[Federal Register Volume 65, Number 196 (Tuesday, October 10, 2000)]
[Notices]
[Pages 60238-60245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25953]


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

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

[[Page 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 Secs. 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.

[[Page 60240]]

    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\

    \1\ According 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).
---------------------------------------------------------------------------

    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


[[Page 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 non-Federal] 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

[[Page 60242]]

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 Sec. 180.407, and a 
cargo tank that successfully passes a specified test or inspection must 
be marked in accordance with Sec. 180.415. While a person must possess 
certain qualifications to perform the tests and inspections specified 
in Sec. 180.407, as set forth in Sec. 180.409, DOT has not established 
qualifications for non-Federal personnel who inspect cargo tank motor 
vehicles to determine whether (1) the tank is marked as required in 
Sec. 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.
---------------------------------------------------------------------------

    \2\ Under 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).
---------------------------------------------------------------------------

    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 forty-five 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 Sec. 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

[[Page 60243]]

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 Sec. 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-of-service 
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-day-a-month schedule.
---------------------------------------------------------------------------

    \3\ According 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.
---------------------------------------------------------------------------

    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 Sec. 5125(e), or to consider whether 
a non-Federal fee is ``fair'' or not, under Sec. 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 Sec. 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 60244]]

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

[[Page 60245]]

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