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###### Department of Transportation

###### Pipeline and Hazardous Materials Safety Administration

          - [Docket No. PHMSA-98-3599 (PD-19(R))]

# AGENCY:

Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.

# ACTION:

Notice reopening period for comments on petition for reconsideration of administrative determination of preemption.

*Petitioner:*                     New York State Department of Environmental Conservation (NYSDEC).                

# SUMMARY:

PHMSA is reopening the period for comments on NYSDEC's petition for reconsideration of PHMSA's January 23, 2009 administrative determination with respect to the findings that Federal hazardous material transportation law preempts the requirements in 6 NYCRR 230.6(b) and (c) for maintaining a copy of the most recent pressure-vacuum test results with the gasoline transport vehicle and retaining pressure-vacuum test and repair results for two years, respectively.

# DATES:

Comments received on or before October 12, 2010, will be considered before a decision on NYSDEC's petition for reconsideration is issued by PHMSA's Chief Counsel.

# ADDRESSES:

                        All documents in this proceeding, including PHMSA's January 23, 2009 preemption determination (PD-19(R)), NYSDEC's petition for reconsideration, and the comments submitted on the petition for reconsideration may be reviewed in the Docket Operations Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. All documents in this proceeding are also available on the U.S. Government Regulations.gov Web site:                         *http://www.regulations.gov.*

                        Comments must refer to Docket No. PHMSA-98-3599 [1]                                                  and may be submitted to the docket in writing or electronically. Mail or hand deliver three copies of each written comment to the above address. If you wish to receive confirmation of receipt of your                               ( print page 52592)                            comments, include a self-addressed, stamped postcard. To submit comments electronically, log onto the U.S. Government Regulations.gov Web site:                         *http://www.regulations.gov.*                         Use the Search Documents section of the home page and follow the instructions for submitting comments.                    

                        Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,                         *etc.*). You may review DOT's complete Privacy Act Statement in the                         **Federal Register**                         published on April 11, 2000 (70 FR 19477-78), or you may visit                         *http://www.dot.gov.*

# FOR FURTHER INFORMATION CONTACT:

Frazer C. Hilder, Office of Chief Counsel, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001 (Tel. No. 202-366-4400).

# SUPPLEMENTARY INFORMATION:

## I. Background

                    In PD-19(R), published in the                     **Federal Register**                     on January 23, 2009 (74 FR 4291), PHMSA considered NYSDEC's requirements for marking a gasoline transport vehicle, near the DOT specification plate, to indicate that it has been successfully tested for vapor tightness in accordance with the U.S. Environmental Protection Agency's “Method 27—Determination of Vapor Tightness of Gasoline Delivery Tank Using Pressure-Vacuum Test” as set forth in Appendix A to 40 CFR part 60, and related requirements for maintaining records of pressure-vacuum test results.                

PHMSA found that Federal hazardous material transportation law preempts the requirements (1) that the marking must be a minimum two inches and contain “NYS DEC” (6 NYCRR 230.4(a)(3)); (2) for maintaining a copy of the most recent pressure-vacuum test results with the gasoline transport vehicle (6 NYCRR 230.6(b)); and (3) to retain pressure-vacuum test and repair results for two years (6 NYCRR 230.6(c)), because these requirements are 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.

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). The American Trucking Associations, Inc. (ATA) and its affiliated National Tank Truck Carriers, Inc. (NTTC) submitted comments in response to NYSDEC's petition for reconsideration. Subsequently, NYSDEC purported to “object” to the ATA and NTTC comments and, thereafter, called attention to the President's May 20, 2009 Memorandum on “Preemption” (74 FR 24693 (May 22, 2009)), to which ATA submitted a further response.

Recently, PHMSA received e-mails from counsel for NTTC asking about the status of PHMSA's decision on NYSDEC's petition for reconsideration and indicating that NYSDEC was seeking to settle a citation issued to a motor carrier in 2006.

## II. EPA Requirements

                    When PHMSA issued its determinations in PD-19(R), we were unaware of a final rule published by EPA on January 10, 2008, that added to 40 CFR part 63 a new subpart CCCCCC on “National Emission Standards for Hazardous Air Pollutants for Source Category: Gasoline Dispensing Facilities.” 73 FR 1916. In Table 2 of this subpart, EPA adopted the requirement, effective on the date of publication in the                     **Federal Register**                    , that: “The filling of storage tanks at GDF [gasoline dispensing facilities] shall be limited to unloading by vapor-tight gasoline cargo tanks.                     *Documentation that the cargo tank has met the specifications of EPA Method 27 shall be carried on the cargo tank.”*                     73 FR at 1949 (emphasis supplied). In addition, EPA has advised PHMSA that the following recordkeeping requirement in 40 CFR 63.10(b)(1) is applicable to records of the Method 27 pressure-vacuum test:                

                        The owner or operator of an affected source subject to the provisions of this part shall maintain files of all information (including all reports and notification) required by this part recorded in a form suitable and readily available for expeditious inspection and review.                         *The files shall be retained for at least 5 years following the date of each occurrence, measurement, maintenance, corrective action, report, or record.*                         At a minimum, the most recent 2 years of data shall be retained on site. The remaining 3 years of data may be retained off-site. Such files may be maintained on microfilm, on a computer, on computer floppy disks, on magnetic tape disks, or on microfiche.                    

(emphasis supplied)

                    In response to petitions for reconsideration of its January 10, 2008 final rule, EPA has published a notice proposing to make amendments and clarifications to its requirements in 40 CFR part 63. 74 FR 66470 (Dec. 15, 2009). Among the proposals in the EPA notice is a proposal to revise the retention requirement in Table 2 to subpart CCCCCC of part 63 to provide that “Documentation that the cargo tank has met the specifications of EPA Method 27 shall be carried                     *with*                     the cargo tank,                     *as specified in § 63.11125(c).”*                     74 FR at 66494 (proposed new language in italics). Proposed new paragraph (c) of section § 63.11125 would provide:                

(c) Each owner or operator of a gasoline cargo tank subject to the management practices in Table 2 to this subpart must keep records documenting vapor tightness testing for a period of 5 years. Documentation must include each of the items specified in § 63.11094(B)(1) through (viii). Records of vapor tightness must be retained as specified in either paragraph (c)(1) or paragraph (c)(2) of this section.

(1) The owner or operator must keep all vapor tightness testing records with the cargo tank.

(2) As an alternative to keeping all records with the cargo tank, the owner or operator may comply with the requirements of paragraphs (c)(2)(i) and (ii) of this section.

(i) The owner or operator may keep records of only the most recent vapor tightness test with the cargo tank and keep records for the previous 4 years at their office or another central location.

(ii) Vapor tightness testing records that are kept at a location other than with the cargo tank must be instantly available (e.g., e-mail or facsimile) to the Administrator's designated representative during the course of a site visit or within a mutually agreeable time frame. Such records must be an exact duplicate image of the original paper copy record with certifying signatures.

74 FR at 66492-93.

## III. Public Comments

Interested parties are invited to comment on the effect on the pending petition for reconsideration of PD-19(R) of the existing Federal requirements promulgated at 40 CFR part 63, subpart CCCCCC, and the proposed changes to subpart CCCCCC of 40 CFR part 63. Comments should specifically address, with respect to each aspect of the NYSDEC recordkeeping requirements in 6 NYCRR 230.6(b) and (c), whether those requirements are “authorized by another law of the United States,” under the preemption criteria set forth in 49 U.S.C. 5125(a) and (b)(1).

Issued in Washington, DC on August 23, 2010.

Bizunesh Scott,

Chief Counsel.

# Footnotes

1.                                 As published in the                             **Federal Register**                            , PHMSA's January 23, 2009 determination in PD-19(R) indicated an incorrect docket number (99-3559, instead of 98-3559). However, all comments submitted on NYSDEC's petition for reconsideration have been placed in the proper docket.                        
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[FR Doc. 2010-21315 Filed 8-25-10; 8:45 am]

BILLING CODE 4910-60-P