Federal Register / Vol. 86, No. 107 / Monday, June 7, 2021 / Notices 30371 

1At the time of NTTC’s application, PHMSA did 

not exist. PHMSA was created on February 20, 

2005, when the Secretary of Transportation 

redelegated hazardous materials safety functions 

from the Research and Special Programs 

Administration (RSPA) to PHMSA’s Administrator. 

For consistency, the terms ‘‘PHMSA,’’ ‘‘the agency,’’ 

and ‘‘we’’ are used throughout this decision, 

regardless of whether an action was taken by RSPA 

before February 20, 2005, or by PHMSA after that 

date. 

2The NYSDEC repealed and replaced Part 230, 

with an effective date of February 11, 2021. The 

marking requirement in 6 NYCRR 230.4(a)(3), as 

amended, was recodified in 6 NYCRR 230.6(a)(2). 

The recordkeeping and retention requirements of 6 

NYCRR 230.6(b) and (c), as amended, were 

recodified in 6 NYCRR 230.7(a)(1) and (a)(2), 

respectively. 

3Final Rule, 73 FR 1916 (January 10, 2008); 

corrections, 73 FR 12275 (March 7, 2008); Final 

Continued 

Application 

No. Applicant Regulation(s) affected Nature of the special permits thereof 

12240–M ...... Spence Air Service ................. 172.101(j), 172.200, 

172.204(c)(3), 172.301, 

173.27(b)(1), 175.33, 

175.75(b).

To modify the special permit to waive certain marking and 

shipping paper requirements. (mode 5). 

13173–M ...... Luxfer Canada Limited ............ 172.101(j), 173.302a(a)(1), 

180.205(g).

To modify the special permit to authorize use the manufacture, marking, sale, and use of non-DOT specification fully 

wrapped carbon-fiber reinforced aluminum lined cylinders 

which are manifolded and permanently mounted in a protective frame for the transportation in commerce of the materials authorized by this special permit and authorize the 

use of a pneumatic proof pressure test for periodic requalification. (modes 1, 2, 3, 4). 

13220–M ...... Entegris, Inc ............................ 173.302, 173.302c .................. To modify the special permit by authorizing additional carbon 

steels specified for the cylindrical shell of the pressure vessel. (modes 1, 2, 3). 

14518–M ...... Federal Cartridge Company .... 172.301(c), 173.56(b), 173.62 To modify the special permit to authorize primers to be

shipped without an EX approval. (mode 1). 

16231–M ...... Thales Alenia Space ............... 172.101(j), 173.301(f), 

173.302a(a)(1), 

173.304a(a)(2).

To modify the special permit to authorize additional 2.3 

hazmat. (modes 1, 3, 4). 

20279–M ...... City Carbonic LLC ................... 180.207(d)(1) ........................... To modify the special permit to remove specific manufacturer 

applicability to the manufacture of authorized cylinders. 

(modes 1, 2, 3, 4, 5). 

21069–M ...... Catalina Composites, Inc ........ 173.302a, 178.71(l)(1) ............. To modify the special permit to authorize ISO 9712 as alternative to ISO 11515:2013 Section 9.1.1 certification. 

(modes 1, 2, 3, 4). 

[FR Doc. 2021–11876 Filed 6–4–21; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

[Docket No. PHMSA–98–3599; PD–19(R)] 

Hazardous Materials: The New York 

State Department of Environmental 

Conservation Requirements on 

Gasoline Transport Vehicles 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration, 

Department of Transportation (DOT). 

ACTION: Dismissal of petition for 

reconsideration of an administrative 

determination of preemption. 

SUMMARY: This proceeding was initiated 

in February 1998, when the National 

Tank Truck Carriers, Inc. (NTTC) 

applied to the Pipeline and Hazardous 

Materials Safety Administration 1

(PHMSA) for a determination that the 

HMTA preempted certain marking and 

record keeping requirements of the New 

York State Department of 

Environmental Conservation (NYSDEC). 

PHMSA found that the HMTA 

preempted the NYSDEC requirements 

because the requirements were not 

substantively the same as requirements 

in the HMR on the marking, 

maintaining, repairing, or testing of a 

package or container that is represented, 

marked, certified, or sold as qualified 

for transporting hazardous material. 

NYSDEC’s petition for reconsideration 

of that decision is dismissed on the 

grounds of mootness. NYSDEC has 

made significant revisions to its 

regulations, and the revised rules do not 

appear to impose the same requirements 

on regulated entities as the previous 

version of the rules that were challenged 

in this proceeding. It therefore does not 

appear that reconsidering PHMSA’s 

preemption determination regarding the 

now-superseded NYSDEC rules would 

have any practical effect. 

FOR FURTHER INFORMATION CONTACT: 

Vincent Lopez, Office of Chief Counsel, 

Pipeline and Hazardous Materials Safety 

Administration, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue SE, Washington, DC 20590; 

Telephone No. 202–366–4400; 

Facsimile No. 202–366–7041. 

SUPPLEMENTARY INFORMATION: 

Petitioner: New York State 

Department of Environmental 

Conservation. 

Local Law Affected: New York Codes, 

Rules and Regulations (NYCRR), 

Chapter 6, Sections 230.4(a)(3), 230.6(b) 

& (c).2

Applicable Federal Requirements: 

Federal Hazardous Material 

Transportation Law (HMTA), 49 U.S.C. 

5101 et seq., and the Hazardous 

Materials Regulations (HMR), 49 CFR 

parts 171–180. 

Mode Affected: Highway. 

I. Background 

This proceeding was initiated in 

February 1998, when NTTC applied to 

PHMSA for a determination that the 

HMTA preempted certain marking and 

record keeping requirements of 

NYSDEC. 

After NTTC filed its application, two 

key rulemakings occurred that delayed 

PHMSA’s decision on NTTC’s claims. 

The rulemakings, one initiated by 

PHMSA, and the other by the United 

States Environmental Protection Agency 

(EPA), although not related, addressed 

many of the issues raised in NTTC’s 

application. The agencies’ rulemaking 

activities spanned several years and 

culminated in December 2009, when 

EPA issued a rule change and 

clarification of its rules.3


khammond on DSKJM1Z7X2PROD with NOTICES
30372 Federal Register / Vol. 86, No. 107 / Monday, June 7, 2021 / Notices 

Rule with amendments and clarifications, 76 FR 

4156 (January 24, 2011). 

4As published in the Federal Register, the 

agency’s January 23, 2009 determination in PD– 

19(R) indicated an incorrect docket number (99– 

3559, instead of 98–3559). 

Earlier in 2009, and subsequent to the 

publication of final rules in each of the 

PHMSA and EPA rulemakings, but 

before EPA’s clarification of its rules, 

PHMSA issued its decision on NTTC’s 

application. On January 23, 2009, 

PHMSA published in the Federal 

Register its determination of NTTC’s 

application in Preemption 

Determination No. 19(R) (PD–19(R)), 74 

FR 4291.4 PHMSA found that the 

HMTA preempted the following 

NYSDEC requirements because the 

requirements were not substantively the 

same as requirements in the HMR on the 

marking, maintaining, repairing, or 

testing of a package or container that is 

represented, marked, certified, or sold 

as qualified for transporting hazardous 

material: 

• 6 NYCRR 230.4(a)(3)—requirement 

that the marking must be a minimum 

two inches and contain ‘‘NYS DEC’’; 

• 6 NYCRR 230.6(b)—requirement for 

maintaining a copy of the most recent 

pressure-vacuum test results with the 

gasoline transport vehicle; and 

• 6 NYCRR 230.6(c)—requirement to 

retain pressure-vacuum test and repair 

results for two years. 

Within the 20-day time period 

provided in 49 CFR 107.211(a), 

NYSDEC submitted a petition for 

reconsideration of PHMSA’s decision in 

PD–19(R). NYSDEC asked PHMSA to 

rescind its preemption determination 

and dismiss the application by NTTC. In 

April 2009, PHMSA extended the 

period for comments on NYSDEC’s 

petition due to the unusually long 

period it took for the agency to issue 

PD–19(R). This action was followed by 

another extended period of inactivity 

until August 26, 2010, when PHMSA 

reopened the period for comments on 

NYSDEC’s petition for reconsideration 

to receive comments on EPA’s rule 

changes. The matter has remained 

dormant since that time based on 

PHMSA’s understanding that NYSDEC 

was planning to revise its regulations. 

On February 12, 2020, NYSDEC 

proposed a rulemaking to repeal and 

replace 6 NYCRR Part 230 Gasoline 

Dispensing Sites and Transport 

Vehicles. Volume XLII, Issue 6, N.Y. 

Reg, 8 (February 12, 2020). The adopted 

requirements in 6 NYCRR Part 230, 

sections 230.6 and 230.7, became 

effective on February 11, 2021. These 

provisions contain revised versions of 

the requirements that were at issue in 

this proceeding for marking gasoline 

transport vehicles and recordkeeping 

and reporting requirements. 

II. Dismissal on Grounds of Mootness 

NYSDEC’s legislative changes to its 

rules have rendered moot NYSDEC’s 

petition for reconsideration of PHMSA’s 

2009 preemption determination. 

NYSDEC, in its February 12, 2020, 

rulemaking proposal, required pressurevacuum cargo tank testing and markings 

that align with DOT’s testing and 

marking requirements. NYSDEC 

indicated that the proposed 

amendments would make the 

requirements consistent on the state and 

federal level. Furthermore, NYSDEC 

proposed to revise the gasoline transport 

vehicle recordkeeping retention 

requirements from 2 years to 5 years in 

order to align with the current version 

of the EPA’s recordkeeping requirement 

located at 40 CFR part 63 subpart 

CCCCCC. 

The recently adopted requirements in 

6 NYCRR Part 230, sections 230.6 and 

230.7, became effective on February 11, 

2021. These provisions contain the 

requirements that were at issue in this 

proceeding for marking gasoline 

transport vehicles and recordkeeping 

and reporting requirements. The 

provision for the marking of gasoline 

transport vehicles states: 

(a) No owner or operator of a gasoline 

transport vehicle may transport gasoline or 

allow the vehicle to be filled or emptied in 

New York State unless the gasoline transport 

vehicle meets: 

(1) the federal Department of 

Transportation (DOT) requirements for leak 

testing as required by 49 CFR 180.407(h) (see 

Table 1, Section 200.9 of this Title); and 

(2) the federal DOT requirements for test 

markings as required by 49 CFR 180.415 (see 

Table 1, Section 200.9 of this Title). 

6 NYCRR 230.6. 

The recordkeeping and reporting 

provision states: 

(a) The owner of any gasoline transport 

vehicle subject to the leak testing 

requirements outlined in section 230.6(a) of 

this Part shall keep: 

(1) leak testing records with information as 

prescribed by 49 CFR 180.417(b)(1) and (2) 

(see Table 1, Section 200.9 of this Title) for 

5 years; and 

(2) a copy of the most recent leak testing 

results with the gasoline transport vehicle. 

6 NYCRR 230.7. 

In light of the facts and circumstances 

described above, it is apparent the 

NYSDEC rules that PHMSA found were 

preempted under the HMTA—and 

subject of NYSDEC’s petition for 

reconsideration—have been 

significantly revised. On their face, the 

revised rules do not appear to impose 

the same requirements on regulated 

entities as the previous version of the 

rules that were challenged in this 

proceeding. Consequently, it would be 

inappropriate for PHMSA to render a 

decision on a petition for 

reconsideration that was filed more than 

a decade ago, for relief from the agency’s 

preemption determination that was 

based on a previous version of 

NYSDEC’s pressure-vacuum cargo tank 

testing and markings requirements 

when those requirements have recently 

undergone significant revisions. It 

appears that issuing a decision on the 

petition for reconsideration would have 

no practical effect on any party. 

III. Ruling 

For the reasons set forth above, 

NYSDEC’s petition for reconsideration 

is dismissed because the issues raised in 

the petition are moot. 

Going forward, any person directly 

affected by the revised NYSDEC rules 

(including a State, political subdivision 

of a State, or Indian tribe) may apply to 

PHMSA for a decision on whether the 

revised rules are preempted by the 

HMTA. 49 U.S.C. 5125(d); 49 CFR 

107.203. Similarly, any person who 

thinks there is a practical reason for 

PHMSA to revisit its preemption 

decision regarding the now-superseded 

rules may apply to PHMSA for a new 

decision on that question. 

Issued in Washington, DC, on May 26, 

2021. 

Vasiliki Tsaganos, 

Acting Chief Counsel. 

[FR Doc. 2021–11494 Filed 6–4–21; 8:45 am] 

BILLING CODE 4910–60–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

Hazardous Materials: Notice of 

Applications for New Special Permits 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: List of applications for special 

permits. 

SUMMARY: In accordance with the 

procedures governing the application 

for, and the processing of, special 

permits from the Department of 

Transportation’s Hazardous Material 

Regulations, notice is hereby given that 

the Office of Hazardous Materials Safety 

has received the application described 

herein. Each mode of transportation for 

which a particular special permit is 

requested is indicated by a number in 

the ‘‘Nature of Application’’ portion of 


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