8800 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

[Preemption Determination No. PD–4(R);

Docket No. PDA–6(R)]

California Requirements Applicable to

Cargo Tanks Transporting Flammable

and Combustible Liquids; Decision on

Petition for Reconsideration

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Notice of decision on petition

for reconsideration of administrative

determination of preemption.

PETITIONER: California Highway Patrol

(CHP).

STATE LAWS AFFECTED: California

Vehicle Code (VC), Division 14.7

(sections 34000–34102), and California

Code of Regulations (CCR), Title 13,

Chapter 6, Article 3 (sections 1160–

1168) and Article 6 (sections 1190–

1197).

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.

MODE AFFECTED: Highway.

SUMMARY: RSPA’s Associate

Administrator for Hazardous Materials

Safety is denying CHP’s petition for

reconsideration of the determination

that California’s requirement for an

annual inspection of cargo tanks and

portable tanks used for highway

transportation of flammable and

combustible liquids was preempted by

the former Hazardous Materials

Transportation Act (HMTA) (since

revised, codified and enacted without

substantive change at 49 U.S.C. 5101 et

seq.).

This decision constitutes RSPA’s final

action on the July 27, 1992 application

for a preemption determination filed by

Nalco Chemical Co. (Nalco). Any party

who submitted comments in Docket No.

PDA–6(R) (including the applicant) may

seek judicial review within 60 days of

this decision.

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

The California Highway Patrol (CHP)

administers a design, registration, and

inspection program applicable to cargo

tanks and portable tanks on vehicles

that transport flammable and

combustible liquids on highways within

California. See VC Div. 14.7 and

§ 34001. Excluded from the CHP’s Cargo

Tank (CT) program are, among others, a

vehicle’s own fuel tanks; tanks smaller

than 120 gallons (or most tanks smaller

than 500 gallons that meet DOT

specifications); empty tanks (with less

than 120 gallons of residue); and

intermodal IM 101 and 102 portable

tanks when the highway portion of an

interstate shipment is less than 25 miles

from an ‘‘ocean port or railroad loading

or unloading terminal.’’ VC 34003(a).

See also the discussion in Preemption

Determination (PD) No. 4(R), 58 FR

48933, 48934 (Sept. 20, 1993).

In July 1992, Nalco applied for a

determination that the HMTA

preempted major portions of California’s

CT program. Following notice of Nalco’s

application in the Federal Register, 57

FR 38081 (Aug. 21, 1992), and the

receipt of written comments from all

interested parties, RSPA issued its

determination in PD–4(R) that the

former HMTA:

(a) Preempted California’s

requirement for an annual inspection of

cargo tanks and portable tanks used for

highway transportation of flammable

and combustible liquids, as that

requirement is applied and enforced,

because any wait for the arrival of State

inspectors from another location

constitutes an ‘‘unnecessary’’ delay;

(b) did not preempt California’s

requirement for an annual registration,

as applied and enforced, because there

is no evidence that this requirement

creates any delays separate from the

wait for an inspection to be conducted;

(c) did not preempt California’s

statute authorizing design and

construction standards for cargo tanks

and portable tanks used to transport

flammable and combustible liquids,

because there is no evidence that

California enforces design and

construction requirements, with respect

to tanks meeting DOT specifications,

that are not substantively the same as

requirements in the HMR; and

(d) preempted the following State

marking requirements, when applied to

DOT specification cargo tanks and

portable tanks, because they are not

substantively the same as requirements

in the HMR: (1) That a metal

identification plate be affixed to any

tank for which such a plate is not

required by the HMR (13 CCR 1195); (2)

that a ‘‘CT number’’ be marked on the

tank or on a metal identification plate

on the tank (13 CCR 1194); and (3) that

a certification label be affixed to the

tank and a registration certificate be

carried in a waterproof holder

permanently attached to portable tanks

(VC 34044 and 13 CCR 1193).

RSPA did not decide whether the

former HMTA preempted either: (a)

California’s registration fees, since no

party contended that the fees are

inequitable or used for purposes other

than those related to the transportation

of hazardous materials, or (b) the

requirement that the remote secondary

control for internal valves be clearly

labeled (13 CCR 1197), in the absence of

any evidence that Nalco or any other

party submitting comments is directly

affected by this requirement.

RSPA’s determination did not address

similar California registration,

inspection and certification

requirements applicable to vehicles and

tanks used to transport hazardous

wastes, but noted that these

requirements are subject to the same

Federal preemption provisions and the

general principles discussed in PD–4(R).

RSPA also noted that its determination

did not consider or affect State motor

vehicle inspection and registration

requirements that apply to all

commercial vehicles.

Within the 20-day time period

provided in 49 CFR 107.211(a), CHP

filed a petition for reconsideration of

RSPA’s decision in PD–4(R). CHP

certified that it had mailed a copy of its

petition to Nalco and all others who had

submitted comments, in accordance

with 49 CFR 107.211(c). Four parties

responded to CHP’s petition for

reconsideration: Nalco, National Tank

Truck Carriers, Inc. (NTTC), Chemical

Waste Transportation Institute (CWTI),

and the 3M Corporation (3M).

In Part II of the decision in PD–4(R),

RSPA set forth the standards for making

determinations of preemption under the

former HMTA and the specific statutory

provisions under which non-Federal

requirements governing the

transportation of hazardous materials

are preempted. 58 FR at 48934–35. On

July 5, 1994, President Clinton signed

Public Law 103–272 which extensively

revised, codified and enacted without

substantive change numerous laws

related to transportation. The former

HMTA, 49 App. U.S.C. 1801 et seq., has

been repealed and replaced by 49 U.S.C.

Chapter 51 (5101 et seq.),

‘‘Transportation of Hazardous Material,’’

except as to ‘‘proceedings that were

begun before July 5, 1994.’’ Accordingly,

the preemption provisions in former 49

App. U.S.C. 1804 and 1811, discussed

in Part II of PD–4(R), remain applicable

to RSPA’s consideration of this petition

for reconsideration. However, since

Congress made no substantive change in
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 8801

passing 49 U.S.C Chapter 51, this

decision will cite to the preemption

criteria as presently set forth in 49

U.S.C. 5125.

II. Petition for Reconsideration

CHP’s petition seeks reconsideration

of the decision in PD–4(R) that 49 U.S.C.

5125(a) preempts California’s

requirement for an annual inspection of

cargo tanks and portable tanks used to

transport flammable and combustible

liquids. It does not contest RSPA’s

determination that 49 U.S.C. 5125(b)

preempts certain requirements for

marking these tanks, although CHP

states that it ‘‘will petition RSPA for a

waiver of preemption’’ as to the

requirement for a ‘‘metal identification

plate on a non-spec cargo tank (13 CCR

1195).’’ With respect to the annual

inspection requirement, CHP asks for

‘‘correction of [three alleged] factual

errors,’’ and it asks three questions for

‘‘written clarification of the application

of the preemption [determination].’’

First, CHP contends that there was no

‘‘current substantive evidence that

significant delays were still being

experienced.’’ According to CHP, the

comments by Union Pacific Railroad Co.

(UPRR) and CWTI concerned the

separate (but similar) requirements

imposed on transporters of hazardous

waste, under California’s Hazardous

Waste Vehicle and Container Inspection

and Certification Program (HWIC),

rather than the delays currently being

experienced under the CT Program. CHP

refers to the availability of temporary

registration under the CT program,

which supposedly eliminates the delays

experienced in the HWIC Program. And

it reiterates that it ‘‘has more than

doubled the number of inspectors

statewide since UPRR’s comments were

made * * * and invited Nalco to update

[its] experience.’’

CHP charges that comments by both

Nalco and 3M are ‘‘invalid,’’ on the

ground that these comments did not

consider changes made to the CT

Program between 1990 and 1993. CHP

alleges that the Hazardous Materials

Advisory Council (HMAC) and NTTC

did not provide substantial or

substantive evidence of a burden on

commerce or an obstacle to compliance

with the Federal hazardous material

transportation law and the HMR. CHP

also argues that comments ‘‘about the

proliferation of other states’ programs

failed to address the addition of 34120

and 34121 VC which authorized

reciprocity with CT Programs by other

States and the Federal Government.’’

Second, CHP asserts that RSPA has

improperly interpreted 49 CFR

177.853(a) to prohibit ‘‘safety related

delays, including compliance with

mandatory inspection programs [which]

are legitimate reasons for delay.’’ It

argues that the intent of this regulation

‘‘was to balance safe transportation of

hazardous materials with the need for

their expeditious delivery,’’ and that

RSPA’s determination ‘‘implies that

delays for any reason (other than as

specifically authorized)’’—including

bad weather, road hazards, driver rest

periods, and holidays—are

‘‘unnecessary.’’ CHP also argues that

177.853(a) should not apply to any

delays after delivery of the tank’s

contents, since that is the ‘‘point of

‘final discharge at destination.’ ’’

Third, CHP states that RSPA also may

not clearly understand—and that HMAC

and NTTC failed to investigate or

address—California’s

Temporary registration process that allows

the carrier to simply forward the registration

fees via a telegraphic money order and carry

a copy as temporary cargo tank registration

for up to 10 days (see 13 CCR 1190.1(b)) as

proof of registration.

CHP asserts that a carrier’s ability to

‘‘obtain a temporary cargo tank

registration for any out-of-state based

cargo tank 24 hours a day, 365 days a

year’’ avoids delays, because the

temporary registration allows the tank to

enter the State, be unloaded, and then

be presented for inspection. CHP

continues that a 1992 amendment to the

inspection requirement ‘‘allows the

carriers to freely move a tank that

contains only residue throughout the

State without current registration,’’ so

the carrier is subject to citation only if

it reloads the tank with a flammable or

combustible liquid after failing to be

inspected within 10 days of entering

California.

Besides these alleged errors, CHP asks

RSPA to answer the following questions

to clarify the ruling in PD–4(R):

1. Given the fact that the HMTUSA allows

the State the authority to require a cargo tank

registration program (separate from the

inspection program), can the State require

some form of proof of registration be carried

with the packaging (cargo or portable tank)

either directly on the packaging or carried in

the vehicle (or vehicle combination)?

2. Based on the fact that HMTA allows the

State to operate a registration program, can

the State require some means of positively

identifying the packaging in order to verify

its registration (keeping in mind that nearly

all bulk packagings have some type of unique

identifier)? Please note that non-specification

(DOT) packagings which require no

identification are the central issue.

3. Is our understanding of the ruling

correct in that the mandatory inspection and

certification is only preempted for tanks

based out of California (i.e., the State is not

preempted from requiring a mandatory

inspection of tanks based in California as the

operators of these tanks have adequate

opportunity to have the tanks inspected prior

(up to 60 days prior) to the expiration of the

previous registration/certification)?

III. Comments Responding to the

Petition for Reconsideration

Three parties submitted comments

opposing CHP’s petition for

reconsideration: Nalco, NTTC, and

CWTI. In addition, 3M stated that it now

uses portable tanks that are no longer

covered by the CHP inspection

requirement (although it incurred costs

‘‘in reverting to drum shipments and

back to portable tanks once the

amendment became effective’’), and

thus was withdrawing its earlier

comments.

As it had earlier, Nalco acknowledges

‘‘improvements in California’s

registration and inspection processing,’’

but contends that ‘‘delays continue to be

encountered, both in this program and

in the immediately parallel program on

wastes.’’ It asserts that CHP’s ‘‘focus is

misplaced,’’ because the ‘‘primary issue

is not the minutes or hours of delay as

they affect a particular tank on a

particular day but, rather, whether the

delay is ‘unnecessary’ as that term is

used in the regulations.’’ Nalco

contends that RSPA has not

misinterpreted 49 CFR 177.853(a)

because ‘‘[e]xpeditious delivery is a

safety issue, not a commercial one.’’

NTTC disagrees that any of the parties

had ‘‘confused’’ the requirements of

California’s HWIC and CT Programs or

that there was any error from an alleged

failure to respond to the changes in the

CT Program which CHP implemented

between 1990 and 1993. NTTC quotes

the language at 58 FR 48933 stating that

PD–4(R) ‘‘does not address’’ the HWIC

Program, and it asserts that RSPA

properly considered ‘‘the fact patterns

as presented in the original petitions.’’

NTTC contends that temporary

registration will not prevent delays. It

states that, even if a carrier’s

headquarters ‘‘telegraphs a money order

to CHP,’’ the truck may depart before

confirmation of registration, and

‘‘geography and time zone differences

assure that the driver will not have a

copy of the documentation.’’ NTTC also

presents situations in which delays

would exceed the 10-day period

permitted for inspection, under a

temporary registration:

Truck deliveries may be made during

weekends or at hours when inspectors are

not available. Inspectors take holidays, they

call in sick or they may be redispatched to

more pressing duties. Surely the state is not

asserting that a vehicle ‘‘hang around’’ until

such contingencies are resolved?
8802 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

NTTC also states that the ‘‘reciprocity’

provisions’’ in the CT program are

illusory, because ‘‘CHP failed to give but

one example of another state joined by

such provisions.’’ According to NTTC,

‘‘the extension of reciprocity is

discretionary. There are no readilyavailable criteria upon which a carrier

(or even another state) can rely to

determine whether or not an existing

program is ‘reciprocal’ with California.’’

CWTI similarly argues that

‘‘reciprocity has not materialized.’’ It

asserts that CHP’s discussion of ‘‘factual

errors’’ and ‘‘changes to the CT

program’’ miss the point of the decision

in PD–4(R): ‘‘To the extent [that] CHP

can demonstrate to RSPA that its CT

program no longer causes ‘unnecessary’

delay, the CHP may begin to apply and

enforce its requirements.’’ CWTI

contends that CHP has not eliminated

unnecessary delay, even by hiring more

inspectors:

The unavailability of inspectors, however,

is only part of the unnecessary delay

problem. Delay also results from the advance

notification of hazardous materials

shipments which must attend all inspections

in order to arrange for the inspection and

routing of vehicles and bulk packagings to

inspection locations, as well as delays which

may result from the logistics of obtaining,

completing, and filing authorized

documentation of vehicle/bulk packaging

registration and fees.

CWTI likens delays for bad weather

and holidays to ‘‘acts of God,’’ and

states the ‘‘key point’’ to be that ‘‘state

program deficiencies evidenced by a

lack of inspectors and/or inspection

locations do not justify delay in the

transportation of hazardous materials.’’

Citing the legislative history and

findings in the 1990 amendments to the

former HMTA, CWTI argues that

unnecessary delay inhibits safety, not

just commerce. And it states that RSPA

is the proper agency to balance what

CHP asserts are competing goals of ‘‘safe

transportation’’ and ‘‘expeditious

delivery.’’

CWTI initially accepted statements in

the petition for reconsideration that

CHP ‘‘ ‘routinely find(s) tanks that are

not in compliance with the HMR,’ ’’ as

short as one day after certification by a

DOT-registered facility, but argued that

this simply proves that ‘‘any inspection

is as good as the point in time in which

it is conducted,’’ and ‘‘roadside

inspections are vital to ensuring the safe

transportation of hazardous materials.’’

(In supplemental comments dated

November 17, 1993, CWTI disagreed

with CHP’s statements of routinely

finding tanks in violation of the HMR,

based on data in the Federal Highway

Administration’s 1992 Annual Report.

These supplemental comments are not

necessary for reaching a decision on

CHP’s petition for reconsideration.)

CWTI asserted that, rather than

proceeding with ‘‘unilateral state

action,’’ CHP should provide more

specific data to support its concern that

periodic inspections under DOT’s

regulations are inadequate.

CWTI finds CHP’s statements

concerning the absence of temporary

registration under the HWIC Program is

an admission that ‘‘the HWIC program

causes ‘unnecessary delay.’ ’’ It requests

that ‘‘RSPA repeat in as strong of terms

as possible its directive that the CHP

desist applying and enforcing the HWIC

program in a manner which is

inconsistent with the principles

contained in PD–4(R).’’ CWTI also states

that RSPA correctly decided that 49

U.S.C. 5125(b) preempts California’s

marking requirements, and that CHP

should have ‘‘participate[d] in the

formulation of federal requirements for

the marking/certification of cargo tanks

used for the transportation of hazardous

materials,’’ in RSPA’s rulemaking

Docket No. HM–183. CWTI notes that

RSPA reached no conclusion about the

registration fees under the CT Program,

and comments that the requirement that

fees be equitable, in former 49 App.

U.S.C. 1811(b) (reworded as ‘‘fair’’ in 49

U.S.C. 5125(g)), is generally violated

when ‘‘fees remain unapportioned for

carriers operating in interstate

commerce.’’

Nalco, NTTC and CWTI all challenge

CHP’s implicit positions, in the

questions, that it would be appropriate

to require proof of registration to ‘‘be

transported with the packaging (cargo or

portable tank)’’ and ‘‘some means of

positively identifying the packaging in

order to verify its registration.’’ NTTC

states that all tanks have some means of

identification; ‘‘[e]ven non specification

cargo tanks have VIN numbers.’’ Nalco

agrees, stating that as part of the

registration process, States gather

information about the registrant and its

equipment and can ‘‘provide it directly

to their inspectors without having to

decorate the interior or exterior of the

vehicle for each jurisdiction for the

inspectors’ convenience.’’ CWTI

opposes what it calls CHP’s ‘‘efforts to

reassert a linkage between specific

vehicles and registration.’’ It alleges the

‘‘burden that would result if other states

insisted on unique numbers and

shipping paper requirements,’’ and

refers to recommendations of a working

group on uniform forms and procedures

for registration and permitting, under 49

U.S.C. 5119. According to CWTI, the

working group has recommended State

registration of hazardous materials

carriers, not specific vehicles or

packagings.

Nalco and NTTC disagree with CHP’s

conclusion that an annual inspection

may still be required for cargo tanks and

portable tanks based in California. They

consider that the decision in PD–4(R)

applies to all tanks regulated by the

HMR, and Nalco comments that, ‘‘in

light of the anticipated rule in Docket

No. HM–200,’’ the small number of

tanks presently not governed by the

HMR ‘‘does not warrant the confusion

that would be caused by a State program

addressed only to these units.’’

IV. Discussion

As discussed in PD–4(R), Nalco’s

original challenge to California’s

inspection requirement, in 1990, was

accompanied by an affidavit setting

forth specific dates that ‘‘filled incoming

tanks’’ were held waiting the arrival of

a CHP inspector, ‘‘thereby delaying

delivery to customers.’’ 58 FR at 48938.

Two parties submitting comments in the

original proceeding (designated IRA–53)

provided specific time periods for CHP’s

delays in inspecting tanks: Union

Pacific cited waits of up to five days for

inspections at its intermodal ramps

(which CHP states referred only to tanks

containing hazardous wastes), and

CWTI stated that it had encountered

‘‘delays of two to three days for an

inspection’’ of tanks used for hazardous

wastes. 58 FR at 48939.

After the application in IRA–53 was

returned to Nalco, and Nalco petitioned

for an administrative determination of

preemption pursuant to what is now 49

U.S.C. 5125(d), no party submitted

further information as to the specific

periods that cargo tanks and portable

tanks used for flammable and

combustible liquids were being delayed.

Rather, Nalco stated that

‘‘improvements and pre-payment

options have speeded the issuance of

instructions to the field * * *, but

unnecessary delays are still encountered

* * * compounded by inspector[s’]

schedules, vacations and sick leave.’’ 48

FR at 48938. CHP acknowledged that

some delays still exist, despite

modifications such as reducing the

number of tanks subject to inspection,

increasing the number of inspectors,

establishing inspection stations at four

port-of-entry locations, and providing a

10-day temporary registration that

allows a carrier to enter California and

deliver its load before being inspected.

At no time, however, in its prior

comments or in its petition for

reconsideration, has CHP contended

that it has eliminated situations where

the transportation of a loaded tank must

be interrupted and wait for the arrival
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 8803

of an inspector. Rather CHP

acknowledged, in its opening comments

in PDA–6(R), that ‘‘some instances have

resulted in inspections not being

performed in as timely a manner as the

CHP or industry would like * * * due

to lack of adequate planning on the part

of both the operator and the CHP.’’ In

its rebuttal comments, CHP stated that,

with the ‘‘current [inspection] staff and

the four POE facilities we can inspect

nearly all out-of-state domiciled cargo

tanks without any diversion or delays.’’

It contended that the remaining delays

encountered in performing inspections

are reasonable, justified and not

‘‘unnecessary’’ based on the number of

violations found—as CHP again

contends in its petition for

reconsideration.

RSPA’s decision in PD–4(R) did not

ignore safety, but rather followed the

prior inconsistency rulings in which

RSPA consistently found that the safe

transportation of hazardous materials is

advanced by 49 C.F.R. 177.853(a) which

prohibits ‘‘unnecessary’’ delays. See the

discussion at 58 FR 48939–41. The

argument in CHP’s petition for

reconsideration that safety justifies

delays does not provide any answer.

Safety has been alleged as the basis of

every non-Federal requirement that has

been challenged, and considered by

RSPA, since the former HMTA first

provided for the preemption of

‘‘inconsistent’’ State and local

requirements.

The only difference cited by CHP to

distinguish the CT inspection program

and the HWIC program applicable to

carriers of hazardous waste is the

availability of a 10-day temporary

registration under the CT program only.

Whether or not the procedures for

temporary registration can eliminate

delays, there is no information that they

have eliminated delays. Moreover,

NTTC asserts that temporary registration

will not always prevent delays.

The CT and HWIC inspection

programs appear to be otherwise

similar, and the inspections under both

are conducted by CHP. For that reason,

RSPA must assume that waits

experienced by transporters of

hazardous waste (such as UPRR and

CWTI) are representative of waits faced

by an interstate carrier of flammable or

combustible liquids, when that carrier is

unable to obtain a temporary

registration or plan its arrival to allow

for inspection at a POE location.

In addition, CHP’s admissions that it

has not eliminated situations where

loaded tanks must wait for an inspector

to arrive to conduct an inspection make

the specific number of days’ wait cited

by UPRR and CWTI unnecessary for

RSPA’s decision.

The decision in PD–4(R) was a narrow

one. As specifically noted there, RSPA

encourages State and local governments

to adopt and enforce the requirements

in the HMR through inspections. 58 FR

48940–41. During fiscal 1994, DOT

provided grants in excess of $64 million

to all States, and $3.2 million to

California, to carry out inspections

under the Federal Motor Carrier

Assistance Program. See generally 49

CFR Part 350 governing grants ‘‘to

encourage each State to enforce uniform

motor carrier safety and hazardous

materials regulations for both interstate

and intrastate motor carriers and

drivers.’’ 49 CFR 350.5.

Moreover, RSPA agreed with all

parties that the time involved to

conduct a tank inspection was

reasonable, and not unnecessary,

including any time waiting one’s ‘‘turn’’

for an inspector already present. 58 FR

at 48941. But RSPA found that forcing

a tank to wait for the arrival of an

inspector from another location was an

‘‘unnecessary’’ delay, and because

California’s CT program was not free

from these kinds of delays it created an

obstacle to the accomplishment and

execution of the Federal hazardous

material transportation law and the

HMR. California ‘‘may not require an

inspection as a condition of travelling

on California’s roads when the

inspection cannot be conducted without

delay because an inspector must come

to the place of inspection from another

location.’’ Id. For that reason, RSPA

found that the provision now codified at

49 U.S.C. 5125(a) preempted the

inspection requirement in VC 34060 and

13 CCR 1192, as that requirement was

being applied and enforced.

If and when California eliminates the

unreasonable delays in its inspection

program, that requirement will no

longer be preempted. Nothing in CHP’s

petition for reconsideration, however,

provides any basis for RSPA to change

the decision in PD–4(R).

It is not possible to provide complete

answers to CHP’s three questions for

clarification of the decision in PD–4(R),

since preemption under the ‘‘obstacle’’

criterion depends upon the manner in

which a non-Federal requirement is

enforced and applied. (See also the

statement in H.R. Rep. 101–444, 101st

Cong., 2d Sess. 49, that Congress did not

intend for DOT to be a ‘‘clearing house

for obtaining advisory opinions with

respect to legislative or regulatory ideas

and notions prior to enactment.’’)

However, the following responses can

be made:

1. CHP has asked about requirements

for ‘‘some proof of registration * * *

directly on the packaging or carried in

the vehicle.’’ As specifically discussed

in PD–4(R), unless otherwise authorized

by Federal law, any non-Federal

requirement for a ‘‘marking * * * of a

packaging or a container represented,

marked, certified, or sold as qualified

for use in transporting hazardous

material’’ is preempted unless it is

‘‘substantively the same as’’ the

requirements in the Federal hazardous

material transportation law and the

HMR. 49 U.S.C. 5125(b)(1)(E). See 58 FR

at 48936–37. A requirement to carry

additional documentation on a vehicle

transporting hazardous materials,

beyond that required in the HMR, may

create an obstacle to the

accomplishment and execution of the

Federal hazardous material

transportation law and the HMR. See

Colorado Pub. Util. Comm’n v. Harmon,

951 F.2d 1571, 1581 (10th Cir. 1991).

2. CHP has asked about ‘‘some means

of positively identifying the packaging’’

and noted that its concern is primarily

with non-DOT specification packagings,

since all DOT specification tanks subject

to the CT program have a metal

identification plate and, in some

instances, a separate metal certification

plate. As discussed in PD–4(R), any

marking on the tank itself is a ‘‘marking

* * * of a packaging or a container

represented, marked, certified, or sold

as qualified for use in transporting

hazardous material.’’ 49 U.S.C.

5125(b)(1)(E); 58 FR 48937. To the

extent that non-specification packagings

do not already contain some unique

identifying characteristic and California

believes that they must in order to

transport hazardous materials,

California may submit a petition for

rulemaking in accordance with 49 CFR

part 106.

3. CHP has asked about the

application of the decision in PD–4(R)

to ‘‘tanks based in California.’’ However,

it does not indicate whether it assumes

that these tanks remain completely

within California or travel throughout

the United States. Tanks that never

leave California would not experience

delays associated with entering the State

or being rerouted around California. See

PD–5(R), Massachusetts Requirement for

an Audible Back-up Alarm, etc., 58 FR

62707, 62710 (Nov. 29, 1993). On the

other hand, ‘‘tanks based in California’’

which are used in other States may well

experience the same types of delays as

‘‘tanks based out of California.’’

V. Ruling

For the reasons stated above, the CHP

petition for reconsideration is denied.
8804 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

This decision incorporates and reaffirms

the determination set forth at 58 FR

48933 that the provisions now codified

at 49 U.S.C. 5125(a) and (b) preempt:

A. California’s requirement in VC

34060 and 13 CCR 1192 for an annual

inspection of cargo tanks and portable

tanks used for highway transportation of

flammable and combustible liquids, as

that requirement is applied and

enforced, because any wait for the

arrival of State inspectors from another

location constitutes an ‘‘unnecessary’’

delay.

B. VC 34042(d) and 34061(c), which

provide that the failure to make a cargo

tank or portable tank available for

inspection is a ground for denial,

suspension or revocation of registration,

and 13 CCR 1193, requiring that cargo

tanks and portable tanks transporting

flammable and combustible liquids pass

an inspection to be certified.

C. The following requirements to

mark cargo tanks and portable tanks

transporting flammable and combustible

liquids, because they are not

substantively the same as requirements

in the HMR: (1) 13 CCR 1195, that a

metal identification plate be affixed to

any tank for which such a plate is not

required by the HMR; (2) 13 CCR 1194,

that a ‘‘CT number’’ be marked on the

tank or on a metal identification plate;

and (3) VC 34044, 34101 and 13 CCR

1193, that a certification label be affixed

to the tank and that a registration

certificate be carried in a waterproof

holder permanently attached to a

portable tank, together with the

provisions for removal of the

certification label in VC 34062–63.

VI. Final Agency Action

In accordance with 49 CFR

107.211(d), this decision constitutes

RSPA’s final agency action on Nalco’s

application for a determination of

preemption as to the above-specified

California requirements applicable to

cargo tanks transporting flammable and

combustible liquids. 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).

Issued in Washington, D.C. on February 7,

1995.

Alan I. Roberts,

Associate Administrator for Hazardous

Materials Safety.

[FR Doc. 95–3591 Filed 2–14–95; 8:45 am]

BILLING CODE 4910–60–P