Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Notices 30035

1The ICC Termination Act of 1995, Pub. L. No.

104–88, 109 Stat., which was enacted on December

29, 1995, and took effect on January 1, 1996,

abolished the Interstate Commerce Commission and

transferred certain functions to the Surface

Transportation Board (Board). This decision relates

to functions that are subject to Board jurisdiction

pursuant to 49 U.S. 13703.

Code, we wish to note at the outset that we

have no quarrel with the provisions of

subsection ‘‘(a)’’ of that Section.

In contrast, however, NTTC notes that 49

CFR 180.417 contains direct requirements for

‘‘Reporting and Record Retention

Requirements’’. Significantly, there is no

Federal requirement for copies of reports

and/or records to be carried in the cargo tank

motor vehicle. Instead, the Administrator

relies on certain (and specified) markings on

the cargo tank as indicia of compliance.

Moreover, 49 CFR 180.417(a)(2) allows

carriers to retain relevant documents at either

their ‘‘principal place of business’’, or (upon

application to the Federal Highway

Administration) ‘‘at a regional or terminal

office’’.

Conversely, the state’s regulations require

documentation to be retained ‘‘in the

vehicle.’’ NTTC holds that Section 230.6(b) is

preempted by the HMR. As the Administrator

well knows, cargo tanks regularly move from

jurisdiction to jurisdiction. For instance,

nationwide carriers may move vehicles from

southern states into the New England area to

move gasoline when transportation demands

for MC 306/DOT406 equipment accelerate

because of the winter ‘‘fuel oil season’’.

Unnecessary delay is created when carriers

are compelled to retrieve documents from

storage, reproduce those documents, and

exercise the management controls necessary

to put copies in some vehicles but not in

others. The situation is compounded when

one realizes the potential for other

jurisdictions to play havoc with the current

system. For instance, should the

Administrator not preempt, what would

prevent a state or locality from requiring all

service and maintenance records (including

the vehicle manufacturer’s original

certification) to be retained in the vehicle?

In Docket HM–183 (the administrative

proceeding which created Part 180), the

Administrator decided that the proper

indicia for compliance with Part 180 is

vehicle marking (as codified at 180.415). As

has often been noted in both (the former)

‘‘inconsistency petitions’’ and in

‘‘preemption determinations’’, the

Administrator’s regulations are ‘‘presumed

safe’’. New York State is not free to

unilaterally amend RSPA’s requirements.

With regard to the state’s requirement at

230.6(c), the same arguments and fact

patterns apply. At 49 CFR 180.417(c)(2), the

specified retention time is length of (cargo

tank) ownership plus one year. New York

requires ‘‘. . . two years after the testing

occurred.’’ It, too, must be preempted.

Our problem with New York’s requirement

at 230.4(a)(3) is more direct and concise.

Simply stated, this regulation is a ‘‘hazardous

materials specific’’ marking requirement. It

applies only to DOT Specification tanks

(authorized for the transportation of

gasoline). HMTUSA specifies that ‘‘marking’’

(of a package or container) is a ‘‘covered

subject’’. The Administrator’s relevant

requirements at 49 CFR 180.415 ‘‘occupy the

field’’. New York’s regulation must be

stricken.

Precedent On These Issues Is Abundant—

NTTC believes that the Administrator’s

decisions in both ‘‘Inconsistency Rulings’’

(IR) and ‘‘Preemption Determinations’’ (PD)

buttress our claims with respect to the New

York State regulations under question.

For instance, in both IR#19 and #IR 28, the

Administrator ruled that, ‘‘. . . the HMTA

and HMR provide sufficient information and

documentation requirements for the safe

transportation of hazardous materials; state

and local requirements in excess of them

constitute obstacles to implementation of the

HMTA and HMR and thus are inconsistent

with them.’’

Similarly, in those two rulings (plus a host

of others), it was ruled that, ‘‘Requirements

for information or documentation in excess

of Federal requirements create potential

delay, constitute an obstacle to execution of

the Federal hazmat law and the HMR, and

thus are preempted.’’

In at least 14 prior proceedings of this type

(IR’s and PD’s), RSPA has struck down state

and local requirements found to be

‘‘* * * likely to cause’’ and/or ‘‘* * * the

mere threat’’ of unnecessary delays in

hazardous materials transportation.

As the Administrator ruled in PD–4 (R),

‘‘Required markings of packagings (cargo

tanks and portable tanks) to certify current

registration and inspection are preempted

since they are not substantively the same as

the markings required by the HMR.’’

(emphasis added)

Even the United States Court of Appeals

for the 10th Circuit weighed in most directly.

In reversing a District Court decision in the

matter of Colorado Pub. Utilities Commission

v. Harmon, the Court went to the heart of

NTTC’s complaint specifying that a state may

not require a carrier to retain inspection

reports in a vehicle; and, that such an

additional documentation requirement could

‘‘* * * create confusion and increase

hazards.’’

Given the fact that the State of New York

is aggressively enforcing the regulations cited

above, we ask expedited consideration of

NTTC’s application for a preemption

determination.

I hereby certify that I have sent a copy of

this petition to: Mr. John P. Cahill,

Commissioner, Department of Environmental

Conservation, State of New York, 50 Wolf

Road, Albany, NY 12233.

Respectfully submitted:

Clifford J. Harvison,

President.

Attachments

(A) Part 230 of New York Codes, Rules and

Regulations.

[FR Doc. 98–14562 Filed 6–1–98; 8:45 am]

BILLING CODE 4910–60–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

Intermountain Tariff Bureau, Inc.;

Section 5a Application No. 62

AGENCY: Surface Transportation Board,

DOT.

ACTION: Notice of tentative approval of

request to withdraw Section 5a

Application No. 62 and cancel the

agreement.

SUMMARY: Intermountain Tariff Bureau,

Inc. (ITB), has filed a letter seeking to

withdraw its Section 5a Application No.

62 and cancel the agreement. The Board

has tentatively granted ITB’s request,

and, if no opposing comments are

timely filed, this decision will be the

final Board action.

DATES: Written comments must be filed

with the Board no later than June 22,

1998. If no opposing comments are filed

by the expiration of the comment period

this decision will take effect

automatically.

ADDRESSES: An original and 10 copies of

comments referring to Section 5a

Application No. 62 should be sent to:

Surface Transportation Board, Office of

the Secretary, Case Control Unit, 1925 K

Street, N. W., Washington, DC 20423–

0001. A copy of any comments filed

with the Board must be served on Larry

H. Wilkinson, Secretary, Intermountain

Tariff Bureau, Inc., 125 West 1500

North, Bountiful, UT 84010.

FOR FURTHER INFORMATION CONTACT:

Beryl Gordon, (202) 565–1600. [TDD for

the hearing impaired: (202) 565–1695.]

SUPPLEMENTARY INFORMATION: ITB

indicates that it has ceased operations

and that shortly it will be dissolved as

a corporation. ITB states that, to the best

of its knowledge, all obligations to

members, customers and debtors have

successfully been completed. ITB

requests cancellation of Section 5a

Application No. 62 (and any other

formal agreements involving ITB)

approved by the Interstate Commerce

Commission.1

This action will not significantly

affect either the quality of the human

environment or the conservation of

energy resources.

Board decisions and notices are

available on our website at

‘‘WWW.STB.DOT.GOV.’’

It is ordered:

1. The request to cancel Section 5a

Application No. 62 (and any

amendments) is approved, and the

proceeding(s) is (are) dismissed, subject

to the filing of opposing comments.

2. If timely opposing comments are

filed, this decision will be deemed

vacated.
30036 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Notices

1The agreement that is the subject of this notice

is a confirmation of and an amendment to an earlier

trackage rights agreement between IORP and IORY

and certain other Class III railroads affiliated with

the IORY. See STB Finance Docket No. 32976, The

Indiana & Ohio Rail Passenger Corporation—

Acquisition by Trackage Rights and Operation

Exemption—Cincinnati Terminal Railway Corp.,

Indiana and Ohio Railroad Company, Indiana &

Ohio Railway Company, Inc., and Indiana & Ohio

Central Railroad Company, Inc., (STB served June

21, 1996).

2See STB Finance Docket No. 33180, Indiana &

Ohio Railway Company—Acquisition Exemption—

Lines of The Grand Trunk Railroad Inc., (STB

served Feb. 10, 1997).

1The line was not further described in the notice

filed by the City, but a map included with the filing

indicates that it begins at a switch near the

intersection of Caron Road and Creston Road and

ends in a stub east of Gredco Drive.

2Under 49 CFR 1150.32(b), a notice of exemption

becomes effective 7 days after filing.

3By petition filed on May 1, 1998, the Rochelle

Railroad Company requests that the Board reject

and or revoke this exemption. That petition will be

addressed in a decision to be issued by the Board.

1WCL has stated that it is alternatively willing to

accept the conditions set out in Norfolk and

3. This decision will be effective on

June 22, 1998, unless timely opposing

comments are filed.

Decided: May 27, 1998.

By the Board, Vernon A. Williams,

Secretary.

Vernon A. Williams,

Secretary.

[FR Doc. 98–14470 Filed 6–1–98; 8:45 am]

BILLING CODE 4915–00–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 33591]

The Indiana & Ohio Rail Passenger

Corporation—Trackage Rights

Exemption—Indiana & Ohio Railway

Company, Inc.

Indiana & Ohio Railway Company,

Inc. (IORY) has agreed to grant local

trackage rights to The Indiana & Ohio

Rail Passenger Corporation (IORP), for

the operation of rail passenger service

over the following points: (1) from

milepost 39.8, near Diann, MI, to

milepost 107.3, near Leipsic, OH; (2)

from milepost 110.8 to milepost 114.9 in

Ottaway, OH; and (3) from milepost

128.3, near Lima, OH, to milepost 202.7,

near Springfield, OH, a distance of

approximately 146.02 miles.1

The parties expected to consummate

the transaction on or about May 26,

1998. The earliest the transaction could

be consummated was May 22, 1998, the

effective date of the exemption (7 days

after the notice of exemption was filed).

The purpose of the trackage rights is

to extend IORP’s passenger operations

over newly-acquired IORY lines.2

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.

This notice is filed under 49 CFR

1180.2(d)(7). If it contains false or

misleading information, the exemption

is void ab initio. Petitions to revoke the

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

may be filed at any time. The filing of

a petition to revoke will not

automatically stay the transaction.

An original and 10 copies of all

pleadings, referring to STB Finance

Docket No. 33591, 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 Robert L.

Calhoun, Esq., Redmon, Boykin &

Braswell, L.L.P., 510 King Street, Suite

301, Alexandria, VA 22314.

Board decisions and notices are

available on our website at

‘‘WWW.STB.DOT.GOV.’’

Decided: May 26, 1998.

By the Board, David M. Konschnik,

Director, Office of Proceedings.

Vernon A. Williams,

Secretary.

[FR Doc. 98–14467 Filed 6–1–98; 8:45 am]

BILLING CODE 4915–00–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 33587]

City of Rochelle, Illinois; Notice of

Exemption; Commencement of Rail

Common Carrier Operations

The City of Rochelle, IL (the City), a

noncarrier, has filed a verified notice of

exemption under 49 CFR 1150.31 to

commence operations over 2.06 miles of

track located within the limits of

Rochelle, IL.1 The City states that its

projected revenues will not exceed

those of a Class III railroad.

The effective date of the exemption

was May 5, 1998 (7 days after the

exemption was filed).2

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.3 The filing of a petition to

revoke will not automatically stay the

transaction.

An original and 10 copies of all

pleadings, referring to STB Finance

Docket No. 33587, must be filed with

the Surface Transportation Board, Office

of the Secretary, Case Control Unit, 1925

K Street, N.W., Washington, DC 20423–

0001. In addition, a copy of each

pleading must be served on counsel for

the City: John W. Robinson, 9616 Old

Spring Road, Kensington, MD 20895.

Board decisions and notices are

available on our website at

‘‘WWW.STB.DOT.GOV.’’

Decided: May 27, 1998.

By the Board, David M. Konschnik,

Director, Office of Proceedings.

Vernon A. Williams,

Secretary.

[FR Doc. 98–14571 Filed 6–1–98; 8:45 am]

BILLING CODE 4915–00–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[STB Finance Docket No. 33600]

Wisconsin Central Ltd.—Trackage

Rights Exemption—Wisconsin &

Southern Railroad Company

Wisconsin & Southern Railroad

Company (WSOR), a Class III rail

carrier, has agreed to grant nonexclusive overhead trackage rights to

Wisconsin Central Ltd (WCL), a Class II

rail carrier, over WSOR’s line of railroad

between milepost 112.6, at Rugby

Junction, WI, and milepost 93.4, at

North Milwaukee, WI, including

trackage connecting with Fox Valley &

Western Ltd.’’s (FVW) main line at DBR

Junction (milepost 103.1), a distance of

approximately 19.2 miles.

The purpose of the trackage rights is

to interchange cars between WCL and

the Canadian Pacific and Union Pacific

and between WCL and FVW, as well as

connecting various WCL and FVW lines

and trackage rights.

As a condition to this exemption, any

employees affected by the trackage

rights will be protected as required by

49 U.S.C. 11326(b), subject to the

procedural interpretations of the

analogous statutory provisions at 49

U.S.C. 10902 contained in the Board’s

decision in Wisconsin Central Ltd.—

Acquisition Exemption—Lines of Union

Pacific Railroad Company, STB Finance

Docket No. 33116 (STB served Apr. 17,

1997) (WCL Exemption).1