s

argument that Nassau County’s permit

fees are a ‘‘flat tax’’ and violate the

Commerce Clause. 63 FR at 45286–87.

RSPA found that the fee appeared to be

a user fee, ‘‘related in some measure to

the work involved in conducting the

required inspection,’’ and noted the

County’s statements that it collects less

than $70,000 in LPG permit fees per

year and spends much more than that

amount on administration of the permit

program, incident response, and

enforcement.

In its comments on NYPGA’s petition

for reconsideration, Nassau County

maintains its position that its inspection

fees are fair and proper. The County

states that, in 1998, it ‘‘responded to 113

hazardous materials emergencies on the

roadways. The fees generated about

$70,000, while the hazmat team alone

cost about $1.3 million.’’ NYPGA asserts

that the County did not provide data

relating only to vehicles carrying

propane and asked for ‘‘a thorough

accounting of how the monies are

used.’’

In PD–21(R), Tennessee Hazardous

Waste Transporter Fee and Reporting

Requirements, 64 FR 54474 (Oct. 6,

1999), judicial review pending,

Tennessee v. U.S. Dep’t of

Transportation, Civil Action No. 3–99–

1126 (M.D. Tenn), RSPA discussed the

‘‘fairness’’ and ‘‘used for’’ standards in

49 U.S.C. 5125(g)(1). RSPA noted that

fees that cover the cost of a required

inspection ‘‘would be expected to be the

same amount for both interstate and

intrastate companies’’ and have not

been found to violate the Commerce

Clause. 64 FR at 54478 (discussing the

Interstate Towing Ass’n case). RSPA

also indicated that a State or locality

need not ‘‘create and maintain a

separate fund for fees paid by hazardous

materials transporters’’ so long as it

could show ‘‘that it is actually spending

these fees on the purposes permitted by

the law.’’ Id. at 54479. And while ‘‘only

the State [or locality] has the

information concerning where these

funds are spent,’’ id., the amount of

detail necessary will depend on all the

circumstances.

In this case, the information provided

by Nassau County appears sufficient to

show that it is using its LPG permit fees

for purposes ‘‘related to transporting

hazardous material, including

enforcement and planning, developing,

and maintaining a capability for

emergency response.’’ 49 U.S.C.

5125(g)(1).

E. Permit Stickers

In PD–13(R), RSPA found that the

permit sticker is not a ‘‘marking * * *

of hazardous material,’’ under 49 U.S.C.

5125(b)(1)(B), because the County did

not require the sticker to be placed ‘‘on

the hazardous material itself (or its

container).’’ 63 FR at 45287. There was

no evidence that the sticker caused any

unnecessary delay or otherwise created

an obstacle to accomplishing and

carrying out Federal hazardous material

law and the HMR. Id.

In its petition for reconsideration and

further comments, NYPGA repeatedly

refers to the permit sticker as a ‘‘label’’

and contends that, until it submitted its

petition for reconsideration, Nassau

County required that the sticker be

placed on the cargo tank of a

‘‘transport’’ vehicle or on the fender of

a ‘‘bobtail.’’ Nassau County states that

the permit does not indicate that the

vehicle is ‘‘actually carrying hazardous

materials’’ or ‘‘make the vehicle a

designated hazardous material vehicle.’’

The County also states that the permit

is not a label or a placard, as those terms

are used in the HMR, and it submitted

Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Notices 60245

1Pioneer is a publicly traded shortline railroad

holding company and noncarrier that controls 13

Class III shortline railroads, including MSO.

2Pioneer and MSO state that MSRR owns part of

the Michigan Segment and that MSRR (despite its

description as a ‘‘nonoperating’’ railroad)

‘‘operates’’ the balance of the Michigan Segment

under an agreement with a shipper association.

According to the verified notice of exemption, the

ownership of part or all of the Michigan segment

is presently in dispute.

3MSO has a haulage agreement with Norfolk

Southern Railway Company (NS) from Elkhart to

Fort Wayne, IN, which permits MSO to market Fort

Wayne as a station on MSO’s line. Upon

consummation of this transaction, Fort Wayne will

become a station of E&WR.

4MSO also has a haulage agreement with NS from

White Pigeon to Fort Wayne, which permits MSO

to market Fort Wayne as a station on MSO’s line.

Upon consummation of this transaction, Fort

Wayne will continue to be a station of MSO.

a copy of a September 1, 1998 internal

memorandum referring to PD–13(R) and

advising the Fire Marshal’s staff that ‘‘a

permit on a transportation vehicle

* * * shall not be placed on the tank,

but shall be placed on the vehicle.’’

It is clear that Nassau County’s permit

sticker is not a ‘‘label’’ as that term is

used in the HMR, nor could it be

mistaken for a hazard class label. See 49

CFR Part 172, subpart E. Nor is the

sticker a marking of hazardous material

within the meaning and intent of the

HMR’s hazard communication

requirements. Nothing in NYPGA’s

petition for reconsideration or the

comments submitted in response to that

petition shows that the requirement to

place the permit sticker on the vehicle

creates an obstacle to accomplishing

and carrying out hazardous material

transportation law or the HMR.

III. Ruling

Federal hazardous material

transportation law preempts the

requirement in Sections 6.7(A) and (B)

of Ordinance No. 344–1979 for a permit

to deliver LPG within Nassau County

with respect to trucks that are based

outside of Nassau County. As applied to

and enforced against those vehicles, that

requirement causes unnecessary delays

in the transportation of hazardous

materials to Nassau County from

locations outside of Nassau County and,

accordingly, creates an obstacle to

accomplishing and carrying out Federal

hazardous material transportation law

and the HMR.

Nassau County’s permit requirement

does not create unnecessary delays in

the transportation of hazardous

materials, and is not preempted, with

respect to trucks that are based within

Nassau County.

No person requested reconsideration

of that part of RSPA’s August 25, 1998

determination which found that Federal

hazardous material transportation law

preempts Section 6.8 of Ordinance No.

344–1979 for a certificate of fitness,

insofar as that requirement is applied to

a motor vehicle driver who sells or

delivers LPG, because Section 6.8

imposes more stringent training

requirements than provided in the

HMR.

IV. Final Agency Action

In accordance with 49 CFR

107.211(d), this decision constitutes

RSPA’s final agency action on NYPGA’s

application for a determination of

preemption as to the requirements in

Sections 6.7(A) and (B) of Nassau

County Ordinance No. 344–1979 for a

permit to pick up or deliver LPG within

Nassau County. Any party to this

proceeding ‘‘may bring a civil action in

an appropriate district court of the

United States for judicial review of

[this] decision * * * not later than 60

days after the decision becomes final.’’

49 U.S.C. 5125(f).

Because no party sought

reconsideration of RSPA’s

determination in PD–13(R) that Federal

hazardous material transportation law

preempts Section 6.8 of Nassau County

Ordinance No. 344–1979 for a certificate

of fitness, as applied to motor vehicle

drivers, that determination published in

the Federal Register on August 25,

1998, constituted RSPA’s final agency

action.

Issued in Washington, D.C. on October 3,

2000.

Robert A. McGuire,

Associate Administrator for Hazardous

Materials Safety.

[FR Doc. 00–25953 Filed 10–6–00; 8:45 am]

BILLING CODE 4910–60–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 33941]

Pioneer Railcorp and Michigan

Southern Railroad Company-Corporate

Family Transaction Exemption

Pioneer Railcorp (Pioneer) and

Michigan Southern Railroad Company

(MSO) have filed a verified notice of

exemption.1 MSO owns 100% of the

stock of Michigan Southern Railroad

Co., Inc. (MSRR), a nonoperating Class

III shortline railroad, which owns a

property interest in three segments of

railroad currently leased and operated

by MSO. The three segments of railroad

are described as follows: (1) between

milepost 0.0, at Elkhart, IN, and

milepost 9.8, at Mishiwaka, IN (Elkhart

Segment); (2) between milepost 119.0

and milepost 120.1, at Kendallville, IN

(Kendallville Segment); and (3) between

milepost 382.5, at or near Coldwater,

MI, and milepost 421.2, at or near White

Pigeon, MI (Michigan Segment).2

The exempt transaction involves the

reorganization of the MSO railroad

holdings and the creation of two new

subsidiaries of MSO: Elkhart & Western

Railroad, Co. (E&WR) and Kendallville

Terminal Railway Co. (KTR). MSO will

assign its operating leases of the Elkhart

Segment to E&WR3 and of the

Kendallville Segment to KTR. MSO will

continue to operate the Michigan

Segment.4 MSRR will continue to own

the three segments of railroad.

The transaction is expected to be

consummated on September 29, 2000.

This is a transaction within a

corporate family of the type specifically

exempted from prior review and

approval under 49 CFR 1180.2(d)(3).

The parties state that the transaction

will not result in adverse changes in

service levels, significant operational

changes, or changes in the competitive

balance with carriers outside the

corporate family.

Under 49 U.S.C. 10502(g), the Board

may not use its exemption authority to

relieve a rail carrier of its statutory

obligation to protect the interests of its

employees. Section 11326(c), however,

does not provide for labor protection for

transactions under sections 11324 and

11325 that involve only Class III rail

carriers. Because this transaction

involves Class III rail carriers only, the

Board, under the statute, may not

impose labor protective conditions for

this transaction.

If the verified notice contains false or

misleading information, the exemption

is void ab initio. Petitions to reopen the

proceeding to revoke the exemption

under 49 U.S.C. 10502(d) may be filed

at any time. The filing of a petition to

reopen will not automatically stay the

transaction.

An original and 10 copies of all

pleadings, referring to STB Finance

Docket No. 33941, must be filed with

the Surface Transportation Board, Office

of the Secretary, Case Control Unit, 1925

K Street, NW., Washington, DC 20423–

0001. In addition, a copy of each

pleading must be served on John D.

Heffner, Esq., REA, CROSS &

AUCHINCLOSS, 1707 L Street, N.W.,

Suite 570, Washington, DC 20036.

Board decisions and notices are

available on our website at

‘‘WWW.STB.DOT.GOV.’’

Decided: September 29, 2000.